Bainter v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

ZACHERIE DEAN BAINTER,

Plaintiff,

Civil Action 2:20-cv-5856

v. Judge James L. Graham

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Zacherie Dean Bainter, brings this action under 42 U.S.C. § 405(g) for review of

a final decision of the Commissioner of Social Security (“Commissioner”) denying his

applications for social security disability insurance benefits and supplemental security income.

This matter is before the United States Magistrate Judge for a Report and Recommendation on

Plaintiff’s Statement of Errors (ECF No. 11), the Commissioner’s Memorandum in Opposition

(ECF No. 16), and the administrative record (ECF No. 11). Plaintiff did not file a reply. For the

reasons that follow, it is RECOMMENDED that the Court OVERRULE Plaintiff’s Statement of

Errors and AFFIRM the Commissioner’s decision

I. BACKGROUND

Plaintiff protectively filed his applications for benefits on June 9, 2017, alleging that he

has been disabled since October 23, 2016, due to depression, bipolar II disorder, ADHD, anxiety

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and high blood pressure. (R. at 257-66, 287.) Plaintiff’s applications were denied initially in

October 2017 and upon reconsideration in January 2018. (R. at 72-131.) Plaintiff sought a de

novo hearing before an administrative law judge. (R. at 146-47.) Administrative Law Judge

Karen Sayon (“ALJ”) held a video hearing on December 2, 2019,1 at which Plaintiff, who was

represented by counsel, appeared and testified. (R. at 34-64.) A Vocational Expert (“VE”) also

appeared and testified. (Id.) On December 23, 2019, the ALJ issued a decision finding that

Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 12-33.) The

Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the

Commissioner’s final decision. (R. at 1-6.) Plaintiff timely commenced this action. (ECF No. 1.)

II. RELEVANT RECORD EVIDENCE

A. Relevant Hearing Testimony

The ALJ summarized Plaintiff’s statements to the agency and his relevant, unscripted2

hearing testimony as follows:

[Plaintiff] alleges that bipolar II disorder, depression, and anxiety limit his ability to

work (Exhibit 1E/2). He reported that he tends to forget things he is told (Exhibit

7E/6). He reported that he cannot focus when anxious. He reported that he lashes

out at others if frustrated or anxious/stressed. At the hearing, he testified to constant

fear, anxiety, and depression. He reported being manic and feeling violent. He

testified that he can have uncontrollable rage and anger.

(R. at 21.)

He testified he stopped working because he had a complete mental breakdown and

that he had to wait to get an appointment at New Horizons. However, when he started

1 An initial hearing was scheduled for August 6, 2019 but was continued due to additional

exbibits being added to the record. (See R. at 65-71.)

2 Plaintiff began his testimony regarding the symptoms relating to his mental health

conditions by reading from paperwork that someone else had prepared for him. (R. at 44-45.)

The ALJ asked him to put away or cover up this paperwork. (R. at 45.)

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treatment at New Horizons, he reported that he worked as a night janitor until

October 2016, when he was fired because he did not get along with the owner

(Exhibit 14F/7), not because of a mental breakdown. He told the Disability

Determination Services (DDS) he stopped working in October 2016 because he was

unjustly accused of doing things in the kitchen and then quit (Exhibit 7A/6).

(R. at 23.)

[Plaintiff] testified at the hearing that he was quite limited. He purported that since

the alleged onset date, he only socialized with his roommate, Darcy. He reported

that he cannot do any chores without her assistance and direction, and he even needs

help with showering because he is anxious about water. He testified that he does not

play video games and has not hunted or fished since he was about 10 years of age.

He reported that he can only walk about 10-15 minutes because of his back—but he

can pace for hours at a time. He testified that he goes days without sleeping and has

frequent manic and low spells.

(R. at 24.)

B. Relevant Medical Records

The ALJ summarized the relevant medical records concerning Plaintiff’s mental health

symptoms as follows:

Pertaining to his mental impairments, [Plaintiff] has been diagnosed with

depression, bipolar II disorder, and post-traumatic stress disorder (PTSD), and

prescribed psychiatric medications including Wellbutrin, Lithium, Latuda,

Quetiapine, and Clonazepam (Exhibits 4F/9, 6F/2 and 7, and 17F/25). On June 2,

2017, he presented to Amber Mallory, licensed social worker (LSW), and reported

anxiety, depression, thoughts of death, worthlessness, and guilt (Exhibit 2F/2). He

was diagnosed with anxiety, depression, dysthymic disorder, other specified anxiety

disorder, and anxiety disorders, and referred to counseling/psychotherapy (Exhibit

2F/9-10).

