Conrad v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

MARY C.1, Case No. 2:24-cv-1819

Plaintiff, Litkovitz, M.J.

vs.

COMMISSIONER OF ORDER

SOCIAL SECURITY,

Defendant.

Plaintiff Mary C. brings this action under 42 U.S.C. § 405(g) for judicial review of the

final decision of the Commissioner of Social Security (Commissioner) denying her application

for disability insurance benefits (DIB). This matter is before the Court on plaintiff’s Statement

of Errors (Doc. 8), the Commissioner’s response in opposition (Doc. 10), and plaintiff’s reply

memorandum (Doc. 11).

I. Procedural Background

Plaintiff protectively filed an application for DIB on February 16, 2022, alleging an onset

of disability of November 30, 2020, due to fibromyalgia. (Tr. 150-56, see also Tr. 171). The

application was denied initially and upon reconsideration. Plaintiff, through counsel, requested

and was granted a de novo telephone hearing before administrative law judge (ALJ) Jeffrey

Hartranft. Plaintiff and a vocational expert (VE) appeared and testified at the hearing on March

24, 2023. (Tr. 29-50). On June 5, 2023, the ALJ issued a decision, concluding that plaintiff was

not disabled. (Tr. 14-28). This decision became the final decision of the Commissioner when

the Appeals Council denied review on February 26, 2024. (Tr. 1-6).

II. Analysis

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security cases, any opinion, order,

judgment or other disposition in social security cases in the Southern District of Ohio shall refer to plaintiffs only by

their first names and last initials.

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable

physical or mental impairment that can be expected to result in death or that has lasted or can be

expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).

The impairment must render the claimant unable to engage in the work previously performed or

in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §§

423(d)(2), 1382c(a)(3)(B).

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

process for disability determinations:

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

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

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

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

disabled.

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

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

requirement, the claimant is disabled.

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

past relevant work, the claimant is not disabled.

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

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

is disabled.

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

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

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

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

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

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

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

Cir. 1999).

B. The Administrative Law Judge’s Findings

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

fact and conclusions of law:

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

through December 31, 2025.

2. [Plaintiff] has not engaged in substantial gainful activity since November 30,

2020, the alleged onset date (20 C.F.R. § 404.1571 et seq.).

3. [Plaintiff] has the following severe impairment: fibromyalgia (20 C.F.R. §

404.1520(c)).

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

or medically equals the severity of one of the listed impairments in 20 C.F.R. Part

404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526).

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

has the residual functional capacity to perform sedentary work as defined in 20

C.F.R. § 404.1567(a) except: [plaintiff] can occasionally climb ramps and stairs,

but cannot climb ladders, ropes, or scaffolds; can occasionally stoop, kneel, crouch,

and crawl; can frequently reach and handle; and must avoid workplace hazards such

as unprotected heights and machinery. [Plaintiff] would need to be allowed to

stand/walk for 2-3 minutes after sitting for a half hour. This could be combined

with other workplace tasks and the usual breaks, but as a result [plaintiff] would be

off tasks 10% of the workday in addition to the usual breaks.

6. [Plaintiff] is capable of performing past relevant work as an insurance customer

service representative/file clerk. This work does not require the performance of

work-related activities precluded by [plaintiff]’s residual functional capacity (20

C.F.R. § 404.1565).

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

from November 30, 2020, through the date of this decision (20 C.F.R. §

404.1520(g)).

(Tr. 19-25).

C. Judicial Standard of Review

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

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

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

Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,

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

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

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

587 U.S. 97 (2019) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

Substantial evidence consists of “more than a scintilla of evidence but less than a preponderance.

. . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the

Commissioner’s findings are supported by substantial evidence, the Court considers the record as

a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

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

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

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

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

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

See also Wilson, 378 F.3d at 545–46 (reversal required even though ALJ’s decision was

otherwise supported by substantial evidence where ALJ failed to give good reasons for not

giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Error

Plaintiff raises a single assignment of error: that the ALJ failed to account for the total

limiting effects of plaintiff’s fibromyalgia in the RFC finding. (Doc. 8 at PageID 371). Plaintiff

asserts that the ALJ erred in assessing the severity of, and the limitations presented by, her

fibromyalgia, an impairment he found to be severe. Specifically, plaintiff argues the ALJ failed

to properly evaluate plaintiff’s statements as to the severity of her fibromyalgia and her ability to

do a range of activities and failed to take her work history into account. (Id. at PageID 384).

