Tromler v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

DENISE MARIE TROMLER, ) Case No. 1:24-cv-00492

)

Plaintiff, ) JUDGE DAVID A. RUIZ

)

v. ) MAGISTRATE JUDGE

) REUBEN J. SHEPERD

COMISSIONER OF SOCIAL SECURITY, )

) REPORT AND RECOMMENDATION

Defendant. )

I. Introduction

Plaintiff, Denise Marie Tromler (“Tromler”), seeks judicial review of the final decision of

the Commissioner of Social Security denying her application for Disability Insurance Benefits

(“DIB”) under Title II of the Social Security Act. Tromler raises two issues on review of the

Administrative Law Judge’s (“ALJ”) decision, arguing:

1. The ALJ failed to support her conclusions regarding the opinions of the treating

sources with substantial evidence; and,

2. The ALJ committed harmful error when she failed to properly apply the criteria of

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

limiting effects of Tromler’s symptoms precluded her from engaging in

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

Because the Administrative Law Judge (“ALJ”) applied proper legal standards and

reached a decision supported by substantial evidence, I recommend that the Commissioner’s

final decision denying Tromler’s application for DIB be affirmed.

II. Procedural History

On October 13, 2022, Tromler filed an application for DIB alleging her disability began

March 15, 2022. She alleged disability due to Major Depressive Disorder (“MDD”),

hypertension, back injury, left elbow and left foot. (Tr. 170). The claims were denied initially

and on reconsideration. (Tr. 74, 86). She then requested a hearing before an ALJ. (Tr. 102).

Tromler, with representation, and a vocational expert (“VE”) testified before the ALJ on October

25, 2022. (Tr. 43-64).

On November 28, 2023, the ALJ issued a written decision finding Tromler not disabled.

(Tr. 21-42). The Appeals Council denied her request for review on November 1, 2023, thereby

rendering the ALJ’s decision the final decision of the Commissioner. (Tr. 8-13). Tromler timely

instituted this action on March 15, 2024. (ECF Doc. 1).

II. Evidence

A. Personal, Educational and Vocational Evidence

Tromler was 51 years old on the date her application was filed. (Tr. 146). She dropped

out of school while in the twelfth grade. (Tr. 51). She has past relevant work as a sheet metal

worker, DOT 804.281-010, SVP 7, and medium exertional level, although she performed it at a

heavy exertional level; and as a metal worker supervisor, DOT 809.130-014, SVP 8, performed

at the medium exertional level. (Tr. 60-61).

B. Relevant Medical Evidence

Records submitted from Cleveland Psychiatry Associates indicate that on July 6, 2022,

Tromler shared with her counselor, Stephen Pessefall, PMHNP-BC, that she was not sure if she

was “seriously depressed, going crazy or both.” (Tr. 260). Examination notes revealed that she

had some history of anger and aggressive behavior. (Id.). Her symptoms included loss of interest,

poor concentration, fatigue, worthlessness, hopelessness, increasing worry, irritability, isolation,

sadness, and poor sleep. (Id.).

On August 1, 2022, Tromler presented at the MetroHealth Emergency Department

expressing suicidal ideations, generally relating to the loss of her job and associated financial

stressors. (Tr. 286). As she described having a plan to carry out her suicidal ideations, and having

access to a firearm, hospital staff determined her to be high risk and she was admitted. (Tr. 288).

She described herself as depressed and hopeless, and noted her depression symptoms had made it

difficult to get out of bed to go to work. (Tr. 289). She also felt her meds that had been effective,

had suddenly stopped working. (Tr. 289). She was diagnosed with major depressive disorder

(“MDD”), recurrent, severe and remained hospitalized until August 9, 2022. (Tr. 294).

Upon her release from the hospital, Tromler met with Pessefall on August 10, 2022, and

described her mood as “better” and denied any depression or anxiety symptoms. (Tr. 257). She

met with Pessefall again on September 7, 2022, and again reported no symptoms, and noted that

she was having a good summer, and that she had been doing house and yard work. (Tr. 254).

Tromler attended an appointment with Recovery Resources on October 13, 2022, appeared

ungroomed, and was wearing dirty clothing. (Tr. 278). She described her mood as poor owing to

the loss of employment. (Id.). On October 21, 2022, she met again with Pessefall and reported

that her medications seemed to be effective, but that she felt she could not work due to feeling

depressed and overwhelmed. (Tr. 250).

