UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

WESTERN DIVISION AT DAYTON 

CARLETTA WILSON, 

Plaintiff, 

vs. 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION, 

Defendant. 

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Case No. 3:17-cv-00289 

District Judge Walter H. Rice 

Magistrate Judge Sharon L. Ovington 

REPORT AND RECOMMENDATIONS1

I. Introduction

After concluding that she could no longer work as of March 28, 2013, Plaintiff 

Carletta Wilson turned to the Social Security Administration (SSA) for assistance by 

applying for Disability Insurance Benefits and Supplemental Security Income. The SSA 

denied Plaintiff’s applications based mainly on Administrative Law Judge Elizabeth A. 

Motta’s conclusion that she was not under a “disability” as the Social Security Act defines 

it. (Doc. #6, PageID #s 40-52). 

Plaintiff argues that ALJ Motta’s decision is flawed due to her (1) inadequate 

findings about Plaintiff’s need to elevate her legs, (2) unreasonable findings about Plaintiff’s 

daily activities, (3) unjustified reliance upon record-reviewing physicians’ opinions, (4) 

 

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 Attached is a NOTICE to the parties regarding objections to this Report and Recommendations. 
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failure to evaluate Plaintiff’s disability status before she underwent foot surgery, and (5) 

failure to adequately consider Plaintiff’s cervical impairment. Plaintiff seeks an Order 

reversing the ALJ’s decision and remanding this matter for payment of benefits. 

The Commissioner finds no error in ALJ Motta’s decision, no merit in Plaintiff’s 

contentions, and substantial evidence supporting the ALJ’s decision. The Commissioner 

therefore asks the Court to affirm the ALJ’s decision. 

II. “Disability” Defined and Standards of Review 

 The Social Security Administration provides Disability Insurance Benefits and 

Supplemental Security Income to individuals who are under a “disability,” among other 

eligibility requirements. Bowen v. City of New York, 476 U.S. 467, 470 (1986); see 42 

U.S.C. §§ 423(a)(1), 1382(a). The term “disability”—as defined by the Social Security 

Act—has specialized meaning of limited scope. It encompasses “any medically 

determinable physical or mental impairment” that precludes an applicant from performing a 

significant paid job—i.e., “substantial gainful activity.” 42 U.S.C. §§ 423(d)(1)(A), 

1382c(a)(3)(A); see Bowen, 476 U.S. at 469-70. 

Present judicial review of ALJ Motta’s decision proceeds along two lines: whether 

she applied the correct legal standards and whether substantial evidence supports her 

findings. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. 

Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). Review for substantial evidence 

is not driven by whether the Court agrees or disagrees with the ALJ’s factual findings or by 

whether the administrative record contains evidence contrary to those findings. Gentry v. 

Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 
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F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ’s factual findings are upheld if the 

substantial-evidence standard is met—that is, “if a ‘reasonable mind might accept the 

relevant evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting 

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence 

consists of “more than a scintilla of evidence but less than a preponderance....” Rogers, 486 

F.3d at 241 (citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722. 

If the ALJ applied incorrect legal criteria, reversal may be warranted even though the 

record contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. 

Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. 

III. Plaintiff and Her Testimony

A. 

 Plaintiff was 39 years old on the date her asserted disability began (March 28, 2013). 

This age placed her in the category of a “younger” person under social security regulations. 

20 C.F.R. § 404.1563(c).2

 She graduated from high school and worked over the years as a 

bartender/cook and as a cleaning supervisor. 

 Plaintiff has struggled with ongoing foot problems since at least March 2013. She 

underwent foot surgery on three occasions. In March 2013, she had left-foot surgery due to 

a large fluid mass. (Doc. #6, PageID #s 350-59). In February 2015, she underwent rightfoot surgery. Id. at 472-74. And, in January 2016 she had left-foot surgery that included 

Achilles tendon lengthening. Id. at 740-45. The ALJ found, “Although she has a history of 

 

2 Citations to social security regulations will identify the pertinent Disability Insurance Benefits regulation 

with full knowledge of the corresponding Supplemental Security Income regulation. 
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foot pain and surgical treatment for bilateral foot abnormalities, she has recovered well from 

these procedures ....” Id. at 46. Based on this level of recovery, the ALJ concluded that 

Plaintiff could perform a reduced range of light work beginning on, and since, her claimed 

disability onset date in March 2013. Id. 

B. 

Plaintiff testified during a hearing held by ALJ Motta that she has 2 children (ages 23 

and 19), and 2 grandchildren (a 3-year old and 3-week old). All 5 of them lived together at 

the time of the ALJ’s hearing. 

Plaintiff acknowledged that she stopped working her bartender-cook job because she 

was let go when the business closed. (Doc. #6, PageID #73). 

When asked to identify her disability, Plaintiff explained to the ALJ that she cannot 

be on her feet for a prolonged time, and her “back plays a factor in there, too, with lifting 

and everything else.” Id. She underwent surgery on both feet, twice on her left foot. She 

anticipated needing 2 more surgeries on her left foot. Plaintiff was told that she needed foot 

surgeries to be able to walk. She emphasized, “But I will never be pain free....” Id. at 77. 

Her foot pain prevents her from walking on her tiptoes because her ankles and feet “are so 

sore.” Id. She also has degenerative arthritis in her ankles and “pretty much in all her major 

joints.” Id. at 84. 

Plaintiff’s back troubles exist at L5 and L6, which she described as “deteriorating.” 

