# Wiesman v. Commissioner of Social Security

> District Court, S.D. Ohio · June 22, 2023

URL: https://www.frixlaw.com/law-library/cases/10382595

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** June 22, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON

ROCKY W.,1 : Case No. 3:22-cv-00124
:
Plaintiff, : Magistrate Judge Caroline H. Gentry
: (by full consent of the parties)
vs.
:
:
COMMISSIONER OF THE SOCIAL
:
SECURITY ADMINISTRATION,
:
Defendant. :

DECISION AND ORDER

Plaintiff filed applications for Disability Insurance Benefits and Supplemental
Security Income in June 2019. Plaintiff’s claims were denied initially and upon
reconsideration. After a hearing at Plaintiff’s request, the Administrative Law Judge
(ALJ) concluded that Plaintiff was not eligible for benefits because he was not under a
“disability” as defined in the Social Security Act. The Appeals Council denied Plaintiff’s
request for review. Plaintiff subsequently filed this action.
Plaintiff seeks an order remanding this matter to the Commissioner for the award
of benefits or, in the alternative, for further proceedings. The Commissioner asks the
Court to affirm the non-disability decision. For the reasons set forth below, this Court
AFFIRMS the Commissioner’s decision.

1 See S.D. Ohio General Order 22-01 (“The Committee on Court Administration and Case Management
of the Judicial Conference of the United States has recommended that due to significant privacy concerns
in social security cases federal courts should refer to claimants only by their first names and last
initials.”).
I. BACKGROUND
Plaintiff asserts that he has been under a disability since December 1, 2018. At that

time, he was fifty-six years old. Accordingly, Plaintiff was considered a “person of
advanced age” under Social Security Regulations. See 20 C.F.R. §§ 404.1563(e),
416.963(e).2 Plaintiff has a “marginal education.” See 20 C.F.R. § 404.1564(b)(2).
The evidence in the Administrative Record (“AR,” ECF No. 10) is summarized in
the ALJ’s decision (AR, ECF No. 10-2 at PageID 45-58), Plaintiff’s Statement of Errors
(“SE,” ECF No. 11), the Commissioner’s Memorandum in Opposition (“Mem. In Opp.,”

ECF No. 12), and Plaintiff’s Reply Memorandum (“Reply,” ECF No. 13). Rather than
repeat these summaries, the Court will discuss the pertinent evidence in its analysis
below.
II. STANDARD OF REVIEW
The Social Security Administration provides Disability Insurance Benefits and

Supplemental Security Income to individuals who are under a “disability,” among other
eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42
U.S.C. §§ 402, 423(a)(1), 1382(a). The term “disability” means “the inability to do any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for a continuous period of not

less than 12 months.” 20 C.F.R. § 404.1505(a).

2 The remaining citations will identify only the pertinent Disability Insurance Benefits Regulations, as
they are similar in all relevant respects to the corresponding Supplemental Security Income Regulations.
This Court’s review of an ALJ’s unfavorable decision is limited to two inquiries:
“whether the ALJ applied the correct legal standards and whether the findings of the ALJ

are supported by substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406 (6th Cir. 2009); see 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence, shall be conclusive.”).
“Unless the ALJ has failed to apply the correct legal standards or has made findings of
fact unsupported by substantial evidence,” this Court must affirm the ALJ’s decision.
Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020). Thus, the Court “may

not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.” Id.
“Under the substantial-evidence standard, a court looks to an existing
administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the
agency’s factual determinations.” Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019)

(citation omitted). This limited standard of review does not permit the Court to weigh the
evidence and decide whether the preponderance of the evidence supports a different
conclusion. Instead, the Court is confined to determining whether the ALJ’s decision is
supported by substantial evidence, which “means—and means only—‘such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id.

(citation omitted). This standard “presupposes that there is a zone of choice within which
the decisionmakers can go either way, without interference by the courts.” Mullen v.
Bowen, 800 F.2d 535, 545 (6th Cir. 1986). Thus, the Court may be required to affirm the
ALJ’s decision even if substantial evidence in the record supports the opposite
conclusion. Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997).

The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651
(6th Cir. 2009). “[E]ven if supported by substantial evidence, ‘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.’” Id. (citations omitted). Such an error of law will require reversal even
if “the outcome on remand is unlikely to be different.” Cardew v. Comm’r of Soc. Sec.,
896 F.3d 742, 746 (6th Cir. 2018) (internal quotations and citations omitted).
III. FACTS
A. The ALJ’s Factual Findings

The ALJ was tasked with evaluating the evidence related to Plaintiff’s application
for benefits. In doing so, the ALJ considered each of the five sequential steps set forth in
the Social Security Regulations. See 20 C.F.R. § 404.1520. The ALJ made the following
findings of fact:
Step 1: Plaintiff has not engaged in substantial gainful activity since
December 1, 2018, the alleged onset date.

