1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

DAVID N. CONKLIN, 

 Plaintiff, 

 

 Civil Action 2:12-cv-1172 

 v. Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

OPINION AND ORDER 

 Plaintiff, David N. Conklin, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) 

for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying 

his applications for social security disability insurance benefits and supplemental security 

income. This matter is before the Court for consideration of Plaintiff’s Statement of Errors (ECF 

No. 9), the Commissioner’s Memorandum in Opposition (ECF No. 14), and the administrative 

record (ECF No. 8). For the reasons that follow, Plaintiff’s Statement of Errors is 

OVERRULED and the Commissioner’s decision is AFFIRMED. 

I. BACKGROUND

 Plaintiff filed his applications for benefits on May 11, 2009, alleging that he has been 

disabled since September 15, 2008, at age 26. (R. at 147-53, 154-56.) Plaintiff alleges disability 

as a result of Factor V Leiden (blood-clotting disorder), epilepsy, hypertension, anxiety and 

depression. (R. at 189, 219.) Plaintiff’s applications were denied initially and upon 

reconsideration. Plaintiff sought a de novo hearing before Administrative Law Judge Ken B. 

Terry (“ALJ”). The ALJ held a video hearing on July 28, 2011, at which Plaintiff, represented 

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by counsel, appeared and testified. (R. at 42-67.) Lynne M. Kaufman, a vocational expert, also 

appeared and testified at the hearing. (R. at 67-74.) On August 22, 2011, the ALJ issued a 

decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. 

(R. at 20-29.) On October 23, 2012, the Appeals Council denied Plaintiff’s request for review 

and adopted the ALJ’s decision as the Commissioner’s final decision. (R. at 1-5.) Plaintiff then 

timely commenced the instant action. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony

At the July 28, 2011 hearing, Plaintiff testified that that his blood circulation issues would 

make it difficult for him to work. He noted that, because of his circulation issues, he cannot sit 

or stand for very long. (R. at 44.) He testified that he is constantly worried about getting a 

blood clot and becomes extremely anxious about his health problems. (Id.) He stated that he has 

trouble breathing and reported that he is often weak. When asked about his significant weight 

loss, Plaintiff responded that he stopped eating due to depression. (R. at 54.) Plaintiff reported 

that he still has anxiety attacks and manic episodes despite his medication regimen. (R. at 62.) 

 Plaintiff testified that he cannot perform daily activities independently. He had a home 

health aide for over a year, but did not at the time of the hearing. He testified that his family 

physician “took [the home health aide] away” in order to help him “try to get better.” (R. at 45.) 

He testified that he now does his own laundry, “a few pieces at a time.” (R. at 48.) He stated 

that his father grocery shops for him and his neighbors “help keep [him] stocked in food because 

[he] can’t get out.” (R. at 50.) He testified that he has difficulty with daily activities because of 

anxiety, noting he thinks of ten different things at once and that his “mind just gets crazy.” (R. 

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at 49.) Plaintiff testified that he tried to attend college in 2008, but was hospitalized twice during 

that time due to his blood-clotting issues. (R. at 53.) 

B. Vocational Expert Testimony

 Lynne M. Kaufman, testified as the vocational expert (“VE”) at the administrative 

hearing. (R. at 67-74.) The VE testified to Plaintiff’s past relevant employment as an accounts 

receivable/fraud investigator, at the skilled, sedentary exertional level; assistant fast food 

manager, which he performed at the heavy exertional level; telephone solicitor, at the semiskilled, sedentary exertional level; and customer service representative, at the skilled, sedentary 

exertional level. (R. at 67-68). 

 The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional 

capacity (“RFC”)1

 to the VE. The ALJ asked the VE to assume an individual with Plaintiff’s 

age, education, and work experience who was capable of a range of medium work with ability to 

lift and/or carry 50 pounds occasionally, 25 pounds frequently; sit for four hours at a time and a 

total of eight hours per day; stand and/or walk a total of two hours at a time but a total of eight 

hours per day; precluded from climbing ropes, ladders, and scaffolds but able to occasionally 

climb stairs and ramp and frequently balance, stoop, kneel, crouch, and crawl with no significant 

manipulative limitations; with no significant visual or communicative limitations; and would 

need to avoid moderate exposure to fumes and work hazards. Mentally, the hypothetical 

individual would be capable of simple to moderately complex tasks and could perform tasks in a 

routine work environment, but would not be able to work in an environment with a fast pace or 

strict production quotas. (R. at 71.) Based on this hypothetical, the VE acknowledged that 

 

1 The claimant’s “residual functional capacity” is an assessment of the most the claimant can do 

in a work setting despite his or her physical or mental limitations. 20 C.F.R. §404.1545(a); see 

Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).