Id. at 74. She has degenerative arthritis in these areas of her spine. She noted, “They also 

found a rotating disc in the center of my back and they think I have a pinched nerve in my 

upper back because my arms have been going quite numb....” Id. She takes prescription-
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narcotic medication for her lower-back pain. She indicated that the pain medication helps 

“[t]o an extent ....” Id. at 75. Her back pain is a constant “low dull ache but sometimes 

[with] shooting pains.” Id. at 83. Sometimes her arms go numb: “It starts with the right and 

then it slowly goes down the left.” Id. When her arms get numb, she cannot pick up 

anything without dropping it. She experienced numbness each day. She noted that her arms 

were half numb during the ALJ’s hearing. She also testified that trying to do exercises she 

learned during physical therapy helps at times loosen up her neck. Id. at 83. 

Plaintiff “sometimes” babysits her grandchildren. Id. at 76. She watches cartoons 

with them and cooks quick meals for them (“like in the microwave”). Id. She “sometimes” 

helps change the baby’s diaper. Id. She does not take them to the park or anyplace outside 

except to the backyard where her granddaughter can play on a swing set. Plaintiff noted that 

walking is a limitation for her. She estimated that she can walk about half a block. 

Plaintiff sorts and folds laundry after it is clean. Her children carry the laundry. See 

id. at 77. She tries to plant flowers in a pot so she does not have to bend down—she has 

trouble getting up. Id. at 78. She goes to the store for short periods of time and occasionally 

visits her mother. She sees her boyfriend daily, but they only go out to eat once in a great 

while. 

Plaintiff can dress herself but has trouble putting on her socks and tennis shoes 

because she can’t easily bend. She can take a shower or bath, although her shower is 

equipped with bars because she has fallen in the shower. Id. at 82. She uses Facebook and 

sometimes reads a book, magazine, or newspaper. 
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Plaintiff testified that her foot problems have worsened since her asserted disability 

onset date in March 2013. Id. at 77. She needs to elevate her legs to reduce her pain and 

swelling in her feet, especially in her left foot. She elevates her legs through the day and 

places an ice pack on them if necessary. She also has “a compression thing I’m to wear and 

sometimes the boot. I have to walk in the boot. But that’s to relieve..., the stress on the 

ankle.” Id. at 79-80. During a normal day, she has to elevate her leg about 3 to 4 times for 

20 minutes at a time or longer. She elevates her feet above the level of her heart. 

Plaintiff has good and bad days. During a good day, she does not have to go 

anywhere and does things at her own pace. On good days, she’ll fold the laundry or try to 

do the dishes. It takes an hour to do the dishes because she must take breaks by walking 

away and siting down. She told the ALJ, “It’s just a slow process.” Id. at 81. During a bad 

day, she needs to lie down, take an extra pain pill, elevate her legs much longer than usual, 

and put a heating bad on her back. When this happens, she will lie down for about 30 to 45 

minutes. Id. at 82. 

IV. “Disability” Defined and ALJ Motta’s Decision 

In reviewing the evidence connected to Plaintiff’s application for benefits, ALJ 

Motta utilized the 5-step analysis enumerated in social security regulations. See 20 C.F.R. § 

404.1520(a)(4); see e.g., Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 931 (6th Cir. 2018). 

Some of the ALJ’s more significant conclusions occurred at Steps 2 and 3 where she found 

that Plaintiff’s severe impairments—“bilateral foot deformities with residuals of surgery; 

mild to moderate lumbar degenerative disc disease; moderate obesity; and asthma”—plus 

her non-severe impairments did not automatically qualify her for benefits under the 
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Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. (Doc. 

#6, PageID #s 42-44). 

At Step 4, the ALJ concluded that Plaintiff could perform the “less than the full range 

of light work,” or, more specifically: 

lift up to 20 pounds occasionally and 10 pounds frequently; standing and 

walking limited to combined to total of four hours in an eight-hour workday; 

only occasional postural limitations, such as climbing stairs/ramps, balancing, 

stooping, kneeling, crawling, or twisting side to side, but with no crouching as 

part of job duties; no climbing ropes, ladders or scaffolds; no exposure to 

hazards, such as dangerous machinery, driving as part of job duties, or working 

at unprotected heights; no exposure to vibration; no concentrated exposure to 

extremes of heat, cold, wetness, or humidity; and no concentrated exposure to 

dust, odors, fumes, gases, chemicals, or poorly ventilated areas. 

Id. at 44-45. Given these limited abilities, Plaintiff could no longer engage in her past 

relevant work. Id. at 50. 

Continuing to step 5, ALJ Motta determined that Plaintiff could perform a significant 

number of jobs available in the national economy. Her ability to do such jobs meant she 

was not under a disability and not eligible to receive Disability Insurance Benefits or 

Supplemental Security Income. Id. at 51-52. 

V. Discussion 

A. 

Plaintiff explains that her “allegations of disability center on her severe bilateral foot 

pathologies.” (Doc. #8, PageID #853). She contends that the ALJ (1) failed to reasonably 

account for her foot swelling and need for elevation, (2) erred by requiring objective 

evidence to support her asserted need to elevate her leg due to swelling, and (3) 

unreasonably assessed her daily activities. 
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Addressing Plaintiff’s first contention, the Commissioner argues that the ALJ 

considered the evidence related to Plaintiff’s impairments and adequately explained that she 

could perform light work with limitations that reasonably accounted for her impairments, 

including her foot impairments. The Commissioner also asserts that the ALJ properly 

considered Plaintiff’s lower-extremity swelling by observing it was an appropriate symptom 

during her periods of recovery from surgery. And, the ALJ correctly recognized, according 

to the Commissioner, that Plaintiff’s treating physician, Safet Hatic, M.D.’s, instructions to 

elevate her leg during recovery from surgery, combined with Plaintiff’s subjective 

allegations, did not require a limitation to elevate her leg or an ultimate finding of disability. 

(Doc. #12, PageID #876). 

