The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
BRENDA E. PARSONS,
Plaintiff,
v. Civil Action 2:20-cv-2594
Magistrate Judge Kimberly A. Jolson
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Brenda E. Parsons, brings this action under 42 U.S.C. § 405(g) seeking review of
a final decision of the Commissioner of Social Security (“Commissioner”) denying her
applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).
The parties in this matter have consented to jurisdiction pursuant to 28 U.S.C. § 636(c). (Docs. 6,
7). For the reasons set forth below, the Court OVERRULES Plaintiff’s Statement of Errors and
AFFIRMS the Commissioner’s decision.
I. BACKGROUND
Plaintiff previously filed applications for DIB and SSI on December 19, 2012, alleging that
she became disabled on October 25, 2012. On April 23, 2015, both applications were denied in a
determination issued by Administrative Law Judge David R. Bruce (“ALJ Bruce”). (Tr. 67–86.)
The Appeals Council declined to review ALJ Bruce’s determination, and Plaintiff apparently did
not seek judicial review. (Tr. 153–59).
Plaintiff filed her current applications for DIB and SSI on April 3, and April 20, 2017. She
initially alleged that she became disabled on October 25, 2012, but later amended her alleged onset
date to April 24, 2015—the day after ALJ Bruce’s unfavorable determination was issued. (Tr. 40).
Plaintiff’s current applications were denied initially and on reconsideration and a hearing was held
on February 21, 2019, before Administrative Law Judge Julianne Hostovich (“ALJ Hostovich”)
who issued an unfavorable determination on March 21, 2019. (Tr. 36–66, 12–35). The Appeals
Council denied Plaintiff’s request to review that determination, which consequently became final.
(Tr. 1–6).
On May 22, 2020, Plaintiff initiated this action seeking judicial review of that final
determination. (Doc. 1.) The Commissioner filed the administrative record on October 13, 2020
(Doc. 12); Plaintiff filed her Statement of Errors on November 27, 2020 (Doc. 13); and Defendant
filed an Opposition on January 11, 2021 (Doc. 14). Plaintiff did not file a Reply. The matter is
ripe for consideration.
A. Relevant Hearing Testimony
ALJ Hostovich summarized the testimony from Plaintiff’s hearing:
At the hearing, [Plaintiff] testified that she last worked in 2013 and she reported
that she worked as cashier, stocker, and assistant manager for two employers; and,
she noted that she lifted up to 50 to 60 pounds in the position. [Plaintiff] reported
that she has past work as a cook at a nursing home in 2005 and she was lifting up
to 20 pounds and standing most of the time. Regarding her impairments, the
[Plaintiff] maintained she has difficulty raising her arms above shoulder level.
[Plaintiff] noted difficulty focusing and remembering due to depression, but she is
able to drive without getting lost. She indicated that she received outpatient mental
health treatment and she has been prescribed psychotropic medications for
depression and dealing with stress. [Plaintiff] testified that she sees and hears
people that are not there and she experiences these episodes three or four times a
week. She stated that the medications have reduced her symptoms, but her
symptoms have not resolved completely. [Plaintiff] reported anger issues and sleep
difficulties. Physically, [Plaintiff] stated that she experiences migraine headaches
once every two months and she takes prescribed medication to relieve the condition.
She testified that she has pain in her lower back, rated on a scale of one to ten, as
eight and one-half. [Plaintiff] indicated that she receives pain management
treatment including medications; and, she noted that the weather changes aggravate
her symptoms. She indicated that she received physical therapy but it did not help.
[Plaintiff] reported neck and shoulder pain due to bulging in her neck and swollen
lymph nodes in her neck. [Plaintiff] testified that she has bilateral carpal tunnel
syndrome that causing her to drop objects and buttoning buttons. She stated that
she has not had carpal tunnel surgery due to her insurance.
She reported that she experiences shortness of breath with walking and she uses an
inhaler to treat her breathing condition. She testified that she stopped smoking in
June 2018. Regarding her heart issues, she stated that she experienced “passing out”
episodes and she was hospitalized and had a Loop monitor implanted. She indicated
that she was prescribed medication, but it was discontinued because it lowered
blood pressure too much. She stated that she has diabetes mellitus and takes insulin
and oral medications, but it is still not fully controlled. [Plaintiff] indicated that she
has issues with her feet related to her diabetes mellitus such as dry skin and ingrown
toenails, as well as numbness. As for her daily activities, she testified that she loads
the dishwasher, does laundry, and shops for groceries. [Plaintiff] indicated that she
is able to sit for one hour before changing positions, stand for 15 minutes before
resting, walking for one-half block, and can lift no more than a gallon of milk.