On October 24, 2022, Tromler went to MetroHealth for management of her hypertension

medication. (Tr. 273). There she reported chronic back pain she had been experiencing for two

years that was non-radiating and was being treated with lidocaine patches. (Id.). She reported

having friends over to watch a Cleveland Browns football game on November 18, 2022 (Tr.

484), and noted on December 7, 2022, that she had hosted Thanksgiving at her house and that

her mood was good. (Tr. 480). An x-ray of her lumbar spine performed on January 11, 2023

showed moderate degenerative changes, with disc space narrowing at L4-5 and L5-S1, and mild

narrowing in the upper levels of the lumbar. (Tr. 440).

On February 8, 2023, Tromler reported to Pessefall that she had hosted her family for the

holidays, and she felt like things were going “ok.” (Tr. 477). At an appointment with Pessefall on

March 31, 2023, however, Tromler reported she could not sit still due to her depression

symptoms and she felt like her head was “spinning like a top.” (Tr. 473). She also injured her

back pulling weeds in her garden in April 2023 (Tr. 518) and treated with a chiropractor from

April 13, 2023-May 4, 2023. (Tr. 491-508). On June 23, 2023, Tromler reported to Pessefall that

she felt she needed her medications adjusted because she “did not see the light at the end of the

tunnel.” (Tr. 514). On August 18, 2023, Tromler reported she was mostly okay, and was only

having a few depressing days per month. (Tr. 510).

C. Medical Opinion Evidence

1. State Agency Reviewers

On December 31, 2022, state agency reviewing psychologist David Dietz, Ph.D., found

that Tromler had moderate limitations in the domains of concentration, persistence or

maintaining pace, and adapting or managing oneself. (Tr. 68). Dr. Dietz further determined that

she was moderately limited in her ability to maintain attention and concentration; to complete a

normal workday and workweek without interruptions from psychologically based symptoms and

to perform at a consistent pace without an unreasonable number and length of rest periods; and,

to respond appropriately to changes in the work setting. (Tr. 71-72). That opinion was confirmed

at the reconsideration level on June 1, 2023, by Courtney Zeune, Psy.D. (Tr. 83).

On February 26, 2023, state agency reviewing physician Dana Schultz, M.D., determined

that Tromler was capable of occasionally lifting and/or carrying 20 pounds, and that she could

frequently lift and/or carry 10 pounds, consistent with a light exertional level. (Tr. 70). She was

limited to six hours of sitting, standing or walking during an eight-hour workday. (Id.). Dr.

Schultz further restricted Tromler to frequent climbing of ramps or stairs, with no climbing of

ladders, ropes, or scaffolds; frequent stooping, kneeling, crouching, or crawling; and avoiding all

exposure to workplace hazards including heavy machinery, unprotected heights, and commercial

driving. (Id.). Dr. Schultz’ opinion was confirmed at the reconsideration level by Gerald Dzurik,

M.D. on May 25, 2023. (Tr. 82).

2. Consultative Examination Reports

On January 21, 2023, Tromler attended a consultative examination with Paul Oh, M.D.,

alleging disability due to back pain, left elbow pain, and depression. (Tr. 444). Tromler reported

she had experienced back pain for 20 years, with symptoms including pain, tingling in the left

arm, and decreased lumbar range of motion. (Id.). Her pain intensity was 8/10 most days. (Id.).

She reported a 15-year history of left elbow pain on the lateral aspect. (Id.). The pain was worse

when grasping or picking items up. The pain in her left elbow was 7/10 most days. (Id.) She also

reported a 15-year history of depression, and she sometimes had trouble sleeping. She was

treating her depression with counseling and medications. She had experienced suicidal thoughts.

(Tr. 444-45). Dr. Oh noted that Tromler had good eye contact and fluent speech, her mood was

appropriate, and she had clear thought processes. (Tr. 447). Her gait was steady and symmetric.

There was tenderness of the low back to palpation. (Id.). She had some decreased range of

motion in the lumbar spine laterally on flexion and extension, otherwise she had good strength

and sensory function. (Tr. 449). Dr. Oh assessed Tromler with mild limitation with sitting,

standing and walking; mild limitation with lifting or carrying weight; and she was limited to

frequent bending, stooping, crouching and squatting. (Id.).