Plaintiff also argues the ALJ erred in his RFC determination by not properly evaluating the

medical opinions and prior administrative medical findings. (Id. at PageID 373-76).

The Commissioner counters that the ALJ’s decision is supported by substantial evidence

because the ALJ properly evaluated plaintiff’s fibromyalgia. (Doc. 10). The Commissioner

contends that in finding plaintiff capable of sedentary work with postural and environmental

limitations, the ALJ properly considered the record as a whole, including plaintiff’s subjective

complaints. (Id. at PageID 391-99).

E. Analysis

1. RFC Determination

A claimant’s RFC is an assessment of “the most [a claimant] can still do despite [his]

limitations.” 20 C.F.R. § 404.1545(a)(1). A claimant’s RFC assessment must be based on all the

relevant evidence in her case file. (Id.). The governing regulations describe five different

categories of evidence: (1) objective medical evidence, (2) medical opinions, (3) other medical

evidence, (4) evidence from nonmedical sources, and (5) prior administrative medical findings.

20 C.F.R. § 404.1513(a)(1)-(5). With regard to two of these categories—medical opinions and

prior administrative findings—an ALJ is not required to “defer or give any specific evidentiary

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

finding(s), including those from [the claimant’s] medical sources.” 20 C.F.R. § 404.1520c(a).

The ALJ is charged with the final responsibility in determining a claimant’s RFC. See 20

C.F.R. § 404.1546(c). The ALJ is responsible for assessing a claimant’s RFC based on all of the

relevant medical and other evidence. 20 C.F.R. § 404.1545(a)(3). The ALJ’s decision “cannot

be overturned if substantial evidence, or even a preponderance of the evidence, supports the

claimant’s position, so long as substantial evidence also supports the conclusion reached by the

ALJ.” O’Brien v. Comm’r of Soc. Sec., 819 F. App’x 409, 416 (6th Cir. 2020) (quoting Jones v.

Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003)). The plaintiff “bears the burden of

demonstrating a RFC more restrictive than that determined by the ALJ.” Id. (citing Jordan v.

Comm’r of Soc. Sec., 548 F.3d 417, 423 (6th Cir. 2008)).

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

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

the extent to which the symptoms can reasonably be accepted as consistent with the objective

medical and other evidence in the individual’s record.” SSR 16-3p, 2016 WL 1119029, at *2.

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

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

2. Fibromyalgia

The Sixth Circuit requires an ALJ to “give due consideration to [a plaintiff’s] diagnosis

of severe fibromyalgia” and has “repeatedly recognized that fibromyalgia can be a severe and

disabling impairment.” Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 434 (6th Cir. 2013)

(citing Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007) (in turn citing Preston

v. Sec’y of H.H.S., 854 F.2d 815, 820 (6th Cir. 1988) (per curiam)); see also Kalmbach v.

Comm’r of Soc. Sec., 409 F. App’x 852, 859-60 (6th Cir. 2011); Germany-Johnson v. Comm’r of

Soc. Sec., 313 F. App’x 771, 778 (6th Cir. 2008) (per curiam)). Fibromyalgia “causes severe

musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances.”

Preston, 854 F.2d at 817.

SSR 12-2p provides guidance on how the agency both develops evidence to establish that

a person has a medically determinable impairment of fibromyalgia and evaluates fibromyalgia in

disability claims. SSR 12-2p, 2012 WL 3104869, at *2 (July 25, 2012). SSR 12-2p describes

fibromyalgia as “a complex medical condition characterized primarily by widespread pain in the

joints, muscles, tendons, or nearby soft tissues that has persisted for at least 3 months.” Id. SSR

12-2p explains that fibromyalgia is a “common syndrome” and that a person’s symptoms must

be considered when the agency decides if the individual has a medically determinable

impairment of fibromyalgia. Id. “SSR 12-2p continues to require ‘sufficient objective evidence

to support a finding that the person’s impairment(s) so limits the person’s functional abilities that

it precludes him or her from performing any substantial gainful activity.’” Clemow v. Comm’r of

Soc. Sec., No. 1:20-cv-592, 2021 WL 6125021, at *4 (S.D. Ohio Dec. 28, 2021) (emphasis in

original) (quoting SSR 12-2p, 2012 WL 3104869, at *2).