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Plaintiff could perform his past relevant work as cashier and in accounts receivable and customer 

service work, along with other medium and light strength jobs such as a packer, with 500 local 

jobs and 325,000 nationwide jobs; office helper, with 600 local jobs and 300,000 nationwide 

jobs; and sales attendant, with 500 local jobs and 300,000 nationwide jobs. (R. at 71-73.) The 

VE acknowledged that if Plaintiff was off task 20% of the day or missed 2 or more days of work 

per month, he would not be able to work competitively. (R. at 73-74.) Finally, the VE testified 

that she believed her testimony was consistent with the Dictionary of Occupational Titles

(“DOT”). (R. at 73.) 

III. MEDICAL RECORDS2

 Mr. Spindler, M.S., examined Plaintiff on behalf of the state agency on June 30, 2009, to 

assess his mental status. (R. at 637-43.) According to Mr. Spindler, Plaintiff presented as 

depressed. He was talkative and maintained eye contact and basic composure as he spoke. 

Plaintiff reported that he had no problems with his eating habits and generally slept through the 

night. He indicated that he occasionally takes naps during the day. Plaintiff estimated that he 

has attempted suicide on five or six occasions and said the last attempt was four or five months 

before, when he took an overdose of medication. When asked if he was currently experiencing 

suicidal thoughts, Plaintiff said that he was and explained that he was tired of dealing with his 

health problems and life in general. He noted that he feels guilty about his past drug 

involvement. He described his energy level as poor. (R. at 639.) Plaintiff also stated that he felt 

 

2

 Plaintiff is not challenging the ALJ’s findings with respect to his physical impairments. 

Instead, in his Statement of Errors, Plaintiff sets forth one exclusive challenge to the ALJ’s 

decision. He contends that the ALJ did not take into account all of his limitations that result 

from his physical and mental impairments as found by the state-agency psychologists. The 

Court therefore focuses on the medical evidence that relates to Plaintiff’s non-exertional 

limitations affecting his performance of activities and his mental impairments. 

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anxious and worried about his health and his future. (R. at 640.) Mr. Spindler found his 

judgment to be adequate for most routine matters. (Id.) 

 Mr. Spindler diagnosed Plaintiff with an anxiety disorder with depression and 

polysubstance dependence, with sustained full remission for 18 months. (R. at 642.) He was 

assigned a Clinical Global Assessment of Functioning (“GAF”) score of 50.3

 (Id.) Mr. 

Spindler, however, found Plaintiff’s functioning to be “fairly well intact.” (R. at 641.) Mr. 

Spindler further noted that Plaintiff’s functional GAF was likely higher because: 

[Plaintiff] lives with a friend of the family and [he] helps with such household 

chores as washing dishes, sweeping floors, and doing the laundry and helps with 

the cooking. He has one friend with whom he enjoys talking and visiting. He has 

some outside interests and shops for things he needs. Thus from a functional 

perspective the GAF score is thought to be 65. 

(Id.) Mr. Spindler concluded that Plaintiff would be moderately impaired is his ability to 

withstand the stress and pressure associated with day-to-day activities due to his anxiety disorder 

and depression. (R. at 642.) 

On July 27, 2009, after review of Plaintiff’s medical record, Leslie Rudy, Ph.D., a stateagency psychologist, assessed his mental condition. (R. at 663-80.) In Section I of the Mental 

Residual Functional Capacity Assessment form (“Mental RFC Assessment form”), Dr. Rudy 

opined that Plaintiff was moderately limited in his ability to perform activities within a schedule, 

maintain regular attendance, and be punctual within customary tolerances. (R. at 677.) In the 

narrative assessment in Section III of the Mental RFC Assessment form, Dr. Rudy concluded 

 

3 The GAF scale is used to report a clinician’s judgment of an individual’s overall level of 

functioning. Clinicians select a specific GAF score within the ten-point range by evaluating 

whether the individual is functioning at the higher or lower end of the range. See American 

Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 33–34 (American 

Psychiatric Association, 4th ed. text rev. 2000) (DSM-IV-TR). A GAF score of 50 is indicative 

of “severe symptoms . . . or serious impairment in social, occupational, or school functioning 

(e.g., no friends, unable to keep a job) . . . .” Id. at 34. 

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that Plaintiff would ultimately be capable of performing simple to moderately complex tasks in a 

routine environment. (R. at 679.) On March 28, 2010, state-agency psychologist, Cynthia 

Waggoner, Psy.D., affirmed Dr. Rudy’s assessment in its entirety. (R. at 886.) 