Step 2: He has the severe impairments of degenerative joint disease of the
right knee, obesity, depressive disorder, anxiety disorder, and post-
traumatic stress disorder (PTSD).
Step 3: He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4: His residual functional capacity (RFC), or the most he can do despite
his impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235,
239 (6th Cir. 2002), consists of medium work as defined in 20
C.F.R. § 404.1567(c), subject to the following limitations: “(1)
frequent crouching, crawling, kneeling, stooping and climbing of
ramps and stairs; (2) no climbing of ladders, ropes, and scaffolds; (3)
no work around hazards such as unprotected heights or dangerous
machinery; (4) limited to performing simple, routine, repetitive
tasks; (5) infrequent superficial contact with co-workers and
supervisors (superficial contact is defined as able to receive simple
instructions, ask simple questions, and receive performance
appraisals but as unable to engage in more complex social
interactions such as persuading other people or resolving
interpersonal conflicts); (6) no public contact; (6) limited to jobs
which involve very little, if any, change in the job duties or the work
routine from one day to the next.”

He is unable to perform any of his past relevant work.

Step 5: Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in
the national economy that he can perform.

(AR, ECF No. 10-2 at PageID 47-58.) The ALJ concluded that Plaintiff does not meet the
definition of disability and so is not entitled to benefits. (Id. at PageID 58.)
B. The ALJ’s Symptom Severity Analysis
The ALJ explained the applicable legal standard for evaluating Plaintiff’s
symptoms when determining the RFC, as follows:
In making this finding, the undersigned has considered all symptoms and
the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence, based on
the requirements of 20 CFR 404.1529 and 416.929 and SSR 16-3p. The
undersigned also considered the medical opinion(s) and prior administrative
medical finding(s) in accordance with the requirements of 20 CFR
404.1520c and 416.920c.

In considering [Plaintiff’s] symptoms, the undersigned must follow a two-
step process in which it must first be determined whether there is an
underlying medically determinable physical or mental impairment(s)--i.e.,
an impairment(s) that can be shown by medically acceptable clinical or
laboratory diagnostic techniques--that could reasonably be expected to
produce [Plaintiff’s] pain or other symptoms.

Second, once an underlying physical or mental impairment(s) that could
reasonably be expected to produce [Plaintiff’s] pain or other symptoms has
been shown, the undersigned must evaluate the intensity, persistence, and
limiting effects of [Plaintiff’s] symptoms to determine the extent to which
they limit [Plaintiff’s] work-related activities. For this purpose, whenever
statements about the intensity, persistence, or functionally limiting effects
of pain or other symptoms are not substantiated by objective medical
evidence, the undersigned must consider other evidence in the record to
determine if [Plaintiff’s] symptoms limit the ability to do work-related
activities.

[Plaintiff’s] statements about the intensity and persistence of symptoms,
such as pain, will not be rejected solely because the available objective
medical evidence does not substantiate the statements. Symptoms, such as
pain, are subjective and difficult to quantify. All of the following were,
therefore, taken into account: any medically determinable impairment
resulting in symptom-related functional limitations and restrictions which
the claimant, the treating or examining physician or psychologist, or other
persons report, which can reasonably be accepted as consistent with the
objective medical evidence and other evidence. Factors relevant to
assessing pain or other symptoms include:

(i) Daily activities;
(ii) The location, duration, frequency, and intensity of the pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any
medication taken to alleviate pain or other symptoms;
(v) Treatment, other than medication, received for relief of pain or
other symptoms;
(vi) Any measures used to relieve the pain or other symptoms; and
(vii) Other factors concerning the functional limitations and
restrictions due to pain or other symptoms.
Symptoms, including pain, will be found to diminish [Plaintiff’s] capacity
for basic work activities under certain circumstances. Such circumstances
arise if the extent that the alleged functional limitations and restrictions due
to symptoms can reasonably be accepted as consistent with the objective
medical evidence and other evidence (20 CFR 404.1529, 416.929 and
Social Security Ruling 16-3p).

(AR, ECF No. 10-2 at PageID 51-52.)
At Step Three and in the RFC analysis, the ALJ summarized Plaintiff’s symptoms
and other subjective complaints. For example:
• [Plaintiff] does complain of difficulty comprehending things due to
difficulty with reading and writing as well as being forgetful . . .
(AR, ECF No. 10-2 at PageID 49);

• [Plaintiff] reports experiencing symptoms such as feeling down,
wanting to be alone, feeling the world is a bad place, low self-
esteem, feeling hopeless, not trusting people, worrying, and avoiding
people . . . . He is also noted to suffer from flashbacks, nightmares,
distressing memories, emotional distress and physical reactions from
external cues, avoiding things that remind him of the traumas,
negative thoughts about himself, the world and others, detachment
from others, lack of interest in activities, easily startled, irritability,
trouble sleeping, and being on guard . . . . While in prison, [Plaintiff]
preferred being in the “hole” because he felt safer. It is also noted
that in prison he experienced and participated in physical alteractions
[sic] . . . (Id.);

