Spurlock v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF OHIO

EASTERN DIVISION

KELLY SPURLOCK,

Plaintiff,

Civil Action 2:20-cv-3981

v. Judge Edmund A. Sargus, Jr.

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Kelly Spurlock, brings this action under 42 U.S.C. § 405(g) for review of a final

decision of the Commissioner of Social Security (“Commissioner”) denying her application for

Supplemental Security Income benefits (“SSI”). This matter is before the United States

Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No.

14), the Commissioner’s Memorandum in Opposition (ECF No. 19), Plaintiff’s Reply (ECF No.

20), and the administrative record (ECF No. 11). 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 previously filed applications for disability insurance benefits (“DIB”) and SSI on

May 7, 2010, alleging that she became disabled on September 13, 1977. (R. at 74–98.) On July

18, 2012, both applications were denied in a determination issued by Administrative Law Judge

Timothy G. Keller (“ALJ Keller”). (Id.) The Appeals Council declined to review ALJ Keller’s

determination, and Plaintiff apparently did not seek judicial review. (R. at 99–102.)

Plaintiff protectively filed her current application for SSI on November 16, 2016, alleging

that she had been disabled since September 12, 2016. (R. at 221–26.) Plaintiff’s application was

denied initially and upon reconsideration. (R. at 103–119, 121–35.) Administrative Law Judge

Melody Paige (“ALJ Paige”) held a hearing on February 19, 2019, at which Plaintiff, who was

represented by counsel, appeared and testified. (R. at 31–64.) On April 11, 2019, ALJ Paige

issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security

Act. (R. at 12–30.) On June 9, 2020, the Appeals Council denied Plaintiff’s request for a review

of ALJ Paige’s decision, which became the Commissioner’s final decision. (R. at 1–6.) Plaintiff

then timely commenced the instant action.

II. MEDICAL RECORDS

ALJ Paige summarized the medical records related to Plaintiff’s physical impairments:

The undersigned concedes that the claimant experiences diabetes mellitus,

degenerative disc disease of the lumbar spine, and obesity. The existence and

persistence of these impairments, and their limiting effects, are corroborated in the

claimant’s medical history. The [Plaintiff] has been diagnosed with diabetes

mellitus (Exhibit B1F/6). An October 2016 magnetic resonance imaging scan

(MRI) of her lumbar spine shows scoliosis and other degenerative changes and disc

abnormalities (Exhibit B2F/13). She has presented herself with a body mass index,

or BMI, above 30, indicative of obesity (Exhibits B1F/5,8; B11F/15; B12F/5). To

treat her various impairments, she has been prescribed medication and has been

recommended for an epidural steroid injection and physical therapy (Exhibits

B3E/8; B1F/4,8; B3F/2; B6F/3; B10F/2; B11F/2; B12F/5) . . . .

(R. at 22.) ALJ Paige likewise summarized the medical records related to Plaintiff’s mental

impairments:

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The claimant has routinely presented herself with insignificant psychological

symptoms, appearing alert and oriented; cooperating pleasantly with examiners;

demonstrating normal mood, affect, judgment, memory, thought process, and

thought content; denying experiencing anxiety or depression; and generally

appearing to be in no acute distress (Exhibits BlF/6,10,14; B2F/3,5; B3F/3-4;

B6F/4; B7F/2,4; B9F/l,3-5,16; Bl0F/2-5,7-10; Bl lF/9,13,17,21,29,37,41;

Bl2F/5,41,67,103,137).

(R. at 18.)

III. ADMINISTRATIVE DECISION

On April 11, 2019, ALJ Paige issued her decision. (R. at 12–30.) In it, she initially noted

that ALJ Keller had issued a final determination about Plaintiff’s 2010 DIB and SSI applications.

(R. at 15.) ALJ Paige also noted that pursuant to case law and agency policy, she was required to

adopt ALJ Keller’s findings in the absence of new and material evidence or changed

circumstances. (Id.) But ALJ Paige concluded that there was new and material evidence that

provided a basis for a different finding. (R. at 16.)

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At step one of the sequential evaluation process,1 ALJ Paige found that Plaintiff had not

engaged in substantially gainful activity since November 16, 2016. (R. at 18.) At step two, ALJ

Paige found that Plaintiff had the following severe physical impairments:2 diabetes mellitus;

degenerative disc disease of the lumbar spine; and obesity. (Id.) ALJ Paige further determined

that Plaintiff had the following medically determinable mental impairments but that they were not

severe: borderline intellectual functioning, affective disorder, and anxiety disorder. (Id.) She

further found at step three that Plaintiff did not have an impairment or combination of

impairments that met or medically equaled one of the listed impairments described in 20 C.F.R.

Part 404, Subpart P, Appendix 1. (R. at 20.)

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

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(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. § 416.920(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).

2 ALJ Paige found that Plaintiff’s fibromyalgia was not severe. (R. at 18.) Plaintiff does

not challenge that finding.

