IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tammy J. Jones, :

Plaintiff, :

v. : Case No. 2:12-cv-110

 : JUDGE MICHAEL H. WATSON

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Tammy J. Jones, 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 September 23,

2009 and alleged that plaintiff became disabled on February 10,

2008. 

After initial administrative denials of her applications,

plaintiff was given a hearing before an Administrative Law Judge

on July 27, 2011. In a decision dated September 1, 2011, the ALJ

denied benefits. That became the Commissioner’s final decision

on December 15, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on April 17, 2012. Plaintiff filed her

statement of specific errors on May 17, 2012. The Commissioner

filed a response on June 18, 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 31 through 62 of the record. Plaintiff, who was 37

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

the ninth grade, testified as follows.

Since filing her applications, plaintiff had looked for work

and had been employed at a grocery store delicatessen as well as

with the Census Bureau. The latter job ended because it was only

temporary. The former job lasted two weeks, one of which was for

training. She was terminated due to a situation in which a

customer did not get waited on. Many years before, she had been

employed at a United Dairy Farmers store, and after that she

worked as a cashier, stocker, and in other positions at a grocery

store. Her only other relevant employment was as a cashier in a

department store.

Plaintiff testified that her primary problem was her heart

condition. She began taking medication in 2005 for an irregular

heartbeat and by 2009 had become so short of breath that she had

to be hospitalized. She had since undergone surgery to implant a

defibrillator. That has affected her ability to lift more than

ten pounds. She also suffered from diabetes, and testified that

she experiences dizziness, nausea, and sleepiness when her blood

sugar was not well-controlled. Her lower back was also a problem

and she had been depressed for a number of years. Her legs also

would swell due to a change in her heart medication. 

Plaintiff described her back pain as radiating into both

hips and both legs. Her legs had given out on occasion. She

stated that she slept very little due to bipolar disorder and had

problems with focus, memory and concentration. She also said she

heard voices daily and had long crying spells several times a

month. Plaintiff also claimed to have difficulty being around or

tolerating others without becoming impatient and angry. She

acknowledged that the only pain medication she took was Tylenol. 

In a normal day, plaintiff’s activities included taking care

of her three dogs, making phone calls, going to appointments, and

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occasionally cooking or going grocery shopping. She also read

and watched television. Most days, she was required to spend

several hours with her legs propped up due to swelling. 

III. The Medical Records

The medical records in this case are found beginning on page

227 of the administrative record. The pertinent records can be

summarized as follows.

Progress notes show that plaintiff had been treated over a

period of time for severe idiopathic cardiomyopathy. Notes also

showed a history of depression and diabetes. She was being

treated for these conditions with medication and was generally

seen every three months. She did visit the emergency room once

in 2009 complaining of back pain, and was discharged with

medications. Later the same year, she went to the ER twice, once

with pneumonia and once for shortness of breath. Ultimately, she

was diagnosed with congestive heart failure with pleural

effusions, but without lower extremity edema, and she was treated

with diuretics and other medications. (See Tr. 384-89). Her

ejection fraction at that time was 20-25%. 

On January 6, 2010, Dr. Condon saw plaintiff for a

consultative examination. Her chief complaints were noted to be

shortness of breath, congestive heart failure, and diabetes. She

described dizziness if she stood for 15-20 minutes. Her

peripheral pulses were 1/4 and a pulmonary function study was

normal. Dr. Condon thought her history was suggestive of

nonischemic cardiomyopathy. He thought she could perform

sedentary work of a routine nature but should avoid repeatedly

climbing steps or ramps or standing for more than 15-20 minutes

at a time. She also needed to avoid extremes of temperature and

pulmonary irritants. (Tr. 418-21).

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

functional capacity assessment form on January 19, 2010. He

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concluded that plaintiff could lift 20 pounds occasionally and

ten frequently, could stand or walk for at least two hours in a

workday, could sit for up to six hours, and could not climb

ladders, ropes or scaffolds. He believed she could frequently

balance and occasionally climb ramps or stairs, stoop, kneel,

crouch and crawl. He would also have limited her exposure to

hazards such as heights or machinery. (Tr. 433-440). Dr. Brock,

another state agency reviewer, later affirmed this assessment.

In February, 2010, plaintiff had an internal defibrillator

inserted. Her preoperative and postoperative diagnoses continued

to be cardiomyopathy. Several months later she was described,

from a cardiology point of view, as “reasonably stable.” (Tr.

518), and in October of that year, the shortness of breath she

experienced from her cardiac condition was characterized as

“mildly to moderately limiting.” (Tr. 575). By May of 2011, she

was “doing very well.” (Tr. 594).