There is no question that a diagnosis of fibromyalgia, which the ALJ fully accepts here,

says little about the degree of a plaintiff’s functional impairment. Stephanie K. v. Comm’r of

Soc. Sec., No. 1:22-cv-344, 2023 WL 2895603, at *5 (S.D. Ohio Apr. 11, 2023). “In cases

where a [p]laintiff has fibromyalgia, the ‘cause of the disability is not necessarily the underlying

condition itself, but rather the symptoms associated with the condition.’” Huffman v. Saul, No.

5:19-cv-449, 2020 WL 6937441, at *3 (E.D. Ky. Nov. 24, 2020) (quoting Rogers, 486 F.3d at

247); see also Kalmbach, 409 F. App’x at 862 (“[C]laims related to fibromyalgia are related to

the symptoms associated with the condition—including complaints of pain, stiffness, fatigue, and

inability to concentrate—rather than the underlying condition itself.”) (emphasis in original).

“‘Where the symptoms and not the underlying condition form the basis of the disability claim, a

two-part analysis in evaluating complaints of disabling pain is employed.’” Id. (quoting

Kalmbach, 409 F. App’x at 862 (citing 20 C.F.R. § 416.929(a)).

3. Symptom Severity Analysis

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

contains objective medical evidence of an underlying medically determinable impairment that

could reasonably be expected to produce the individual’s symptoms. SSR 16-3p, 2016 WL

1119029, at *3; see also 20 C.F.R. § 404.1529(a); Jones, 336 F.3d at 475-76. Step two of

symptom evaluation shifts to the severity of a claimant’s symptoms. The ALJ must consider the

intensity and persistence of the symptoms to determine the extent to which the symptoms limit

an individual’s ability to perform work-related activities. See 20 C.F.R. § 404.1529(a) and (c);

SSR 16-3p, 2016 WL 1119029, at *4. In making this determination, the ALJ will consider the

following:

(i) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or other

symptoms;

(iii) Precipitating and aggravating factors;

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

or have taken to alleviate your pain or other symptoms;

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

your pain or other symptoms;

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

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

sleeping on a board, etc.); and

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

pain or other symptoms.

20 C.F.R. § 404.1529(c)(3).

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

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

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

objective medical evidence, then we carefully consider other evidence in the record in reaching a

conclusion about the intensity, persistence, and limiting effects of an individual’s symptoms.”);

20 C.F.R. § 404.1529(c)(2) (“[W]e will not reject your statements about the intensity and

persistence of your pain or other symptoms or about the effect your symptoms have on your

ability to work solely because the available objective medical evidence does not substantiate

your statements.”). Moreover,

[i]t is . . . not enough for our adjudicators simply to recite the factors described in

the regulations for evaluating symptoms. The determination or decision must

contain specific reasons for the weight given to the individual’s symptoms, be

consistent with and supported by the evidence, and be clearly articulated so the

individual and any subsequent reviewer can assess how the adjudicator evaluated

the individual’s symptoms.

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

factors pertinent to the evidence of record”).

4. Plaintiff’s Hearing Testimony

Plaintiff testified at the administrative hearing that she doesn’t “drive very much

anymore” because “it hurts [her] legs to hold the pedal down.” (Tr. 35). Plaintiff testified that

she suffers from “a lot of pain and soreness in [her] muscles.” (Tr. 38). She noted that “it hurts

all the time” but less when she lies down, as compared to when she is moving around. (Id.). Her

pain is primarily located in her arms, legs, back of her shoulders, and neck. (Id.). Her treatment

for pain includes taking the medication Amitriptyline to sleep and Tramadol, which “takes the

majority of the pain away, but not all of it.” (Id.). She further stated that she is “afraid to take

anything stronger.” (Id.). She was seeing someone to help with muscle pain but could not afford

to keep receiving these treatments. (Id.). Plaintiff also testified to having memory problems.