4

Before proceeding to step four, ALJ Paige set forth Plaintiff’s residual functional capacity

(“RFC”) as follows:

After careful consideration of the entire record, the undersigned finds that the

[Plaintiff] has the residual functional capacity to perform light work as defined in 20

CFR 416.967(b) except she can lift and/or carry 20 pounds occasionally and ten

pounds frequently. She can sit, stand, and/or walk for a total of six hours out of an

eight-hour workday. She can occasionally climb ramps and stairs, stoop, kneel, and

crawl but is precluded from climbing ladders, ropes, or scaffolds, working at

unprotected heights, or around hazardous moving machinery. She can tolerate

minimal exposure to gases and fumes.

(R. at 21.)

Relying on testimony from a vocational expert (“VE”), the ALJ found at steps four and

five that even though Plaintiff had no past relevant work, she could perform jobs that existed in

significant numbers in the national economy. (R. at 23-25.) ALJ Paige therefore concluded that

Plaintiff had not been disabled within the meaning of the Social Security Act since November 16,

2017. (R. at 25.)

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

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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.’”

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

2007)).

VI. ANALYSIS

In her Statement of Errors, Plaintiff alleges that remand is required because ALJ Paige

erred when weighing medical opinion evidence and when performing a subjective symptom

analysis / credibility determination. (ECF No. 14, at PageID # 718–22, 723–26.) Plaintiff also

appears to assert that the ALJ’s question to the vocational expert (“VE”) was inaccurate. (ECF

No. 14, at Page ID # 763.) None of these contentions of error warrants remand.

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A. Medical Opinion Evidence from Drs. Cripe, Goldsmith, and Hoyle

Plaintiff alleges that ALJ Paige’s RFC determination is not supported by substantial

evidence because ALJ Paige erred when evaluating medical opinion evidence. This allegation of

error lacks merit.

An ALJ must consider all medical opinions received in a claimant’s case. 20 C.F.R. §

416.927(c); see also SSR 96–8p 1996 WL 374184, at *7 (July 2, 1996) (“The RFC assessment

must always consider and address medical source opinions.”). The applicable regulations3 define

medical opinions as “statements from physicians and psychologists or other acceptable medical

sources that reflect judgments about the nature and severity of your impairment(s), including your

symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). Regardless of the source of a

medical opinion, when weighing it, an ALJ must apply the factors set forth in 20 C.F.R. §

416.927(c)(2)–(6). Those factors are the: (1) length of the treatment relationship and the

frequency of examination; (2) nature and extent of the treatment relationship; (3) supportability of

the opinion; (4) consistency of the opinion with the record as a whole; (5) specialization of the

treating source; and (6) other factors. § 416.927(c)(2)–(6).

Plaintiff alleges that ALJ Paige erred when weighing the opinion offered by consultative

examiner, Princess A. Cripe, Psy.D. (ECF No. 14, at PageID # 720–22.) Dr. Cripe opined that

Plaintiff had the ability to carry out simple instructions; could complete simple tasks if she set her

3 Because Plaintiff’s instant application was filed in 2016, it is governed by regulations applicable

to claims filed before March 27, 2017.

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own pace; and would perform better in a more isolated/independent setting with minimal

demands. (R. at 353–54.) ALJ Paige analyzed and weighed Dr. Cripe’s opinion as follows:

In January 2019,4 Dr. Cripe examined the claimant and said that she had significant

limitations with regard to understanding and executing work instructions and

moderate limitations in responding appropriately to work pressures in a work setting

but could complete simple tasks if set at her own pace (Exhibit B3F/4–5). The

undersigned gives Dr. Cripe’s opinion little weight because it is based largely on the

claimant’s self-reported symptoms and medical history and is largely unsupported

by the evidence showing mild psychological symptoms and unlimited daily

functioning (Exhibits B3E; B1F/6, 10, 14; B2F/3, 5; B3F/3–4; B6F/4; B7F/2; B9F/1,

3–5, 16; B10F/2–5, 7–10; B11F/9, 13, 17, 21, 29, 37, 41; B12F/5, 41, 67, 103, 137).

(R. at 19–20.)

The Undersigned finds no reversible error in this assessment. Because a consultative

examiner usually meets with a claimant only once, he or she typically does not have an on-going

treatment relationship with a claimant that could trigger the deference owed to treating

physicians. Andres v. Comm’r of Soc. Sec., 733 F. App’x. 241, 245–46 (6th Cir. 2018) (the

absence of an on-going treatment relationship means “the ALJ is entitled to give less weight to

the consultative examiner’s opinion”) (citing Staymate v. Comm’r of Soc. Sec., 681 F. App’x. 462,

467 (2017)). And although a consultative examiners’ opinions must be meaningfully evaluated

according to the factors set forth in § 416.927(c), an ALJ need not give “an exhaustive factor-by-

factor analysis.” Kent v. Comm’r of Soc. Sec., 142 F. Supp. 3d 643, 650 (S.D. Ohio 2015)

(quoting Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804 (6th Cir. 2011)). Here, ALJ

Paige’s discussion indicates that she considered the regulatory factors— she expressly determined

that Dr. Cripe’s opinion was not supported by the record which largely documented mild

4 It appears that the examination took place in January 2017. (R. at 350.)

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psychological symptoms and unlimited daily functioning. (Id.) Supportability is a key regulatory

factor.

