Stanko v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

TINA M. S.,1 Case No. 1:22-cv-236

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Tina M. S. 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 her application for disability insurance benefits (DIB). This matter is before the Court

on plaintiff’s Statement of Specific Errors (Doc. 9), the Commissioner’s response (Doc. 11), and

plaintiff’s reply (Doc. 12).

I. Procedural Background

Plaintiff protectively filed an application for DIB in February 2019, alleging disability

since November 17, 2017, due to low vision, polyarticular osteoarthritis, irritable bowel

syndrome, fibromyalgia, chronic migraines, arthritis, depression, memory problems, dizziness,

and hand and feet numbness. (Tr. 212). The applications were denied initially and on

reconsideration. Plaintiff, through counsel, requested and was granted a de novo telephone

hearing before administrative law judge (ALJ) Renita K. Bivins on December 17, 2020. (Tr. 37-

72). Plaintiff and a vocational expert (VE) appeared and testified at the hearing. The day before

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.

this hearing, plaintiff amended her onset date from November 17, 2017 to July 1, 2019. (Tr. 13,

referring to Tr. 207). On April 22, 2021,2 the agency issued an unfavorable decision. (Tr. 7-30).

The Appeals Council denied plaintiff’s request for review, making the ALJ’s decision the final

decision of the Commissioner. (Tr. 1-6).

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).

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).

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.

2 The ALJ signed the decision on March 4, 2021 (Tr. 30), but the agency notified the plaintiff by letter of this date.

( Tr. 7).

2

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

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

is disabled.

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

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

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

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

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

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

in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th

Cir. 1999).

B. The Administrative Law Judge’s Findings

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

fact and conclusions of law:

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

through December 31, 2024.

2. [Plaintiff] has not engaged in substantial gainful activity since July 1, 2019,

the amended alleged onset date (20 CFR 404.1571 et seq.).

3. [Plaintiff] has the following severe impairments: Depressive disorder, bipolar

related disorder; degenerative disc disease; osteoarthritis/polyarticular

osteoarthritis; migraines; fibromyalgia; and anxiety and obsessive-compulsive

disorder (20 CFR 404.1520(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 and

404.1526).

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

[plaintiff] has the residual functional capacity to perform medium work as

defined in 20 CFR 404.1567(c) except as follows: She is able to lift and carry up

to 50 pounds occasionally and 25 pounds frequently; she is able to stand and/or

walk 6 hours per 8 hour day and sit 6 hours per 8 hour day with normal breaks;

she can frequently climb ladders, ropes or scaffolds; she can frequently stoop,

kneel, crouch and crawl; she can frequently handle and finger with bilateral

upper extremities; she can maintain concentration and sustain persistence and

pace to complete simple and detailed tasks, but no complex tasks and no fast

pace requirements such as automated assembly-line; and she can adapt to routine

duties with no fast pace requirements.

6. [Plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).3

7. [Plaintiff] . . . was 49 years old, which is defined as an individual closely

approaching advanced age, on the alleged disability onset date (20 CFR

404.1563).

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

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 claimant is “not disabled,” whether or not the claimant has transferable

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

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

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

that [plaintiff] can perform (20 CFR 404.1569 and 404.1569(a)).4

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

Act, from November 17, 2017, through the date of this decision (20 CFR

404.1520(g)).

(Tr. 15-30).

C. Judicial Standard of Review

3 Plaintiff’s past relevant work was as a real estate sales agent (SVP 5, light exertion) and a payroll clerk (SVP 4,

sedentary exertion). (Tr. 28, 63).

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

representative medium-exertion, unskilled occupations such as linen room attendant (6,000 jobs in the national

economy); counter supply worker (37,000 jobs in the national economy); hospital cleaner (55,000 jobs in the

n ational economy); and laborer, stores (8,900 jobs in the national economy). (Tr. 29, 64-68).

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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, 405 (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) (quoting 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 [plaintiff] on the merits or

deprives the [plaintiff] of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478

F.3d at 746).

D. Specific Errors

Plaintiff’s first assignment of error concerns her fibromyalgia, and she argues primarily

that the ALJ improperly required objective medical evidence of the condition. Plaintiff’s second

assignment of error concerns her migraine headaches, and she argues that the ALJ failed to

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evaluate this severe condition under Listing 11.02, as set forth in Social Security Ruling (SSR)5

19-4p, 2019 WL 4169635 (Aug. 26, 2019) (“Evaluating Cases Involving Primary Headache

Disorders”), or otherwise consider her migraines’ frequency, severity, or duration. Plaintiff’s

third assignment of error concerns the ALJ’s assessment of the medical opinion evidence.

Plaintiff’s fourth assignment of error concerns her mental impairments, and she argues that the

ALJ gave improper weight to certain considerations and ignored others. Plaintiff’s fifth

assignment of error overlaps significantly with her first, second, and fourth and challenges the

ALJ’s assessment of her subjective symptoms.

Plaintiff raises a sixth assignment of error related to step five of the sequential evaluation

process: that the ALJ used “improper hypothetical questions” with the VE. (Doc. 9 at PAGEID

2118). This, however, is effectively a restatement of plaintiff’s assignments of error related to

the ALJ’s determination of plaintiff’s residual functional capacity (RFC). See Winslow v.