• Within the record, when asked about his previous work performance
and attendance, [Plaintiff] reported above average work attendance
and exemplary work performance . . . . However, it is also noted in
the record that [Plaintiff] would miss work after one or two days due
to anxiety . . . . (Id.);

• [Plaintiff] is also noted to report worsening of his ability to
concentrate, difficulty sleeping, inability to focus, inability to
complete tasks, becoming side tracked, forgetting appointments,
decreased energy and motivation to finish home renovation projects,
and impaired attention . . . (Id. at PageID 50); and
• [Plaintiff] is also remarked to complain of anxiety and depression,
worrying, racing thoughts, depressed mood, inability to focus, mood
swings, heart palpitations, nightmares, hypervigilance, and high
appetite . . . . He reports that due to his mental health impairments,
[he] goes to the store at night . . . . (Id.)

The ALJ concluded:
The extent of (physical and mental) limitation alleged is largely
unsubstantiated by convincing objective medical evidence or clinical
findings. The evidence generally does not support the alleged loss of
functioning. [Plaintiff] has sufficient physical capacity and adequate mental
acuity to live independently. [Plaintiff] has had no more than conservative
treatment for his impairments. Although he contends that his mental health
impairments significantly affect his ability to work, as explained herein the
objective evidence of record simply does not support that [Plaintiff’s]
cognitive functioning is limited to a degree that would be considered
disabling.

Given the largely normal findings upon examination, it appears that
[Plaintiff] has rather intact physical and mental capabilities. After careful
consideration of the evidence, the undersigned finds that [Plaintiff’s]
medically determinable impairments could reasonably be expected to cause
the alleged symptoms; however, [Plaintiff’s] statements concerning the
intensity, persistence and limiting effects of these symptoms are not
entirely consistent with the medical evidence and other evidence in the
record for the reasons explained in this decision.

(Id. at PageID 52.)

IV. LAW AND ANALYSIS
Plaintiff contends that the ALJ reversibly erred in “evaluating Plaintiff’s mental
RFC and symptom severity” and so failed to carry the Step Five burden. (SE, ECF No. 11
at PageID 701.) For the reasons discussed below, Plaintiff’s assertions are not well-taken.
A. The ALJ’s RFC Is Supported By Substantial Evidence

A claimant’s RFC describes the most he can do in a work setting despite his
physical and mental limitations. 20 C.F.R. § 404.1545(a)(1). Determination of the RFC is
a task reserved for the ALJ. 20 C.F.R. § 404.1546(c); see also Webb v. Comm’r of Soc.
Sec., 368 F.3d 629, 633 (6th Cir. 2004) (“the ALJ is charged with the responsibility of

evaluating the medical evidence and the claimant’s testimony to form an ‘assessment of
his [RFC]’”). When formulating the RFC, the ALJ must consider the claimant’s “ability
to meet the physical, mental, sensory, and other requirements of work.” 20 C.F.R.
§ 404.1545(a)(4). The ALJ must base the RFC on all relevant evidence in the record,
including the claimant’s descriptions of limitations from his impairments and symptoms,
objective medical evidence, medical opinions, other medical evidence, evidence from

non-medical sources, and prior administrative medical findings. See 20 C.F.R.
§ 404.1545(a)(1)-(5).
Plaintiff argues that the ALJ’s RFC does not fully account for his mental
impairments and contends that it should have included a limitation for two absences per
month. (SE, ECF No. 11 at PageID 701-02.) Plaintiff further argues that because such a

limitation would preclude competitive, full-time employment, the ALJ “failed to carry
the Step Five burden.” (Id. at PageID 702.) These contentions are not well-taken.
As an initial matter, Plaintiff’s argument fails because it is based on speculation.
The record contains no medical opinion that Plaintiff would require two absences from
work per month that would preclude competitive employment. Plaintiff instead cites to

testimony, as well as several treatment notes and examination findings, and he essentially
challenges the ALJ’s interpretation of the record. (SE, ECF No. 10 at PageID 701-04.)
Yet as indicated above, the substantial evidence standard precludes this Court from
weighing the evidence and deciding whether the preponderance of the evidence supports
a different conclusion. Biestek, 139 S. Ct. at 1154 (2019). This Court is limited to
determining whether the ALJ’s findings are supported by substantial evidence.

