# Clark v. Commissioner of Social Security

> District Court, S.D. Ohio · September 29, 2021

URL: https://www.frixlaw.com/law-library/cases/10378708

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** September 29, 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

JOSHUA L. CLARK, Case No. 1:20-cv-399
Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER
SOCIAL SECURITY,
Defendant.

Plaintiff Joshua L. Clark 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 for disposition based on
plaintiff’s Statement of Errors (Doc. 17) and the Commissioner’s response in opposition (Doc.
20).
I. Procedural Background
Plaintiff protectively filed his applications for DIB and SSI in August 2016 alleging
disability since January 20, 2016, due to a back condition and degenerative disc disease. The
applications were denied initially and upon reconsideration. Plaintiff, through counsel, requested
and was granted a de novo hearing before administrative law judge (“ALJ”) Stuart Adkins.
Plaintiff and a vocational expert (“VE”) appeared and testified at the ALJ hearing on November
19, 2018. On February 21, 2019, the ALJ issued a decision denying plaintiff’s DIB and SSI
applications. This decision became the final decision of the Commissioner when the Appeals
Council denied review on March 18, 2020.
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)
(DIB), 1382c(a)(3)(A) (SSI). 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
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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, 2022.

2. The [plaintiff] has not engaged in substantial gainful activity since January 20,
2016, the 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) of the Lumbar Spine, Cervical Spine, and Thoracic Spine, with
Radiculopathy; Compression Fracture at T-10; Mitral Valve Prolapse; and
Obesity (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) subject to the following limitations: (1)
would be permitted to alternate between sitting and standing every 45 minutes
while at the workstation; (2) occasionally reach overhead bilaterally, climb
ramps and stairs, and stoop; (3) never climb ladders, ropes and scaffolds; and (4)
frequently balance, kneel, crouch, and crawl.

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6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965).1

7. The [plaintiff] was born [in] . . . 1974 and was 41 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date (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).2

11 The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from January 20, 2016, through the date of [the ALJ’s] decision
(20 CFR 404.1520(g) and 416.920(g)).

(Tr. 829-39).

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.

1 The ALJ found that plaintiff had performed past relevant work as a painter, a skilled medium exertion job
which plaintiff performed at the heavy level of exertion, and an aircraft parts sub-assembler, a skilled medium
exertion job. (Tr. 837).
2 The ALJ found that plaintiff could perform the requirements of representative unskilled occupations such
as small parts assembler (430,000 jobs in the national economy), inspector/hand packager (74,000 jobs in the
national economy), and mail sorter (27,000 jobs in the national economy).
4
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 as his only assignment of error that the ALJ “failed to fully
consider essential vocational expert testimony when holding [plaintiff had] a residual functional
capacity to perform light exertional work.” (Doc. 17 at PAGEID 918). Plaintiff contends that

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the ALJ erroneously relied on VE testimony provided in response to an ALJ hypothetical that did
not accurately portray plaintiff’s physical impairments. Plaintiff specifically contends the ALJ
relied on a hypothetical to the VE that did not accurately convey plaintiff’s functional limitations
because it omitted restrictions that would allow the hypothetical individual to be off-task 15
percent of the workday and miss at least three days of work per month, both of which the VE
testified would preclude all competitive employment. (Id. at PAGEID 7-11; see Tr. 45-46).

Plaintiff argues that these limitations are supported by the record. Plaintiff claims that due to
“the challenges and limitations that stem from his conditions, it is markedly doubtful to assume
that [he] will be able to attain the functionality required to complete a full day of work,
regardless [of] the level of exertion.” (Id. at PAGEID 922). Plaintiff argues that because the
ALJ relied on VE testimony that does not fully account for plaintiff’s limitations, the ALJ’s
disability finding is not supported.
The VE testified at the ALJ hearing about the jobs that a hypothetical individual with the
following limitations could do: lift and/or carry 20 pounds occasionally and 10 pounds
frequently; stand and/or walk and sit for about six hours each in an eight-hour workday; never
climb ladders, ropes, and scaffolds; occasionally climb ramps and stairs and stoop; and

frequently balance, kneel, crouch, and crawl. (Tr. 43). The VE testified that an individual with
these limitations could perform three representative jobs at the light exertional level, such as
small parts assembler, laundry worker, and inspector/hand packager. (Tr. 43-44). When the ALJ
added restrictions limiting the hypothetical individual to occasional overhead reaching bilaterally
and the need to alternate sitting/standing every 45 minutes, the VE testified that the job of