Addressing Plaintiff’s second argument, the Commissioner maintains that the ALJ 

did not reject Plaintiff’s subjective allegations based solely on a lack of supporting objective 

evidence. The ALJ instead discounted Plaintiff’s subjective statements based on other 

reasons including her inconsistent statement that she stopped working because she was laid 

off, not because she was under a disability, the Commissioner asserts. 

 The parties’ contentions mainly concern the ALJ’s assessment of Plaintiff’s 

subjective descriptions of her symptoms, particularly the intensity, persistence, and limiting 

effects of the symptoms she has reported. In years past, this assessment would have delved 

into the murky realms of credibility. E.g., Rogers, 486 F.3d 246-49; cf. Carradine v. 

Barnhart, 360 F.3d 751, 753 (7th Cir. 2004) (“The administrative law judge must ... 

evaluate the applicant’s credibility with great care. His responsibility is all the greater 

because determinations of credibility are fraught with uncertainty....” (citation omitted) ). 
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More recently, the Social Security Administration eliminated its use of the term 

“credibility” and clarified “that subjective symptom evaluation is not an examination of an 

individual’s character....” Soc. Sec. R. 16-3p, 2016 WL 1119029, *1 (effective on March 

28, 2016).3 Consequently, character is not destiny in social security cases. Destiny for 

social security claimants is controlled by longstanding rules: “There is no question that 

subjective complaints of a claimant can support a claim for disability, if there is also 

objective medical evidence of an underlying medical condition in the record.” Jones v. 

Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (citing Young v. Sec'y of HHS, 925 

F.2d 146, 150-51 (6th Cir. 1990); Duncan v. Sec'y of HHS, 801 F.2d 847, 852 (6th Cir. 

1986) ); see 20 C.F.R. § 404.1529(a). Determining whether such objective evidence exists 

does not consider the actual severity of a claimant’s pain or other symptoms. Ruling 16-3p 

makes this point crystal clear by way of example: 

[I]f an individual has a medically determinable impairment established by a 

knee x-ray showing mild degenerative changes, and he or she alleges extreme 

pain that limits her ability to stand and walk, we will find that individual has a 

medically determinable impairment that could reasonably be expected to 

produce the symptom of pain. We will then proceed to step two of the two-step 

process, even though the level of pain an individual alleges may seem out of 

proportion with the objective medical evidence. 

Ruling 16-3p, 2017 WL 5180304, *3. 

 Proceeding to the second step of symptom analysis—where severity is investigated—

ALJs consider “the intensity and persistence of the symptoms to determine the extent to 

 

3 The Social Security Administration explains, “Our adjudicators will apply this ruling when we make our 

determinations and decisions on or after March 28, 2016....” Soc. Sec. R. 16-3p, 2017 WL 5180304, n. 27. 

As a result, Ruling 16-3p applies in the present case because the ALJ issued her decision on June 15, 2016. 

See id. 
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which the symptoms limit an individual’s ability to perform work-related activities....” 20 

C.F.R. § 404.1529(a); Ruling 16-3p, 2016 WL 1119029, at *2. Many relevant factors may 

apply, including for instance, “the claimant’s daily activities; the location, duration, 

frequency, and intensity of symptoms; factors that precipitate and aggravate symptoms; the 

type, dosage, effectiveness, and side effects of any medication taken to alleviate the 

symptoms....” Rogers, 486 F.3d at 247 (citations omitted); see Ruling 16-3p (citing factors 

in 20 C.F.R. § 404.1529(c)(3) ). 

 In the present case, the ALJ first found that Plaintiff’s “medically determinable 

impairments could reasonably be expected to cause some of her alleged symptoms.” (Doc. 

#6, PageID #46). This is correct. The record chronicles the course of Plaintiff’s foot 

abnormalities with a plethora of objective evidence4 that confirms the existence of her 

medically determinable impairments. Chronologically, as the ALJ accurately observed, an 

x-ray and MRI in March 2013 revealed that Plaintiff had a large fluid mass on her left foot. 

This led to her foot surgery in March 2013. In January 2014, Dr. Hatic reported that she had 

a pes cavis in her left midfoot, abnormal positioning of the hallux, development of left-sided 

equinus, and an antalgic gait. In July 2014, she had a profound cavernous deformity with 

progressing equinus and an MRI of her right ankle showed a longitudinal split tear in her 

peroneous brevis tendon, leading to surgery in February 2015. In May 2015, an MRI of 

Plaintiff’s right ankle showed markedly abnormal morphology and chronic tendonopathy of 

 

4 The Regulations broadly define “objective” evidence to include laboratory findings, x-rays, 

electrophysiological studies, and “signs” consisting of “anatomical, physiological, or psychological 

abnormalities which can be observed ....” 20 C.F.R. §§ 404.1528-.1529(a).
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her Achilles tendon without tears. An October 2015 MRI of Plaintiff’s left ankle and foot 

showed osteoarthritis with fluid collection at the surgical sight of her first toe and soft tissue 

of her second toe. In January 2016, Dr. Hatic performed left equinus-varus-corrective 

surgery with osteotomy and lengthening of her Achilles tendon. (Doc. #6, PageID #s 46-

47). Because physicians have diagnosed Plaintiff’s various foot abnormalities based on 

examination, x-ray, and MRI, and treated these problems with surgery and prescription 

medication, the record contains sufficient objective evidence to show that she has an 

underlying medical condition that “could reasonably be expected to produce [her alleged] 

pain and other symptoms.” 20 C.F.R § 404.1529(b)(1); see Jones, 336 F.3d at 475-76 (“The 

doctors in this case diagnosed Ms. Jones with various disorders, medicated her for those 

disorders, and have therefore supplied the requisite objective medical condition to support 

Ms. Jones’s claim for disability.”); Soc. Sec. R. 16-3p, 2017 WL 5180304 *3 (effective 

March 28, 2016) (providing the example of a person alleging extreme knee pain whose xray showed mild degenerative knee changes; such person has a medically determinable 

impairment that could reasonably expected to produce pain). Given all this evidence, the 

ALJ symptom analysis got off on the right foot at step one by concluding that Plaintiff’s 

medically determinable impairments could reasonably be expected to cause some of her 

alleged symptoms. 