The Court concludes that the ALJ’s findings are, in fact, supported by substantial
evidence.3 The ALJ acknowledged many of Plaintiff’s subjective complaints, which
included anxiety, depression, worry, racing thoughts, decreased energy and motivation,
an inability to focus, impaired attention, mood swings, nightmares, flashbacks,
hypervigilance, low self-esteem, hopelessness, irritability, lack of interest in activities,
and guardedness. (AR, ECF No. 10-2 at PageID 49-50.) The ALJ also acknowledged

Plaintiff’s statement to a medical provider that he would “miss work after one or two
days due to anxiety. . . .” (AR, ECF No. 10-2 at PageID 50.) The ALJ then summarized
the medical records that documented Plaintiff’s treatment for his mental impairments. (Id.
at PageID 49-50, 54-55.) He acknowledged many of the abnormal examination findings
which included a depressed mood, an abnormal mood and affect, impulsive decision-

making, and impaired attention and concentration. (Id.) The ALJ compared these findings
to other examinations which showed coherent thought processes, intact memory, a
normal fund of knowledge, average eye contact, a pleasant and/or cooperative attitude,

3 The ALJ discussed much of the evidence at Step Three and then referred to his Step Three discussion in
the RFC analysis. (See AR, ECF No. 10-2 at 49-55.) Sixth Circuit precedence establishes that this Court
may consider the evaluation of the evidence at other steps of the decision to determine how to “credit the
evidence at issue in this appeal.” See, e.g., Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006);
Smith-Johnson v. Comm'r of Soc. Sec., 579 F. Appx. 426, 435 (6th Cir. 2014); Forrest v. Comm’r of Soc.
Sec., 591 F. App’x 359, 365-66 (6th Cir. 2014); Crum v. Comm'r of Soc. Sec., 660 F. App'x 449, 457 (6th
Cir. 2016). Accordingly, this Court will consider the ALJ’s evaluation of Plaintiff’s mental impairments
earlier in Step Three and in the RFC analysis when evaluating Plaintiff’s assignment of error.
appropriate insight, fair judgment, good impulse control, and no perception abnormalities
or delusions. (Id. at PageID 49-50.)

The ALJ concluded that the balance of the objective evidence did not support
Plaintiff’s allegations of disabling symptoms. (AR, ECF No. 10-2 at PageID 52.) The
ALJ nevertheless accounted for this evidence by limiting Plaintiff to simple, routine, and
repetitive tasks that involve infrequent and superficial contact4 with co-workers and
supervisors, no public contact, and very little, if any, change in the job duties or the work
routine from one day to the next. (Id. at PageID 51.) Because these conclusions are

supported by substantial evidence, the ALJ did not err by failing to include additional
mental limitations in the RFC.
Plaintiff takes issue with the ALJ’s statement that “[g]iven the largely normal
findings upon examination, it appears that [Plaintiff] has rather intact physical and mental
capabilities.” (SE, ECF No. 11 at PageID 701 (citing AR, ECF No. 10-2 at PageID 52).)

Plaintiff contends that mental status examinations throughout the record “consistently and
repeatedly document anxiety at nearly every assessment, in addition to intermittent signs
and symptoms including depression, blunted affect, and nervous affect.” (SE, ECF No.
11 at PageID 701.) According to Plaintiff, “anxiety and depression in and of themselves
can be severely debilitating conditions, regardless of whether some other mental status

exam findings are not abnormal.” (Id.)

4 The ALJ defined superficial contact as “able to receive simple instructions, ask simple questions, and
receive performance appraisals but as unable to engage in more complex social interactions such as
persuading other people or resolving interpersonal conflicts.” (AR, ECF No. 10-2 at PageID 51.)
The ALJ acknowledged that Plaintiff’s medical providers diagnosed depression
and anxiety, among other conditions. (AR, ECF No. 10-2 at PageID 50.) Nevertheless, a

diagnosis alone does not indicate the severity of an impairment, much less show that the
impairment is disabling. See, e.g., Foster v. Bowen, 853 F.2d 483, 489 (6th Cir. 1988);
Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988); Lee v. Comm'r of Soc. Sec., 529 F.
App'x 706, 713 (6th Cir. 2013). The ALJ summarized both the abnormal and normal
objective mental status examination findings in the record. He balanced this evidence—as
well as Plaintiff’s subjective complaints and other evidence—and concluded that

Plaintiff’s allegations of symptom severity were not fully supported. For the reasons
discussed above, these conclusions are supported by substantial evidence.
The medical opinion evidence also supports the ALJ’s conclusions. The record
contains no medical opinion that would support additional mental functional limitations,
beyond those identified by the ALJ. The ALJ evaluated the State agency psychological

consultants’ findings pursuant to 20 C.F.R. § 404.1520c. (AR, ECF No. 10-2 at PageID
54-56.) The consultants found that Plaintiff experienced no more than moderate
impairment in the “Paragraph B” areas of functioning. (AR, ECF No. 10-3 at PageID 99,
102-03, 119, 112-23.) They opined that Plaintiff could understand and remember
“repetitive, short cycle and some moderately complex tasks” in a “low stress, consistent

setting with clear performance expectations and relatively static duties.” (Id.) The
consultants also opined that Plaintiff was limited to superficial and infrequent contact
with the public, coworkers, and supervisors. (Id.) The ALJ concluded that these
assessments were persuasive. (AR, ECF No. 10-2 at PageID 55.)
The ALJ complied with applicable regulations when he discussed the evidence
that the consultants reviewed which supported their opinions, and when he evaluated the

consistency of their opinions with the examination findings and other evidence of record.
(Id. at PageID 54-56.) The ALJ recognized the “medical specialty, Social Security
disability programs expertise, and extensive experience evaluating Social Security
disability cases” of the consultants (Id. at PageID 55-56), which is an appropriate factor
to consider under 20 C.F.R. § 404.1520c(c)(4). Moreover, the ALJ explained that he
included additional limitations in the RFC to further account for the medical records and

Plaintiff’s subjective complaints. (Id. at PageID 55.) Notably, Plaintiff does not argue that
the ALJ failed to comply with applicable regulations in his analysis of the medical
opinion evidence. (SE, ECF No. 11 at PageID 701-04.)
Taken together, the evidence cited by the ALJ constitutes substantial evidence—
that is, “relevant evidence as a reasonable mind might accept as adequate to support a

conclusion” (Biestek, 139 S. Ct. at 1154)—that supports the ALJ’s RFC. Because the
ALJ’s findings are supported by substantial evidence, they cannot be disturbed by this
Court even if substantial evidence in the record would support the opposite conclusion.
Key, 109 F.3d at 273.
B. The ALJ Did Not Reversibly Err in Evaluating Plaintiff’s Symptom
Severity
As the ALJ correctly noted, a Social Security regulation governs the evaluation of
Plaintiff’s symptoms. 20 C.F.R. § 404.1529. Further, when a claimant alleges symptoms

of disabling severity, the Social Security Administration requires ALJs to use a two-step
process for evaluating an individual’s symptoms. SSR 16-3p, 2017 WL 5180304, *3
(revised and republished Oct. 25, 2017).5

At the first step, the ALJ must “determine whether the individual has a medically
determinable impairment that could reasonably be expected to produce the individual’s
alleged symptoms.” SSR 16-3p at *3. The ALJ must make this determination based upon
objective medical evidence in the form of medical signs or laboratory findings. Id.
Medical signs are “anatomical, physiological, or psychological abnormalities established
by medically acceptable clinical diagnostic techniques that can be observed apart from an

individual’s symptoms.” Id. The ALJ will not, however, consider whether the objective
medical evidence supports the alleged severity of the individual’s symptoms. Id.
At the second step, the ALJ must “evaluate the intensity and persistence of an
individual’s symptoms . . . and determine the extent to which an individual’s symptoms
limit his or her ability to perform work-related activities.” SSR 16-3p at *9. The Social

Security Administration “recognize[s] that some individuals may experience symptoms
differently and may be limited by symptoms to a greater or lesser extent than other
individuals with the same medical impairments, the same objective medical evidence,
and the same non-medical evidence.” Id. The ALJ must therefore examine “the entire
case record, including the objective medical evidence; an individual’s statements about

the intensity, persistence, and limiting effects of symptoms; statements and other

5 Although SSRs do not have the same force and effect as statutes or regulations, they are binding on all
components of the Social Security Administration. 20 C.F.R. § 402.35(b)(1).
information provided by medical sources and other persons; and any other relevant
evidence in the individual’s case record.” Id.

When evaluating the intensity, persistence and limiting effects of the claimant’s
alleged symptoms, the ALJ must consider the following factors:
1. Daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication an
individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, an individual receives or has received for
relief of pain or other symptoms;
6. Any measures other than treatment an individual uses or has used to relieve
pain or other symptoms (e.g., lying flat on his or her back, standing for 15
to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning an individual's functional limitations and
restrictions due to pain or other symptoms.
SSR 16-3p at *7-8; cf. 20 C.F.R. § 404.1529(c)(3). The ALJ need only discuss those
factors that are pertinent based upon the evidence in the record. Id. The ALJ's discussion
of the applicable factors “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.” Id. at *10.
Here, the ALJ complied with the two-step process required by 20 C.F.R.
§ 404.1529 and SSR 16-3p. Specifically, the ALJ determined that Plaintiff has medically
determinable impairments (degenerative joint disease of the right knee, obesity,
depressive disorder, anxiety disorder, PTSD, partial amputation of the third finger of the
left hand, and supraventricular tachycardia) that could reasonably cause some of the

alleged symptoms. (AR, ECF No. 10-2 at PageID 48, 52.) The ALJ then considered the
evidence in the record and found that Plaintiff’s statements about the intensity,
persistence, and limiting effects of these symptoms are not entirely consistent with the
medical evidence and other evidence of record. (Id. at PageID 52.) Because the ALJ’s
findings are supported by substantial evidence, the Court must affirm the ALJ’s decision.
Plaintiff challenges the ALJ’s findings at the second step of the analysis, arguing

that objective mental status examinations and Plaintiff’s treatment history support his
allegations of symptom severity. (See SE, ECF No. 11 at PageID 701-04; Reply, ECF
No. 13 at PageID 727-29.) But the ALJ appropriately evaluated Plaintiff’s mental health
symptoms—including his treatment history—pursuant to the applicable regulations.
Substantial evidence supports the ALJ’s conclusions, and so the Court must affirm the

ALJ’s decision.
As discussed above, the ALJ summarized Plaintiff’s subjective complaints related
to his mental impairments. At Step Three and in the RFC analysis, the ALJ noted that
Plaintiff complained of symptoms such as anxiety, depression, worry, racing thoughts,
decreased energy and motivation, an inability to focus, impaired attention, mood swings,

nightmares, flashbacks, hypervigilance, low self-esteem, hopelessness, irritability, lack of
interest in activities, and guardedness. (AR, ECF No. 10-2 at PageID 49-50, 54-55.) The
ALJ also acknowledged Plaintiff’s statement to a medical provider that he would “miss
work after one or two days due to anxiety. . . .” (Id. at PageID 50.) The ALJ cited medical
records that documented Plaintiff’s treatment for his mental impairments, and he
acknowledged many of the abnormal examination findings which included a depressed

mood, an abnormal mood and affect, impulsive decision-making, and impaired attention
and concentration. (Id. at PageID 49-50, 54-55.)
The ALJ compared this evidence to other records that showed coherent thought
processes, intact memory, a normal fund of knowledge, average eye contact, a pleasant
and/or cooperative attitude, appropriate insight, fair judgment, good impulse control, and
no perception abnormalities or delusions. (AR, ECF No. 10-2 at PageID 49-50.) The ALJ

concluded that the balance of the evidence did not support Plaintiff’s allegations of
symptom severity. (AR, ECF No. 10-2 at PageID 52.) The ALJ accounted for this
evidence by limiting Plaintiff to the mental restrictions in the RFC. (Id. at PageID 51.)
The Court finds that the ALJ’s conclusions are supported by substantial evidence and
therefore must be affirmed.

Plaintiff contends that the ALJ erred because he “conceded that it is ‘noted in the
record that [Plaintiff] would miss work after one or two days due to anxiety’ . . . but
inexplicably failed to explain why this limitation was not considered in his RFC
determination.” (SE, ECF No. 11 at PageID 702 (citing AR, ECF No. 10-7 at PageID
446.) This contention is not well-taken.

As an initial matter, the note cited by Plaintiff appears in the subjective complaints
section of a September 2019 Access Counseling Services’ treatment record. (AR, ECF
No. 10-7 at PageID 446.) The note constitutes the provider’s summary of what Plaintiff
told her about his attendance at past jobs, rather than her opinion on the issue. (Id.) The
ALJ therefore was not required to evaluate this statement under the rules for evaluating
medical opinions.

Plaintiff’s argument, then, essentially asserts that the ALJ must individually
address each and every symptom and subjective complaint. But the Sixth Circuit requires
only that the ALJ’s decision “contain specific reasons for the finding on credibility,
supported by the evidence in the case record, and must be sufficiently specific to make
clear to the individual and to any subsequent reviewers the weight the adjudicator gave to
the individual's statements and the reasons for that weight.” Wilson v. Comm'r of Soc.

Sec., 618 F. App’x 281, 286 (6th Cir. 2015). There is no requirement that an ALJ
specifically analyze each and every symptom and complaint. Indeed, courts have rejected
Plaintiff’s assertion. See, e.g., Kohler v. Colvin, No. 3:14-cv-00163, 2015 WL 3743285,
at *5 (S.D. Ohio June 15, 2015) (Ovington, M.J.) (“The ALJ was not required to accept
as true every symptom [the plaintiff] reported and provide a corresponding limitation in

the [RFC] assessment to account for it.”), report and recommendation adopted, 2015 WL
4214469 (S.D. Ohio July 10, 2015) (Rose, D.J.); Dickey-Williams v. Comm'r of Soc. Sec.,
975 F. Supp. 2d 792, 807 (E.D. Mich. 2013) (“As long as the final decision incorporates
all of the claimant's impairments—and here, the ALJ stated she did consider all of [the
claimant’s] ‘subjective symptoms and complaints’—the fact an ALJ did not specifically

state every piece of evidence or every symptom is not an error.”); Chandler v. Comm'r of
Soc. Sec., No. 2:13-CV-324, 2014 WL 2988433, at *11 (S.D. Ohio July 1, 2014) (Kemp,
M.J.) (“[T]he fact an ALJ did not specifically state every piece of evidence or every
symptom is not an error.”)
Here, the ALJ acknowledged that Plaintiff told his provider he had missed work
after one or two days due to anxiety, and stated that he considered “all [of Plaintiff’s]

symptoms and the extent to which these symptoms can reasonably be accepted as
consistent with the objective medical evidence and other evidence” pursuant to 20 C.F.R.
§ 404.1529 and SSR 16-3p. (AR, ECF No. 10-2 at PageID 50-51.) The ALJ’s Step Two,
Step Three, and RFC analyses incorporate all of Plaintiff’s impairments. The ALJ’s
detailed evaluation of Plaintiff’s symptom severity comports with SSR 16-3p and is
supported by substantial evidence. Further, the ALJ accounted for Plaintiff’s social

anxiety in the RFC. Specifically, the ALJ weighed Plaintiff’s subjective complaints with
the balance of the objective evidence, and he limited Plaintiff to a range of simple,
routine tasks with infrequent and superficial contact with coworkers and supervisors, and
no public contact. (AR, ECF No. 10-2 at PageID 51.) The ALJ’s analysis complied with
the applicable regulations and rulings and governing case law. No more was required.

Plaintiff also contends that the ALJ failed to adequately consider Plaintiff’s
attempts to seek treatment for his mental symptoms. (SE, ECF No. 11 at PageID 703-04.)
Plaintiff asserts that he was “tried on a variety of different medications, and his
medications were frequently adjusted/changed.” (Id. at PageID 703 (citing AR, ECF No.
10-7 at PageID 446, 470, 485, 553-54, 561; AR, ECF No. 10-9 at PageID 660-61, 670-

71).) But the ALJ did consider Plaintiff’s treatment history. For example, the ALJ noted
that Plaintiff was seeing psychiatry twice per month for psychotropic medication and was
participating in weekly counseling sessions. (AR, ECF No. 10-2 at PageID 50.) The ALJ
concluded that Plaintiff “appear[ed] to have adequate management of his symptoms”
with treatment. (AR, ECF No. 10-2 at PageID 50.)

This conclusion is supported by substantial evidence in the record. The medical
records show that Plaintiff was receiving outpatient mental health treatment at Solutions
Community Counseling and Recovery Centers (SCCRC) as of November 2018. (AR,
ECF No. 10-7 at PageID 368.) Plaintiff told Jaime Adleta, A.P.R.N. in December 2018
that his primary care physician had prescribed Wellbutrin but he had not experienced
much improvement. (Id. at PageID 393.) Ms. Adleta added Topamax to Plaintiff’s

medication regimen. (Id. at PageID 397.) Plaintiff reported no improvement at the next
visit (id. at PageID 417), and apparently did not return for any additional treatment with
SCCRC. (See AR, ECF No. 10-9 at PageID 652.)
Instead, approximately six months later in June 2019, Plaintiff began treatment at
Access Counseling. Plaintiff’s psychiatrist prescribed Adderall and melatonin in

September 2019. (AR, ECF No. 10-7 at PageID 422, 446.) Plaintiff said that he did not
want to take antidepressants at that time. (Id.) He eventually agreed to start medication
for depression, anxiety, and sleep difficulties in October 2019, and his psychiatrist added
those medications to his regimen. (Id. at PageID 470.) Plaintiff stated in December 2019
that his depression was “off and on”—although with “more good days than bad”—and so

his psychiatrist increased his Wellbutrin dosage. (Id. at PageID 485.) Plaintiff reported
that his sleep had improved and his anxiety and inattention were stable, so his psychiatrist
made no changes to his dosages of Trazodone or Adderall. (Id.) In February 2020,
Plaintiff’s psychiatrist increased his Adderall dosage after Plaintiff complained that the
Adderall was “wear[ing] off too soon” and was “impact[ing] his ability to continue
repairs to his house.” (Id. at PageID 544.) In April 2020, Plaintiff said that his inattention

had improved with the increased Adderall dose. (Id. at PageID 555.) He also reported
having a “good” mood, said his nightmares had resolved with Proazosin, and reported
that his depression and anxiety were well-controlled. (Id.)
Plaintiff complained of some increased symptoms in June and July of 2020. In
June 2020, he reported having issues with focus, concentration, and staying on task. (AR,
ECF No. 10-7 at PageID 560.) He reported paranoia and nightmares. (Id.) He said that

although his depression was improved, it was a seven out of ten (with ten being the worst
depression). (Id.) Despite these increased symptoms, Plaintiff said he was “doing well”
overall (Id.) In July 2020, Plaintiff reported increased depression (a ten out of ten) and
continued difficulties with sleep and nightmares. (Id. at PageID 657.) Plaintiff’s
psychiatrist adjusted Plaintiff’s medications at that time. (Id. at PageID 658.)

Plaintiff complained of continued sleep difficulties at his next visit in August
2020, although he admitted to drinking at least six cups of “high potency coffee” each
day. (AR, ECF No. 10-9 at PageID 670.) Michelle McBride, D.N.P. advised Plaintiff to
eliminate all caffeine and explained that “this is the reason [that] he is not sleeping.” (Id.)
Ms. McBride also started Plaintiff on a trial of Seroquel in response to his report that his

depression was not improving. (Id.)
A few months later in November 2020, Plaintiff reported continued symptoms of
depression, anxiety, paranoia, and ADHD, but also fewer nightmares. (AR, ECF No. 10-9
at PageID 686.) Plaintiff reported palpitations in January 2021, but these were attributed
to his recent COVID-19 diagnosis. (See AR, ECF No. 10-9 at PageID 631, 690, 692.)
Plaintiff also complained of mood swings, anxiety, racing thoughts, and depression. (Id.

at PageID 692, 695.) However, although his mental status examinations during that time
showed anxious and/or depressed moods, Plaintiff’s providers otherwise documented
cooperative behavior, logical thought processes, intact recent and remote memory,
normal focus and concentration, and good insight and judgment. (Id.)
The ALJ’s conclusions regarding Plaintiff’s treatment are supported by substantial
evidence. Additionally, the ALJ did not find that Plaintiff’s treatment was so effective

that he did not need any work restrictions. Instead, the ALJ concluded that Plaintiff’s
treatment provided only “adequate” management of his symptoms, and accounted for this
fact by limiting Plaintiff to simple, routine, and repetitive tasks involving superficial
contact with coworkers and supervisors, no public contact, and few changes in job duties.
(AR, ECF No. 10-2 at PageID 50-51.) Because the ALJ’s findings are supported by

substantial evidence, they cannot be disturbed by this Court even if there were substantial
evidence in the record that would support the opposite conclusion. Key, 109 F.3d at 273.
Finally, Plaintiff’s assertion that the ALJ failed to carry the Step Five burden is not
well-taken. When formulating a hypothetical question for the vocational expert (VE), the
ALJ is required to incorporate “only those limitations that he accepts as credible.”

Griffeth, 217 F. App’x at 429 (quoting Casey v. Sec'y of Health and Human Servs., 987
F.2d 1230, 1235 (6th Cir. 1993)). “[A]n ALJ is not required to accept a claimant's
subjective complaints, and ‘can present a hypothetical to the VE on the basis of his own
assessment if he reasonably deems the claimant's testimony to be inaccurate.’” Griffeth,
217 F. App’x at 429 (quoting Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.
2003)). The ALJ may rely on the VE’s testimony that “such a hypothetical person can

perform a certain job.” Delgado v. Comm'r of Soc. Sec., 30 F. App'x 542, 548 (6th Cir.
2002).
Here, the ALJ asked the VE at the February 2021 hearing whether an individual
with the RFC identified in the decision could perform Plaintiff’s past relevant work, as
well as any other work in the national economy. (AR, ECF No. 10-2 at PageID 88.) The
VE testified that such an individual would be unable to perform Plaintiff’s past relevant

work but could perform other jobs in the national economy. (Id.) In response to additional
hypothetical questions, the VE testified that “absenteeism at a rate of two times monthly”
would preclude competitive employment. (Id. at PageID 89.)
Plaintiff’s argument presumes that the hypothetical posed to the VE regarding
absenteeism accurately represents Plaintiff’s RFC. But as discussed above, no medical

source opined that Plaintiff would require additional mental limitations—much less a
limitation allowing two absences per month. Accordingly, this portion of the vocational
expert’s testimony did not need to be accounted for in the ALJ’s decision.
A disability claimant bears the ultimate burden to prove by sufficient evidence that
he is entitled to disability benefits. 20 C.F.R. § 404.1512. The burden is on the claimant

to furnish medical and other evidence about his impairments and the effects of his
impairments on the ability to work. Id. Here, Plaintiff has not shown that the ALJ erred
by failing to include additional restrictions in the RFC, specifically a limitation that
allows two absences from work per month. As discussed above, the ALJ thoroughly
evaluated the medical and other evidence related to Plaintiff's mental impairments and
symptom severity, and explained his reasons for including the functional restrictions in

the RFC. (AR, ECF No. 10-2 at PageID 49-56.) Plaintiff has not shown that the evidence
before the ALJ required the inclusion of greater limitations than those identified by the
ALJ. Nor has Plaintiff shown that the ALJ erred by declining to rely on VE testimony
that did not accurately reflect Plaintiff's functional limitations. Plaintiff has not met his
burden of proving that the ALJ's decision is unsupported by substantial evidence.

VI. CONCLUSION
For the reasons discussed above, the ALJ properly applied the governing legal
framework and substantial evidence supports his conclusions. Specifically, the ALJ
evaluated Plaintiff’s symptom severity pursuant to the applicable regulations, including
Social Security Ruling 16-3p, and the ALJ’s RFC is supported by substantial evidence.
Accordingly, Plaintiff’s Statement of Errors lacks merit.

IT IS THEREFORE ORDERED THAT:

1. Plaintiff’s Statement of Errors (ECF No. 11) is OVERRULED;

2. The Court AFFIRMS the Commissioner’s non-disability determination;
and

3. The case is terminated on the Court’s docket.

s/Caroline H. Gentry
Caroline H. Gentry
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10382595. Public record. Not legal advice.