Cook v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RANDALL COOK, Case No. 1:19-cv-1068

Plaintiff, Black, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Randall Cook filed this Social Security appeal in order to challenge the

Defendant’s finding that he 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 August 2016, Plaintiff filed new applications for Disability Insurance Benefits

(“DIB”) and for Supplemental Security Income (“SSI”), alleging disability beginning on

February 23, 2016, the day after a prior adverse decision.1 In his applications, Plaintiff

alleged disability based upon spinal fractures, major depression and/or bipolar disorder,

degenerative disc disease, and hemorrhoids. (Tr. 217, 375). Through counsel at an

evidentiary hearing in 2018, Plaintiff additionally argued that arthritis in his right shoulder

1Plaintiff initially alleged a disability onset date of December 13, 2013, but subsequently amended his

applications to correspond with the February 22, 2016 denial date.

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education, and worked as a boat buffer, spray paint helper, and sandblaster prior to his

alleged disability onset date. There is no dispute that Plaintiff is unable to perform any of

his past work and has not worked since his disability onset date. (Tr. 28). He remained

insured, for purposes of DIB, through December 31, 2018.

Plaintiff’s applications were denied initially and upon reconsideration, leading him

to request an evidentiary hearing. On July 23, 2019, Plaintiff appeared with counsel and

gave testimony before Administrative Law Judge (“ALJ”) Renita Bivins; a vocational

expert also testified. (Tr. 65-129). Plaintiff was 44 years old on the alleged disability

onset date, and remained a “younger individual” at the time of the ALJ’s August 30, 2019

adverse decision. (See Tr. 28). In her decision, the ALJ determined that Plaintiff has the

following severe impairments: degenerative disc disease, spine disorder, carpal tunnel

syndrome, and depressive, bipolar related disorder. (Tr. 18). In addition, she noted “non[-

]severe” impairments of asthma/chronic obstructive pulmonary disease, erectile

dysfunction, hemorrhoids, tobacco use and opioid dependence. (Id.) Plaintiff does not

dispute the ALJ’s determination that none of his 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.

In contrast to the February 2016 adverse decision, in which the ALJ determined

that Plaintiff could perform all light work except for a single limitation to only “frequently

climb ramps or stairs,” (Tr. 138), ALJ Bivins determined that Plaintiff had numerous

limitations based upon “new and material evidence” submitted after that prior decision.

(Tr. 15, citing Drummond v. Com’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997)). The ALJ

determined that Plaintiff still retains the residual functional capacity (“RFC”) to perform

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pounds frequently, and able to stand and/or walk six hours in a day, and sit six hours in

a day, with normal breaks. (Tr. 20). However, she added the following non-exertional

limitations:

The claimant can frequently climb ramps and stairs, and frequently balance,

stoop, kneel, and crouch; and occasionally climb ladders, ropes, or

scaffolds, and occasionally crawl. He can perform frequent bilateral

handling and fingering, no forceful pushing/pulling of bilateral hand controls,

and avoid concentrated exposure to hazards, such as unprotected heights.

He can maintain concentration and attention, and sustain persistence and

pace to complete tasks that do not involve strict time pressures and/or strict

production demands and fast pace. He can adapt to a predictable work

setting where supervisors are available whenever changes in routine are

needed.

(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 merchandise

marker, inspector, hand packager, or routing clerk. (Tr. 29). Therefore, the ALJ

determined that Plaintiff was not under a disability. The Appeals Council denied further

review, leaving the ALJ’s decision as the final decision of the Commissioner.

In his appeal to this Court, Plaintiff first argues that the ALJ erred by failing to find

his right shoulder AC joint arthritis to be a “severe” impairment at Step 2. His second

claim of error is that the ALJ erred in determining Plaintiff’s RFC in multiple ways,2

including: (1) by failing to incorporate reaching and/or greater fingering restrictions; (2) by

unfairly discounting subjective complaints based upon “boilerplate” language and a

misleading pain scale; and (3) by improperly assessing Plaintiff’s ability to maintain

2Plaintiff’s five subclaims have been reorganized in this Report and Recommendation.

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activities” section of a consultant’s report.

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

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial

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).

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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 he 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, he 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).

