IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tonya L. Swanson, :

Plaintiff, :

v. : Case No. 2:11-cv-1100

 : JUDGE ALGENON L. MARBLEY

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Tonya L. Swanson, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her application for supplemental security income. That

application was filed on April 29, 2008 and alleged that

plaintiff became disabled on April 1, 2008. 

After initial administrative denials of her application,

plaintiff was given a hearing before an Administrative Law Judge

on October 28, 2010. In a decision dated December 10, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on October 25, 2011, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on February 14, 2012. Plaintiff filed her

statement of specific errors on March 15, 2012. The Commissioner

filed a response on May 10, 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 10 through 29 of the record. Plaintiff, who was 44

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

the ninth grade (at times in special education classes),

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testified as follows.

Plaintiff has never worked. She testified she has never

been able to work because of her physical condition. She had one

job in 2000, working as a housekeeper for a nursing home, but was

fired after a week. She believed her most limiting conditions

were depression and problems with her feet, back and arms. Some

of her problems are caused by diabetes.

Plaintiff never suffered a back injury, but has pain in her

lower back. She became depressed after her father died, which

happened when she was twelve. She still takes medication for

depression and anxiety, and had been seeing a counselor once a

month prior to having some surgery. Even with medication, she

testified that she has four bad days a week when she is upset and

crying. 

From a physical standpoint, plaintiff cannot stand for long

periods of time due to pain in her legs. She can sit for longer

periods, but would have trouble with any job requiring reading. 

She also has difficulty getting along with people. She is able

to shop for groceries and handle money. She cleans her own

house. She has no friends to socialize with and no

transportation, but would visit her mother if she could. On a

daily basis she generally listens to the radio.

III. The Medical Records

The medical records in this case are found beginning on page

233 of the administrative record. The pertinent records can be

summarized as follows.

The first exhibit in the file, Exhibit 1F, is an assessment

of mental capacity done for the Ohio Department of Job and Family

Services by Dr. Paugh, plaintiff’s treating psychologist. It

appears to have been completed some time in 2007. Dr. Paugh

concluded that plaintiff was unemployable. Part of the form

records his observations, including the fact that she was tearful

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throughout the interview. The form also indicates that obesity

and diabetes were likely to be significant impairments, and that

plaintiff had a marked limitation in her ability to complete a

workday or workweek or to get along with others. (Tr. 233-37).

Dr. Paugh completed a similar form which appears as part of

Exhibit 3F (Exhibit 2F is a large collection of office notes,

most of which contain little information about plaintiff’s

conditions, symptoms or limitations), and which indicates a

similar set of limitations. (Tr. 289). Several years later, in

2010, he again assessed her functional capacity as including a

number of marked limitations. (Tr. 368-70). The narrative

support for this evaluation is also similar.

Plaintiff was evaluated by Dr. Donaldson, a consultative

examiner, on June 25, 2008. He noted that she was agitated and

intimidated by the process, but was cooperative in the

evaluation. She did relax as the interview progressed. She

reported difficulty sleeping and daily crying spells. She also

described frequent mood swings and diminished interest in

activities. Dr. Donaldson diagnosed a depressive disorder and an

anxiety disorder as well as a panic disorder without agoraphobia,

and rated plaintiff’s GAF at 50-55. The only psychological

limitations he noted were a moderate impairment in the ability to

attend to relevant stimuli, to relate to others, and to withstand

the stress and pressure of regular work activity. He appears to

have taken her report of chronic pain into account in making his

assessment. (Tr. 292-95).

The next assessment was done by Dr. Pawlarczyk, a state

agency reviewer (Exhibit 5F). He completed a form which, because

it is the subject of one of plaintiff’s two assignments of error,

will be described in some detail.

The form is a standard one used by the Social Security

Administration. Part I is entitled “Summary Conclusions,” and

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asks the reviewer to evaluate a number of different mental

activities which a claimant can sustain over a workday or

workweek, rating their severity from “Not Significantly Limited”

to “Markedly Limited” (there are also options to indicate that

there is either no evidence of such limitations or that they

cannot be rated on the basis of the available evidence). The

instructions also tell the reviewer to provide a “[d]etailed

explanation of the degree of limitation for each category” in

Section III of the form, which is entitled “Functional Capacity

Assessment.”

