The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARILYN S.,
Plaintiff,
v. Civil Action 2:21-cv-3598
Magistrate Judge Kimberly A. Jolson
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
Plaintiff, Marilyn S., brings this action under 42 U.S.C. § 405(g) seeking review of a final
decision of the Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”). The parties in this matter consented to the Undersigned
pursuant to 28 U.S.C. § 636(c). (Docs. 6, 7). For the reasons set forth below, the Commissioner’s
non-disability determination is AFFIRMED and this case is DISMISSED.
I. BACKGROUND
Plaintiff protectively filed her application for DIB on December 27, 2018, alleging that she
was disabled beginning December 3, 2018, due to type 2 diabetes mellitus; neuropathy in her
hands, feet, and legs caused by diabetes mellitus; heart problems; and hypertension. (Tr. 178–83,
196). After her application was denied initially and on reconsideration, the Administrative Law
Judge (the “ALJ”) held a video hearing on April 6, 2020. (Tr. 34–73). The ALJ denied benefits
in a written decision on May 7, 2020. (Tr. 12–33). That became the final decision of the
Commissioner when the Appeals Council denied review. (Tr. 1–6).
Plaintiff filed the instant case seeking a review of the Commissioner’s decision on June 15,
2021 (Doc. 1), and the Commissioner filed the administrative record on August 26, 2021 (Doc.
10). The matter has been briefed and is ripe for consideration. (Docs. 15, 16, 17).
A. Relevant Hearing Testimony
The ALJ summarized the testimony from Plaintiff’s hearing:
[Plaintiff] testified that she lives in a house with her husband who works. She
denied any income since the alleged onset date. She said she has a driver’s license
and four years of college without any history of special education. [Plaintiff]
alleged seeing a doctor for her knees. She said that her worst area is her shoulders,
back and arms worsening over the past five years. She said she takes 800 mg. of
ibuprofen and Tylenol and had injections between her shoulder blades, which are
not reflected in the record. She said her medication dulls the pain, but the injections
do not help. She was asked why she continues them if they are not helpful and said
her treating doctor told her this treatment could take time before providing relief.
She denied any injection treatments in her back. She denied surgeries on the
affected areas. She said she treated with physical therapy at the Wellness Center,
and uses braces on her knees and foot sometimes, that she picked up at a store. She
denied any prescribed cane, saying she bought one after her doctor recommended
it. She uses it when out in the yard. She said she has difficulty gripping things, but
can open a can. She denied any mental health treatment.
[Plaintiff] testified that her back pain radiates into her hips and it is difficult for her
to stand after sitting. She alleged that her shoulder pain radiates to her neck. She
said that her left shoulder is worse than the right. She alleges difficulty with grip
and needs help opening bottles and getting in and out of the tub. [Plaintiff] testified
to difficulty reaching above waist level but said if she really pushes herself, she can
reach once or twice. [Plaintiff] testified that she can sit only 25 minutes due to
bursitis, walk 40-50 feet at a slow rate, and lift 10-15 pounds from the floor or table.
She testified that she cannot lift the laundry, but can transfer clothes from the
washer to the drier. She can make simple meals such as potatoes, spaghetti, pizza,
biscuits and gravy, and fried eggs. She can use the broom, but her husband runs the
vacuum. She can push the cart at the grocery store and she can reach only waist
level items. For the last couple of years[,] she always rides with her husband. She
colors and does word finds. She uses her phone to go on Facebook.
(Tr. 19–20).
B. Relevant Medical Evidence
The ALJ summarized the relevant medical records as follows:
[Plaintiff] established with Dr. Damron for tachycardia on 5/31/17. She was advised
to undergo a stress test and echocardiogram and wear a 30-day event monitor. She
returned much later on a referral by Dr. Simon on 11/19/18 for heart palpitations,
chest pain and shortness of breath for the last few weeks. Dr. Damron again ordered
an echocardiogram and stress test. Exam findings were unremarkable. [Plaintiff]
was reporting 0/10 pain on 11/12/18 just prior to her alleged onset date. She had
run into issues with her prescription for Metoprolol for palpitations. She denied any
palpitations but complained of fatigue. Objective exam findings were normal with
some medication dosages changed. Cardiac testing had been negative (a normal
LVEF of 70% and otherwise mild findings, no evidence of ischemia or prior
myocardial infarction (4F/94-99). She was prescribed a glucometer and test strips
for her diabetes mellitus. She needed a work excuse (4F).
[Plaintiff]’s 2/19 follow-up indicated normal exam findings, a normal stress test,
and echocardiogram revealing a normal LVEF of 70%, with no events on loop
recorder, and heart palpitations only occasionally and mostly controlled with
metoprolol. Her chest pain was resolved. Her hyperlipidemia was not yet at goal of
under 100, with reading of 111. She had 0/10 pain. She was advised to return in 3-
4 months (1F, 2F). On 5/17/19, [Plaintiff] followed up with Dr. Gladis, reporting
0/10 pain. She denied trouble walking, dizziness, forgetfulness, weakness, and said
she was doing well without any chest pain or shortness of breath. She said she had
only occasional heart palpitations overall controlled with Lopressor. Her chest pain
was resolved. She denied any pain, angina and other heart related symptoms. She
denied symptomology from other systems. She was comfortable with normal
cardiovascular findings, respiratory findings, extremity findings, musculoskeletal
findings and psychiatric findings. She was found to have stable angina pectoris,
heart palpitations and hyperlipidemia (111). Her testing was reviewed and was
normal with [Plaintiff] advised to continue treatment and return in 4 months
(11F/134-141).
[Plaintiff] again reported fatigue on 2/14/19, citing loss of her job, but also
complained of stiff knees, cold weather stiffening her hip and a fall, but reported
no pain. Her body mass index was 42.8 kg/m2. She was admittedly noncompliant
with her ordered diabetes mellitus diet. She was comfortable and in no acute
distress. Exam findings were again normal. Despite full strength, normal muscle
tone and strength, and normal gait, and no imaging of her knee, she was assessed
with degenerative joint disease of the knee. Imaging was ordered of her left hip and
both knees, and she was advised to have physical therapy for these areas (4F).