[Plaintiff], on October 31, 2017, presented to Kurt Heintzelman, M.D. (Exhibit

6F/6). It was noted that during mental status examination, he tended to only speak

when spoken to and appeared worried. He reported a “pretty anxious” mood. He

exhibited blunted, rather sullen, and humorless affect, normal memory, and fair

judgment/insight (Exhibit 6F/6-7). Paranoid thought content was noted. Dr.

Heintzelman diagnosed him with bipolar II disorder and prescribed him Lamictal,

Abilify, and Ativan (Exhibit 6F/8-9).

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Subsequently, [Plaintiff] underwent psychotherapy through 2019 (Exhibits 14F and

15F). He reported being anxious, and having racing thoughts, social avoidance, and

anger (Exhibits 14F/26, 33, 103, 110, and 131 and 15F/24). He was prescribed

Geodon and Lamictal in February 2019 (Exhibit 14F/82 and 96). Seroquel was

increased to 500 mg in July 2019 and to 800 mg in September 2019 (Exhibit 15F/24).

After complaints of constant suicidal thoughts and fear, Geodon was increased to 60

mg in August 2019 (Exhibit 15F/15). In June 2019, he reported anxiety, childhood

molestation, and witnessing deaths and that he was having nightmares and

flashbacks (Exhibit 14F/16). He was prescribed increased Seroquel (to 400 mg) and

increased Lamictal (to 200 mg) (Exhibit 14F/21). In October 2019, he reported

continued suicidal thoughts (Exhibit 15F/41). He was advised to wean off Seroquel,

and Abilify was increased to 5 mg.

[Plaintiff] reported medication side effects (Exhibits 14F/33, 54, and 61). However,

I note that there was a good effect of medication and considerable improvement

noted. For example, he reported feeling better (Exhibit 14F/40 and 75). He reported

sleeping better and less paranoia (Exhibit 14F/47). He reported that Klonopin was

often helpful (Exhibit 14F/54). He reported marked improvement in mood (Exhibit

14F/75). He reported medications were working well without side effects in June

2018 and November 2018 (Exhibit 14F/82 and 96). He reported feeling better, no

nightmares, improved mood, more energy, motivation, productivity, an exercising

(Exhibit 14F/117). In April 2019, he was feeling well with no mental health

complaints (Exhibit 14F/138).

[]. During therapy, he reported being anxious, racing thoughts, social avoidance, and

anger (Exhibits 14F/26, 33, 103, 110, and 131 and 15F/24). He also complained of

suicidal thoughts and flashbacks (Exhibits 14F/16 and 15F/15).

(R. at 22-23.)

Also, the medical evidence shows that [Plaintiff] saw his primary care physician in

May 2017, who gave him a referral for mental health treatment (Exhibit 4F/8), and

he then had an intake at New Horizons in June 2017 (Exhibit 2F), with treatment

starting in October 2017, and thus he did not wait long to start mental health

treatment, once he requested a referral from his primary care physician.

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Regarding his mental impairments, again, [Plaintiff] had an intake evaluation at New

Horizons in June 2017, and then he started medication management with Dr.

Heintzelman and then with certified nurse practitioner (CNP) Callaway (Exhibits

2F, 6F, 14F, and 15F). He has maintained regular attendance there. He responds to

medications when they are changed. The medical records mainly document his

complaints. Abnormal mental status examination findings are mainly isolated to his

mood, and the notes document regular adjustments to medications. When he

complains of side effects from medications, he contacts his provider and they were

changed. There are periods when he was doing well and only needed to return every

eleven weeks. He testified that he regularly attends counseling, but none of these

counseling records are in the file.

(R. at 24.)

IV. ADMINISTRATIVE DECISION

On December 23, 2019, the ALJ issued her decision. (R. at 12-33.) The ALJ found that

Plaintiff meets the insured status requirements of the Social Security Act through December 31,

2021. (R. at 18.) At Step One of the sequential evaluation process,3 the ALJ found that Plaintiff

did not engage in substantially gainful activity since October 23, 2016, the alleged onset date.

3 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or

equal the criteria of an impairment set forth in the Commissioner’s Listing of

Impairments, 20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant's residual functional capacity, can the claimant

perform his or her past relevant work?

