IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

JENNIFER D. BROWN, 

 Plaintiff, 

 vs. Civil Action 2:12-cv-511 

 Judge Marbley 

 Magistrate Judge King 

 

COMMISSIONER OF SOCIAL SECURITY, 

 Defendant. 

REPORT AND RECOMMENDATION 

I. Background 

This is an action instituted under the provisions of 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social 

Security denying plaintiff’s application for disability insurance 

benefits and supplemental security income. This matter is now before 

the Court on Plaintiff’s Statement of Errors, Doc. No. 12, and 

defendant’s Memorandum in Opposition, Doc. No. 13. 

 Plaintiff Jennifer D. Brown filed her application for benefits on 

June 18, 2008, alleging that she has been disabled since January 16, 

2008. The application was denied initially and upon reconsideration, 

and plaintiff requested a de novo hearing before an administrative law 

judge. 

 An administrative hearing was held on September 1, 2010, at which 

plaintiff, represented by counsel, appeared and testified, as did Carl 

Hartung, who testified as a vocational expert. PAGEID 80. In a 

decision dated October 20, 2010, the administrative law judge 

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concluded that plaintiff was not disabled from January 16, 2008, her 

alleged onset date, through the date of the administrative decision. 

PAGEID 57. That decision became the final decision of the 

Commissioner of Social Security when the Appeals Council declined 

review on February 8, 2012. PAGEID 43. 

 Plaintiff was 30 years of age on the date of the administrative 

law judge’s decision. PAGEID 56, 80. Plaintiff has a high school 

education, is able to communicate in English, and has prior relevant 

work as, inter alia, a general clerk and a cafeteria cook. PAGEID 56, 

85, 111-12. Plaintiff was last insured for disability insurance 

purposes on September 30, 2009. PAGEID 52. She has not engaged in 

substantial gainful activity since January 16, 2008, her alleged date 

of onset of disability. Id. 

II. Medical Evidence and Plaintiff’s Testimony1

Plaintiff suffers from post-traumatic headaches resulting from a 

car accident in 2001. Plaintiff began treating with Steven Simensky, 

M.D., Ph.D., a Board-certified neurologist, on March 5, 2008, for 

traumatic brain injury. PAGEID 508. At that time, plaintiff reported 

daily headaches rated at 7-8 on a 10-point scale in intensity, which 

were associated with nausea, vomiting, and photophobia, and which 

required her to lie down in a dark room. Id. Dr. Simensky noted that 

an August 2007 EEG and a July 2007 MRI of the brain were normal. Id. 

Dr. Simensky increased plaintiff’s medication and directed a follow-up 

 

1

 Plaintiff’s Statement of Errors challenges only the administrative law 

judge’s alleged failure to follow the treating physician rule and to impose 

work-related limitations caused by plaintiff’s severe post-traumatic 

headaches. Statement of Errors, p. 1. The Court will therefore limit its 

discussion to those issues. 

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appointment. PAGEID 509. On June 23, 2008, plaintiff reported daily 

headaches of two to three hours’ duration. PAGEID 506 (Dr. Simensky’s 

June 23, 2008 treatment notes). On June 9, 2009, Dr. Simensky 

characterized plaintiff’s headaches as “occasional” and again changed 

her medication. PAGEID 632. Dr. Simensky subsequently discontinued 

or reduced most of plaintiff’s medications secondary to her pregnancy. 

PAGEID 631 (Dr. Simensky’s October 30, 2009 treatment notes). 

Plaintiff thereafter complained of “a low grade headache with 

occasional exacerbation that [wa]s mainly occipital in nature” and 

which occasionally became “very significant.” Id. In December 2009, 

plaintiff reported daily headaches that were “rather mild.” PAGEID 

630 (Dr. Simensky’s December 29, 2009 treatment notes). In April 

2010, Dr. Simensky prescribed Topiramate 25 mg for plaintiff’s 

“posttraumatic headaches.” PAGEID 629. Dr. Simensky noted that 

plaintiff had “low grade headaches” since her 2001 car accident and 

that her “baseline headaches” were “somewhat relieved” with aspirin. 

Id. 

