# Goettelman v. Commissioner of Social Security

> District Court, S.D. Ohio · September 19, 2021

URL: https://www.frixlaw.com/law-library/cases/10378611

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 19, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

MARCIA L. GOETTELMAN, Case No. 1:20-cv-202
Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER
SOCIAL SECURITY,
Defendant.

Plaintiff Marcia L. Goettelman brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying plaintiff’s applications for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”). This matter is before the Court on plaintiff’s Statement
of Errors (Doc. 23), the Commissioner’s response in opposition (Doc. 30), and plaintiff’s reply
memorandum (Doc. 33).
I. Procedural Background
Plaintiff protectively filed her applications for DIB and SSI in October 2015, alleging
disability since December 31, 20091, due to degenerative back disease (sciatica), inflammatory
bowel disease, diverticulosis, hypertension, depression, anxiety, Guillain-Barré syndrome, and
frequent muscle spasms. The applications were denied initially and upon reconsideration.
Plaintiff, through counsel, requested and was granted a de novo hearing before administrative
law judge (“ALJ”) Renita K. Bivins. Plaintiff and a vocational expert (“VE”) appeared and
testified at the ALJ hearing on September 6, 2018. On October 3, 2018, the ALJ issued a
decision finding plaintiff has not been under a disabled since October 25, 2013. This decision

1 Plaintiff amended her alleged onset date of disability to October 25, 2013 at the administrative hearing. (Tr. 87).
became the final decision of the Commissioner when the Appeals Council denied review on
November 1, 2019. (Tr. 3-10).
II. Analysis
A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A),
1382c(a)(3)(A). The impairment must render the claimant unable to engage in the work
previously performed or in any other substantial gainful employment that exists in the national
economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or mental
impairment – i.e., an impairment that significantly limits his or her physical or
mental ability to do basic work activities – the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the listings
in Appendix 1 to Subpart P of the regulations and meets the duration requirement,
the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2015.

2. The [plaintiff] has not engaged in substantial gainful activity since October 25,
2013, the amended alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.).

3. The [plaintiff] has the following severe impairments: degenerative disc disease
(DDD), spondylolisthesis, status post cervical discectomy and fusion, hip bursitis,
inflammatory bowel disease, obesity, [and] affective disorder (20 CFR
404.1520(c) and 416.920(c)).

4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) with the following limitations: she is able to
lift and carry up to 20 pounds occasionally and 10 pounds frequently. She is able
to stand and/or walk for 6 hours per 8-hour day and sit for 6 hours per 8-hour day
with normal breaks. She can occasionally climb ladders, ropes, or scaffolds and
stoop. She can perform frequent handling. She is limited to simple, routine, and
repetitive tasks with no production rate pace work (such as assembly line work)
but instead could perform goal-oriented work (such as office cleaner). She is
limited to an environment that requires only simple work-related decisions and no
more than occasional changes in routine setting. She can have occasional
interaction with the public, coworkers, and supervisors. Due to medical
conditions, symptoms, and pain the [plaintiff] would be off task 4% of the work
period and absent one day every 45 days.

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).

7. The [plaintiff] was born on October 29, 1966 and was 43 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset date.
The [plaintiff] subsequently changed age category to closely approaching
advanced age (20 CFR 404.1563 and 416.963).

8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the [plaintiff]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569a, 416.969,
and 416.969a).

11. The [plaintiff] has not been under a disability, as defined in the Social Security
Act, from October 25, 2013, through the date of this decision (20 CFR 404.1520(g)
And 416.920g)).

(Tr. 24-37).

C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court

considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).
D. Specific Errors

On appeal, plaintiff alleges the ALJ erred by (1) impermissibly comparing minimal daily
activities to typical work activities; (2) improperly relying on VE testimony; and (3) failing to
properly evaluate the opinion of her treating physician, Dr. Nicole Boschuetz. (Doc. 23).2 The
Commissioner generally argues that the ALJ’s decision is supported by substantial evidence.
(Doc. 30). The Court addresses plaintiff’s assignments of error in reverse order.