At step two of the symptom analysis, the ALJ found that Plaintiff’s description of her 

alleged symptoms and limiting effects “are not entirely consistent with the medical evidence 

and other evidence in the record ....” (Doc. #6, PageID #46) (italics added). After 
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discussing much of the evidence, the ALJ similarly concluded, “the claimant’s complaints 

of disabling symptoms are not fully supported by the record....” Id. at 49 (emphasis added). 

To the extent the ALJ required all the medical evidence to confirm Plaintiff’s 

subjective descriptions of her swelling and pain, she measured the intensity, persistence, and 

limiting effects of Plaintiff’s symptoms using a higher standard than the Regulations 

mandate. Rather than requiring a individual’s statements to be in line with all the medical 

evidence (as the ALJ says, “not entirely consistent with the medical evidence”; “not fully

supported by the record,” id. (emphasis added)) , the Regulations explain, “In determining 

whether you are disabled, we consider all your symptoms, including pain, and the extent to 

which your symptoms can reasonably be accepted as consistent with the objective medical 

evidence and other evidence....” 20 C.F.R. § 404.1529(a)(1). The Regulations further 

promise, “we will not reject your statements about the intensity or persistence of your pain 

or other symptoms or about the effect your symptoms have on your ability to work solely 

because the available objective medical evidence does not substantiate your statements.” Id. 

at § 404.1529(c)(2). 

Even if the ALJ did not impose an incorrect (higher) standard to evaluate Plaintiff’s 

symptoms, the evidence the ALJ discusses and cites is not substantial and provides only de 

minimis support for her rejection of Plaintiff’s alleged symptoms. Indeed, the ALJ largely 

relied on isolated physicians’ notes to confirm her findings without adequately considering 

the contrary evidence. The ALJ moreover, overlooked that physicians have struggled for 

many years to efficaciously treat Plaintiff’s foot and ankle symptoms with—at best—shortterm, temporary reductions of her symptoms rather than improving her abilities to perform 
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and tolerate work activities such as standing, walking, and carrying weight. See Brooks v. 

Comm'r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013) (“[A] substantiality of evidence 

evaluation does not permit a selective reading of the record.” (citation omitted)); see also 

Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 435 (6th Cir. 2013) (reversing where the 

ALJ “cherry-picked select portions of the record” rather than doing a proper analysis); Loza 

v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (“ALJ must consider all the record evidence and 

cannot ‘pick and choose’ only the evidence that supports his position.”). 

The ALJ twice observed that after Plaintiff’s surgeries, physicians noted “good 

healing of the surgical incision” and “surgical incisions healing nicely.” (Doc. #6, PageID

#46 (citing PageID #482)). Such notations say little, if anything, about the level of 

Plaintiffs’ foot and ankle pain and swelling after her surgeries. Although a poorly healing 

surgical scar could certainly cause pain and swelling, the fact that Plaintiff’s surgical scars 

were healing well says nothing probative about the effects of the more subterranean surgery 

physicians performed in her lower extremities. 

Similarly, the ALJ referred to Plaintiff’s “minimal erythema,” id. at 46, and “some 

erythema” that was resolving, id. at 47. Erythema refers to “[r]edness of the skin.... [A] 

common but nonspecific sign of skin irritation.” Taber’s Cyclopedic Medical Dictionary, p. 

704 (19th Ed. 2001). The presence of minimal or some erythema shines no light on the 

severity of Plaintiff’s symptoms that resulted from surgeon’s deeper dives into her lower 

extremities. 

More significantly, the ALJ repeatedly relied on brief notes in Plaintiff’s medical 

records without considering them in context and without recognizing that the notes are 
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vague and relative to the intensity and persistence of Plaintiff’s ongoing anatomical foot and 

ankle problems. For example, the ALJ observed that Plaintiff’s first surgeon, Gregory 

Barbour, D.P.M., noted “only moderate—and reduced—edema [swelling] ....” (Doc. #6, 

PageID #46). This same page of the medical record indicated that Plaintiff’s left foot was 

“still very tender to touch—hypersensitive.” Id. at 225. She also told Dr. Barbour she 

experienced pain, tingling, burning that was worse at night. Id. Dr. Barbour believed that 

Plaintiff was experiencing this tingling and burning. This is seen in his diagnostic 

assessment of neuralgia, neuritis, and radiculitis, unspecified and his decision to prescribe 

Gabapentin. He also accepted Plaintiff’s report about her pain, diagnosing her with “pain in 

limb” and prescribing Percocet, which contains oxycodone, a narcotic pain reliever. See 

http://www.mayoclinic.org (search for “oxycodone and acetaminophen”). Dr. Barbour 

instructed Plaintiff to continue icing and elevating her left foot and to “use shoes and 

activities as tolerated.” Id. The ALJ gave no indication that she considered this evidence of 

Plaintiff’s significant ongoing symptoms when selecting the isolated note that described her 

swelling as moderate and viewing this note as evidence inconsistent with Plaintiff’s alleged 

symptoms. 

The ALJ also relied on Dr. Barbour’s note in September 2013 that documented 

Plaintiff had mild left-foot pain when wearing shoes and with activities. Id. at 46 (citing 

PageID #s 223-24). This noted alone provides only a modicum of support for the ALJ’s 

decision to find Plaintiff’s alleged symptoms not as severe as she alleged because Dr. 