The Undersigned further finds that ALJ Paige’s determination is supported by the record.

The record indeed documents mild psychological functioning— examinations routinely found

that Plaintiff had no psychomotor mood, affect, speech, or thought impediments. (R. at 309, 314,

318, 322, 326, 330, 370, 434, 446, 450, 458, 466, 470, 474.) Examinations also regularly found

that Plaintiff appeared only mildly anxious. (R. at 334, 338, 340, 380, 382, 384, 398, 400, 401,

402, 413, 417, 418, 419.) At an examination on September 16, 2016, Plaintiff’s mood and

manner were appropriate. (R. at 393.) During Dr. Cripe’s January 9, 2017, examination,

Plaintiff’s thoughts were logical, coherent, and organized and there was no evidence that she had

a thought disorder; Plaintiff was able to think abstractly; and she was not distracted by noises and

could follow simple instructions. (R. at 352.) On August 15, 2017, an examination found that

Plaintiff had normal mood and affect. (R. at 522.) On October 25, 2017, Plaintiff’s mood, affect,

speech, behavior, thought content, judgment, cognition, and memory were all normal. (R. at

546.) On April 16, 2018, Plaintiff again had normal mood and affect. (R. at 582.) A December

4, 2018, examination found that Plaintiff had normal mood, affect, and behavior. (R. at 616.) On

December 6, 2018, Plaintiff appeared anxious but her thought and perceptions were intact and

appropriate. (R. at 441.) And although notes from several doctor visits in early 2017 described

Plaintiff’s anxiety as worsening (R. at 474, 470), notes from visits later that year and in 2018

described Plaintiff’s anxiety as stable (R. at 467, 458, 453, 442).

Similarly, the record contains documents indicating that Plaintiff was able to engage in a

variety of daily activities. Plaintiff completed a function report on November 30, 2016, in which

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she indicated that she prepared her own meals daily; did cleaning and laundry when prompted;

shopped weekly for food and household items; and that she was able to count change, handle a

savings account, and use a checkbook or money orders. (R. at 257, 258.) She further indicated

that she visited with others weekly and did not need to be reminded to go places. (R. at 260.)

During Dr. Cripe’s January 9, 2017, Plaintiff denied any issues with household chores and that

she stated that she was “OK” as long as she had her pain medications. (R. at 352.) On August 24,

2018, Plaintiff reported that she could perform activities of daily living with medication

treatment. (R. at 418.) In addition, Plaintiff regularly reported that she engaged in exercise. (R.

at 309, 313, 317, 321, 325, 329, 333, 369, 440, 445, 449, 453, 457, 461, 465, 469, 473.)

ALJ Paige also discounted Dr. Cripe’s opinion because it was based on Plaintiff’s self-

reports. Substantial evidence also supports that determination. Dr. Cripe opined that due to

Plaintiff’s limitations in maintaining attention, concentration, persistence, and pace, she would be

able to complete simple tasks if she could set her own pace. (R. at 353.) When discussing that

opined limitation, Dr. Cripe expressly noted that Plaintiff was able to maintain attention and

concentration during her examination but that Plaintiff “reported having ‘terrible’ concentration

and [was] ‘unable to remember anything.’” (Id.) Moreover, Dr. Cripes noted that she did not

perform any psychological testing. (R. at 353.) Therefore, ALJ Paige did not err by finding that

Dr. Cripe’s opinions, or at least some of them, were based on Plaintiff’s self-reports. (Id.) See

Kepke v. Comm’r of Soc. Sec., 636 F. App’x 625, 629 (6th Cir. 2016) (favorably discussed an

ALJ’s decision to discount a medical opinion that “relied heavily on . . . self-reporting, and

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seemed to uncritically accept as true most, if not all, of what [claimant] reported.” (internal

quotation marks and citation omitted)).

Plaintiff also asserts that ALJ Paige erred when weighing opinions from the state agency

reviewers, Bruce Goldsmith, Ph.D., and Tonnie Hoyle, Psy.D. (ECF No. 14, at PageID # 720–

21.) Drs. Goldsmith and Hoyle both opined that Plaintiff was able to perform simple routine

tasks that did not require strict production or time standards in a static environment where

changes were infrequent and could be explained. (R. at 114–15, 132–33.) ALJ Paige analyzed

and weighed those opinions as follows:

At the initial level, Dr. Goldsmith reviewed the mental impairment evidence in

February 2017 and determined that the claimant experienced severe mental

impairments that affected the claimant’s ability to perform simple, routine tasks

(Exhibits B3A/13–14; B4A13–14). At the reconsideration level, Dr. Hoyle

reviewed the evidence in April 2017 and affirmed Dr. Goldsmith’s assessment

(Exhibits B5A/1–13; B6A/11–13). The undersigned gives their opinions little

weight because the evidence, most notably the claimant’s mild psychological

symptoms and lack of notable treatment, does not support the existence of severe

mental impairments (Exhibits B1F/6, 10, 14; B2F/3, 5; B3F/3–4; B6F/4; B7F/2, 4;

B9F/1, 3–5, 1; B10F/2–5,7–10; B11F/9, 13, 17, 21, 29, 37, 41; B12F/5, 41, 67, 103,

137.)