Comm’r of Soc. Sec., 566 F. App’x 418, 421-22 (6th Cir. 2014) (quoting Casey v. Sec’y of

Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)) (“It is well established that an

ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only

those limitations accepted as credible by the finder of fact.”). Similarly, plaintiff makes several

references to her belief that Medical-Vocational Guidelines (Grid) Rule 201.14 directs a finding

of disabled in this case. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table 1. This argument,

5 “Social Security Rulings do not have the force and effect of law, but are ‘binding on all components of the Social

Security Administration’ and represent ‘precedent final opinions and orders and statements of policy and

interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272 n.1 (6th Cir.

2 010) (quoting 20 C.F.R. § 402.35(b)(1)).

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however, is premised on the conclusion that plaintiff should have been limited to sedentary

work—thus, the asserted error here is also with the ALJ’s RFC determination.

Because plaintiff’s assignments of error overlap, the Court’s decision is organized

according to the substance of plaintiff’s arguments. As such, the order of the discussion below

differs from the order of plaintiff’s Statement of Specific Errors (Doc. 9).

1. Listing 11.02

In her second assignment of error, plaintiff argues that the ALJ should have considered

Listing 11.02 because the ALJ found her migraines to be a severe impairment. (Doc. 9 at

PAGEID 2111, citing SSR 19-4p). The Commissioner argues in response that the ALJ did not

have to consider Listing 11.02 because plaintiff’s counsel at the administrative level did not raise

it, and plaintiff did not raise a substantial question as to whether she could meet every

component of either Listing 11.02(B) or (D).

At step three of the sequential evaluation process, plaintiff carries the burden to show that

she has an impairment or combination of impairments that meets or medically equals the criteria

of an impairment listed in 20 C.F.R. § 404, Subpart P, App. 1. Foster v. Halter, 279 F.3d 348,

354 (6th Cir. 2001); 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant meets all of the criteria of a

listed impairment, she is disabled; otherwise, the evaluation proceeds to step four. 20 C.F.R. §§

404.1520(d)-(e); Bowen v. Yuckert, 482 U.S. 137, 141 (1987); see also Rabbers, 582 F.3d at 653

(citing 20 C.F.R. § 404.1525(c)(3)) (“A claimant must satisfy all of the criteria to meet the

listing.”).

In evaluating whether a claimant meets or equals a listed impairment, an ALJ must

“actually evaluate the evidence, compare it to [the relevant listed impairment], and give an

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explained conclusion, in order to facilitate meaningful judicial review.” Reynolds v. Comm’r of

Soc. Sec., 424 F. App’x 411, 416 (6th Cir. 2011). Otherwise, “it is impossible to say that the

ALJ’s decision at Step Three was supported by substantial evidence.” Id. (citations omitted).

The ALJ “need not discuss listings that the [claimant] clearly does not meet, especially when the

claimant does not raise the listing before the ALJ.” Sheeks v. Comm’r of Soc. Sec., 544 F. App’x

639, 641 (6th Cir. 2013). “If, however, the record ‘raise[s] a substantial question as to whether

[the claimant] could qualify as disabled’ under a listing, the ALJ should discuss that listing.” Id.

(quoting Abbott v. Sullivan, 905 F.2d 918, 925 (6th Cir. 1990)); see also Reynolds, 424 F.

App’x at 415-16 (holding that the ALJ erred by not conducting any step-three evaluation of the

claimant’s physical impairments where the ALJ found that the claimant had the severe

impairment of back pain, and the claimant had put forth evidence that could meet the applicable

Listing).

Where an ALJ does not discuss a Listing, the Court “must determine whether the record

evidence raises a substantial question as to [a claimant’s] ability to satisfy each requirement of

the listing.” Smith-Johnson v. Comm’r of Soc. Sec., 579 F. App’x 426, 433 (6th Cir. 2014). To

raise a substantial question, “[a] claimant must do more than point to evidence on which the ALJ

could have based” her Listing finding. Id. at 432 (quoting Sheeks, 544 F. App’x at 641-42).

“Rather, the claimant must point to specific evidence that demonstrates [s]he reasonably could

meet or equal every requirement of the listing.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530

(1990)). “Absent such evidence, the ALJ does not commit reversible error by failing to evaluate

a listing at Step Three.” Id. at 433; see also Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359,

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366 (6th Cir. 2014) (finding harmless error in the ALJ’s unexplained step-three findings where

the claimant did not show that he could reasonably meet or equal a Listing’s criteria).

SSR 19-4p indicates that primary headache disorder is not a listed impairment but directs

consideration of Listing 11.02:

Epilepsy (listing 11.02) is the most closely analogous listed impairment for an MDI

of a primary headache disorder. While uncommon, a person with a primary

headache disorder may exhibit equivalent signs and limitations to those detailed in

listing 11.02 (paragraph B or D for dyscognitive seizures), and we may find that his

or her MDI(s) medically equals the listing.

SSR 19-4p, 2019 WL 4169635, at *7. In pertinent part, this Listing describes:

B. Dyscognitive seizures (see 11.00H1b), occurring at least once a week for at

least 3 consecutive months (see 11.00H4) despite adherence to prescribed

treatment (see 11.00C). . . .

. . . .