3. Treating Source Opinions

On October 21, 2022, Tromler’s treating source, NP Pessefall, diagnosed her with Major

Depressive Disorder, and determined her prognosis to be “fair.” (Tr. 247). He opined, in check-

the-box form, that Tromler was unable to meet competitive standards in performing activities

within a schedule; working in coordination with or in proximity to others without being

distracted by them; completing a normal workday and workweek without interruptions from

psychologically based symptoms; understanding and remembering detailed instructions;

responding appropriately to changes in the work setting; and being aware of normal hazards and

taking appropriate precautions. (Tr. 247-48). NP Pessefall further opined that Tromler was

seriously limited, but not precluded from carrying out very short and simple instructions;

carrying out detailed instructions; maintaining attention and concentration for extended periods;

managing regular attendance and being punctual within customary tolerances; sustaining an

ordinary routine without special supervision; performing at a consistent pace without an

unreasonable number and length of rest periods; remembering locations and work-like

procedures; understanding and remembering very short and simple instructions; interacting

appropriately with the general public; asking simple questions or requesting assistance; accepting

instructions and responding appropriately to criticism from supervisors; getting along with

coworkers or peers without distracting them or exhibiting behavior extremes; maintaining

socially appropriate behavior and adhering to basic standards of neatness and cleanliness; and

setting realistic goals and making plans independently of other. (Id.). He opined that Tromler

would be absent five to six times monthly and off-task five to six days monthly. (Tr. 248). On

August 8, 2023, NP Pessefall rendered a second opinion that was identical to the first. (Tr. 508-

09).

D. Administrative Hearing Evidence

On October 25, 2023, Tromler testified before the ALJ that she has a driver’s license but

is unable to drive. She resides with her mother and did not complete the twelfth grade. (Tr. 51).

She last worked in June or July, but she had left her previous long-term job with the intention to

camp for the next year with her dogs. (Tr. 51-53). She is not seeking work because she is

incapable of showing up on time, and sometimes does not show up at all. (Tr. 53). There are days

she lays in bed all day. (Id.).

She complained of depression and had tried to start counseling, but her insurance would

not cover the cost. (Id.). She does take medication that is prescribed by a psychiatrist she sees

about every month or month and a half. (Id.). Her typical day consists of letting her dogs out,

making coffee for her and her mother, laying around watching television, and sometimes

cooking. (Tr. 54). She will wash dishes and dust her house. (Id.). She enjoys camping but does

not go often. (Tr. 55). She will walk her dogs but finds it difficult. (Id.). She will typically forget

a television show she watched after a couple of days. (Id.).

Tromler generally keeps in touch with one friend, and she has another friend in Nebraska

she may speak to once yearly. (Id.). She only leaves home to go to Wal-Mart, McDonald’s, or

her friend’s house. (Id.). She only makes short visits to Wal-Mart. (Id.).

With medication, her depression has remained “the same.” (Tr. 56). In a typical month

she will have 20 good days and 10 bad days. (Id.). On a bad day she will not get out of bed, and

she can remain in bed for as long as two days. (Id.). During bad days she will not talk to anyone

or answer her phone. (Id.). She currently has no interest in working and feels she would still be

incapable of showing up on time. (Tr. 57). She will often make plans and then not show up. (Tr.

58). She also noted that her back is often “very uncomfortable,” and she is sometimes incapable

of rolling over. (Id.).

Following Tromler’s testimony, VE Sarah Holmes testified. The VE testified that

Tromler’s past work included sheet metal worker, DOT 804.281-010, SVP 7, and medium

exertional level per the DOT, although she actually performed the work at the heavy level. She

also worked as metal worker supervisor, DOT 809.130-014, SVP 8, and a medium exertional

level. (Tr. 60-61).

The ALJ proposed a single hypothetical asking the VE to consider an individual capable of

working at the light exertional level with no climbing of ladders, ropes or scaffolds; occasional

climbing of ramps or stairs; occasional stooping or crawling and frequent balancing, kneeling

and crouching; avoiding operation of heavy machinery, unprotected heights or commercial

driving; limited to simple or moderately complex tasks in a job with no strict production or fast

pace such as assembly line work; able to meet production requirements, allowing for functional

and goal-oriented pace; able to maintain focus, persistence, concentration, pace and attention in

such tasks in two-hour increments for eight-hour workdays within the confines of normal work

breaks and lunch periods; and can deal with occasional changes in a routine work setting. (Tr.