(R. at 19.)

ALJ Paige did not commit reversible error when analyzing these opinions.

“[T]he opinions of non-examining state agency medical consultants have some value and can,

under some circumstances, be given significant weight.” Douglas v. Comm’r of Soc. Sec., 832

F.Supp. 2d 813, 823–24 (S.D. Ohio 2011). This is because the Commissioner views such medical

sources “as highly qualified physicians and psychologists who are experts in the evaluation of the

medical issues in disability claims under the [Social Security] Act.” Id.; 20 C.F.R §

416.927(d),(f). “Consequently, opinions of one-time examining physicians and record-

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reviewing physicians are weighed under the same factors as treating physicians including

supportability, consistency, and specialization.” Douglas, 832 F. Supp. 2d at 823–24.

Nevertheless, “there is no legal requirement for an ALJ to explain each limitation or restriction he

[or she] adopts or, conversely, does not adopt from a non-examining physician’s opinion, even

when it is given significant weight.” Price v. Comm’r of Soc. Sec., 2:18-cv-128, 2019 WL

396415, at *2 (S.D. Ohio Jan. 31, 2019) (quoting Smith v. Comm’r of Soc. Sec., No. 5:11-cv-

2104, 2013 WL 1150133, at *11 (N.D. Ohio March 19, 2013) (citing Ford, 114 F. App’x. at

198.))

It is clear from ALJ Paige’s discussion that she considered the regulatory factors— she

determined that the opinions from Drs. Goldsmith and Hoyle were not supported by the record,

which documented mild psychological symptoms and a lack of notable treatment. Again,

supportability is a key regulatory factor. The Undersigned further finds that this determination

was supported by the record. As discussed previously, the record reflects that Plaintiff

experienced mild psychological symptoms. In addition, the record reflects a lack of “notable”

treatment. During Dr. Cripe’s January 9, 2017, examination, Plaintiff reported that she had

participated in psychotherapy for less than one year in approximately 2013. (R. at 352.)

Moreover, the record is bereft of evidence reflecting anything other than conservative treatment

for Plaintiff’s mental health issues.

Plaintiff relatedly contends that because ALJ Paige discounted the opinions from Drs.

Cripe, Goldsmith, and Hoyle, she relied solely on her own lay opinion of the medical evidence

when determining that Plaintiff’s mental impairments did not result in restrictions. (ECF No. 14,

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at Page ID # 715, 720.) The Sixth Circuit Court of Appeals has explained, however, 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”). In this case, ALJ Paige made the required connection between the evidence and her

determinations. That is all that the regulations require.

Plaintiff also notes that ALJ Keller relied on opinion evidence from other medical health

professionals and determined that Plaintiff had work limitations that stemmed from her mental

health impairments when ALJ Keller denied her prior application for benefits in 2012. (ECF No.

14, at PageID # 715–18.) Plaintiff seems to suggest that ALJ Paige erred by failing to also find

that Plaintiff had limitations stemming from her mental health impairments based on the opinion

evidence that was available to ALJ Keller. (Id.) But in Earley v. Commissioner of Social

Security, the Sixth Circuit explained that an ALJ may, in the absence of new and additional

evidence, consider a prior ALJ’s findings legitimate, albeit not binding, when he or she reviews a

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subsequent application. 893 F.3d 929 (6th Cir. 2018) (modifying Drummond v. Comm’r of Soc.

Sec., 126 F.3d 837 (6th Cir. 1997)). Here, ALJ Paige expressly considered ALK Keller’s prior

determination about Plaintiff’s mental health impairments and resulting limitations and gave it no

weight because there was new evidence that provided the basis for a different finding. (R. at 16,

23.) ALJ Paige then discussed that new evidence throughout her determination. (R. at 18, 19–20,

23.) Plaintiff does not challenge ALJ Paige’s application of Drummond/Early.

For all these reasons, the Undersignede does not find that the ALJ committed reversible

error when weighing opinion evidence. Plaintiff’s claim to the contrary lacks merit.

B. ALJ Paige’s Subjective Symptom/Credibility Analysis

Plaintiff alleges that the ALJ erred when assessing Plaintiff’s subjective symptoms. This

allegation of error also lacks merit.

The Sixth Circuit has provided the following guidance in considering an ALJ’s subjective

symptoms analysis or credibility assessment:5

Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling

pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.

2001); Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will

ask whether the there is an underlying medically determinable physical impairment

that could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R.

§ 416.929(a). Second, if the ALJ finds that such an impairment exists, then he must

evaluate the intensity, persistence, and limiting effects of the symptoms on the

individual’s ability to do basic work activities. Id.