Plaintiff was seen by Dr. Donaldson, a psychologist, for a

consultative examination on March 16, 2010. Her chief

psychological complaints were bipolar disorder and depression. 

She reported problems getting along with others but did not

believe that this problem had affected her work performance. 

During the interview, her affect was flat and her mood was

anxious. She reported crying spells and difficulty sleeping. 

She told Dr. Donaldson she had mood swings on a daily basis and

also heard voices daily. Dr. Donaldson diagnosed a generalized

anxiety disorder and bipolar disorder with psychotic features and

rated her GAF at 45-55. He thought she should be able to follow

one- or two-step job instructions and to perform repetitive

tasks. Her ability to relate to others was moderately limited,

as was her ability to withstand the stress and pressure of

everyday work. (Tr. 492-95). Dr. Lewin, a state agency

reviewing psychologist, generally concurred with these findings,

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stating that plaintiff could function in a routine setting

without rapid changes so long as she was asked to do only simple

tasks. She would function best away from others. (Tr. 497-513).

 IV. The Vocational Testimony

Ms. Kaufman, a vocational expert, also testified at the

administrative hearing. Her testimony begins at page 62 of the

administrative record. She characterized plaintiff’s past work

as ranging from light to heavy in exertional level, and as being

either unskilled or semi-skilled. 

Ms. Kaufman was asked some questions about a hypothetical

person who was able to lift up to twenty pounds occasionally and

could sit for up to six hours in a workday, and stand or walk up

to four hours. That person could not climb ladders, ropes or

scaffolds, could balance frequently and climb stairs, stoop,

kneel, crouch or crawl only occasionally, and could not be

exposed to moving machinery or unprotected heights. 

Additionally, that person could perform only simple, repetitive

tasks in a routine setting not involving rapid changes in duties

or processes and which involved only brief and superficial

contact with others. Ms. Kaufman testified that such a person

could not do any of plaintiff’s past work. However, such a

person who also was of plaintiff’s age and had her educational

background could do some light and sedentary jobs such as small

product assembler, final assembler, packer, and table worker.

Ms. Kaufman was also asked whether there would be jobs for

someone who was as limited as plaintiff described herself to be. 

She testified that such a person could not work competitively.

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 11

through 21 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

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met the insured requirements for disability insurance through

March 31, 2011, but not thereafter. Next, he found that

plaintiff had not engaged in substantial gainful activity from

her alleged onset date of February 10, 2008 through the date of

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

the ALJ found that plaintiff had severe impairments including

idiopathic cardiomyopathy, diabetes mellitus, bipolar affective

disorder and generalized anxiety disorder. 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

capacity to perform light work except that she was limited to

standing and/or walking for four hours in a workday. Further,

plaintiff could occasionally climb ramps and stairs but could not

climb ladders, ropes, or scaffolds. She could balance frequently

and occasionally stoop, kneel, crouch and crawl. She could not

work at unprotected heights, and work around hazardous machinery. 

Finally, she could perform only simple, repetitive tasks in a

routine setting not involving rapid changes in duties or

processes and which involved only brief and superficial contact

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

that someone with such limitations could perform some light and

sedentary jobs such as small product assembler, final assembler,

packer, and table worker, and that approximately 2,800 such jobs

existed in the local economy and approximately 310,000 such jobs

existed in the national 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 two

primary issues. First, she asserts that the ALJ did not properly

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assess her residual functional capacity, failing to mention the

findings of the consultative examiner and failing to include

certain restrictions in the hypothetical question posed to the

vocational expert. She also argues that her credibility was not

properly evaluated. The Court 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

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).

In support of her first statement of error, plaintiff argues

primarily that although the ALJ purported to give significant

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weight to Dr. Condon’s conclusions, he actually found that

plaintiff’s residual functional capacity was more accurately

described by the state agency reviewer, who thought that

plaintiff was capable of working at the light exertional level. 

The ALJ did find that plaintiff could do a reduced range of light

work, with walking or standing limited to four hours a day

instead of the six hours usually required for such work. 

Plaintiff contends that the ALJ did not adequately explain how

the conflict between Dr. Condon’s opinion and Dr. Teague’s

evaluation was resolved, and suggests that either Dr. Teague or

the ALJ may have been unaware that Dr. Condon limited plaintiff

to sedentary work.