61). The VE opined this individual would be unable to perform Tromler’s past work but would

be able to perform other jobs in the national economy. Examples of such jobs include

cleaner/housekeeper, DOT 323.687-014, with approximately 240,000 jobs nationally;

merchandise marker, DOT 209.587-034, with approximately 800,000 jobs nationally; and

cashier, DOT 211.462-010 with approximately 340,000 jobs nationally. (Tr. 61-62). The VE

testified that an individual could be off task no more than 15 percent of the workday to maintain

employment and could be absent no more than once or twice per month, and really no more than

six to eight times annually. (Tr. 62).

III. The ALJ’s Decision

In her decision dated November 28, 2023, the ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security

Act through December 21, 2027.

2. The claimant has engaged in substantial gainful activity from March 15,

2022 through June 2, 2022 (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: lumbar degenerative

disc disease and major depressive disorder (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments

that meets or medically equals the severity of one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526).

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

the claimant has the residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) except the claimant can never climb

ladders, ropes or scaffolds. She can occasionally use ramps and stairs. She

can occasionally stoop and crawl. She can frequently balance, kneel and

crouch. She should avoid operating heavy machinery, work around

unprotected heights, or commercial driving. She can perform simple to

moderately complex tasks in a job with no strict production or fast pace

such as assembly line work. She can meet production requirements that

allow a flexible and goal-oriented pace. She can maintain the focus,

persistence, concentration, pace and attention to engage in such tasks for

two-hour increments, for eight-hour workdays, within the confines of

normal work breaks and lunch periods. She can deal with occasional

changes in a routine work setting.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565).

7. The claimant was born on September 18, 1971, and was 50 years old,

which is defined as an individual closely approaching advanced age, on

the alleged disability onset date (20 CFR 404.1563).

8. The claimant has at limited education (20 CFR 404.1564).

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

disability because using the Medical-Vocational Rules as a framework

supports a finding that the claimant is “not disabled” whether or not the

claimant has transferable job skills. (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and residual

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

national economy that the claimant can perform (20 CFR 404.1569 and

404.1569a).

11. The claimant has not been under a disability, as defined in the Social

Security Act, from March 15, 2022, through the date of this decision (20

CFR 404.1520(g)).

(Tr. 14-40).

IV. Law and Analysis

A. Standard for Disability

Social Security regulations outline a five-step process the ALJ must use to determine

whether a claimant is entitled to benefits:

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. Part 404, Subpart P, Appendix 1;

4. if not, whether the claimant can perform their past relevant work in light of his

RFC; and

5. if not, whether, based on the claimant’s age, education, and work experience, they

can perform other work found in the national economy.

20 C.F.R. § 404.1520(a)(4)(i)-(v)1; Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642-43 (6th

Cir. 2006). The Commissioner is obligated to produce evidence at Step Five, but the claimant

bears the ultimate burden to produce sufficient evidence to prove they are disabled and, thus,

entitled to benefits. 20 C.F.R. § 404.1512(a).

B. Standard of Review

This Court reviews the Commissioner’s final decision to determine if it is supported by

substantial evidence and whether proper legal standards were applied. 42 U.S.C. § 405(g);

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). However, the substantial

evidence standard is not a high threshold for sufficiency. Biestek v. Berryhill, 139 S. Ct. 1148,

1154 (2019). “It means – and means only – ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Id., quoting Consolidated Edison Co. v. NLRB,

305 U.S. 197, 229 (1938). Even if a preponderance of the evidence supports the claimant’s

position, the Commissioner’s decision cannot be overturned “so long as substantial evidence also

supports the conclusion reached by the ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477

(6th Cir. 2003).

Under this standard, the court cannot decide the facts anew, evaluate credibility, or re-

weigh the evidence. Id. at 476. And “it is not necessary that this court agree with the

Commissioner’s finding,” so long as it meets the substantial evidence standard. Rogers, 486 F.3d

at 241; see also Biestek, 880 F.3d at 783. This is so because the Commissioner enjoys a “zone of

choice” within which to decide cases without court interference. Mullen v. Bowen, 800 F.2d 535,

545 (6th Cir. 1986).

1 The regulations governing DIB claims are found in 20 C.F.R. § 404, et seq. and the regulations

governing SSI claims are found in 20 C.F.R. § 416, et seq. Generally, these regulations are duplicates

and establish the same analytical framework. For ease of analysis, I will cite only to the relevant

regulations in 20 C.F.R. § 404, et seq. unless there is a relevant difference in the regulations.