In the first section, Dr. Pawlarczyk noted the following

moderate limitations in eight work-related activities:

understanding and remembering detailed instructions, carrying out

detailed instructions, performing activities on a regular

schedule and being punctual, completing a workday and work week

without interruptions from psychologically-based symptoms,

interacting appropriately with the general public, accepting

criticism or instructions from supervisors, getting along with

co-workers, and responding appropriately to changes in the work

setting. He then completed Section III, the Functional Capacity

Assessment, in narrative form, noting first that plaintiff’s

statements about her psychological problems “appear credible in

nature, not in limitation.” He summarized the results of Dr.

Donaldson’s evaluation and gave “weight” to his opinions,

repeating the limitations reported by Dr. Donaldson. He then

concluded that “[t]he clmt would likely work best performing

simple, repetitive tasks in a static environment with less

frequent interaction with others.” On another form, he indicated

that the disorders he evaluated included an affective disorder,

borderline intellectual functioning, and an anxiety and panic

disorder. Using the “B” criteria of the Listing of Impairment,

he also rated plaintiff’s degree of limitation in four areas,

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finding moderate limitations in the areas of maintaining social

functioning and maintaining concentration, persistence and pace. 

(Tr. 297-314). Dr. Swain, another state agency reviewer,

affirmed this assessment. (Tr. 337).

Dr. Neiger, a state agency physician reviewer, completed an

assessment form relating to plaintiff’s physical condition. She

described the conditions she took into account as diabetes,

obesity, heel spurs, and plantar fasciitis. Generally, she found

that plaintiff could do medium work, but could never climb

ladders, ropes or scaffolds. (Tr. 338-45). That evaluation

conflicts with one done by plaintiff’s treating physician, Dr.

Russell, who limited plaintiff to a total of seven hours of

standing, walking and sitting in a work day. Dr. Russell also

said that plaintiff’s emotional stress was likely the most

limiting condition from which she suffered. (Tr. 364-65).

The remainder of the medical records are notes of treatment

and some hospital records. None of them appear to contain any

information which was significant to the ALJ’s decision, or which

is relied on by the parties in their memoranda.

 IV. The Vocational Testimony

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

administrative hearing. His testimony begins at page 30 of the

administrative record. He agreed that plaintiff had no relevant

past work history. 

Mr. Brown was asked some questions about a hypothetical

person who was 44 years old and had plaintiff’s education and

work experience. Additionally, that person had the physical and

mental work abilities reflected in Exhibits 5F and 10F, which are

the evaluations done by the state agency reviewers. Mr. Brown

testified that such a person could do a at least half of all

medium unskilled jobs, including jobs such as kitchen attendant

or office cleaner. He based his testimony on the assumption that

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the person could do simple, repetitive tasks in a static

environment and could interact with others on a less than

frequent basis. However, if the person were as limited as Dr.

Paugh stated in his reports, that person could not work due to

the number and type of marked restrictions he noted. The same

would be true if the person were limited to less than sedentary

work, but if the limitation were simply to sedentary work, along

with the mental restrictions discussed earlier in his testimony,

Mr. Brown stated that such a person could do half of the

unskilled sedentary jobs in the region, or approximately 2,500

jobs. Finally, a person who was off task for 20 to 25 percent of

the workday could not work competitively.

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 41

through 54 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

has never met the insured requirements of the Social Security Act

for purposes of disability benefits. Next, he found that

plaintiff had not engaged in substantial gainful activity from

her alleged onset date of April 1, 2008 through the date of the

decision. As far as plaintiff’s impairments are concerned, the

ALJ found that plaintiff had severe impairments including

insulin-dependent diabetes mellitus with retinopathy,

degenerative disc disease of the cervical spine, obesity,

depressive disorder, anxiety disorder, and borderline

intellectual functioning. The ALJ also found that these

impairments did not meet or equal the requirements of any section

of the Listing of Impairments (20 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

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capacity to perform a limited range of work at the medium

exertional level, but that she could never climb ladders, ropes

or scaffolds. Also, she had nonexertional limitations which

restricted her to the performance of simple, repetitive tasks in

a static work environment with infrequent interaction with

others. The ALJ accepted the vocational expert’s testimony that

someone with such limitations could perform approximately 20,000

unskilled medium jobs in the regional economy. 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 the

following issues. First, plaintiff argues that the ALJ based his

findings on incomplete answers to a hypothetical question;

specifically, on testimony from the vocational expert which did

not take into account a number of moderate psychological

limitations, based on the expert’s statement that he did not know

what “moderate” meant. Second, plaintiff argues that the ALJ

improperly discounted the opinions of her treating physicians and

improperly credited the opinions of the state agency reviewers. 