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laundry worker would be eliminated but an additional light unskilled job that could be performed
with those restrictions was mail clerk, with 27,000 such jobs in the national economy. (Tr. 44-
45). When the ALJ added restrictions of lift/carry less than ten pounds frequently and stand
and/or walk for about two hours, the VE testified that the hypothetical individual could perform
sedentary unskilled jobs in the national economy and gave as examples of such jobs food order
clerk, polish machine operator, and sorting machine operator, which totaled 95,000 jobs in the

national economy. (Tr. 45). Finally, when the ALJ added that the hypothetical individual would
be off-task 15% of the workday and absent from the workplace three days per month, the VE
testified that either one of these additional restrictions would preclude the hypothetical individual
from performing all work in the national economy. (Tr. 44-46).
The ALJ found plaintiff had the RFC for light work as defined in 20 C.F.R. §§
404.1567(b) and 416.967(b) with the additional limitations that: (1) he could alternate between
sitting and standing every 45 minutes at the workstation; (2) he could occasionally reach
overhead bilaterally, climb ramps/stairs, and stoop; (3) he could never climb
ladders/ropes/scaffolds; and (4) he could frequently balance, kneel, crouch, and crawl. (Tr. 832-
33). The ALJ did not incorporate into the RFC any restrictions that would account for the need

to be off-task for a percentage of the workday or to miss a certain number of days of work per
month. (Id.). The ALJ relied on the VE’s testimony that a hypothetical individual with
plaintiff’s RFC (as formulated by the ALJ) could perform light unskilled jobs that existed in
significant numbers in the national economy, such as small parts assembler (430,000 jobs in the

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national economy), inspector/hand packager (74,000 jobs in the national economy), and mail
sorter (27,000 jobs in the national economy). (Tr. 838-39).
Plaintiff has not shown that the ALJ erred by relying on VE testimony that did not
accurately portray plaintiff’s functional limitations. Once the ALJ finds that a claimant is unable
to perform his past relevant work, the burden shifts to the ALJ to show that the claimant is able
to perform other substantial gainful activity that exists in the national economy. Pasco v.

Commr. of Soc. Sec., 137 F. App’x 828, 845 (6th Cir. 2005) (citing Varley v. Sec’y of Health &
Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). The ALJ’s reliance on the testimony of a VE
in response to a hypothetical question may serve as substantial evidence that the claimant has the
ability to perform specific jobs, but only if the hypothetical question accurately portrays the
claimant’s physical and mental impairments. Id. (citing Varley, 820 F.2d at 779). See also
Thomas v. Comm’r of Soc. Sec., 550 F. App’x 289, 290 (6th Cir. 2014) (quoting Smith v. Halter,
307 F.3d 377, 378 (6th Cir. 2001)). In posing a hypothetical question to the VE, the ALJ is not
required to incorporate those limitations the ALJ reasonably finds are not supported by the
medical and other evidence. See Griffeth v. Comm’r of Soc. Sec., 217 F. App’x 425, 429 (6th
Cir. 2007). However, the ALJ errs if he relies on VE testimony given in response to a

hypothetical question that omits restrictions the ALJ improperly found were not supported by the
evidence. See White v. Comm’r of Soc. Sec., 312 F. App’x 779, 789-90 (6th Cir. 2009).
Plaintiff argues that the VE’s testimony does not constitute substantial evidence in this
case because the testimony the ALJ relied on did not incorporate restrictions assessed by
plaintiff’s treating physician, Dr. Max Berdichevsky, M.D.; the ALJ erroneously considered the