Even if substantial evidence supported the ALJ’s decision, the court will not uphold that

decision when the Commissioner failed to apply proper legal standards, unless the legal error

was harmless. Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“[A] decision

. . . will not be upheld [when] the SSA fails to follow its own regulations and that error

prejudices a claimant on the merits or deprives the claimant of a substantial right.”); Rabbers v.

Comm’r Soc. Sec. Admin., 582 F.3d 647, 654 (6th Cir. 2009) (“Generally, . . . we review

decisions of administrative agencies for harmless error.”). Furthermore, this Court will not

uphold a decision when the Commissioner’s reasoning does “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). Requiring an accurate and logical bridge ensures that a claimant and the reviewing

court will understand the ALJ’s reasoning, because “[i]f relevant evidence is not mentioned, the

court cannot determine if it was discounted or merely overlooked.” Shrader v. Astrue, No. 11-

13000, 2012 WL 5383120, at *6 (E.D. Mich. Nov. 1, 2012).

V. Discussion

Tromler brings two issues for this Court’s review:

1. Whether the ALJ failed to support her conclusions regarding the opinions of the

treating sources with substantial evidence; and

2. Whether the ALJ committed harmful error when she failed to properly apply the

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

persistence and limiting effects of Tromler’s symptoms precluded her from

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

(ECF Doc 7, p. 1).

A. The ALJ supported her conclusions regarding the opinions of the treating

sources and state agency reviewing physicians with substantial evidence.

Although Tromler’s first argument is presented as a challenge to the ALJ’s assessment of

the treating source opinions, the body of the argument challenges both the assessment of the

treating source opinions and the opinions of the state agency reviewing physicians. Accordingly,

the ALJ’s treatment of the different opinions in the file will be addressed separately.

1. Treating Source Opinion

Certified Nurse Practitioner Steve Pessefall of Cleveland Psychiatry Associates

consistently provided counseling services to Tromler throughout the period in question. The

record includes two identical opinions Pessefall rendered regarding Tromler’s mental health, the

first issued on October 21, 2022, and the second on August 18, 2023. (Tr. 267, 508-09). As noted

above, Pessefall opined that in all areas considered, Tromler was either “unable to meet

competitive standards” or “seriously limited, but not precluded.” (Id.). As the opinion was

presented in check-the-box form, very little explanation is provided for the conclusions Pessefall

reached. (Id.).

Tromler argues that the ALJ failed to support her conclusions and did not discuss the

supportability and consistency of the opinions. (ECF Doc. 7, pp. 8-10, citing Tr. 31-34, 250, 260,

278, 286-295, 470, 514). Tromler offers several examples from the records that she contends

show Pessefall’s opinions were supported by his treatment notes and were consistent with other

evidence in the record. (Id.). The Commissioner responds by citing to several examples from the

ALJ decision that reflect where in the record she found support for, and consistency with, her

assessment of Pessefall’s opinion. (ECF Doc. 9, pp. 16-18, citing Tr. 33-35, 250, 254, 257-258,

275, 280, 282, 448, 473, 477, 480, 484, 510, 514, 518).

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 must “articulate how [he]

considered the medical opinions” and “how persuasive [he] find(s) all of the medical opinions.”

20 C.F.R § 416.920c, see Gamble v. Berryhill, No. 5:16-CV-2869, 2018 WL 1080916, *5 (N.D.

Ohio, Feb. 28, 2018). At a minimum, the ALJ must explain how she 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). 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). Consistency concerns the degree to

which the opinion reflects the same limitations described in evidence from other sources,

whereas supportability concerns the relevancy of objective medical evidence and degree of

explanation given by the medical source to support the limitations assessed in the opinion. See 20

C.F.R. § 404.1520c(c)(1)-(2).

The record here supports the ALJ’s conclusion that Pessefall’s opinion was “inconsistent

with his own treatment.” (Tr. 34). The ALJ’s decision specifically cited numerous examples

within the record to support her conclusion, noting the records showed:

that overall, she had few depressive days. ([Tr. 510]). Her mental status had no

gross abnormalities. She was friendly and communicative. She had no suicidal

thoughts. Her thinking was generally intact, and her thought content was

appropriate. There were no signs of anxiety. Examination showed her dress and

grooming were appropriate. ([Tr. 473]). She was friendly and communicative. Her

mood was euthymic. Her thinking was generally logical, and her thought content

was appropriate. Her cognitive thinking was intact. The record as whole

supported improvement after her hospitalization for depression, and she had no

more than moderate mental limitations. Mr. Pessefall noted that the claimant had

“no apparent serious mental status abnormalities.” ([Tr. 250]).