(Id.). She forgets what she is doing 4-5 times per day. (Tr. 39). Plaintiff did not believe she

could perform her same job duties as before because with her legs hanging down she would end

up getting a charley horse, “so I have to constantly keep moving my legs, or stand up and sit

down.” (Tr. 40). Plaintiff estimated that she could sit for about 30 minutes without having to

stand; she would then stand for 5-10 minutes and then sit again. (Id.).

When examined by her counsel, plaintiff testified that she has issues with her hands and

arms. (Tr. 41). She had carpal tunnel surgery five to six years prior to the hearing. (Id.). She

does not believe she could “get through a full workday using [her] hands and arms.” (Tr. 42).

Before she stopped working, she cut back to 3 days per week because she needed to rest between

days. (Id.). Plaintiff rated her pain severity at a level of 5-6 when lying down and 8-9 when up

and doing something on a 0-10 visual analog scale. (Id.). Plaintiff also testified to being tired all

the time and spends 5 to 6 hours each day lying down. (Tr. 43).

5. The ALJ’s RFC and Symptom Severity Evaluation is Supported by Substantial

Evidence

Plaintiff argues that the ALJ did not properly determine her RFC because he failed to

account for the “total limiting effects” of her fibromyalgia by “overlook[ing] and/or improperly

reject[ing] evidence supportive of a favorable outcome” and “[h]is highly selective analysis led

to a denial of benefits that is not supported by substantial evidence. . . .” (Doc. 8 at PageID 379).

Plaintiff’s assignment of error is two-fold. First, plaintiff alleges the ALJ erred in his evaluation

of plaintiff’s physical symptoms by discounting plaintiff’s subjective symptoms from her

fibromyalgia. (Id. at PageID 380-385). Plaintiff also argues that the ALJ improperly weighed

the opinions of the state agency consultants and plaintiff’s treating physician in determining that

plaintiff has the physical RFC to perform sedentary work as defined in 20 C.F.R. § 404.1567(b),

with additional limitations. (Id.). Second, plaintiff alleges the ALJ failed to consider her strong

work history in accordance with § 404.1529(c)(3) and SSR 16-3p. (Id. at PageID 384).

The ALJ determined that plaintiff’s “medically determinable impairments could

reasonably be expected to cause some of the alleged symptoms.” (Tr. 22). However, the ALJ

found that plaintiff’s “statements concerning the intensity, persistence and limiting effects of

these symptoms are not entirely consistent with the medical evidence and other evidence in the

record for the reasons explained in this decision.” (Id.). The ALJ reasoned:

Regarding the claimant’s physical impairments, the record reflects a history of

fibromyalgia with generally conservative treatment consisting of [medication]

management for symptoms throughout the period at issue. Despite the claimant’s

subjective reports of pain and functional limitation, the record showed the claimant

had no significant physical examination findings during the period at issue, with

only some tenderness reflected. . . . Additionally, while the claimant reported

difficulty with manipulative activities due to her history of carpal tunnel surgery,

the physical examinations of record regularly reflected normal strength in all

extremities including with respect to grip strength. Therefore, the undersigned

having considered the claimant’s subjective reports evaluated against the treatment

evidence of record, finds the claimant able to perform sedentary work with the

claimant able to occasionally climb ramps and stairs, but cannot climb ladders,

ropes, or scaffolds; can occasionally stoop, kneel, crouch, and crawl; can frequently

reach and handle; and must avoid workplace hazards such as unprotected heights

and machinery. The claimant would need to be allowed to stand/walk for 2-3

minutes after sitting for a half hour. This could be combined with other workplace

tasks and the usual breaks, but as a result the claimant would be off tasks 10% of

the workplace in addition to the usual breaks.

(Tr. 22).

The ALJ reasonably determined that plaintiff’s statements about the intensity,

persistence, and limiting effects of her fibromyalgia symptoms are not entirely consistent with

the evidence of record. (Tr. 22). Consistent with SSR 16-13, the ALJ considered plaintiff’s

limited treatment for fibromyalgia in the symptom consistency analysis. Although plaintiff

alleged an onset date of disability in November 2020, the ALJ reasonably noted that plaintiff

received no significant treatment from the alleged onset date through March 2022. (Tr. 21).