8
opinions of the non-examining state agency physicians, who were unable to evaluate plaintiff’s
subjective pain; and the ALJ failed to fully credit plaintiff’s subjective complaints, which are
consistent with the medical evidence documenting various restrictions that allegedly result from
his impairments. (Id. at PAGEID 919-22). Plaintiff does not allege that his treating physician or
any other medical source assessed restrictions related to being off-task a percentage of the
workday or missing a specified number of days from work. Instead, plaintiff argues that the

treating physician’s medical opinion supports the inclusion of these specific restrictions.
Plaintiff argues that Dr. Berdichevsky’s opinion “detecting extreme loss of function in both of
his upper extremities, as well as his inability to stand and/or walk for 6-8 hours daily on a long-
term basis makes it likely to presume that [plaintiff] will partake in off-task behavior and/or
require additional absences.” (Id. at PAGEID 922).
Plaintiff has not shown that the ALJ erred by relying on VE testimony that failed to
incorporate restrictions that were assessed by plaintiff’s treating physician, Dr. Berdichevsky, or
that were supported by Dr. Berdichevsky’s medical opinions. Dr. Berdichevsky completed a
“Major Dysfunction of Joints Treating Physician Data Sheet” at the request of plaintiff’s counsel
on July 15, 2018. (Tr. 600-12). Dr. Berdichevsky reported that plaintiff’s impairments were

lumbar radiculopathy and spinal stenosis of the lumbar region. (Tr. 601). He listed plaintiff’s
medications as Percocet and Keflex. (Tr. 604). Dr. Berdichevsky checked boxes to indicate
plaintiff’s functional restrictions, and he wrote that plaintiff’s pain prevented him from walking
one mile in response to a question asking how long plaintiff could stand/walk with normal breaks
in a 6-8 hour work day. (Tr. 606). Dr. Berdichevsky also wrote a letter dated July 23, 2018,

9
stating that plaintiff would “not be able to return to school/work until further notice” due to
medical reasons. (Tr. 735). In neither the assessment nor the letter did Dr. Berdichevsky
indicate that plaintiff would be off-task a percentage of the work day or that he would miss a
certain number of days from work.
Nor did Dr. Berdichevsky assess any other restrictions that the ALJ was bound to include
in plaintiff’s RFC and incorporate into his hypotheticals to the VE. Dr. Berdichevsky did not

assess any functional limitations in his July 2018 letter opinion. Further, the ALJ properly
rejected the cursory letter opinion on the ground the ultimate conclusion as to whether an
individual satisfies the statutory definition of “disability” is an issue that is reserved to the
Commissioner. (Tr. 835, citing 20 C.F.R. §§ 404.1527(d), 416.927(d)).
In addition, the ALJ was not required to incorporate any additional functional limitations
into the RFC and hypotheticals to the VE based on Dr. Berdichevsky’s July 5, 2018 assessment.
The ALJ found that Dr. Berdichevsky’s assessment of plaintiff’s functional capacity was not
entitled to “controlling” or even deferential weight, and he instead gave Dr. Berdichevsky’s
opinion “partial” weight. (Tr. 835). Plaintiff has not shown that the ALJ erred in evaluating Dr.
Berdichevsky’s opinion. Under the treating physician rule, an ALJ must give a treating source’s

medical opinion 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), 416.927(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

10
what weight to give the opinion: 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 (“Treating source medical
opinions are still entitled to deference and must be weighed using all of the factors provided in
20 C.F.R. § 404.1527 and 416.927.”) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *4)3.

The 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),
416.927(c)(2).
The ALJ recognized the treating relationship between Dr. Berdichevsky and plaintiff and
found that Dr. Berdichevsky’s assessment was inconsistent with his treatment notes and other
treatment records. (Id.). The ALJ specifically determined that treatment notes and physical
therapy records were inconsistent with restrictions Dr. Berdichevsky checked on the assessment
form indicating that plaintiff was unable to stand/walk 6-8 hours daily on a long-term basis; he
could occasionally lift/carry 10 pounds; and he could never squat, kneel, crawl, or crouch. (Id.).
Plaintiff has not pointed to any evidence to show that the ALJ’s evaluation of Dr. Berdichevsky’s

opinion did not comply with the treating physician rule or to show that the ALJ was otherwise
bound to credit additional restrictions that Dr. Berdichevsky assessed. Plaintiff has failed to