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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(Id.) At Step Two, the ALJ found that Plaintiff had the severe impairments of obesity, lumbar

herniated disc and foraminal stenosis, bipolar disorder, depression, anxiety, and post traumatic

disorder. (Id.) At step three, the ALJ found that Plaintiff does not have an impairment or

combination of impairments that meets or medically equals one of the listed impairments

described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id.) Before proceeding to step four,

the ALJ set forth Plaintiff’s residual functional capacity (“RFC”),4 as follows:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)

and 416.967(b) involving: no climbing ladders, ropes, or scaffolding; and

occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps

and stairs. He is limited to work involving simple instructions, routine tasks, simple

decision-making, no public interaction, and settings with routine and predictable

duties. He is limited to occasional interaction with supervisors and coworkers and

no fast-paced production requirements.

(R. at 20.)

At step four, the ALJ determined that Plaintiff is unable to perform any of his past relevant

work. (R. at 26.) The ALJ relied on testimony from the VE at step five to determine that in light

of Plaintiff’s age, education, work experience, and RFC, he was able to perform jobs that existed

in significant numbers in the national economy, including inspector, laundry sorter, and small

products assembler. (R. at 27.) The ALJ therefore concluded that Plaintiff was not disabled

under the Social Security Act since October 23, 2016. (Id.)

4 Because Plaintiff’s challenge only involves his mental impairments, the Undersigned’s

discussion and analysis are limited to the same.

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V. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is substantial

evidence in the record that would have supported an opposite conclusion.’” Blakley v. Comm’r of

Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision of the

Commissioner will not be upheld where the 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.’”

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Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir.

2007)).

VI. ANALYSIS

Plaintiff sets forth two assignments of error: (1) the ALJ failed to properly evaluate his

impairments under Medical Listing 12.04 and, as a result, the decision is not supported by the

facts, the law, or substantial evidence; and (2) the ALJ’s residual functional capacity

determination is not supported by substantial evidence. The Undersigned disagrees and finds that

the ALJ’s decision is supported by substantial evidence.

A. Listing 12.04

Plaintiff asserts that he has put forth sufficient evidence to demonstrate that his

impairments meet or equal Listing 12.04. Further, Plaintiff contends that the ALJ failed to satisfy

the Reynolds criteria by either inadequately or completely failing to evaluate the medical

evidence, compare that evidence to the Listings, and provide a detailed explanation of his

conclusion that the Listings were not met or equaled. Plaintiff’s arguments are not well-taken.

The Listing of Impairments, located at Appendix 1 to Subpart P of the regulations,

describes impairments the Social Security Administration considers “severe enough to prevent an

individual from doing any gainful activity, regardless of his or her age, education, or work

experience.” 20 C.F.R. § 416.925(a). A claimant who meets or medically equals the requirements

of a listed impairment will be deemed conclusively disabled. See Reynolds v. Comm'r of Soc. Sec.,

424 F. App'x 411, 414 (6th Cir. 2011). That said, “[a] claimant must satisfy all of the criteria to

meet the listing.” Rabbers, 582 F.3d at 653; Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (“For a

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claimant to show that his impairment matches a listing, it must meet all of the specified medical

criteria. An impairment that manifests only some of those criteria, no matter how severely, does

not qualify.”); Blanton v. Soc. Sec. Admin., 118 F. App'x 3, 6 (6th Cir. 2004) (“When all the

requirements for a listed impairment are not present, the Commissioner properly determines that

the claimant does not meet the listing.”). All criteria must also be met concurrently for a period of

twelve continuous months. See 20 C.F.R. § 416.925(c)(3), (4); 20 C.F.R. Pt. 404, Subpt. P, App.

1, § 1.00(D) (“[b]ecause abnormal physical findings may be intermittent, their presence over a

period of time must be established by a record of ongoing management and evaluation.”). A

claimant bears the burden of proving that she meets or equals all of the criteria of a listed

impairment. Malone v. Comm'r of Soc. Sec., 507 F. App'x 470, 472 (6th Cir. 2012); Her v.

Comm'r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (clarifying that the burden of proving

disability remains with the Social Security claimant at Steps 1 through 4 and does not shift to the

ALJ until Step 5).

The ALJ found that Plaintiff’s mental health impairments failed to meet Listing 12.04, and

provided, in part, this rationale:

The Regulations provide that to meet the listing 12.04, 12.06, and 12.15 “C” criteria,

the mental disorder must be “serious and persistent;” that is, there must be a

medically documented history of the existence of the disorder over a period of at

least 2 years, and there is evidence of both:

1. Medical treatment, mental health therapy, psychosocial support, or a highly

structured setting that is ongoing and that diminishes the symptoms and signs of

the mental disorder; and

2. Marginal adjustment, that is, a minimal capacity to adapt to changes in the

environment or to demands that are not already part of an individual’s daily life.