[Plaintiff] testified that she had knee surgery, but it is improved. As for her
Hodgkin’s lymphoma, she stated that it is in remission, but she has no immune
system and she gets sick easily.
(Tr. 22).
B. Relevant Medical Evidence
ALJ Hostovich also summarized the medical records:
As for [Plaintiff]’s obesity, the evidence shows [Plaintiff]’s height is 5’ 10” and her
weight ranges from 232.6 pounds with a body mass index (BMI) of 33.3 (Exhibit
B-8F, page 1) to 274.4 pounds with a BMI of 39.4, consistent with obesity (Exhibit
B-31F, page 18). The evidence from August 2015 shows that weight reduction was
discussed with [Plaintiff] in order to take significant amount of stress off of her
back (Exhibit B-4F, page 89). The evidence from May 2017 shows [Plaintiff] was
receiving physical therapy and it is helpful in reducing her pain and improving her
mobility (Exhibit B-17F, page 87). Hospital records from November 2015 show
[Plaintiff] received injection in her lumbar spine (Exhibit B-18F, pages 101 and
102).
Regarding the degenerative disc disease, hospital records from January 8, 2013,
show [Plaintiff] underwent right L5/Sl lumbar decompression and discectomy
(Exhibit B-2F, pages 13 and 14). On February 6, 2013, she presented to the hospital
for an elective “re-do” of the L5/S1 [discectomy] due to herniation (Exhibit B-3 F).
On a follow-up visit in January 2014 (prior to the amended alleged onset date), the
evidence shows [Plaintiff]’s symptoms had improved (Exhibit B-4F, page 9). In
June 2015, the medical evidence shows [Plaintiff] had a lumbar microdiscectomy
a few years ago and she responded well (Exhibit B-4F, page 30).
The objective evidence includes an MRI of the lumbar spine from June 2015 that
shows L5 transitional vertebra with S1/S2, L5/S1 right laminectomy and
discectomy, with residual disc bulge contact with right S1 nerve root, L4/5 broad
based disc bulge with some contact, and facet arthrosis (Exhibit B-4F, page 89).
The evidence shows the lumbar recurrent disc bulge is not so significant to consider
surgical intervention (Exhibit B-4F, page 89). Examination findings showed
tenderness and decreased range of motion in the lumbar spine, but straight leg
raising was negative, strength was normal in the bilateral upper extremities, and
sensation was intact (Exhibit B-8F). The evidence shows normal gait with no
assistive device (Exhibits B-8F, page 178, B-11F, page 95, and B-15F, page 13).
Overall, the degree of limitations alleged by [Plaintiff] is inconsistent with the
evidence of record. For instance, [Plaintiff] alleges difficulty with prolonged
sitting, walking and standing, but the evidence shows her daily activities include
riding horses (Exhibits B-7F, B-8F, and B-13F), traveling to Columbus (Exhibit B-
8F), and providing care for her horses, dogs, and cat (Exhibit B-23F). Additionally,
the evidence shows [Plaintiff] performs gardening and canning vegetables
(Exhibits B-8F and B-11F), cleaning and cooking (Exhibit B-11F), and mowing the
yard with a tractor (Exhibit B-18F). The evidence establishes the degenerative disc
disease is accommodated by limiting her to less than the full range of light work,
as described above.
Regarding the diabetes mellitus, the evidence includes a diagnosis of diabetes
mellitus since 2012 treated with medications and insulin (Exhibits B-5F, B-8F, B-
10F, and B-11F). Podiatry records indicate [Plaintiff] was prescribed diabetic shoes
and insoles, but she did not pick them up due to insurance issues (Exhibit B-6F).
The evidence from August 2017 shows [Plaintiff]’s diabetes mellitus is controlled
(Exhibit B-24F, page 4). The medical records from September and October 2018
indicate [Plaintiff] was “not taking care of her diabetes mellitus” and she stopped
taking Metformin due to uncontrolled diarrhea and her medication was changed
(Exhibit B-30F). Overall, the degree of limitations alleged by [Plaintiff] is
inconsistent with the other evidence of record, including the performance of various
activities by [Plaintiff] as previously discussed above. The evidence establishes the
diabetes mellitus is accommodated by limiting her to less than the full range of light
work, as described above.