B. Plaintiff’s Claims

1. Step 2 Error and Plaintiff’s Alleged Right Shoulder Arthritis

Plaintiff first argues that the ALJ erred in failing to consider his right shoulder AC

joint arthritis to be a “severe” impairment. Notably, the shoulder impairment was not found

to be a “severe” impairment at Step 2 in the prior 2016 decision. Plaintiff has not sought

any medical attention for his shoulder since his revised disability onset date of February

23, 2016. Additionally, there is no evidence in the record relating to his shoulder between

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argued at the hearing that the pre-existing shoulder arthritis constituted a severe

impairment. In this appeal, Plaintiff speculates that the ALJ’s failure to include his

shoulder impairment at Step 2 “matters… if an individual because of right shoulder joint

arthritis would have limitations with respect to reaching.” (Doc. 7 at 11, emphasis

original). He argues that the ALJ erred in dismissing the possibility that he had such

limitations merely because he had not complained about his shoulder or sought any

treatment in recent years. Plaintiff suggests that “people sometimes just elect to ‘live with’

a particular medical problem and that fact alone does not necessarily mean that the

individual does not or would not have functional limitations secondary to that condition.”

(Doc. 7 at 11-12, emphasis added).

The undersigned finds no reversible error. It was Plaintiff’s burden to produce

medical evidence to show that he had an impairment, and how that impairment impacts

his functioning during the relevant disability period. See 20 C.F.R. § 404.1512(c). At the

hearing, counsel acknowledged the absence of any treatment during the disability period

but argued that “there were x-rays several years ago that showed moderate degenerative

changes in the right shoulder AC joint. That doesn’t go away.” (Tr. 71; see also Doc. 13

at 2, argument that “osteoarthritis is a progressive condition…which only gets worse with

time.”). Plaintiff’s speculation is insufficient to show error on the record presented.

Although ALJ Bivens determined that Plaintiff had submitted “new and material”

evidence sufficient to warrant greater limitations in other areas, there was no such

3Although records relating to the alleged shoulder impairment were discussed in more detail in the 2016

decision, the 2016 decision found no shoulder-related limitations to be supported by the record. (See Tr.

139).

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February 2013 – three years prior to the alleged onset of disability and six and a half

years prior to the ALJ’s decision. The mere diagnosis of “moderate” AC joint arthritis on

x-ray in 2013 reflects nothing about the level of functional impairment, if any, during the

relevant disability period. See Young v. Sec’y of Health & Human Servs., 925 F.2d 146,

151 (6th Cir. 1990).

Although Plaintiff’s failure to point to relevant evidence during the disability period

is dispositive, it is worth pointing out that Step 2 errors rarely require reversal when the

ALJ finds at least one “severe” impairment and therefore continues with the remaining

steps in the sequential process. That is because in determining a plaintiff's residual

functional capacity and ability to work later in the sequential process, the ALJ must

consider even the impairments found not to be “severe” at Step 2. See Maziarz v.

Secretary of Health and Human Servs., 837 F.2d 240, 244 (6th Cir. 1987); 20 C.F.R. §

404.1520. In other words, at Steps 4 and 55 an ALJ must “consider the limiting effects of

all [the claimant's] impairment(s), even those that are not severe, in determining [the

claimant's] residual functional capacity.

Pain or other symptoms may cause a limitation of function beyond that

which can be determined on the basis of the anatomical, physiological or

psychological abnormalities considered alone; e.g., someone with a low

back disorder may be fully capable of the physical demands consistent with

those of sustained medium work activity, but another person with the same

disorder, because of pain, may not be capable of more than the physical

demands consistent with those of light work activity on a sustained basis.

In assessing the total limiting effects of your impairment(s) and any related

symptoms, we will consider all of the medical and nonmedical evidence….

20 C.F.R. § 404.1545(e) (emphasis added). Here, the ALJ was not required to include

any “reaching” limitations because Plaintiff presented no evidence that would support

functional limitations. Plaintiff testified to shoulder pain that increased when he slept on

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of ease the pain.” (Tr. 89). Counsel did not elicit testimony concerning any limitations in

reaching, and Plaintiff did not testify to any such limitations.

Still, Plaintiff insists that on the record presented, the ALJ’s failure to include the

shoulder impairment in a short list of “non-severe” impairments at Step 2, (see Tr. 18), is

significant, because it suggests the ALJ failed to consider the alleged impairment at all.

(See Doc. 13 at 1, arguing that ”she did not consider it at all,” emphasis original).