Plaintiff points to no evidence calling this finding into question. Plaintiff saw Dr. Guisinger in

January 2022 for phlegm, nausea, and a cough. (Tr. 255). When seen on March 4, 2022 by Dr.

Guisinger, plaintiff presented with disability paperwork for a diagnosis of fibromyalgia, and she

complained of having a hard time walking a lot and needing rest when active. She had not taken

Tramadol since 2019 and was requesting a prescription. He provided a referral to a

rheumatologist and prescribed Amitriptyline and Metoprolol. (Tr. 21, citing Tr. 250). Plaintiff

was then seen for a rheumatology consultation in June 2022. She reported a medication regimen

of Tramadol, Amitriptyline, Losartan, and Metoprolol and was prescribed a trial of Paxlovid for

generalized osteoarthritis. (Tr. 22, citing Tr. 316, 333). While plaintiff also alleged memory

problems, she admitted she had not received any treatment for this symptom. (Tr. 21, citing Tr.

39). Additionally, plaintiff underwent a carpal tunnel release procedure prior to the alleged onset

date. However, she returned to work following the procedure and sought no further treatment for

this impairment during the relevant time period. (Tr. 41). The ALJ reasonably considered

plaintiff’s conservative treatment history in discounting the consistency of her alleged symptoms

with the record evidence. Courts routinely uphold an ALJ’s consideration of the conservative

nature of a claimant’s treatment as one factor in evaluating the consistency of a claimant’s

subjective symptoms with a claim of disability. See Kepke v. Comm’r of Soc. Sec., 636 F. App’x

625, 638-39 (6th Cir. 2016) (claimant’s routine and/or conservative treatment for allegedly

disabling impairments supported ALJ’s assessment) (citing Lester v. Soc. Sec. Admin., 596 F.

App’x 387, 389 (6th Cir. 2015)). While the extent of treatment pursued does not necessarily

translate into the extent to which a claimant is functionally limited, the ALJ’s consideration of

plaintiff’s level and type of treatment was appropriate and substantially supports his finding.

The ALJ also considered the lack of significant physical examination findings to support

the extent of plaintiff’s alleged limitations. (Tr. 22). Dr. Guisinger reported no physical exam

findings in any of his treatment notes that would support the limitations alleged by plaintiff. The

ALJ also noted that at plaintiff’s rheumatology visit, there were “no physical examination

findings, tender point assessments, nor rheumatologic lab work ups at this visit to assess or

confirm alleged symptomology.” (Tr. 22, citing Tr. 316-335). The ALJ further noted that in

July 2022, plaintiff’s rheumatoid factor was negative. (Tr. 21, citing Tr. 339). At plaintiff’s

consultative examination with Dr. Cavender in June 2022, plaintiff appeared in no acute distress

with normal gait, full ranges of motion, full strength, full grip strength, intact sensation, normal

coordination, and normal reflexes. (Tr. 304-05, 307-10). Plaintiff could get on and off the

examination table without difficulty or assistance and walk on heels and toes. (Tr. 305, 306-07).

She exhibited tenderness to palpation in the bilateral upper and lower arms and lower legs, and in

the bilateral cervical paraspinal, trapezius, posterior shoulder, and rhomboid musculature. (Tr.

306). She also displayed full grip strength, normal dexterity, and full ability to make a fist and

oppose her fingers (Tr. 306) and could grasp small objects and manipulate them without pain

exacerbation (Tr. 311). The ALJ noted that plaintiff’s reported difficulty with manipulative

abilities due to her history of carpal tunnel surgery conflicted with the examination findings

reported by Dr. Cavender. The ALJ acknowledged that plaintiff had some tenderness on

consultative examination, but he reasonably determined that plaintiff’s limited treatment and

examination findings did not support plaintiff’s statements about her the severity of her

symptoms.

The ALJ also considered the persuasiveness of the medical opinions in assessing

plaintiff’s symptom severity and RFC. Plaintiff contends the ALJ failed to consider the

consistency of plaintiff’s subjective symptoms with the state agency medical consultant reports,

alleging that their “assessment of chronic fatigue syndrome as a medically determinable

impairment plainly confirms her testimony in this regard.” (Doc. 8 at PageID 382, citing Tr. 54).