Barbour also noted in this treatment record that Plaintiff was still experiencing “burning 

pain” similar to her pre-surgery burning pain. Yet, the ALJ overlooked the conflict between 
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these notes and, instead, erred by selecting only the one that favored her non-disability 

finding over the other note that supported the severity of Plaintiff’s alleged symptoms. 

Even if it can be said that the ALJ drew a reasonable conclusion about the 

significance of Plaintiff’s mild pain in September 2013, she was soon having additional 

serious left-foot problems documented by Dr. Hatic in early January 2014. Here, again, the 

ALJ took an overly selective view of the evidence by not recognizing the consistency of Dr. 

Hatic’s medical findings with Plaintiff’s subjectively described symptoms. The ALJ noted, 

in part, “Dr. Hatic recommended inserts and/or braces.” Id. at 46. This is not a precise or 

reasonable reading of Dr. Hatic notes. Rather than recommending inserts and/or braces, Dr. 

Hatic explained, “I think given her foot anatomy, we may need to consider the role of some 

inserts and/or bracing. I am a little bit concerned with the degree of equinus that she is 

developing on this left side. I think that is primarily compensatory at this point, but again, 

that can be a real problem in the future as it can limit our ability to brace the foot and get her 

into supportive shoe gear.” Id. at 410. This explanation says much more about Plaintiff’s 

left-foot problems than the ALJ’s view that “Dr. Hatic recommended inserts and/or braces.” 

Id. at 46. In addition, Dr. Hatic found that (1) Plaintiff has “a dramatic amount of equinus”5

that had worsened since her March 2013 surgery; (2) she has “very profoundly high arches 

and really she has an underlying acute ... chronic cavernous deformity...,” the same in both 

her feet; and, (3) she is “exquisitely tender around [her surgical] scar... and has a significant 

 

5 “Equinus” is “a condition characterized by tiptoe walking on one or both feet. It is usually associated with 

clubfoot.” http://medical-dictionary.thefreedictionary.com (search for “equinus”). 
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amount of hyperesthesia and dysesthesias in that area.”6

 Id. at 409. Dr. Hatic also reported 

that Plaintiff “has really failed to make the kind of recovery [from her March 2013 left-foot 

surgery] that she had hoped. She has had increasing amounts of pain. She described it as a 

burning, sharp, and stabbing pain that seems to be worse when she is barefoot, but it is very 

difficult for her to get into any kind of shoe because of both swelling and pain....” Id. In 

summary, Dr. Hatic observed, “this is a very difficult and challenging problem ....” Id. The 

ALJ’s brief discussion of Dr. Hatic’s January 2014 treatment notes, see id. at 46, fails to 

address the consistency of his findings and his acceptance of Plaintiff’s subjective 

descriptions of her symptoms and their limiting effects. 

Dr. Hatic later treatment notes, in September 2014, reveal that Plaintiff’s right foot 

was becoming “increasingly unstable.” Id. at 402. He said, “She has difficulty even with 

bracing....” Id. This means that Dr. Hatic’s previous reference to foot bracing (in January 

2014) did not lead to efficacious treatment of Plaintiff’s foot abnormalities and symptoms. 

As a result, Dr. Hatic’s September 2014 reference to bracing—or recommendation of 

bracing (as the ALJ saw it)—cannot be reasonably viewed as inconsistent with Plaintiff’s 

alleged symptoms. 

The ALJ also took out of context Dr. Hatic’s note in March 2016, indicating that 

Plaintiff “overall is doing really well.” (Doc. #6, PageID #47 (quoting PageID #655)). 

This general description must be read in relation to the serious nature of Plaintiff’s ongoing 

 

6 “Hyperesthesia” refers to “[a]n increased sensitivity to sensory stimuli, such as pain or touch.” Taber’s 

Cyclopedic Medical Dictionary, p. 983. “Dysesthesia” refers to “1. Impairment of any sense, especially of 

the sense of touch. 2. a painful, persistent sensation induced by gentle touching of the skin.” http://medicaldictionary.thefreedictionary.com (search for “dysesthysia”). 
17

recovery from her third surgery because Dr. Hatic reported, “Again, I think she has some 

recovery ahead of her. I would continue to progress her weightbearing program in the boot 

walker with physical therapy ....” Id. at 656. Thus, at the time Plaintiff was “doing really 

well overall,” she was not able to fully weight her left foot, needed to use a boot walker to 

improve her ability to put weight on her left foot, and was being treated with ongoing 

physical therapy. Similarly, a month later, the ALJ explained, “According to Dr. Hatic, the 

claimant was not progressing as he had hoped, but he said she was ultimately ‘doing 

ok[ay].’” Id. at 47 (ALJ’s brackets). Here again, the ALJ erred by selecting evidence to 

support her conclusion that Plaintiff’s subjective allegations were inconsistent with the 

medical evidence without considering contrary evidence appearing in the same treatment 

notes. Dr. Hatic described Plaintiff’s treatment at that time as “just trying to get her to a 

point where we have her pain and hypersensitivity under control so she can really make 

progress with therapy.” Id. In this context, a note saying Plaintiff was “doing okay,” says 

nothing meaningful about the intensity and persistence of her symptoms. 

The ALJ also failed to consider the fluctuating and progressive nature of Plaintiff’s 

foot abnormalities and symptoms. Instead, the ALJ she found, “Although [Plaintiff] has a 

history of foot pain and surgical treatment for bilateral foot abnormalities, she has overall 

recovered well from these procedures ....” Id. at 46. This conflicts with evidence the ALJ 

overlooked such as Dr. Hatic’s report in December 2014 that he was again discussing 

surgery with Plaintiff. He diagnosed her with pain in her “joint, ankle and foot”; synovitis 

and tenosynovitis; “Lesion of plantar nerve”; “Equinus deformity of foot, acquired”; and 

“Cavus deformity of foot, acquired.” Id. at 495. He wrote, “Again, I do not realistically 
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think we are ever going to be able to have her pain free. Our goal here is a mechanically 

improved foot maintaining motion; hopefully, helping her with pain and recurrent issues 

overall.” Id. The ALJ did not take account of the ongoing—if not permanent—nature of 

Plaintiff’s pain when assessing the persistence of her symptoms. 

