Arden v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KEVIN A.1, Case No. 1:22-cv-307

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

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

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

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

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

errors (Doc. 9), the Commissioner’s response in opposition (Doc. 11), and plaintiff’s reply.

(Doc. 12).

I. Procedural Background

Plaintiff protectively filed his applications for DIB and SSI on October 22, 2019, alleging

disability since August 29, 2019, due to Guillain-Barre Syndrome (GBS), depression, scoliosis,

anxiety disorder, vision problems, neuropathy, flashbacks, night terrors, and nerve damage. (Tr.

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

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

Melinda Wells on April 26, 2021. Plaintiff and a vocational expert (VE) appeared telephonically

and testified at the ALJ hearing. (Tr. 32-53). On May 28, 2021, the ALJ issued a decision

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.

denying plaintiff’s applications. (Tr. 15-26). 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)

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

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

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

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

process for disability determinations:

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

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

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

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

disabled.

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

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

requirement, the claimant is disabled.

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

past relevant work, the claimant is not disabled.

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.

2

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 September 30, 2023.

2. [Plaintiff] has not engaged in substantial gainful activity since August 29,

2019, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. [Plaintiff] has the following severe impairments: Gillian Barre Syndrome;

post-traumatic stress disorder; unspecified depressive disorder;

amphetamine-type substance disorder; cannabis use disorder; and alcohol use

disorder (20 CFR 404.1520(c) and 416.920(c)).

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

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

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

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

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

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

defined in 20 CFR 404.1567(a) and 416.967(a) except he can occasionally

climb ramps and stairs, balance over uneven terrain, stoop, kneel, crouch, and

crawl; and never climb ladders, ropes, or scaffolds. He can never work at

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unprotected heights, drive commercially, or work around dangerous moving

machinery. He can perform simple tasks in a routine workplace that involves

occasional interaction with others.

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

416.965).2

7. [Plaintiff] was born … [in] 1981 and was 38 years old, which is defined as a younger

individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and

416.963).

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

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

using the Medical-Vocational Rules as a framework supports a finding that [plaintiff]

is “not disabled,” whether or not [plaintiff] has transferable job skills (See SSR 82-41

and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering [plaintiff]’s age, 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, 404.1569(a), 416.969, and 416.969(a)).3

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

Act, from August 29, 2019, through the date of this decision (20 CFR

404.1520(g) and 416.920(g)).

(Tr. 17-25).

C. Judicial Standard of Review

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

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

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

2 Plaintiff’s past relevant work was as a handy man, a skilled, medium, but heavy as performed, position.

(Tr. 24, 50).

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

representative sedentary, unskilled occupations in the national economy such as inspector (75,000 jobs),

table worker (25,000 jobs), and sorter (50,000 jobs). (Tr. 24-25, 50-51).

4

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

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

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

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

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

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

than a preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

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

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

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

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

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

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

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

D. Pertinent Medical Evidence

1. Treatment Records

Plaintiff was hospitalized for generalized weakness and diagnosed with Guillain-Barre

Syndrome in September 2019. (Tr. 317-609). During this hospitalization, the occupational

therapist noted that plaintiff expressed anxiety with sleeping and at nighttime. (Tr. 460).

Plaintiff requested Valium to relieve anxiety, indicating he took the medication at home. (Tr.

488).

5

Plaintiff treated with neurologist Tamer Y. Abou-Elsaad, M.D., following the September

2019 hospitalization. In October 2019, plaintiff reported having difficulties with flashbacks and

anxiety from his recent illness. (Tr. 315). Dr. Abou-Elsaad diagnosed plaintiff with GBS,

numbness, acute generalized weakness with areflexia, intractable neuropathic pain, and

depression. (Tr. 316).

On February 26, 2020, plaintiff saw Bryan Grooms, D.O., for medication refills. (Tr.

702). Plaintiff complained of neuropathy, gastroesophageal reflux, arthritis, and chronic back

pain. (Tr. 703). Plaintiff also reported:

PTSD secondary to GBS . . . Has tried to establish with counselors – mainly SMH

or FRS, but has never had good results. Taking diazepam for anxiety symptoms –

mostly in evenings related to Guillane [sic] Barre – states he was in hospital for

several weeks, thought he was going to die. Continues to recover – “You don’t

know how stressful that is mentally.”

(Tr. 703). Plaintiff’s physical examination revealed limited ambulation, limited range of motion,

abnormal deep tendon reflexes, and tenderness along the dorsal surface of his right foot. (Id.).

However, his respiratory and cardiovascular examinations revealed no abnormalities, and his

muscular strength and tone were normal with no contractures, malalignments, cyanosis, edema,

or varicosities. (Id.). Dr. Grooms noted his mental status as “active and alert and depressed”

with good judgment, insight, and memory. (Id.).

On April 14, 2020, plaintiff reported tingling in his right foot and chronic low back pain.

(Tr. 701). Dr. Grooms noted, “Chronic pain syndrome secondary to lumbar DDD and traumatic

arthropathy of right foot after crush injury, PTSD secondary to GBS . . . – overall, he is doing

better.” (Id.).

6

On April 21, 2020, plaintiff sought medication refills via a telehealth appointment with

Dr. Abou-Elsaad. (Tr. 716). Dr. Abou-Elsaad advised plaintiff to continue taking gabapentin for

daily episodes of “distal paresthesias in his feet and leg” that “can be moderate to severe and

duration is persistent with waxing and waning features.” (Id.). Plaintiff reported that the pain

could worsen with activity or standing, but he denied suicidal ideation, severe sleep disturbance

or insomnia, and took valium “as needed.” (Id.).

Plaintiff presented to Robert E. Newman, M.D., on June 3, 2020 “to establish care and

advises he is currently trying to get his medical marijuana card so he can get off the Valium [due

to] the side effects.” (Tr. 663). Plaintiff complained of tick bites because he “works as a[n]

independent self-employed contractor” which exposed him to ticks. (Id.). At that visit, plaintiff

denied tingling, numbness, joint pain, swelling, myalgia, anxiety, depression, difficulty sleeping,

and suicidal ideation. (Tr. 664). Physical examination revealed full range of motion in all

extremities, but Dr. Newman noted “wobbly gait present, unsteady when standing.” (Tr. 665).

On June 19, 2020, plaintiff followed up with Dr. Newman after an emergency room visit

for vomiting and abdominal pain. (Tr. 671). Plaintiff was “hoping to go into rehab for

discontinuation of Norco. He is looking for a source of Valium to help with symptoms left over

from [GBS].” (Id.). At that visit, plaintiff denied muscular weakness, tingling, numbness, joint

pain, limitation of motion, back pain, anxiety, and depression. (Tr. 673). Physical examination

revealed no joint or limb tenderness, edema, or ecchymosis. (Tr. 674). Plaintiff’s extremities

exhibited normal tone and strength with no atrophy or abnormal movements. (Id.). He exhibited

appropriate affect, intact judgment and insight, normal mood, and “normal gait, able to stand

without difficulty.” (Tr. 675).

7

On June 26, 2020, plaintiff sought refills on his pain medications and valium. (Tr. 696).

His chief complaint involved only gastrointestinal concerns. (Id.). His physical exam revealed

that he was “[a]mbulating normally” and his “muscle tone and strength [were] normal” with

“[f]ull range of motion in all extremities.” (Tr. 698). Plaintiff reported symptoms of depression,

anxiety and sleep disturbance, but Reagan Poe, P.A., noted that on examination plaintiff was

active and alert with normal mood and affect and good judgment and insight. (Id.). Plaintiff’s

July 27, 2020 visit to P.A. Poe similarly involved a “follow up” for “anxiety, refill of Valium”

with “[n]o new problems.” (Tr. 694). Poe continued plaintiff on 5 milligrams of valium per day.

(Tr. 695).

Plaintiff presented to Dr. Abou-Elsaad on July 7, 2020, “for follow up regarding: History

of polyneuropathy and history of GBS.” (Tr. 719). Progress notes state:

Since his last visit, he continues to [take] gabapentin 800 mg 3 times daily. He

denies any side effect from such medications. He quit taking his Percocet and

now he is [taking] Valium 5 mg daily for recurrence of muscle spasticity. He

continues to have intermittent numbness and tingling in his hands and feet.

Degree is mild to moderate and duration is minutes. No triggers or other

associated symptoms. No relieving factors. Frequency is sporadic but not daily.

He denies any recurrent falling, weakness, neck or back pain, breathing

difficulties or headaches. He is able to function through his ADLs and he works

daily. He is trying to get license for medical marijuana to help with muscle spasm

instead of taking Valium daily. He has been seen by a new PCP. No other new

symptoms today. Other review of system was unremarkable.

(Tr. 719). Physical examination revealed 5/5 strength in all extremities with sensation “normal

to all modalities in both arms and decreased vibration and touch from the knees down to his

ankle. No change.” (Tr. 720-21). “Gait steady. No change.” (Tr. 721).

On October 5, 2020, plaintiff saw Amber Thiel, N.P., for his medication refill. (Tr. 683).

According to medical records from that visit:

8

pt presents today for a check up and medication refill on pantoprazole, albuterol,

and valium. pt states he takes valium for history of guillain barre syndrome where

he had to learn how to walk and do his ADL [activities of daily living] all over

again 1 year ago. he states he has muscle aches/spasms daily and the gabapentin

and valium help. he states medications work well and denies any side effects.

(Tr. 685).

On March 23, 2021, plaintiff presented to Dr. Abou-Elsaad for his six month follow up

regarding his history of polyneuropathy and GBS. (Tr. 767). Progress notes provide:

Since his last visit, he continues to have intermittent dysesthesias in both arms and

legs and nondermatomal pattern. He was seen recently at Clermont ED for chest

pain and neck pain. He was not able to refill his gabapentin for the last several

weeks. He quit taking benzodiazepine and Valium. He denies recent falling or

injury. Occasional joint pain. No headache, dysphagia or dysarthria. He was

diagnosed with COVID-19 2 months ago. No other new symptoms today. No

other given aggravating factors. Other review of system was unremarkable.

(Tr. 767). Dr. Abou-Elsaad restarted plaintiff on gabapentin at a lower dose of 400 mg 3 times

per day. (Tr. 768).

2. Consultative Examiner Jessica Twehues, Psy.D.

Dr. Twehues examined plaintiff for disability purposes on January 8, 2020. (Tr. 652).

Plaintiff reported seeking disability compensation due to GBS and depression. (Tr. 652).

He described drinking alcohol heavily as a teenager after sexual abuse began around age

15, but he does not consider his current alcohol use problematic. (Tr. 653). Plaintiff reported

occasional use of methamphetamine with most recent use occurring a few months prior to the

examination. He stated that he uses marijuana multiple times per day and has since the age of

18. (Id.).

Plaintiff reported that he had never participated in counseling but had been prescribed

Valium for the past five to ten years. (Tr. 654). He described his mood as angry and depressed

9

“most of the time” and reported feeling depressed since childhood. (Id.). He indicated that

nightmares about past trauma keep him from sleeping well sometimes and that anxiety and

health problems decrease his appetite. (Tr. 654). Plaintiff described himself as having limited

energy and reduced motivation as well as a quick temper that sometimes requires that he remove

himself from situations before it gets out of control. (Id.). He noted suffering anxiety and panic

attacks when in crowds “but is generally able to relate fairly pleasantly with others in public.”

(Id.).

Plaintiff reported that he often felt paranoid or defensive at work, and he described an

inconsistent work history. (Tr. 654). He claimed to have been fired from multiple jobs for

“being rough” and “having a poor attitude with others,” but he “struggled to elaborate further.”

(Id.). He indicated that poor physical health, depression, and anxiety made it difficult for him to

work. (Id.).

As for activities of daily living, plaintiff spends his day caring for his wife, as she was

“quite ill.” (Tr. 654). He also reported completing household chores with difficulty and

showering every other day. (Id.). He enjoys painting and drawing. (Id.).

Plaintiff was pleasant and cooperative with a normal gait, but he appeared to be sleeping

across some chairs in the waiting room when Dr. Twehues greeted him. (Tr. 655). His speech

and receptive language skills were adequate with logical, coherent, and goal-directed thoughts.

(Id.). His vocabulary and grammatical structure suggested normal intellectual abilities. (Id.).

Plaintiff’s mood appeared depressed, and he was tearful when speaking about his

difficulties. However, his “affect seemed appropriate to content discussed.” (Tr. 655). He

10

maintained good eye contact, appeared fairly relaxed, related in a calm and sensible manner, and

focused well during the conversation. (Id.).

Dr. Twehues diagnosed plaintiff with post-traumatic stress disorder, unspecified

depressive disorder, amphetamine-type substance use disorder (mild, in early full remission),

cannabis use disorder (moderate to severe), and alcohol use disorder (in partial remission). (Tr.

656). Dr. Twehues opined that plaintiff would have occasional angry outbursts at work as a

result of his suspiciousness of others’ intensions. (Tr. 657). She also found that plaintiff would

have some distractibility within a crowded setting due to high anxiety. According to Dr.

Twehues, increased stress and pressure would likely make it difficult for plaintiff to focus and

persist on work-related tasks, and he would have moderate to marked limitations in responding

to work pressures. (Id.).

3. State Agency Review

Carl Tishler, Ph.D., reviewed plaintiff’s file in January 2020, and found that plaintiff had

no limitations in understanding, remembering, or applying information; moderate limitations in

interacting with others and adapting or managing oneself; and mild limitations in concentrating,

persistence, or maintaining pace. (Tr. 57). Dr. Tishler opined that plaintiff appears capable of

work in a relatively static setting with no strict time or production demands and with “only

limited and infrequent interaction [with] coworkers, supervisors, and the general public.” (Tr.

62-63).

Deryck Richardson, Ph.D., reviewed plaintiff’s file upon reconsideration in June 2020

and affirmed Dr. Tishler’s assessment, except he found that plaintiff had moderate limitations in

concentrating, persistence, or maintaining pace. (Tr. 80). Dr. Richardson also concluded that

11

plaintiff was capable of work in a relatively static setting with no strict time or production

demands and with only limited and infrequent interaction with coworkers, supervisors, and the

general public. (Tr. 84-85).

E. Specific Errors

On appeal, plaintiff raises two assignments of error: (1) the ALJ failed to appropriately

assess the opinion evidence and/or develop the record with a mental health opinion; and (2) the

ALJ has not provided substantial evidence for rejecting plaintiff’s subjective report of symptoms.

(Docs. 9 and 12). The Commissioner counters that substantial evidence - including objective

evidence in the treatment record, plaintiff’s reported daily living activities, the consultative

examiner’s findings, and the state agency consultants’ findings - supports the ALJ’s

determination that plaintiff was not disabled and retained the residual functional capacity (RFC)

for a reduced range of sedentary work.

1. The ALJ’s Evaluation of the Medical Opinion Evidence is Supported by

Substantial Evidence.

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

opinions. See 20 C.F.R. § 404.1520c (2017) and 20 C.F.R. § 416.920c; 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.4 Id. The Commissioner will “not defer or give any specific

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

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

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

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

12

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

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

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

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

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

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

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

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

a medical opinion. 20 C.F.R. § 416.920c(c)(1)-(5). The most important factors the ALJ must

consider are supportability and consistency. 20 C.F.R. § 416.920c(b)(2). With respect to the

supportability factor, “[t]he more relevant the objective medical evidence7 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. § 416.920c(c)(1). Similarly, “[t]he

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

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

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

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

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

168819, at *5850. For clarity, the Court will refer to the limitations opined by the state agency reviewing physicians

and psychologists as “assessments” or “opinions.”

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

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

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

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

DIB regulations should be read to incorporate the corresponding and identical SSI regulations, and vice versa, for

purposes of this Order.

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

168819, at *5850.

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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. §

416.920c(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. §

416.920c(b)(2). Conversely, the ALJ “may, but [is] not required to, explain” how he/she

considered the relationship, specialization, and other factors set forth in paragraphs (c)(3)

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

administrative findings about the same issue are equally persuasive, the ALJ must articulate how

he or she “considered the other most persuasive factors in paragraphs (c)(3) through (c)(5). . . .”

20 C.F.R. § 404.1520c(b)(3). Finally, the ALJ is not required to articulate how he or she

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

Plaintiff contends that the ALJ inappropriately rejected all three mental health opinions in

the record without offering sufficient reasons for finding fewer limitations than those opined by

the mental health professionals. (Doc. 9 at PAGEID 813). The ALJ provided the following

reasons for finding the opinions of the state agency consultants (Drs. Tischler and Richardson)

and the consultative examiner (Dr. Twehues) not persuasive: (1) all three opinions are

inconsistent with plaintiff’s treatment history (Tr. 23); (2) all three opinions are unsupported by

the medical record because plaintiff’s medical treatment providers noted few mental status

abnormalities, “with treatment notes beginning in June 2020 showing no noted mental status

abnormalities” (Tr. 23); and (3) the opinion of Dr. Twehues is vague and based on subjective

complaints rather than her own objective findings (Tr. 23). The ALJ’s evaluation of the medical

opinion evidence is supported by substantial evidence.

14

First, the ALJ found the mental health opinions “not persuasive” – in part – because they

were inconsistent with plaintiff’s treatment history. (Tr. 23). Specifically, the ALJ noted that,

other than a medication prescription from his primary care physician, plaintiff neither sought nor

received mental health treatment.8 (Id.). As previously explained by this Court:

While failure to seek or engage in mental health treatment does not necessarily

“evidence a tranquil mental state . . . [a] reasonable mind might find that the lack

of treatment could indicate an alleviation of symptoms.” Cole v. Comm’r of Soc.

Sec., 105 F. Supp. 3d 738, 743 (E.D. Mich. 2015) (citing White v. Comm’r of Soc.

Sec., 572 F.3d 272, 283 (6th Cir. 2009)) (internal quotation marks omitted); see

also Esch v. Comm’r of Soc. Sec., No. 1:09-CV-144, 2010 WL 432265, at *5

(W.D. Mich. Jan. 25, 2010) (stating the “general rule that a claimant’s failure to

seek treatment over an extended time period undercuts the claimant’s assertion

that his impairment is disabling”).

Rowland v. Comm’r of Soc. Sec., No. 2:16-cv-481, 2017 WL 1190541, at *8 (S.D. Ohio Mar. 31,

2017), report and recommendation adopted, 2017 WL 2644210 (S.D. Ohio June 19, 2017).

Where, as here, plaintiff routinely secured medical treatment for his other impairments, the ALJ

appropriately considered plaintiff’s failure to seek mental health treatment as part of her

consistency analysis.

Plaintiff contends that the ALJ should not have cited plaintiff’s lack of mental health

treatment without considering “why this might be the case.” (Doc. 9 at PAGEID 816). Plaintiff

argues that he “tried to establish with counselors, but had never had good results.” (Id. (citing

Tr. 703)). The treatment record on which plaintiff relies states:

PTSD secondary to GBS – states over the past several months, he has been

working with prior PCP to wean off narcotics. Started several years ago after

injury and has been on ever since – states he was on Suboxone a couple of years

ago, but that it is worse than opioids. Feels dependent on narcotics – has had

withdraw effects in the past. Has tried to establish with counselors – mainly SMH

8 Plaintiff’s medical records contain a reference to a psychiatric hospitalization in 2009 or 2010. (Tr. 654). Neither

party raises that hospitalization in support of plaintiff’s claimed disability beginning August 29, 2019.

15

or FRS, but has never had good results. Taking diazepam for anxiety symptoms –

mostly in evenings related to Guilliane [sic] Barre – states he was in hospital for

several weeks, thought he was going to die. Continues to recover – “You don’t

know how stressful that is mentally.”

(Tr. 703). It is not clear from this note whether plaintiff was referring to mental health treatment

or addiction counseling. In addition, plaintiff reported to the consultative examiner that “he has

never participated in mental health counseling.” (Tr. 654). Accordingly, the ALJ reasonably

considered plaintiff’s failure to seek mental health treatment beyond prescription medication in

determining whether the consultants’ opinions were consistent with other medical and

nonmedical evidence.

Second, the ALJ found all three mental health opinions inconsistent with the medical

record because plaintiff’s medical treatment providers noted few mental status abnormalities.

(Tr. 23). The ALJ’s conclusion that plaintiff was found to have few mental status abnormalities,

particularly after June 2020 (Tr. 23), is supported by substantial evidence.

Medical records from February 2020 indicate good judgment and insight with “active and

alert and depressed” mental status and normal recent and remote memory. (Tr. 703). In June

2020, plaintiff sought medical treatment at a hospital emergency room for abdominal pain and

vomiting. (Tr. 736). During that visit, medical records report that plaintiff was “negative for

agitation and confusion,” “alert and oriented” with “normal” behavior. (Tr. 736-37). July 2020

medical records include plaintiff’s self-report that he “is able to function through his ADLs

[activities of daily living] and he works daily.” (Tr. 719). His July 2020 medical examination

revealed normal attention span and concentration; intact remote and immediate recall; oriented to

16

person, place, problem, and time; language fluency; and good fund of knowledge. (Tr. 720). In

October 2020, the nurse practitioner noted that his medications worked well with no side effects.

(Tr. 685). His report of symptoms at that time included depression, anxiety, insomnia and stress

without loss of interest, but the medical examination revealed good judgment; normal mood and

affect; orientation to time, place, and person; and normal remote and recent memory. (Tr. 686).

March 2021 medical records indicate that plaintiff “quit taking benzodiazepine and Valium.”

(Tr. 767). Plaintiff’s mental status exam reflected that he was oriented to person, place, problem,

and time. Plaintiff also exhibited good immediate and remote memory; normal attention span

and concentration; intact language fluency; and a good fund of knowledge. (Tr. 768). Plaintiff’s

psychiatric systems review was “unremarkable.” (Tr. 768).

Plaintiff accurately argues that some medical records in 2020 noted psychiatric

complaints.9 (Doc. 9 at PAGEID 816). However, it is not the province of the Court to reweigh

the evidence. “Even if the evidence could also support another conclusion, the decision of the

[ALJ] must stand if the evidence could reasonably support the conclusion reached.” Livingston

v. Comm’r of Soc. Sec., 776 F. App’x 897, 898 (6th Cir. 2019) (alteration in original) (quoting

Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999)). The evidence here

reasonably supports the ALJ’s conclusion that plaintiff’s medical treatment providers noted few

mental status abnormalities, particularly after June 2020.

9 For example, in refilling his valium prescription in July 2020, the physician assistant noted, “Posttraumatic stress

disorder – Onset 6/26/2020;” “Follow up anxiety, refill of Valium. No new problems;” and depression, sleep

disturbances, anxiety without hallucinations, suicidal thoughts, mood swings, or memory loss. (Tr. 693-94, 698).

The physician assistant also reported, “Psychiatric: good judgement and insight. Active, alert, normal mood and

affect. Oriented to time, place and person. Recent and remote memory normal.” (Tr. 695, 698). The physician

refilled plaintiff’s prescription for 5 mg of valium twice per day.

17

Third, the ALJ found Dr. Twehus’ opinion not persuasive as vague and based on

subjective complaints rather than her own objective findings. (Tr. 23). Dr. Twehues assessed

plaintiff as “likely to experience increased distractibility within a crowded setting due to high

anxiety,” but during her interview plaintiff “seemed to track conversation relevantly and did not

appear easily distracted.” (Tr. 657). Dr. Twehues indicated that plaintiff reported that “he loses

his temper quickly with family but generally relates well with others outside of his family” and

“presented as pleasant and cooperative in interactions with this evaluator,” but she assessed that

she “would expect at least occasional angry outbursts at work” and “may at times present as

agitated.” (Id.).

Plaintiff admits that the ALJ’s vagueness finding “has a kernel of truth to it,” (Doc. 9 at

PAGEID 817), but argues that “tellingly, the ALJ did not take issue with the non-examining

opinions’ use of the phrase ‘appears capable of’ combined with ‘moderate’ limitations.” (Id.

(citing to Dr. Richardson’s report)). However, the ALJ similarly found Dr. Richardson’s and Dr.

Tischler’s opinions “not persuasive.” (Tr. 23). In addition, Dr. Twehues’ conclusions are,

indeed, based solely on plaintiff’s self-reported issues rather than any assessment she completed.

And, finally, the ALJ did not err by rejecting Dr. Twehues’ assessment based on the vague

nature of her conclusions. See Hutchinson v. Comm’r of Soc. Sec., No. 1:18-cv-761, 2020 WL

2519709, at *13 (S.D. Ohio May 18, 2020), report and recommendation adopted, 2020 WL

3288411 (S.D. Ohio June 18, 2020) (finding that substantial evidence supported ALJ’s

discounting of Dr. Twehues’ opinion based on the vague nature of her conclusions and because

she did not assess specific limitations). The ALJ provided valid reasons for discounting Dr.

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Twehues’ opinion, and the ALJ’s assessment of Dr. Twehues’ opinion is supported by

substantial evidence. Plaintiff’s first assignment of error is overruled.

2. The ALJ Was Not Required to Further Develop the Record.

Plaintiff next contends that the ALJ should have further developed the record because she

found unpersuasive the opinions of the state agency consultants and the consultative examiner.

(Doc. 9 at PAGEID 818-19). However, as the Sixth Circuit recently reiterated:

Promoting the claimant’s case, of course, is not the ALJ’s obligation. The ALJ,

remember, is a neutral factfinder, not an advocate. See Sims v. Apfel, 530 U.S.

103, 110–11, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000) (plurality opinion) (“Social

Security proceedings are inquisitorial rather than adversarial.”); Richardson v.

Perales, 402 U.S. 389, 410, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (“The [ALJ],

furthermore, does not act as counsel. He acts as an examiner charged with

developing the facts.”). So while the ALJ must ensure that every claimant

receives “a full and fair hearing,” Duncan v. Sec’y of Health & Hum. Servs., 801

F.2d 847, 856 (6th Cir. 1986), the ultimate burden of proving entitlement to

benefits lies with the claimant, 20 C.F.R. § 404.1512(a).

Moats v. Comm’r of Soc. Sec., 42 F.4th 558, 563 (6th Cir. 2022), cert. denied sub nom. Moats v.

Kijakazi, 143 S. Ct. 785 (2023). There may be a heightened duty to develop the record if

plaintiff were “(1) without counsel, (2) incapable of presenting an effective case, and (3)

unfamiliar with hearing procedures. . . .” Wilson v. Comm’r of Soc. Sec., 280 F. App’x 456, 459

(6th Cir. 2008) (citing Lashley v. Sec’y of Health & Human Serv., 708 F.2d 1048, 1051 (6th Cir.

1983)); cf. Moats, 42 F.4th at 566 (Readler, J., concurring) (“Lashley’s ‘heightened duty’

language, in other words, is a textbook example of an interpretive practice that has long fallen

out of favor”).

In this case, plaintiff has been represented by counsel since filing his application (Tr. 96),

and he was represented by counsel during the hearing before the ALJ (Tr. 35). There is no

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allegation that plaintiff’s counsel did not represent him ably, and plaintiff has identified no

evidence counsel should have submitted in support of his claim.

Plaintiff contends that the ALJ, having found the mental health opinions unpersuasive,

must further develop the record before forming an RFC “without the assistance of a current

medical source.” (Doc. 9 at PAGEID 818). However, the case on which plaintiff relies for his

contention states:

Indeed, “where the medical evidence shows relatively little physical impairment,

an ALJ permissibly can render a commonsense judgment about functional

capacity even without a physician’s assessment.” Deskin v. Comm’r of Soc. Sec.,

605 F. Supp. 2d 908, 912 (N.D. Ohio 2008) (quoting Manso-Pizarro v. Sec’y of

Health & Human Servs., 76 F.3d 15, 17 (1st Cir. 1996)). Yet, “[t]here are limited

occasions where the medical evidence is so clear, and so undisputed, that an ALJ

would be justified in drawing functional capacity conclusions from such evidence

without the assistance of a current medical source.” Shelley v. Comm’r of Soc.

Sec. No. 2:18-CV-676, 2019 WL 4023551, at *8 (S.D. Ohio Aug. 26, 2019

(Jolson, M.J.)) (citation omitted).

Jones v. Comm’r of Soc. Sec. Admin., No. 3:19-cv-142, 2021 WL 843100, at *6 (S.D. Ohio Mar.

5, 2021). That language does not apply here. The ALJ had the benefit of numerous medical

sources, and she relied on those sources to find unpersuasive the state agency mental health

opinions. (Tr. 23).

Even if the ALJ lacked medical sources, “[a]n ALJ does not improperly assume the role

of a medical expert by weighing the medical and non-medical evidence before rendering an RFC

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

ALJ’s RFC determination must be supported by substantial evidence. Nash v. Comm’r of Soc.

Sec., No. 19-6321, 2020 WL 6882255, at *4 (6th Cir. Aug. 10, 2020).

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Contrary to plaintiff’s argument, the ALJ is not required to base the RFC determination

on a medical opinion. The Sixth Circuit previously addressed this issue as follows:

[The plaintiff] contends that once the ALJ decided to give no weight to the

physicians’ opinions regarding his ability to work, the ALJ was required to get

the opinion of another physician before setting the residual functional capacity.

We disagree. We have previously rejected the argument that a residual

functional capacity determination cannot be supported by substantial evidence

unless a physician offers an opinion consistent with that of the ALJ. See

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

(rejecting the argument that “the ALJ’s [residual functional capacity] lacks

substantial evidence because no physician opined that [the claimant] was capable

of light work”); Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 728 (6th Cir.

2013) (rejecting the same argument because “the ALJ is charged with the

responsibility of determining the [residual functional capacity] based on her

evaluation of the medical and non-medical evidence”). We similarly find no

error here. The ALJ undertook a laborious evaluation of the medical record when

determining the residual functional capacity, and substantial evidence supports

the ALJ’s conclusions.

Mokbel-Aljahmi v. Comm’r of Soc. Sec., 732 F. App’x 395, 401-02 (6th Cir. 2018). “[T]o

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

treating source the authority to make the determination or decision about whether an individual is

under a disability.” Rudd, 531 F. App’x at 728.

In this case, the ALJ found all three mental health opinions unpersuasive. As explained

above, the ALJ’s conclusion was supported by substantial evidence. Accordingly, the ALJ was

not required to further develop the record in this case.

3. The ALJ’s Evaluation of Plaintiff’s Symptom Severity and Corresponding

Residual Functional Capacity (RFC) Finding are Supported by Substantial

Evidence.

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

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

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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 (March 16, 2016) (rescinding and 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 (March 16, 2016)

(rescinding and superseding SSR 96-7p). To avoid such mistaken emphasis, this analysis is now

characterized as the “consistency” of a claimant’s subjective description of symptoms with the

record. See Lipanye v. Comm’r of Soc. Sec., 802 F. App’x 165, 171 n.3 (6th Cir. 2020) (citing

Dooley v. Comm’r of Soc. Sec., 656 F. App’x 113, 119 n.1 (6th Cir. 2016)).

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

contains objective medical evidence of an underlying medically determinable impairment that

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

22

symptoms;

(iii) Precipitating and aggravating factors;

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

or have taken to alleviate your pain or other symptoms;

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

your pain or other symptoms;

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

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

sleeping on a board, etc.); and

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

pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

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

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

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

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.

23

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

factors pertinent to the evidence of record”).

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

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

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

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

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

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

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

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

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

Plaintiff contends that the ALJ has not provided substantial evidence for his rejection of

plaintiff’s subjective report of symptoms. (Doc. 9 at PAGEID 819-21). Plaintiff first argues that

the ALJ improperly stated that plaintiff’s GBS symptoms “improved within one year of onset”

even though medical records indicate that plaintiff continued to suffer decreased sensation from

knees to ankles and intermittent numbness or tingling in his hands and feet. (Id. at PAGEID

819-20). Plaintiff correctly notes that medical records show some of his GBS symptoms

continuing more than a year after his August 2019 diagnosis. On July 7, 2020, Dr. Abou-Elsaad

10 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

the reviewing court, to judge the consistency of a claimant’s statements.”).

24

noted recurring muscle spasticity; intermittent numbness and tingling in his hands and feet of

“mild to moderate” degree, lasting for “minutes,” of “sporadic” frequency “but not daily.” (Tr.

719). Dr. Abou-Elsaad further noted that plaintiff denied recurrent falling, weakness, neck or

back pain, breathing difficulties or headaches; was “able to function through his ADLs”; and

work daily. (Id.). In contrast, during his 2019 hospitalization for GBS, plaintiff “presented with

rapidly progressing generalized weakness to the point that he could no longer walk” and

polyneuropathy. (Tr. 321). At that time, plaintiff went from a pre-GBS level of “independent”

functioning to a “max assist” level of function. (Id.). He was admitted to the hospital for five

days of treatment before transferring for two weeks of inpatient rehabilitation. (Tr. 633). Thus,

the ALJ’s statement that plaintiff’s symptoms improved within a year of diagnosis is supported

by the medical records. The ALJ did not find that plaintiff had no remaining symptoms of GBS.

Indeed, she found an RFC of sedentary work with only occasional climbing of ramps or stairs;

occasional balancing over uneven terrain; occasional stooping, kneeling, crouching, and

crawling; never climbing ladders, ropes, or scaffolds; never working at unprotected heights;

never driving commercially; and never working around dangerous moving machinery, in an

effort to accommodate plaintiff’s remaining difficulties. (Tr. 19).

Second, plaintiff contends that the ALJ should have evaluated the reason plaintiff failed

to pursue mental health treatment before finding that plaintiff’s statements concerning the

intensity, persistence and limiting effects of his mental health symptoms were not entirely

consistent with his lack of mental health treatment. According to plaintiff, the ALJ’s failure to

do so violates SSR 16-3p. (Doc. 9 at PAGEID 820-21). SSR 16-3p states in relevant part:

25

[I]f the frequency or extent of the treatment sought by an individual is not

comparable with the degree of the individual’s subjective complaints, or if the

individual fails to follow prescribed treatment that might improve symptoms, we

may find the alleged intensity and persistence of an individual’s symptoms are

inconsistent with the overall evidence of record. We will not find an individual’s

symptoms inconsistent with the evidence in the record on this basis without

considering possible reasons he or she may not comply with treatment or seek

treatment consistent with the degree of his or her complaints. We may need to

contact the individual regarding the lack of treatment or, at an administrative

proceeding, ask why he or she has not complied with or sought treatment in a

manner consistent with his or her complaints. When we consider the individual’s

treatment history, we may consider (but are not limited to) one or more of the

following: . . . An individual’s symptoms may not be severe enough to prompt

him or her to seek treatment, or the symptoms may be relieved with over the

counter medications.

SSR 16-3p, 2017 WL 5180304, at *9-10) (emphasis added).

In this case, the ALJ cited plaintiff’s failure to pursue mental health treatment as one of

many reasons she found his statements concerning the severity of his mental health limitations

not entirely consistent with the medical evidence and other evidence in the record. (Tr. 20). For

example, the ALJ cited also to multiple medical records indicating that plaintiff exhibited few

mental status abnormalities and that the GBS symptoms causing some of plaintiff’s increased

anxiety and depression improved over time. (Tr. 22-23). In addition, plaintiff reported that he

was able to help care for his ailing wife, tend to household pets, perform some household chores,

drive, and enjoy a painting exercise on an electronic device. (Tr. 22, 37). Thus, the ALJ did not

discount plaintiff’s symptom severity based solely on his failure to seek treatment.

In addition, plaintiff argues that he failed to seek mental health treatment because past

efforts proved unsuccessful. (Doc. 9 at PAGEID 820). However, plaintiff’s contention lacks

evidentiary support. Plaintiff himself reported to the consultative examiner that he had “never

participated in mental health counseling.” (Tr. 654). Plaintiff testified at the hearing that he no

26

longer takes medication for anxiety or depression, has not been hospitalized for depression or

anxiety in more than 10 years, and does not go to counseling. (Tr. 42-43). He found visits from

church friends sufficient “private counseling.” (Tr. 43). He testified that he loved animals and

that his Siberian Huskies were “good for depression and anxiety.” (Tr. 48). Therefore, the ALJ

had no obligation to further investigate the reasons plaintiff did not seek formal mental health

treatment because he specifically testified that his church friends and his dogs served as his

mental health treatment.

Finally, plaintiff argues that the ALJ’s limitation to “occasional interaction with others”

contradicts the state agency consultants’ recommendation of “limited and infrequent interaction”

with coworkers, supervisors, and the general public. (Doc. 9 at PAGEID 817; Doc. 12 at

PAGEID 847). The ALJ’s RFC for “occasional interaction” is supported by substantial

evidence.

SSR 83-10 specifically defines “occasionally” as “occurring from very little up to one-

third of the time.” SSR 83-10 (S.S.A.), 1983-1991 Soc. Sec. Rep. Serv. 24, 1983 WL 31251, at

*5. “Frequent” is defined as “occurring from one-third to two-thirds of the time.” Id. at *6.

“Infrequent” interaction, then, means interaction occurring less than one-third of the time. Thus,

in this context, “infrequent” interaction is synonymous with the “occasional” interaction to

which the ALJ limited plaintiff.

Plaintiff cites no authority for his argument that “occasional interaction” and “limited and

infrequent interaction” are contradictory terms. (Doc. 9 at PAGEID 817-18; Doc. 12 at PAGEID

847). In addition, even if those terms conflict, the ALJ had no obligation to incorporate the

“limited and infrequent interaction” limitation into the RFC finding. Poe v. Comm’r of Soc. Sec.,

27

342 F. App’x 149, 157 (6th Cir. 2009) (An ALJ is “not required to recite the medical opinion of

a physician verbatim in h[er] [RFC] finding.”); Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719,

728 (6th Cir. 2013) (“[T]o require the ALJ to base her RFC finding on a physician’s opinion,

‘would . . . [abdicate] the Commissioner’s statutory responsibility to determine whether an

individual is disabled.’”) (quoting Social Security Ruling (SSR) 96-5p, 1996 WL 374183, at *2).

The ALJ provided reasons for finding the mental health opinions not persuasive, and the Court

determined above that those reasons are supported by substantial evidence. Plaintiff's second

assignment of error is overruled.

IT IS THEREFORE ORDERED THAT:

1. Based on the foregoing, plaintiff's statement of errors (Doc. 9) is

OVERRULED;

2. The Commissioner’s non-disability finding is AFFIRMED;

3. Judgment is entered in favor of the Commissioner; and

4. This case is CLOSED on the Court’s docket.

Date: 7/14/2023 Heryn, Ke Reathend

Karen L. Litkovitz

Chief United States Magistrate Judge

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