Plaintiff alleges the state agency physicians’ assessment of chronic fatigue syndrome is

consistent with the symptoms described in SSR 12-2p, to wit: fatigue, cognitive or memory

problems, waking unrefreshed, depression, anxiety disorder, and irritable bowel syndrome. “But

‘disability is determined by the functional limitations imposed by a condition, not the mere

diagnosis of it.’” Dyson v. Comm’r of Soc. Sec., 786 F. App’x 586, 589 (6th Cir. 2019)

(emphasis added) (quoting Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014)

(citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). Thus, the fact that plaintiff was

diagnosed with chronic fatigue syndrome or fibromyalgia says nothing about the extent of her

functional limitations from that condition. Plaintiff’s argument is not well-taken.

Plaintiff also argues the “consultative examination [by Dr. Cavender] ordered by SSA

confirmed that she has arm and leg pain resulting in frequent awakenings and subsequent

insomnia with daytime fatigue; pain while sitting and standing; 9/10 ambulatory pain after 30

minutes with unusual fatigue; and morning stiffness.” (Doc. 8 at PageID 382, citing Tr. 304).

However, the findings that plaintiff alleges the consultative examiner “confirmed” are actually

plaintiff’s reported symptoms to Dr. Cavender and not any findings made by Dr. Cavender.

While these reported symptoms may be consistent with her fibromyalgia diagnosis, they do not

in themselves support the alleged limitations from that condition.

Plaintiff additionally argues the ALJ erroneously rejected the opinion of Dr. Guisinger,

her treating physician, as unsupported because Dr. Guisinger set forth eight specific clinical

findings in his report to support his opinion, and plaintiff’s testimony supports the findings set

forth in Dr. Guisinger’s questionnaire. (Doc. 8 at PageID 382; Doc. 11 at PageID 402).

The ALJ must determine the persuasiveness of a medical opinion by considering five

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

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

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

a medical opinion. 20 C.F.R. § 404.1520c(c)(1)-(5). The most important factors the ALJ must

consider are supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). With respect to the

supportability factor, “[t]he more relevant the objective medical evidence2 and supporting

explanations presented by a medical source are to support his or her medical opinion(s) . . . the

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

“[t]he more consistent a medical opinion(s) . . . is with the evidence from other medical sources

and nonmedical sources in the claim, the more persuasive the medical opinion(s). . . .” 20 C.F.R.

§ 404.1520c(c)(2). While the ALJ is required to “explain how [he] considered the supportability

and consistency factors for a medical source’s medical opinions” in the written decision, 20

C.F.R. § 404.1520c(b)(2), the ALJ “may, but [is] not required to, explain” how he considered the

relationship, specialization, and other factors set forth in paragraphs (c)(3) through (c)(5) of the

regulation. Id.

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

168819, at *5850.

Dr. Guisinger completed two medical source statements in March 2022, in which he

reported that plaintiff suffers from a history of widespread pain for three or more months, pain in

11 or more pressure points, stiffness, irritable bowel syndrome, tension headaches, sleep

disturbance, chronic fatigue, and memory loss. Dr. Guisinger also opined that plaintiff must

occasionally elevate her legs. (Tr. 266, 343). As to her functional limitations, Dr. Guisinger

opined that plaintiff could lift 25 pounds frequently; sit for 30 minutes at a time; stand and walk

for less than 2 hours; must periodically alternate sitting and standing at interval not to exceed 30

minutes; could occasionally balance, stoop, and crawl; and never climb, kneel, and crouch. Dr.

Guisinger found no reaching or handling limitations and believed plaintiff should avoid exposure

to temperature extremes. (Tr. 267-68).