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The claimant has been prescribed psychotropic medications, and underwent mental

therapy during the period in consideration. However, there is no evidence of a

marginal adjustment or a minimal capacity to adapt to changes in the environment

or to demands that are not already part of his daily life. Thus, the undersigned finds

that the claimant’s impairments do not meet listing 12.04(C), 12.06(C), or

12.15(C).

(R. at 20.)

The crux of Plaintiff’s argument appears to hinge on the ALJ’s conclusion that there is no

evidence of marginal adjustment or minimal capacity to adapt to changes in the environment.

The explanatory notes preceding Listing 12.04, state the following:

The criterion in C2 is satisfied when the evidence shows that, despite your

diminished symptoms and signs, you have achieved only marginal adjustment.

“Marginal adjustment” means that your adaptation to the requirements of daily life

is fragile; that is, you have minimal capacity to adapt to changes in your environment

or to demands that are not already part of your daily life. We will consider that you

have achieved only marginal adjustment when the evidence shows that changes or

increased demands have led to exacerbation of your symptoms and signs and to

deterioration in your functioning; for example, you have become unable to function

outside of your home or a more restrictive setting, without substantial psychosocial

supports (see 12.00D). Such deterioration may have necessitated a significant

change in medication or other treatment. Similarly, because of the nature of your

mental disorder, evidence may document episodes of deterioration that have

required you to be hospitalized or absent from work, making it difficult for you to

sustain work activity over time.

20 C.F.R. § Pt. 404, Subpt. P, App. 1, § 12.00(G)(2)(c). As relevant here, examples of

psychosocial supports include help from family members or other people who monitor an

individual’s daily activities and help them to function. Id. at § 12.00(D)(1)(a). This help could

include administering medications, reminding an individual to eat, shopping, paying bills, or

changing work hours so an individual is never left alone. Id.

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Plaintiff relies solely on his self-reports to support his claim of marginal adjustment. For

example, Plaintiff cites his roommate’s assistance with his activities of daily living; his going

without sleep for multiple days; and his breakdowns that lead to uncontrollable rage, crying,

screaming, and violent behavior as proof of both an exacerbation of symptoms and a deterioration

in functioning. (ECF No. 11 at 9.) The ALJ, however, relied on other record evidence in

reaching a different conclusion. Specifically, the ALJ cited Plaintiff’s medical records, which she

characterized as contradicting many of his allegations. For example, the ALJ noted Plaintiff’s

reports that he has outdoor hobbies including hunting and fishing and is frequently outside (R. at

341, 564, 708, 779), that he has friends (R. at 452), and that he is close to his mother and her

boyfriend (Id.). The ALJ also relied on reports that he went swimming and to a concert. (R. at

461.) This constitutes substantial evidence to support the ALJ’s conclusion that Plaintiff does not

satisfy the paragraph “C” criteria for Listing 12.04.

Further, Plaintiff's Reynolds argument mischaracterizes the ALJ’s discussion. In

Reynolds, the ALJ found that the claimant had severe mental and physical impairments at Step

Two, but at Step Three, the ALJ analyzed only whether the claimant's mental impairments met or

equaled a Listing, and completely failed to assess whether the claimant's physical impairments

met or equaled any Listings. Id. at 415–16. The Sixth Circuit Court of Appeals found that remand

was appropriate because the ALJ “completely skipped an entire step of the necessary analysis.”

Id.

In this case, ALJ Sayon did not completely fail to consider whether Plaintiff's mental

impairments met any listed impairments. She specifically addressed whether Plaintiff met Listing

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12.04. (R. at 18-20.) In doing so, she noted the relevant criteria and concluded that, although

there was some evidence of both medical treatment and mental therapy, there was no evidence of

a marginal adjustment or a minimal capacity to adapt to changes in the environment. (R. at 20.)

The lack of objective evidence as to these latter issues led the ALJ ultimately to conclude that,

overall, the record did not support a finding that the criteria of Listing 12.04C had been met. As

discussed above, the ALJ’s characterization of the evidence is supported by substantial evidence.

Further, although the ALJ’s Step Three analysis may have been brief, when combined

with her detailed discussion of the record evidence related to Plaintiff's mental impairments, it

provided sufficient articulation for adequate judicial review. Moreover, on several occasions, the

Sixth Circuit has upheld an ALJ's sparse step three determination when an ALJ made “sufficient

factual findings elsewhere in his decision to support his conclusion at Step Three.” Forrest v.