Mentally, the mental health intake from August 2016 includes a diagnosis of major
depressive disorder, moderate, with anxious distress (Exhibit B-8F, pages 115 and
116). On October 2016, the mental status examination shows irritable mood, direct
eye contact, and fair insight and judgment (Exhibit B-20F). Medical records from
January 2017 include a diagnosis of anxiety and depression (Exhibit B-11F).
Mental health records show [Plaintiff] presented with complaints of depression,
anxiety, temper, crying, agitation, trouble focusing, and nightmares. [Plaintiff] was
diagnosed with PTSD, anxiety, and bipolar disorder. She was prescribed
psychotropic medications including Prozac and Depakote. On a follow-up visit in
March 2017, [Plaintiff] reported improved mood, decreased anger and aggression,
and improved sleep with Ambien. She indicated that her energy level and
motivation are better (Exhibit B-15F). Mental status examination findings show eye
contact was average, affect was full, and mood was euthymic (Exhibit B-15F, page
12). Mental health records from January 2018 show [Plaintiff] was doing well on
the current medication regimen (Exhibit B-23F, page 17). However, in September
2018, she presented with reports of hearing voices “at times” (Exhibit B-23F, page
31). Medical health records from August 2018 includes a mental status examination
with essentially normal findings; and, [Plaintiff] reported that her only concern is
regarding some small varicosities in her legs that do not cause her pain or
discomfort (Exhibit B-27F). Overall, the degree of limitations alleged by [Plaintiff]
are inconsistent with the other evidence. As noted previously, [Plaintiff]’s reported
daily activities are not limited to the extent one would expect, given the complaints
of disabling symptoms and limitations. The evidence establishes the depression,
bipolar disorder, anxiety, and PTSD are accommodated by limiting her to routine
tasks involving simple work related decisions with the ability to adapt to routine
workplace changes, with no production quota production, as described above.
[Plaintiff] did undergo surgery for the alleged impairment, which certainly suggests
that the symptoms were genuine. While that fact would normally weigh in
[Plaintiff]’s favor, it is offset by the fact that the record reflects that the surgery was
generally successful in relieving the symptoms. As noted in the record, [Plaintiff]
underwent lumbar surgery in January 2013, with revision surgery done in February
2013 (Exhibits B-2F and B-3F), with noted improvement of symptoms (Exhibit B-
4F, page 4).
The record reveals that [Plaintiff] failed to follow-up on recommendations made by
the treating doctor, which suggests that the symptoms may not have been as serious
as has been alleged in connection with this application and appeal. [Plaintiff] was
strongly advised to stop smoking in October 2014 (Exhibit B-7F, page 5), but she
testified at the hearing that she continued to smoke until June 2018. In addition,
[Plaintiff] was prescribed diabetic shoes and insoles, but she did not pick them up
due to insurance issues (Exhibit B-24F). Medical records show weight reduction
(below 200 pounds) was recommended to [Plaintiff] to relieve stress on her back
(Exhibit B-4F, page 89).
[Plaintiff] has been prescribed and has taken appropriate medications for the alleged
impairments, which weighs in [Plaintiff]’s favor, but the medical records reveal
that the medications have been relatively effective in controlling [Plaintiff]’s
symptoms. Psychotropic medications such as Prozac and Depakote were prescribed
to reduce [Plaintiff]’s psychological symptoms and the record shows she was doing
well with the current medication regimen (Exhibits B-15F and B-23F).
(Tr. 22–24).
C. ALJ Hostovich’s Decision
In her March 21, 2019, determination, ALJ Hostovich explained that because there had
been a final decision on Plaintiff’s prior disability applications, she would be bound by the findings
in that final decision for the unadjudicated period that began after it had been issued by ALJ Bruce
unless there was new and material evidence relating to the prior findings, or a change in the
relevant law, regulations, or rulings. (Tr. 24–25). ALJ Hostovich found, however, new and
material evidence, and thus that she was not so bound. (Id.)