The Commissioner responds by pointing out that there was a

slight conflict between the findings of these two physicians, but

that it is the ALJ’s prerogative to resolve conflicts in the

medical evidence, and that there was a reasonable basis for

resolving the conflict in favor of the slightly more optimistic

assessment of Drs. Teague and Brock - namely, that Dr. Condon’s

findings (and there were not many positive findings from his

examination) did not support a limitation to sedentary work, and

that his opinion must have been based on plaintiff’s own report

of symptoms. That report, in turn, was found by the ALJ not to

be fully credible because it was not supported by or consistent

with the objective medical evidence.

The ALJ did not provide an overly detailed explanation for

the reason that the opinions of Drs. Teague and Brock were

credited in full and that Dr. Condon’s opinion was “given great

weight [only] to the extent that it is consistent with the above

assessed residual functional capacity.” However, the ALJ did

explain that the other doctors’ opinions were “consistent with

the medical evidence of record.” (Tr. 19). An ALJ is permitted

to make such resolutions of conflicting evidence, and there is no

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specific requirement that this type of decision be set forth in

the same type of detail required when rejecting the opinion of 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). 

The major differences between these competing opinions are,

as plaintiff points out, Dr. Condon’s limitation of plaintiff to

sedentary work and his view that she could not stand for more

than fifteen or twenty minutes due to dizziness, that she should

not work around unprotected heights, and that she should not be

exposed to irritants or pollutants. It is worth noting that this

case would not have been decided differently had the ALJ limited

plaintiff to sedentary work; the ALJ found, in accordance with

the vocational expert’s testimony, that plaintiff could perform a

substantial number of sedentary as well as light jobs, and

plaintiff is a younger individual who would not be considered

disabled even if limited to sedentary work. With respect to the

other limitations recited in Dr. Condon’s report, although,

again, the ALJ did not directly express his reasons for not

adopting them, because there is no requirement that he do so -

especially where, as here, his discussion of the evidence makes

clear that he was fully aware of and understood Dr. Condon’s

report - plaintiff’s argument is, in essence, that a reasonable

person could not have disregarded these restrictions because the

medical evidence compelled a finding that they existed. The

short answer to that argument is that the medical evidence is not

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so unequivocal; the standing limitation was based on plaintiff’s

own report of symptoms and not any objective evidence, and the

other limitations either were derived from that self-report or

not supported by any evidence that, for example, plaintiff had a

breathing disorder that was aggravated by environmental factors

as opposed to her cardiomyopathy. The ALJ found no severe

breathing disorder, and there is no objective evidence of one. 

Under these circumstances, and given that the two state agency

reviewers also concluded that these restrictions were not

necessary, the ALJ’s decision not to include them in the

hypothetical question posed to the vocational expert has

substantial support in the record.

Plaintiff also takes issue with the mental component of the

ALJ’s residual functional capacity finding. She argues that

merely by limiting her to the performance of only simple,

repetitive tasks in a routine setting not involving rapid changes

in duties or processes, the ALJ did not adequately account for

her documented deficiencies in the areas of concentration,

persistence, and pace. In particular, she notes that Dr. Lewin,

the state agency reviewing psychologist, stated in her report

that plaintiff could “concentrate short term.” That limitation,

however, did not appear to factor into either the hypothetical

question posed to the vocational expert or into the ALJ’s

ultimate conclusion about her mental residual functional

capacity. This error, she contends, would require a remand.

There is some ambiguity in exactly what portion of Dr.

Lewin’s report the ALJ accepted. At one point, the

administrative decision recites that the residual functional

capacity finding in that decision “accept[s] and adopt[s] the

opinion of the ... (BDD) medical experts,” including Dr. Lewin. 

At another point, the decision states that Dr. Donaldson’s report

was given “great weight” to the extent that it is consistent with

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the ALJ’s residual functional capacity finding. Dr. Donaldson’s

report is, in fact, consistent with a finding that omits any

reference to the “concentrate short term” limitation; he found

that plaintiff’s “ability to perform repetitive tasks does not

appear to be limited.” (Tr. 495). Given that the ALJ could have

resolved this fairly minor conflict in favor of Dr. Donaldson’s

views, and that it is not necessarily the case that a limitation

on the ability to concentrate longer than the “short term”

(whatever that may imply) is actually inconsistent with the

ability to “function in a routine setting without rapid changes”

- which is how Dr. Lewin described plaintiff’s functional

capacity, see Tr. 513 - any error in omitting this one

restriction from the hypothetical question appears harmless, and

any remand would not result in a different decision. Cf. Wilson

v. Comm’r of Social Security, 378 F.3d 541, 547 (6th Cir. 2004). 

Plaintiff’s first claim of error therefore lacks merit.