3 Effective March 27, 2017, SSR 96-2p was rescinded when the Social Security Administration published final rules
that revised the rules and regulations applicable to the evaluation of medical evidence for claims filed on or after that
date. Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 FR 5844-01, 2017 WL 168819, at
*5844-45, 5869, 5880. Shields v. Comm’r of Soc. Sec., 732 F. App’x 430, 437 n.9 (6th Cir. 2018). Since plaintiff’s
claim was filed prior to March 27, 2017, SSR 96-2p applies to this case.
11
show that the ALJ’s step five finding is not substantially supported because the ALJ erroneously
relied on VE testimony that failed to account for restrictions assessed by Dr. Berdichevsky.
Nor has plaintiff shown that in formulating the hypothetical questions to the VE, the ALJ
erred by relying on the assessments of the state agency reviewing physicians. The ALJ gave
“partial weight” to the opinions of the non-examining physicians, who opined that plaintiff could
perform “light work” with some postural restrictions. (See Tr. 833). The ALJ found that

additional postural limitations should be included in the RFC to account for plaintiff’s upper
extremity radiculopathy symptoms, though the severity of the symptoms was decreasing, and his
obesity. (Id.). Plaintiff has not pointed to any evidence that shows the ALJ’s decision to give
partial weight to these assessments was error. Plaintiff alleges only that because pain is a
subjective symptom that he experiences daily as a result of multiple spinal disorders, and
because it “is apparent” that he is “extremely limited in terms of his functionality,” the ALJ erred
by taking into consideration the opinions of the non-examining state agency physicians, who
never observed plaintiff and were therefore unable to “evaluate the amount of pain that stemmed
from his spinal impairments.” (Id. at PAGEID 922). But the ALJ was not obligated to reject the
state agency physicians’ opinions on the sole ground that they did not examine plaintiff. The

regulations recognize that state agency physicians, including those who provide assessments
based only on their review of the medical records, are “highly qualified and experts in Social
Security disability evaluation” whose opinions the ALJ must consider in accordance with the
regulations. See Molebash v. Berryhill, No. 2:16-cv-869, 2017 WL 3473816, at *4 (S.D. Ohio
Aug. 14, 2017), report and recommendation adopted sub nom. Molebash v. Commr. of Soc. Sec.,

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2017 WL 3769353 (S.D. Ohio Aug. 29, 2017) see also 20 C.F.R. §§ 404.1513a, 416.913a.
Plaintiff has not alleged that the ALJ erred by giving partial weight to the non-examining
physicians’ opinions on any other ground. Thus, plaintiff has failed to show that the ALJ’s step
five finding is not substantially supported because the ALJ erroneously relied, in part, on the
assessments of non-examining state agency physicians.
Plaintiff has not pointed to any other medical opinion evidence or specific medical

records that show the ALJ relied on VE testimony that failed to accurately account for plaintiff’s
impairments. Plaintiff generally relies on his own testimony, which he alleges is corroborated by
the record as a whole. Plaintiff alleges “it is apparent that [he] suffers from immense pain on a
daily basis” which seriously limits his activities of daily living. (Doc. 17 at PAGEID 914).
Plaintiff claims that his pain and symptoms are clearly “not moderated” as shown by the medical
evidence, which documents the medical treatment he has received “over an extended period of
time for his back pain and conditions.” (Id. at PAGEID 920, citing Exhs. 3F, 4F, 7F, 8F, 9F,
11F, and 12F). Plaintiff alleges his testimony at the ALJ hearing that he is unable to do certain
activities that “involve fine and gross movements in the upper extremities,” i.e., “cast a fishing
pole, throw a ball, or even tie his own shoes,” is consistent with Dr. Berdichevsky’s opinion. (Id.

at PAGEID 921). Plaintiff also contends that a September 2016 Adult Functional Report he
completed is consistent with his testimony and the medical records on file, and the report
indicates that he can lift only 2-3 pounds, can walk for approximately 10 minutes, cannot remain
stable for long periods of time, had difficulty bathing and dressing himself, is unable to enjoy
any hobbies or interests, and must be accompanied by his wife who provides assistance to him.