5 An ALJ’s consideration of a claimant’s statements about symptoms and limitations, generally

known as credibility analysis, is required. But, as clarified by SSR 16-3p (applicable as of March

28, 2016), the focus is not on the claimant’s propensity for truthfulness or character but rather on

the consistency of her statements about the intensity, persistence, and limiting effects of

symptoms with the relevant evidence. See SSR 16-3p, 2017 WL 5180304 at *2, *6, *11.

Consequently, the Court uses the term “credibility” in the context of assessing the consistency

between Plaintiff’s statements about her symptoms and the evidence in the record.

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Rogers, 486 F.3d at 247.

“The ALJ’s assessment of credibility is entitled to great weight and deference.” Infantado

v. Astrue, 263 F. App’x. 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d

525, 531 (6th Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x. 988, 995 (6th Cir.

2007) (declining to disturb the ALJ’s credibility determination, stating that “[w]e will not try the

case anew, resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)).

This deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s]

subjective complaints of pain.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)

(quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir. 1987)). Despite

this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial

evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be

“based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal quotation

omitted). An ALJ’s explanation of his or her credibility decision “must be sufficiently specific to

make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to

the individual’s statements and the reasons for that weight.” Id. at 248; see also Mason v.

Comm’r of Soc. Sec. Admin., No. 1:06-CV-1566, 2012 WL 669930, at *10 (N.D. Ohio Feb. 29,

2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’, Rogers, 486 F.3d at

248, the intent behind this standard is to ensure meaningful appellate review.”).

“Discounting credibility to a certain degree is appropriate where an ALJ finds

contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,

127 F.3d at 531. In addition, the regulations list a variety of factors an ALJ must consider in

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evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of

medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96-7p, 1996

WL 374186 (July 2, 1996); but see Ewing v. Astrue, No. 1:10-cv-1792, 2011 WL 3843692, at *9

(N.D. Ohio Aug. 12, 2011) (suggesting that although an ALJ is required to consider such factors,

he or she is not required to discuss every factor within the written decision) report and

recommendation adopted, 2011 WL 3843703, (N.D. Ohio Aug. 30, 2011).

At the first part of the two-part analysis, ALJ Paige determined that Plaintiff had

medically determinable impairments that could reasonably be expected to cause her alleged

symptoms. (R. at 22.) But at the second part, ALJ Paige determined that Plaintiff’s statements

concerning the intensity, persistence and limiting effects of those symptoms were not entirely

consistent with the medical and other evidence in the record. (Id.) Plaintiff alleges that when

ALJ Paige made that second determination, she failed to consider Plaintiff’s medically

determinable mental health impairments. (ECF No. 14, at PageID # 723.)

Plaintiff mischaracterizes ALJ Paige’s subjective symptom analysis. ALJ Paige explained

her analysis as follows:

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The record does not substantiate the claimant’s allegations of disabling

impairments. While diagnostic findings corroborate the existence of severe

physical impairments, other findings describe those findings in mild terms

(Exhibits B2F/13; B4F/2; B5F; B12F/6, 17-19, 50, 107, 146-150). Upon

examination, she has routinely presented herself with insignificant musculoskeletal

symptoms, demonstrating normal gait with full strength and range of motion in her

back and extremities with no edema (Exhibits B1F/6; B6F/3-4; B8F/7; B9F/l,3-

5,16; B10F/2-5,7-10; B11F/4, 9, 13, 17, 21, 37, 41, 43, 67, 103, 137). Her back

impairments have been described as stable and her diabetes well controlled

(Exhibits B6F/3; B11F/16). She has been advised to lose weight and make healthier

diet choices (Exhibits B7F/4; B9F/1). Despite routinely reporting that her back

pain was a ten on a ten-point scale, she has also reported that her medication helped

"take the edge off", helped with "quality of life", and left her able to perform her

daily activities (Exhibits B9F/3; B10F/2-3). Despite being advised to undergo an

epidural steroid injection and attend physical therapy, the [Plaintiff] was unable to

do so (Exhibit B10F/2). The objective medical evidence does not support the

alleged severity of the [Plaintiff]’s various impairments.

The claimant’s daily functioning is less limited than one could reasonably expect,

considering the scope and severity of her allegations. She reported being able to

prepare meals, take care of her children, perform household chores, leave the house

unaccompanied, shop in stores, and handle money (Exhibits B3E/2-5; B3F/3). She

reported spending time with others, has no issues getting along with others, and

has been described as cooperative and pleasant by her various examiners (Exhibits

B3E/5-6; B3F/3; B12F/5). She drives an automobile, suggesting that in addition to

the various mental faculties she possesses, she also has the physical strength,

stamina, and dexterity to alternately open the vehicle door, sit in the driver’s seat,

manipulate the keys, turn the steering wheel, and operate the pedals (Exhibits

B3E/4; B3F/l,3). The totality of the evidence does not support the claimant’s

allegations but instead corroborates the existence of severe impairments that limit,

but do not wholly defeat, the claimant’s ability to perform basic work activities.