2 The Court notes that Dr. Nicole Boschuetz’s name is spelled differently in the medical record, the parties’ filings,
and the ALJ’s decision—the medical record, including the doctor’s medical source statement, is signed “Boschuetz”
(Tr. 2308); however, the parties and the ALJ use “Boschnet” and “Boschnett.” (See Tr. 34; Doc. 23 at PAGEID
9435; Doc. 30 at PAGEID 9462). For purposes of this Order, the Court will use the spelling as referenced in the
medical record.
1. The ALJ improperly weighed the medical opinion evidence (third assignment of
error)

In her third assignment of error, plaintiff alleges that the ALJ improperly gave little or no
weight to the medical source statement completed by plaintiff’s internal medicine treating
physician, Dr. Boschuetz. (Doc. 23 at PAGEID 9435). Plaintiff specifically contends that the
ALJ committed “material and reversible error” by failing to evaluate Dr. Boschuetz’s opinion
pursuant to 20 C.F.R. § 404.1527(c)(3). (Id.). In response, the Commissioner contends that
substantial evidence supports the ALJ’s determination that Dr. Boschuetz’s medical opinion was
only entitled to limited weight.
It is well-established that the findings and opinions of treating physicians are entitled to
substantial weight.3 Under the treating physician rule, “greater deference is generally given to
the opinions of treating physicians than to those of non-treating physicians. . . .” Rogers, 486
F.3d at 242; Wilson, 378 F.3d at 544. The rationale for the rule is that treating physicians are
“the medical professionals most able to provide a detailed, longitudinal picture of [a claimant’s]
medical impairment(s) and may bring a unique perspective to the medical evidence that cannot
be obtained from the objective medical findings alone.” Rogers, 486 F.3d at 242.
A treating source’s medical opinion must be given controlling weight if it is (1) “well-
supported by medically acceptable clinical and laboratory diagnostic techniques,” and (2) “not
inconsistent with the other substantial evidence in [the] case record[.]” 20 C.F.R. §

404.1527(c)(2); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). If
a treating source’s medical opinion is not entitled to controlling weight, the ALJ must apply the
following factors in determining what weight to give the opinion: the length of the treatment

3 20 C.F.R. § 404.1527, which sets out the treating physician rule, has been amended for claims filed on or after
March 27, 2017. See 20 C.F.R. § 404.1520c. This amendment does not apply to plaintiff’s claims, which she filed
in October 2015. (See Tr. 21).
relationship and the frequency of examination, the nature and extent of the treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the treating source. Wilson, 378 F.3d at 544. See also Blakley, 581
F.3d at 408 (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4) (“Treating source medical

opinions [that are not accorded controlling weight] are still entitled to deference and must be
weighed using all of the factors provided in” 20 C.F.R. § 404.1527(c)).
In addition, an ALJ must “give good reasons in [the] notice of determination or decision
for the weight [given to the claimant’s] treating source’s medical opinion.” 20 C.F.R. §
404.1527(c)(2). The ALJ’s reasons must be “supported by the evidence in the case record, and
must be sufficiently specific to make clear to any subsequent reviewers the weight the
adjudicator gave to the treating source’s medical opinion and the reasons for that weight.”
Gayheart, 710 F.3d at 376 (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5). This
requirement serves a two-fold purpose: (1) it helps a claimant to understand the disposition of
h[er] case, especially “where a claimant knows that h[er] physician has deemed h[er] disabled,”

and (2) it “permits meaningful review of the ALJ’s application of the [treating-source] rule.”
Wilson, 378 F.3d at 544.
Dr. Boschuetz completed a “Degenerative Disc Disease: Cervical/Lumbar Spine,
Arthritis Lower Extremity Medical Source Statement” on October 27, 2017. (Doc. 17-15 at Tr.
2302-08). She indicated that she had seen plaintiff “ongoing every 3 months.” (Tr. 2302).
Plaintiff’s diagnoses were carpel tunnel and degenerative disc disease. (Id.). Dr. Boschuetz
opined that plaintiff had chronic pain/paresthesia in the back, “bilateral hand daily,” hips, and
neck. (Id.). Dr. Boschuetz opined that plaintiff had the following signs, findings, and associated
symptoms related to her impairments: tenderness, chronic fatigue, lack of coordination, reduced
grip strength, and she drops things. (Id.). Dr. Boschuetz opined that plaintiff had limitation of
motion and severe headache pain associated with the impairment of the cervical spine (Tr. 2302-
03); reduced range of motion described as “flexion fingertips just past knees” (Tr. 2303);
reduced grip strength; and chronic joint pain and stiffness in the affected joints (Tr. 2304). Dr.