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 assignment of error assumes the accuracy

of Dr. Pawlarczyk’s opinion, but takes issue with the way in

which either the ALJ or the vocational expert interpreted it. As

plaintiff notes, that opinion including findings that plaintiff

had a number of moderate limitations in her ability to perform

work-related activities, including, among others, the ability to

complete a normal workday and work week without interruption from

psychologically-based symptoms. Plaintiff argues that the short

narrative description provided elsewhere in Dr. Pawlarczyk’s

report, and which was incorporated into the hypothetical question

asked of Mr. Brown, did not accurately capture all of these

limitations. When her counsel asked Mr. Brown if someone who was

off task 20-25% of the time could work, Mr. Brown said that she

could not. Based on this answer, plaintiff contends that had

these moderate limitations been correctly incorporated into the

question posed by the ALJ, Mr. Brown’s response about available

jobs would have been different, so that it was error for the ALJ

to have relied on Mr. Brown’s testimony in finding that plaintiff

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was not disabled. As primary support for this argument,

plaintiff relies on the decision in Ealy v. Comm’r of Social

Security, 594 F.3d 504 (6th Cir. 2010).

Ealy was a case in which the ALJ adopted the opinion of a

state agency reviewer who concluded, on Section I of the

evaluation form, that the claimant was moderately limited in

eight work-related categories (the same number as in this case),

most of which are the same limitations which Dr. Pawlarczyk

found. In Section III, the reviewer noted that the claimant

could understand and remember simple instructions, do simple

repetitive tasks in two-hour segments as long as pace was not of

critical importance, work in a non-public setting, and adapt to

routine changes in the workplace. The ALJ translated this

information into a hypothetical question which asked the

vocational expert to assume that the claimant was limited to the

performance of simple repetitive tasks and instructions in a nonpublic work setting. On appeal, the claimant contended that the

question did not accurately incorporate all of the limitations

which appeared in the state agency reviewer’s report.

The Court of Appeals found merit in this argument. The

decision noted that the “streamlined” hypothetical question made

no mention of the fact that, according to the reviewer’s comments

in Section III of the form, the claimant could only work in twohour segments and that speed and pace could not be critical job

requirements. Because of this discrepancy between the functional

capacity outlined by the reviewer and the question posed to the

vocational expert, the Court of Appeals held that a remand was

required.

This case differs from Ealy in one very important respect. 

In both cases, it was the functional capacity rating in Section

III of the report which the ALJ credited as accurately describing

the claimant’s psychological limitations. However, in Ealy, the

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ALJ simply failed to incorporate important parts of that

functional capacity rating into the hypothetical question posed

to the vocational expert. Here, by contrast, Dr. Pawlarczyk

explicitly set forth, in narrative form, exactly how he believed

that the moderate impairments he noted in Section I of the form

impacted plaintiff’s ability to work. The ALJ and the vocational

expert adopted that statement of functional capacity in its

entirety. Thus, there was no discrepancy between the reviewer’s

findings in Section III and the hypothetical question posed to

Mr. Brown, and this difference distinguishes this case from Ealy. 

Because the facts differ between the two cases, plaintiff’s

argument here is actually quite different from the one made in

Ealy. Essentially, plaintiff contends that Dr. Pawlarczyk

himself did not correctly translate his findings from Section I

of his report into the conclusions he drew in Section III. But

there is no support for that argument. Presumably, Dr.

Pawlarczyk was well aware of his findings that plaintiff had

moderate limitations in various areas, including dealing with the

normal stress of everyday work. He apparently accommodated that

restriction by limiting plaintiff to a “static” work environment

and to simple repetitive tasks. He did not, as did the reviewer

in Ealy, make any comments about the need to segment the work day

or to perform tasks where pace or speed were not critical. It

can hardly be error for the ALJ to accept the state agency

reviewer’s conclusions as to functional capacity just as that

reviewer stated them, nor would it have been appropriate for the

ALJ to second-guess what amounts to a medical judgment in that

area. Because no Ealy-type error occurred here, plaintiff’s

first assignment of error provides no basis for a remand. 

Next, plaintiff argues that the ALJ did not have adequate

reasons for accepting the opinions of the state agency reviewers

as opposed to the opinions of her treating psychologist and

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physician. As noted above, both Dr. Paugh and Dr. Russell

described limitations which, if accepted, would preclude work

either from a physical or psychological standpoint. Citing to

well-established case law and regulations (see, e.g., Harris v.

