IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Deborah A. Ritterbeck, :

Plaintiff, :

v. : Case No. 2:11-cv-869

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Deborah A. Ritterbeck, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability insurance benefits and

supplemental security income. Those applications were filed on

November 6, 2008, and alleged that plaintiff became disabled on

August 13, 2008. 

After initial administrative denials of her application,

plaintiff was given a videoconference hearing before an

Administrative Law Judge on October 19, 2010. In a decision

dated December 2, 2010, the ALJ denied benefits. That became the

Commissioner’s final decision on August 4, 2011, when the Appeals

Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on December 15, 2011. Plaintiff filed a

statement of specific errors on February 20, 2012. The

Commissioner filed a response on April 24, 2012. No reply brief

was filed, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 37 through 54 of the record. Plaintiff, who was 51

years old at the time of the hearing and attended school through

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the first year of college, testified as follows.

Plaintiff last worked in 2008 at a job which she began in

2004. She was responsible for connecting elderly and disabled

people to available social services. The work mostly involved

using a computer, but occasionally she would pick up baked goods

or other items for her clients. Before taking that job, she

worked at The Ohio State University as a program educator and in

a grant program working with young families. She had also been

employed as an activity coordinator for elderly and disabled

persons. 

While still working at Ohio State, plaintiff began to

experience worsening of the pain in her spine, which was one

reason she changed jobs in 2004. She missed quite a bit of time

at work due to pain. She also suffers from irritable bowel

syndrome and acid reflux disease, and she has trouble sleeping

due to pain and spasms. Her condition has caused her to be

depressed. She takes Valium for anxiety, Percocet for pain, and

other medications for muscle spasms, irritable bowel syndrome,

high blood pressure, atrial fibrillation, and hypothyroidism. 

Her medications irritate her stomach. Bad weather also affects

her various conditions. 

Plaintiff can walk for fifteen minutes before her back

begins to spasm. She testified that her doctors attribute this

problem to degenerative disc disease, and she had a prior surgery

on her neck. Sitting is also uncomfortable. On a daily basis,

plaintiff does some minor household chores like dusting or

washing dishes, but others do most of her grocery shopping. She

thought the combination of her cervical spine pain and her

depression would prevent her from doing even a sedentary job. 

Most of the day, she is lying down or sitting with her feet up. 

She is currently receiving long-term disability benefits from a

private insurer.

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III. The Medical Records

The medical records in this case are found beginning on page

290 of the administrative record. The pertinent records can be

summarized as follows.

Plaintiff had neck surgery in 2002. The notes indicate that

within three months her pain had largely resolved. However, she

was complaining of severe neck pain in 2008, as well as pain in

the mid-back region and the lower back. An EMG showed no

evidence of cervical radiculopathy and she was not a candidate

for neck surgery. She did, however, have some disk degeneration

adjacent to the C5-C6 fusion which was done in 2002. X-rays

taken in 2007 showed some mild degenerative changes at T3-4 and

T12-L1, and a disk bulge at L5-S1 was also present, which might

have been causing her some right leg pain.

Dr. Irwin, a treating source, reported on December 1, 2008

that plaintiff had diagnoses of cervical disc protrusions,

chronic musculoskeletal pain, and possible ankylosing

spondylitis. She was seeing a rheumatologist as well. Dr. Irwin

reported that plaintiff could sit, stand, walk, carry and handle

light objects, hear, see, speak and travel. Lifting would be

limited by chronic pain. Her mental functioning was intact. 

(Tr. 357). 

A mental residual functional capacity form was completed by

Dr. Edwards, a psychologist, on January 17, 2009. His ultimate

conclusion was that plaintiff could perform simple and more

complex tasks in a relatively static environment as long as she

did not have to meet strict production quotas or deal with highpaced output demands. He based this conclusion on a diagnosis of

major depression, recurrent, which produced moderate difficulties

in maintaining concentration, persistence or pace, but only mild

limitations in other areas. (Tr. 429-44).

Dr. Gahman, also a state agency reviewer, completed a

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physical residual functional capacity assessment form on February

13, 2009. He found that plaintiff could lift and carry twenty

pounds occasionally and ten pounds frequently, could sit, stand

or walk about six hours each in a workday, and had some

limitations in the areas of climbing, stooping, and crouching. 

He did not believe the records supported pain and limitations of

the intensity which plaintiff reported, and noted that Dr.

Irwin’s report supported his conclusions. (Tr. 445-52).