Comm'r of Soc. Sec., 591 F, App’x 359, 366 (6th Cir. 2014) (citing See Bledsoe v. Barnhart, 165

F. App’x 408, 411 (6th Cir. 2006) (looking to findings elsewhere in the ALJ's decision to affirm a

Step Three medical equivalency determination, and finding no need to require the ALJ to “spell

out every fact a second time”)). Such is the case here. Accordingly, the Undersigned finds that the

ALJ did not err when analyzing if Plaintiff met the criteria for Listing 12.04C.

Additionally, as noted, Plaintiff bears the burden of proof to demonstrate that he meets

every component of a Listing. To the extent that Plaintiff attempts to demonstrate he meets the

remaining criteria of Listing 12.04C by highlighting evidence relating to the criteria, such an

effort simply is insufficient. Kinney v. Saul, No. 5:20-CV-01155, 2021 WL 4342020, at *16

(N.D. Ohio July 12, 2021). It is well settled that a decision supported by substantial evidence will

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not be overturned even when substantial evidence may support the opposite conclusion. Ealy, 594

F.3d at 512.

B. RFC

Plaintiff also argues that the ALJ’s RFC fails to convey his limitations as to concentration,

persistence and pace. Specifically, Plaintiff asserts that the RFC fails to acknowledge that he

“may require flexible breaks, redirection, and may be unable to stay alert, or work at a consistent

pace, even at a simple, unskilled, routine job….” (ECF No. 11 at 14-15.) By extension, Plaintiff

argues that the hypothetical question to the vocational expert was not adequate. Plaintiff also

contends that, because the ALJ found the opinions of the State agency psychologists to be

unpersuasive and these were the only opinions of record relating to his mental limitations, the

ALJ impermissibly relied on her own lay opinion in making her RFC determination.

The determination of a plaintiff's RFC is entirely within the purview of the ALJ, and “this

Court will defer to that finding even if there is substantial evidence in the record that would have

supported an opposite conclusion.” Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th

Cir. 2005). Here, the ALJ found that Plaintiff had a moderate limitation with respect to

concentration, persistence, or pace. (R. at 19.) In her RFC determination, the ALJ specifically

noted that Plaintiff was limited to “work involving simple instructions, routine tasks, simple

decision-making, no public interaction, and settings with routine and predictable duties...

occasional interaction with supervisors and coworkers and no fast-paced production

requirements.” (R. at 20.) Indeed, the ALJ carefully considered the evidence in the record

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regarding Plaintiff's limitations in concentration, persistence, and pace. To this end, the ALJ set

forth the following:

The State agency psychological consultant opined initially that the claimant should

be limited to simple (1-2 step) tasks and occasional complex (3-5 step) instructions,

simple decisions, no strict time limits or production standards, relatively isolated

work station and supervisory support when first learning job tasks, infrequent public

contact, minimal interaction with coworkers, no over-the-shoulder supervisory

scrutiny, routine and predictable duties, well-explained and slowly introduced

changes, and possible supervisory support with goal-setting and planning (Exhibits

3A and 4A). The State agency psychological consultant opined on reconsideration

that the claimant is limited to simple (1-2 step) tasks, occasional complex (3-5 step)

instructions, simple decisions, no strict time limits or production standards, possible

relatively distraction-free setting work and supervisory support when first learning

job tasks, infrequent public contact, minimal interaction with coworkers, no over-

the-shoulder supervisory scrutiny, routine and predictable duties, well-explained

and slowly introduced changes, and possible supervisory support with goal-setting

and planning (Exhibits 7A and 8A). I find that these opinions are unpersuasive. The

State agency rendered their opinions in October 2017 and January 2018,

respectively, and thus only considered a few months of treatment. Additionally, their

opinions are not supported by the claimant’s treatment history and the good response

to medications. For example, he reported feeling better (Exhibit 14F/40 and 75). He

reported sleeping better and less paranoia (Exhibit 14F/47). He reported that

Klonopin was often helpful (Exhibit 14F/54). He reported marked improvement in

mood (Exhibit 14F/75). He reported medications were working well without side

effects in June 2018 and November 2018 (Exhibit 14F/82 and 96). He reported

feeling better, no nightmares, improved mood, more energy, motivation,

productivity, and exercising (Exhibit 14F/117). In April 2019, he was feeling well

with no mental health complaints (Exhibit 14F/138). There are periods documented

in his medical records where he was doing well and only needed to return every 11

weeks (14F, 15F, 6F, 2F). And, when he complains of worsening symptoms or side-

effects, his medications are changed or adjusted, and he has generally responded to

adjustments.