On September 3, 2010, and in response to inquiry by plaintiff’s 

counsel, Dr. Simensky opined that, based on plaintiff’s history of 

traumatic brain injury and despite treatment, plaintiff’s headaches 

could be expected to continue and that plaintiff would need to lie 

down 2 to 3 times per week during the day in order to accommodate her 

severe headache pain. PAGEID 808. Dr. Simensky continued: 

Post-traumatic headaches are unpredictable and response to 

typical migraine medications is variable. I am hopeful her 

newer migraine medication Topomax will mitigate her 

headaches significantly. 

Id. 

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 Plaintiff testified at the administrative hearing that she 

continues to experience “real bad headaches” which occur at 

unpredictable intervals and which last at least one hour at least six 

times per week. PAGEID 90-91, 103. She takes aspirin and lies down 

for approximately one hour. PAGEID 101. Her prescription medication 

has reduced the frequency and severity of her headaches. PAGEID 102. 

She cares for her two children and does little housework. PAGEID 98-

99. 

 

III. Administrative Decision 

 The administrative law judge found that plaintiff’s severe 

impairments consist of left shoulder rotator cuff tear, depression, 

memory loss, bronchitis, and post-traumatic headaches. PAGEID 52. 

The administrative law judge also found that plaintiff’s impairments 

neither meet nor equal a listed impairment and leave plaintiff with 

the residual functional capacity (“RFC”) to perform a full range of 

light work, as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b). 

PAGEID 53-54. Plaintiff’s RFC would also limit her to jobs involving 

only simple, repetitive tasks where strict time and production 

pressures are not imposed and which require only superficial contact 

with others. PAGEID 54. Relying on the testimony of the vocational 

expert, the administrative law judge found that this RFC would permit 

the performance of plaintiff’s past relevant work as a general clerk 

and a cafeteria cook, as actually performed, as well as a significant 

number of jobs in the national economy. PAGEID 56-57. Accordingly, 

the administrative law judge concluded that plaintiff was not disabled 

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within the meaning of the Social Security Act from January 16, 2008, 

through the date of the administrative law judge’s decision. PAGEID 

57. 

IV. Discussion

 Pursuant to 42 U.S.C. § 405(g), judicial review of the 

Commissioner’s decision is limited to determining whether the findings 

of the administrative law judge are supported by substantial evidence 

and employed the proper legal standards. Richardson v. Perales, 402 

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 

(6th Cir. 2005). Substantial evidence is 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. 

See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y 

of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This 

Court does not try the case de novo, nor does it resolve conflicts in 

the evidence or questions of credibility. See Brainard v. Sec’y of 

Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. 

Heckler, 745 F.2d 383, 387 (6th Cir. 1984). 

 In determining the existence of substantial evidence, this 

Court must examine the administrative record as a whole. Kirk, 667 

F.2d at 536. If the Commissioner's decision is supported by 

substantial evidence, it must be affirmed even if this Court would 

decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 

1058, 1059 (6th Cir. 1983), and even if substantial evidence also 

supports the opposite conclusion. Longworth, 402 F.3d at 595. 

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 In his decision, the administrative law judge found that 

plaintiff had the RFC to perform a full range of light work, except 

that she would be limited to performing jobs involving only simple, 

repetitive tasks where strict time and production pressures are not 

imposed, and which requires only superficial contact with others. 

PAGEID 54. In making this RFC assessment, the administrative law 

judge gave “little weight” to the opinion of plaintiff’s treating 

neurologist, Dr. Simensky:2

The claimant has also been assessed with a depressive 

disorder, chronic post-traumatic stress disorder and 

migraines, and possibly cognitive disorder due to an 

accident the claimant suffered in 2001. Dr. Kathy Shy 

noted that the claimant has few depressive symptoms that 

would be targets for antidepressant medication. The record 

indicates that the claimant’s MRI and EEG studies were 

determined to be normal. In addition, recent reports from 

the Scioto Paint Valley Mental Health Center establish that 

the claimant is much improved and presently stable. Dr. 

Steven Simensky indicated that it would be reasonable for 

the claimant to lie down during the day to accommodate her 

severe headache pain two to three times per week. However, 

Dr. Simensky indicated that he was hopeful that the 

medication Topomax would significantly mitigate her 

headaches. The record reflects that the claimant continued 

to work for several years after the post-traumatic 

headaches allegedly began. This fact is inconsistent with 

the claimant’s allegations of disabling headaches, as she 

was able to continue working. Dr. Jackie Rose opined that 

the claimant had poor concentration, distractibility and 

poor stress tolerance. She opined that the claimant’s 

ability to remember, understand and follow directions was 

poor, and her ability to maintain attention was very poor. 

