IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Melissa S. Nolan, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0477

Commissioner of Social : JUDGE ALGENON L. MARBLEY

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Melissa S. Nolan, 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

January 8, 2008, and alleged that plaintiff became disabled on

July 27, 2001.

After initial administrative denials of her applications,

plaintiff was given a hearing before an Administrative Law Judge

on August 26, 2010. In a decision dated October 27, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on April 9, 2012, when the Appeals Council denied

review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on August 24, 2012. Plaintiff filed her

statement of specific errors on October 15, 2012. The

Commissioner filed a response on December 18, 2012. No reply

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

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 42 years old at the time of the

administrative hearing and who has a GED and some post-high

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school business education, testified as follows. Her testimony

appears at pages 31-51 of the administrative record.

Plaintiff last worked at Speedway for several months in

2007. She was a food steward, a job which required her to be on

her feet, and she had trouble due to back and foot problems. The

prior year she worked at a different service station as a cashier

but was still limited by her foot problems even though she was

allowed to sit on a stool while working. In 2001 she was working

as a cashier at a Certified station, and tried to come back to

that job after hurting her back, but was unable to do so. 

Plaintiff testified that she had back surgery in the L5-S1

area in 2004 and that she had pain both above and below the

surgery site. Her pain was aggravated by activity and not helped

by medication. She was limited in her ability to reach overhead,

and spent three to four hours every day lying down and using a

heating pad. She also broke her right foot, and it caused some

problems for her if she were on her feet too long. Additionally,

she used an inhaler for breathing problems. She was trying to

quit smoking and to lose weight. 

As far as her abilities go, plaintiff said she could stand

for twenty minutes to half an hour before her back starts to hurt

and her leg starts to burn. She could sit for half an hour to 45

minutes but would need a ten to fifteen break after doing so

before she could start working again. Her lifting was limited to

about five pounds. She could do some household chores like

dishes and cooking but needed to be seated to do so. She could

not carry a basket of laundry or make the bed, and she used a

shower chair. On an average day, she would read or watch

television or sit on her front porch and visit with neighbors. 

III. The Medical Records

The medical records in this case are found beginning on page

329 of the administrative record. The pertinent records can be

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summarized as follows. Because all of plaintiff’s claims of error

relate to her psychological rather than her physical limitations,

the Court will focus its review of the records primarily on

psychologist Allan Rain’s evaluation, which is the only

assessment of plaintiff’s mental functional capacity made by an

examining source.

Mr. Rain examined plaintiff on May 21, 2008. She reported

to him a childhood traumatic experience which was still producing

symptoms of PTSD such as flashbacks, nightmares, intrusive

thoughts, hypervigilance, and revivification experiences. She

also described symptoms of depression, anxiety, and dysphoria. 

She also said she was irritable and easily frustrated. She had

recently begun to take medication for her psychological

conditions. She also reported domestic violence in her first

marriage. 

Plaintiff told Mr. Rain about her history of suffering an

on-the-job injury in 2000, followed by an award of workers’

compensation benefits. She was still in pain which was somewhat

alleviated by medication. She had never had psychiatric

intervention or mental health counseling. She also described for

him a long history of cocaine abuse and exhibited memory problems

and difficulty concentrating. She lost two different jobs due to

issues with her drug use. 

Dr. Rain observed that plaintiff was morbidly obese,

noticeably passive-dependent, and depressed and defeated. Her

affect was blunted or flat “and in a manner that seemed organic.” 

She had trouble understanding even simple inquiries and

instructions. Testing showed serious problems with recall and

concentration. She stated she had no active social life, outside

hobbies, or interests. 

Mr. Rain concluded, based on his examination, that plaintiff

suffered from a mixed personality disorder and PTSD as well as a

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mood disorder. He thought her ability to related to others was

markedly impaired, as was her ability to understand and carry out

simple instructions, to maintain attention, concentration,

persistence and pace and to withstand the stressors and pressures

associated with daily work. Finally, he suggested that her

ability to manage benefits, should they be awarded, was

“problematic.” (Tr. 389-95).

Dr. Finnerty, a state agency reviewer, completed a mental

residual functional capacity report for the period from January

8, 2008 to June 17, 2008. He found only moderate limitations,

and no marked limitations, in various work-related areas,

including the ability to maintain attention and concentration for

extended periods, to work on schedule, to work closely with

others, to relate to the public, to respond to changes in the

work setting or to supervision, and to complete a work day or

work week without interruption from psychologically-based

symptoms. In the narrative portion of his report, he reviewed

Mr. Rain’s assessment but disagreed with his conclusions as

inconsistent with both other evidence in the file and plaintiff’s

own statements. He concluded that plaintiff could work in a low

stress environment that did not require work at a consistent

pace. (Tr. 396-99). The only mental impairment he found to have

existed prior to 2008 was a substance addiction disorder. 