Plaintiff also saw Dr. Harvey in 2009 and 2010. His office

notes (Tr. 516-26) show that she was treated for back pain which

prevented her from doing “much of anything at all” and that she

presented with a depressed affect as well as with anxiety and

irritability. His diagnoses appeared to include osteoarthritis

of the lumbar spine, chronic pain, and chronic induced

depression. In a later report (Tr. 541-45), Dr. Harvey indicated

a number of marked impairments in psychological functioning, as

well as several extreme limitations (being able to react

predictably to work changes and to deal with work stress), and he

also limited her to less than eight hours of sitting, standing

and walking during a workday, with no lifting at all. He

repeated essentially the same conclusions in a note dated

September 16, 2010, describing plaintiff as suffering from

“intractable neck and back pain.” (Tr. 553-54).

 IV. The Vocational Testimony

Mr. Walker, a vocational expert, also testified at the

administrative hearing. His testimony begins at page 55 of the

administrative record. Mr. Walker characterized plaintiff’s past

work as a service coordinator as light and semi-skilled. The

nutritional educator job was light and skilled, although

plaintiff performed it at the medium level. Activity coordinator

is a light, unskilled job, and furniture salesperson was light

and semi-skilled. Plaintiff had no skills that would transfer to

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other light jobs.

Mr. Walker was asked some questions about a hypothetical

person who was 51 years old, had one year of college education,

and who had plaintiff’s past work experience. That person could

also work at the light exertional level, being able to crouch,

stoop, or climb stairs only occasionally and never being able to

climb ladders, ropes or scaffolds. The person also needed to

avoid hazards, unprotected heights or moving machinery, and to

work in a static work environment without production quotas or

high-paced output demands. He testified that such a person could

do the furniture salesperson, activity coordinator and service

coordinator jobs. In addition, such a person could do a number

of other light, unskilled jobs such as food preparation worker,

waitress, cashier, and office helper. However, if plaintiff were

as limited as she testified, or as limited as Dr. Harvey

indicated, she could not work. The same would be true if she

were off task for a third or even a fourth of the work day.

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 12

through 20 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirement of the Social Security Act

through June 30, 2014. Second, he found that plaintiff had not

engaged in substantial gainful activity from her alleged onset

date of August 13, 2008 through the date of the decision. As far

as plaintiff’s impairments are concerned, the ALJ found that

plaintiff had severe impairments including major depression,

fibromyalgia, obesity, irritable bowel syndrome, degenerative

disc disease, thoracolumbar spondylosis, and hypertension. The

ALJ also found that these impairments did not meet or equal the

requirements of any section of the Listing of Impairments (20

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C.F.R. Part 404, Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform the exertional requirements of light work,

although she could only occasionally climb ramps and stairs,

crouch or stoop, and could not climb ladders, ropes, or

scaffolds. Additionally, she had to avoid exposure to hazards

and was limited to work involving either simple or more complex

tasks performed in a relatively static environment without strict

production quotas or high-paced output demands. The ALJ accepted

the vocational expert’s testimony that someone with such

limitations could perform three of plaintiff’s past jobs. As a

result, the ALJ concluded that plaintiff had not demonstrated an

entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises two

issues. First, she asserts that the ALJ improperly failed to

take her fibromyalgia into account when considering the combined

effect of her various impairments. Second, she argues that the

ALJ did not properly weigh the medical opinions from treating

sources. The Court generally reviews the administrative decision

of a Social Security ALJ under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

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upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff’s first argument focuses on her fibromyalgia. She

contends that the ALJ had a duty to develop the record more fully

with respect to this impairment to determine if it explained her

various symptoms, and erred by failing to refer to Social

Security Ruling 99-2p and by giving only scant weight to the

opinion of Dr. Harvey, who treated plaintiff for this condition. 

This argument is coupled with the claim that the ALJ did not

properly determine plaintiff’s credibility, in part due to the

ALJ’s reliance on factors which find no support in the record and

upon a list of daily activities which do not equate to the

ability to work on a full-time basis. In response, the

Commissioner argues that no physician ever formally diagnosed

fibromyalgia during the relevant time period and that other

conditions which were diagnosed, such as degenerative arthritis

or ankylosing spondylitis, explained her symptoms. Further, the

Commissioner defends the ALJ’s credibility determination at

length, contending that the various factors upon which the ALJ

relied in discounting plaintiff’s testimony were legitimately

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considered and amply supported by the record.