ALJ Hostovich also found that Plaintiff had met the insured status requirement through
December 31, 2017, and that she had not engaged in substantial gainful activity since April 24,
2015, her amended alleged onset date. (Tr. 18). ALJ Hostovich further found that Plaintiff
suffered from the following severe impairments: degenerative disc disease, obesity, diabetes
mellitus, bipolar, depression, anxiety, and post-traumatic stress disorder (PTSD). (Id.). Yet, ALJ
Hostovich concluded that none of Plaintiff’s impairments, either singly or in combination, met or
medically equaled a listed impairment. (Tr. 19).
ALJ Hostovich assessed Plaintiff’s residual functional capacity (“RFC”) as follows:
After careful consideration of the entire record the undersigned finds that [Plaintiff]
has the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except she can never climb ladders, ropes, or scaffolds,
but can occasionally climb ramps and stairs, balance, stoop, kneel, crouch, and
crawl. She can tolerate frequent exposure to extreme cold, extreme heat, fumes,
odors, gases, dust, and poor ventilation. She can understand, remember, and carry
out routine tasks involving simple work related decisions with the ability to adapt
to routine workplace changes. She needs a work environment that does not impose
a strict production rate pace, that is, no production quotas.
(Tr. 21). ALJ Hostovich then relied on testimony from a vocational expert (“VE”) to determine
that Plaintiff was able to perform her past relevant work as a cook helper. (Tr. 26). In addition,
ALJ Hostovich determined that Plaintiff was capable of performing other jobs that existed in
significant numbers in the national economy such as product laborer, router, and garment folder.
(Tr. 26–27). ALJ Hostovich therefore concluded that Plaintiff was not disabled under the Social
Security Act (the “Act”), since April 24, 2015. (Tr. 27).
II. STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x. 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).
“[S]ubstantial 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting
Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).
“After the Appeals Council reviews the ALJ’s decision, the determination of the council
becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.
Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)
(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538
(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence,
it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42
U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).
III. DISCUSSION
Plaintiff challenges ALJ Hostovich’s determination that she could perform light work with
restrictions. (Doc. 13 at 5–8). Plaintiff next alleges that ALJ Hostovich erred because in assessing
Plaintiff’s RFC did not “adequately and fully convey [Plaintiff’s] limitations” in concentration,
persistence, and pace to the VE. (Id. at 11). Finally, Plaintiff contends that ALJ Hostovich’s
analysis of the opinions from the state agency reviewing physicians and psychologists was
improper. (Id. at 12–13). The Court addresses Plaintiff’s allegations of error in turn, although not
in the order that she has raised them, and finds that they lack merit.
A. Light Work Determination
Plaintiff alleges that ALJ Hostovich erred when determining that she was capable of
performing light work with restrictions. (Id. at 5–8). Specifically, Plaintiff alleges that when her
prior applications were determined, ALJ Bruce found that she was capable of sedentary work with
restrictions. (Id.). Plaintiff contends that ALJ Hostovich was therefore required to find that she
was capable of sedentary work with restrictions pursuant to the res judicata principles set forth by
the Sixth Circuit in Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997). (Id.).
The Court finds that this contention lacks merit. In Drummond, the Sixth Circuit held that
“[w]hen the Commissioner has made a final decision concerning a claimant’s entitlement to
benefits, the Commissioner is bound by this determination absent changed circumstances.” 126
F.3d at 842. In that case, claimant’s initial claim for SSI was denied when an ALJ found that she
was capable of sedentary work. Id. at 838. When the claimant later re-filed her disability claim,
a second ALJ found that she was capable of medium-level work—unlike the sedentary RFC
finding of the first ALJ—and denied the re-filed claim. Id. at 839. After explaining that “[r]es
judicata applies in an administrative law context following a trial type hearing,” the Sixth Circuit
held that the second ALJ was bound by the sedentary RFC determination of the first ALJ because
there was no new or additional evidence of an improvement in the claimant’s condition. Id. at
841–842. The Sixth Circuit reasoned that “[j]ust as a social security claimant is barred from
relitigating an issue that has been previously determined, so is the Commissioner.” Id.
The Social Security Administration subsequently issued an Acquiescence Ruling
explaining how the ruling in Drummond would be applied to claims in the Sixth Circuit:
When adjudicating a subsequent disability claim with an adjudicated period under
the same title of the Act as the prior claim, adjudicators must adopt such a finding
from the final decision by an ALJ or the Appeals Council on the prior claim . . .
unless there is new and material evidence relating to such a finding or there has
been a change in the law, regulations or ruling affecting the finding or the method
for arriving at the finding.