Boschuetz opined plaintiff cannot walk a block at a reasonable pace on rough or uneven surfaces,
carry out routine ambulatory activities including grocery and clothes shopping and banking, or
climb several stairs at a reasonable pace with use of only a single handrail. (Id.). Dr. Boschuetz
stated that plaintiff does not need an assistive device to ambulate. (Id.). Dr. Boschuetz also
opined that depression and anxiety contribute to the severity of plaintiff’s symptoms and
functional limitations and affect her physical condition. (Tr. 2305).
Dr. Boschuetz assessed the following functional limitations: Plaintiff can walk zero
blocks without rest or severe pain, sit 10 to 15 minutes at one time before she must get up, stand
5 minutes before she must change positions, and sit and stand/walk less than 2 hours total each in
an 8-hour workday; she must be able to shift positions at will from sitting, standing or walking,

and she must take frequent unscheduled breaks during a workday before returning to work; and
she could rarely lift 10 pounds, and rarely twist, stoop, crouch/squat, or climb ladders or stairs.
(Tr. 2305-07). Dr. Boschuetz opined that plaintiff was incapable of even “low stress” work due
to “uncontrolled depression.” (Tr. 2307). Dr. Boschuetz estimated the onset date of plaintiff’s
limitations as greater than one year. (Tr. 2308).4

4 The ALJ interpreted Dr. Boschuetz’s handwritten notation “> 1 year” as “7 years.” (Tr. 34). This appears to be a
mis-reading of Dr. Boschuetz’s handwritten notation. (Tr. 2308). The record demonstrates that Dr. Boschuetz did
not establish a patient/physician relationship with plaintiff until December 2016, less than one year prior to her
opined limitations in the medical source statement. (See Doc. 17-31 at Tr. 5292-99; see also Tr. 358, citing Tr.
2308, where plaintiff contends, “[a] review of Dr. Boschuetz’s opinion very clearly demonstrates that Dr. Boschuetz
opines “the onset date of the foregoing limitations is approximately > 1 year.”).
The ALJ gave “[l]imited weight” to the opinion of “Nicole Boschnett.” (Tr. 34). The
ALJ stated, “[i]t is unclear if Ms. Boschnett is a medical expert and her assessment appears
generally inconsistent with the record, including the relatively normal examination findings,
including those following claimant’s surgery.” (Id.). The ALJ cited a single treatment note from

March 2018 in support of this finding. (Id.) (citing B50F [Doc. 17-52 at Tr. 9364]). The ALJ
found “Ms. Boschnett’s” listed diagnosis of carpel tunnel syndrome was inconsistent with the
plaintiff’s report in October 2017 that she did not have carpel tunnel syndrome and plaintiff’s
testimony at the hearing that her doctor found no carpel tunnel syndrome after an EMG. (Id.).
The ALJ further found that “Ms. Boschnett’s” opinion was inconsistent with plaintiff’s activities
of daily living (Tr. 34) and with an April 2017 mental status examination. (Tr. 35) (citing Tr.
B32F/6 [Doc. 17-33 at Tr. 5804]).
In evaluating the ALJ’s decision, the Court must first determine if the ALJ applied the
proper standard for weighing Dr. Boschuetz’s opinion. Plaintiff argues that the ALJ failed to
acknowledge that Dr. Boschuetz was a medical doctor and therefore erred by failing to evaluate

her opinion according to the treating physician rule. (Doc. 23 at PAGEID 9435). Plaintiff
contends the Appeals Council should have considered information that was submitted after the
ALJ’s decision which plaintiff alleges “conclusively established” that Dr. Boschuetz was in fact
a medical doctor, and the Appeals Council should have reversed the ALJ’s decision based on this
information. (Id.; see also Tr. 367-69).5 The Commissioner argues that plaintiff is improperly
relying on an exhibit that was not before the ALJ and “has not requested a remand pursuant to