Plaintiff’s second statement of error deals with the way in

which the ALJ evaluated her credibility. She argues that the

administrative decision fails to “build a bridge” between the

medical evidence and the ALJ’s credibility finding and that the

ALJ engaged in a form of “reverse engineering” - determining

first that plaintiff could work, and then “looking for a

credibility analysis that would support this conclusion,” see

Plaintiff’s Statement of Errors, Doc. 13, at 14 - which,

according to plaintiff, is an analytical method condemned by,

among other decisions, Bjornson v. Astrue, 671 F.3d 640 (7th Cir.

2012). The Commissioner’s response to this argument does not

address the Bjornson case, but point out that the ALJ is the

primary decider on issues of credibility, that the ALJ fully

discussed plaintiff’s testimony, and that his resolution of any

credibility issues is reasonably supported by the record and

consistent with Social Security Ruling 96-7p.

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Bjornson, a decision written by Judge Posner, and which took

issue with the use of what he described as “a piece of opaque

boilerplate” (which can also be found in the ALJ’s decision in

this case), rests on the premise that the language in that piece

of boilerplate “implies that ability to work is determined first

and is then used to determine the claimant’s credibility.” Id.

at 645. This, however, “gets things backwards,” id., because it

suggests that the ALJ first determined the claimant’s ability to

work without taking the credibility of his or her symptoms into

account, and then rejected any testimony which would be

inconsistent with the ability to work simply because the decision

that the claimant can work has already been made. According to

the Bjornson court, such an approach is inconsistent with SSR 96-

7p(4). However, it appears that the ultimate decision in that

case, which was to reverse and remand, was based not solely upon

the use of this boilerplate or “template” language, but on the

ALJ’s failure to marshal adequate support for his finding that

the claimant was not disabled when both the medical evidence and

the claimant’s own testimony strongly suggested otherwise.

Bjornson does not appear to have been cited by any decision

from the Sixth Circuit Court of Appeals. This Court has cited it

once, in Williams v. Astrue, 2012 WL 4364147 (S.D. Ohio September

24, 2012)(Watson, J.), concluding that although the ALJ in that

case used the same language, “unlike the ALJ in Bjornson the ALJ

in Plaintiff's case goes on to explain the credibility

determination in greater detail,” and affirming the ALJ’s

credibility finding because it was “supported by substantial

evidence in the record.” Williams, supra, at *2-3. That

approach is consistent with the way in which the Court of Appeals

for the Seventh Circuit has applied Bjornson; for example, in

Filus v. Astrue, F.3d. , 2012 WL 3990651, *4 (7th Cir.

September 7, 2012), that court said “[i]f the ALJ has otherwise

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explained his conclusion adequately, the inclusion of this

language can be harmless.” Consequently, this Court will make

the same inquiry here, examining the reasons given by the ALJ for

finding plaintiff less than fully credible, and deciding if the

record provides support for that finding.

SSR 96-7p requires an ALJ, when assessing a claimant’s

credibility, to “consider the entire case record, including the

objective medical evidence, the individual's own statements about

symptoms, statements and other information provided by treating

or examining physicians or psychologists and other persons about

the symptoms and how they affect the individual, and any other

relevant evidence in the case record,” and cautions that “[a]n

individual's statements about the intensity and persistence of

pain or other symptoms or about the effect the symptoms have on

his or her ability to work may not be disregarded solely because

they are not substantiated by objective medical evidence.” While

the boilerplate language which appears in the ALJ’s decision does

cite, as a factor, inconsistencies between plaintiff’s testimony

and the objective medical record, that is not the only matter

which the ALJ considered. The ALJ specifically took into account

the conservative nature of her care, especially with respect to 

mental health issues, her daily activities, the fact that she

takes only Tylenol to address her back pain, and the fact that no

physician concluded that she was disabled. See TR. 17-18. 

Although, as plaintiff argues, there are differences between

being able to perform normal daily activities such as, in this

case “driving an automobile, caring for pets, reading, using a

computer and a cell phone, and keeping ... appointments,” and

being able to work on a sustained basis, such activities may

legitimately be considered by an ALJ, along with other factors,

as evidence which can counter a claim of totally disabling

symptoms. See, e.g., Foreman v. Commissioner of Social Sec.,

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2012 WL 1106257 (S.D.Ohio Mar 31, 2012)(Watson, J.), citing

Walters v. Comm’r of Social Security, 127 F.3d 525, 531 (6th

Cir.1997) and Felisky v. Bowen, 35 F.3d 1027, 1036 (6th

Cir.1994). That is what occurred here, and the Court is not free

to substitute its judgment for that of the ALJ on this factintensive issue. For that reason, plaintiff’s second claim of

error also lacks merit. 

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

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.

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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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