 IV. The Vocational Testimony

A vocational expert, Dr. Oestreich, also testified at the

administrative hearing. His testimony begins at page 51 of the

record. He characterized plaintiff’s past work as a cashier as

light and unskilled.

Dr. Oestreich was asked to assume that plaintiff was limited

to working at the light exertional level but could not stand or

walk more than two hours in an eight-hour work day, could

occasionally climb ramps and stairs but could never climb

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ladders, ropes or scaffolds, could occasionally stoop, crouch,

and crawl, and needed to avoid concentrated exposure to extreme

cold, dust, fumes and gases. From a psychological viewpoint, he

was asked to assume that plaintiff could understand, remember and

carry out simple tasks and instructions, could maintain

concentration and attention for two-hour segments over and eighthour work period, could respond appropriately to supervisors and

coworkers, and could adapt to simple changes and avoid hazards in

a setting without strict production standards. With those

restrictions, plaintiff could, in Dr. Oestreich’s view, not do

her past work due to the standing requirements and exposure to

fumes, but she could perform a number of unskilled sedentary jobs

such as inspector, hand packer, and assembler, and a total of

about 6,000 jobs in the Columbus area. However, if plaintiff

needed to take unscheduled breaks and to lie down for up to four

hours during the work day, she could not do even those jobs. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 21 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements for disability benefits through June

30, 2008. Next, plaintiff had not engaged in substantial gainful

activity from her alleged onset date of July 27, 2001 through the

date of the decision. As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had severe impairments

including depression, right foot pain, degenerative disc disease

at L5-S1, asthma, chronic obstructive pulmonary disease, and

obesity. The ALJ also found that these impairments did not, at

any time, meet or equal the requirements of any section of the

Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix

1).

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Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff could work at the light

exertional level but could not stand or more than two hours or

walk more than two hours in an eight-hour work day, could

occasionally climb stairs but could never climb a rope or ladder,

could occasionally stoop, crouch, and crawl, and needed to avoid

concentrated exposure to extreme cold, dust, fumes and gases. 

Mentally, she was able to understand, remember and carry out

simple tasks and instructions, was able to maintain concentration

and attention for two-hour segments over an eight-hour work

period, could respond appropriately to supervisors and coworkers,

and could adapt to simple changes and avoid hazards in a setting

without strict production standards. The ALJ found that, with

these restrictions, plaintiff could not perform any of her past

relevant work, but she could perform those jobs identified by the

vocational expert, such as inspector, packer, and assembler. 

Consequently, the ALJ concluded that plaintiff was not entitled

to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises three

issues. She argues (1) the ALJ had no legitimate basis for

rejecting the opinion of the sole psychological evaluator, Mr.

Rain; (2) the hypothetical question posed to Dr. Oestreich was

improper because it failed to incorporate all of the limitations

found by Mr. Rain; and (3) the ALJ erred in finding that

plaintiff’s report of debilitating psychological symptoms was not

credible. 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

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"'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).

All of plaintiff’s claims of error (with one minor exception

having to do with Dr. Finnerty’s report) are logically related. 

If the ALJ did not have good reasons to reject Mr. Rain’s

opinions - and particularly if he had to find that plaintiff’s

description of her psychological limitations were credible - then

Mr. Rain’s view of plaintiff’s limitations should have been

accepted and either used as the basis for a finding that

plaintiff’s condition met or equaled a condition described in the

Listing of Impairments, or incorporated into the hypothetical

question posed to Dr. Oestreich. The Court therefore must

examine the ALJ’s rationale for discounting Mr. Rain’s opinions.

In determining that plaintiff’s psychological impairment did

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not meet the Listing, the ALJ necessarily rejected Mr. Rain’s

view of the severity of plaintiff’s limitations, finding that she

did not have any marked limitations, but rather only mild

restrictions in activities of daily living and moderate

difficulties with social functioning and with concentration,

persistence and pace. In support of those conclusions, the ALJ

found that plaintiff was able to care for herself, to cook, to do

simple grocery shopping, and to appear at the consultative

examination appropriately dressed with acceptable hygiene and

grooming. He also noted that she told Mr. Rain she got along

fine with neighbors, the public, and authority figures in

general. He did not explain why he thought she had only moderate

difficulties with respect to concentration, persistence and pace. 