Heckler, 756 F.2d 431 (6th Cir. 1985) and 20 C.F.R. §404.1527(d))

which mandate that, absent good reasons to the contrary, the

opinions of treating sources must be afforded either controlling

or significant weight, plaintiff argues that the ALJ erred by

relying on the alleged absence of treatment notes as a basis for

discounting the opinions of the treating sources. More

specifically, she contends that the record contains a large

number of treatment notes from both Dr. Paugh and Dr. Russell

(and, of course, none from the state agency reviewers), and that

the ALJ incorrectly cited the scarcity of treatment notes as

support for his decision to give greater weight to the views

expressed by Dr. Pawlarczyk and Dr. Neiger.

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).

Here, as the Commissioner correctly notes, the fact that the

record contains a large number of documents which were generated

by plaintiff’s visits to Dr. Paugh or Dr. Russell does not

necessarily mean that there is any information in those notes

which explains why either treating source viewed plaintiff as

disabled. Here is how the ALJ discussed and resolved this issue. 

The three physical conditions which the ALJ recognized (and

plaintiff, in her statement of errors, does not argue for any

additional conditions) were diabetes, cervical disc disease, and

obesity. According to the ALJ, the first condition was often

described as “controlled” and was being effectively treated by

oral medication and insulin. Her retinopathy had developed only

recently, and there was no evidence. Plaintiff’s cervical spinal

condition was described in 2010 as moderate, and only mild

tenderness was noted on examination. She had not undergone any

treatment for this condition before that date. Lastly, there was

no evidence that her obesity (her highest recorded weight seems

to have been 294 pounds; she is 5'4" tall) “caused significant

difficulty with mobility or serious complications involving other

body systems.” (Tr. 49). The ALJ noted that Dr. Russell had

imposed relatively severe restrictions on plaintiff’s ability to

do many physical activities, but stated that none of the

treatment records supported these limitations. The ALJ concluded

that such restrictions either came from plaintiff’s own selfreported symptoms, without medical evidence to back them up, or

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had no support at all in the medical records - that is, there

were simply no physical conditions identified which would account

for such severe restrictions. 

The Court agrees with the Commissioner that the ALJ used a

valid basis for discounting the opinion of a treating physician. 

In fact, the presence or absence of medical evidence is one of

the criteria which 20 C.F.R. §404.1527(d) requires an ALJ to

consider. That regulation states, in part, that “we consider

[whether] a treating source’s opinion ... is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques ....” See also Walters v. Comm’r of Social Security,

127 F.3d 525 (6th Cir. 1997). Because this is an acceptable

reason for discounting a treating physician’s opinion, and

because plaintiff, despite her reference to numerous medical

records generated by her visits to Dr. Russell, has not actually

identified a single record which describes either conditions or

test results supporting restrictions that would make her unable

to do even sedentary work, the Court sees no error in the way in

which the ALJ evaluated the evidence concerning her physical

impairments.

With respect to plaintiff’s psychological impairments, the

ALJ provided this rationale for giving little weight to Dr.

Paugh’s opinions. He noted that although Dr. Paugh did express

opinions, “there are no outpatient treatment records submitted.” 

(Tr. 51). Thus, the ALJ found that although plaintiff had

various psychological conditions - which Dr. Donaldson, the

consultative examiner, had also diagnosed - the evidence about

those impairments was “limited.” (Tr. 51). However, one opinion

- that of Dr. Donaldson - was actually supported by medical

findings, and the ALJ gave that opinion significant weight. The

ALJ also noted that there had been a three-month gap in treatment

with Dr. Paugh, during which plaintiff did not report a need for

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treatment, and that there was a significant difference between

Dr. Paugh’s various evaluations and those of all of the other

mental health professionals who expressed opinions about the

degree of limitation which plaintiff was experiencing. The ALJ

also explicitly took into account plaintiff’s activities of daily

living. Again, these reasons for discounting Dr. Paugh’s

opinions are facially valid, and, again, plaintiff’s statement of

errors fails to identify a single treatment note which contains

any evidence supporting Dr. Paugh’s opinions. Given this lack of

documentation, and given the ALJ’s role in resolving conflicts in

the medical evidence, see, e.g., Burton v. Halter, 246 F.3d

762 (6th Cir. 2001), the Court concludes that the ALJ was

permitted to assign little weight to Dr. Paugh’s opinions and to

credit the findings of Dr. Donaldson and the state agency

reviewers. Thus, there is no merit in plaintiff’s second

assignment of error.

 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.

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

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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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