 Plaintiff was treated at Six County, Inc. from August 2010 through at least June 2011. 

(R. at 1163-75, 1244-54.) Initially, Plaintiff reported that due to his medical problems, he has 

had anxiety and depression. (R. at 1163.) He noted that he often cries, has no motivation, and 

has no energy. (R. at 1166.) Plaintiff further noted that he sleeps a lot, withdraws, and 

experiences feelings of worthlessness and isolation. He stated he is depressed nearly every day. 

(R. at 1166.) Plaintiff also reported symptoms of anxiety, noting that he has difficulty being in 

crowds of people, gets shaky, and worries about everything. (Id.) Plaintiff reported issued with 

substance use and addiction. (Id.) Plaintiff was diagnosed with bipolar disorder and borderline 

personality disorder and assigned a GAF score of 51.4

 (R. at 1168.) Plaintiff was scheduled for 

medication evaluation and management. (Id.) Plaintiff also received counseling from a socialworker who reported in February 2001 that Plaintiff was making “some progress” towards his 

goals, but his mood was depressed and anxious. (R. at 1175.) 

 On May 18, 2011, Patricia Gainor, M.D., completed a Bipolar Disorder medical 

statement after seeing Plaintiff on April 22, 2011. (R. at 1176-79.) Dr. Gainor opined that 

Plaintiff’s bipolar disorder causes him marked restrictions of activities of daily living and 

extreme difficulty maintaining social functioning. (R. at 1177.) Dr. Gainor also opined that 

Plaintiff experiences deficiencies of concentration, persistence, and pace resulting in frequent 

failure to complete tasks in a timely manner and repeated episodes of decompensation. (Id.) Dr. 

 

4 Individuals with scores of 51-60 are classified as having “moderate symptoms . . . or moderate 

difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or 

co-workers).” DSM-IV-TR at 34.

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Gainor further opined that Plaintiff was extremely limited in his work abilities due to his 

psychiatric state. (R. at 1177-79.) 

IV. THE ADMINISTRATIVE DECISION 

 On August 22, 2011, the ALJ issued his decision. (R. at 20-29.) At step one of the 

sequential evaluation process,5

 the ALJ found that Plaintiff had not engaged in substantially 

gainful activity since September 15, 2008. (R. at 22.) The ALJ found that Plaintiff had the 

severe impairments of hypertension, myocardial infarction, a history of pulmonary embolism, 

coagulation disease, a history of transient ischemic attack, seizure disorder, a history of deep 

venous thrombosis, superficial venous thrombosis, depression, and anxiety. (Id.) He concluded 

that Plaintiff did not have an impairment or combination of impairments that met or medically 

equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. 

(R. at 23.) At step four of the sequential process, the ALJ evaluated Plaintiff’s RFC. The ALJ’s 

RFC is as follows: 

 

5 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. §404.1520(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant's residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant's age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. §404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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After careful consideration of the entire record, I find that the claimant has the 

residual functional capacity to perform a range of medium work as defined in 20 

CFR 404.1567(c) and 416.967(c). The claimant can lift and/or carry and push 

and/or pull a maximum of 50 pounds occasionally and 25 pounds frequently; sit 

for four hours at a time and a total of eight hours in an eight-hour workday; and 

walk and/or stand up to two hours at a time and a total of six hours in an eighthour workday. The claimant is precluded from climbing ladders, ropes, or 

scaffolds; more than occasional climbing of ramps or stairs; and more than 

frequent balancing, kneeling, stooping, crouching or crawling. The claimant is 

further limited to simple to moderately complex tasks in routine work 

environments but without fast-paced work or strict production quotas. 

(R. at 24.) In reaching his determination as to the restrictions related to Plaintiff’s mental 

impairments, the ALJ assigned “no weight” to the opinion of Dr. Gainor, finding Dr. Gainor’s 

opinion to be a consultative examination. (R. at 27.) The AJL further noted that there are no 

treatment notes from Plaintiff’s single visit with Dr. Gainor to identify Plaintiff’s condition or 

limitations associated with his mental impairments. (Id.) The ALJ also found no evidence from 

Dr. Gainor or the record to substantiate her opinion regarding Plaintiff’s restrictions. (Id.) The 

ALJ assigned “significant weight” to the psychological opinion of consultative examiner Mr. 