(Tr. 13).

A more complete explanation of the ALJ’s reasoning appears

in the section of the administrative decision devoted to the

ALJ’s residual functional capacity finding. There, the ALJ

stated that Mr. Rain’s 

opinion cannot be given any weight, as it is not

supported by and is inconsistent with the greater

weight of the medical evidence in this record, to which

this psychologist did not have access. Rather, this

psychologist, who did not have an ongoing treatment

relationship with the claimant, based his opinion on a

one-time examination of the claimant. He appears to

have relied primarily on the claimant’s subjective

complaints, which, as noted below, are not entitled to

full credibility. A consultant cannot be expected to

make an accurate assessment when he has not been

provided with accurate information.

(Tr. 15). The ALJ adopted Dr. Finnerty’s opinion as being

“consistent with and well supported by the evidence of the record

as a whole ....” Id. 

In terms of assessing plaintiff’s credibility, the ALJ

determined that the objective medical evidence did not support

many of her claimed symptoms. He also noted that she appeared to

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be able to engage in a wide variety of activities, including

taking care of three young children, which were inconsistent with

total disability; that she engaged in questionable behavior,

including driving without a license and abusing or selling pain

medications; and that she made inconsistent or exaggerated

reports of her condition and situation to medical providers. 

Based on these factors, the ALJ did not fully credit her

testimony, but did incorporate those complaints which he found to

be consistent with the record into his residual functional

capacity finding. See Tr. 18-19.

Plaintiff argues that the ALJ did not have a substantial

basis either for his decision to discount Mr. Rain’s opinions or

her subjective reports of psychological symptoms. In support of

this argument, she asserts that Mr. Rain’s opinions were wellsupported by the evidence, including his observations made during

the examination, the tests he administered, and plaintiff’s

reported history of trauma and associated symptoms, and she

disagrees that his views were based primarily upon her own

statements about her functional abilities. She also argues that

the ALJ did not explain what evidence Mr. Rain did not have

access to and substituted his own judgment for Mr. Rain’s with

respect to certain matters such as test results. She discounts

Dr. Finnerty’s report as conclusory in nature, and contends that

the amount of training and experience possessed by Dr. Finnerty,

which was one of the reasons the ALJ gave for preferring his

opinion to Mr. Rain’s, did not serve to distinguish him from Mr.

Rain, who was also chosen by the Commissioner to perform a

consultative examination and who must have possessed similar

qualifications. Finally, she attacks the ALJ’s credibility

finding, although her argument on that point does not address in

detail the specific reasons given by the ALJ for finding her less

than fully credible.

A consultative examiner, like Mr. Rain, is not considered a

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treating source, and his opinion need not be given controlling

weight in the absence of contrary evidence. Rather, such an

opinion 

is to be weighed considering all of the factors

identified in 20 C.F.R. § 404.1527(d)(1) through (6).

These factors include, among others, the examining

relationship, the treatment relationship, the

supportability of the opinion by relevant evidence, the

consistency of the opinion with the record as a whole,

and the specialization of the source providing the

opinion. See 20 C.F.R. § 404.1527(d)(1) through (6).

Bray v. Astrue, 2012 WL 71015, *3 (E.D. Ky. Jan. 10, 2012). 

Further, although the record must contain substantial evidence

supporting the rejection or discounting of a consultative

examiner’s opinion, social security regulations “require[] ALJs

to give reasons for only treating sources.” Smith v. Comm’r of

Social Security, 482 F.3d 873, 876 (6th Cir. 2007). On the other

hand, when an ALJ completely ignores evidence from non-treating

sources that is inconsistent with the ALJ’s residual functional

capacity assessment, a remand may be required. See, e.g.,

Johnson v. Astrue, 2010 WL 5559542 (N.D. Ohio Dec. 3, 2010),

adopted and affirmed 2010 WL 5478604 (N.D. Ohio Dec. 30, 2010).

Here, the ALJ did not ignore Mr. Rain’s opinion. Rather, he

expressly rejected it as unsupported by any other evidence in the

record - which is an accurate reflection of that evidence - and

as inconsistent with the assessment of Dr. Finnerty. He also

correctly noted that a good part of Mr. Rain’s opinion was based

on plaintiff’s subjective report of symptoms. While it is true

that Mr. Rain also administered some testing, Dr. Finnerty had

the opportunity to review the same test results when he reached

his conclusions, and the ALJ was entitled to rely on his

professional opinion as to the significance of those results. 