The ALJ found Dr. Guisinger’s opinions not persuasive, stating:

In a questionnaire prepared by the claimant’s representative dated March 4, 2022,

Kent Guisinger, D.O., indicted [sic] the claimant could frequently lift up to 25

pounds; stand and walk less than 2 hours; must periodically alternate sitting and

standing at interval not to exceed 30 minutes; could occasionally balance, stoop,

and crawl; could never climb, knee, or crouch; had no reaching or handling

limitations; and should avoid exposure to temperature extremes (Exhibit 1F, pages

23-24). In an additional form on the same date, Dr. Guisinger noted the claimant

would occasionally need to elevate her legs during an 8-hour workday and noted

no work capacity (Exhibit 1F, page 22). This material appears in duplicate at

Exhibit 7F, with an additional page reflected severe pain associated with

fibromyalgia, marked restriction of activities of daily living, marked difficulty in

maintaining social functioning, and deficiencies of concentration, persistent or pace

resulting from frequent failure to complete tasks in a timely manner due to pain

(Exhibit 7F, page 4). The undersigned has found these assessment[s] unpersuasive.

Dr. Guisinger identifies no support for the extent of functional limitations assessed,

nor even support for the alleged underlying diagnoses of fibromyalgia.

Furthermore, to the extent Dr. Guisinger offers an opinion on the ultimate question

of the claimant’s ability to work, the opinion as to whether the claimant can work

is on an issue reserved to the Commissioner and therefore is neither inherently

valuable or persuasive (20 C.F.R. §§ 404.1520b(c) and 416.920b(c)).

(Tr. 23).

The ALJ’s supportability finding is substantially supported by the evidence. As the ALJ

reasonably determined, Dr. Guisinger did not support his opinion with objective medical

evidence or supporting explanations for his opinion as required by 20 C.F.R. §404.1520c(c)(1).

As explained above, plaintiff had two visits with Dr. Guisinger in January and March 2022

before he issued his opinion, but Dr. Guisinger did not set forth any clinical or objective

examination findings in those progress notes. (Tr. 250-51, 255-57). The first time Dr. Guisinger

reported plaintiff’s symptoms was on a checkmark form provided to him by plaintiff during the

March 4, 2022 visits. The form listed various fibromyalgia symptoms, and Dr. Guisinger

checked the following symptoms: history of widespread pain for three or more months, pain in

eleven or more pressure points, stiffness, irritable bowel syndrome, tension headaches, sleep

disturbance, chronic fatigue, memory loss, and inability to ambulate effectively. (Tr. 266, 343).

But none of these symptoms are reflected in Dr. Guisinger’s contemporaneous progress notes. A

lack of contemporaneous medical records from an opinion provider is an appropriate

supportability consideration. See Cremens v. Comm’r of Soc. Sec., No. 1:18-cv-995, 2019 WL

3553916, at *11 (N.D. Ohio Aug. 5, 2019) (quoting Bruza v. Comm’r of Soc. Sec., No. 1:07-cv-

1027, 2008 WL 3979261, at *6 (W.D. Mich. Aug. 4, 2008) (“The absence of progress notes and

other contemporaneous medical records regarding the treatment provided by [a physician] for the

period at issue entitles his unadorned opinion to virtually no weight.”)).3

3 While the Cremens and Bruza courts addressed supportability under the treating physician rule, supportability is

similarly defined in the new regulations. Compare 20 U.S.C. § 404.1527(c)(3) (“The more a medical source

presents relevant evidence to support a medical opinion, particularly medical signs and laboratory findings, the more

weight we will give that medical opinion. The better an explanation a source provides for a medical opinion, the

more weight we will give that medical opinion.”) with id. at § 404.1520c(c)(1) (“The more relevant the objective

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

opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior

administrative medical finding(s) will be.”). The Court finds that these authorities remain persuasive.

Nor did Dr. Guisinger explain the basis for his findings as the questionnaire invited. As

noted by the ALJ, Dr. Guisinger’s opinion lacks any explanation for his assessment of

limitations. (Tr. 23, citing Tr. 266-268, 341-42). The form completed by Dr. Guisinger had

space allocated specifically for noting “supportive medical findings,” but he chose not to include

additional supporting information. (Tr. 266-268, 341-42). See Ellars v. Comm’r of Soc. Sec.,

647 F. App’x 563, 567 (6th Cir. 2016) (ALJ’s decision to not give significant weight to “check-

box” medical opinion upheld where physician “provided no explanation for the restrictions

entered on the form and cited no supporting objective medical evidence.”); Kepke v. Comm’r of

Soc. Sec., 636 F. App’x 625, 630 (6th Cir. 2016) (ALJ properly discounted checklist opinion that

did not provide an explanation for physician’s findings). The ALJ reasonably determined that

the lack of supporting explanations by Dr. Guisinger rendered his opinion unpersuasive.