D. Dyscognitive seizures (see 11.00H1b), occurring at least once every 2 weeks

for at least 3 consecutive months (see 11.00H4) despite adherence to prescribed

treatment (see 11.00C); and a marked limitation in one of the following:

1. Physical functioning (see 11.00G3a); or

2. Understanding, remembering, or applying information (see 11.00G3b(i)); or

3. Interacting with others (see 11.00G3b(ii)); or

4. Concentrating, persisting, or maintaining pace (see 11.00G3b(iii)); or

5. Adapting or managing oneself (see 11.00G3b(iv)).

20 C.F.R. Part 404, Subpart P, App.1, § 11.02.

The ALJ did not err by failing to evaluate Listing 11.02 because plaintiff has not

“point[ed] to specific evidence that demonstrates [s]he reasonably could meet or equal every

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requirement of [Listing 11.02(B) or (D)].”6 Smith-Johnson, 579 F. App’x at 432 (citing Sullivan,

493 U.S. at 530). Plaintiff relies on internist Malinda M. McCoy’s October 2019 “Headaches

Medical Source Statement” (Tr. 996-1001), in which Dr. McCoy checked boxes for associated

symptoms of nausea, vomiting, throbbing, mental confusion, inability to concentrate, mood

changes, visual disturbances, impaired sleep, impaired appetite, and dizziness. (Tr. 996). Dr.

McCoy recorded that plaintiff’s migraines occurred one to three times per week, lasting eight to

24 hours each. (Id.). Dr. McCoy checked boxes for migraine triggers including anxiety, stress,

and lack of sleep and aggravating factors including bright lights, moving around, and noise. (Tr.

997). Dr. McCoy checked boxes indicating that plaintiff could do virtually nothing while

experiencing a migraine and would have to lie down in a dark, quiet room with a cold pack for

relief. (Id.; see also Tr. 50-51 (testimony)). In addition to Dr. McCoy’s statement, plaintiff

highlights her testimony regarding the lightheadedness and drowsiness that accompanied her

migraine medications, that she had had 15 headaches during the month of her hearing before the

ALJ (December 2020), and that insurance issues limited her access to otherwise effective

medication. (Tr. 48, 50-51).

Critical to either relevant Listing 11.02 subsection, however, is a showing that plaintiff’s

migraines persisted at a level of at least one every two weeks for three consecutive months. 20

C.F.R. Part 404, Subpart P, App.1, §§ 11.02(B) and (D). In the very medical source statement

6 Plaintiff appears to argue that her migraine headaches equal Listing 11.02(A) or (C) for “major seizures once a

month.” (Doc. 9 at PAGEID 2111). However, SSR 19-4p by its very terms limits the equivalency analysis to

Listing 11.02(B) and (D). See Gold v. Comm’r of Soc. Sec. Admin., No. CV-19-1494, 2020 WL 13481639, at *4 (D.

Ariz. Feb. 13, 2020) (SSR 19-4p “applies only paragraphs 11.02(B) and (D).”). Plaintiff has not cited, and the Court

has not found, any authority suggesting that SSR-14p applies to Listing 11.02(A) or (C) for generalized tonic-clonic

seizures, which are “characterized by loss of consciousness accompanied by a tonic phase (sudden muscle tensing

causing the person to lose postural control) followed by a clonic phase (rapid cycles of muscle contraction and

r elaxation, also called convulsions).” 20 C.F.R. § Pt. 404, Subpt. P, App. 1, ¶ 11.01(H)(1)(a),

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relied upon by plaintiff for her Listing argument, Dr. McCoy recorded plaintiff’s report that her

headaches were down to one to two per month “as relayed by patient.” (Tr. 998). This is

consistent with plaintiff’s testimony that migraine medications “reduced the[ir] frequency. . . .”

(Tr. 51; see also Tr. 998 (recording plaintiff’s “good response” to a combination of Topamax and

Imitrex)). One to two headaches per month does not meet either relevant subsection of Listing

11.02, which require at a minimum that migraines that occur “at least once every 2 weeks.” 20

C.F.R. Part 404, Subpart P, App.1, § 11.02(D) (emphasis added).

Plaintiff’s reports of more frequent headaches in isolated months does not satisfy the

relevant Listings’ plain language, which requires the denoted migraine frequency to last “for at

least 3 consecutive months. . . .” Id. at §§ 11.02(B) and (D). Cf. Corinne C. v. Comm’r of Soc.

Sec., No. 1:20-cv-1034, 2022 WL 1590818, at *19 (S.D. Ohio May 19, 2022) (the plaintiff raised

a substantial question as to Listing 11.02(B) where the record contained her detailed headache

journal demonstrating that she met its frequency and duration requirements). Plaintiff has also

failed to point to evidence raising a substantial question as to whether her headaches persist

“despite adherence to prescribed treatment. . . .” 20 C.F.R. Part 404, Subpart P, App.1, §§

11.02(B) and (D). Plaintiff asserts that she used migraine medications “without relief” (Doc. 9 at

PAGEID 2112), but this is contradicted by her own testimony, in which she stated that her

migraine medications are effective in reducing their frequency if not their severity (Tr. 51). In

addition, in July of 2020, Dr. McCoy advised plaintiff to use Fioricet in lieu of Imitrex due to the

possibility of rebound headaches (Tr. 1837), but plaintiff did not stop using Imitrex (Tr. 48).

Plaintiff also testified that she was not pursuing admittedly effective Botox injections due to the

burdensome process for obtaining it though her insurance; she did not state that it was

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unavailable. (Tr. 51-52). Finally, plaintiff makes no effort to demonstrate satisfaction of the

Listing 11.02(D) requirement of a “marked” limitation in at least one of the mental functioning

areas. 20 C.F.R. Part 404, Subpart P, App.1, § 11.02(D). All of the foregoing bolsters the

Court’s conclusion that plaintiff has failed to raise a substantial question as to the applicability of

either Listing 11.02(B) or (D).