However, the ALJ’s list of non-severe impairments referred to those supported by

“medical records.” None of the most relevant medical records (dated within the disability

period) referred to a shoulder impairment. More importantly, the record sharply

contradicts Plaintiff’s assertion that the ALJ ignored his allegation of a shoulder

impairment. The ALJ explicitly addressed Plaintiff’s allegations of disabling shoulder pain,

noting “that he has not had treatment for his shoulder since 2016.” (Tr. 21; see also id.,

restating Plaintiff’s testimony including his report of “right shoulder pain rated at 4,

depending on the activity he engages in or if he sleeps on it.”). The ALJ also explicitly

and repeatedly pointed out the absence of records to substantiate either a right shoulder

impairment or any functional limitations related to the shoulder. (See Tr. 24, summarizing

March 2019 examination record that assessed multiple issues including lumbar pain, but

with “no mention or report of right shoulder complaints or deficits.”; id., summary of May

2019 record that assessed “normal musculoskeletal range of motion” and “again no

mention or report of right shoulder complaints or deficits.”; Tr. 25, summary of May 2019

exam for thoracic and lumbar back pain that included “normal cervical and thoracic range

of motion, limited lumbar extension, normal lumbar flexion, [and] lumbar tenderness, but

contained “no mention or report of right shoulder complaints or deficits.”; Tr. 26,

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and again noted “no mention of right shoulder complaints or deficits.”).

2. The ALJ’s RFC is Substantially Supported

As discussed above, Plaintiff’s first claim of “Step 2” error in failing to find his

shoulder arthritis to be a “severe” impairment also touches upon the ALJ’s RFC findings.

Plaintiff’s second assignment of error more directly attacks the ALJ’s RFC determination

in multiple ways. Because the RFC is substantially supported by the record as a whole,

I find no reversible error.

a. Reaching and/or Fingering Limitations

Repeating his assertion that he suffers from a severe shoulder impairment, Plaintiff

argues that “it stands to reason that an individual with moderate AC joint arthritis is

necessarily going to have at least some degree of limitation” in reaching with his right

arm, contrary to the opinion of the agency consulting opinion who specifically opined that

Plaintiff’s ability to reach was “unlimited.” (Tr. 192, emphasis added). Plaintiff suggests

that the consultant might have overlooked the February 2013 x-ray report that showed

arthritis in his right shoulder AC joint. For the reasons stated, the ALJ’s RFC finding of

“unlimited” reaching limitations is substantially supported by both the consulting

physicians’ opinions and the record as a whole.

Pointing to his diagnosis of carpal tunnel syndrome, Plaintiff further argues that the

ALJ erred when she determined that he could use his hands “frequently” for bilateral

handling and fingering. Plaintiff testified that he was last treated for carpal tunnel by Dr.

Walquist back in 2016, but that he had recently scheduled a return visit to Dr. Walquist,

to take place after the July 2019 hearing. (Tr. 83). In fact, the adverse 2016 decision

included no handling or fingering limitations at all, (Tr. 138), and neither Dr. Walquist nor

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limitations. Without citing any new evidence of record, Plaintiff criticizes the 2019 decision

for not including greater limitations. Again, I find no error.

The ALJ acknowledged an April 2016 electromyography/nerve conduction stud

that showed “mild to moderate right carpal tunnel syndrome and borderline left carpal

tunnel syndrome” followed by “a significant gap” in any treatment for that condition. (Tr.

22). The ALJ also discussed a January 2017 examination of Plaintiff’s hands that was

essentially normal. (Tr. 23). With respect to handling and fingering, the ALJ’s RFC

determination is well-supported by the opinion of consulting physician Dr. Delphia that

Plaintiff would have some manipulative limitations, but that he could still perform

“frequent” handling and fingering, with no forceful pushing or pulling of bilateral hand

controls. (Tr. 27).

Plaintiff criticizes the adoption of agency opinions on grounds that one physician

was trained as a family practice physician and the other as an internist. However, the

evaluation of medical opinions includes consideration of many factors, including but not

limited to a physician’s specialization. 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 the agency physicians

were board certified in family practice and in internal medicine does not diminish the fact

that under SSR 17-2p, 2017 WL 3928306 at *3 (March 27, 2017), they remained “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

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supported by substantial evidence, in contrast with Plaintiff’s wholly unsupported opinion

that his carpal tunnel diagnosis entitles him to greater limitations.

Also unpersuasive is Plaintiff’s suggestion that the ALJ should have held the record

open for an indefinite period to allow him to pursue a new diagnosis that might have

supported additional handling or fingering restrictions. Plaintiff points to a medical note

from his primary care nurse practitioner dated July 17, 2019 that found “nodules” at the

DIP joints (Tr. 767), as well as an abnormal rheumatoid factor (Tr. 768),4 which he asserts

“suggested that… Mr. Cook might be suffering from rheumatoid arthritis affecting his

hands.” (Doc. 7 at 20). The ALJ acknowledged the exam record, (Tr. 24-25, citing Tr.