Plaintiff also argues that her testimony supports Dr. Guisinger’s opinion. Plaintiff’s

argument appears to conflate the criteria for supportability and consistency under 20 C.F.R. §

404.1520c(c)(1), (2). The ALJ found Dr. Guisinger’s opinion unpersuasive on the basis that it

was unsupported by his own treatment records or supporting explanations, rather than due to the

opinion’s inconsistency with the record. (Tr. 23, finding that “Dr. Guisinger identifies no

support for the extent of the functional limitations assessed, nor even support for he alleged

underlying diagnoses of fibromyalgia”). Plaintiff does not point to any other medical evidence

from Dr. Guisinger’s treatment notes supporting the extensive functional limitations assessed in

his opinion.

Plaintiff’s argument that the ALJ failed to consider her work history is also not well-

taken. (Doc. 8 at PageID 384). The ALJ is not required to cite or discuss every factor used to

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

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

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

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

lacks merit. . . .”). Nevertheless, when reviewing the decision as a whole, the Court concludes

the ALJ clearly considered plaintiff’s extensive work history and earnings. The ALJ discussed

plaintiff’s prior work and noted, “[Plaintiff]’s testimony established that she performed this work

for over 19 years,” and her “earnings record[] reveals earnings in excess of substantial gainful

activity thresholds from 2005 through 2020.” (Tr. 24). While the ALJ’s discussion of plaintiff’s

work history was in connection with Step 4 of the sequential evaluation process, the ALJ’s

discussion indicates he was well-aware of plaintiff’s work record.4

The ALJ’s conclusion that the location, duration, frequency, and intensity of plaintiff’s

alleged symptoms, as well as precipitating and aggravating factors, are adequately addressed and

accommodated by an RFC for a limited range of sedentary work. (Tr. 24). In evaluating the

intensity, persistence, or limiting effects of plaintiff’s symptoms, the ALJ noted the history of

conservative treatment and lack of supporting clinical and objective medical findings in the

record. The ALJ here conducted a thorough evaluation of plaintiff’s complaints of fatigue and

other disabling symptoms in light of the record as a whole. Substantial evidence supports the

ALJ’s evaluation of plaintiff’s subjective allegations and his conclusion that such allegations

4 This Court has found that a “good work history may be deemed probative of credibility[.]” Kimberly C. v. Comm’r

of Soc. Sec., No. 1:22-cv-637, 2023 WL 6807955, at *6 (S.D. Ohio Oct. 16, 2023) (quoting White v. Comm’r of Soc.

Sec., 312 F. App’x 779, 789 (6th Cir. 2009) (in turn quoting Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998)). “In

particular, an extensive work history, in conjunction with ‘attempts to continue working despite [ ] disability support

[a plaintiff’s] credibility.’” Id. Unlike White, where the plaintiff attempted to work over the course of two years

despite his nerve pain, 312 F. App’x at 780-81, plaintiff here has cited no evidence of any similar attempts. The

ALJ properly assessed the consistency of plaintiff’s alleged symptoms and limitations against the record as a whole

and reasonably determined that plaintiff’s alleged symptoms were not fully supported.

were not entirely consistent with the medical evidence of record. See 20 C.F.R. § 404.1529(a).

Further, the ALJ’s evaluation of the medical opinion evidence is also supported by substantial

evidence. The ALJ was not unreasonably selective in his consideration of the medical evidence

and plaintiffs testimony. Therefore, the Court finds that the ALJ’s RFC determination is

supported by substantial evidence. Plaintiff’s assignment of error relating to the RFC

determination, symptom severity analysis, and supportability and consistency assessment of Dr.

Guisinger’s opinion is overruled.

HI. Conclusion

Based on the foregoing, plaintiff's Statement of Errors (Doc. 8) is OVERRULED, and

the Commissioner’s non-disability finding is AFFIRMED.

IT IS THEREFORE ORDERED that judgment be entered in favor of the

Commissioner, and this case is closed on the docket of the Court.

Date: 9/4/2025 Haun. K Xethov-

Karen L. Litkovitz

United States Magistrate Judge

20