Turning first to the issue concerning fibromyalgia, SSR 99-

2p, which is titled “Evaluating Cases Involving Chronic Fatigue

Syndrome (CFS),” states that CFS is a medically determinable

impairment and may be disabling. It describes the criteria for

defining CFS, including the fact that it “cannot be explained by

another physical or mental disorder,” and that at least four of

eight symptoms listed in the Ruling must be present. After

discussing the various medical signs and laboratory findings that

should accompany a diagnosis of CFS, the Ruling explains that, in

evaluating claims involving CFS, the normal sequential evaluation

process is followed, as is the standard method for evaluating the

claimant’s credibility. It also notes that other types of

disorders, including fibromyalgia (FMS) may share characteristics

with CFS, and if one or more of those disorders are potentially

present, “it may be necessary to pursue additional medical or

other development.” It appears to be plaintiff’s argument that

because the ALJ made no specific reference to this SSR, he did

not consider the combined effects of plaintiff’s fibromyalgia and

her other impairments.

The absence of any reference to SSR 99-2p, which is directly

applicable to chronic fatigue syndrome, a condition from which

plaintiff does not suffer, does not suggest to the Court that the

ALJ simply disregarded the evidence concerning fibromyalgia. It

is, as the Commissioner points out, the ALJ’s duty to consider

the degree to which any impairment - severe or otherwise -

affects a claimant’s ability to perform work-related functions

which is important, and plaintiff does not point to any specific

limitation which she claims to have been caused by fibromyalgia

but which the ALJ essentially ignored due to his alleged failure

to follow the dictates of SSR 99-2p.

Plaintiff does, however, argue that the ALJ “failed to

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properly consider the effects of fibromyalgia.” Doc. 14, at 9. 

In support of this argument, she asserts that the ALJ erred in

not assigning the most weight to the opinion of Dr. Harvey, who

treated her for this disorder, and placing significant weight on

the opinion of Dr. Gahman, the state agency reviewer. Plaintiff

contends that Dr. Gahman also ignored the impact of her

fibromyalgia and that the ALJ “relied upon [Dr. Gahman’s] opinion

without correcting this deficiency.” Id. at 10.

Plaintiff does not couch this argument in terms of the

“treating physician” rule (that argument appears as a separate

assignment of error), so the Court will defer discussion of that

issue. In the context of this argument, the Court notes that Dr.

Irwin’s opinion, while it does not appear to use the term

“fibromyalgia,” did describe plaintiff as suffering from chronic

musculoskeletal pain. Dr. Irwin believed that plaintiff could

sit, stand, walk, and carry light objects, and he thought her

mental functioning was normal. To the extent that some of these

restrictions were caused by her generalized pain, the ALJ clearly

took them into account. And so did Dr. Gahman, who referred to

this condition and its limitations in his report, specifically

noting that Dr. Irwin’s statements “support the RFC given.” (Tr.

451). Thus, to the extent that plaintiff’s first statement of

error asserts either that the ALJ committed a procedural miscue

by not referring explicitly to SSR 99-2p or simply disregarded

any evidence that plaintiff’s fibromyalgia or chronic

musculoskeletal pain limited her functioning, that argument is

contradicted by the record.

As noted, however, plaintiff has coupled this first argument

with a general attack on the way in which the ALJ determined that

her testimony of disabling symptoms was less than fully credible. 

Again, she asserts both procedural and substantive errors. First

she contends that the template used by the ALJ reverses the

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required decision-making process, allowing the ALJ to determine a

residual functional capacity prior to assessing the claimant’s

credibility and then gauging credibility in light of the RFC

determination which has already been made. Next, she argues that

the ALJ relied too heavily on the opinions of Drs. Irwin and

Gahman, and too little on the views of Dr. Harvey, and that the

ALJ also cited to various factors which do not permit the

conclusion that plaintiff was not fully credible. The Court will

discuss each of these contentions separately.

Plaintiff’s procedural argument relies heavily on a decision

from the Court of Appeals for the Seventh Circuit, Bjornson v.

Astrue, 671 F.3d 640 (2012), which is very critical of the

standard social security template, describing it as neither

meaningful nor reviewable. This Court has, in Jones v. Comm’r of

Social Security, 2012 WL 5378850 (S.D. Ohio Oct. 30, 2012), and

Williams v. Astrue, 2012 WL 4364147 (S.D. Ohio Sept. 24, 2012),

acknowledged that decision, but held that when an ALJ, despite

using the standard template, engages in a complete discussion of

the credibility issue, the Court will simply review that

determination to insure that it is supported by substantial

evidence. The Court will do so here.

According to plaintiff, four of the reasons cited by the ALJ

for discounting her testimony - dealing with her claim to suffer

from irritable bowel syndrome, from severe side effects of her

medications, the absence of a recommendation of surgery by Dr.

Meagher, and the reasons she gave for undergoing a hysterectomy -

are not “supported by either the record or common experience.” 