(R. at 22.) (emphasis added).

As this discussion illustrates, ALJ Paige explicitly, albeit briefly, discussed the severity of

Plaintiff’s mental health symptoms. ALJ Paige noted that Plaintiff drove, and that this evidenced

that she had the mental faculties to do so. (Id.) In addition, ALJ Paige noted Plaintiff’s social

interactions— which is one of the four broad areas of mental functioning. (Id.) For these

reasons, it appears that ALJ Paige considered the impact of Plaintiff’s mental health impairments

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when performing a subjective symptom analysis / credibility determination. The Undersigned

further finds that ALJ Paige’s discussion was supported by the record which contains evidence

that Plaintiff reported spending time with others (R. at 260), had no issues getting along with

others including authority figures (R. at 351, 261), and that Plaintiff was described by providers

as cooperative, pleasant, or polite (R. at 352, 485, 580).

Plaintiff also asserts that ALJ Paige erred when analyzing effects of Plaintiff’s physical

impairments at the second part of the credibility determination. (ECF No. 14, at PageID # 724–

25.) But with regard to Plaintiff’s physical impairments, ALJ Paige explained that Plaintiff

routinely presented with insignificant musculoskeletal symptoms. (R. at 22.) Substantial

evidence supports that explanation. Medical records noted that Plaintiff only had lumbar

paraspinal “tenderness” with palpitation, and that seated slump tests were only “mildly positive

bilaterally.” (R. at 338, 384, 398, 400, 401, 402, 413, 417, 418, 419.) ALJ Paige also noted that

Plaintiff also routinely presented with full strength and range of motion in her back and

extremities. (R. at 22.) The record also supports that determination. Medical examinations

routinely found that Plaintiff’s upper and lower extremities were symmetrical in appearance and

strength (R. at 326, 370, 441, 446, 450, 454, 458, 474), and a number of examinations found that

Plaintiff had normal ranges of motion (R. at 393, 522, 546, 582, 616). ALJ Paige further noted

that Plaintiff routinely presented with no edema. (R. at 22.) The record also reflects the accuracy

of that statement. (R. at 310, 314, 322, 326, 330, 333, 370, 441, 446, 450, 454, 458, 466, 470,

474, 616). ALJ Paige noted that Plaintiff’s back impairments were described as stable. (R. at

22.) The record reflects that on March 9, 2017, Plaintiff’s degenerative disc disease was

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described as “stable;” on December 19, 2017, it was described as “chronic” but “mild” (R. at

453). ALJ Paige further noted that Plaintiff reported that her medication helped “take the edge

off,” helped with her “quality of life,” and left her able to perform her daily activities. (R. at 22.)

Again, that accurately reflects evidence that exists in the record. (R. at 400, 417, 398.)

Other objective evidence lends support to ALJ Paige’s determination that Plaintiff’s

physical impairments were not disabling. For instance, an MRI on October 16, 2016, revealed

mild scoliosis, a mild chronic appearing T12 compression fracture, and mild degenerative

changes and disc abnormalities, but no dominant disc protrusions or high-grade stenosis. (R. at

348.) X-rays of Plaintiff’s hips and pelvis on August 15, 2017, showed that Plaintiff’s lower

lumbar spine was normal in appearance. (R. at 528, 529.) In short, the record evidence supports

ALJ Paige’s assessment of the severity of Plaintiff’s physical symptoms.

Plaintiff contends that ALJ Paige “misquoted” medical records when determining that her

physical symptoms were not disabling. (ECF No. 14, at Page ID # 724.)6 It is clear, however,

that the record evidence cited by ALJ Paige supported some of her determinations about

Plaintiff’s musculoskeletal symptoms even if each piece of cited evidence did not support every

one of her determinations. ALJ Paige’s discussion made a logical bridge between the record

evidence and her subjective symptom analysis such that the Court can follow her reasoning. That

is all that is required.

6 Plaintiff further notes that ALJ Paige erred by citing to pages 43, 67, 103, and 107 in Exhibit

B11F because that Exhibit only has 42 pages. (ECF No. 14, at Page ID # 724.) It appears that

ALJ Paige intended to cite those pages in Exhibit B12F. But such typographical errors do not

undermine ALJ Paige’s determinations or impair this Court’s ability to review them.

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Plaintiff also alleges that ALJ Paige erred by failing to discuss contrary evidence including

abnormal physical examination findings. (ECF No. 14, at PageID # 724–25.) It is well

established, however, that an ALJ is not required to “discuss every piece of evidence in the record

to substantiate [her] decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 (6th Cir.

2016) (citing Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)); see also

Dykes ex rel. Brymer v. Barnhart, 112 F. App’x 463, 467–68 (6th Cir. 2004) (“Although required

to develop the record fully and fairly, an ALJ is not required to discuss all the evidence submitted,

and an ALJ’s failure to cite specific evidence does not indicate that it was not considered.”

