Tammy J. Jones, 

Plaintiff, 

v. 

UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

Case No. 2:12-cv-0110 

Commissioner of Social Security, Judge Michael H. Watson 

Magistrate Judge Kemp 

Defendant. 

OPINION AND ORDER 

On October 30, 2012, the Magistrate Judge issued a Report and 

Recommendation recommending that the Court overrule the statement of errors 

filed by Plaintiff Tammy J. Jones and enter judgment in favor of Defendant 

Commissioner of Social Security. Plaintiff has filed a timely objection to that 

recommendation. For the following reasons, the Plaintiff's objection will be 

overruled, and this case will be dismissed. 

I. STANDARD OF REVIEW 

If a party objects within the allotted time to a report and recommendation, 

the Court "shall make a de novo determination of those portions of the report or 

specified proposed findings or recommendations to which objection is made." 28 

U.S.C. § 636(b) (1 ); see a/so Fed. R. Civ. P. 72(b). Upon review, the Court "may 

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

made by the magistrate judge." 28 U.S.C. § 636(b)(1 ). 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 1 of 10 PAGEID #: <pageID>
The Court's review of the underlying decision "is limited to determining 

whether the Commissioner's decision 'is supported by substantial evidence and 

was made pursuant to proper legal standards."' Ealy v. Comm'r of Soc. Sec., 594 

F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v. Comm'rof Soc. Sec., 486 F.3d 

234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) ("The findings of the 

Commissioner of Social Security as to any fact, if supported by substantial 

evidence, shall be conclusive"). Put another way, a decision supported by 

substantial evidence is not subject to reversal, even if the reviewing court might 

arrive at a different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 

1986). "Substantial evidence exists when 'a reasonable mind could accept the 

evidence as adequate to support a conclusion [and] ... presupposes that there is 

a zone of choice within which the decision-makers can go either way, without 

interference by the courts."' Blakley v. Comm'rof Soc. Sec., 581 F.3d 399,406 

(6th Cir. 2009) (internal citation omitted). Even if supported by substantial 

evidence, however, "'a decision of the Commissioner will not be upheld where the 

[Commissioner] 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 

v. Comm'rof Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. 

Comm'rof Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)). 

Page 2 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 2 of 10 PAGEID #: <pageID>
II. FACTS 

Plaintiff does not object to the Report and Recommendation's summary of 

the testimony at the administrative hearing, the medical evidence, and the 

administrative decision, so that summary will be repeated here only briefly. 

Plaintiff claimed a disability beginning on February 10, 2008. She was 37 years 

old at the time of the hearing, had attended school only through the ninth grade, 

and had previously worked as a grocery store or convenience store clerk or stock 

person and as a cashier at a department store. She testified that she had a 

heart condition, shortness of breath, diabetes, and low back pain radiating into 

both hips and legs. She also told the ALJ she suffered from bipolar disorder with 

accompanying memory and concentration problems and anxiety or irritation when 

around other people. 

The only treating physician's opinion in this case is from Dr. Nicholas 

Davakis, M.D., who treated Plaintiff for non-specific and multi-factorial cardiac 

complaints. Dr. Davakis' opinion was that Plaintiff is "unable to participate in any 

type of significant physical exertion." Rec. 18, ECF No. 12. 

Dr. Condon, a consultative examiner for the state, examined Plaintiff and 

concluded that, due to Plaintiff's history of nonischemic cardiomyopathy, she was 

limited to sedentary work of a routine nature, with some additional restrictions on 

climbing steps or ramps, standing (specifically he noted she was limited to 

standing for 15 to 20 minutes at a time), and being exposed to extremes of 

Case No. 2:12-cv-110 Page 3 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 3 of 10 PAGEID #: <pageID>
temperature or pulmonary irritants. 

Dr. Donaldson, a psychologist and consultative examiner for the state, 

found that Plaintiff suffered from a generalized anxiety disorder and bipolar 

disorder with psychotic features, had a global assessment of functioning score 

("GAF") of 45-55, and was moderately impaired in her ability to deal with work 

stress. He also thought she could follow one- or two-step job instructions and 

could perform repetitive tasks even though she was also moderately limited in her 

ability to relate to others. Dr. Lewin, a state agency reviewer, reached a similar 

conclusion. 

Dr. Teague, a state agency reviewer, completed a residual functional 

capacity assessment and concluded that Plaintiff could do light work and that, 

inter alia, she could stand or walk for four hours in a workday and should have 

limited exposure to hazards such as heights or machinery. Dr. Brock, another 

state agency reviewer, affirmed this assessment. 