She also asserts that the ALJ mistakenly equated her ability to

do some activities of daily living with the ability to work on a

full-time basis. The record, however, does not bear out these

claims.

First, the reasons cited by plaintiff in her statement of

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errors do not reflect the ALJ’s entire rationale for discounting

her testimony. While the ALJ used these factors as examples of

why he did not credit her testimony in full, he began his

discussion of the credibility issue by noting that her

“description of the severity of her pain and other limitations

has been so extreme as to appear implausible ....” (Tr. 17). 

That was so, according to the ALJ, because the objective findings

in the record are “minimal.” Id. The ALJ then reviewed those

findings in detail. He also focused on the conservative nature

of her treatment and the fact that she used pain medication only

intermittently, and often took no medication for her

psychological condition. Although he also cited to the reasons

which plaintiff’s statement of errors focuses on, and plaintiff

has presented plausible arguments why those seeming

inconsistencies are either explainable or non-existent, the bulk

of the credibility determination relied on the ALJ’s perception -

supported by the record - that there is a gap between the way in

which various physicians described plaintiff’s condition and the

way she described it, and a course of treatment and medication

that appears inconsistent with completely disabling symptoms. 

The fact that plaintiff could also perform some routine

activities of daily living is evidence which an ALJ can also

consider in making a credibility determination if, again, there

is some inconsistency between a claimant’s testimony of

debilitating symptoms and the activities she can actually

perform. In short, the credibility determination made here was

within the wide discretion afforded to the ALJ on this subject,

and the Court is not free to overturn it. See generally Foreman

v. Commissioner of Social Sec., 2012 WL 1106257 (S.D. Ohio March

31, 2012) (Watson, J.), citing Walters v. Comm'r of Social

Security, 127 F.3d 525, 531 (6th Cir. 1997); Felisky v. Bowen, 35

F.3d 1027, 1036 (6th Cir. 1994). 

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Plaintiff’s second statement of error addresses the

“treating physician” rule. As with her first statement of error,

she has identified what she claims to be both procedural and

substantive deficiencies in the ALJ’s decision. She argues that

the ALJ should not have relied upon Dr. Edwards’ assessment of

plaintiff’s mental functional capacity because it was based in

part on the fact that plaintiff was living independently -

something which changed after he wrote his report; should have

given greater weight to Dr. Harvey’s opinion because he was a

treating source and his views were consistent with his treatment

notes; and should not have given great weight to Dr. Irwin’s

assessment because he only treated plaintiff for a few months

after she alleged disability. She also contends that the ALJ

completely (and improperly) disregarded Dr. Meagher’s opinions

and those opinions about her physical and mental condition fully

supported her claim of disability.

It has long been the law in social security disability cases

that a treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. 20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d

1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,

1113 (S.D. Ohio 1981). However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to

which that physician’s own objective findings support or

contradict that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

performed by non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

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weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.

2004).

The ALJ provided a fairly detailed explanation for assigning

“scant weight” to Dr. Harvey’s opinions. These reasons are set

forth: (1) Dr. Harvey “gives no explanation for any conclusion”;

(2) his opinion is “inconsistent with the record evidence and the

undersigned’s credibility determination”; (3) his records

“reflect no musculoskeletal findings”; (4) it appears that he

accepts the claimant’s subjective complaints at face value”; (5)

he saw plaintiff only five times before rendering his opinion;

(6) it conflicted with Dr. Irwin’s opinion, rendered only months

before, concerning plaintiff’s ability to sit, stand, walk, and

carry light objects; and (7) it conflicted with Dr. Gahman’s

opinion, which, according to the ALJ, was “well-reasoned,

supported by the record evidence, and consistent with the

undersigned’s credibility determination.” (Tr. 18). The

Commissioner argues that all of these findings are supported by

the record and that a reasonable person could have accepted them

as evidence that Dr. Harvey’s opinion should be substantially

discounted. The Commissioner does not address specifically

plaintiff’s claim that Dr. Edwards’ opinion was undercut by the

fact that she moved in with her parents because, at least

according to her testimony, she could no longer perform her usual

activities of daily living, but the Commissioner’s memorandum

does point out that the ALJ gave reasons for according little

weight to Dr. Harvey’s opinion which focused on the sufficiency

of the opinion itself rather than any external factor such as

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whether plaintiff was or was not living independently. Doc. 17,

at 17 n.8.

Dr. Harvey completed both a mental and a physical residual

functional capacity assessment form on September 11, 2010. He

did not, on either, make any remarks other than stating on the

mental capacities form that plaintiff “does better alone.” (Tr.