(R. at 25.)

This Court must look at the record as a whole and determine if substantial evidence

supports the ALJ's RFC. Schalk v. Comm'r of Soc. Sec., No. 10-13894, 2011 WL 4406824, at *11

(E.D. Mich. August 30, 2011), report and recommendation adopted, No. 10-13894, 2011 WL

14

4406332 (E.D. Mich. Sept. 22, 2011). In the instant case, the ALJ's RFC determination included

limitations addressed to concentration, persistence and pace. Plaintiff fails to explain why the

facts here require a more detailed hypothetical question. Lewicki v. Comm'r of Soc. Sec., No. 09-

11844, 2010 WL 3905375, at *3 (E.D. Mich. Sept. 30, 2010) (While “[t]here may be cases where

such moderate limitations preclude the performance of even some simple, unskilled tasks [,

plaintiff does not] explain why the facts of this particular case require a more detailed

hypothetical question to adequately account for his own moderate limitations in concentration,

persistence, or pace.”) Instead, Plaintiff simply points to evidence in the record that he believes

demonstrates his limitations in concentration, persistence, and pace. (ECF No. 11, at 14, citing

symptoms.) Beyond this, Plaintiff cites speculative limitations that he believes should have been

included in the RFC. See ECF No. 11 at 7 (“the ALJ failed to acknowledge that [he] may require

flexible breaks, redirection and may be unable to stay alert, or work at a consistent pace, even at a

simple, unskilled, routine job”) (emphasis added). He further speculates that identified jobs could

have been excluded “if [he] required repetition of directions” or “only visual demonstrations.”

(Id.)

Here, viewing the decision as a whole, the ALJ properly evaluated the record and

provided sufficient explanation based on substantial evidence. Plaintiff has offered nothing

beyond citations to particular symptoms. Moreover, even if Plaintiff's listing of symptoms was

sufficient evidence to support a conclusion opposite that reached by the ALJ, it would not be

enough here. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (“If substantial

15

evidence supports the commissioner's decision, this Court will defer to that finding even if there is

substantial evidence in the record that would have supported an opposite conclusion.”).

Finally, Plaintiff, in conclusory fashion,5 contends that because the ALJ found the State

agency psychological consultants’ findings unpersuasive, the ALJ relied solely on her lay opinion

of the medical evidence in formulating the mental RFC. The Sixth Circuit, however, has

confirmed that “[n]o bright-line rule exists in our circuit directing that medical opinions must be

the building blocks of the [RFC] finding”; the ALJ need only “make a connection between the

evidence relied on and the conclusion reached.” Tucker v. Comm'r of Soc. Sec., 775 F. App'x 220,

226 (6th Cir. 2019). That is, “the administrative law judge’s residual functional capacity finding

does not need to correspond to a particular physician’s opinion.” Id. (citing Rudd v. Comm’r of

Soc. Sec., 531 F. App'x 719, 728 (6th Cir. 2013) (rejecting the argument that the administrative

law judge is required to base her determination on a physician’s opinion)); see also Simon v.

Comm'r of Soc. Sec., No. 2:16-CV-259, 2017 WL 1017733, at *6 (S.D. Ohio Mar. 16, 2017)

(citing Brown v. Comm'r of Soc. Sec., 602 F. App'x 328, 331 (6th Cir. 2015)), report and

recommendation adopted, 2017 WL 3172717 (S.D. Ohio July 25, 2017) (“[a]lthough the RFC

must be supported by evidence of record, it need not correspond to, or even be based on any

specific medical opinion”). As discussed above, the ALJ made the required connection between

the evidence she relied on and the conclusion she reached. Plaintiff, in offering nothing beyond

5 The conclusory nature of Plaintiff’s argument on this issue is also a sufficient basis for rejecting

it. Kuhn v. Washtenaw Cnty., 709 F.3d 612, 624 (6th Cir.2013) (“arguments adverted to in only a

perfunctory manner, are waived.”)

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an undeveloped argument, fails to demonstrate anything to the contrary. Accordingly, the

Undersigned finds no merit to Plaintiff’s second statement of error.

VII. CONCLUSION

For the foregoing reasons, it is RECOMMENDED that Plaintiff’s Statement of Errors be

OVERRULED and that the Commissioner’s decision be AFFIRMED.

VIII. PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

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(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

Date: November 5, 2021 /s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge

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