756). However, she also referenced a record that found normal range of motion in both

wrists, with no tenderness and no bony tenderness. (Id.)

Plaintiff now argues that the ALJ should have held the record open “to allow Mr.

Cook time to have the rheumatology consultation” recommended by the CNP. (Id. at 21).

However, Plaintiff had just been referred for a consultation, and his insured status had

expired months prior, in December 2018. Arguably, Plaintiff waived the argument by

failing to request that the ALJ hold the record open for a rheumatology consult. When the

ALJ suggested holding the record open for only a short period, counsel affirmatively

responded: “That should be fine.” (Tr. 73). Regardless, Plaintiff has offered no evidence

(either before the Appeals Council or before this Court) to suggest that he has been

diagnosed with rheumatoid arthritis, or that he has functional limitations from that

condition. The ALJ reviewed the only post-hearing evidence submitted, noting that

4The rheumatoid factor test showed 15 IU/mL, 1 point above normal. (Tr. 756, 759).

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and that he had tried no treatment. (Tr. 25-26, 753).

b. The ALJ’s Evaluation of Plaintiff’s Subjective Complaints

Using circular reasoning, Plaintiff generally complains that the ALJ improperly

discounted Plaintiff’s subjective complaints because the ALJ found he retained the RFC

to perform light work despite his allegations. More specifically, Plaintiff argues that the

ALJ erred by using some “boilerplate” language and by using a misleading pain scale.

The undersigned begins with Plaintiff’s general contention, which appears to assume that

chronic pain precludes the ability to sustain work.

Not all pain is “disabling,” and many non-disability determinations are affirmed

notwithstanding evidence to support some level of chronic pain. See generally, Blacha

v. Sec'y of HHS, 927 F.2d 228, 231 (6th Cir. 1990) (affirming ALJ’s determination that

pain from nerve root compression due to herniated disc and degenerative changes did

not preclude all work). In fact, many claimants allege disability due to pain.5 Pain alone

can be disabling, but it remains the responsibility of the ALJ to assess whether a plaintiff’s

subjective reports are in fact disabling. This assessment, formerly referred to as the

“credibility” determination in 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). 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

5Here, notwithstanding his argument to this Court, Plaintiff did not testify before the ALJ that his pain level

precluded all work.

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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.

Despite clarifying the basis for the analysis of subjective complaints and

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).

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

1997). Further, a credibility/consistency determination cannot be disturbed “absent a

compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper

for an ALJ to discount the claimant's testimony 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).

Having clarified the relevant standards, the undersigned turns to Plaintiff’s two

more specific arguments concerning the use of “boilerplate” and what Plaintiff maintains

was a misleading pain scale. The undersigned finds the ALJ’s analysis to be consistent

with the law and substantially supported by the record presented.

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Plaintiff complains about the ALJ’s use of boilerplate language in finding that “the

claimant’s statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely consistent with the medical evidence and other evidence in the

record for the reasons explained in this decision.” (Doc. 7 at 13, quoting Tr. 22).

However, there is nothing inherently wrong with an ALJ’s use of “boilerplate” language to

summarize evidence, and Plaintiff offers no legal authority to the contrary.

The ALJ went well beyond that summation in explaining the inconsistencies she

found between the claimant’s statements and the medical evidence and other evidence

in the record. (Tr. 21-28). For example, the ALJ properly summarized Plaintiff’s daily

activities, including his ability to prepare simple meals, go out to eat, shop, load the

dishwasher, and do laundry including folding and hanging clothes, go to church (for a

period of time), spend time with his girlfriend, go to friends’ houses to get marijuana (until

January 2019) and watch TV. (Tr. 21-22). The ALJ reviewed the conservative nature of

his back treatment (and lack of treatment for his shoulder since 2016), two significant

gaps in medical treatment, and multiple medical records that documented relatively

normal findings and/or that appeared inconsistent with Plaintiff’s claim of disability. (Tr.

22-26). She noted inconsistencies in Plaintiff’s own testimony, such as his testimony that

he does not presently go to friends’ houses or associate with people, but that he “knows

a lot of people,” that friends or neighbors help him with the trash and helped him relocate,

and that until January 2019, he would stop by friends’ houses to smoke marijuana and

friends would visit him. (Tr. 26). This analysis is both consistent with SSR 16-3p and is

substantially supported by the record as a whole.