(Tr. 34). The ALJ also cited evidence from other providers, including another treating source,

Dr. Fink, and the consultative examiner, Dr. Oh, that indicated normal mood and affect as well

as normal memory and concentration to show inconsistency with other sources. (Tr. 32-34). The

two identical opinions offered by Pessefall clearly conflict with the citations the ALJ noted from

Pessefall’s exam records, and other sources. These notations do not support the determination

that Tromler was “unable to meet competitive standards” in multiple areas that were evaluated in

the check-the-box format of Pessefall’s opinion. Without any accompanying explanation for the

assessed limitations, there cannot be a further understanding of the basis of Pessefall’s opinion,

nor an understanding that overcomes the inconsistency and lack of supportability. It has been

held that an ALJ need not afford controlling weight to “‘vague and unhelpful’” treating-source

opinions in which the treating source “‘fail[s] to identify objective medical findings to support’”

his conclusions. Makela v. Comm’r of Soc. Sec., 2022 WL 9833285, *5 (6th Cir., Oct. 17, 2022)

quoting Price v. Comm’r of Soc. Sec. 342 F. App’x 172, 176 (6th Cir. 2009). Accordingly, here,

without further explanation provided in the opinion, the ALJ was well within her purview to

discount this opinion.

Tromler did, as noted above, point to several instances in the record where Pessefall’s

examination notes do suggest mental health concerns that could potentially have justified

granting greater weight to the opinion. This Court, however, when reviewing the ALJ’s disability

conclusion is “limited to determining whether it is supported by substantial evidence and was

made pursuant to proper legal standards.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th

Cir. 2007). The standard requires “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.” Id. at 241. Under this deferential standard we do not “resolve conflicts in

evidence, or decide questions of credibility.” Maleka, 2022 WL 9833285 at *3, citing Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). So long as substantial evidence supports the

Commissioner’s decision, this Court will not reverse “even if there is substantial evidence in the

record that would have supported the opposite conclusion.” Blakley v. Comm’r of Soc. Sec., 581

F.3d 399, 409 (6th Cir. 2009). Here, the substantial evidence cited, and the ALJ’s evaluation of

the consistency and supportability of that evidence, require that the Commissioner’s decision be

left undisturbed. I therefore recommend that this argument be denied.

2. State Agency Reviewing Physician Opinions

Tromler further argues that the opinions of the State agency reviewing physicians were

“neither supported by nor consistent with the medical evidence.” (ECF Doc. 7, p. 11). She

contends that the ALJ “did not build a logical bridge between the evidence documenting [her]

disabling problems and the ALJ’s decision to deny benefits”, (Id.) and the “ALJ’s determination

was not supported by substantial evidence.” (Id.). The Commissioner notes that the ALJ found

the findings of the State agency psychological consultants generally persuasive, although the

ALJ “found slightly greater limitation in interacting with others, but no more than moderate

limitations overall.” (Tr. 35). The ALJ also found that the evidence showed improvement in

Tromler’s depressive symptoms following her psychiatric hospitalization. (Id.). In assessing the

opinions of the State agency medical consultants, the ALJ found them persuasive because they

were “supported by and consistent with the record.” (Id.). The Commissioner argues that

Tromler has “failed to show any error of law, and substantial evidence supports the ALJ’s

evaluations of . . . the prior administrative medical findings of the State agency medical and

psychological consultants.” (ECF Doc. 9, p. 20).

The ALJ’s decision clearly reflects that she thoroughly considered the opinions of the

State agency consultants. As the Commissioner argued, the ALJ found the State agency mental

health experts to be “generally persuasive”, but, based on her careful review of the record, the

ALJ imposed more restrictive limitations in her RFC than those recommended by the

consultants. (Tr. 39). This reflects the thoughtful analysis the ALJ applied when evaluating the

opinions in the context of the record as a whole. She noted the improvement Tromler showed

with her mental health symptoms, and the generally innocuous notes from Pessefall’s

examinations. While Tromler may not agree with the conclusions, there is a clear and logical

bridge drawn from the evidence to the ALJ’s assessment of the State agency mental health

consultants’ opinions. Thus, there is no error.