541. The limitations set forth on both forms are extreme, and

included a statement that plaintiff could not lift any amount of

weight, could not reach overhead, and could only stand for an

hour in an entire day. Dr. Harvey also wrote a letter

summarizing his findings, stating that all of plaintiff’s

conditions were present “since years before December 2008, and

continue to this date unabated ” (Tr. 555) and that plaintiff had

stated to him that she could not function beyond activities of

daily living except with medication which she did not want to

take because it adversely affected her bowels (Tr. 553). 

The ALJ correctly noted the absence of any specific

statements corroborating this assessment, as well as the absence

of any treatment notes showing test results or any other

objective indicia of disabling symptoms. The only test result

reported to Dr. Harvey appears to be some MRI results showing

some mild degenerative changes in the spine and possible bulging

disks at the T1-T3 levels, plus a letter from Dr. Chaudhari from

September of 2009 indicating that the strength in plaintiff’s

upper and lower extremities was “normal” and that her reflexes

were “symmetric and non-pathologic.” Also, her gait and station

were normal and she could heel to toe walk without difficulty. 

She had some degenerative changes in her spine but they were

mostly mild or very mild. Dr. Chaudhari thought her depression

was her most severe condition. Thus, the ALJ was also correct in

finding that there was little or nothing by way of reports or

findings to support Dr. Harvey’s views. The only detailed

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statement of the reasons for plaintiff’s alleged disability

appear to have come from her recitations of her own situation and

symptoms in office notes which clearly were reported by the

plaintiff and not observed or verified by Dr. Harvey. (E.g., Tr.

520-21). The ALJ’s observation concerning the relatively small

number of times that Dr. Harvey saw plaintiff is also borne out

by the record. 

It appears that the ALJ took into account the various

factors set forth in §404.153-27(d) for evaluating a treating

physician’s opinion, and plaintiff does not argue otherwise. 

When those factors are discussed, and when the record supports

the ALJ’s finding that the factors allow a treating source’s

statements to be discounted, the Court is not ordinarily entitled

to second-guess that finding. See, e.g., Rabbers v. Comm’r of

Social Security, 582 F.3d 647, 660 (6th Cir. 2009)(holding that

an ALJ was entitled to discount a treating source opinion if it

was not supported by records and treatment notes and based on

relatively few instances of treatment); Collins v. Comm’r of

Social Security, 2008 WL 2302695, *6 (S.D. Ohio May 30,

2008)(when reasons given for discounting opinion of treating

source are supported by the record, decision to discount that

opinion are within the ALJ’s “‘zone of choice’”).

This conclusion largely resolves plaintiff’s other arguments

about the weight given to the opinions of Drs. Irwin and Gahman. 

If the ALJ was entitled to, and did, discount Dr. Harvey’s

opinion, and if he also found that plaintiff was not completely

credible, it was within his “zone of choice” to give weight to

those physicians’ opinions, especially in light of the entire

record, and to find that plaintiff had the physical residual

functional capacity to perform a limited range of light work. 

The fact that plaintiff was living independently when Dr. Edwards

reviewed the record is not of great significance since the ALJ

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discounted her subjective claim that she could no longer do what

was needed to live without assistance. Further, Dr. Meagher’s

physical findings were noted by the ALJ (Tr. 17) and Dr. Meagher

did not express any view as to whether plaintiff could perform

any specific work-related functions. Therefore, this assignment

of error provides no basis for reversal or remand.

Plaintiff’s final argument is that the ALJ erred in

crediting Dr. Irwin’s statements about her mental residual

functional capacity. But she notes in her statement of errors

that the ALJ did not, in fact, accept these statements even

though they were accorded substantial weight. See Doc. 14, at

16. Rather, the ALJ accepted the views of the reviewing mental

health professionals and made a finding consistent with those

views. Plaintiff does not point out any specific restriction in

her mental functioning which was supported by the record but not

accepted by the ALJ, but seems to argue more generally that Dr.

Harvey’s view of her mental capacity should have been accepted as

well. However, Dr. Harvey is not a mental health professional,

and plaintiff provides no reasons why the ALJ was required to

credit his views over those of the state agency reviewers in this

regard. Thus, there is nothing in this final assignment of error

which persuades the Court that a remand is needed - nor that the

ALJ’s decision was filled with “repeated abuses of discretion to

such an extent that it amounts to a denial of due process.” Doc.

14, at 18. The Court will therefore recommend that the statement

of errors be overruled and that the decision of the Commissioner

be affirmed.

VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

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VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

United States Magistrate Judge

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