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Plaintiff further complains that the ALJ employed a “pain scale” that was “clearly

designed to elicit reported pain scores significantly lower than those that claimants would

normally give when asked to rate their pain by their physician.” (Id. at 13). He maintains

that it was “disingenuous” for the ALJ to so define the pain scale and then to discount

Plaintiff’s pain level as a result. (Id.) Specifically, Plaintiff complains about the following

colloquy in which the ALJ defined a numerical pain scale as follows, before asking Plaintiff

to assess his pain using that scale:

ALJ Q. – ten feels like a part of your body’s been amputated, the worst possible

pain you can imagine.

* * *

Q. Nine, your pain is such that you feel like you need to be in the hospital.

* * *

Q. Eight, you need an ambulance. Seven, you need[] somebody to drive you to

the emergency room. Six, you feel like you need to drive yourself to the emergency

room if you had your driver[‘]s license.

* * *

Q. Five, you take your pain medication. It takes the edge off for you. Three/four,

you take your medication, it’ll give you some relief, all the way down to a zero. On

an average day since 2016, please rate your mid back pain.

(Tr. 88-89). In response to the ALJ’s query, Plaintiff rated his back pain as “Five,

sometimes six,” and his shoulder pain as “Less so probably 4 to 5.” (Tr. 89). Plaintiff

went on to explain:

A. You know, just if I lay on it wrong, it bothers it to really, really bad. You know

how it is when you’re sleeping, you don’t intend to sleep on the side that you want

to sleep on. It’s the side that you tend to sleep on and it affects me, whenever I

wake up, it’s in extreme pain. Which at that point, it is a six or a seven. But It’s

nothing I can’t take my pain medication for and kind of ease the pain.

(Id. at 89).

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how the ALJ “mischaracterized” the evidence. Plaintiff’s responses - using the pain scale

provided - suggested that much of the time his pain level was at a level that required him

to take pain medication, and sometimes rose to the level where he would want to seek

emergency treatment. However, the only time in which he sought emergency treatment

for pain was in May 2018 when he presented for lower back pain after lifting a mattress.

Following ER treatment, he reported improvement in his symptoms. (Tr. 23). Plaintiff’s

own testimony confirmed that even at the highest pain levels, his pain medication was

effective to “kind of ease the pain.”

c. The ALJ’s Personal Observations and Reliance on Consultative

Opinion Evidence Concerning Focus, Attention and Concentration

Finally, Plaintiff finds fault with the ALJ’s use of her own “observations” and

reliance upon a consulting psychologist’s report to support the RFC determination that

Plaintiff could maintain sufficient focus, attention and concentration to sustain full-time

employment. (See Tr. 26). Plaintiff argues that his limited ability to focus, attend and

concentrate is “one of the biggest issues in this case,” and that the ALJ erred by not

finding either “marked” or “extreme” limitation in that area. (Doc. 7 at 15-16). However,

Plaintiff does not cite to any specific evidence to support either “marked” or “extreme”

limitations.

In the course of her determination of whether Plaintiff’s mental impairment satisfied

the “paragraph B” criteria in order to meet or equal a Listing, the ALJ found “moderate”

limitations in “concentrating, persisting or maintaining pace.” (Tr. 19-20). The paragraph

B criteria are used only to rate the severity of a mental health impairment at Steps 2 and

3 of the sequential analysis; they do not describe work-related limitations, which requires

a more detailed assessment. Under paragraph B, Plaintiff was found to have no limitation

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interacting with others. Plaintiff does not argue error with respect to those two areas, nor

does he suggest that he met the Listing criteria, which would have required at least one

“extreme” limitation or two “marked” limitations under paragraph B.

Moving forward with the more detailed RFC assessment, the ALJ found that

Plaintiff could “maintain concentration and attention, and sustain persistence and pace to

complete tasks that do not involve strict time pressures and/or strict production demands

and fast pace.” (Tr. 20). In assessing that mental RFC, the ALJ noted that Plaintiff had

not taken mental health medication since 2016 or 2017, does not have any problems

getting along with family, friends, and neighbors, and testified that he “does not do

anything during the day that requires focus or concentration but …will watch television for

20-30 minutes.” (Tr. 21). The ALJ specifically asked Plaintiff if he had any particular

issues with memory, attention and concentration, and Plaintiff responded by providing

nothing more than “examples describing a normal part of aging and subtle memory

difficulties similar to those that others in the population generally experience.” (Tr. 21).