(citations omitted)). The Sixth Circuit has further explained that,

[a]n ALJ can consider all the evidence without directly addressing in his written decision

every piece of evidence submitted by a party. Nor must an ALJ make explicit credibility

findings as to each bit of conflicting testimony, so long as his factual findings as a whole

show that he implicitly resolved such conflicts.

Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (quoting Loral Defense

Systems–Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999) (citations and internal quotation

marks omitted)). Although ALJ Paige did not specifically address every piece of evidence about

Plaintiff’s physical symptoms in the record, her determination indicates that she considered the

record as a whole. Moreover, ALJ Paige incorporated into Plaintiff’s RFC the physical

limitations that were opined by the state agency reviewers, thus demonstrating that she did not

completely ignore evidence that Plaintiff’s physical impairments caused her some limitations. (R.

at 21, 23, 113–14, 129–31.)

Plaintiff contends that ALJ Paige erred by considering her daily functioning and

determining that it was “less limited than one would reasonably expect, considering the scope and

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severity of her allegations.” (ECF No. 14, at Page ID # 725 (quoting R. at 22).) Plaintiff

essentially asserts that ALJ Paige mischaracterized Plaintiff’s reports about the extent of her daily

activities and ignored Plaintiff’s hearing testimony about the same. (Id.) The Undersigned is not

persuaded. ALJ Paige summarized Plaintiff’s statements to the agency and the relevant hearing

testimony about how her daily activities were limited. ALJ Paige wrote:

The [Plaintiff] complains of physical pain, depression, respiratory issues, and

difficulties with focus, memory, and concentration, all of which affect her abilities

to lift, squat, bend, stand, reach, walk, sit, kneel, and climb stairs (Exhibits B3E/5;

Hearing Testimony (HT)). She reported being unable to lift more than ten pounds,

walk more than 30 feet without before needing to rest and cannot bend or squat at

all (Exhibit B3E/l, 5). She cannot pay attention for more than five minutes at one

time, does not finish what she starts, has difficulty with both written and spoken

instructions, and cannot adequately handle changes in routine or stressful situations

(Id. at 5,7) . . . .

(R. at 22.) ALJ Paige also discussed other evidence of about Plaintiff’s activities including that

she prepared meals, cared for her children, performed household chores, shopped, handled

money, and drove. (R. at 22–23.) The record reflects that Plaintiff reported engaging in such

activities. (R. at 257, 258, 352.) In short, ALJ Paige considered and weighed conflicting

evidence about the extent of Plaintiff’s activities and determined that Plaintiff’s subjective

complaints did not warrant further restrictions in her RFC. (R. at 23.) It was proper for ALJ Paige

to weigh conflicting evidence. Accordingly, the Undersigned finds that ALJ Paige did not err

when considering Plaintiff’s activities of daily living. See Walters v. Comm’r of Soc. Sec., 127 F.

3d 525, 532 (6th Cir. 1997) (“An ALJ may also consider household and social activities engaged

in by the claimant when evaluating a claimant’s assertions of pain or ailments.”)

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For all these reasons, the Court does not find that the ALJ committed reversible error

when performing the subjective symptom analysis/ credibility determination. Plaintiff’s claim to

the contrary lacks merit.

C. The Hypothetical Posed to the VE

Plaintiff also appears to challenge ALJ Paige’s reliance on the VE’s testimony at step five

because the hypothetical question she posed to the VE did not accurately portray the RFC that she

assessed for Plaintiff. (ECF No. 14, at PageID # 727–27; ECF No. 20, at PageID # 763.) To the

extent Plaintiff makes such a challenge, her claim lacks merit.7

At step five, an ALJ determines if a claimant can perform work that exists in the national

economy. An ALJ may rely on a VE’s testimony indicating that a claimant can perform a number

of jobs in the national economy despite his limitations “[s]o long as the hypothetical is accurate.”

Branon v. Comm’r of Soc. Sec., 539 F. App’x 675, 680 (6th Cir. 2013). See also Dyer v. Soc. Sec.

Admin., 568 F. App’x 422, 428–29 (6th Cir. 2014) (“A vocational expert’s testimony in response

to an accurate hypothetical represents substantial evidence that the claimant has the vocational

7 In her Statement of Errors, Plaintiff alleged that because ALJ Paige’s RFC determination was

not supported by the record, ALJ Paige could not rely on the testimony that she elicited from the

VE in response to her hypothetical questions. (ECF No. 14, at PageID # 726–27.) In her Reply,

Plaintiff alleges that the hypothetical question posed by ALJ Paige to the VE did not accurately

portray the RFC that ALJ Paige ultimately assessed. (ECF No. 20, at PageID # 763.) These are

different contentions or error. It is not permissible for a party to raise a new issue in a Reply.

See, e.g., Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008) (issues raised for first

time in reply briefs are waived); Hamilton v. Astrue, No. 1:09CV260, 2010 WL 1032646, at *6

(N.D. Ohio Mar.17, 2010) (“A reply brief is a plaintiff’s opportunity to respond to arguments

raised for the first time in the defendant’s brief. A plaintiff cannot wait until the reply brief

to make new arguments, thus effectively depriving the opposing party of the opportunity to

expose the weaknesses of plaintiff's arguments.”). Accordingly, to the extent Plaintiff is making

this latter argument, it was waived when it was not included in the Statement of Errors.