Spindler, finding his assessments generally consistent with the record. (Id.) The ALJ also 

afforded “significant weight” to the opinions of the state-agency psychologists, Drs. Rudy and 

Waggoner, noting their opinions were generally consistent with the record. (Id.) The ALJ 

concluded that Plaintiff’s medically determinable impairments could reasonably be expected to 

cause the alleged symptoms; however, he further found that Plaintiff’s statements concerning the 

intensity, persistence, and limiting effects of these symptoms were not credible to the extent they 

were inconsistent with the above RFC. (R. at 25.) 

 Relying on the VE’s testimony, the ALJ determined that Plaintiff was able to perform his 

past relevant work, along with jobs that exist in significant numbers in the state and national 

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economy. (R. at 27-29.) He therefore concluded that Plaintiff was not disabled under the Social 

Security Act. (R. at 29.) 

V. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 

1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

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where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 

VI. LEGAL ANALYSIS 

 In his Statement of Errors, Plaintiff asserts that the ALJ erred by affording significant 

weight to the opinions of Drs. Rudy and Waggoner but then ignoring, without explanation, parts 

of the state-agency psychologists’ opinions that were unfavorable to his decision. (ECF No. 9.) 

Specifically, Plaintiff posits that the ALJ erred in failing to account for Dr. Rudy’s check-box 

assessment that Plaintiff had moderate limitations in his ability to perform activities within a 

schedule, maintain regular attendance, and be punctual within customary tolerances. (Pl.’s 

Statement of Errors 16, ECF No. 9.) This argument reveals Plaintiff’s misunderstanding of the 

significance of those findings on the Mental RFC Assessment form. 

The Social Security Administration’s Programs Operations Manual System (“POMS”) 

clarifies that the “Moderately Limited” box Dr. Rudy checked is simply part of a worksheet that 

“does not constitute the [doctor’s actual] RFC assessment.” POMS DI § 24510.060(B)(2), 

available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060 (last visited Mar. 4, 2014); 

see also Velez v. Comm’r of Soc. Sec., No. 1:09-CV-0715, 2010 WL 1487599, at *6 (N.D. Ohio 

Mar. 26, 2010) (“In general, the decisions have respected the Commissioner’s argument the ALJ 

is not required to include the findings in Section I in formulating residual functional capacity”); 

Liggett v. Astrue, No. 08-1913, 2009 WL 189934, at *8 (E.D. Pa. Jan 27, 2009) (“Part I of the 

form completed by [the reviewing physician] is ‘merely a worksheet to aid in deciding the 

presence and degree of functional limitations and the adequacy of the documentation and does 

not constitute the RFC assessment.’”) (citing POMS §§ DI 24510.060, .061, .063, and .064). 

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Checking the box “Moderately Limited” notes only that the claimant’s capacity is impaired; it 

does not indicate the degree and extent of the limitation. See id. § 24510.063(B)(2). Rather, the 

medical consultant must record “the actual mental RFC assessment” in Section III. Id. at § 

24510.060(B)(4). 

 In accordance with the foregoing directives, Dr. Rudy recorded Plaintiff’s mental RFC 

assessment in Section III of the Mental RFC Assessment form, and provided a narrative 

discussion supporting the assessment. (R. at 679.) More specifically, Dr. Rudy opined in 

Section III that Plaintiff was “ca[pable] of simple to moderately complex tasks in a routine work 

environment.” (Id.) Dr. Waggoner affirmed Dr. Rudy’s Mental RFC Assessment form in its 

entirety. Having accorded their opinions “significant weight,” the ALJ incorporated the narrative 

assessment in Section III into his RFC determination, concluding that Plaintiff was capable of 

“simple to moderately complex tasks in routine work environments.”6

 (R. at 24.) Accordingly, 

the ALJ did not err when he failed to specifically account for the moderate limitation noted by 

the state-agency reviewing psychologists in Section I of the Mental RFC Assessment form and 

instead relied on the narrative portion of the Assessment when arriving at Plaintiff’s RFC. 

VII. CONCLUSION 

 In sum, from a review of the record as a whole, the Court concludes that substantial 

evidence supports the ALJ’s decision. Accordingly, the Court OVERRULES Plaintiff’s 

Statement of Errors and AFFIRMS the Commissioner of Social Security’s decision. 

IT IS SO ORDERED 

Date: March 6, 2014 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers 

 United States Magistrate Judge

 

6

 The ALJ included an additional limitation, noting that Plaintiff’s work could not be “fastpaced” or include “strict production quotas.” (R. at 24.) Thus, the ALJ’s RFC was even more 

restrictive than Dr. Rudy’s and Dr. Waggoner’s assessments. 

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