Further, Dr. Rose opined that the claimant’s ability to 

sustain concentration, persist at tasks, and complete them 

in a timely fashion was poor. The undersigned accords 

little weight to these opinions as they are inconsistent 

with the claimant’s description of her daily activities, 

and are inconsistent with the objective record as a 

whole. . . . 

 

2

 The Court quotes most of the paragraph containing the administrative law 

judge’s evaluation of the opinions of treating providers because it is 

unclear exactly what portions relate exclusively to Dr. Simensky’s opinion. 

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PAGEID 55. Plaintiff contends that the administrative law judge 

failed to properly evaluate Dr. Simensky’s September 2010 

opinion. Statement of Errors, pp. 4-8. This Court agrees. 

The opinion of a treating provider must be given controlling 

weight if that opinion is “well-supported by medically acceptable 

clinical and laboratory diagnostic techniques” and is “not 

inconsistent with the other substantial evidence in [the] case 

record.” 20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2). Even if the 

opinion of a treating provider is not entitled to controlling weight, 

an administrative law judge is nevertheless required to determine how 

much weight the opinion is entitled to by considering such factors as 

the length, nature and extent of the treatment relationship, the 

frequency of examination, the medical specialty of the treating 

physician, the extent to which the opinion is supported by the 

evidence, and the consistency of the opinion with the record as a 

whole. 20 C.F.R. §§ 404.1527(c)(2)-(6); 416.927(c)(2)-(6)(; Blakley 

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

Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Moreover, an 

administrative law judge must provide “good reasons” for discounting 

the opinion of a treating provider, i.e., reasons that are 

“‘sufficiently specific to make clear to any subsequent reviewers the 

weight the adjudicator gave to the treating source’s medical opinion 

and the reasons for that weight.’” Rogers v. Comm’r of Soc. Sec., 486 

F.3d 234, 242 (6th Cir. 2007) (quoting Soc. Sec. Rul. 96-2p, 1996 WL 

374188, at *5). 

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 In the case presently before the Court, the administrative law 

judge failed to expressly characterize Dr. Simensky as a treating 

physician, and did not expressly consider the factors required by 

Wilson. The administrative law judge made no mention of Dr. Simensky’s 

treatment notes, nor did the administrative law judge explain how Dr. 

Simensky’s September 2010 opinion is “inconsistent with the objective 

record as a whole.” Although the administrative law judge based his 

rejection of Dr. Simensky’s opinion, at least in part, on the fact 

that “the claimant continued to work for several years after the posttraumatic headaches allegedly began,” PAGEID 55, there is evidence in 

the record, not discussed by the administrative law judge, that 

plaintiff’s headaches prevented the successful performance of her 

jobs. See, e.g., PAGEID 258, 547. The administrative law judge simply 

has not provided reasons “sufficiently specific to make clear to any 

subsequent reviewers” the reasons for discrediting Dr. Simensky’s 

opinion. See Rogers, 486 F.3d at 242. The Court therefore concludes 

that the matter must be remanded for further consideration of Dr. 

Simensky’s opinion. 

 Having concluded that the action must be remanded, the Court need 

not and does not address plaintiff's remaining argument. 

 It is therefore RECOMMENDED that the decision of the Commissioner 

be reversed and that this action be remanded pursuant to Sentence 4 of 

42 U.S.C. § 405(g) for further consideration of the opinions of 

plaintiff’s treating neurologist. 

If any party seeks review by the District Judge of this Report 

and Recommendation, that party may, within fourteen (14) days, file 

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and serve on all parties objections to the Report and Recommendation, 

specifically designating this Report and Recommendation, and the part 

thereof in question, as well as the basis for objection thereto. 28 

U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Response to objections 

must be filed within fourteen (14) days after being served with a copy 

thereof. Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that failure to object to 

the Report and Recommendation will result in a waiver of the right to 

de novo review by the District Judge and 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); Smith v. Detroit Fed’n of 

Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States 

v. Walters, 638 F.2d 947 (6th Cir. 1981). 

June 7, 2013 s/Norah McCann King_______ 

 Norah McCann King 

 United States Magistrate Judge 

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