Plaintiff’s second assignment of error is overruled as it pertains to Listing 11.02(B) or

(D). Given this conclusion, the Court need not consider whether plaintiff’s failure to raise this

Listing at the administrative level, while also represented by counsel, is dispositive.

2. Medical opinion evidence

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

opinions. See 20 C.F.R. § 1520c (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 weight afforded to such

opinions.7 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),8 including those from your medical sources.” 20 C.F.R. § 404.1520c(a). Rather, the

Commissioner will consider “how persuasive” the medical opinion is. 20 C.F.R. § 404.1520c(b).

7 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)).

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

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

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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 evidence9 and supporting

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)

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.”

9 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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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’s argument regarding the ALJ’s evaluation of the state agency’s opinions in her

third assignment of error is the following:

The ALJ erred at [Tr.] at 26-2810 under 20 CFR 404.1520c. The State Agency

evaluations were last done in June, 2019, before the onset date of July, 2019. The

reviewing doctor at [Tr.] at 86 [Dr. Prosperi] is #12, a family doctor and not a

rheumatologist like Dr. Farhey or a neurologist11 for the migraines, Dr. McCoy.

The consultative exams [by Drs. Hassan and Griffiths] were done in 2018, well

before the onset date. The ALJ erred on them at [Tr.] at 27.

(Doc. 9 at PAGEID 2113-14). As to the opinions of Drs. Prosperi, Hassan, and Griffiths, this is

the extent of plaintiff’s argument. Given that the ALJ clearly considered medical records that

post-dated these opinions (see, e.g., Tr. 21-22) and specifically noted such evidence in weighing

these opinions (Tr. 26-27), plaintiff’s first argument lacks merit. See Spicer v. Comm’r of Soc.

Sec., 651 F. App’x 491, 493-94 (6th Cir. 2016) (quoting Blakley, 581 F.3d at 409) (“[A]n ALJ

may rely on the opinion of a consulting or examining physician who did not have the opportunity

to review later-submitted medical records if there is ‘some indication that the ALJ at least

considered these facts’ before assigning greater weight to an opinion that is not based on the full

record.”). Plaintiff’s second argument also lacks merit, as a doctor’s specialty is only one of the

factors an ALJ is to consider in evaluating a medical opinion and not one the ALJ was required

to articulate in her decision. See 20 C.F.R. §§ 404.1520c(b)(2), (c)(4).

10 These pages of the ALJ’s decision discuss the medical opinions of state agency reviewers Anne Prosperi, D.O.,

and Todd Finnerty, Psy.D.; consultative examiners Noor Hassan, M.D., and Brian R. Griffiths, Psy.D.; and Dr.

McCoy.

11 Dr. McCoy is not a neurologist. (See, e.g., Tr. 1827 (record reflecting her department as “Internal Med”)).

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Plaintiff develops further arguments regarding the ALJ’s treatment of Dr. McCoy’s

“Headaches Medical Source Statement” (Tr. 996-1001); rheumatologist Dr. Farhey’s

“Fibromyalgia Medical Source Statement” (Tr. 950-53); and the limitations assessed by the state

agency mental RFC reviewer Dr. Finnerty (Tr. 86-88).12 Beginning with Dr. McCoy, plaintiff

argues that the ALJ would have found her extreme opinions (e.g., that plaintiff would miss four

or more days of work per month) consistent and supportable if the ALJ had considered the

frequency, severity, and duration of her migraines and their effect on her functioning (e.g., being

confined to lying down in a dark room). The Commissioner argues in response that the ALJ

adequately considered the supportability and consistency of Dr. McCoy’s opinion under the

applicable regulation.

The ALJ’s treatment of Dr. McCoy’s October 2019 opinion is supported by substantial

evidence. The ALJ referred to plaintiff’s treatment records since the amended onset date

showing routine and conservative treatment with no significant deficits (Tr. 27), that Botox

injections were effective for migraines (id., referring to Tr. 1827 (July 2020 Dr. McCoy record)),

that a reported uptick in headaches could be related to reported daily use of Imitrex (id., referring

to Tr. 1832 (July 2020 Dr. McCoy record)), and that plaintiff was not reporting headaches in

August 2020 (id., referring to Tr. 1852 (Dr. McCoy record)). The ALJ reasonably determined

that the persuasiveness of Dr. McCoy’s opinion was greatly reduced given the lack of supportive

medical evidence. See 20 C.F.R. § 404.1520c(c)(1). The ALJ also noted that Dr. McCoy’s

extreme opinion was inconsistent with plaintiff’s reported activities of daily living, including

12 Plaintiff discusses Dr. Finnerty’s opinion in her fourth assignment of error. (See Doc. 9 at PAGEID 2116 (“The

State Agency psychological limitations at [Tr. 78 and 84] are accurate, and the ALJ erred in not adopting them.”)).

15

preparing food; baking; eating in restaurants; taking stairs to her bedroom; and some walking,

yardwork, shopping, laundry, and driving. (See Tr. 27; see also Tr. 24 and 26, referring to Tr.