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(Id. at PAGEID 920-21, citing Tr. 257-65) Plaintiff also argues the Adult Functional Report is
consistent with his testimony at the ALJ hearing that he is able to lift no more than a gallon of
milk, can stand/walk for 40 minutes at a time, and is assisted with most tasks by his wife. (Id. at
PAGEID 920).
The ALJ did not err by failing to incorporate further restrictions into the hypothetical he
ultimately relied on to account for plaintiff’s subjective complaints of pain and other symptoms.

Title 20 C.F.R. §§ 404.1529, 416.929 and Social Security Ruling 16-3p, 2016 WL 1119029, *3
(March 16, 2016) describe a two-part process for evaluating an individual’s subjective statements
about symptoms, including pain.4 First, the ALJ must determine whether a claimant has a
medically determinable physical or mental impairment that can reasonably be expected to
produce the symptoms alleged; second, the ALJ must evaluate the intensity, persistence, and
functional limitations of those symptoms by considering objective medical evidence and other
evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of
pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5)
treatment, other than medication, received for relief of pain or other symptoms; (6) any measures

used to relieve pain or other symptoms; and (7) other factors concerning functional limitations
and restrictions due to pain or other symptoms. See also 20 C.F.R. §§ 404.1529(c)(3), 416.929
(c)(3). The ALJ’s assessment of a claimant’s subjective complaints and limitations must be

4 SSR 16-3p, 2016 WL 1119029, which “provides guidance about how [the SSA] evaluate[s] statements
regarding the intensity, persistence, and limiting effects of symptoms,” superseded SSR 96-7p and became
applicable to decisions issued on or after March 28, 2016. See SSR 16-3p, 2017 WL 5180304 (October 25, 2017)
( clarifying applicable date of SSR 16-3p).
14
supported by substantial evidence and be based on a consideration of the entire record. Rogers,
486 F.3d at 247.
Plaintiff has not shown that the ALJ erred in evaluating his subjective complaints about
his symptoms and pain and in relying on VE testimony that failed to account for those symptoms
and pain. The ALJ thoroughly reviewed the medical evidence related to plaintiff’s physical
impairments. (Tr. 829-30, 833-35). The ALJ gave several reasons for why he did not find

plaintiff’s subjective complaints to be fully supported by and consistent with the medical records.
(Tr. 837). The ALJ noted among other reasons that although plaintiff came to the hearing using
a cane, “consistent cane use is not found in the medical records.” (Tr. 837) (emphasis added).
Plaintiff challenges this specific finding, noting that documentation about his cane usage appears
in the record. (Id. at PAGEID 921, citing Tr. 606, 664, 714, 716, and 719). However, the
evidence plaintiff cites showing he used a cane on a handful of occasions does not undermine the
ALJ’s finding that plaintiff did not consistently use a cane. Plaintiff has not pointed to any other
specific evidence in the record to show the ALJ’s evaluation of his subjective complaints was
flawed or was not substantially supported. Plaintiff has not shown that the ALJ erred by relying
on VE testimony that failed to accurately account for plaintiff’s subjective complaints.

The ALJ is vested with the responsibility for assessing a claimant’s residual functional
capacity based on the relevant medical and other evidence. 20 C.F.R. §§ 404.1527(d)(2),
416.927(d)(2), 404.1545(a)(3), 416.945(a)(3), 404.1546(c), 416.946(c). Here, the ALJ found
that plaintiff had the RFC for light work with additional postural restrictions. Plaintiff has not
met his burden of demonstrating that the ALJ was required to include additional restrictions in

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the RFC to account for plaintiff being off-task 15% of the workday and/or absent from work
three days a month. See Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008) (the
claimant has the burden of proof at the first four steps of the disability determination). Thus, the
ALJ reasonably relied on VE testimony which did not incorporate those additional restrictions to
satisfy the ALJ’s burden at the fifth step of the disability determination. That VE testimony
substantially supports the ALJ’s finding that plaintiff can perform a significant number of jobs at
the light level of exertion based on his RFC for a limited range of light work with postural
restrictions. Plaintiffs single assignment of error is overruled.
IT IS THEREFORE ORDERED THAT:
The Commissioner’s decision is AFFIRMED and this case is CLOSED on the docket of
the Court.

Date. —«9/29/2021 Hann, K Rithovd_
Karen L. Litkovitz
Chief United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10378708. Public record. Not legal advice.