With regard to the State agency medical consultant opinions, the ALJ found these

opinions persuasive. The ALJ’s basis for this finding is clearly described in the decision and is

based on the radiography and examination notes included in the record. (Id.) Again, a clear line

is drawn from the evidence in the record to the ALJ’s determination of the persuasiveness of

these opinions, and I therefore cannot recommend remand on this basis.

B. The ALJ properly applied the criteria of Social Security Ruling 16-3p when

considering Tromler’s subjective complaints.

Here, Tromler argues that the ALJ did not properly evaluate all of her symptoms when

formulating her RFC. Specifically, the ALJ did not consider evidence regarding Tromler’s daily

activities; the location, duration, frequency and intensity of her pain; the effects of medication;

treatment received; and other factors concerning her functional limitations. (ECF Doc. 7, p. 12).

Tromler specifically cites to her own function report and hearing testimony, as well her

statements to treating sources, as evidence that she believes the ALJ failed to consider. She then

found support for some of her subjective statements in the medical records. It is this

corroboration that Tromler claims the ALJ failed to consider when assessing her capabilities,

and, by not articulating her reasoning for finding her statements “not entirely consistent with the

medical evidence” the ALJ committed reversible error. (Id. at p. 16).

The Commissioner contends that while the ALJ must consider the factors listed by

Tromler, “there is no requirement that the ALJ discuss every factor.” (ECF Doc. 9, p. 20, citing

Peery v. Comm’r of Soc. Sec., No. 1:16-CV-01848, 2017 WL 4077151, at *7 (N.D. Ohio, Sept.

14, 2017)). If the ALJ’s determination is supported by substantial evidence, it must stand.

Indeed, such findings “are virtually unchallengeable.” (ECF Doc. 9, pp. 20-21, citing Phillips v.

Comm’r of Soc. Sec., No. 5:20-CV-126, 2021 WL 252542, *9 (N.D. Ohio Jan. 26, 2021)). The

Commissioner then notes that the ALJ discussed Tromler’s statements regarding her symptoms,

alleged limitations, activities of daily living, and treatment. (Tr. 30). The ALJ further discussed

how Tromler’s testimony both corresponded with and contradicted the medical evidence. (Tr.

30-36, 186-88, 193, 250, 254, 440, 447-49, 473, 477, 480, 484, 490-507, 520, 514-15, 518-19

525). As Tromler’s burden is to show that the ALJ’s decision is not supported by substantial

evidence, rather than that the evidence could feasibly support an alternate conclusion, the

Commissioner contends that this argument fails. (ECF Doc. 9, pp. 23-24).

When assessing a claimant's subjective statements, “‘the ALJ must [first] determine

whether a claimant has a medically determinable physical or mental impairment that can

reasonably be expected to produce the symptoms alleged.’” Grames v. Comm’r of Soc. Sec., 815

Fed. App’x 820, 825 (6th Cir. 2019) quoting Calvin v. Comm’r of Soc. Sec., 437 F. App’x 370,

371 (6th Cir. 2011); SSR 16-3p, 2017 WL 5180304, *3 (Oct. 25, 2017). Next, the ALJ must

consider the objective medical evidence and the claimant’s reported daily activities, as well as

several other factors, to evaluate the intensity, persistence, and functional limitations of the

claimant's symptoms. See Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 474 (6th Cir. 2014);

20 C.F.R. § 404.1529(c)(1)-(3); SSR 16-3p, 2017 WL 5180304, at *4, *7-8 (Oct. 25, 2017). The

ALJ must determine whether there is objective medical evidence from an acceptable medical

source showing that the claimant has a medical impairment that could reasonably be expected to

produce the alleged pain. If there is, the ALJ considers all the evidence to determine the extent to

which the pain affects the claimant’s ability to work. Heart v. Comm’r of Soc. Sec., 2022 WL

19334605, at *3 (6th Cir., Dec. 8, 2022), citing 20 C.F.R. ⸹416.929 (a)-(c). The review in this

case must be deferential. A reviewing court “must affirm the ALJ’s decision as long as it is

supported by substantial evidence and is in accordance with applicable law.” Showalter v.

Kijakazi, 2023 WL 2523304, at *2 (6th Cir., Mar. 15, 2023). Tromler’s argument does not

overcome this deferential standard of review.