AR 98-4(6), Effect of Prior Findings on Adjudication of a Subsequent Disability Claim Arising
Under the Same Title of the Social Security Act -- Titles II and XVI of the Social Security Act, 1998
WL 283902, at *3 (June 1, 1998).
The Sixth Circuit also subsequently clarified the scope of Drummond in Earley v. Comm’r
of Soc. Sec., 893 F.3d 929 (6th Cir. June 27, 2018), by reiterating that res judicata applies to
administrative proceedings. The Earley Court explained that when a claimant files a later
application covering the same period as an earlier application, res judicata applies absent good
cause to revisit the earlier determination. Id. at 933. But the Earley Court explained that res
judicata does not apply when a claimant files a subsequent application seeking benefits for a
different period. Instead, “[w]hen an individual seeks disability benefits or a distinct period of
time, each application is entitled to review.” Id. The Earley Court cautioned, however, that “fresh
review is not blind review.” Id. at 934. Although an ALJ evaluating a subsequent application is
not bound to follow a previous determination, the ALJ may “nevertheless consider what an earlier
judge did if for no other reason than to strive for consistent decision making.” Id. Accordingly,
“it is fair for an [ALJ] to take the view that, absent new and additional evidence, the first [ALJ’s]
findings are a legitimate, albeit not binding, consideration in reviewing a second application.” Id.
at 933.
Here, the parties do not address whether Plaintiff’s current applications cover the same
period as Plaintiff’s prior applications. The Court, however, notes that on April 23, 2015, ALJ
Bruce issued a determination on Plaintiff’s earlier applications finding that she was not disabled
under the Act from October 25, 2012, through the date of that decision. (Tr. 80). Plaintiff filed
her current applications in April of 2017, and has since alleged an onset date of April 24, 2015—
the day after ALJ Bruce’s determination was issued. (Tr. 40). Accordingly, the Court concludes
that Plaintiff’s current applications cover a different period than her earlier applications. Under
Earley, that means that the ALJ Bruce’s findings were entitled to “legitimate, albeit not binding
consideration” by ALJ Hostovich. Earley, 893 F.3d at 933.
In her decision, ALJ Hostovich addressed the effect of ALJ Bruce’s RFC determinations:
. . . David Bruce, an Administrative Law Judge, issued an unfavorable hearing
decision on April 23, 2015. Judge Bruce concluded that the claimant had the
residual functional capacity to perform sedentary exertion, except she can never
climb ladders, ropes, or scaffolds, but could occasionally climb ramps and stairs,
balance, stoop, kneel, crouch, and crawl. She is limited to understanding,
remembering, and carrying out simple to moderately complex tasks (defined as
SVP 1 to SVP 4 type jobs), but not production rate pace jobs (Exhibit B-1A). On
initial review and reconsideration, the state agency adopted the residual functional
capacity finding of the Administrative Law Judge (Exhibits B-2A, B-3A, B-6A and
B-7 A). The prior finding concerning the claimant’s residual functional capacity is
binding absent evidence of an improvement or change in condition since the prior
hearing. Consistent with the provisions of Drummond v. Commissioner of Social
Security, 126 F.3d 837 (6th Cir. 1997); and Social Security Acquiescence Rulings
98-3(6) and 98-4(6), the undersigned must adopt disability findings (including
findings of residual functional capacity) from the final decision by an
Administrative Law Judge or the Appeals Council on the prior claim, absent new
and material evidence relating to the finding, a change in the law, regulations, or
rulings.
(Tr. 24–25). Notably, ALJ Hostovich failed to mention Earley even though it is applicable here.