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qualifications to perform specific jobs.”) (internal citations omitted) (emphasis added); Cooper v.

Comm’r of Soc. Sec., 217 F. App’x 450, 453 (6th Cir. 2007) (“[T]he ALJ must include in

the question an accurate calculation of the claimant’s residual functional capacity—i.e., a

description of what the claimant can and cannot do.”) (internal citations and quotations

omitted); Felisky v. Bowen, 35 F.3d 1027, 1035–36 (“[F]or a response to a hypothetical

question to constitute substantial evidence, each element of the hypothetical must accurately

describe the claimant”) (internal citation omitted). Nevertheless, an ALJ’s error in formulating a

hypothetical question can be harmless if the hypothetical posed to the VE is more favorable to the

claimant than the ALJ’s RFC ultimate determination. Pasco v. Comm’r of Soc. Sec., 137 F.

App’x 828, 845 (6th Cir. 2005); McVey v. Comm'r of Soc. Sec., No. 2:10–cv–231, 2011 WL

7568603, at *8 (E.D. Tenn. Oct. 18, 2011), report and recommendation adopted, 2012 WL

966484 (E.D. Tenn. Mar. 21, 2012) (“An error in formulating the hypothetical question can be

harmless if the hypothetical is more favorable to the claimant than the ALJ’s RFC determination.)

(internal citation omitted).

Such is the case here. ALJ Paige asked the VE if work existed in the national economy

that could be performed by a hypothetical claimant who had the same age, education, and

physical RFC as Plaintiff, but who also had additional mental limitations that ALJ Paige did not

incorporate into Plaintiff’s RFC (i.e., a limitation to simple tasks and instructions and the ability

to concentrate for two-hour segments over an eight-hour work period). (R. at 59–60.) The VE

testified that such an individual could perform the jobs of sorter, packer, and assembler and that

those jobs existed in significant numbers in the national economy. (R. at 60.) ALJ Paige then

relied on that testimony to determine that Plaintiff could perform other work that existed in

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significant numbers. (R. at 24–25.) Because the hypothetical question posed to the VE was more

restrictive or more favorable to Plaintiff than ALJ Paige’s ultimate RFC assessment, ALJ Paige’s

error when posing the hypothetical question to the VE was harmless. See Bailey v. Saul, No. 20-

90-DLB, 2021 WL 2447082, at * 7 (E.D. Ky. June 15, 2021) (finding that “[b]ecause the RFC

proposed to the VE as more favorable to Plaintiff than the RFC ultimately assigned in the hearing

decision, no reversible error exist[ed].”); Alvarado v. Comm’r of Soc. Sec., No. 20-11717, 2021

WL 1398229, at * 15 (E.D. Mich. Feb. 18, 2021) (finding that “[i]t stands to reason that if a more

restrictive hypothetical inquiry produces a substantial number of jobs in the national economy,

than a lesser restrictive RFC would not reduce the same.”), report and recommendation adopted,

2021 WL 138770 (E.D. Mich. April 13, 2021); Dell v. Comm’r of Soc. Sec., No. 3:18CV1069,

2019 WL 3068614, at * 10 (N.D. Ohio July 12, 2019) (finding harmless error where ALJ asked

VE about an individual who could not climb ropes or stairs but then determined that plaintiff

could not climb ropes, ladders, or scaffolds; question to VE was more restrictive than the ALJ’s

RFC assessment); Allen v. Colvin, No. 3:10–cv–1024, 2014 WL 1775564, at *25 (M.D. Tenn.

Apr. 29, 2014) (“Because the plaintiff had an RFC that was greater than that required to perform

sedentary work, the ALJ was permitted to rely on the VE's testimony regarding the availability of

sedentary jobs.”). See also McVey v. Comm’r of Soc. Sec., No. 2:10-CV-231, 2012 WL 966484,

at *3 (E.D. Tenn. Mar. 21, 2012) (“contrary to Plaintiff’s argument that the ALJ left out relevant

limitations in posing his hypothetical questions, it appears the ALJ actually imposed more,

presumably making the hypotheticals even more favorable to Plaintiff than his RFC

determination. After reviewing the record, this Court concludes the ALJ properly determined

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Plaintiff had the RFC to perform her past relevant work and his determination was supported by

substantial evidence.”) Accordingly, the Undersigned finds that any error was harmless and does

not warrant remand.

VII. CONCLUSION

In sum, from a review of the record as a whole, the Undersigned concludes that ALJ Paige

did not commit reversible error when denying Plaintiff’s application for benefits. Based on the

foregoing, it is therefore, 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

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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

(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)).

January 3, 2022 s/ Elizabeth A. Preston Deavers

Elizabeth A. Preston Deavers

United States Magistrate Judge

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