The ALJ’s consideration of Plaintiff’s daily activities is also problematic. She found 

Plaintiff’s daily activities “inconsistent with [Plaintiff’s] complaints of symptoms and 

limitations” and supportive of the finding that Plaintiff could perform a limited range of 

light work. Id. at 48-49. Yet in reaching these conclusions, the ALJ unreasonably stretched 

Plaintiff’s statements and testimony. This is seen in several of the ALJ’s daily-activity 

findings. The ALJ found, for instance, that Plaintiff could “prepare some meals and do light 

household chores, albeit with rest breaks or with the help of her children.” Id. at 49. 

Without more specific information about these what these activities entail, they say little 

about her work abilities particularly when a limited number of breaks are provided during an 

eight-hour workday and when the help of her children would not be available to her in the 

workplace. 

Plaintiff said a little more about her babysitting activities: she changed diapers, made 

“quick easy meals and watched cartoons with them.” Plaintiff explained that she uses the 

microwave to cook—an activity nowhere near the ALJ’s finding that she could perform a 

limited range of light work. Changing diapers without more specific information does not 

say how long she can stand, walk, or sit during an eight-hour workday, and her ability to 

watch cartoons says more about how much she loves her grandchildren than it does about 

her work abilities. The ALJ further noted that Plaintiff did not take her grandchildren 
19

outside but did watch them play in the backyard where there is a swing set. Such sedentary 

activity is reasonably consistent—not inconsistent—with her descriptions of the intensity, 

persistence, and limiting effects of her symptoms 

The ALJ also relied on Plaintiff’s description of her occupation in December 2014 

and January 2015 as “homemaker.” Id. at 48 (citing PageID #s 494, 695). Although the 

term “homemaker” by itself might in a different case be probative of a person’s work 

abilities, it does not reasonably do so in Plaintiff’s treatment notes because the notes say 

nothing specific about the work Plaintiff did as a homemaker or how it impacted her 

symptoms. 

The ALJ also pointed to Jeffrey Rogers, D.O., indication in January 2015 that 

Plaintiff lived with her daughter and grandchildren and was fully functional. Id. at 49 

(citing PageID #438). The fact that she lived with her daughter and grandchildren says 

nothing meaningful about her work abilities. Dr. Rogers’ indication that she was fully 

functional (“fully funcitonal” [sic]) is not connected to any particular activity, let alone a 

work activity or light-work activities. It is wholly unclear what Dr. Rodgers meant by fully 

functional in terms of Plaintiff’s work abilities and limitations, and there is no indication 

that he thought she was fully functional in performing full-time work, even a reduced range 

of light work. And, Dr. Rogers commented, “She will likely never be pain free. The goal of 

upcoming surgery is to improve function and hopefully lessen the pain.” Id. at 438. 

Considering Dr. Rogers’ goal of improving Plaintiff’s function and pain, his phrase “fully 

functional” is too imprecise in meaning, and it does not reasonably follow from it that Dr. 

Rogers believed Plaintiff was fully functional in terms of her work abilities. 
20

The ALJ also noticed that Plaintiff saw her boyfriend every day, and they ate out 

once in a while. This says something about her ability to socialize but it says nothing about 

her ability to perform physical work activities. 

Accordingly, Plaintiff’s challenges to the ALJ’s assessment of her symptoms and her 

residual functional capacity are well taken. 

B. 

Plaintiff contends that the ALJ unreasonably relied on the opinions provided by 

physicians who reviewed the record for the Ohio Division of Disability Determinations. 

Steve E. McKee, M.D. reviewed the record in December 2014. He concluded that 

Plaintiff could occasionally lift and/or carry 20 pounds and frequently lift and carry 10 

pounds; she could stand and/or walk about 6 hours in an 8-hour workday; and she could sit 

with normal breaks for about 6 hours in an 8-hour workday. Her ability to push and push 

was unlimited, except for her lifting and carrying restrictions. Dr. McKee explained that 

Plaintiff’s right foot is “increasingly unstable, difficulty even with bracing.” (Doc. #6, 

PageID #100). He understood that she had an antalgic gait, her pulses were present at 

posterior tibialis and dorsal pedal (2+), and “Ext [Extremity] has normal development and 

no calf atrophy....” Id. 

As to Plaintiff’s postural limitations, Dr. McKee believed that Plaintiff could 

occasionally climb ramps/stairs; never climb ladders, ropes, or stairs; occasionally balance; 

frequently stoop by bending at her waist; frequently kneel; frequently crouch by bending at 

her knees; and frequently crawl. Id. at 100-01. He recognized that Plaintiff “does have 

lumbago, radiculopathy, and pain in limb...,” id. at 102, and that an x-ray on February 6, 
21

2013 showed degenerative disc disease and lumbar facet arthropathy, “but minimal L4-5 

degenerative disease.” Id. He further reported that Plaintiff had a “neoplasm removed from 

her foot and for a time used a kneeling walker. But, exam of 8/23/13 showed space incision 

was well healed, and [she] had only mild pain with shoes, activity, and walking [without] 

assistance. [She is] able to care for her granddaughter, care for personal hygiene, and tend 

to household chores.” Id. 