Mr. Rain also commented that there was a wide variance between

the severity of plaintiff’s symptoms and her functional ability,

and the ALJ was entitled to rely on factors such as the absence

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of any treatment for psychological conditions and the fact that

plaintiff had been able to work, and to attempt trial periods of

work, without ever being discharged or having to discontinue work

due to psychologically-based symptoms. Further, the ALJ

articulated reasons for finding plaintiff a less than credible

source of information about her symptoms and functionality, and

plaintiff’s statement of errors does not take issue with any

specific reason why the ALJ reached that conclusion. The ALJ

appears to have considered factors which are appropriate under 20

C.F.R. §404.1529(c)(3) and articulated them sufficiently to

justify the Court’s decision to give substantial deference to the

ALJ’s decision on this issue. See, e.g. Felisky v. Bowen, 35

F.3d 1027 (6th Cir. 1994). Overall, the Court finds no error in

the way in which the ALJ dealt with the conflict in the evidence

concerning plaintiff’s psychological impairment and her ability

to function in the workplace.

The only other issue plaintiff raises concerns the ALJ’s

adoption of Dr. Finnerty’s opinion. Plaintiff claims that Dr.

Finnerty indicated different and more significant limitations in

functioning than the ALJ found to exist. In particular,

plaintiff argues that Dr. Finnerty’s view that she was limited to

working in a low-stress environment and performing tasks which

did not require her to work at a consistent pace are not the same

as the ALJ’s finding that she could maintain attention and

concentration over two-hour periods, respond appropriately to

coworkers and supervisors, and adapt to simple changes and avoid

hazards in a work setting without strict production standards. 

In response to this argument, the Commissioner’s memorandum

states that the ALJ’s residual functional capacity findings,

while not reflecting Dr. Finnerty’s opinion word for word,

“reasonably accounted for the credible evidence of Plaintiff’s

mental limitations, including the opinion of Dr. Finnerty, by

incorporating restrictions related to simple tasks and reduced

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pace, including limitations designed to reduce stress and account

of concentration deficits by accommodating production at a

reduced pace and breaks every two hours.” Commissioner’s

Memorandum, Doc. 16, at 16.

In support of this argument, the Commissioner cites to

Groves v. Astrue, 2012 WL 10385 (S.D. Ohio Jan. 3, 2012). In

Groves, the evidence indicated a moderate impairment in

persistence due to pain and depression. The ALJ characterized

this limitation as consistent with doing non-complex and low

stress work (which was “defined as no fixed production; no above

average pressure for production; no non-routine work; no

hazardous work”), and the Court found that this characterization

appropriately addressed the restrictions imposed by the

claimant’s mental health specialist. Groves, 2012 WL 10385, at

*9. Clearly, the restrictions imposed here by the ALJ on no more

than simple changes in the work, no hazards, and no strict

production standards, are the functional equivalent of low-stress

work, which is one of the two limitations found in Dr. Finnerty’s

narrative. Groves therefore provides partial support for the

Commissioner’s argument.

There is case law supporting the balance of that argument as

well. For example, in Scott v. Comm’r of Social Sec., 2013 WL

237296, *18 (N.D. Ohio Jan. 3, 2013), adopted and affirmed 2013

WL 237192 (N.D. Ohio Jan. 22, 2013), the court found that by

limiting the claimant to work that did not have production quotas

and which involved only simple routine tasks, the ALJ “adequately

capture[d] any restrictions to Plaintiff's ability to sustain

concentration, persistence or pace.” While it is true that a

hypothetical question which omits “speed- and pace-based

restrictions completely” may be fatally flawed, see Ealy v.

Comm’r of Social Security, 594 F.3d 504, 516 (6th Cir. 2010),

that is not what happened here. This Court, similar to the Scott

court, finds that the ALJ’s residual functional capacity

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determination adequately accounted for limitations in pace by

eliminating strict production quotas, allowing for breaks every

two hours, and eliminating a number of factors which would cause

disruption to the steady flow of work. Under these

circumstances, there is no reversible error in the way in which

the ALJ accounted for the mental limitations described by Dr.

Finnerty. The ALJ’s decision is therefore supported by

substantial evidence in all material respects.

 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.

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).

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/s/ Terence P. Kemp 

 United States Magistrate Judge

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