5 The evidence submitted to the Appeals Council consists of a Google search of “nicole boschuetz cincinnati” (Tr.
367) and two documents which purport to be confirmation of the medical licensure of Dr. Nicole Boschuetz (Tr.
368-69).
sentence six, which is the proper way to get additional evidence before the court, so [plaintiff’s]
argument should be considered waived.” (Doc. 30 at PAGEID 9461) (citations omitted).
The Court cannot consider evidence presented for the first time to the Appeals Council in
deciding whether to uphold or reverse the ALJ’s decision under sentence four of 42 U.S.C. §

405(g). See Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996) (citing Cotton v.
Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993)). Rather, when evidence is presented to the Appeals
Council for the first time, the only issue to decide is whether in light of that evidence the matter
should be remanded under sentence six of § 405(g) for further administrative proceedings. A
remand under sentence six is warranted only if plaintiff shows “that the evidence is new and
material, and that there was good cause for not presenting it in the prior proceeding.” Id. (citing
Cotton, 2 F.3d at 696).
Plaintiff, however, has not requested a sentence six remand or argued that one is
warranted. Rather, plaintiff argues that Dr. Boschuetz’s “medical credentials are conclusively
established on this record” by the exhibits submitted to the Appeals Council. (Doc. 23 at

PAGEID 9435-36). Plaintiff has failed to show that this evidence is new and that good cause
exists for the failure to include this information in the prior ALJ proceeding. See 42 U.S.C. §
405(g), Sentence Six; see also Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 549 (6th Cir.
2002) (citing 42 U.S.C. § 405(g), Sentence Six; Casey v. Sec’y of H.H.S., 987 F.2d 1230, 1233
(6th Cir. 1993)). Therefore, there is no basis for ordering a remand under Sentence Six of 42
U.S.C. § 405(g).
In any event, the ALJ erred by failing to recognize that Dr. Boschuetz was a treating
physician and to evaluate her opinion under the treating physician rule. The Commissioner does
not dispute that Dr. Boschuetz is in fact a medical doctor. (See Doc. 30 at PAGEID 9460). The
record shows that plaintiff received primary care services from the University of Cincinnati
Medical Center Hoxworth Clinic (“Hoxworth Clinic”) during the relevant period of disability
(see generally Doc. 17-30 at Tr. 5058-5238; Doc. 17-31 at Tr. 5239-5438), and that Dr.
Boschuetz was one of plaintiff’s primary care physicians at the Hoxworth Clinic. Plaintiff saw

Dr. Boschuetz four times over a 12-month period for the purposes of treating plaintiff through
the Hoxworth Clinic. (Doc. 17-31 at Tr. 5292-99, December 12, 2016; Id. at Tr. 5249-56,
January 24, 2017; Doc. 17-30 at Tr. 5210-14, March 23, 2017; Doc. 17-31 at Tr. 5355-58,
September 26, 2017).6 The ALJ therefore erred in her finding that “[i]t is unclear if Ms.
Boschnett is a medical expert[.]” (Tr. 34).
Having established that Dr. Boschuetz is a medical doctor, the Court must determine
whether the ALJ applied the proper standard for evaluating Dr. Boschuetz’s opinion. The
classification of a medical source is a question of law which the Court reviews de novo. Blakley,
581 F.3d at 407 (citing Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)).
Pursuant to 20 C.F.R. § 404.1527(a)(2), a physician qualifies as a “treating source” if the

physician sees the claimant “with a frequency consistent with accepted medical practice for the
type of treatment and/or evaluation required for [the] medical condition(s).” A physician seen
infrequently can be a treating source “if the nature and frequency of the treatment or evaluation
is typical for [the] condition(s).” Id. To qualify as a treating source, the physician must have an
“ongoing treatment relationship” with the claimant. Id. Whether the source of a medical opinion
is a “treating source” requires a fact-specific inquiry. DeBoard v. Comm’r of Soc. Sec., 211 F.
App’x 411, 416 (6th Cir. 2006). There is no set number of times a patient must be seen by a
single physician or facility for that doctor or facility to be considered a “treating source.” Id.;

6 The Court notes Dr. Nicole Alysse Boschuetz also treated plaintiff under the name Dr. Nicole Alysse Levin. (See
Tr. 5292-99, 5249, 5210).
Kornecky v. Comm’r of Soc. Sec., No. 04-2171, 167 F. App’x 496, 506 (6th Cir. Feb. 9, 2006)
(“[T]he relevant inquiry is . . . whether [the claimant] had the ongoing relationship with [the
physician] at the time he rendered his opinion[.]”).
The record demonstrates that plaintiff had an on-going treating relationship with Dr.

Boschuetz because plaintiff was treated by Dr. Boschuetz four times over a 12-month period at
the Hoxworth Clinic. Cf. Kornecky, 167 F. App’x at 506 (“a plethora of decisions unanimously
hold that a single visit does not constitute an ongoing treatment relationship”) (citations omitted);
Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (physician examined the plaintiff on only
one occasion, and the rationale of the treating physician doctrine therefore did not apply).
Accordingly, Dr. Boschuetz was one of plaintiff’s treating physicians, and the ALJ was therefore
required to evaluate Dr. Boschuetz’s opinion under the treating physician rule.
As a treating physician, Dr. Boschuetz’s opinion “should have been given controlling
weight absent justifiable reasons—made on the record—for discounting th[at] opinion[].”
Blakley, 581 F.3d at 408 (citing Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4-5). The ALJ

failed to examine whether Dr. Boschuetz’s opinion was well-supported by her own medical
examination findings or the findings of the other Hoxworth Clinic physicians contained in
plaintiff’s available medical chart. See 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2); see also
Gayheart, 710 F.3d at 376. Even if Dr. Boschuetz’s opinion was not entitled to controlling
weight, it was incumbent upon the ALJ to give deference to the opinion of the treating physician
and weigh Dr. Boschuetz’s opinion “using all of the factors provided in 20 C.F.R. § 404.1527
and 416.927.” Blakley, 581 F.3d at 408. The ALJ’s decision does not show that she considered
the requisite regulatory factors in weighing Dr. Boschuetz’s opinion. The ALJ did not consider
the length of the treatment relationship and the frequency of examination, the nature and extent
of the treatment relationship, supportability of the opinion, consistency of the opinion with the
record as a whole, and the specialization of the treating source. Wilson, 378 F.3d at 544. See
also Blakley, 581 F.3d at 408. Indeed, the ALJ failed to acknowledge that Dr. Boschuetz was
even a physician, despite evidence in the record showing her treatment of plaintiff.

Though there are instances where such “procedural violation[s] may constitute harmless
error, such as when ‘a treating source’s opinion is so patently deficient that the Commissioner
could not possibility credit it’ or where the Commissioner ‘has met the goal of . . . the procedural
safeguard of reasons[,]’” this is not one of them. Fisk v. Astrue, 253 F. App’x 580, 586 (6th Cir.
2007) (quoting Wilson, 378 F.3d at 547). The Court is unable to engage in “meaningful review”
of the ALJ’s decision, Wilson, 378 F.3d at 544, because it is not “sufficiently specific to make
clear” to the Court that the ALJ considered Dr. Boschuetz’s opinion in accordance with the
applicable regulations. SSR 96-2p, 1996 WL 374188, at *5. The Court cannot say that the
treating physician’s opinion was “so patently deficient that the Commissioner could not possibly
credit it.” Wilson, 378 F.3d at 547.

Accordingly, this matter is reversed and remanded for a re-weighing of Dr. Boschuetz’s
opinion in accordance with the factors set forth in 20 C.F.R. §§ 404.1527 and 416.927.
2. Whether the ALJ’s Step Five finding was supported by substantial evidence
(second assignment of error)

As best the Court can discern, it appears that plaintiff’s second assignment of error
alleges the ALJ erred by not relying on the VE testimony at Step Five of the sequential
evaluation process. (Doc. 23 at PAGEID 9433). Plaintiff alleges that at the second hearing, the
VE withdrew her opinion that plaintiff was able to perform the jobs previously identified by the
VE at the first hearing. (Id.).
At the first ALJ hearing in this case, and in response to a hypothetical question that
included an individual with plaintiff’s RFC, the VE identified three jobs the individual could
perform: packager, garment sorter, and laundry folder. (Tr. 53, recapping VE’s testimony at first
hearing). At the second hearing, plaintiff’s attorney asked the VE to assume that plaintiff was

“moderately limited,” which the attorney defined as demonstrating “noticeable difficulty in the
workplace about 10% of the time,” in her ability to perform certain work-related activities. (Tr.
54). Given this definition of “moderately limited,” the VE testified that the jobs she previously
identified would be eliminated. (Tr. 55-57).
Contrary to plaintiff’s argument, the VE did not withdraw her previous opinion on
plaintiff’s ability to perform certain jobs given a hypothetical question based on plaintiff’s RFC.
Instead, using plaintiff’s attorney’s definition of “moderately limited,” i.e., “noticeable difficulty
10% of the workday,” the VE testified that the packager, garment sorter, and laundry folder jobs
previously identified would be eliminated. However, plaintiff fails to cite to any evidence
showing that plaintiff had “noticeable difficulty 10% of the workday” in certain work-related

activities.
The ALJ adopted the limitations assessed by Dr. Voyten, the state agency psychologist
who reviewed the record evidence. Dr. Voyten opined that plaintiff was moderately limited in
her ability to perform certain job functions, such as carrying out detailed instructions,
maintaining attention and concentration for extended periods, and completing a normal workday
and workweek without interruption from psychologically based symptoms. (Tr. 168-169). Dr.
Voyten stated that as a result of all her limitations, plaintiff was:
limited to simple, routine, and repetitive tasks and she could not perform
production rate pace work (such as assembly line work) but instead could perform
goal-oriented work (such as office cleaner). She is also limited to an environment
that requires only simple work related decisions and no more than occasional
changes in a routine setting. Finally the claimant could occasionally interact.

(Tr. 170).
In determining plaintiff’s RFC, the ALJ adopted the restrictions set forth by Dr. Voyten
and found that plaintiff was “limited to simple, routine, and repetitive tasks with no production
rate pace work (such as assembly line work) but instead could perform goal-oriented work (such
as office cleaner). She is limited to an environment that requires only simple work-related
decisions and no more than occasional changes in routine setting. She can have occasional
interaction with the public, coworkers, and supervisors.” (Tr. 27). The ALJ further found that
plaintiff “would be off task 4% of the work period and absent one day every 45 days” as a result
of the symptoms and pain from her medical conditions. (Id.).
Plaintiff has not alleged any error with the ALJ’s RFC finding on plaintiff’s mental
functioning or alleged any error regarding the ALJ’s weighing of Dr. Voyten’s opinion. There is
no indication that Dr. Voyten equated “moderate” limitations with the definition posed by
plaintiff’s counsel. Also, plaintiff has pointed to no medical evidence in the record showing that
plaintiff would have “noticeable difficulty 10% of the workday.” The ALJ is not required to rely
on an unsupported hypothetical question and “is required to incorporate only those limitations
accepted as credible. . . .” Casey v. Sec’y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993). See also
Carrelli v. Comm’r of Soc. Sec., 390 F. App’x 429, 438 (6th Cir. 2010) (“When asked a

hypothetical question encompassing the limitations that the ALJ found credible, the VE testified
that jobs existed. The additional limitations offered by Carrelli’s attorney—limitations that the
ALJ found not credible—need not be considered.”). The Court finds no error in this regard.
Similarly, the ALJ did not err by failing to adopt the VE’s testimony that if plaintiff’s
bimanual dexterity was markedly limited (i.e., limited to only “occasional” as opposed to
“frequent”) she would not be able to perform the previously identified jobs. (Tr. 63). Plaintiff
has failed to allege any error with the ALJ’s RFC finding in this regard. Nor has plaintiff cited to
any evidence establishing that her bimanual dexterity was markedly limited on a sustained basis
such that her ability to perform the jobs previously identified would be precluded. It appears that

during a functional capacity evaluation in July 2015, plaintiff demonstrated “marked difficulty
using the fingers.” (Tr. 1576). While plaintiff demonstrated “difficulty” manipulating the pegs
with her thumb during a September 2017 functional capacity evaluation, there is no further
qualification concerning the amount of difficulty or its vocational implications. (Tr. 2311). In
October 2017, Dr. Boschuetz opined that plaintiff had significant limitations with “reaching,
handling or fingering,” but she did not quantify any specific limitations with fine manipulation.
(Tr. 2307). Given the lack of evidence that plaintiff was limited to only “occasional” fine
manipulation, the ALJ did not err by failing to include such a limitation in the RFC or declining
to rely on the VE testimony on such a limitation.
Plaintiff further contends the ALJ should have found her disabled because the vocational

expert testified that there would be no jobs available for an individual who was unable to sit for
an hour without changing positions and off task for two or three minutes. (Doc. 23 at PAGEID
9434). Because the ALJ did not find these two limitations were supported by the record, she did
not include these limitations in her RFC finding. As a result, the ALJ’s failure to rely on the
VE’s response to a hypothetical question that included these limitations was not in error. See
Lancaster v. Comm’r of Soc. Sec., 228 F. App’x 563, 573 (6th Cir. 2007) (“While the ALJ may
proffer a variety of assumptions to the expert, the vocational expert’s testimony concerning a
claimant’s ability to perform alternative employment may only be considered for purposes of
determining disability if the question accurately portrays the claimant’s individual physical and
mental impairments.”) (internal quotation marks and citation omitted).
Plaintiff’s second assignment of error is overruled.
3. ALJ’s assessment of plaintiff’s activities of daily living (first assignment of error)

In her first assignment of error, plaintiff alleges that the ALJ erred by “impermissibly
compar[ing] minimal daily functions to typical work activities.” (Doc. 23 at PAGEID 9432).
The Commissioner argues that substantial evidence supports the ALJ’s finding that plaintiff’s
allegations were not entirely consistent with the medical evidence. (Doc. 30 at PAGEID 9467).
To the extent plaintiff alleges the ALJ erred in evaluating her subjective complaints of
pain and limitations by misconstruing her daily activities, the Court need not reach this
assignment of error. As stated above, the undersigned finds this matter must be remanded based
on the ALJ’s errors in weighing Dr. Boschuetz’s opinion. The remand of this matter for a
reweighing of the treating physician’s opinion may impact the remainder of the sequential
evaluation process, including the ALJ’s assessment of plaintiff’s subjective allegations of pain

and limitations. In any event, even if this assignment of error has merit, the result would be the
same, i.e., a remand for further proceedings and not outright reversal for benefits. See Mays v.
Comm’r of Soc. Sec., No. 1:14-cv-647, 2015 WL 4755203, at *13 (S.D. Ohio Aug. 11, 2015)
(Report and Recommendation) (Litkovitz, M.J.), adopted, 2015 WL 5162479 (S.D. Ohio Sept. 3,
2015) (Dlott, J.). In light of the order of remand, the Court declines to reach this assignment of
error.
III. This matter should be reversed and remanded for further proceedings
In determining whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the undersigned notes that all essential factual issues have not
been resolved in this matter. Faucher v. Sec’y of H.H.S., 17 F.3d 171, 176 (6th Cir. 1994). This
matter should be reversed and remanded for further proceedings with instructions to the ALJ to
re-weigh Dr. Boschuetz’s opinion in accordance with this decision; to reassess plaintiff’s RFC,
giving appropriate weight to the opinions of Dr. Boschuetz, including an explanation on the
record for the weight afforded to her opinions; to reassess plaintiff’s subjective allegations of
pain and limitations; and for further medical and vocational evidence as warranted.
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner is REVERSED and REMANDED for further
proceedings consistent with this opinion.

Date: 9/17/2021 Harn, K Rithov2-
Karen L. Litkovitz
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378611. Public record. Not legal advice.