In April 2015, Diane Manos, M.D., reviewed Plaintiff’s records and reached 

identical conclusions as Dr. McKee except Dr. Manos found that Plaintiff could stand 

and/or walk 4 hours in an 8-hour workday. Dr. Manos provided the same explanation as Dr. 

McKee. But, she also reviewed Plaintiff’s February 2015 examination notes concerning her 

follow-up visit after her January 2015 foot surgery. Dr. Manos pointed to treatment notes 

saying, “cavocarus reconstruction. Is doing really well. Incision is healing nicely.” Id. at 

136. Dr. Manos thought that Plaintiff’s medical records “would support sedentary RFC 

[residual functional capacity].” Id. 

The ALJ placed great weight on the opinions expressed by Dr. McKee and Dr. 

Manos, with the greatest weight on Dr. Manos’s opinion “as it is supported by objective 

signs and findings in the preponderance of the record, including the records submitted after 

their assessments.” Id. at 50. The ALJ found that Plaintiff did well after her February 2015 

right-ankle surgery “to the point she required no further treatment after July 2015..., id.; 

and, she progressed well after her left-foot surgery in January 2016. And, to account for the 

remaining effects of Plaintiff’s January 2016 surgery, the ALJ noted that Plaintiff had 
22

certain postural limitations—for example, occasional climbing ramps or stairs; occasional 

balancing; no climbing ropes ladders, or scaffolds. Id. 

 The factors applicable to the ALJ’s weighing of record-reviewing physicians (also 

called “consultants”)—like Drs. McKee and Manos—are denominated “supportability,” 

“consistency,” “specialization,” and “other factors.” 20 C.F.R. §§ 404.1527(c)(3)-(6). The 

regulations promise that ALJs will use relevant factors “such as the consultant’s medical 

specialty and expertise in [the Social Security Administration’s] rules, the supporting 

evidence in the case record, the supporting explanations the medical or psychological 

consultants provides, and any other factors relevant to the weighing of the opinions....” Id. 

at § 404.1527(e)(2). 

“Unless a treating source’s opinion is given controlling weight, the [ALJ] must 

explain in the decision the weight given to [record reviewers’] opinions..., the same as the 

[ALJ] must do for any opinions from...,” treating, nontreating, or other nonexamining 

physicians who do not work for the state agency. Id.; see Miller v. Comm’r of Social Sec., 

811 F.3d 825, 836-37 (6th Cir. 2016). 

In the present case, the ALJ placed “great weight” on Dr. McKee’s opinions and the 

“greatest weight” on Dr. Manos’s opinions, “as ... supported by objective signs and findings 

in the preponderance of the record, including records submitted after their assessments.” 

(Doc. #6, PageID # 50). The ALJ explained that Plaintiff “did well after the February 2015 

right ankle surgery, to the point she required no further treatment after July 2015. Although 

she underwent another left foot surgery in January 2016, she has been progressing well. 

The [ALJ] included more restrictive postural limitations to further account for the residuals 
23

of this surgery, as well as any exacerbating effects of the claimant’s moderate obesity....” 

Id. 

Substantial evidence does not support the ALJ’s reliance upon Drs. McKee’s and 

Manos’s opinions because significant probative evidence concerning the health of Plaintiff’s 

lower extremity was submitted after their assessments of the record. 

Dispositive weight may be placed on state-agency, record-reviewing physicians’ 

opinions in “appropriate circumstances.” Blakley, 581 F.3d at 409. “One such circumstance 

may occur, for example, when the ‘State agency medical ... consultant’s opinion is based on 

a review of a complete case record that ... provides more detailed and comprehensive 

information than what was available to the individual’s treating source.’ ” Blakley, 581 F.3d 

at 409 (quoting Soc. Sec. R. 96-6p, 1996 WL 374180, at *3 (July 2, 1996)). “However, 

where a non-examining source has not reviewed a significant portion of the record and the 

ALJ fails to indicate that she has ‘at least considered [that] fact before giving greater 

weight’ to the reviewing doctor’s opinion, the ALJ’s decision cannot stand.” Norris v. 

Comm’r of Soc. Sec., No. 1:15cv362, 2016 WL 2636310, at *9 (S.D. Ohio 2016) (Litkovitz, 

M.J.) (citing Blakley, 581 F.3d at 409), Report and Recommendation adopted, 2016 WL 

3228399, at *1 (S.D. Ohio, 2016) (Dlott, D.J). 

Dr. McKee and Dr. Manos reviewed the record before Plaintiff’s last two surgeries—

one in February 2015; the other in January 2016. As a result, the record they reviewed 

lacked significant probative evidence about those surgeries and the medical treatment she 

received after their review. Dr. Manos prepared her opinions in April 2015, just two 

months after Plaintiff’s right foot surgery and nearly a year before her second left foot 
24

surgery. Without the additional surgical and treatment records, both Drs. Manos’ and 

McKee’s frame of reference concerning Plaintiff’s long-term condition and work limitations 

was overly narrow. Drs. Manos and McKee appear to have reviewed no more than the 

record’s first eight medical exhibits. See Doc. #6, PageID #s 302-499. This means neither 

of them had the opportunity to review or consider multiple items that described Plaintiff’s 

lower-extremity problems and the medical-care she received over the years, including but 

not limited to: 

 Records related to her second left foot surgery. See at 500-01, 740. 

 Significantly abnormal results of her lumbar MRI. Id. at 593, 736-37. 

 Her cervical imaging and all of the records related to her neck pain and upper 

extremity radicular symptoms. See id. 674-88, 735. 

 Treatment notes generated by Dr. Hatic’s office. See id. at 624-734. 

 Post-surgical imaging of her right foot/ankle. See id. at 738-39. 

The Commissioner asserts that caselaw validates an ALJ’s reliance on state-agency 

physicians’ opinions because, “by the very nature of their use, the state agency consultative 

opinions are generally dated some months or even years before the ALJ’s decision is 

authored.” (Doc. #12, PageID #882 (citing McGrew v. Comm’r of Soc. Sec., 343 F. App’x 

26, 32 (6th Cir. 2009)). This generality is accurate but does not assist the Commissioner in 

the present case due to the significance, explained above, of the medical records submitted 

after the assessments by Drs. McKee and Manos. 

The Commissioner disagrees based on the assertion that the ALJ properly considered 

the evidence submitted after Drs. McKee and Manos not only when crediting their opinions 
25

but also earlier in her decision where she discussed the treatment notes in detail, including 

evidence showing that Plaintiff recovered from her surgeries. These arguments hold sway if 

substantial evidence supports the ALJ’s findings concerning Plaintiff’s treatments notes and 

other evidence post-dating Dr. McKee’s and Dr. Manos’s opinions. Yet, as explained 

above, the ALJ’s review of those treatment records was overly selective and substantial 

evidence did not support her findings. Supra, § IV(A), 

The Commissioner also emphasizes that the ALJ found Plaintiff more limited than 

Drs. McKee and Manos by limiting her postural-work activities to account for the residuals 

of her surgeries in February 2015 January 2016. The Commissioner overlooks, however, 

that the ALJ did not modify the light-lifting restrictions that Drs. McKee and Manos 

believed Plaintiff had. And the ALJ failed to see that Dr. Manos believed Plaintiff could 

perform “sedentary” work. (Doc. #6, PageID #136). This meant that Dr. Manos did not 

understand the lifting/carrying abilities needed to do sedentary work (no more than 10 

pounds) versus light work (lifting/carrying 20 pounds occasionally and 10 pounds 

frequently). Dr. Manos’ opinion that Plaintiff could perform sedentary work conflicts with 

her opinion that Plaintiff could lift/carry enough weight to perform light work. See 20 

C.F.R. 404.1563(c). This conflict does not inspire confidence in Dr. Manos’ understanding 

of the Regulations, a factor the ALJ overlooked when reviewing her opinions. 

Accordingly, Plaintiff’s challenges to the ALJ’s review of the medical sources’ 

opinion are well taken. 

VI. Remand For Further Proceedings 
26

Remand is warranted when an ALJ’s decision is unsupported by substantial evidence 

or when the ALJ failed to follow the Administration’s own regulations and that shortcoming 

prejudiced the plaintiff on the merits or deprived the plaintiff of a substantial right. Bowen, 

478 F.3d at 746. Remand for an ALJ’s failure to follow the regulations might arise, for 

example, when the ALJ failed to provide “good reasons” for rejecting a treating medical 

source’s opinions, see Wilson, 378 F.3d at 545-47; failed to consider certain evidence, such 

as a treating source’s opinions, see Bowen, 478 F3d at 747-50; failed to consider the 

combined effect of the plaintiff’s impairments, see Gentry, 741 F.3d at 725-26; or failed to 

provide specific reasons supported by substantial evidence for finding the plaintiff’s 

credibility lacking, Rogers, 486 F.3d at 249. 

Under sentence four of 42 U.S.C. §405(g), the Court has authority to affirm, modify, 

or reverse the Commissioner’s decision “with or without remanding the cause for 

rehearing.” Melkonyan v. Sullivan, 501 U.S. 89, 99 (1991). Consequently, a remand under 

sentence four may result in the need for further proceedings or an immediate award of 

benefits. E.g., Blakley, 581 F.3d at 410; Felisky v. Bowen, 35 F.3d 1027, 1041 (6th Cir. 

1994). The latter is warranted “only where the evidence of disability is overwhelming or 

where the evidence of disability is strong while contrary evidence is lacking.” Felisky, 35 

F.3d at 1041 (quoting Faucher v. Sec’y of Health & Humans Servs., 17 F.3d 171, 176 (6th 

Cir. 1994)). 

A remand for an award of benefits is unwarranted in the present case because the 

evidence of disability is not overwhelming and because the evidence of disability is not 

strong while contrary evidence is weak. See Faucher, 17 F.3d at 176. Yet, Plaintiff is 
27

entitled to an Order remanding this matter to the Social Security Administration pursuant to 

sentence four of § 405(g) due to errors identified above. On remand the ALJ should be 

directed to review Plaintiff’s disability claim to determine anew whether she was under a 

benefits-qualifying disability pursuant to the applicable five-step sequential evaluation 

procedure. 

IT IS THEREFORE RECOMMENDED THAT:

1. The Commissioner’s non-disability finding be vacated; 

2. No finding be made as to whether Plaintiff Carletta Wilson was under a 

Adisability@ within the meaning of the Social Security Act; 

3. This case be remanded to the Social Security Administration under sentence 4 

of 42 U.S.C. '405(g) for further consideration consistent with this Report and 

any Decision and Entry adopting this Report and Recommendations; and 

4. The case be terminated on the docket of this Court. 

April 16, 2019 s/Sharon L. Ovington 

 Sharon L. Ovington 

 United States Magistrate Judge 

 
28

NOTICE REGARDING OBJECTIONS 

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written 

objections to the proposed findings and recommendations within FOURTEEN days after 

being served with this Report and Recommendations. Such objections shall specify the 

portions of the Report objected to and shall be accompanied by a memorandum of law in 

support of the objections. If the Report and Recommendation is based in whole or in part 

upon matters occurring of record at an oral hearing, the objecting party shall promptly 

arrange for the transcription of the record, or such portions of it as all parties may agree 

upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise 

directs. A party may respond to another party’s objections within FOURTEEN days after 

being served with a copy thereof. 

Failure to make objections in accordance with this procedure may forfeit rights on 

appeal. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947, 

949-50 (6th Cir. 1981).