The ALJ essentially adopted all these findings, although the ALJ agreed 

with Dr. Teague that Plaintiff could do a limited range of light work if she did not 

have to stand or walk for more than four hours total in a work day. A vocational 

expert testified that someone with Plaintiff's physical capacity and who could also 

do only simple, repetitive tasks in a routine setting which did not involve either 

rapid changes in duties or processes or more than brief or superficial contact 

with others could work as a small product assembler, final assembler, packer, or 

Case No. 2:12-cv-110 Page 4 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 4 of 10 PAGEID #: <pageID>
table worker. Based on this testimony, the ALJ found that Plaintiff was not 

disabled within the meaning of the Social Security Act. 

Ill. DISCUSSION 

Plaintiff raises two specific issues in her objections to the Report and 

Recommendation, which encompass many of the same issues she raised in her 

Statement of Errors. She contends, first, that the ALJ's residual functional 

capacity finding was not supported by substantial evidence because the ALJ did 

not resolve a conflict in the medical evidence; did not include certain limitations in 

his hypothetical to the vocational expert; and fails to mention limits on Plaintiff's 

ability to stand, to be exposed to certain environmental conditions, and to 

concentrate or work at an acceptable pace. Second, she argues that her 

credibility was not properly assessed because the ALJ relied only on evidence of 

Plaintiff's activities of daily living and disregarded other evidence which is relevant 

to a credibility determination. For the following reasons, the Court finds no merit 

in either of these arguments. 

The Magistrate Judge found that the ALJ had resolved any conflicts in the 

medical evidence. In concluding that the ALJ acted within the allowable scope of 

discretion in resolving conflicts in the evidence, the Report and Recommendation 

stated: 

An ALJ is permitted to make such resolutions of conflicting evidence, 

and there is no specific requirement that this type of decision be set 

forth in the same type of detail required when rejecting the opinion of 

Case No. 2:12-cv-110 Page 5 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 5 of 10 PAGEID #: <pageID>
a treating source. See, e.g., Denton v. Comm'r of Social Security, 

2012 WL 1145962, *3 (E.D. Mich. April 5, 2012) ("The ALJ is not 

required to discuss every piece of evidence when there is substantial 

evidence to reach the opposite conclusion"). And, of course, "[w]hen 

deciding under 42 U.S.C. § 405(g) whether substantial evidence 

supports the ALJ's decision, we do not try the case de novo, resolve 

conflicts in evidence, or decide questions of credibility." Bass v. 

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

Report and Recommendation 8-9, ECF No. 15. Plaintiff does not argue that this 

is an inaccurate statement of the law, but contends that the ALJ did not actually 

resolve conflicts in the medical evidence about whether she was capable of 

sedentary or light work and how long she could stand or walk in a work day. 

The Court agrees with the Magistrate Judge's conclusion that the ALJ 

resolved the conflict by accepting the opinions of the two state agency reviewers, 

Drs. Teague and Brock, to the extent that their opinions differed slightly from Dr. 

Condon's. The ALJ stated a specific limit on how much of Dr. Condon's opinion 

he accepted; he gave it great weight only to the extent that it was consistent with 

the other residual functional capacity findings. This choice was within his 

discretion, and Plaintiff does not argue otherwise. Her actual argument-that the 

ALJ did not actually appreciate and resolve this conflict in the evidence-is not 

borne out by the record. 

Plaintiff also contends that important information was left out of the 

hypothetical given to the Vocational Expert. Specifically, she argues Dr. 

Condon's conclusion that she could only stand 15-20 minutes and Dr. Lewis' 

Case No. 2:12-cv-110 Page 6 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 6 of 10 PAGEID #: <pageID>
opinion she could only "concentrate short term" should have been included. 

Plaintiff argues that had this information been included, it could well have affected 

the testimony about what jobs she could do. 

The Court agrees with the Magistrate Judge that the ALJ did not improperly 

omit reference to Plaintiff's limits on standing or problems with concentration 

when posing a hypothetical question to the vocational expert. As mentioned 

above, the ALJ rejected Dr. Condon's conclusion that Plaintiff could only stand 

15-20 minutes before getting dizzy. This is within the discretion of the ALJ. In 

relation to her concentration, the ALJ's hypothetical included the limitation to 

performance of simple, routine tasks in a setting that did not involve changes in 

the work processes or any significant distraction by co-workers, supervisors, or 

the public. That is precisely the type of work Dr. Lewin said Plaintiff could 

perform. The "concentrate short term" language simply explained why it was that 

Plaintiff was limited to such work. The phrase "concentrate short term" does not, 

as Plaintiff argues, impose a limit on the frequency with which Plaintiff could 

concentrate. Accordingly, the omissions from the hypothetical are not error. 

Finally, Plaintiff contends the ALJ's report was not based on substantial 

evidence because it did not address her environmental limitations or her 

limitations in concentration, persistence, and pace. 

While it might be ideal for an ALJ to articulate his reasons for crediting 

or discrediting each medical opinion, it is well settled that: 'an ALJ can 

consider all the evidence without directly addressing in his written 

Case No. 2:12-cv-110 Page 7 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 7 of 10 PAGEID #: <pageID>
decision every piece of evidence submitted by a party. Nor must an 

ALJ make explicit findings as to each bit of conflicting testimony, so 

long as his factual findings as a whole show that he implicitly resolved 

such conflicts.' 

Kornecky v. Comm'rof Soc. Sec., 167 F. App'x 496, 507-08 (6th Cir. 2006) 

(quoting Lora/ Defense Systems-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir. 

1999)). The ALJ noted, "[s]he should avoid all exposure to workplace hazards 

such as dangerous machinery and unprotected heights" and explained her 

limitations due to her concentration deficiencies, as described above. By failing 

to mention Dr. Condon's conclusions that she was limited to standing for 15 to 20 

minutes at a time and should be limited in her exposure to extremes of 

temperature or pulmonary irritants, the ALJ implicitly rejected those conclusions. 

It is within the discretion of the ALJ to weigh the evidence. Since Dr. Condon was 

not a treating physician, the ALJ need not explain the rejection of his conclusions 

in great detail. See Denton, 2012 WL 1145962, at *3. 

In her second objection, Plaintiff takes issue with the way in which the ALJ 

assessed her credibility. Again, however, the record does not bear out her claim 

of error. The ALJ did not simply rely on her activities of daily living-which 

included driving, caring for three dogs, reading, using her computer and cell 

phone, and going to medical appointments, and which showed the ability to 

function at some level-but also explicitly considered the nature of the treatment 

she received, the medication she took, and the absence of any opinion from any 

Case No. 2:12-cv-110 Page 8 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 8 of 10 PAGEID #: <pageID>
physician that she was disabled. Although Plaintiff argues that the absence of 

opinions about disability are irrelevant because "Physicians are asked to give 

their opinions on the functional limitations posed by a claimant's impairments, not 

whether or not a claimant is disabled," Objection 6, ECF No. 16, the fact that 

every physician thought that Plaintiff had more functional capability than she 

admitted to in her testimony is clearly a factor which the ALJ was entitled to 

consider. The Court finds no error in the way in which the ALJ addressed the 

issue of credibility and defers to the conclusions reached by the ALJ on this point. 

See, e.g., Jones v. Comm'r of Social Security, 336 F.3d 469, 476 (6th Cir. 2003) 

("Upon review, we are to accord the ALJ's determinations of credibility great 

weight and deference" and "we are limited to evaluating whether or not the ALJ's 

explanations for partially discrediting [the Plaintiff] are reasonable and supported 

by substantial evidence in the record"). Consequently, neither of Plaintiff's 

objections persuade the Court that the Report and Recommendation erroneously 

determined the issues in this case in the Commissioner's favor. 

IV. CONCLUSION 

For all of these reasons, and after a de novo review of those portions of the 

Report and Recommendation to which the Plaintiff objected, the Court 

OVERRULES the objections, ECF No. 16, and ADOPTS AND AFFIRMS the 

Report and Recommendation, ECF No. 15. The plaintiff's statement of specific 

errors, ECF No. 13, is OVERRULED. The Clerk is directed to enter judgment in 

Case No. 2:12-cv-110 Page 9 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 9 of 10 PAGEID #: <pageID>
favor of the Commissioner. This case is DISMISSED. 

IT IS SO ORDERED. 

MICHAEL 

~w~ H. WATSON, JUDGE 

UNITED STATES DISTRICT COURT 

Case No. 2:12-cv-110 Page 10 of 10 

Case: 2:12-cv-00110-MHW-TPK Doc #: 18 Filed: 02/12/13 Page: 10 of 10 PAGEID #: <pageID>