The ALJ also cited to the examination performed by Jessica Twehues, Psy.D. Dr.

Twehues found that Plaintiff had “clear speech, logical and goal-directed thoughts,

adequate eye contact, alert and responsive, focused well in conversation, adequate

recent and remote recall, adequate insight, and sufficient judgment.” (Tr. 22, citing Tr.

526-533). The ALJ gave her opinions “some weight.” (Tr. 28). Plaintiff argues that the

ALJ’s reliance on Dr. Twehues’s report was error, but fails to point to any contrary opinion

evidence or to offer a reasoned basis for rejecting her opinions.6 Dr. Twehues specifically

6Plaintiff argues that the ALJ relied too heavily on the “‘Activities Of Daily Living’ section” of the report in

assessing “moderate” limitations in the paragraph B area. As previously explained, the paragraph B

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and carrying out instructions, and only “mild” difficulties in sustaining focus for “prolonged”

periods of time – an opinion that is consistent with the RFC as determined. (Tr. 28). The

ALJ also cited to two non-examining agency mental health consultants, Drs. Rivera and

Tangeman, who also found only “moderate” limitations in “concentrating, persisting, or

maintaining pace,” with functional limitations consistent with the mental RFC as

determined. (Tr. 27).

In addition to relying upon three consulting opinions, the ALJ thoroughly reviewed

the medical record, including Plaintiff’s mental health treatment records from the date he

began treatment, in February 2019. Plaintiff’s mental status examination at that time was

within normal limits. (Tr. 23-24). The ALJ cited multiple physical examination records that

similarly referenced Plaintiff’s normal mental status, normal behavior and normal thought

content. (Tr. 24-25). Plaintiff fails to direct this Court to any medical records or opinion

evidence that would support greater mental limitations than determined.

Last, the ALJ referred to her own observations. Although Plaintiff is highly critical

of this portion of the ALJ’s analysis, the undersigned finds no error. The ALJ appropriately

stated that her observations did not “alone” constitute substantial evidence, but that they

could be considered “when combined with other inconsistencies present in the record.”

(Tr. 26). The ALJ stated:

[T]he claimant was attentive to questioning, able to sustain conversation

and answer questions with meaningful responses. He was able to maintain

his train of thought while responding to questions and recalling important

details of his personal, medical and work history from 2016 to the present….

[H]e did not display an apprehensive facial expression, lack of focus or loss

of memory, no low energy such as yaw[n]ing, or drifting…. While the

analysis differs from the assessment of mental RFC. In assessing functional limitations, the ALJ cited

numerous portions of Dr. Twehues’s report and the opinion of two other consultants, (see Tr. 23, 27-28).

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claimant’s overall level of pain on a day-to-day basis or mental functioning,

these observations…are given some slight weight in an evidence-based

analysis of the administrative record to determine whether the nature,

intensity, frequency, or severity of …allegations and symptoms affect his

ability to work and in reaching the [RFC]. However, it is emphasized that

this observation is only one among many being relied on in reaching a

conclusion regarding the claimant’s allegations and the [RFC].

(Tr. 26). Plaintiff invites this Court to disregard the statements of the ALJ about the “slight”

weight she gave to her observations, and instead assume that the ALJ unfairly used her

observations as “a significant factor in her decision.” (Doc. 7 at 14). Absent some

evidence to set aside the ALJ’s explicit analysis and assume some nefarious intention to

deny disability benefits regardless of the law, this Court declines Plaintiff’s invitation.

Finally, citing general testimony by the VE that an individual performing unskilled

work who was “off-task” at a rate of 13% would be precluded from work, Plaintiff argues

that the ALJ erred by failing to find that his functional limitations would render him unable

to stay on task at a sufficient rate to sustain employment. (Doc. 13 at 4-5). However,

Plaintiff offers no evidence whatsoever to support his assertion that he suffered from such

severe functional limitations in his ability to maintain focus, attention and concentration.

For the reasons explained above, even if the ALJ discounted her own observations

entirely, the medical records (including both mental health and physical examination

records cited by the ALJ), the medical opinion evidence, and other evidence in the record

(including some of Plaintiff’s own testimony) easily provide “substantial evidence” to

support the mental RFC as determined.

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.

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Stephanie K. Bowman

United States Magistrate Judge

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SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

RANDALL COOK, Case No. 1:19-cv-1068

Plaintiff, Black, 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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