Imaging from 3/8/19 revealed a normal left hip, thus degenerative joint disease of
the left hip is not supported (5F/8). [Plaintiff] had only minimal degenerative
changes in her lumbar spine with no narrowing and unremarkable facet joints. Her
knees showed minimal degenerative changes (10F/8). Thus, the imaging is not that
remarkable and consistent with the many normal exam findings, and inconsistent
with the extent of [Plaintiff]’s disability reports.
[Plaintiff] was noted to have diabetes mellitus without complications, but she
needed better control with A1C of 7.6 as of 4/22/19 (4F/71). However, [Plaintiff]
actually had a worse A1C number of 8.0% as of 7/16/19 (10F/3) and worse at 10%
as of 1/27/20 (10F/289). [Plaintiff] admitted to continued noncompliance with her
diabetic diet and was not working on weight loss as recommended.
[Plaintiff] complained of left foot pain for three weeks with imaging on 12/30/19
revealing only mild diffuse degenerative changes. Recent complaints such as these
involving her left foot fail to meet the durational requirements (10F/190). She was
referred to a podiatrist for a calcaneal spur of the left foot on 3/16/20 revealed on
imaging (8F/453). She was again referred to physical therapy for bilateral hip pain
thought to be bilateral hip bursitis (10F/245). She was referred to orthopedics for
her knee pain complaints on 5/20/19, 6/11/19, and thereafter, but had yet to follow
through as of the hearing, which suggests more tolerable symptomology than
alleged (11F/222, 268).
On 7/12/19, she complained of 8/10 bilateral hip pain, but denied falls, trouble
walking, weakness and numbness. She said this hip pain is mostly noticeable when
she lays on her back, (which would not affect most work activity). She did allege
right foot numbness but with no findings supportive of any abnormalities. She
reported taking Tylenol arthritis 650 mg. for joint pain without relief. Otherwise,
she indicated doing well with no chest pain, shortness of breath or other issues. She
was comfortable in no acute distress with normal detailed findings including
respiratory, cardiovascular, gastrointestinal, musculoskeletal (normal gait, normal
extremities, normal muscle strength and tone, normal range of motion) and normal
neurological and skin findings. X-rays of both hips and the lumbar spine were
ordered, along with physical therapy, weight loss (again) and a uric acid level. Her
blood pressure was normal at 122/80 with normal testing. Her A1C was 7.6%.
[Plaintiff] was advised to lose weight, continue medications and follow a diabetic
diet. She was advised to follow a low-fat diet plan and lose weight for her
hyperlipidemia which was not at goal. While she had iron deficiency anemia[,] she
was asymptomatic (11F/121-122). [Plaintiff] reported 0/10 pain on 7/23/19
(11F/101).
[Plaintiff] returned to Dr. Simon on 8/9/19, reporting that her (long overdue)
physical therapy was helping with her hip stiffness. She reported that she had been
diagnosed with hip bursitis. Pain was a 6/10 that day. She reported improvement
and denied chest pain, palpitations, shortness of breath, joint pain, joint swelling
and limited range of motion, focal weakness, bruising or bleeding tendencies. She
was ambulatory and not in any acute distress and comfortable. Objective findings
were normal including detailed findings as to her heart, neck, and musculoskeletal
systems. The doctor changed his previous possible diagnosis of hip degenerative
joint disease to hip bursitis (bilateral), noting no objective abnormalities. He also
included hypertension and type II diabetes mellitus without complication (11F/87-
96).
***
On 10/28/19, [Plaintiff] saw Dr. Damron and complained of unusual heart racing
without chest pain or shortness of breath. Her body mass index was still high at
43.7 kg/m2, her pulse oximetry was 98% on room air and her blood pressure was
elevated at 162/100. She again reported pain at a 0/10. There was a sleep apnea
questionnaire indicating that she felt tired during the daytime. As for her fall risk,
once again she denied trouble walking, dizziness, forgetfulness, weakness and
numbness, with “walking” listed as her physical exercise. Other than her
palpitations, she denied other symptoms from all other systems. Detailed exam
findings were all normal. [Plaintiff] was prescribed a new medication for her
hypertension. As for her electrocardiogram, she was found to have supraventricular
tachycardia and unstable angina pectoris, with the possibility of a pacemaker in the
near future due to bradycardia. Her chest pain was still resolved with her last stress
test normal and her last echocardiogram revealing a LVEF of 70% (11F/76-82).
[Plaintiff] has yet to require a pacemaker.
[Plaintiff] followed up on her diabetes mellitus, hypertension, hyperlipidemia and
Vitamin D deficiency on 11/4/19, reporting a 0/10 on her pain scale. She was
complaining of a sharp pain on the left side of her head when she abruptly turned
it. She was treating with Cefdinir for a urinary tract infection. She reported
dizziness, trouble walking and a fall without explanation.
[Plaintiff]’s A1C as up from 9.2% to 10%, with [Plaintiff] saying she tries to avoid
carbohydrates. She was not at goal for her hyperlipidemia or her vitamin D
deficiency. She was also treated for anemia with an iron supplement. She was
ambulatory and in no acute distress with all normal physical findings. As for her
musculoskeletal system, she had intact range of motion, strength and tone. She was
noted to be asymptomatic with regard to her supraventricular tachycardia/history
of bradycardia. She was advised that she needs to be more compliant with her
diabetic diet, check sugars at home and do a log, retest A1C in three months, and
lose weight and exercise. She was to limit her salt intake and eat a low-fat diet for
her hypertension and hyperlipidemia. She was to continue her supplements for
anemia and Vitamin D deficiency (11F/53-62).
[Plaintiff] was following up on her diabetes mellitus on 12/13/19 and complained
of pain in her left foot at 3/10, with no foot issue or pain at her last visit.
“Otherwise[,] she indicates she is doing well.” She had improved her blood pressure
at home, and was not taking the prescribed Lopressor. She had improved her A1C
from 9.2% down to 8.8%. Her blood pressure was improved to 118/70 and her
hyperlipidemia was improved from 119 to 94. She was following with another
doctor for her anemia and on iron supplements only. Her only musculoskeletal
complaints were her left foot, with [Plaintiff] ambulatory and not in any acute
distress and comfortable. Her musculoskeletal exam was objectively normal
including full strength, intact range of motion, and normal tone. She had subjective
tenderness on her left lateral aspect of her foot. An x-ray was ordered (11F/38-47).
[Plaintiff] was subsequently referred to a podiatrist for a calcaneal spur of the left
foot (11F/28).
[Plaintiff] saw Dr. Damron on 12/30/19 for evaluation for a pacemaker. She denied
chest pain and shortness of breath and stated she h[a]s been doing well, without any
new episodes of supraventricular tachycardia (SVT) and resolved chest pain. She
denied all heart related symptomology. She had 0/10 pain. Her diagnoses were
SVT, essential hypertension and stable angina pectoris. Two events were noted
from 10/20/19 with her loop recorder adjusted. She was advised to monitor her
heart rate and blood pressure to get better control (11F/29-36). At her 2/10/20
follow-up, [Plaintiff] noted just 2 episodes of elevated blood pressure and some
shortness of breath with chest tightness and no energy. Pain was 0/10. She reported
no limitations in dressing or in her activities of daily living. She denied back pain,
muscle weakness, myalgias, headaches, dizziness, vision changes, numbness,
tingling, weakness, changes in walking, incoordination, memory loss and speech
problems. Objective exam findings were normal. She was given a medication to
take with elevated blood pressure; her angina pectoris was still stable (11F/12-19).
Dr. Damron declined to complete the disability form presented by [Plaintiff],
indicating that her primary care physician needed to complete this form. No
consideration has been made of Dr. Damron’s denial to complete the form.
On 2/17/20, [Plaintiff] had another kidney abscess requiring drainage, the second
time this happened. Pain was at 0/10. She was noted to complain of bilateral hip
and knee pain, shoulder pain and pain in her feet. She alleged difficulty ambulating
and indicated she was unable to stand on her feet for longer than 5[-]minute without
experiencing severe pain. However, the left foot x-ray had basically revealed a large
posterior calcaneal spur, and her knee x-rays showed only degenerative changes.
Very notably, she was “noncompliant with diabetic diet.” Her physical activity was
still listed as walking, and she was noted to be ambulatory without any acute
distress. Detailed exam findings were largely normal other than obesity. She did
have crepitus in the knees, the first time this was documented, and tenderness in the
left heel, but with normal range of motion, strength and tone in all extremities. The
summary simply repeated [Plaintiff]’s reports of limited ambulating and standing
ability. She was strongly encouraged to lose weight and was “not making enough
effort to do so due to noncompliance with diet.” Her A1C had climbed to 10%, her
hyperlipidemia increased to 109, and her blood pressure was 132/70, with
[Plaintiff] to limit salt intake, but her anemia and vitamin D levels were improved
(11F/1-10).
(Tr. 20–24).
[Plaintiff] does have a BMI of 43.2 kg/m2 (11F) fluctuating little, although she
reports exercising by walking (11F/12). She has type II diabetes with a fluctuating
A1C up to 10.0, but the evidence indicates she is not compliant with diet and with
more effort had managed to reduce this number for a time. She also alleges bilateral
hip, knee, shoulder and foot pain. However, her physical examinations have been
essentially normal (11F/7). She does have a calcaneal spur on her left foot, and
bursitis in her hips (11F/87), but there is no medical support indicating significant
problems with standing and walking, with an intact gait on exam, full strength,
normal range of motion and intact sensation at exams. [Plaintiff] has imaging of
her lumbar spine indicating minimal degenerative changes (8F/86), and although
she testified to pain in her shoulders, arms and hands, the evidence does not suggest
significant limitations in function. [Plaintiff]’s angina was considered stable. She
has SVT episodes but has not required more than conservative treatment (11F/80).
There is no evidence that such a condition has impacted severely on her daily
functioning. She also had an abscess on her kidney that had to be drained (11F), but
there is no evidence of kidney damage. There is mention of recurrent procedures to
drain the abscess on two occasions, but there is no evidence that these episodes are
occurring so frequently that she is incapable of competitive employment. The
imaging and clinical findings do not support [Plaintiff]’s allegations of a totally
disabling condition.
(Tr. 25).
C. The ALJ’s Decision
The ALJ found that Plaintiff meets the insured status requirement through December 31,
2023, and has not engaged in substantial gainful employment since December 3, 2018. (Tr. 17).
The ALJ determined that Plaintiff has the following severe impairments: obesity, diabetes mellitus
type II, osteoarthritis/degenerative changes in knees and shoulders, lumbar degenerative disc
disease, supraventricular tachycardia. (Id.). Yet, the ALJ found that the Plaintiff does not have an
impairment or combination of impairments that meets or medically equals the severity of one of
the listed impairments. (Tr. 18).
As to Plaintiff’s residual functional capacity (“RFC”), the ALJ concluded that:
[Plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) except no climbing of ladders, ropes, and scaffolds;
occasional climbing of ramps and stairs; occasional crawling, crouching, and
kneeling; avoid all exposure to hazards, including unprotected heights and
unprotected hazardous machinery; avoid concentrated exposure to temperature
extremes; frequent (but not constant) handling and fingering bilaterally; only
occasional overhead reaching bilaterally.
(Tr. 19).
Upon “careful consideration of the evidence,” the ALJ found that Plaintiff’s “statements
about the intensity, persistence, and limiting effects of her symptoms, they are inconsistent with
her conservative treatment history, objective findings on exam, testing and imaging, and her actual
reports at visits and reports of treating providers in treatment notes.” (Tr. 20).
Relying on the vocational expert’s (“VE”) testimony, the ALJ concluded that Plaintiff is
capable of performing her past relevant work as a newspaper carrier, a fund raiser II, a recreation
aide and a motor assembler. This work does not require the performance of work-related activities
precluded by Plaintiff’s RFC. (Tr. 26). She therefore concluded that Plaintiff was not disabled
within the meaning of the Social Security Act, at any time since December 3, 2018. (Tr. 29).
II. STANDARD OF REVIEW
The Court’s review “is limited to determining whether the Commissioner’s decision is
supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).
“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting
Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).
“After the Appeals Council reviews the ALJ’s decision, the determination of the council
becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.
Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)
(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538
(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence,
it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42
U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).
III. DISCUSSION
In her Statement of Errors, Plaintiff contends that: (1) the ALJ failed to properly evaluate
the opinion from treating source, Dr. Simon; (2) the ALJ erred in her symptom severity evaluation,
and (3) the ALJ failed to carry the Step Five burden. (Docs. 15 and 17).
A. Medical Opinion
A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1) (2012). A claimant’s RFC assessment must be based on
all the relevant evidence in his or her case file. Id. Plaintiff filed her application after May 23,
2017, so it is governed by the new regulations describing how evidence is categorized, considered,
and articulated when an RFC is assessed. See 20 C.F.R. §§ 404.1513(a), 404.1520c, 416.913(a),
416.920c (2017). The governing regulations describe five different categories of evidence: (1)
objective medical evidence, (2) medical opinions, (3) other medical evidence, (4) evidence from
nonmedical sources, and (5) prior administrative medical findings.1 20 C.F.R. §§ 404.1513(a)(1)–
(5); 416.913(a)(1)–(5). Regarding two of these categories—medical opinions and prior
administrative findings—an ALJ is not required to “defer or give any specific evidentiary weight,
including controlling weight, to any medical opinion(s) or prior administrative finding(s) including
those from the claimant’s medical sources.” 20 C.F.R. §§ 404.1520c(a); 416.920c(a). Instead, an
ALJ must use the following factors when considering medical opinions or administrative findings:
(1) “[s]upportability”; (2) “[c]onsistency”; (3) “[r]elationship with the claimant”; (4)
“[s]pecialization”; and (5) other factors, such as “evidence showing a medical source has
1 The regulations define prior administrative findings:
A prior administrative finding is a finding, other than the ultimate determination about whether you
are disabled, about a medical issue made by our Federal and State agency medical and
psychological consultants at a prior level of review (see § 416.1400) in your current claim based
on their review of the evidence in your case record . . .
§§ 404.1513(a)(2), (5); 416.913(a)(2), (5).
familiarity with the other evidence in the claim or an understanding of [the SSA’s] disability
programs policies and evidentiary requirements.” §§ 404.1520c(c)(1)–(5); 416.920c(c)(1)–(5).
Supportability and consistency are the most important of the five factors, and the ALJ must explain
how they were considered. §§ 404.1520c(b)(2); 416.920c(b)(2). When evaluating supportability,
the more relevant the objective medical evidence and supporting explanations presented by a
medical source are to support the medical opinion, the more persuasive the ALJ should find the
medical opinion. 20 C.F.R. § 416.920c(c)(1). When evaluating consistency, the more consistent
a medical opinion is with the evidence from other medical sources and nonmedical sources in the
claim, the more persuasive the ALJ should find the medical opinion. 20 C.F.R. § 416.920c(c)(2).
An ALJ may discuss how he or she evaluated the other factors but is not generally required to do
so. Id. Thus, the role of the ALJ is to articulate how they considered medical opinions and how
persuasive they found the medical opinions to be. Holston v. Saul, No. 1:20-CV-1001, 2021 WL
1877173, at *11 (N.D. Ohio Apr. 20, 2021), report and recommendation adopted, No. 1:20 CV
1001, 2021 WL 1863256 (N.D. Ohio May 10, 2021). The role of the Court is not to reweigh the
evidence, but to ensure the ALJ employed the proper legal standard by considering the factors and
supported the conclusion with substantial evidence. Id., at *14.
Here, Plaintiff alleges that the ALJ’s RFC determination is not supported by substantial
evidence because she failed to properly evaluate the opinion of Dr. Simon. (Doc. 15 at 5).
Specifically, Plaintiff says the ALJ did not properly discuss the supportability or consistency
factors when discounting Dr. Simon’s conclusion that she is disabled. (Id. at 4–6) (citing Tr. 1183–
86)).
The ALJ considered the opinion of Dr. Simon and ultimately found her opinion
unpersuasive. (Tr. 22, 24). Dr. Simon provided both a psychological conditions report (Tr. 722–
26) and a physical conditions report (Tr. 1183–86). The Court concludes that the ALJ’s assessment
of these opinions was not erroneous.
Psychological Conditions Report
Plaintiff saw Dr. Simon on August 9, 2019. (Tr. 22, 1581–90). The ALJ summarized the
medical visit notes as follows:
[Plaintiff’s] physical therapy was helping with her hip stiffness. She reported that
she had been diagnosed with hip bursitis. Pain was a 6/10 that day. She reported
improvement and denied chest pain, palpitations, shortness of breath, joint pain,
joint swelling and limited range of motion, focal weakness, bruising or bleeding
tendencies. She was ambulatory and not in any acute distress and comfortable.
Objective findings were normal including detailed findings as to her heart, neck,
and musculoskeletal systems. The doctor changed his previous possible diagnosis
of hip degenerative joint disease to hip bursitis (bilateral), noting no objective
abnormalities. He also included hypertension and type II diabetes mellitus without
complication.
(Tr. 22 (citing Tr. 1581–90)).
After this visit, Dr. Simon completed a psychological conditions disability form. (Tr. 22,
722–26). The ALJ correctly summarized that Dr. Simon indicated no mental impairment or
limitations due to mental issues. Yet, Dr. Simon indicated “attention and persistence limited to
less than 1 hour without explanation, and over four likely days missed per month due to
‘musculoskeletal impairment.’” (Id.). The ALJ found this opinion evidence to be unpersuasive
because it was unsupported by Dr. Simon’s own notes and was inconsistent with Plaintiff’s
treatment history, objective exam findings, testing, and imaging throughout the record.
For support, the ALJ went to the record. (Tr. 22). Notably, Dr. Simon indicated normal
mental status and no issues with attention or concentration. (Tr. 22, 1581–90). Thus, the ALJ
concluded, Dr. Simon’s opinion that Plaintiff’s attention and persistence is limited to less than 1
hour contradicts the treatment notes. Dr. Simon also indicated that Plaintiff is likely to miss over
four days per month due to musculoskeletal impairment. (Tr. 22, 726). Again, the ALJ found this
to be uncorroborated. First, the ALJ noted that this was supposed to be a mental evaluation and
this limitation is due to a physical condition. (Tr. 22). Even so, the ALJ still considered the
limitation and found it to be unsupported because the treatment notes indicate mild and normal
physical findings that included an “intact range of motion, normal strength, normal tone, no edema,
and intact gait.” (Id.). And, said the ALJ, Dr. Simon’s treatment of Plaintiff was “conservative.”
(Id.)
Upon independent review, the Court finds that the ALJ’s summary of the relevant record
to be accurate. Plaintiff indicated she did not have trouble walking (Tr. 1583), her physical therapy
was helping with her hip stiffness and pain (Tr. 1581, 1583), she complains of joint pain but denies
joint swelling or a limited range of motion (Tr. 1585), Dr. Simon indicated she ambulated normally
and was not in any acute distress (id.), she appeared comfortable (id.), musculoskeletal findings
were all normal (Tr. 1587), and her treatment plan included continued physical therapy for her hip
pain, weight loss, and medication for various conditions (Tr. 1589). The ALJ considered
supportability as required and concluded that the opinion was unsupported by the medical source.
Substantial evidence supports the ALJ’s conclusion.
Additionally, the ALJ concluded that this opinion was inconsistent with Plaintiff’s
treatment history, objective exam findings, and testing and imaging throughout the record. To
begin, Plaintiff has denied any mental health treatment. (Tr. 20). And Plaintiff’s statement of
error does not focus on mental health. (Doc. 15). Additionally, upon independent review, the
Court did not find mental health records. Thus, the ALJ’s conclusion that Dr. Simon’s opinion
that Plaintiff’s attention and persistence is limited to less than 1 hour is inconsistent with the record
is supported by substantial evidence.
The ALJ also found that Dr. Simon’s opinion that Plaintiff is likely to miss over four days
per month due to musculoskeletal impairment was inconsistent with the record. (Tr. 22, 726).
When evaluating consistency, the ALJ compared the opinion to evidence from other medical
sources and nonmedical sources in the claim. 20 C.F.R. § 416.920c(c)(2). The ALJ’s explanation
must be read in context with the decision as a whole, Carpenter v. Comm’r of Soc. Sec., No. 2:18-
CV-1250, 2019 WL 3315155, at *10 (S.D. Ohio July 24, 2019), report and recommendation
adopted, No. 2:18-CV-1250, 2019 WL 3753823 (S.D. Ohio Aug. 8, 2019), and afford the
reviewing court an opportunity to review to ensure the decision is supported by substantial
evidence, Fiktus v. Kihakazi, No. 1:20CV1689, 2021 WL 5567866, at *9 (N.D. Ohio July 29,
2021), report and recommendation adopted sub nom. Fiktus v. Comm’r of Soc. Sec., No. 1:20-
CV-01689, 2021 WL 5566805 (N.D. Ohio Nov. 29, 2021). This is a low bar. Id.
The ALJ’s opinion satisfies the standard. The ALJ noted that Plaintiff had normal
musculoskeletal findings, this includes a normal gait, normal extremities, normal muscle strength
and tone, normal range of motion. (Tr. 21, 1613, 23, 1553, 1537–38). Plaintiff was ambulatory
(Tr. 23, 1552, 1536) and denied trouble walking, weakness, or numbness (Tr. 21, 1608–27, 22,
1570–75, 23, 1506–13). Additionally, the ALJ considered Plaintiff’s foot, knee, and hip pain
throughout the opinion (Tr. 19–26). For example, the ALJ stated:
The claimant complained of left foot pain for three weeks with imaging on 12/30/19
revealing only mild diffuse degenerative changes. Recent complaints such as these
involving her left foot fail to meet the durational requirements (Tr. 1377). She was
referred to a podiatrist for a calcaneal spur of the left foot on 3/16/20 revealed on
imaging (Tr. 1180). She was again referred to physical therapy for bilateral hip pain
thought to be bilateral hip bursitis (Tr. 1432). She was referred to orthopedics for
her knee pain complaints on 5/20/19, 6/11/19, and thereafter, but had yet to follow
through as of the hearing, which suggests more tolerable symptomology than
alleged (Tr. 1716, 1762).
(Tr. 21).
She does have a calcaneal spur on her left foot, and bursitis in her hips (Tr. 1581),
but there is no medical support indicating significant problems with standing and
walking, with an intact gait on exam, full strength, normal range of motion and
intact sensation at exams. The claimant has imaging of her lumbar spine indicating
minimal degenerative changes (Tr. 813), and although she testified to pain in her
shoulders, arms and hands, the evidence does not suggest significant limitations in
function.
(Tr. 25). Thus, the ALJ’s conclusion that Dr. Simon’s opinion regarding Plaintiff’s
musculoskeletal impairment was inconsistent with the record is supported by substantial evidence.
Plaintiff argues that the ALJ should have considered her joint pain, stiffness, trouble
walking, her difficulty ambulating, her inability to stand more than five minutes, degenerative
changes in her knees shown by x-ray. (Doc. 15 (citing Tr. 1183, 483, 1497)). Notably, much of
what Plaintiff cites are notes in the record of Plaintiff’s subjective complaints. Further, as
explained above, the ALJ adequately considered the record regarding such complaints. And,
“[e]ven if the evidence could also support another conclusion, the decision of the Administrative
Law Judge must stand if the evidence could reasonably support the conclusion reached.” Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389–90 (6th Cir. 1999).
Physical Conditions Report
Plaintiff saw Dr. Simon on February 17, 2020. (Tr. 24, Tr. 1495–1504). Dr. Simon also
completed a physical conditions disability form on the same day. (Tr. 24, 1183–86). Dr. Simon’s
opinion was that Plaintiff would be off task 25% of the workday, she would be able to pay attention
less than five minutes due to severe pain in hips and knees, she only can lift or carry less than ten
pounds, her legs must be elevated due to edema, she needs a cane, limited reaching, handling,
fingering, feeling, and push pull rarely due to osteoarthritis, and rare use of foot controls due to
foot pain. (Id.). The ALJ found this opinion evidence to be unpersuasive because it was
unsupported by Dr. Simon’s own notes and was inconsistent with Plaintiff’s reports of doing well
overall, compliance issues, and her very conservative treatment history. (Tr. 24).
The ALJ concluded that Dr. Simon’s opinion is unsupported by her treatment notes which
contain mild to normal findings. (Tr. 24). For example, the ALJ explains that Dr. Simon’s
limitations due to Plaintiff’s pain are unsupported by Plaintiff’s 0/10 pain report, (Tr. 24, 1496),
and normal musculoskeletal findings (Tr. 24, 1501). Dr. Simon’s limitations for edema are
unsupported by Dr. Simon’s notes which indicate no edema (Tr. 24, 1500). Similarly, Dr. Simon’s
limitations regarding a cane or assistive device are unsupported by her notes which reflect a normal
gait and not even occasional use of a cane. (Tr. 24, 1501). Dr. Simon’s limitations due to foot
pain, are unsupported because Plaintiff “complained primarily of left heel pain with mild imaging
findings, essentially normal objective exam findings, and primarily a left calcaneal spur that she
has to treat with a podiatrist. Dr. Simon noted an intact gait and normal lower extremity findings
throughout his records, with only some crepitus at the most recent exam.” (Tr. 24). The ALJ
considered supportability as required and concluded that the opinion was unsupported by the
medical source.
The ALJ also concluded that Dr. Simon’s opinion is inconsistent with the overall record.
The ALJ notes that Dr. Simon’s limitations due to pain are inconsistent with minimal findings on
imaging. (Id.). The ALJ concluded that imaging of Plaintiff’s left hip was normal, there were
minimal degenerative changes in the lumbar spine and knees, and there were mild diffuse
degenerative changes in her left foot and a bone spur, (Tr. 21 (citing Tr. 547, 1195, 1377)). As
discussed above, the ALJ throughout the opinion notes Plaintiff’s normal musculoskeletal findings
(Tr. 21, 1613, 23, 1553, 1537–38), that Plaintiff was ambulatory (Tr. 23, 1552, 1536), and that she
denied trouble walking, weakness, or numbness (Tr. 21, 1608–27, 22, 1570–75, 23, 1506–13).
Further, the ALJ considered Plaintiff’s pain and concluded that Plaintiff’s medication dulls the
pain (Tr. 19) and that she often reports 0/10 pain (Tr. 20, 22, 23, 470, 1629, 1596), but noted her
occasional elevated pain (Tr. 21, 22). Thus, the ALJ’s evaluation of Dr. Simon’s opinion has
record support.
Plaintiff argues that the ALJ should have considered degenerative changes in her spine and
shoulders (Doc. 15 (citing Tr. 582)), anemia (Id. (citing Tr. 423)), and palpitations and tachycardia
(Id. (citing 373)), unstable angina, and chronic iron deficiency (Id. (citing Tr. 337, 341, 423, 431,
432)). But these symptoms, with the exception of spine and shoulder degeneration, are not related
to Dr. Simon’s opinion which focuses on physical limitations due to knees, hips, shoulders, and
feet pain (Tr. 1183). Regarding the degenerative changes in Plaintiff’s spine and shoulder, the
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.” Houston v. Saul, No. 1:20-CV-1371, 2021
WL 2635376, at *14 (N.D. Ohio June 25, 2021). And again, “[e]ven if the evidence could also
support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached.” Her, 203 F.3d at 389–90. Further,
the record cited by Plaintiff is a single radiology report related to an ER visit by Plaintiff for chest
pain. (Tr. 582). At base, Plaintiff fails to explain how the ALJ’s failure to consider this evidence
when assessing the persuasiveness of Dr. Simon’s opinion was harmful to her.
***
In sum, the ALJ’s explanation for why Dr. Simon’s opinions were unpersuasive afforded
the Court the opportunity to conduct a meaningful review. The ALJ considered the required factors
of supportability and consistency and found Dr. Simon’s opinion to be unpersuasive. Substantial
evidence supports the decision, and there was no error. See 20 C.F.R. § 416.920c(b)(2); Smith v.
Comm’r of Soc. Sec., No. 2:20-CV-2886, 2021 WL 1996562, at *6 (S.D. Ohio May 19, 2021).
B. Subjective Complaints
Next, Plaintiff alleges that the ALJ reversibly erred when evaluating her symptom severity.
(Doc. 15 at 4). Specifically, Plaintiff says that the ALJ impermissibly relied on her lifestyle and
daily activities. (Id. at 6). This alleged error is without merit for two reasons. First, Plaintiff has
waived this argument by failing to articulate any basis for relief. Second, even if the Court
overlooks this failure, the ALJ’s justification for discounting Plaintiff’s subjective allegations is
supported by substantial evidence.
Waiver
Plaintiff’s alleged error is only two sentences: “The ALJ also appears to reject her in part
because of her lifestyle. While the ALJ was correct to take daily activities into account, the failure
to recognize the differences between activities of daily living and work activities is a recurrent,
and deplorable, feature of opinions by administrative law judges in social security disability cases.”
(Doc. 15 at 6). Plaintiff cites several cases to support her argument that the ability to do daily
activities does not equate to an ability to do work activities. (Id.).
Plaintiff fails to develop this argument, provide citation to the record to support this
argument, suggest what the ALJ should have done differently, identify how she was prejudiced,
or why she is entitled to relief. Undeveloped arguments, such as this, are deemed waived.
Ferguson v. Comm’r of Soc. Sec., No. 2:16-CV-13289, 2018 WL 912882, at *4 (E.D. Mich. Jan.
22, 2018), report and recommendation adopted sub nom. Ferguson v. Berryhill, No. 16-13289,
2018 WL 902281 (E.D. Mich. Feb. 15, 2018); see also Grady v. Comm’r of Soc. Sec., No. 12-CV-
13349, 2013 WL 4670365, at *12 (E.D. Mich. Aug. 30, 2013) (citing Kennedy v. Comm’r of Soc.
Sec., 87 F. App’x 464, 466 (6th Cir.2003)) (“When Plaintiff’s arguments are raised in only a
perfunctory manner, they are forfeited.”). “It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to ... put flesh on its bones.” Id. (quoting
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)). That is what Plaintiff does here.
The Court can perhaps infer the basis for Plaintiff’s claim, but that does not relieve Plaintiff of her
burden to articulate her claim with support. It is not the onus of the Court to formulate arguments
on Plaintiff’s behalf, especially because Plaintiff is represented by counsel. See, e.g., McFarland
v. Berryhill, No. CIV-16-449-F, 2017 WL 922490, at *3 (W.D. Okla. Feb. 6, 2017), report and
recommendation adopted, No. CIV-16-0449-F, 2017 WL 913799 (W.D. Okla. Mar. 7, 2017) (“It
is not the court’s duty to dissect Plaintiff’s statements looking for substantive allegations and the
undersigned does not address these underdeveloped arguments.”). Thus, the Court concludes this
argument is waived.
The ALJ’s Assessment is Supported by Substantial Evidence
Even if the Court overlooks Plaintiff’s failure to develop an argument, the result is the same
because the ALJ’s assessment is supported by substantial evidence.
The Social Security Administration uses a two-step process for evaluating an individual’s
symptoms. First, the ALJ determines whether an individual has a medically determinable
impairment that could reasonably be expected to produce the individual’s alleged symptoms. Soc.
Sec. R. 16-3p, 2016 WL 1119029, *3 (March 16, 2016). Second, the ALJ evaluates the intensity
and persistence of the individual’s symptoms and determines the extent to which the individual’s
symptoms limit her ability to perform work-related activities. Id. at *4. To do this, the ALJ must
examine the entire record, including the objective medical evidence; the individual’s relevant
statements; statements and other information provided by medical sources and others; and any
other relevant evidence in the record. Id. The ALJ should also consider:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or
other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication an individual takes or has taken to alleviate pain
or other symptoms;
5. Treatment, other than medication, an individual receives or
has received for relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has
used to relieve pain or other symptoms (e.g., lying flat on his
or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and
7. Any other factors concerning an individual’s functional
limitations and restrictions due to pain or other symptoms.
Id. at *7; see also 20 C.F.R. § 404.1529(c)(3). “But not every factor will be discussed in every
case. If there is no evidence regarding one of the factors, that factor will not be discussed.” Davis
v. Comm’r of Soc. Sec. Admin., No. 3:19-CV-117, 2020 WL 3026235, at *6 (S.D. Ohio June 5,
2020) (citing Soc. Sec. R. 16-3p, 2017 WL 5180304, *8), report and recommendation adopted
sub nom. Davis v. Comm’r of Soc. Sec., No. 3:19-CV-117, 2020 WL 6273393 (S.D. Ohio Oct. 26,
2020).
First, the ALJ determined that Plaintiff’s “medically determinable impairments could
reasonably be expected to cause some of the alleged symptoms.” (Tr. 20). Next, the ALJ
concluded that Plaintiff’s statements concerning the intensity, persistence and limiting effects of
these symptoms are inconsistent with the record, specifically “her conservative treatment history,
objective findings on exam, testing and imaging, and her actual reports at visits and reports of
treating providers in treatment notes.” (Id.). The ALJ supports this conclusion with an in-depth
analysis of Plaintiff’s medical record. (Tr. 20–26). Plaintiff’s subjective complaints may support
a finding of disability, but only where objective medical evidence confirms the severity of the
alleged symptoms. Manning v. Comm’r of Soc. Sec., No. 1:18-CV-1246, 2020 WL 1678262, at
*4 (W.D. Mich. Feb. 21, 2020), report and recommendation adopted, No. 1:18-CV-1246, 2020
WL 1675843 (W.D. Mich. Apr. 6, 2020) (citing Workman v. Comm’r of Soc. Sec., 105 Fed. Appx.
794, 801 (6th Cir., July 29, 2004)).
Plaintiff’s argument confuses the ALJ’s analysis. Plaintiff seems to say the ALJ equated
her ability to do daily activities with an ability to do substantial gainful activity. It is true that
generally “activities like taking care of yourself, household tasks, hobbies, therapy, school
attendance, club activities, or social programs” are not considered to be substantial gainful activity.
20 C.F.R. § 404.1572. But here the ALJ was evaluating the consistency of Plaintiff’s statements
concerning the intensity, persistence, and limiting effects of her symptoms with the record. In this
analysis, an ALJ may consider whether Plaintiff’s daily activities are inconsistent with her
allegations of pain and other symptoms. Soc. Sec. R. 16-3p, 2016 WL 1119029, *7 (March 16,
2016). Thus, the ALJ permissibly considered Plaintiff’s daily activities (Tr. 20, 23, 25) to
determine consistency with the record. The ALJ considered Plaintiff’s daily activities, such as the
inability to do laundry, but the ability to transfer clothes from the washer to the dryer; the ability
to prepare simple meals; the ability to use a broom; the ability to push a cart at the grocery store,
but only reach waist level items; and the ability to color and do word finds. (Tr. 20). But the ALJ
relied more heavily on the inconsistency between Plaintiff’s subjective complaints and her
conservative treatment history and notes by providers. (Id.).
The ALJ articulated a basis for her decision to discount Plaintiff’s subjective statements.
In making this decision, the ALJ permissibly considered Plaintiff’s daily activities, along with the
entire record, thus the ALJ did not commit a reversible error. Plaintiff’s assertion that it was
improper for the ALJ to consider daily activities is meritless.
C. Step 5 Burden
Finally, Plaintiff contends that “The ALJ’s hypothetical questions are not based upon
substantial evidence and allow for jobs beyond the plaintiff’s functional abilities. By ignoring the
medical opinions, the ALJ has overestimated the occupational base.” (Doc. 15 at 7). Plaintiff’s
alleged error is without merit.
At step five, the ALJ must make a finding, supported by substantial evidence, that Plaintiff
has “the vocational qualifications to perform specific jobs.” Crawford v. Comm’r of Soc. Sec.,
No. 2:21-CV-726, 2021 WL 5917130, at *3 (S.D. Ohio Dec. 14, 2021), report and
recommendation adopted, No. 2:21-CV-726, 2022 WL 219864 (S.D. Ohio Jan. 25, 2022)
(quoting Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987)). A VE’s
testimony can provide this substantial evidence if the hypothetical question accurately portrays
Plaintiff’s impairments. Id. (citing Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512–13 (6th Cir.
2010)). If the ALJ’s hypothetical question to the VE matches the RFC, then Plaintiff’s attack is
actually a veiled RFC attack. Kirchner v. Colvin, No. 12-CV-15052, 2013 WL 5913972, at *11
(E.D. Mich. Nov. 4, 2013) (finding that Plaintiff’s allegation that the ALJ erred in formulating
his hypothetical question to the VE is a veiled attack on the RFC because ALJ’s hypothetical
question matches the RFC); see also Parker v. Comm’r of Soc. Sec. Admin., No. 2:20-CV-11162,
2021 WL 4891021, at *3 (E.D. Mich. Aug. 23, 2021), report and recommendation adopted sub
nom. Parker v. Saul, No. 20-11162, 2021 WL 4864274 (E.D. Mich. Oct. 19, 2021)
(“Notwithstanding the reference to Step 5, it is clear that Plaintiff’s actual point of attack is the
RFC, there being no showing of an incongruity between the hypothetical to the VE and the
RFC.”); Robinson v. Comm’r of Soc. Sec., No. 13-CV-13124, 2014 WL 4145339, at *9 (E.D.
Mich. Aug. 20, 2014).
Here, Plaintiff does not allege that the hypothetical question does not match the RFC. The
Court independently reviewed the record and determined that the hypothetical to the VE (Tr. 67)
matches the RFC (Tr. 19). Thus, Plaintiff’s step five allegation is a veiled attack on the RFC.
And Plaintiff’s allegations here rely entirely on her previous RFC error; Plaintiff says the
hypothetical is not based on substantial evidence because it ignores medical opinions and thus
allows for jobs beyond her abilities. (Doc. 15 at 7). Since the Court already determined that the
ALJ’s medical opinion evaluation was supported by substantial evidence, and Plaintiff makes no
additional RFC arguments, this error is meritless.
Nevertheless, the ALJ decided this case at step four so any step five error is harmless. See,
e.g., Patrick v. Astrue, No. CV-07-3099-CI, 2009 WL 36771, at *4 (E.D. Wash. Jan. 6, 2009) (“If
the ALJ did indeed make an adequate step four finding that Plaintiff can perform past relevant
work, the error at step five is harmless error because it was not a required step.”); Farley v. Colvin,
No. 2:11-0123, 2013 WL 5727389, at *14 (M.D. Tenn. Oct. 21, 2013), report and recommendation
adopted, No. 2:11-CV-00123, 2013 WL 6009489 (M.D. Tenn. Nov. 13, 2013) (finding that the
step five error was harmless because the step five analysis was in the alternative to an adequate
step four analysis). At step four, the ALJ determined that Plaintiff had the residual functional
capacity to perform the requirements of her past relevant work. (Tr. 26); see also 20 C.F.R. §
404.1520. The ALJ determined Plaintiff is not disabled at step four. (Tr. 26). But in addition to
the step four conclusion, the ALJ made “alternative findings for step five of the sequential
evaluation process.” (Id.). Plaintiff has not shown how the step five error was harmful, given that
the step five analysis was in the alternative and that the ALJ made her conclusion at step four.
Plaintiff has failed to carry her burden. Thomas v. Comm’r of Soc. Sec., No. 2:18-CV-108, 2019
WL 642679, at *13 (S.D. Ohio Feb. 15, 2019), report and recommendation adopted, No. 2:18-
CV-108, 2019 WL 2414675 (S.D. Ohio June 7, 2019) (quoting Shinseki v. Sanders, 556 U.S. 396,
409 (2009)) (“The burden of showing harmfulness is normally on the party attacking an agency’s
determination.”); Jackson on behalf of R.B. v. Comm’r of Soc. Sec., No. 1:20-CV-00339, 2021 WL
3508072, at *2 (S.D. Ohio Aug. 10, 2021) (“In federal court, the claimant carries the burden of
showing that an ALJ prejudicially erred.”). Thus, any error at step five is harmless because this
analysis was in the alternative to the step four conclusion.
IV. CONCLUSION
Based on the foregoing, the Court OVERRULES Plaintiff’s Statement of Errors and
AFFIRMS the Commissioner’s decision.
IT IS SO ORDERED.
Date: February 16, 2022 /s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE