Frase v. Commissioner of Social Security Administration

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

JESSICA NICOLE FRASE, ) CASE NO. 5:22-CV-01699-BYP

)

Plaintiff,

) U.S. DISTRICT JUDGE

) BENITA Y. PEARSON

v.

)

) MAGISTRATE JUDGE

COMMISSIONER OF SOCIAL

) JENNIFER DOWDELL ARMSTRONG

SECURITY ADMINISTRATION,

)

Defendant, ) REPORT AND RECOMMENDATION

)

I. INTRODUCTION

Plaintiff Jessica Nicole Frase (“Ms. Frase”) seeks judicial review of the final decision of

the Commissioner of Social Security (the “Commissioner”) denying her applications for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). (ECF Doc. 1). U.S.

District Judge Benita Y. Pearson has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). Pursuant

to Local Civil Rule 72.2, this matter was referred to me for preparation of a Report and

Recommendation. For the reasons set forth below, I RECOMMEND that the Court AFFIRM the

final decision of the Commissioner.

II. PROCEDURAL HISTORY

Ms. Frase filed an application for DIB on March 4, 2020, and an application for SSI on

May 21, 2020. (Tr. 20, 192).1 Both applications alleged a disability onset date of February 17,

2020. (Tr. 20, 192). These applications were denied initially and upon reconsideration. (Tr. 100-

09, 116-23). Ms. Frase requested a hearing before an administrative law judge (“ALJ”). (Tr. 123-

1 The administrative transcript (“Tr.”) is located at ECF Doc. 4 on CM/ECF.

24). On July 26, 2021, an ALJ held a telephonic hearing due to the COVID-19 pandemic during

which Ms. Frase, represented by counsel, and a vocational expert (“VE”) testified. (Tr. 38-63). On

August 5, 2021, the ALJ issued a written decision finding Ms. Frase not disabled. (Tr. 20-29). The

ALJ’s decision became final on July 26, 2022, when the Appeals Council declined further review.

(Tr. 1-6). Ms. Frase filed a Complaint on September 22, 2022, challenging the Commissioner’s

final decision. (ECF Doc. 1). She raises the following assignments of error:

(1) The ALJ erred when he failed to find that the opinion of the treating physician

was consistent with and supported by the medical evidence and failed to

incorporate the stated limitations into the RFC.

(2) The ALJ committed harmful error when he failed to properly apply the criteria

of Social Security Ruling 16-3p and failed to find that the intensity, persistence

and limiting effects of Frase’s symptoms precluded her from engaging in

substantial gainful activity on a full-time and sustained basis.

(ECF Doc. 6, PageID#541).

III. BACKGROUND INFORMATION

A. Personal, Educational, and Vocational Experience

Ms. Frase was born in 1993, and she was 26 years old on the alleged disability onset date.

(Tr. 27). She lives with her husband and two sons. (Tr. 44). She has an associate degree. (Tr. 45).

Her past work was as a medical coder or a medical biller. (See Tr. 47).

B. Relevant Hearing Testimony

1. Ms. Frase’s Testimony

Ms. Frase testified that she was unable to work full-time because she is unable to stay on

task due to her anxiety, depression, PTSD, emotional and visual flashbacks, and dissociation. (Tr.

47). These mental conditions would leave her feeling numb and without “executive function during

that time.” (Tr. 47-48). She stated that she experiences panic attacks twice a month when she stays

at home and is not around people, but she had panic attacks at least once a week while working

full-time. (Tr. 48). These panic attacks would last for a few minutes, followed by a period of

dissociation lasting from 30 minutes to a day. (Tr. 48-49). She testified that her panic attacks are

triggered from past childhood experiences. (Tr. 49). Actions such as someone yelling at her or

correcting her in a stern manner will trigger her panic attacks, but these panic attacks may also be

“set…off” by a random emotional flashback. (Id.).

To help with her anxiety and panic, Ms. Frase engages in talk therapy and takes Cymbalta,

Buspar, and Remeron. (Tr. 49-50). She testified that taking the medications helped. (See Tr. 50).

Specifically, she testified that while on Cymbalta, she has noted “a definite change” since that last

medication she was prescribed. (Id.). Her Buspar helps her to relax, but she testified that she notices

that sometimes the dosage needs to be adjusted because she experiences days where she is “kind

of zonked out a little bit, that [she is] a little bit too relaxed.” (Tr. 50). She testified that she is able

to manage taking medication on her own, but her husband also makes sure that she does so. . (Id.).

Ms. Frase testified that she notices her social anxiety the most when she goes to public

places such as grocery stores. (Tr. 51). She stated that she typically does not experience issues

while at the grocery store until she is at the checkout line and register, and when she is “standing

still.” (Id.). She also testified that meeting new friends or family is usually hard for her. (Id.). She

prefers to “stay to herself.” (Id.). Ms. Frase has two friends that she sees at least once every four

months. (Tr. 52). She does not interact with her neighbors. (Id.).

Due to her PTSD, Ms. Frase experiences nightmares. (Id.). When asked how often she

experiences nightmares stemming from her PTSD, Ms. Frase testified that some days are better

than others. (Id.). At the time of the hearing, she testified that she experiences nightmares once or

twice a week. (Tr. 53).

Ms. Frase also testified that, on a typical night, she gets approximately four to six hours of

sleep. (Id.). She does not find this enough and usually takes a nap around 1:00 pm. (Id.). She further

testified that her depression comes with crying spells. (Id.). With medication, Ms. Frase is able to

control this issue buy experiences uncontrollable crying approximately once a month. (Id.). She

also testified that she experiences mood swings involving rage, but she has worked hard on

controlling it. (Id.).

With respect to her depression, Ms. Frase testified that it results in low energy that prevents

her from getting up in the morning and staying on task, as well as mood swings. (Tr. 54). Ms.

Frase’s counsel asked her to provide instances where she finds it hard to remain on task. (Id.). Ms.

Frase testified that while working and reading, she would keep rereading the same paragraph of

procedural code when she was depressed or anxious because she would not “understand[] what

[it] is.” (Id.). Ms. Frase further testified that she does not have a similar experience while at home.

(Id.). She stated that it was not as stressful because she is “not having that constant 40-hour-a-

week.” (Tr. 54-55). She has completed projects at home, but she testified that it takes her “some

time” and her husband has to “kind of get on [her back]” to complete the projects. (Tr. 55).

However, she testified that she is able to handle work at home “a little bit easier.” (Id.).

Ms. Frase testified that she told her doctor at least once that she ignored her mental health

when she was working. (See Tr. 55). Specifically, Ms. Frase explained that whenever she was

working, she would get “so caught up” and felt that her schedule was so compounded that she

would not take her medication or forget if she took her medication. (Id.). While working, she

testified that she would miss appointments or cancel appointments because she was just too tired.

(Id.). She stated that pushing off those appointments hurt her mental health. (Id.). Regarding her

appetite, Ms. Frase testified that she typically does not eat more than one meal per day. (Tr. 56).

Due to stress and anxiety, she testified that she does not usually feel hunger. (Id.).

2. Vocational Expert’s Testimony

The VE described Ms. Frase’s past relevant work as a medical coder. (Tr. 59). As a first

hypothetical, the ALJ asked whether an individual with Ms. Frase’s age, education, and job history

that could perform a wide variety of both simple and complex tasks, but would not be able to

perform tasks which required a high production rate pace; could interact on an occasional basis

with supervisors and a small group of familiar co-workers with no more than incidental interaction

with the general public; and should be limited to superficial contact, no group, tandem, or

collaborative tasks, and no management direction or persuasion of others; and could respond

appropriately to occasional change in a routine and relatively predictable work setting. (Tr. 59).

The VE opined that the individual would not be able to perform Ms. Frase’s past relevant work,

but could perform other jobs such as a housekeeper, retail marker, and general office helper. (Tr.

60).

As a second hypothetical, the ALJ asked whether the individual from the first hypothetical,

but otherwise reduced to no interaction with either co-workers or the general public, would be able

to perform any jobs. (Id.). The VE opined that no jobs would exist. (Id.).

The next hypothetical the ALJ asked is whether the individual from the first hypothetical

that was limited to medium exertional level would be able to perform any jobs. (Id.). The VE

opined that this individual could still perform work as a housekeeper, retail marker, and general

office helper. (Id.). If reduced to light exertional level for any given physical impairments, the VE

opined that there still would be jobs available in the national economy. (Tr. 61).

The VE testified that being off task 15 percent of the time or more would be work-

preclusive. (Tr. 61). She testified that employers generally allow one absence per month, which

includes coming in late and leaving early. (Id.).

C. Relevant Non-Medical/Medical Opinion Evidence

1. State Agency Opinions (Aracelis Rivera, Psy.D. and Vicki Warren,

Ph.D.)

At the initial level of consideration, Dr. Rivera found that Ms. Frase had no limitations in

her abilities to understand, remember, or apply information and to concentrate, persist, or maintain

pace, but moderate limitations in her ability to interact with others and to adapt or manage oneself.

(Tr. 76). With respect to Ms. Frase’s social interaction limitation, Dr. Rivera opined that Ms. Frase

was markedly limited in her ability to interact appropriately with the general public, and

moderately limited in her abilities to accept instructions and respond appropriately to criticism

from supervisors, to get along with coworkers or peers without distracting them or exhibiting

behavioral extremes, and ability to maintain socially appropriate behavior and to adhere to basic

standards of neatness and cleanliness. (Tr. 77). Dr. Rivera observed that Ms. Frase is “able to relate

to others in the work setting but can occasionally deal with the public.” (Tr. 77).

Regarding Ms. Frase’s adaptation limitation, Dr. Rivera opined that Ms. Frase was

moderately limited in her ability to respond appropriately to changes in the work setting but not

significantly limited in her abilities to respond appropriately to changes in the work setting, be

aware of normal hazards and take appropriate precautions, travel in unfamiliar places or use public

transportation, and set realistic goals or make plans independently of others. (Tr. 77-78). At the

reconsideration level, Dr. Warren agreed with Dr. Rivera’s findings. (Tr. 88-89).

2. John Vraciu, DO

Dr. Vraciu completed a Mental Impairment Questionnaire for Ms. Frase on July 8, 2021.

(Tr. 515-16). He indicated that Ms. Frase had been seeing him every four to six months since

September 3, 2020. (Tr. 515). Dr. Vraciu listed Ms. Frase’s diagnoses as recurrent major

depressive disorder, generalized anxiety disorder, social anxiety, PTSD, and insomnia. (Id.). He

indicated that Ms. Frase has been prescribed Cymbalta2 and Terazosin. (Id.). The side effects of

these medications are “sweats.” (Id.). Dr. Vraciu reported that the prognosis of Ms. Frase’s

impairments was fair. (Id.). He opined that Ms. Frase’s impairments lasted or are expected to last

at least twelve months. (Id.).

Dr. Vraciu checked a series of boxes rating Ms. Frase’s ability to do work-related activities

on a day-to-day basis in a work setting. (See Tr. 515-16). He opined that Ms. Frase was “unable to

meet competitive standards”3 in her ability to complete a normal workday and workweek without

interruptions from psychologically based symptoms; interact appropriately with the general public;

and accept instructions and respond appropriately to criticism from supervisors. (Id.). Dr. Vraciu

further opined that Ms. Frase was “seriously limited, but not precluded”4 in her ability to sustain

an ordinary routine without special supervision; work in coordination with or in proximity to others

without being distracted by them; ask simple questions or request assistance; respond appropriately

to changes in the work setting; and set realistic goals or make plans independently of others. (Id.).

Dr. Vraciu also opined that Ms. Frase was “unlimited or very good” in her ability to carry out very

short and simple instructions. (Tr. 515). Dr. Vraciu opined that Ms. Frase was “limited but

2 Cymbalta is the US brand name for Duloxetine, a drug used to treat depression and anxiety. See Mayo Clinic,

Duloxetine (Oral Route), https://www.mayoclinic.org/drugs-supplements/duloxetine-oral-route/description/drg-

20067247 (last visited July 14, 2023).

3 The Mental Impairment Questionnaire defined “unable to meet competitive standards” as the patient “cannot

satisfactorily perform this activity independently, appropriately, effectively and on a sustained basis in a regular

work setting.” (Tr. 515).

4 “Seriously limited, but not precluded” is defined by the Mental Impairment Questionnaire as the patient’s ability to

function in the specific area “is less than satisfactory, but not precluded in all circumstances.” (Tr. 515). This

individual would be limited in their ability to perform activity 15 percent of the time. (Id.).

satisfactory” in several abilities, including but not limited to, her ability to maintain attention and

concentration for extended periods, sustain an ordinary routine without special supervision,

perform at a consistent without an unreasonable number and length of rest periods, get along with

coworkers or peers without distracting them or exhibiting behavioral extremes, and be aware of

normal hazards and take appropriate precautions. (See generally Tr. 515-16).

Dr. Vraciu additionally opined that Ms. Frase’s impairments would cause her to be absent

from work one to two times per month. (Tr. 516). He finally opined that Ms. Frase would be off

task approximately 15 percent per day. (Id.). When asked to describe the clinical findings that

demonstrate the severity of Ms. Frase’s mental impairments and symptoms, Dr. Vraciu merely

wrote, “We diagnose by DSM-5 and patient’s subjective reports.” (Tr. 515).

D. Relevant Medical Evidence

On January 2, 2020 (a month before her alleged disability onset date), Ms. Frase self-

referred herself to establish care with Ms. Teri Lieser, APRN. (Tr. 261). Ms. Frase reported that

she was experiencing panic attacks, claustrophobia, obsessive thoughts, and compulsive rituals.

(Id.). She had been seeing a counselor and reported that her therapist “thought it may be helpful to

consider medication also.” (Id.). Ms. Lieser diagnosed Ms. Frase with depression, anxiety, and

possible PTSD. (Id.). Ms. Lieser prescribed Ms. Frase Zoloft. (Id.).

On February 12, 2020, Ms. Frase appeared at the emergency room, reporting a history of

PTSD and anxiety after “the person who the PTSD is related to” contacted her. (Tr. 306). Ms.

Frase was prescribed Xanax. (Tr. 308). She returned to the emergency room on February 18, 2020,

reporting an exacerbation of her anxiety of depression. (Tr. 312). She stated that she did not “feel

in control” or like [herself].” (Id.). Her diagnosis was depression and anxiety. (Tr. 314). Ms. Frase

was discharged in stabled condition and given a referral for an intense outpatient program. (Id.).

On February 20, 2020, Ms. Frase returned to Ms. Lieser. (Tr. 270). She had a depressed and

anxious mood and was prescribed Busprione and hydroxyzine (anti-anxiety medications). (Tr.

271). On March 4, 2020, Ms. Frase reported that her sleep and appetite were slightly better, and

she was considering looking for another job. (Tr. 265). On March 31, 2020, Ms. Frase reported

that her sleep and appetite were “OK,” and that she had quit her job. (Tr. 263).

In September 2020, Ms. Frase established care with Dr. John Vraciu, D.O. to receive

further psychiatric treatment. (Tr. 415). She reported that she had previously worked in billing and

coding for two years, but “had a mental breakdown in February 2020.” (Tr. 415). She reported a

history of anxiety and depression since she was five years old, and PTSD from trauma when she

was five to fifteen years old. (Tr. 415-16). Her mental status examination revealed that she looked

down a lot, had quiet speech, and was anxious, but she was cooperative, had normal attention span

and concentration, and fair insight and judgment. (Tr. 418). Dr. Vraciu started Ms. Frase on

Cymbalta for PTSD, anxiety, and depression and Remeron for sleep. (Tr. 422).

On October 19, 2020, Ms. Frase had a telephone visit with Dr. Vraciu. (Tr. 420). She

reported that she was “doing pretty good.” (Tr. 420). She noticed some improvements with her

mood. (Id.). She stated that her depression was starting to “feel a little better”; her anxiety was

feeling “at least 20% better”; and she was “working on” her PTSD (Id.). Her mental status

examination revealed that Ms. Frase had euthymic affect, “a little better” mood, normal attention

span and concentration, and fair insight and judgment. (Tr. 421). Dr. Vraciu continued Ms. Frase

on her medications. (Tr. 422).

On December 17, 2020, Ms. Frase followed up with Dr. Vraciu. (Tr. 573). She reported

that she had been “doing okay.” (Tr. 473). Her sons were still attending school at home and

although they “are pretty self-sufficient … she has to double check them and it’s more stressful

than a normal school year.” (Id.). She reported her moods were “overall…better”; her depression

“has been doing pretty good and really manageable”; and her anxiety was “better controlled, but

still flares up in situations.” (Id.). She reported only having two to three panic attacks “in the past

few months.” (Id.). She told Dr. Vraciu that her social anxiety “ha[d] been pretty good [,] but she

felt anxious in stores.” (Id.). Dr. Vraciu continued Ms. Frase’s medications. (Tr. 475).

On July 8, 2021, Ms. Frase reported “doing okay.” (Tr. 517). She stopped taking Cymbalta

a week earlier because she “missed an appointment” and had “not com[e] in for over [six] months.”

(Id.). She also “self-taper[ed]” her anxiety medication, Buspar. (Id.). She was looking for jobs and

was “hoping that she could do something.” (Id.). She reported that she thought she would do better

working from home. (Id.). She stated that she has anxiety around working because she felt that

when she worked in the past, she ignored her mental health. (Id.). She told Dr. Vraciu that she feels

she can cope better with life without the stress of work. (Id.). She was thinking about trying part-

time because she remembered “feeling paralyzed” working 40 hours per week. (Id.). Ms. Frase

reported that her depression since her last visit had not “been too bad,” except that she was out of

medication and “fe[lt] it a bit more.” (Id.). She stated her anxiety had been “coming up a bit

heightened lately and a lot of it is social anxiety.” (Id.). She experienced a few panic episodes.

(Id.). She stated that she noticed that she was not experiencing as many triggers with her PTSD.

(Tr. 518). Her mental status examinations revealed anxious affect, “okay, a bit nervous” mood,

normal attention span and concentration, and fair insight and judgment. (Tr. 518).

Ms. Frase continued to seek counseling and saw a therapist four times from August 2020

until May 2021. (Tr. 503-14). These counseling notes contained similar statements. (Tr. 503, 506,

509, 512). Specifically, her diagnoses were major depressive disorder, PTSD, generalized anxiety

disorder, personal history of sexual abuse, parent-child relational problem, sibling relational

problem, and child affected by parental relationship distress. (Id.). These notes also all stated that

she met criteria for major depression disorder as evidenced by her self-reported symptoms of

having little pleasure in her life, feeling down all the time, having trouble falling asleep, feeling

tired all the time, having poor appetite, feeling bad about herself, and feeling like she is moving

slowly all the time. (Id.). Her self-reported symptoms for anxiety were feeling nervous all the time,

not being able to control the worry, worrying about may different things, having trouble relaxing,

being easily irritated, and feeling anxious that something awful was going to happen. (Id.). The

notes stated that “[t]hese symptoms interfere with functioning in all areas of her life.” (Id.).

IV. THE ALJ’S DECISION

In his August 2021 decision, the ALJ first found that Ms. Frase met the insured status

requirements of the Social Security Act through December 31, 2020. (Tr. 22). The ALJ then found

Ms. Frase has not engaged in substantial gainful activity since February 17, 2020, the alleged

disability onset date. (Id.). The ALJ further determined that Ms. Frase has the following severe

impairments: depressive disorder, generalized anxiety disorder/social anxiety disorder, and

posttraumatic stress disorder. (Tr. 23). However, the ALJ found that none of these impairments—

individually or in combination—met or medically equaled the severity of a listed impairment in

20 CFR Part 404, Subpart P, Appendix 1. (Id.).

The ALJ also determined that Ms. Frase could perform a full range of work at all exertional

levels with the following nonexertional limitations:

can perform a wide variety of both simple and complex tasks, but cannot perform

tasks which require a high production rate pace such as assembly line work; can

interact on an occasional basis with supervisors and a small group of familiar

coworkers, with no more than incidental interaction with the general public, and

should be limited to superficial contact, meaning no sales, arbitration, negotiation,

conflict resolution or confrontation, no group, tandem or collaborative tasks, and

no management, direction or persuasion of others; and can respond appropriately

to occasional changes in a routine and relatively predictable work setting

(Tr. 24).

The ALJ next determined that Ms. Frase is unable to perform any past relevant work. (Tr.

27). She also determined that the transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a framework supports a “not disabled”

finding regardless of whether Ms. Frase has transferable job skills. (Id.). However, the ALJ

determined that, considering Ms. Frase’s age, education, work experience, and residual functional

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

can perform. (Tr. 28). Accordingly, the ALJ determined that Ms. Frase was not disabled. (Id.).

V. LAW AND ANALYSIS

A. Standard of Review

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v. Comm’r

of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007) (citing Abbott

v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir. 1986)

(en banc)). The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App. 315, 320 (6th Cir. 2015) (quoting Cole v. Astrue, 661 F.3d 931,

937 (6th Cir. 2011)); see also 42 U.S.C. § 405(g). “Substantial evidence is defined as ‘more than

a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d

234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). If the

Commissioner’s decision is supported by substantial evidence, it must be affirmed, “even if a

reviewing court would decide the matter differently[.]” Cutlip, 25 F.3d at 286; Kinsella v.

Schweiker, 708 F.2d 1058, 1059-60 (6th Cir. 1983).

In addition to considering whether the Commissioner’s decision was supported by

substantial evidence, the Court must determine whether the Commissioner applied proper legal

standards. Failure of the Commissioner to apply the correct legal standards as promulgated by the

regulations is grounds for reversal. See, e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th

Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported

by substantial evidence, however, 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.”).

Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence

in the record to support the decision, [where] the reasons given by the trier of fact do not build an

accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F. Supp.

2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)

(alteration in original)).

B. Standard for Disability

The Social Security regulations outline a five-step sequential evaluation process that the

ALJ must use in determining whether a claimant is disabled: (1) whether the claimant is engaged

in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or

combination of impairments; (3) if so, whether that impairment, or combination of impairments,

meets or equals any of the listings in 20 C.F.R. § 404, Subpart P, Appendix 1; (4) if not, whether

the claimant can perform her past relevant work in light of his RFC; and (5) if not, whether, based

on the claimant’s age, education, and work experience, he can perform other work found in the

national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v); Combs v. Comm’r of Soc. Sec., 459 F.3d

640, 642-43 (6th Cir. 2006). The claimant bears the ultimate burden of producing sufficient

evidence to prove that he is disabled and, thus, entitled to benefits. 20 C.F.R. § 404.1512(a).

Specifically, the claimant has the burden of proof in Steps One through Four. Walters v. Comm’r

of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at Step

Five to establish whether the claimant has the RFC to perform available work in the national

economy. Id.

C. Analysis

Ms. Frase raises two assignments of error: (1) that the ALJ erred by failing to find the

opinion of the treating physician consistent with and supported by the medical evidence and to

incorporate the stated limitations into the RFC; and (2) the ALJ erred in his SSR 16-3p analysis

and failed to find that Ms. Frase’s symptoms precluded her from engaging in substantial gainful

activity on a full-time and sustained basis. (See ECF Doc. 6, PageID#541). I find that both

assignments lack merit.

1. Substantial Evidence Supports the ALJ’s Finding Regarding the

Persuasiveness of Dr. Vraciu’s Opinion on Ms. Frase’s Mental

Limitations.

a. The ALJ’s Decision to Find Dr. Vraciu’s Opinion Unpersuasive

is Supported by Substantial Evidence.

Ms. Frase asserts that the ALJ erred by finding Dr. Vraciu’s opinion unpersuasive because

the ALJ did not acknowledge contrary evidence regarding supportability and consistency. (See

ECF Doc. 6, PageID#548-53). Ms. Frase argues that it is “unclear from the record” how the ALJ

determined that she could engage in substantial gainful activity on a full-time and sustained basis.

(Id. at PageID#549). This argument is not well-taken.

At Step Four of the sequential evaluation process, the ALJ must determine a claimant’s

RFC after considering all the medical and other evidence in the record. 20 C.F.R. § 404.1520(e).

In doing so, the ALJ is required to “articulate how [she] considered the medical opinions and prior

administrative medical findings.” 20 C.F.R. § 404.1520c(a). At a minimum, the ALJ must explain

how he considered the supportability and consistency of a source’s medical opinion(s), but

generally is not required to discuss other factors. 20 C.F.R. § 404.1520c(b)(2).5 According to the

regulation, the more consistent a medical opinion is with the evidence from other medical and

nonmedical sources, the more persuasive the medical opinion will be. This is the consistency

standard. And the regulation specifies that the more relevant the objective medical evidence and

supporting explanations presented by a medical source are to support his or her medical opinion,

the more persuasive the medical opinion will be. This is the supportability standard. See 20 C.F.R.

§ 404.1520c(c)(1)-(2).

Dr. Vraciu completed a Mental Impairment Questionnaire for Ms. Frase. (Tr. 515-16). He

noted that Ms. Frase had been visiting him every four to six months. (Tr. 515). He indicated that

Ms. Frase had the following diagnoses: recurrent major depressive disorder, generalized anxiety

disorder, social anxiety, posttraumatic stress disorder, and insomnia. (Id.). He noted that Ms. Frase

took Cymbalta and Terazosin and that the side effects that these medications would have on

working was “sweats.” (Id.). Cr. Vraciu opined that Ms. Frase has an unlimited or limited

satisfactory ability in several areas of functioning, but she was seriously limited but not precluded

in sustaining an ordinary routine without special supervision, working in coordination with or in

proximity to others without being distracted by them, asking simple questions or requesting

5 Other factors include: (1) the length, frequency, purpose, extent, and nature of the source’s relationship to the

client; (2) the source’s specialization; and (3) “other factors,” such as familiarity with the disability program and

other evidence in the record. 20 C.F.R. § 404.1520c(c)(3)-(5).

assistance, responding appropriately to changes, and setting realistic goals. (Tr. 515-16). He further

opined that Ms. Frase was “unable to meet competitive standards” in completing a normal workday

or workweek without interruptions from psychologically based symptoms, interacting

appropriately with the general public, and accepting instructions and responding appropriately to

criticism from supervisors. (Id.). He opined that Ms. Frase would be absent from work one to two

days per month and off task 15% per day. (Tr. 516). When asked to describe the clinic findings

that demonstrate the severity of Ms. Frase’s mental impairments and symptoms, Dr. Vraciu simply

stated, “We diagnose by DSM-5 and patient’s subjective reports.” (Tr. 515).

In the instant case, the ALJ discussed Dr. Vraciu’s July 2021 opinion and found it to be

unpersuasive because Dr. Vraciu provided inadequate explanation or supporting evidence with this

opinion, and it was inconsistent with other record evidence. (Tr. 26-27). The ALJ discussed the

supportability and consistency of Dr. Vraciu’s opinion when reaching his conclusion.

Significantly, the ALJ addressed the supportability factor. As stated above, the Social

Security regulations define supportability as “[t]he more relevant the objective medical evidence

and supporting explanations presented by a medical source are to support his or her medical

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

the ALJ observed that Dr. Vraciu “provided little explanation or supporting evidence for [his

opined] extreme limitations aside from listing the claimant’s diagnoses and subjective allegations,

which are not fully consistent with the record for the reasons listed above.” (Tr. 27). Indeed, Dr.

Vraciu offered little, if any, explanation or supporting evidence for his opinion. (See generally Tr.

515-516). Dr. Vraciu provided a checkbox form indicating his opinion regarding Ms. Frase’s

ability to do work-related activities on a day-to-day basis in a regular work setting. As discussed

in detail above, Dr. Vraciu checked his ratings for Ms. Frase’s limitations in her sustained

concentration and persistence; understanding and memory; social interaction; and adaptation. (Id.).

When asked to describe clinical findings that demonstrate the severity of Ms. Frase’s mental

impairments and symptoms, he merely stated “We diagnose by DSM-5 and patient’s subjective

reports.” (Tr. 515). No other explanation was provided in support of Dr. Vraciu’s opined

limitations, and none of the records Ms. Frase references in her merits brief are cited by Dr. Vraciu

in support of his opinion. (Tr. 515-16; see generally ECF Doc. 6, PageID#548-52).

To the extent that Ms. Frase argues that Dr. Vraciu’s statement that he has treated Ms.

Frase since September 2020 for recurrent major depressive disorder, generalized anxiety disorder,

social anxiety, PTSD, and insomnia demonstrates that Dr. Vraciu provided some sort of supporting

explanation (see ECF Doc. 8, PageID#578), I disagree. It is unclear—and Ms. Frase fails to

demonstrate (see id.)—how this statement constitutes an adequate explanation for the severe

limitations opined by Dr. Vraciu.6

Next, the ALJ addressed the consistency factor. Consistency is defined as “[t]he more

consistent a medical opinion(s)…is with the evidence from other medical and nonmedical sources

in the claim…the more persuasive the medical opinion(s) or prior administrative medical

finding(s) will be.” 20 C.F.R. § 404.1520c(2). Specifically, the ALJ determined that Dr. Vraciu’s

opinion was inconsistent with the medical record as a whole, including Ms. Frase’s limited mental

health treatment history since the alleged onset date, without evidence of psychiatric

hospitalization in the record, and her “unremarkable” reported symptoms to providers such as Dr.

Vriaciu, without evidence of hallucinations, delusions, obsessions, compulsions, cognitive

disorder, current suicidal/homicidal ideation, or other serious issues. (Tr. 27). This conclusion

6 Dr. Vraciu’s statement appears to be more relevant to another factor that an ALJ may consider when evaluating the

persuasiveness of a medical opinion, the length, frequency, purpose, extent, and nature of the source’s relationship

to the client. See 20 C.F.R. § 404.1521(c)(3)(v).

finds support in the record. For example, the ALJ noted that at Ms. Frase’s October 2020 visit, she

reported she is doing “pretty good,” her sons were attending school from home, and she was “not

worrying about applying for a job.” (Tr. 25; see Tr. 470). She noticed some improvement in her

moods, and the side effect from her medication was night sweats. (Tr. 470). Ms. Frase’s mental

status examination revealed that she was alert and oriented to all spheres, her mood was “a little

better,” euthymic affect, and lack of suicidal ideation, intent, or plan. (Id.).

At her December 2020 visit, Ms. Frase reported that she was “doing okay.” (Tr. 473). She

reported that her depression “has been doing pretty good and really manageable.” (Id.). She

reported that her anxiety was “better controlled, but still flares up in situations.” (Id.). She recalled

having approximately two to three random panic attacks in the past few months preceding this

appointment. (Id.). She indicated that her social anxiety “has been pretty good,” but she did feel

anxious in stores and got overwhelmed with “a lot” of noises, people, and waiting in line. (Id.).

Her mental status examination revealed fair insight and judgment, logical thought content, and

denial of suicidal/homicidal ideations, delusions, and hallucinations. (Tr. 474).

Earlier in the ALJ’s decision, the ALJ also discussed Ms. Frase’s July 2021 appointment

where Ms. Frase reported that she was doing “okay” and was still unemployed. (Tr. 25; see Tr.

517). She reported that her anxiety had been coming up “a bit heightened lately and a lot of it is

social anxiety”; her depression was not too bad recently except she felt it more in the past week

because she ran out of her medication; and she was using medical marijuana. (Tr. 25; see 517).

Ms. Frase’s mental status examinations indicated that she was alert and oriented to all spheres, her

insight and judgment were fair, her mood was “okay, a bit anxious,” her behavior was cooperative,

and she denied any suicidal ideation, intent, or plan. (Tr. 26; see Tr. 518). Dr. Vraciu diagnosed

Ms. Frase with several conditions, such as major depressive disorder and social anxiety disorder,

and advised Ms. Frase to resume taking Cymbalta and to continue taking her other medications as

prescribed. (Tr. 26; see Tr. 519).

The ALJ found Dr. Vraciu’s opinion inconsistent as a result of these records. (Tr. 26).

Absent a determination that the ALJ failed to apply correct legal standard or made findings of fact

unsupported by substantial evidence in the record, the ALJ’s conclusion regarding this opinion

must be affirmed. Here, the ALJ presented evidence demonstrating that Dr. Vraciu’s opinion was

inconsistent because the treatment notes from Ms. Frase’s limited treatment history demonstrate

reports of unremarkable symptoms, with an absence of psychiatric hospitalization and without

evidence of hallucinations, delusions, obsessions, compulsions, cognitive disorder, current

suicidal/homicidal ideation, or other serious issues. (See generally Tr. 25-26). A “reasonable mind

might accept as adequate” the evidence (as discussed above) to support the ALJ’s finding the

opinion unpersuasive; therefore, the ALJ’s determination must be upheld because substantial

evidence supports it. Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir.

1992).

Finally, Ms. Frase argues that the ALJ inaccurately interpreted the state agency

psychologists’ findings that she had a marked limitation in her ability to deal with the public. (ECF

Doc. 6, PageID#552). She contends that the ALJ should not have interpreted the marked limitation

finding to mean that she could have incidental interaction with the public, which the ALJ further

defined as no sales, arbitration, negotiation, conflict resolution, or confrontation. (Id. (citing Tr.

24)). Ms. Frase fails to cite any case law in support of this contention. (see generally id.), and the

Commissioner’s arguments regarding this issue are well-taken. In the instant case, Dr. Rivera and

Dr. Warren (the state agency psychologists) opined that Ms. Rivera had a marked limitation in her

ability to interact appropriately with the general public. (Tr. 70, 88). State agency psychologists

are instructed by agency policy that “severity ratings or nonspecific qualifying terms (e.g.,

moderate, moderately severe)…do not describe function and do not usefully convey the extent of

capacity limitation.” SSA POMS DI 24510.065, https://secure.ssa.gov/poms.nsf/lnx/0424510065.

The state agency psychologists here thus translated this severity rating into Ms. Frase’s “social

interaction capacities,” concluding that Ms. Frase “is able to relate to others in the work setting

but can only occasionally deal with the public.” (Tr. 89) (emphasis added).

It is well-established that an ALJ is not required to include every limitation included in

persuasive prior administrative medical findings. See 20 C.F.R. § 404.1546(c); Daniels v. Comm’r

of Soc. Sec., No. 3:19-CV-02946, 2020 WL 6913490, at *10 (N.D. Ohio Nov. 24, 2020. Here, Ms.

Frase fails to explain in her merits brief or her reply brief how an “occasional” limitation to

interaction with the public is any more limiting than “incidental” interaction with the public. (See

generally ECF Doc. 6, PageID#552-53; ECF Doc. 8). Accordingly, I recommend that the Court

reject this assignment of error because it lacks merit.

2. Substantial Evidence Supports the ALJ’s Finding that Ms. Frase’s

Subjective Complaints were Inconsistent with the Record.

Ms. Frase argues that the ALJ failed to properly apply the SSR 16-3p criteria and to find

that the intensity, persistence, and limiting effects of Ms. Frase’s symptoms precluded her from

engaging in substantial gainful activity on a full-time and sustained basis. (ECF Doc. 6,

PageID#553-58). Specifically, Ms. Frase asserts that her testimony and written statements

provided evidence regarding the intensity, persistence, and limiting effect of her symptoms on her

ability to function and complete her activities of daily living. (See id. at PageID#554-57). Thus,

she contends that she satisfied SSR 16-3p’s criteria and that the ALJ “failed to articulate any

supportable rationale” for finding her statements and the evidence did not support that she would

be precluded from all types of work. (Id. at PageID#557). The Commissioner contends that the

ALJ’s SSR 16-3p analysis contains sufficient explanation that is supported by substantial evidence.

(ECF Doc. 7, PageID#573-76).The Commissioner’s argument is well-taken..

A claimant's subjective symptom complaints may support a disability finding only when

objective medical evidence confirms the alleged severity of the symptoms. Blankenship v. Bowen,

874 F.2d 1116, 1123 (6th Cir. 1989). An ALJ is not required to accept a claimant's subjective

symptom complaints, however, and may properly discount the claimant's testimony about a

claimant’s symptoms when it is inconsistent with objective medical and other evidence. See Jones

v. Comm'r of Soc. Sec., 336 F.3d 469, 475-76 (6th Cir. 2003); SSR 16-3p, 2016 SSR LEXIS 4 *15

(Oct. 25, 2017) (“We will consider an individual's statements about the intensity, persistence, and

limiting effects of symptoms, and we will evaluate whether the statements are consistent with

objective medical evidence and the other evidence.”). In evaluating a claimant's subjective

symptom complaints, an ALJ may consider several factors, including the claimant's daily

activities, the nature of the claimant's symptoms, the claimant's efforts to alleviate his symptoms,

the type and efficacy of any treatment, and any other factors concerning the claimant's functional

limitations and restrictions. SSR 16-3p, 2016 SSR LEXIS 4 *15-19; 20 C.F.R. §§ 404.1529(c)(3),

416.929(c)(3).

Although the ALJ should consider the entire record, there is no requirement that the ALJ

discuss every factor that was considered in reaching her conclusion or provide a factor-by-factor

analysis. White v. Comm’r of Soc. Sec., 572 F.3d 272, 287 (6th Cir. 2009); see also Cross v.

Comm’r of Soc. Sec., 373 F.Supp.2d 724, 733 (N.D. Ohio 2005) (“The ALJ need not analyze all

seven factors identified in the regulation but should provide enough assessment to assure a

reviewing court that he or she considered all relevant evidence.”). However, “[i]n evaluating an

individual’s symptoms, it is not sufficient for [an ALJ] to make a single, conclusory statement that

‘the individual’s statements about his or her symptoms have been considered’ or that ‘the statement

about the individual’s symptoms are (or are not) supported or consistent.’” SSR 16-3p, 2016 WL

1119029, at *9. Rather, an ALJ’s “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.” Id.; see also Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994)

(“If an ALJ rejects a claimant’s testimony as incredible, [s]he must clearly state [her] reason for

doing so.”). On review, courts must “accord the ALJ’s determination of credibility great weight

and deference particularly since the ALJ as the opportunity, which [the courts] do not, of observing

a witness’s demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.

2003) (citations omitted).

A review of the ALJ’s decision reveals that the ALJ offered discernible, valid reasons for

discounting Ms. Frase’s subjective symptoms. For example, the ALJ discussed the effectiveness

of treatment when discounting Ms. Frase’s allegations. This is a proper factor to consider. 20

C.F.R. § 416.929(c)(3)(v) (ALJ may consider “[t]reatment, other than medication, you receive or

have received for relief of your pain or other symptoms[.]”). Significantly, the ALJ observed that

Ms. Frase reported seeing a positive response to her psychotropic medications and counseling,

despite not consistently taking her medication. (Tr. 26; see, e.g., Tr .470, 473).

Next, the ALJ also observed the inconsistent treatment that Ms. Frase obtained for her

symptoms—another appropriate consideration under the Social Security regulations. See SSR 16-

3p, 2017 WL 5180304, at *9 (“[I]f the frequency or extent of the treatment sought by an individual

is not comparable with the degree of an 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 the record.”); Wreede v. Comm’r of Soc. Sec., No. 3:18CV164, 2019 WL 1324024, at *20 (N.D.

Ohio Mar. 25, 2019). The ALJ noted that the absence of documentation of ongoing treatment was

“inconsistent” and that it “seriously undermine[d] allegations of disabling, or even severe,

limitations of function, lasting twelve months in duration and despite treatment[.]” (Tr. 26). This

conclusion finds support in the record. Indeed, Ms. Frase reported improvement on her

psychotropic medications. (Tr. 466, 470, 473). Although instructed to follow up in twelve weeks

in December 2020, Ms. Frase failed to follow up with her provider in July 2021 when she requested

a refill of her medication and asked Dr. Vraciu to complete paperwork in support of her disability

application. (Tr. 517).

The ALJ also observed that Ms. Frase’s allegations were inconsistent with her own reports

to her mental health providers. (See Tr. 26); 20 C.F.R. § 404.1529(c)(4) (An ALJ will consider

“whether there are any inconsistencies in the evidence and the extent to which there any conflicts

between [the claimant’s] statements and the rest of the evidence[.]”). Indeed, the ALJ pointed to

notes that Ms. Frase reported mostly mild to moderate level symptoms to her providers, without

evidence of hallucinations, delusions, obsessions, compulsions, cognitive disorder, current

suicidal/homicidal ideation, or other serious issues. (Tr. 26). Looking elsewhere in the decision,

the ALJ cited evidence in support of this conclusion. For example, the ALJ observed that in

October 2020, Ms. Frase told Dr. Vraciu that she was doing “pretty good,” her sons were home

from school, which was good for her, and she was not worried about applying for a job. (Tr. 25;

see Tr. 420). Her mental status examination revealed Ms. Frase was alert and oriented to all

spheres, her mood was a little better, she had euthymic affect, and she denied suicidal, ideation,

intent, or plan. (Tr. 25; see Tr. 421). In December 2020, Ms. Frase told her provider she was “doing

okay”; her moods were “overall … better”; her depression “has been doing pretty good and really

manageable”; and her anxiety was “better controlled but still flares up in situations.” (Tr. 473). In

July 2021, at her last appointment, Ms. Frase reported that her depression “hasn’t been too bad

except for being out of medicine the last week,” although her anxiety “has been coming up a bit

heightened and a lot of it is social anxiety.” (Tr. 517). Ms. Frase’s mental status examination

revealed that shewas alert and oriented to all spheres, had fair insight and judgment, her mood was

“okay, a bit anxious,” cooperative behavior, and lack of suicidal ideation, intent, or plan. (Tr. 26;

see Tr. 518). Ms. Frase does not demonstrate how this was an inappropriate consideration in the

ALJ’s SSR 16-3p analysis. Riggs v. Berryhill, No. 3:17-CV-00183-DW, 2018 WL 1410842, at *9

(W.D. Ky. Mar. 21, 2018) (citing Winning v. Comm’r, 661 F.Supp.2d 807, 822 (N.D. Ohio 2009)

and Walters v. Comm’r of Soc. Sec., 127 F.3d 525 (6th Cir. 1997)) (“When the ALJ finds

contradictions among the medical reports, claimant’s testimony and other evidence, the ALJ may

properly discount the credibility of the claimant.”) (quotation marks omitted).

Finally, the ALJ considered Ms. Frase’s activities of daily living, which is another factor

that an ALJ may consider in his SSR 16-3p analysis. (Tr. 26); 20 C.F.R. § 416.929(c)(i) (daily

activities is a relevant factor to evaluating claimant’s subjective symptoms); Blacha v. Sec’y of

Health and Human Servs., 927 F.2d 228, 231 (6th Cir. 1990); see also Temples v. Comm'r of Soc.

Sec., 515 F. App'x 460, 462 (6th Cir. 2013) (“[T]he ALJ did not give undue consideration to

Temples’ ability to perform day-to-day activities. Rather, the ALJ properly considered this ability

as one factor in determining whether Temples’ testimony was credible.”). In particular, the ALJ

noted that at a February 2021 internal medicine consultative examination, Ms. Frase reported to

Dr. Herman that she completed housework, took care of her children, used the Internet, and cared

for her pets. (Tr. 26; see Tr. 449). While these activities alone may not conclusively establish Ms.

Frase’s ability to engage in full-time work, her daily activities are nonetheless a relevant factor the

ALJ could analyze when assessing her residual functional capacity. Dodson v. Comm’r of Soc.

Sec., No. 5:18-CV-02263, 2019 WL 6841771, at *3 (N.D. Ohio Dec. 16, 2019) (“[W]hile merely

citing to a claimant’s daily activities cannot conclusively establish an ability to engage in full-time

work, it is also true that a claimant’s capacity to perform tasks in daily living is a legitimate factor

to be considered in assessing the claimant’s functional capacity.”). All of the reasons provided by

the ALJ are reasonable and sufficiently clear to create a logical bridge between the evidence and

the finding that Ms. Frase’s statements were not consistent with the record evidence.

Ms. Frase, in support of her challenge to the ALJ’s SSR 16-3p analysis, argues that the

“medical evidence … supported [her] statements regarding the intensity, persistence, and limiting

effects of her symptoms.” (ECF Doc. 6, PageID#555). She summarizes multiple medical records

but fails to put forth any analysis tying these records to her subjective symptoms. (See generally

id. at PageID#555-57). Her merits brief does not address or attack any of the specific reasons the

ALJ articulated for discounting her allegations. (See generally id. at PageID#555-58). Rather, Ms.

Frase merely puts forth evidence that would support her preferred conclusion. (Id.). Ms. Frase is

“essentially asking this Court to reweigh the evidence and issue a de novo determination.” Vidot

v. Colvin, No. 1:14 CV 1343, 2015 WL 3824360, at *8 (N.D. Ohio June 18, 2015). This is an

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

of the [ALJ] must stand if the evidence could reasonably support the conclusion.” See Key v.

Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The Commissioner enjoys a “zone of choice” within

which to decide cases without risking being second-guessed by a court. Mullen v. Bowen, 800 F.2d

535, 545 (6th Cir. 1986) (citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). As

demonstrated above, the ALJ complied with SSR 16-3p by articulating sufficient reasons for

discounting Ms. Frase’s allegations and those reasons are supported by substantial evidence.

Accordingly, I recommend that the Court reject this assignment of error because it lacks merit.

VI. RECOMMENDATION

Based on the foregoing, I RECOMMEND that the Court OVERRULE Ms. Frase’s

assignments of error and AFFIRM the Commissioner’s decision.

Dated: July 17, 2023 s/ Jennifer Dowdell Armstrong

Jennifer Dowdell Armstrong

U.S. Magistrate Judge

VII. NOTICE TO PARTIES REGARDING OBJECTIONS

Local Rule 72.3(b) of this Court provides:

Any party may object to a Magistrate Judge’s proposed findings,

recommendations or report made pursuant to Fed. R. Civ. P. 72(b)

within fourteen (14) days after being served with a copy thereof, and

failure to file timely objections within the fourteen (14) day period

shall constitute a waiver of subsequent review, absent a showing of

good cause for such failure. Such party shall file with the Clerk of Court,

and serve on the Magistrate Judge and all parties, written objections which

shall specifically identify the portions of the proposed findings,

recommendations, or report to which objection is made and the basis for

such objections. Any party may respond to another party’s objections

within fourteen (14) days after being served with a copy thereof. The

District Judge to whom the case was assigned shall make a de novo

determination of those portions of the report or specified proposed findings

or recommendations to which objection is made and may accept, reject, or

modify, in whole or in part, the findings or recommendations made by the

Magistrate Judge. The District Judge need conduct a new hearing only in

such District Judge’s discretion or where required by law, and may

consider the record developed before the Magistrate Judge, making a

determination on the basis of the record. The District Judge may also

receive further evidence, recall witnesses or recommit the matter to the

Magistrate Judge with instructions.

Id. (emphasis added).

Failure to file objections within the specified time may forfeit the right to appeal the

District Court’s order. Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019).

Objections must be specific and not merely indicate a general objection to the entirety of the

report and recommendation; a general objection has the same effect as would a failure to

object. Howard v. Sec’y of Health and Hum. Servs., 932 F.2d 505, 509 (6th Cir. 1991).

Stated differently, objections should focus on specific concerns and not merely restate

the arguments in briefs submitted to the magistrate judge. “A reexamination of the exact same

argument that was presented to the Magistrate Judge without specific objections ‘wastes

judicial resources rather than saving them, and runs contrary to the purpose of the Magistrates

Act.’” Overholt v. Green, No. 1:17-CV-00186, 2018 WL 3018175, at *2 (W.D. Ky. June 15,

2018) (quoting Howard). The failure to assert specific objections may in rare cases be

excused in the interest of justice. See United States v. Wandahsega, 924 F.3d 868, 878-79

(6th Cir. 2019).