1848 (activities reported by plaintiff to Dr. McCoy in August 2020) and Tr. 42, 54-58

(testimony)). See 20 C.F.R. § 404.1520c(c)(2). While plaintiff argues that the ALJ overstated

her activities of daily living, the ALJ properly considered this evidence and testimony when

evaluating Dr. McCoy’s opinion. See Temples v. Comm’r of Soc. Sec., 515 F. App’x 460, 462

(6th Cir. 2013) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997))

(“[T]he ALJ properly considered [the plaintiff’s ability to perform day-to-day activities] as one

factor in determining whether [the plaintiff’s] testimony was credible.”).

The ALJ discussed both the supportability and consistency of Dr. McCoy’s opinion as

required by the regulations. Her decision in this regard is therefore supported by substantial

evidence.

Plaintiff next argues that the ALJ discounted Dr. Farhey’s fibromyalgia statement,

particularly its notation of fibromyalgia-related fatigue, depression, and tender points, because of

a lack of supporting objective medical evidence, which is inappropriate in the fibromyalgia

context. The Commissioner argues that Dr. Farhey did not provide a medical opinion because

she declined to opine on plaintiff’s functional limitations.

The ALJ’s treatment of Dr. Farhey’s statement is supported by substantial evidence. The

regulations define a “medical opinion” as:

a statement from a medical source about what you can still do despite your

impairment(s) and whether you have one or more impairment-related limitations

or restrictions in the following abilities: . . . .

16

(i) Your ability to perform physical demands of work activities, such as sitting,

standing, walking, lifting, carrying, pushing, pulling, or other physical functions

(including manipulative or postural functions, such as reaching, handling,

stooping, or crouching);

(ii) Your ability to perform mental demands of work activities, such as

understanding; remembering; maintaining concentration, persistence, or pace;

carrying out instructions; or responding appropriately to supervision, co-workers,

or work pressures in a work setting;

(iii) Your ability to perform other demands of work, such as seeing, hearing, or

using other senses; and

(iv) Your ability to adapt to environmental conditions, such as temperature

extremes or fumes.

20 C.F.R. § 404.1513(a)(2).

In her statement, Dr. Farhey did not answer any of the questions related to plaintiff’s

functional limitations. (Tr. 951-53). Under the regulations, it therefore does not constitute a medical

opinion that the ALJ was required to evaluate. See 20 C.F.R. § 404.1520c(a) (“We will articulate in

our determination or decision how persuasive we find all of the medical opinions and all of the prior

administrative medical findings in your case record.”) (emphasis added). Cf. Bowen, 478 F.3d at 749

(“Moreover, exclusive reliance on Dr. Dumas’s opinion is misplaced because he did not submit an

RFC assessment of Bowen.”).13

Plaintiff also faults the ALJ for failing to recontact Dr. Farhey to clarify her statement

regarding plaintiff’s tender points. A duty to recontact is triggered, however, only when “the

evidence does not support a treating source’s opinion . . . and the adjudicator cannot ascertain the

13 Even if it were properly deemed a medical opinion, the ALJ specifically discussed the medical records attached to

Dr. Farhey’s statement (Mar. and July 2019 visit records). (See Tr. 20-21). The ALJ noted that in these records, Dr.

Farhey recorded plaintiff’s reported walking and light exercise and recommended conservative care and exercise.

(Id., referring to Tr. 544, 560, 981, and 990). See 20 C.F.R. § 404.1520c(c)(1). The ALJ further noted that in a

subsequent January 2020 record, Dr. Farhey recorded improvement with plaintiff’s fibromyalgia and recommended

i ncreased activity. (Tr. 21, referring to Tr. 2028 and 2048). See 20 C.F.R. § 404.1520c(c)(2).

17

basis of the opinion from the record.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 273 (6th Cir.

2010) (quoting SSR 96-5p, 1996 WL 374183, at *6 (July 2, 1996)). The ALJ was not required to

recontact Dr. Farhey to obtain an opinion from her where the record contained other medical

opinions. See Deskin v. Comm’r of Soc. Sec., 605 F. Supp. 2d 908, 912 (N.D. Ohio 2008) (an ALJ is

generally required to recontact a medical source for an opinion where there are no opinions in the

record on a claimant’s functional limitations other than nonexamining agency opinions).

Finally, plaintiff appears to argue that the ALJ should have found Dr. Finnerty’s opinion

that she was moderately limited across mental functioning areas more persuasive and adopted the

particular opinion that plaintiff would benefit from an isolated work station. (See Tr. 84-88).

The Commissioner argues that the ALJ referenced evidence inconsistent with Dr. Finnerty’s opinion

and the fact that it was largely supported by only a single, pre-amended onset consultative

examination. The Commissioner also argues that the ALJ was not required to adopt every restriction

recommended in Dr. Finnerty’s opinion because the ALJ found it only somewhat persuasive.

The ALJ did not err in her assessment of Dr. Finnerty’s opinion. The ALJ noted that Dr.

Finnerty’s opinion appeared to be supported only by a one-time consultative examination by Dr.

Griffiths. (Tr. 28, referring to Tr. 471-77). See 20 C.F.R. § 404.1520c(c)(1). The ALJ also

discussed that Dr. Finnerty’s opinion was inconsistent with later medical records showing

limited clinical findings and plaintiff’s own reported lack of mental health symptoms. (See Tr.

28, referring to Tr. 1832 (July 2020 Dr. McCoy record) (“Mental status is at baseline. . . . Mood

normal.”); Tr. 1852-53 (Aug. 2020 Dr. McCoy record) (“[N]egative for . . . dysphoric mood.