Nevertheless, ALJ Hostovich followed the precepts in Early by finding that new evidence
undermined ALJ Bruce’s RFC assessment. ALJ Hostovich wrote:
After considering all the evidence of record, including the new evidence of record,
the undersigned concludes that the residual functional capacity established in the
prior decision is not entirely consistent with the evidence of record in this case;
therefore, these opinions are entitled to only some weight. The evidence indicates
the claimant underwent lumbar spine surgeries (Exhibits B-2F, pages 13 and 14 and
B-3F), but since that time, her physical examinations have been unremarkable
(Exhibit B-4F, B-11F, B-17F, page 39, and B-28F). Moreover, the evidence shows
the claimant’s Hodgkin’s lymphoma has been in remission for years (Exhibit B-
27F). Additionally, the evidence shows the claimant’s reported daily activities
show increased functioning, such as riding horses (Exhibits B-7F, page 29, B-8F,
page 191, and B-13F, page 26), traveling to Columbus to visit her ill brother
(Exhibit B-8F, page 18), caring for her pets (horses, dogs, and a cat) (Exhibit B-
23F, page 16), gardening and canning vegetables (Exhibits B-8F, page 11 and B-
17F, page 94), cleaning and cooking (Exhibit B-11F, page 38), and mowing the
yard with a tractor (Exhibit B-18F, pages 176 and 182). Nonetheless, the
undersigned has partially adopted the mental residual functional capacity opinions
and has limited the claimant to unskilled work with no production quotas.
Therefore, the undersigned does not adopt the prior Administrative Law Judge’s
residual functional capacity, which was issued at a time shortly after the claimant’s
revision surgery, and gives it only some weight for the reasons discussed above.
For the same reasons, the undersigned only gives some weight to the opinions at
Exhibits B-2A, B-3A, B6A, and B-7A.
(Tr. 25). ALJ Hostovich’s analysis thus tracks the Earley Court’s reasoning—that an ALJ’s prior
findings constitute a legitimate consideration in the absence of new evidence.
Substantial evidence supports ALJ Hostovich’s determination that new evidence
undermined ALJ Bruce’s April 23, 2015, RFC determination. As ALJ Hostovich explained,
Plaintiff had lumbar spine surgery in 2013, but later examinations, which took place after ALJ
Bruce’s RFC determination was issued, were often unremarkable. For example, during
examinations in June and August of 2016, Plaintiff had moderate tenderness to palpitation in the
cervical and lumbar spine but she had 5/5 muscle strength in her upper and lower extremities. (Tr.
781, 767). An examination in January of 2017, revealed that Plaintiff had diffuse tenderness to
palpitation in her cervical and lumbar spine and pain with range of motion, but she had negative
straight leg tests and 5/5 strength in the upper and lower extremities. (Tr. 1604). At numerous
appointments in 2017 and 2018, Plaintiff denied body aches, and examinations revealed that she
was comfortable and in no acute distress. (Tr. 2087–88, 2093–94, 2100–01, 2107, 2113, 2132,
2149, 2154). The results of diagnostic tests done after ALJ Bruce’s RFC determination were also
unremarkable. Lumbar spine films and cervical and thoracic x-rays in June of 2015 did not reveal
any significant abnormalities or obvious instabilities. (Tr. 473, 477). An MRI of Plaintiff’s lumbar
spine in June of 2015 revealed a broad-based recurrent disc bulge, but it was not so significant as
to warrant operative intervention. (Tr. 529). An MRI of Plaintiff’s cervical spine in June of 2015
showed only mild degenerative changes with no central or foraminal stenosis at any level in her
cervical spine and no fractures or spondylolisthesis. (Tr. 542, 537). An X-ray of Plaintiff’s lumbar
spine was nonacute in October of 2015. (Tr. 552). And, as noted by ALJ Hostovich, the record
contains evidence that Plaintiff’s cancer had been in remission for years. (Tr. 943, 761, 769).
As ALJ Hostovich also explained, the record contained new evidence of Plaintiff’s
activities that demonstrated improved functioning. (See e.g., Tr. 594, 947, 1321 (Plaintiff went
horseback riding in the fall 2015); Tr. 1091 (Plaintiff reported she was doing “all the work,
cleaning, cooking . . . .” in June 2016); Tr. 774 (Plaintiff travelled to see her ill brother in July
2016); Tr. 766 (Plaintiff reported she worked in the garden, picking and canning vegetables in
August 2016); Tr. 1659 (Plaintiff again indicated she was gardening in July 2017); Tr. 1843, 1849
(Plaintiff reported that she was mowing the lawn in August 2017); Tr. 2178 (Plaintiff reported she
took care of her pets including horses, dogs, and a cat in March 2018)). In sum, ALJ Hostovich
determined this new evidence showed that Plaintiff’s functioning had improved. And, as
illustrated above, that determination enjoyed substantial record support.
Plaintiff also contends that ALJ Hostovich summarily discounted ALJ Bruce’s prior RFC
determination and instead relied on “one conclusory, vague statement” from Plaintiff’s treating
physician, Dr. Devaki Sika, who wrote in his December 14, 2018, treatment notes that Plaintiff
was “able to carry out light work.” (Doc. 13 at 8–9, citing Tr. 2372). Plaintiff specifically
complains that Dr. Sika’s opinion was “overbroad, fails to include any specific functional
limitations and is contradicted by the voluminous record supporting additional limitations.” (Doc.
13 at 9). The Court finds that this contention lacks merit because it inaccurately describes ALJ
Hostovich’s analysis which included a lengthy discussion about the weight that was assigned to
ALJ Bruce’s RFC determination and the evidence that supported that weighting determination.
(Tr. 24–25). In short, ALJ Hostovich did not exclusively rely on Dr. Sika’s opinion to assess
Plaintiff’s RFC. Instead, ALJ Hostovich properly considered and weighed all medical opinions,
including a statement from Plaintiff’s treating source that she was able to do light work. See 20
C.F.R. §416.927(b).
Plaintiff additionally contends that ALJ Hostovich erred when finding that she could
perform light work instead of sedentary work because her impairments limited her ability to walk
and stand, and that walking and standing requirements constitute the primary difference between
light and sedentary work. (Doc. 13 at 6). The record contains, however, numerous examinations
finding that Plaintiff had no difficulty walking and that her mobility was normal. (Tr. 767, 781,
788, 795, 802, 810, 824, 830, 837, 865, 884, 891, 898, 905, 913, 927, 934, 941). Plaintiff also
points to evidence in the record and alleges that it supports a finding that she is unable to perform
light work. (Doc. 13 at 7). It is well settled, however, that “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)). Here, ALJ Hostovich’s
findings are supported by substantial evidence within her “zone of choice.” Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). For all these reasons the Court concludes that ALJ Hostovich
did not err when determining that Plaintiff was capable of light work with restrictions.
B. Opinions from the State Agency Reviewers
Plaintiff contends that the state agency reviewers opined that they would adopt ALJ
Bruce’s RFC determination and that ALJ Hostovich committed reversible error by summarily
discounting the state agency reviewers’ opinions. (Doc. 13 at 8–9, 12–13). The Court finds that
this claim lacks merit.
“The Social Security Administration defines three types of medical sources: non-
examining sources, non-treating (but examining) sources, and treating sources.” Reeves v.
Comm’r of Soc. Sec., 618 F. App’x. 267, 273 (6th Cir. 2015) (citing 20 C.F.R. § 404.1502). “A
physician qualifies as a treating source if there is an ‘ongoing treatment relationship’ such that the
claimant sees the physician ‘with a frequency consistent with accepted medical practice for the
type of treatment and/or evaluation required for [the] medical condition.’” Id. (citing 20 C.F.R. §
404.1527(c)(2)). If the treating physician’s opinion is “‘well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record,’ then an ALJ ‘will give it controlling weight.’” Id. (quoting 20
C.F.R. § 404.1527(c)(2)). And, when an ALJ does not give the treating source’s opinion
controlling weight, the ALJ must give “‘good reasons’” for discounting the
opinion. Id. (quoting Rogers, 486 F.3d at 242).
On the other hand, when the opinion comes from a non-treating or non-examining source,
it is usually not entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2). Rather, the ALJ should
consider relevant factors, including supportability, consistency, and specialization. 20 C.F.R. §
404.1527(d)(2). There is however, no “reasons-giving requirement” for non-treating source
opinions. Martin v. Comm’r of Soc. Sec., 658 F. App’x. 255, 259 (6th Cir. 2016). Rather, the ALJ
must provide only “a meaningful explanation regarding the weight given to particular medical
source opinions.” Mason v. Comm’r of Soc. Sec., No. 1:18 CV 1737, 2019 WL 4305764, at *7
(N.D. Ohio Sept. 11, 2019) (citing SSR 96-6p, 1996 WL 374180, at *2).
In this case, ALJ Hostovich provided a meaningful explanation of the weight she assigned
to the opinions from the state agency reviewers. As set forth previously, ALJ Hostovich
meaningfully described ALJ Bruce’s RFC determination. (Tr. 24–25). ALJ Hostovich then
explained that “[o]n initial review and reconsideration, the state agency adopted the residual
functional capacity finding of [ALJ Bruce] (Exhibits B-2A, B-3A, B-6A and B-7 A).” (Id. at 25).
ALJ Hostovich then explained in detail why new evidence of Plaintiff’s examination results,
cancer remission, and activities warranted a departure from ALJ Bruce’s RFC. (Id.). ALJ
Hostovich then explained that she partially adopted ALJ Bruce’s mental residual functional
capacity findings and limited Plaintiff to unskilled work with no production quotas but that she did
not adopt ALJ Bruce’s physical residual functional capacity findings. (Id.). ALJ Hostovich then
indicated that for the same reasons, she only gave the opinions from the state agency reviewers
some weight. (Id.). This was sufficient. ALJ Hostovich’s reasons for determining that a departure
from ALJ Bruce’s RFC determination was warranted were coextensive with her reasons for
discounting opinions adopting ALJ Bruce’s RFC determination.
Plaintiff further asserts that ALJ Hostovich erred because she did not discuss which of the
state agency reviewer’s opinions were adopted. (Doc. 13 at 13). But ALJ Hostovoich was not
required to do so. ALJ Hostovich considered the state agency reviewers’ opinions and explained
what weight she was giving those opinions. Because the state agency reviewers were non-treating
sources, ALJ Hostovich was not obligated to give “good reasons” for that weight. Parkinson v.
Comm’r of Soc. Sec., No. 2:19-CV-5051, 2020 WL 5875870, at *2 (S.D. Ohio Oct. 2, 2020). For
these reasons, the Court finds that this allegation of error lacks merit.
C. Concentration, Persistence, and Pace
Plaintiff additionally alleges that ALJ Hostovich erred because she did not adequately
convey Plaintiff’s limitations in concentration, persistence, and pace to the Vocational Expert
(“VE”). (Doc. 13 at 11). This claim also lacks merit.
An ALJ’s hypothetical question to a VE must accurately portray a claimant’s physical and
mental impairments. Carelli v. Comm’r of Soc. Sec., 390 F. App’x. 429, 438 (6th Cir. 2010). It
is, however, “well established that an ALJ . . . is required to incorporate only those limitations
accepted as credible by the finder of fact” in a hypothetical posed to a VE. Id. (citing Casey v.
Sec’y of H.H.S., 987 F.2d 1230, 1235 (6th Cir.1993)). A review of the hearing transcript in this
case reveals that ALJ Hostovich accurately included all of her RFC findings in the hypothetical
question that she posed to the VE. (Compare Tr. 21 with 62–63).
Plaintiff argues that ALJ Hostovich erred because she did not ask the VE to identify the
number of jobs that “would be excluded if [Plaintiff] required repetition of directions, only visual
demonstration directions, difficulty responding appropriately to work pressure or other aspects
related to moderate concentration limitations . . . . ” (Doc. 13 at 11). But these additional factors
were irrelevant. When ALJ Hostovich asked the VE a hypothetical question that included all the
limitations that ALJ Hostovich found credible, the VE testified that jobs existed. These additional
limitations described by Plaintiff were not ones that ALJ Hostovich found credible. Thus, ALJ
Hostovich was not required to ask the VE to consider them.
To the extent that Plaintiff alleges that ALJ Hostovich erred by finding that these additional
limitations, and others such as potential time off task, were not credible, Plaintiff fails to identify
record evidence indicating that any such limitations had been opined. Indeed, the state agency
reviewers in this case opined that they adopted ALJ Bruce’s RFC determination. Specifically, ALJ
Bruce determined that Plaintiff could “understand, remember, and carry out instructions for simple
to moderately complex tasks defined as SVP 1 to 4 type jobs, but not production rate jobs.” (Tr.
75). This determination, however, included fewer concentration, persistence, and pace restrictions
than the RFC ultimately assessed by ALJ Hostovich.
For these reasons, the Court finds that ALJ Hostovich did not commit reversible error with
regard to the hypothetical questions she posed to the VE.
IV. CONCLUSION
Based on the foregoing, the Court OVERRULES Plaintiff’s Statement of Errors and
AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
Date: March 17, 2021 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE