Whitaker v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

JENNIFER W.1, Case No. 1:21-cv-361

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Jennifer W. brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3)

for judicial review of the final decision of the Commissioner of Social Security (Commissioner)

denying plaintiff’s applications for disability insurance benefits (DIB) and supplemental security

income (SSI). This matter is before the Court for disposition based upon plaintiff’s statement of

errors (Doc. 16), the Commissioner’s response in opposition (Doc. 19), and plaintiff’s reply

(Doc. 20).

I. Procedural Background

Plaintiff protectively filed her applications for DIB and SSI in November 2017, alleging

disability since February 28, 2017, due to back problems, heart problems, migraines,

fibromyalgia, liver disease, thyroid disorder, depression, anxiety disorder, memory loss, and

narcolepsy. The applications were denied initially and upon reconsideration. Plaintiff, through

counsel, requested and was granted a de novo hearing before administrative law judge (ALJ)

Lloyd E. Hubler III. Plaintiff and a vocational expert (VE) appeared telephonically and testified

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,

judgment or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by

their first names and last initials.

at the ALJ hearing on July 20, 2020. On September 23, 2020, the ALJ issued a decision denying

plaintiff’s DIB and SSI applications. This decision became the final decision of the

Commissioner when the Appeals Council denied review on March 27, 2021.

II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A)

(DIB) and 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in

the work previously performed or in any other substantial gainful employment that exists in the

national economy. 42 U.S.C. §§ 423(d)(2) and 1382c(a)(3)(B).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation

process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment – i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities – the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration

requirement, the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her

past relevant work, the claimant is not disabled.

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

disabled. If the claimant cannot make an adjustment to other work, the claimant

is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§

404.1520(a)(4)(i)-(v) and 404.1520(b)-(g)). The claimant has the burden of proof at the first four

steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by demonstrating an inability

to perform the relevant previous employment, the burden shifts to the Commissioner to show

that the claimant can perform other substantial gainful employment and that such employment

exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291

(6th Cir. 1999).

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. [Plaintiff] meets the insured status requirements of the Social Security Act

through June 30, 2022.

2. [Plaintiff] has not engaged in substantial gainful activity since February 28,

2017, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. [Plaintiff] has the following severe impairments: Degenerative disc disease of the

lumbar, thoracic and cervical spine; obesity; fibromyalgia; cardiac problems;

anxiety; depression; and post-traumatic stress disorder (PTSD) (20 CFR

404.1520(c) and 416.920(c)).

4. [Plaintiff] does not have an impairment or combination of impairments that

meets or medically equals the severity of one of the listed impairments in 20

CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525,

404.1526, 416.920(d), 416.925 and 416.926).

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5. After careful consideration of the entire record, the [ALJ] find[s] that the

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

20 CFR 404.1567(b) and 416.967(b) except for the following restrictions: She

can occasionally climb ramps or stairs but can never climb ladders, ropes or

scaffolds. She can occasionally balance, stoop, kneel, crouch and crawl. She can

have frequent exposure to hazardous moving machinery or unprotected heights.

She can work in an environment where she would perform static routine tasks.

She can have occasional contact and interaction with supervisors and

coworkers but no contact with general public.

6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565 and

416.965).2

7. [Plaintiff] was born [in] … 1975 and was 41 years old, which is defined as a

younger individual age 18-49, on the alleged disability onset date (20 CFR

404.1563 and 416.963).

8. [Plaintiff] has at least a high school education (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding

that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable

job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the [plaintiff]’s age, education, work experience, and residual

functional capacity, there are jobs that exist in significant numbers in the national

economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),

416.969, and 416.969(a)).3

11. [Plaintiff] has not been under a disability, as defined in the Social Security Act,

from February 28, 2017, through the date of this decision (20 CFR 404.1520(g)

and 416.920(g)).

(Tr. 18-26).

2 Plaintiff’s past relevant work was as a retail salesclerk, a semi-skilled, light position. (Tr. 25, 54).

3 The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of

representative light, unskilled occupations such as night cleaner (73,000 jobs nationally), price marker (124,000 jobs

nationally), and mail sorter (98,000 jobs nationally). (Tr. 25-26, 55).

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C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §

405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.

Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence

as a reasonable mind might accept as adequate to support a conclusion.” Biestek v. Berryhill,

___ U.S. ___, 139 S. Ct. 1148, 1154 (2019) (citing Consolidated Edison Co. v. N.L.R.B., 305

U.S. 197, 229 (1938)). Substantial evidence consists of “more than a scintilla of evidence but

less than a preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007). In deciding whether the Commissioner’s findings are supported by substantial evidence,

the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the

disability determination. Even if substantial evidence supports the ALJ’s conclusion that the

plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails

to follow its own regulations and where that error prejudices a claimant on the merits or deprives

the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).

See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

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D. Relevant Medical Opinions

1. Jennifer Stoeckel, Ph.D.

Jennifer Stoeckel, Ph.D., examined plaintiff on October 11, 2018, for disability purposes.

(Tr. 662-68). Plaintiff complained of depression. Plaintiff reported cooking infrequently as

standing is difficult, requiring her to use a chair in the kitchen. She can perform laundry

activities if her sons help, but they generally do their own laundry. She does not do regular

cleaning, but will load or unload the dishwasher. “She sleeps at the frequency of four to five

hours per night but awakens frequently. She may nap one to two hours during the daytime.”

(Tr. 663). Plaintiff noted that medications helped with her crying. Plaintiff reported attending

no regular mental-health treatment, as she found counseling to be unhelpful. (Tr. 664).

Dr. Stoeckel observed that plaintiff ambulated slowly and in a guarded manner, though

she did not use an assistive device. On mental status examination, her speech was “choppy” and

without spontaneous conversation. Her thought process was found to be logical without

digression, confusion, or flight of ideas. She had a blunted/flat affect and reported experiencing

depression more days than not. (Tr. 665). Plaintiff did not appear anxious, but was “moderately

somatically preoccupied.” (Tr. 666). Plaintiff was unable to complete serial subtractions from

100. (Id.). Dr. Stoeckel assessed plaintiff with persistent depressive disorder. (Id.).

Dr. Stoeckel opined that plaintiff has sufficient concentration for simple repetitive tasks

but may have difficulty with multitasking. Dr. Stoeckel also noted that: “Under stress, [plaintiff]

is likely to develop increased depression and mood-related symptoms. In the past, she reports

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she had been very tearful which is partially controlled with the medication but admits that she

decompensates with minimal pressure. She seems to have limited coping skills.” (Tr. 668).

2. Phillip Swedberg, M.D.

On June 5, 2019, Dr. Swedberg performed a consultative examination of plaintiff, which

was limited to “cardiovascular/pulmonary/pre-exercise test” examination. (Tr. 780-81). Plaintiff

complained of chest pain “any time I walk up the stairs.” (Tr. 780). She described the pain as

non-radiating, “pressure” lasting 15-30 minutes. (Id.). Plaintiff denied palpitations or syncope.

(Id.). She described shortness of breath that worsens during episodes. (Id.). Plaintiff also

described dyspnea when walking through the grocery store, and she sometimes used a motorized

cart. (Id.). On examination, Dr. Swedberg found irregular rhythm and controlled rate. (Tr. 781).

Dr. Swedberg decline to perform exercise testing because plaintiff reported poor exercise

tolerance and chest pain with exertion, and atrial fibrillation. (Id.). Dr. Swedberg commented

that plaintiff was a poor historian. (Id.).

3. Connie Kane, LSW

Plaintiff treated with therapist Ms. Kane beginning in August 2019. (Tr. 1427). On

February 4, 2020, Ms. Kane noted that plaintiff suffered from persistent depressive disorder,

social anxiety disorder, and post-traumatic stress disorder (PTSD). She opined that plaintiff was

markedly limited in her abilities to work at an appropriate and consistent pace, or complete tasks

in a timely manner; to adapt to changes; to manage psychologically-based symptoms; and to

keep social interactions free of excessive irritability, sensitivity, argumentativeness, or

suspiciousness. (Tr. 789-90). Ms. Kane also opined that plaintiff was moderately limited in her

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abilities to follow one or two step oral instructions to carry out a task; recognize and correct a

mistake; sequence multi-step activities; sustain an ordinary routine and regular attendance at

work; work a full day without needing more than the allotted number or length of rest periods;

make plans independently of others; maintain appropriate personal hygiene and attire; and

respond to requests, suggestions, criticism, correction and challenges. (Tr. 788-90).

4. State agency review – Physical Impairments

On October 27, 2018, state agency physician, William Bolz, M.D., reviewed plaintiff’s

record and determined she was limited to light exertional work with occasional postural

activities. (Tr. 70-71). Dr. Bolz based his assessment on plaintiff’s degenerative disc disease,

fibromyalgia, and obesity. (Tr. 71). On July 9, 2019, Maureen Gallagher, D.O., reviewed

plaintiff’s file upon reconsideration and affirmed Dr. Bolz’s opinion with additional limitation to

no ladders/ropes/scaffolds and the avoidance of concentrated exposure to hazards. (Tr. 105-06).

5. State Agency Review – Mental Impairments

On October 28, 2018, Carl Tishler, Ph.D., reviewed plaintiff’s file and determined that

plaintiff has mild restrictions in understanding, remembering and applying information;

moderate limitations interacting and relating with others; mild difficulties maintaining

concentration, persistence or pace; and moderate limitations in adapting or managing oneself.

(Tr. 68). Dr. Tishler found that plaintiff requires employment with little to no interaction with

the public and static, routine tasks. (Tr. 72). On February 16, 2019, Dr. David Dietz, Ph.D.,

reviewed plaintiff’s file upon reconsideration and affirmed Dr. Tishler’s assessment. (Tr. 107-

09).

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E. Specific Errors

On appeal, plaintiff contends the ALJ: (1) improperly evaluated the medical source

opinion of consultative psychologist, Jennifer Stoeckel, Ph.D.; (2) failed to support with

substantial evidence his discounting of Dr. Swedberg’s examining opinion; and (3) misstated or

ignored evidence of record, materially undermining his Residual Functional Capacity (RFC)

determination. (Doc. 16 at PAGEID 2219-25).

The Commissioner counters that the ALJ properly considered and evaluated the

psychological opinions and prior administrative findings and adopted an RFC that accounts for

plaintiff’s credibly established mental limitations. In addition, the ALJ properly relied upon the

state agency’s prior administrative medical findings in formulating his physical RFC finding.

Additionally, the ALJ appropriately analyzed the evidence and found inconsistencies that led

him, overall, to credit plaintiff’s allegations in part but not in their entirety. (Doc. 19 at PAGEID

2241-51).

1. The ALJ’s Evaluation of Dr. Stoeckel’s Opinion is Supported by Substantial

Evidence.

For claims filed on or after March 27, 2017, new regulations apply for evaluating medical

opinions. See 20 C.F.R. §§ 404.1520c and 416.920c (2017); see also 82 Fed. Reg. 5844-01,

2017 WL 168819 (Jan. 18, 2017) (technical errors corrected by 82 Fed. Reg. 15132-01, 2017

WL 1105368 (Mar. 27, 2017)). These new regulations eliminate the “treating physician rule”

and deference to treating source opinions, including the “good reasons” requirement for the

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weight afforded to such opinions.4 Id. The Commissioner will “not defer or give any specific

evidentiary weight, including controlling weight, to any medical opinion(s) or prior

administrative medical finding(s)5, including those from your medical sources.” 20 C.F.R. §

404.1520c(a); 20 C.F.R. § 416.920c(a). Rather, the Commissioner will consider “how

persuasive” the medical opinion is. 20 C.F.R. § 404.1520c(b); 20 C.F.R. § 416.920c(a).6

In determining the persuasiveness of a medical opinion, the ALJ considers five factors:

(1) supportability, (2) consistency, (3) relationship with the claimant, including length of

treatment relationship, frequency of examinations, purpose of the treatment relationship, and

examining relationship, (4) specialization, and (5) other factors that tend to support or contradict

a medical opinion. 20 C.F.R. § 404.1520c(c)(1)-(5). The most important factors the ALJ must

consider are supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). With respect to the

supportability factor, “[t]he more relevant the objective medical evidence7 and supporting

4 For claims filed prior to March 27, 2017, a treating source’s medical opinion on the issue of the nature

and severity of an impairment is given controlling weight if it “is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.”

20 C.F.R. § 404.1527(c)(2). See also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). “The

Commissioner is required to provide ‘good reasons’ for discounting the weight given to a treating-source opinion.”

Id. (citing 20 C.F.R. § 404.1527(c)(2)).

5 A “prior administrative medical finding” is defined as “[a] finding, other than the ultimate determination about

whether the individual is disabled, about a medical issue made by an MC [medical consultant] or PC [psychological

consultant] at a prior administrative level in the current claim.” 82 Fed. Reg. 5844-01, 2017 WL 168819, at *5850.

For clarity, the Court will refer to the limitations opined by the state agency reviewing physicians and psychologists

as “assessments” or “opinions.”

6 “The Commissioner’s regulations governing the evaluation of disability for DIB and SSI are identical.” Miller v.

Comm’r of Soc. Sec., No. 3:18-cv-281, 2019 WL 4253867, at *1 n. 1 (S.D. Ohio Sept. 9, 2019) (quoting Colvin v.

Barnhart, 475 F.3d 727, 730 (6th Cir. 2007)). For claims filed on or after March 27, 2017, these regulations are

found at 20 C.F.R. § 404.1520c and 20 C.F.R. § 416.920c, respectively. The Court’s references to DIB regulations

should be read to incorporate the corresponding and identical SSI regulations, and vice versa, for purposes of this

Order.

7 Objective medical evidence is defined as “signs, laboratory findings, or both.” 82 Fed. Reg. 5844-01, 2017 WL

168819, at *5850.

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explanations presented by a medical source are to support his or her medical opinion(s) . . . the

more persuasive the medical opinions . . . will be.” 20 C.F.R. § 404.1520c(c)(1). Similarly,

“[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources

and nonmedical sources in the claim, the more persuasive the medical opinion(s). . . .” 20 C.F.R.

§ 404.1520c(c)(2). The ALJ is required to “explain how [he/she] considered the supportability

and consistency factors for a medical source’s medical opinions” in the written decision. 20

C.F.R. § 404.1520c(b)(2) (emphasis added). Conversely, the ALJ “may, but [is] not required to,

explain” how he/she considered the relationship, specialization, and other factors set forth in

paragraphs (c)(3) through (c)(5) of the regulation. Id. However, where two or more medical

opinions or prior administrative findings about the same issue are equally persuasive, the ALJ

must articulate how he or she “considered the other most persuasive factors in paragraphs (c)(3)

through (c)(5). . . .” 20 C.F.R. § 404.1520c(b)(3). Finally, the ALJ is not required to articulate

how he or she considered evidence from nonmedical sources. 20 C.F.R. § 404.1520c(d).

Plaintiff contends the ALJ’s evaluation of Dr. Stoeckel’s opinion is not supported by

substantial evidence and is contrary to the regulations. Plaintiff argues that Dr. Stoeckel, a

psychological consultative examiner, opined that plaintiff “may have difficulty with

multitasking” and would likely develop increased depression under stress due to inadequate

coping skills. Plaintiff contends that even though the ALJ found Dr. Stoeckel’s opinions

“persuasive,” he nevertheless failed to properly analyze the supportability and consistency of Dr.

Stoeckel’s opinions and incorporate Dr. Stoeckel’s specific restrictions into the RFC. (Doc. 16

at PAGEID 2219-22). The Commissioner responds that the ALJ properly considered and

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evaluated the psychological opinions and prior administrative findings8 and adopted an RFC that

accounts for plaintiff’s credibly established psychological limitations. (Doc. 19 at PAGEID

2241-46).

The ALJ’s evaluation of Dr. Stoeckel’s opinion is supported by substantial evidence. Dr.

Stoeckel completed a psychological (disability) evaluation report. (Tr. 661-668). Plaintiff

reported to Dr. Stoeckel that “she is applying for benefits due to predominantly physical issues.”

(Tr. 663). Plaintiff had previously seen a psychiatrist who referred her to counseling, but she

reported no regular mental health treatment, history of psychiatric admissions, or previous use of

psychotropic medications. (Tr. 664-65).

Dr. Stoeckel reported that plaintiff ambulated slowly but without an ambulatory aid, and

her attire was “casual and neat.” (Tr. 665). Her speech was “choppy,” but her thought processes

“appeared to be logical, cohesive, and goal-directed” and without “digression, confusion, flight

of ideas, nor loose associations.” (Id.). Plaintiff reported no symptoms of mood dysregulation,

history of suicidal ideation, or “other vegetative symptoms of depression,” but her affect was

“blunted and flat.” (Id.). She was “alert and oriented times four,” and her intellectual

functioning appeared average. (Tr. 666).

Dr. Stoeckel conducted no psychological testing and diagnosed plaintiff with persistent

depressive disorder. (Id.). In her functional assessment, Dr. Stoeckel noted that plaintiff “could

8 The Commissioner argues that because Dr. Stoeckel is an agency psychological consultant, her statements

constitute “prior administrative medical findings” rather than “medical opinions.” (Doc. 19 at PAGEID 2241 n. 3).

However, “[w]hile the new regulations differentiate between ‘medical opinions’ and ‘prior administrative medical

findings,’ the regulations do not ascribe greater significance to either, and both are evaluated utilizing the same

factors.” Stith v. Comm’r of Soc. Sec., No. 1:20-CV-02312, 2022 WL 493526, at *7 n. 6 (N.D. Ohio Jan. 31, 2022)

( citing 20 C.F.R. § 416.920c(c)).

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follow oral or written instructions” and that her “[c]ognitive functioning is consistent with her

previous work and academic history.” (Tr. 667). She further indicated that plaintiff “has

sufficient concentration for simple repetitive tasks but may have difficulty with multitasking.”

(Tr. 668). The final two paragraphs of her report state:

[Plaintiff] reports that she is fairly social. She interacts with family and friends and

does not report irritability or a history of difficulty relating to others in workplace

settings.

* * *

Under stress, [plaintiff] is likely to develop increased depression and mood-related

symptoms. In the past, she reports she had been very tearful which is partially

controlled with the medication but admits that she decompensates with minimal

pressure. She seems to have limited coping skills.

(Id.).

With regard to Dr. Stoeckel’s consultative examination, the ALJ concluded:

I find the assessment of Dr. Stoeckel, who performed a psychological consultative

examination of [plaintiff] persuasive. She did not espouse any significant

functional restrictions for [plaintiff] and instead only summarized [plaintiff]’s

performance during the consultative examination (5F/7-8). This comports with

[plaintiff]’s lack of mental-health treatment up until that time. Therefore, I find this

assessment persuasive.

(Tr. 24).

“Although the new standards are less stringent in their requirements for the treatment of

medical opinions, they still require that the ALJ provide a coherent explanation of his

reasoning.” White v. Comm’r of Soc. Sec., No. 1:20-cv-588, 2021 WL 858662, at *21 (N.D.

Ohio Mar. 8, 2021). As other courts have clarified:

The new regulations “set forth a ‘minimum level of articulation’ to be provided in

determinations and decisions, in order to ‘provide sufficient rationale for a

reviewing adjudicator or court.’” Warren I. v. Comm’r of Soc. Sec., No. 20-495,

2021 WL 860506, at *8 (N.D.N.Y. Mar. 8, 2021) (quoting 82 Fed. Reg. 5844-01

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(2017)). An “ALJ’s failure . . . to meet these minimum levels of articulation

frustrates [the] court’s ability to determine whether [plaintiff’s] disability

determination was supported by substantial evidence.” Vaughn v. Comm’r of Soc.

Sec., No. 20-1119, 2021 WL 3056108, at *11 (W.D. Tenn. July 20, 2021).

Hardy v. Comm’r of Soc. Sec., 554 F. Supp. 3d 900, 906 (E.D. Mich. 2021); see also Butcher v.

Comm’r of Soc. Sec., No. 2:20-CV-6081, 2021 WL 6033683, at *4 (S.D. Ohio Dec. 21, 2021)

(same quotation).

In this case, the ALJ met that minimum standard of articulation. Although he used the

words “comports with” rather than “consistent with,” the ALJ found that Dr. Stoeckel’s lack of

significant functional restrictions was consistent with plaintiff’s failure to seek significant mental

health treatment previously, with the assessments of the state agency psychological consultants,

and with the more recent treatment notes from Modern Psych and Wellness. (Tr. 23-24). The

ALJ noted Dr. Stoeckel’s description of plaintiff as “not overly anxious” and lacking symptoms

of PTSD or generalized anxiety disorder. (Tr. 23). The ALJ further considered Dr. Stoeckel’s

report (dated October 11, 2018) that plaintiff was “logical, cohesive and goal-directed.” (Id.). In

addition, the ALJ explained that he examined and relied upon the more recent treatment notes

from Modern Psych & Wellness with whom plaintiff began mental health treatment in July 2019.

(Tr. 23). The ALJ credited the diagnostic inventories plaintiff’s mental health provider

administered and plaintiff’s own report that she was “doing well on medication as of April 2020”

and again in July 2020. (Id.). The ALJ reasonably imposed limitations that plaintiff “have little

to no interaction with the public” and perform only “static and routine tasks” to accommodate

plaintiff’s psychological impairments. (Tr. 24). Finally, the ALJ was under no obligation to

adopt Dr. Stoeckel’s opinions verbatim. “Even where an ALJ provides ‘great weight’ to an

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opinion, there is no requirement that an ALJ adopt a state agency psychologist’s opinions

verbatim; nor is the ALJ required to adopt the state agency psychologist’s limitations wholesale.”

Reeves v. Comm’r of Soc. Sec., 618 F. App’x 267, 275 (6th Cir. 2015). The ALJ reasonably

considered the record as a whole, including plaintiff’s evidence of more recent treatment notes,

which post-dated Dr. Stoeckel’s examination, in fashioning an RFC. Accordingly, the ALJ’s

evaluation of Dr. Stoeckel’s report is supported by substantial evidence, and plaintiff’s first

assignment of error is overruled.

2. The ALJ’s Decision Not to Further Develop the Record Regarding Plaintiff’s

Cardiac Impairment is Supported by Substantial Evidence.

Plaintiff next contends that the ALJ should have further developed the record concerning

plaintiff’s cardiac impairment in light of Dr. Swedberg’s opinion that plaintiff could not tolerate

exercise testing and because Dr. Swedberg lacked the benefit of the most recent ventricular

ejection fraction test results. (Doc. 16 at PAGEID 2222-23). Plaintiff argues that “ALJs are ‘not

qualified to translate raw medical data, such as MRIs, into functional capacity determinations.’”

(Doc. 16 at PAGEID 2222) (quoting Jones v. Comm’r of Soc. Sec., No. 3:19-CV-142, 2021 WL

843100, at *4 (S.D. Ohio Mar. 5, 2021) (quoting Mitsoff v. Comm’r of Soc. Sec., 940 F. Supp. 2d

693, 703 (S.D. Ohio 2013)). The Commissioner argues that the ALJ found plaintiff’s cardiac

problems to be a severe impairment and, as a matter of law, the ALJ may formulate his RFC

finding without a medical opinion. (Doc. 19 at PAGEID 2246-47).

First, it is well-settled that “the ALJ is charged with the responsibility of evaluating the

medical evidence and the claimant’s testimony to form an assessment of [the claimant’s] residual

functional capacity.” Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010)

15

(internal citations and quotations omitted) (citing Webb v. Comm’r of Soc. Sec., 368 F.3d 629,

633 (6th Cir. 2004)). “An ALJ does not improperly assume the role of a medical expert by

weighing the medical and non-medical evidence before rendering an RFC finding.” Coldiron,

391 F. App’x at 439 (citing Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009);

Dixon v. Massanari, 270 F.3d 1171, 1177-78 (7th Cir. 2001)). See also 20 C.F.R. §§ 416.946(c)

and 404.1546(c) (the ALJ is responsible for assessing a residual functional capacity). As the

Sixth Circuit has explained:

[Plaintiff] also argues that the ALJ’s RFC lacks substantial evidence because no

physician opined that [plaintiff] was capable of light work. But “the ALJ is charged

with the responsibility of determining the RFC based on her evaluation of the

medical and non-medical evidence.” Rudd v. Comm’r of Soc. Sec., 531 F. App’x

719, 728 (6th Cir. 2013) (emphasis added). An RFC is an “administrative finding,”

and the final responsibility for determining an individual’s RFC is reserved to the

Commissioner. SSR 96-5p, 1996 WL 374183, at *1-2 (July 2, 1996). “[T]o require

the ALJ to base her RFC on a physician’s opinion, would, in effect, confer upon

the treating source the authority to make the determination or decision about

whether an individual is under a disability.” Rudd, 531 F. App’x at 728.

Shepard v. Comm’r of Soc. Sec., 705 F. App’x 435, 442-43 (6th Cir. 2017); see also Mokbel-

Aljahmi v. Comm’r of Soc. Sec., 732 F. App’x 395, 401 (6th Cir. 2018) (“We have previously

rejected the argument that a residual functional capacity determination cannot be supported by

substantial evidence unless a physician offers an opinion consistent with that of the ALJ.”).

Second, in this case, the ALJ did not craft the RFC by interpreting raw medical data.

Plaintiff’s doctors read and interpreted the heart catheterization and echocardiogram results and

explained them in plain language. Dr. Najamul Ansari, M.D., of the TriHealth Heart Institute,

performed plaintiff’s 2017 cardiac catheterization, reported that it revealed a mildly elevated

pulmonary artery pressure and elevated left ventricular end-diastolic pressure for which he

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recommended diuresis and blood pressure control. (Tr. 387-89). Dr. Harold Pretorius, M.D.,

who specializes in endocrinology, metabolism and nuclear medicine, reported that his January

2018 testing revealed a left ventricular ejection fraction near 70% but with “diastolic

dysfunction.” (Tr. 795). On June 12, 2019, Dr. Regina Kayse, M.D., summarized plaintiff’s

June 2019 echocardiogram results as indicating a left ventricular ejection fraction of 50 – 55%

with normal left ventricular wall motion. (Tr. 783). Dr. Kayse elaborated that plaintiff’s left and

right ventricular wall motion was normal with normal ventricular sizes; both the left and right

atrial sizes were normal; mitral, aortic, tricuspid, and pulmonic valves were normal in structure

with no evidence of stenosis, fluttering, or prolapse; and there was no pleural or pericardial

effusion. (Tr. 783-84).

Based on these and other medical records, the ALJ concluded that plaintiff’s “cardiac

problems” constituted a severe impairment pursuant to 20 C.F.R. §§ 404.1520(c) and 416.920(c)

but the “intensity, persistence or limiting effects of the claimant’s cardiac impairments” would

not prevent her from working. (Tr. 18, 22). The ALJ found the state agency medical

consultants’ assessments persuasive, he explained, because their conclusions that plaintiff could

perform a range of work at the light exertional level subject to additional restrictions was

consistent with the conservative treatment plaintiff received for her spine and cardiac

impairments. (Tr. 24). He cited the 70% and 50 – 55% ejection fraction9 echocardiogram

9 Plaintiff alleges—and the Commissioner does not dispute—that a normal left ventricular ejection fraction for

females is between 54% and 74%. (Doc. 16 at PAGEID 2223). According to the Mayo Clinic website, a normal

ejection fraction is 50% to 75% while “a borderline ejection fraction can range between 41% and 50%.”

https://www.mayoclinic.org/tests-procedures/ekg/expert-answers/ejection-fraction/faq-

20058286#:~:text=The%20left%20ventricle%20is%20the,between%2041%25%20and%2050%25. (last visited July

7, 2022).

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results, her largely unremarkable heart catheterization and chest x-ray results, and the fact that

she had not undergone any treatment typical for those with major heart difficulties (such as

angioplasty, stenting, or bypass surgery) in support of his conclusion that plaintiff’s cardiac

impairments would not prevent her from working at a light exertional level with additional

postural and environmental limitations. (Tr. 22-23).

Finally, Dr. Swedberg completed only a limited cardiovascular/pulmonary/pre-exercise

test exam form. (Tr. 780-81). In it, he reported that he did not believe plaintiff could tolerate

exercise testing due to self-reported poor exercise tolerance and chest pain with exertion. (Tr.

781). Dr. Swedberg offered no opinion concerning the impact plaintiff’s cardiac impairments

might have on her ability to perform work-related activities. Thus, the ALJ was not required to

consult Dr. Swedberg on Dr. Kayse’s finding a week later that plaintiff’s ventricular ejection

fraction tested at 50% to 55%.

Plaintiff also contends the ALJ inconsistently found her cardiac issues to be a severe

impairment while the state agency consultants, whose opinions the ALJ found persuasive, did

not. (Doc. 16 at PAGEID 2223). Plaintiff is correct that neither characterized plaintiff’s cardiac

impairments as severe. (Tr. 68, 102). Nevertheless, the state agency consultant on

reconsideration, Dr. Maureen Gallagher, D.O., explicitly considered listing 4.02 for congestive

heart failure (Tr. 103), which necessarily implies a finding of a severe heart impairment. See 20

C.F.R. § 404.1525(a) (“The Listing of Impairments . . . describes for each of the major body

systems impairments that we consider to be severe enough to prevent an individual from doing

any gainful activity, regardless of his or her age, education, or work experience.”) (emphasis

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added). Moreover, Dr. Gallagher cited plaintiff’s echocardiogram results (including the 55%

ejection fraction finding) in explaining her RFC for light work. (Tr. 105). Any purported

conflict between the ALJ’s severity finding and the consultant’s opinion is harmless.

Accordingly, the ALJ’s decision not to further develop the record regarding plaintiff’s cardiac

issues is supported by substantial evidence.

3. The ALJ’s Consideration of Plaintiff’s Symptom Severity and Residual

Functional Capacity (RFC) are Supported by Substantial Evidence.

ALJs are to “consider all of the evidence in an individual’s record” and determine

whether the individual is disabled by examining “all of the individual’s symptoms, including

pain, and the extent to which the symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence in the individual’s record.” SSR 16-3p, 2016 WL

1119029, at *2. ALJs also evaluate what the agency formerly termed the “credibility” of a

plaintiff’s statements about his or her symptoms. See, e.g., Rogers, 486 F.3d at 246-49. In

March 2016, the agency eliminated its use of the term “credibility” and clarified “that subjective

symptom evaluation is not an examination of an individual’s character. . . .” SSR 16-3p, 2016

WL 1119029, at *1 (March 16, 2016) (rescinding and superseding SSR 96-7p). To avoid such

mistaken emphasis, this analysis is now characterized as the “consistency” of a claimant’s

subjective description of symptoms with the record. See Lipanye v. Comm’r of Soc. Sec., 802 F.

App’x 165, 171 n.3 (6th Cir. 2020) (citing Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113,

119 n.1 (6th Cir. 2016)).

A two-step inquiry applies to symptom evaluation. The ALJ first determines if the record

contains objective medical evidence of an underlying medically determinable impairment that

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could reasonably be expected to produce the individual’s symptoms. SSR 16-3p, 2016 WL

1119029, at *3; see also 20 C.F.R. § 404.1529(a); Jones v. Comm’r of Soc. Sec., 336 F.3d 469,

475-76 (6th Cir. 2003). Step two of symptom evaluation shifts to the severity of a claimant’s

symptoms. The ALJ must consider the intensity and persistence of the symptoms to determine

the extent to which the symptoms limit an individual’s ability to perform work-related activities.

See 20 C.F.R. §§ 404.1529(a) and (c); SSR16-3p, 2016 WL 1119029, at *4. In making this

determination, the ALJ will consider the following:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other

symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication you take

or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for relief of

your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other symptoms

(e.g., lying flat on your back, standing for 15 to 20 minutes every hour,

sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and restrictions due to

pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

An ALJ may not consider only objective medical evidence in determining disability

unless this evidence alone supports a finding of disability. SSR 16-3p, 2016 WL 1119029, at *5

(“If we cannot make a disability determination or decision that is fully favorable based solely on

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objective medical evidence, then we carefully consider other evidence in the record in reaching a

conclusion about the intensity, persistence, and limiting effects of an individual’s symptoms.”);

20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and

persistence of your pain or other symptoms or about the effect your symptoms have on your

ability to work solely because the available objective medical evidence does not substantiate

your statements.”). Moreover,

[i]t is . . . not enough for our adjudicators simply to recite the factors described in

the regulations for evaluating symptoms. The determination or decision must

contain specific reasons for the weight given to the individual’s symptoms, be

consistent with and supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

SSR 16-3p, 2016 WL 1119029, at *9. See also id. at *7 (noting that the ALJ “will discuss the

factors pertinent to the evidence of record”).

At the same time, the ALJ is not required to cite or discuss every factor used to evaluate

the consistency of a plaintiff’s description of symptoms with the record evidence. See White v.

Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009) (“[T]he ALJ expressly stated that she

had considered [the predecessor to SSR 16-3p], which details the factors to address in assessing

credibility. There is no indication that the ALJ failed to do so. This claim therefore lacks merit.

. . .”). Further, the ALJ’s determination regarding the consistency of a claimant’s subjective

complaints with the record evidence is “to be accorded great weight and deference. . . .” Walters

v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (citing Villarreal v. Sec’y of H.H.S.,

818 F.2d 461, 463 (6th Cir. 1987)).10

10 The Walters court noted that substantial deference was appropriate due in large part to an ALJ’s unique

o bservation of a witness’s “demeanor and credibility.” With the elimination of the term “credibility” in SSR 16-3p,

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Plaintiff contends that the ALJ misstated or ignored medical evidence of record in

evaluating plaintiff’s symptom severity thereby undermining his RFC finding. (Doc. 16 at

PAGEID 2224-25). Specifically, plaintiff argues that the ALJ ignored positive exam findings of

psychomotor slowing, stutters, and memory deficit in considering the mental health opinion

evidence and positive exam findings of thoracolumbar tenderness, diminished extension, and

positive bilateral facet loading tests in considering the medical evidence of plaintiff’s back and

leg pain. (Id.). The Commissioner responds that the ALJ neither misstated nor ignored this

evidence but simply weighed it along with the other psychological and physical evidence in

formulating an appropriate RFC. (Doc. 19 at PAGEID 2249-51).

The ALJ concluded that plaintiff has the RFC to perform light work as defined in 20 CFR

§§ 404.1567(b) and 416.967(b) with the additional restrictions that she can only occasionally

climb ramps or stairs; never climb ladders, ropes or scaffolds; occasionally balance, stoop, kneel,

crouch and crawl; perform only static routine tasks; have occasional contact and interaction with

supervisors and coworkers; and no contact with the general public. (Tr. 20). This finding is

supported by substantial evidence.

First, with regard to plaintiff’s positive exam findings of psychomotor slowing, stutters,

and memory deficit, the ALJ discussed plaintiff’s memory issues, “chopping manner” of

speaking, lack of spontaneous conversation, and “flat, depressed and anxious affect.” (Tr. 19,

23). However, despite plaintiff’s self-characterization as “forgetful,” inability to complete serial

it is questionable whether an ALJ’s observations should be given any deference. At least one Sixth Circuit decision

subsequent to the enactment of SSR 16-3p, however, has retained the notion of deference to the ALJ in the

symptom-consistency context. See, e.g., Lipanye, 802 F. App’x at 171 (“It is for the administrative law judge, not

t he reviewing court, to judge the consistency of a claimant’s statements.”).

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subtraction tests, and “[t]reatment records [that] document [plaintiff] having a poor memory,” he

concluded that plaintiff has only a mild limitation in understanding, remembering or applying

information because she completed a college certificate program, reads, writes, performs basic

math, and presents with average intellectual functioning (including retention of four digits

forward and three in reverse and five of five objects after a five-minute delay). (Tr. 19).

Similarly, the ALJ recognized the medical evidence related to psychomotor concerns and

plaintiff’s moderate limitations in adapting and managing herself, but he noted that she attends

Bible study group; goes to church events and the grocery store; possesses a valid driver’s license;

volunteers at a nursing home; manages her own personal care; exhibited logical, cohesive and

goal-directed thought processes on exam; did not previously receive significant mental health

treatment or psychosocial support; and exhibited and self-reported psychological improvement

once she established treatment with Modern Psych & Wellness in 2019 (even though she

continued to display a flat, depressed affect). (Tr. 19, 20, 23).

Second, concerning plaintiff’s back and leg pain, the ALJ discussed her diagnoses of

lumbar radiculopathy and facet arthritis of the lumbar region and the fact that her MRI exhibited

“degenerative changes most pronounced at the L4-L5 level.” (Tr. 21 (quoting Tr. 682-83)).

However, the ALJ found that her contention of disabling back and leg pain was undermined by

the fact that she had undergone only conservative treatment and “has not exhibited clinical signs

consistent with her alleged back and leg pain.” (Tr. 21-22). Specifically, examinations revealed

that plaintiff exhibited negative straight-leg raising tests; demonstrated full strength as well as

normal gait and station; exhibited a full range of motion in her cervical spine; could perform one-

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half of a squat; and, as of February 2020, demonstrated a normal range of motion and strength in

her extremities. (Tr. 22).

While plaintiff at times exhibited positive exam findings, it was the ALJ’s duty, and not

this Court’s, to weigh the conflicting evidence and assess the consistency of plaintiff's subjective

complaints. See Reynolds v. Comm’r of Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (citing

Youghingheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246 (6th Cir. 1995)). The ALJ

considered a number of factors in determining symptom consistency, including plaintiffs

treatment course, the objective evidence, and clinical findings on examination. The ALJ’s

decision in this regard finds substantial support in the record. Plaintiff's third assignment of

error is overruled.

IT IS THEREFORE ORDERED THAT:

Based on the foregoing, plaintiffs statement of errors (Doc. 16) is OVERRULED, the

decision of the Commissioner is AFFIRMED, judgment is entered in favor of the

Commissioner, and this case is CLOSED on the Court’s docket.

Date: 7/18/2022 Homa, Xethov-

Karen L. Litkovitz

United States Magistrate Judge

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