The patient is not nervous/anxious. . . . “Mood normal.”); see also Tr. 23, referring to Tr. 612-

16 (Mar. 2019 visit with CNP in Dr. McCoy’s office) (noting symptoms of depression, not

18

anxiety); Tr. 545, 1932, and 1980-81 (Mar., July, and Oct. 2019 Dr. Farhey records) (though

depression reported, observing normal mood, affect, behavior, judgment, and thought content)).

See 20 C.F.R. § 404.1520c(c)(2). The ALJ also noted that Dr. Griffiths’ examination was

“unremarkable” and he did not note anxiety or psychosis, all of which was consistent with the

mental limitations in her RFC determination and suggested inconsistency between Dr. Finnerty’s

limitations and Dr. Griffiths’ findings. (Tr. 22, referring to Tr. 474).

The ALJ discussed the supportability and consistency of Dr. Finnerty’s opinion, and the

Court therefore finds that the ALJ’s assessment thereof is supported by substantial evidence.

“The ALJ was not required to include restrictions in the RFC that the ALJ did not accept.”

Queen v. Comm’r of Soc. Sec., No. 2:19-cv-2426, 2020 WL 6268234, at *3 (S.D. Ohio Oct. 26,

2020) (citing Hall v. Comm’r of Soc. Sec., No. 1:17-cv-363, 2018 WL 3524467, at *4 (S.D. Ohio

July 23, 2018), report and recommendation adopted, 2018 WL 4031060 (S.D. Ohio Aug. 23,

2018)).

For the foregoing reasons, the ALJ’s assessments of the opinions of Drs. Prosperi, Hassan,

Griffiths, Mc. Coy, Farhey, and Finnerty are supported by substantial evidence. Plaintiff’s related

objections in her third and fourth assignments of error are overruled.

3. Subjective symptom evaluation

Plaintiff asserts a discrete assignment of error related to the ALJ’s assessment of her

subjective symptoms (assignment of error five), which overlaps significantly with assignments of

error one (fibromyalgia), two (migraines), and four (mental impairments). Plaintiff argues that

the ALJ improperly required objective medical evidence of fibromyalgia; failed to acknowledge

evidence documenting plaintiff’s corresponding poor sleep, fatigue, and depression; and

19

overstated plaintiff’s activities of daily living.14 Regarding her migraines, plaintiff argues that

the ALJ did not consider their frequency, severity or duration or the effects of her related

medications. Plaintiff also argues that the ALJ improperly suggested that only surgical treatment

for fibromyalgia and migraines would evidence symptom severity on par with the limitations that

she alleges. Regarding her mental impairments, plaintiff argues that the ALJ unduly relied on

the records of non-mental health specialists, did not discuss all of her related symptoms and

medications, and gave disproportionate weight to plaintiff’s lack of emergency or specialized

care. Finally, plaintiff implies that the ALJ ignored her strong work record in assessing the

symptoms of her impairments.

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 (Mar. 16, 2016) (superseding SSR 96-7p). 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. 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

14 Plaintiff makes this latter argument with respect to her fibromyalgia, migraines, and mental impairments. (See

D oc. 9 at PAGEID 2111, 2113, and 2115).

20

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

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).

21

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

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

22

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)).15

a. Fibromyalgia

Plaintiff argues that the ALJ erred by requiring objective medical evidence in her analysis

of plaintiff’s fibromyalgia. Plaintiff cites Preston v. Sec’y of Health & Hum. Servs., 854 F.2d

815, 820 (6th Cir. 1988), Rogers, 486 F.3d at 244, and Lawson v. Astrue, 695 F. Supp. 2d 729,

745 (S.D. Ohio 2010), as supporting her position. The Commissioner argues that objective

medical evidence remains relevant—even if to a limited extent in the fibromyalgia context. In

any event, the Commissioner argues that the ALJ’s decision reflects consideration of plaintiff’s

reported symptoms, activities of daily living, treatments, and inconsistent statements regarding

her work history and not solely (or even primarily) objective medical evidence.

In Preston, the Sixth Circuit recognized that “standard clinical tests and observations” for

assessing neurologic and orthopedic causes of pain—such as CT scans, x-rays, muscle strength,

neurological reactions, and range of motion—“are not highly relevant in diagnosing

[fibromyalgia] or its severity.” 854 F.2d at 820. In Rogers, the Sixth Circuit noted that a patient

with fibromyalgia may not have “objectively alarming signs” and that its diagnosis requires

testing focal points for tenderness and ruling out other conditions. 486 F.3d at 243-4 (citing

Preston, 854 F.2d at 820). In Lawson, the Court held that a claimant with fibromyalgia’s

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

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

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.”).

23

“normal” clinical findings do not necessarily “undermine the limitations” endorsed by a treating

physician. Id. at 745.

The ALJ’s assessment of plaintiff’s fibromyalgia symptoms is supported by substantial

evidence. Plaintiff argues that Lawson “recognized that tender points are not required for

fibromyalgia.” (Doc. 9 at PAGEID 2109). In fact, the Lawson Court noted that “most experts

no longer require a specific number of tender points” to diagnose fibromyalgia. Lawson, 695 F.

Supp. 2d at 735 (emphasis added) (quoting Merck Manual Online Medical Library,

http://www.merck.com). The ALJ here acknowledged that plaintiff’s fibromyalgia was

“consistently noted by medical professionals since the amended alleged onset date” but also that

“no specific description of deficits arising from this condition” were provided, such as “specific

tender point locations. . . .” (Tr. 24-25). (See also, e.g., Tr. 20, referring to Tr. 545 (Mar. 2019

Dr. Farhey record) (multiple tender points); Tr. 21, referring to Tr. 1153 (Oct. 2019 Dr. Farhey

record) (multiple tender points)). Plaintiff’s rheumatologist, Dr. Farhey, failed to opine at all

regarding whether plaintiff had any functional limitations associated with the fibromyalgia

diagnosis. See Clemow v. Comm’r of Soc. Sec., No. 1:20-cv-592, 2021 WL 6125021, at *4 (S.D.

Ohio Dec. 28, 2021) (quoting SSR 12-2p, 2012 WL 3104869, at *2 (April 3, 2014)) (“SSR 12-2p

[Evaluation of Fibromyalgia] continues to require ‘sufficient objective evidence to support a

finding that the person’s impairment(s) so limits the person’s functional abilities that it precludes

him or her from performing any substantial gainful activity.’”) (second emphasis added). The

Court finds no error in the ALJ’s consideration of plaintiff’s tender points.

In addition, contrary to plaintiff’s suggestion otherwise, the ALJ considered her reported

fatigue (see, e.g., Tr. 20, referring to Tr. 420 (Jan. 2019 Dr. McCoy record); Tr. 22, referring to

24

Tr. 1848-49 (Jan. 2019 and Aug. 2020 Dr. McCoy records)) and included a detailed summary of

records related to plaintiff’s mental impairments (see Tr. 22-23). Within that summary,

however, the ALJ noted that various elements of the corresponding records were inconsistent

with related functional limitations. (See, e.g., Tr. 23, referring to Tr. 1932, 2032 (July 2019 and

Jan. 2020 Dr. Farhey records) (normal mood, affect, behavior, judgment, and thought content);

Tr. 1831-32, 1852-53 (July and Aug. 2020 Dr. McCoy records) (depression not reported; normal

mood, behavior, thought content and judgment recorded)).

The ALJ also considered that Dr. Farhey recommended physical activity (Tr. 20,

referring to Tr. 560 (Mar. 2019 Dr. Farhey record) (referral to physical and aquatic therapies);

Tr. 21, referring to Tr. 978, 981, and 990 (July 2019 Dr. Farhey record) (recommending

continued exercise and similar treatment as was recommended in March 2019)) and that plaintiff

reported a positive response to medications (see, e.g., Tr. 20, referring to Tr. 420 (Jan. 2019 Dr.

McCoy record) (cannabinoids helped pain “tremendously”); Tr. 21, referring to Tr. 2028 (Jan.

2020 Dr. Farhey record) (noting improvements with medication and fewer flares); Tr. 1827 (July

2020 Dr. McCoy record) (noting plaintiff’s report that fibromyalgia symptoms were improving

with medication)). See 20 C.F.R. §§ 404.1529(c)(3)(ii), (iv), and (v).

Plaintiff also faults the ALJ for referring to conservative treatments.16 (See, e.g., Tr. 25

and 27). Courts routinely, however, uphold an ALJ’s consideration of the conservative nature of

a claimant’s treatment as one factor in evaluating a claimant’s subjective symptoms. See Kepke

v. Comm’r of Soc. Sec., 636 F. App’x 625, 638-39 (6th Cir. 2016) (claimant’s routine and/or

16 Plaintiff makes this argument with respect to her fibromyalgia, migraines, and mental impairments. (See Doc. 9

at PAGEID 2115, 2117).

25

conservative treatment for allegedly disabling impairments supported ALJ’s assessment) (citing

Lester v. Soc. Sec. Admin., 596 F. App’x 387, 389 (6th Cir. 2015) (finding that the ALJ

reasonably discounted a doctor’s proposed limitations because, among other things, the claimant

was receiving conservative treatment)); McKenzie v. Comm’r of Soc. Sec., 215 F.3d 1327, 2000

WL 687680, at *4 (6th Cir. May 19, 2000) (unpublished opinion) (“Plaintiff’s complaints of

disabling pain are undermined by his non aggressive treatment.”)). The Court appreciates that

the extent of treatment pursued does not necessarily translate into the extent to which a claimant

is functionally limited. Nevertheless, the Court is not persuaded that the ALJ’s consideration of

plaintiff’s level and type of treatment was inappropriate.

Plaintiff also argues that the ALJ’s references to surgery and emergency care, in

particular, were inapposite to fibromyalgia, migraines, or mental impairments. In context,

however, the ALJ’s reference to a lack of surgical interventions appears to refer to plaintiff’s

musculoskeletal or other impairments. (See Tr. 25). And while evidence of hospitalization is not

required to support a finding of disabling mental impairments, it is a factor appropriately

considered by the ALJ. See Tracey v. Comm’r of Soc. Sec., No. 2:14-cv-1379, 2015 WL

5450915, at *3 (S.D. Ohio Sept. 17, 2015).

Finally, as discussed in connection with the medical opinion evidence, the ALJ

appropriately considered plaintiff’s reported daily activities in connection with the symptom-

consistency analysis. (See, e.g., Tr. 22, 24). See Temples, 515 F. App’x at 462 (citing Walters,

127 F.3d at 532) (“[T]he ALJ properly considered [the plaintiff’s ability to perform day-to-day

activities] as one factor in determining whether [the plaintiff’s] testimony was credible.”). See

also 20 C.F.R. § 404.1529(c)(3)(i).

26

b. Migraines

Plaintiff argues that the ALJ failed to comply with SSR 19-4p when evaluating her

migraine symptoms—in particular, the ALJ did not address their frequency, severity, and

duration. The Commissioner argues that ALJ properly found that their reported severity was

inconsistent with other record evidence—such as treatment history, improvements with

medications, and decreasing issues with side effects.

Where SSR 19-4p discusses the assessment of migraines in the context of the RFC

determination—as opposed to the assessment of whether migraines are a medically determinable

impairment that equals a Listing—it states:

We consider the extent to which the person’s impairment-related symptoms are

consistent with the evidence in the record. For example, symptoms of a primary

headache disorder, such as photophobia, may cause a person to have difficulty

sustaining attention and concentration. Consistency and supportability between

reported symptoms and objective medical evidence is key in assessing the RFC.

SSR 19-4p, 2019 WL 4169635, at * 8 (emphasis added).

The ALJ’s assessment of plaintiff’s migraine symptoms is consistent with this guidance

and supported by substantial evidence. As noted above, the ALJ referred to treatment records

since the amended onset date from Dr. McCoy showing that migraine medications were effective

(Tr. 25, referring Tr. 1827 (July 2020 Dr. McCoy record)), lightheadedness and dizziness had

dropped as a symptom/side-effect of her related medications (id., referring to Tr. 1831, 1852

(July and Aug. 2020 Dr. McCoy records)), that a reported uptick in headaches could be related to

Imitrex (Tr. 27, referring to Tr. 1832 (July 2020 Dr. McCoy record)), and that plaintiff was not

reporting headaches as a symptom by August 2020 (id., referring to Tr. 1852 (Dr. McCoy

record)). See 20 C.F.R. §§ 404.1529(c)(3)(ii) and (iv). As noted above, the ALJ also fairly

27

considered plaintiff’s activities of daily living as part of her overall assessment of the severity of

plaintiff’s symptoms, see Temples, 515 F. App’x at 462, and did not err by considering plaintiff’s

relatively conservative treatment regimen, Kepke, 636 F. App’x at 638-39. See 20 C.F.R. §

404.1529(c)(3)(i).

c. Mental health impairments

Plaintiff argues that the ALJ overstated the lack of signs consistent with disabling mental

health impairments because the records that she referenced are those of non-mental-health

specialists. Plaintiff also argues that the ALJ ignored her sleep issues and did not mention all of

her mental-impairment-related medications.

The ALJ’s assessment of plaintiff’s mental impairment symptoms is supported by

substantial evidence. As to the first argument, plaintiff elsewhere acknowledges that plaintiff did

not seek treatment from mental health specialists (Doc. 9 at PAGEID 2115), so the evidence that

plaintiff argues that the ALJ should have relied on is not in the record. Cf. Foster, 279 F.3d at

353 (“The burden lies with the claimant to prove that she is disabled.”). As to the second

argument, the ALJ specifically referenced plaintiff’s reported four to six hours of nightly sleep.

(See Tr. 25). The fact that the ALJ did not mention every one of plaintiff’s medications for her

mental impairments is not error, particularly where plaintiff fails to identify any functional

limitation related thereto. See Caleb H. v. Comm’r of Soc. Sec., No. 2:21-cv-3831, 2022 WL

3353909, at *10 (S.D. Ohio Aug. 15, 2022) (the fact that an ALJ does not cite specific evidence

does not indicate that it was not considered). Moreover, the ALJ mentioned plaintiff’s use of

medications for her mental impairments in the past (see Tr. 23) and emphasized plaintiff’s

28

testimony that she did not treat with a mental health specialist or take related medication for her

mental impairments as of the date of the hearing (Tr. 25, referring to Tr. 47 (testimony)).

Finally, the ALJ clearly considered plaintiff’s work history, as she referenced plaintiff’s

inconsistent statements related thereto. (See Tr. 22). In any event, strong work history is only

one element of the symptom-consistency evaluation. See 20 C.F.R. § 404.1529(c)(3). The Court

finds no error related to the ALJ’s consideration of plaintiff’s work history.

In sum, the ALJ’s determination regarding the consistency of plaintiff’s reported

symptoms associated with her fibromyalgia, migraines, and mental impairments with the record

is supported by substantial evidence. The ALJ was not required to discuss every symptom-

consistency assessment factor, see White, 572 F.3d at 287, and her analysis reflects due

consideration of the regulatory criteria. To the extent that plaintiff challenges the ALJ’s

assessment of her subjective symptoms in assignments of error one, two, four, and five, they are

overruled.

4. Step five/Grid errors

Plaintiff’s arguments related to the ALJ’s questions of the VE and the Grid asserted in

assignment of error six and elsewhere fail. The Court concludes that the ALJ made no error in

her evaluation of the medical opinion evidence or plaintiff’s subjective symptoms. Plaintiff has

not otherwise raised error with respect to the ALJ’s RFC determination. Because these

arguments depend on the conclusion that the ALJ’s RFC determination is not based on

substantial evidence, they are without merit. Assignment of error six is overruled.

29

HI. Conclusion

Based on the foregoing, plaintiff's Statement of Errors (Doc. 9) is OVERRULED, and

the Commissioner’s non-disability finding is AFFIRMED. IT IS THEREFORE ORDERED

that judgment be entered in favor of the Commissioner and this case is closed on the docket of

the Court.

Karen L. Litkovitz

United States Magistrate Judge

30