The ALJ here determined that Tromler’s medically determinable impairments of lumbar

degenerative disc disease and major depressive disorder could reasonably be expected to cause

her alleged symptoms. (Tr. 34). However, the ALJ determined that the claimant’s statements

concerning the intensity, persistence and limiting effects of these symptoms were not entirely

consistent with the medical evidence and other evidence in the record. (Id.). With regard to her

lumbar degenerative disc disease, the ALJ noted that throughout the records, examinations

showed Tromler displayed no acute distress, had 5/5 strength and full range of motion, intact

neurological functioning, normal coordination, normal gait, and no evidence of a prescribed or

medically necessary assistive device. (Tr. 31). The examination findings did not support loss of

strength, range of motion, sensation, reflexes or coordination that would support a disabling

degree of limitation. (Id.). The ALJ acknowledged x-rays of the lumbar spine from January 11,

2023, showing mild to moderate degenerative changes (Tr. 32). She considered the generally

benign findings of the consultative examiner, finding his somewhat vague assessment to be

“generally persuasive” and supported by and consistent with the evidence,” (Tr. 32-33, 35), as

well as Tromler’s chiropractic care. (Id.). The ALJ also referenced an appointment in July 2023

with Dr. Fink, with examination notes confirming normal gait and coordination. (Tr. 34).

As to Tromler’s mental health, the ALJ discussed her ongoing care with Pessefall that

both predated and followed from her hospitalization for suicidal thoughts on August 1, 2022. (Tr.

31-34). The ALJ noted that in her subsequent visits with Pessefall he described her as “having no

gross abnormalities . . . friendly and communicative. Her mood was euthymic.” (Tr. 32). She

reported that she was “doing ok,” and that she felt her medication was helpful. She reported

feeling down at times, but it did not last all day. (Id.). She was engaging in social activities

including having friends to her house to watch a football game, and hosting Thanksgiving. (Id.).

Tromler did at times express that she may not be capable of working due to her depression, that

her medications required adjustment, and that she was experiencing “passive suicidal thoughts,”

(Tr. 32-33), but consistently throughout her course of treatment Pessefall continued to note “no

gross abnormalities. (Id.).

As noted above, the ALJ evaluated the opinions of the experts, including the State agency

mental health experts, and adopted an RFC that was somewhat more restrictive than that

suggested by those consultants. She also gave careful consideration to the opinions of

consultative examiners and treating sources, offering reasoned analysis for her evaluations.

It is clear that the ALJ meaningfully considered Tromler’s subjective complaints when

formulating her RFC. She cited evidence both in favor of, and in opposition to, further limitation

based on those subjective complaints, citing in particular the objective evidence with regard to

her lumbar degenerative disc disease, and to the exhaustive notes of her treating sources with

regard to her mental health. The ALJ considered the effectiveness of Tromler’s medication and

treatment. The thorough analysis provided by the ALJ created a logical and accurate bridge from

the evidence to the RFC, allowing the plaintiff and reviewing court to understand her reasoning.

Accordingly, I decline to recommend remand on this basis.

VI. Recommendation

Because the ALJ applied proper legal standards and reached a decision supported by

substantial evidence, I recommend that the Commissioner’s final decision denying Tromler’s

application for DIB be affirmed.

Dated: November 18, 2024 Ey SU

Reuben’. Sheperd

United States Magistrate Judge

OBJECTIONS

Objections, Review, and Appeal

Within 14 days after being served with a copy of this report and recommendation, a party

may serve and file specific written objections to the proposed findings and recommendations of

the magistrate judge. Rule 72(b)(2), Federal Rules of Civil Procedure; see also 28 U.S.C

636(b)(1); Local Rule 72.3(b). Properly asserted objections shall be reviewed de novo by the

assigned district judge.

3s 2 3

Failure to file objection within the specified time may result in the forfeiture or waiver of

the right to raise the issue on appeal either to the district judge or in subsequent appeal to the

United States Court of Appeals, depending on how or whether the party responds to the report

and recommendations. Berkshire v. Dahl, 928 F.3d 520, 530 (6th Cir. 2019). Objections must be

21

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). 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, 2 (W.D. Ky. June 15, 2018) quoting Howard. The failure to assert specific objections

may in rare cases be excused in the interests of justice. See United States v. Wandashega, 924

F.3d 868, 878-79 (6th Cir. 2019).