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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHELLE LEE HOFF, Case No. 1:17-cv-550

Plaintiff, Black, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Michelle Lee Hoff filed this Social Security appeal in order to challenge the 

Defendant’s finding that she is not disabled. See 42 U.S.C. §405(g). Proceeding through 

counsel, Plaintiff presents four claims of error for this Court’s review. As explained below, 

I conclude that the ALJ’s finding of non-disability should be AFFIRMED, because it is 

supported by substantial evidence in the record as a whole.

I. Summary of Administrative Record

In April 2014, Plaintiff filed an application for Disability Insurance Benefits (“DIB”),

alleging disability beginning on February 21, 2008, based upon a combination of multiple 

physical impairments that arose following a work-related injury, and mental impairments 

including depression. After her claim was denied initially and upon reconsideration, 

Plaintiff requested an evidentiary hearing before an ALJ. 

On April 27, 2016, Plaintiff appeared with counsel and gave testimony before ALJ 

Catherine Ma; her husband and a vocational expert also testified. (Tr. 33-79). At 35, 

Plaintiff was considered a younger individual on the date of her alleged disability, and at 
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41, remained in that age category on June 30, 2014, her date last insured for purposes 

of DIB.

1 She completed high school and vocational training in early childhood education, 

with most of her past relevant work in the childcare industry. She lives with her husband, 

her teenage son, and a college-age daughter. Plaintiff testified that most of her problems 

began when she slipped and fell on a patch of black ice in February 2008, while working 

as an early childhood education teacher at the Goddard School.

On May 26, 2016, the ALJ issued an adverse written decision, concluding that 

Plaintiff is not disabled. (Tr. 11-27). The ALJ determined that Plaintiff has severe 

impairments of spine disorder, degenerative disc disease, obesity, attention deficit 

disorder, and affective disorders. (Tr. 13). The ALJ found that other alleged impairments, 

including pain in her shoulder and knee, gastroesophageal reflux disease, diabetes, 

asthma and hypertension, were all either well-controlled conditions or were otherwise 

non-severe because they did not cause more than a minimal effect in her ability to perform 

work activities. (Tr. 14). Plaintiff does not dispute the ALJ’s determination that none of 

her impairments, either alone or in combination, met or medically equaled any Listing in

20 C.F.R. Part 404, Subpart P, Appendix 1, such that Plaintiff would be entitled to a 

presumption of disability. (Tr. 14). 

The ALJ found that Plaintiff retains the residual functional capacity (“RFC”) to 

perform a restricted range of light work, subject to the following limitations:

[S]he could frequently climb ramps and stairs, but never climb ladders, 

ropes or scaffolds. She could occasionally stoop. She was limited to 

performing simple, routine tasks but not at a production rate pace. She 

could tolerate occasional interaction with supervisors, co-workers and the 

public. She was limited to occasional routine work changes. 

 

1In order to be entitled to DIB, Plaintiff must prove she became disabled on or before her date last insured.
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(Tr. 15). Considering Plaintiff’s age, education, and RFC, and based on testimony from 

the vocational expert, the ALJ determined that Plaintiff could still perform a “significant 

number” (totaling nearly five million) jobs in the national economy, including the 

representative jobs of order caller, price marker, and house sitter. (Tr. 26). Therefore, 

the ALJ determined that Plaintiff was not under a disability. The Appeals Council denied 

further review, leaving the ALJ’s decision as the final decision of the Commissioner.

In her appeal to this Court, Plaintiff argues that the ALJ erred: (1) by failing to 

provide “good reasons” for rejecting the opinions of three treating physicians; (2) by giving 

the greatest weight to two non-examining medical consultants; (3) by giving little weight 

to the opinions of two physicians who evaluated Plaintiff on behalf of the Ohio Bureau of 

Workers’ Compensation; and (4) by finding Plaintiff to be less than completely credible. 

All four of Plaintiff’s claims pertain to her alleged physical limitations and pain level; she 

does not challenge the ALJ’s assessment of her mental limitations.

II. Analysis

A. Judicial Standard of Review

To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C. 

§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or 

mental impairments that are both “medically determinable” and severe enough to prevent 

the applicant from (1) performing his or her past job and (2) engaging in “substantial 

gainful activity” that is available in the regional or national economies. See Bowen v. City 

of New York, 476 U.S. 467, 469-70 (1986). 

When a court is asked to review the Commissioner’s denial of benefits, the court’s 

first inquiry is to determine whether the ALJ’s non-disability finding is supported by 

substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “such relevant 
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evidence as a reasonable mind might accept as adequate to support a conclusion.” 

Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation 

omitted). In conducting this review, the court should consider the record as a whole. 

Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports 

the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial 

evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 

F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:

The Secretary’s findings are not subject to reversal merely because 

substantial evidence exists in the record to support a different conclusion.... 

The substantial evidence standard presupposes that there is a ‘zone of 

choice’ within which the Secretary may proceed without interference from 

the courts. If the Secretary’s decision is supported by substantial evidence, 

a reviewing court must affirm.

Id. (citations omitted). 

In considering an application for supplemental security income or for disability 

benefits, the Social Security Agency is guided by the following sequential benefits 

analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial 

gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s 

impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s 

impairments, singly or in combination, meet or equal a Listing in the Listing of 

Impairments; at Step 4, the Commissioner determines whether or not the claimant can 

still perform his or her past relevant work; and finally, at Step 5, if it is established that 

claimant can no longer perform his or her past relevant work, the burden of proof shifts to 

the agency to determine whether a significant number of other jobs which the claimant 

can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec., 

459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920. 
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A plaintiff bears the ultimate burden to prove by sufficient evidence that she is 

entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must 

present sufficient evidence to show that, during the relevant time period, she suffered an 

impairment, or combination of impairments, expected to last at least twelve months, that 

left him unable to perform any job. 42 U.S.C. § 423(d)(1)(A). 

B. Plaintiff’s Claims

1. Evaluation of Treating Physician Opinions

Plaintiff first criticizes the ALJ’s failure to adopt the opinions of three treating 

physicians or to give “good reasons” for the weight given to them. Two of those

physicians concluded, at times, that she was capable of sedentary work. Other 

physicians offered both similar and contradictory opinions; it was the ALJ’s duty to resolve 

the conflicts between the divergent opinions.2 Here, I find no reversible error in the ALJ’s 

analysis of the three referenced opinions, because the ALJ appropriately explained why 

their opinions were not entitled to controlling weight.

The relevant regulation regarding treating physicians provides: “If we find that a 

treating source's opinion on the issue(s) of the nature and severity of your impairment(s) 

is well-supported by medically acceptable clinical and laboratory diagnostic techniques 

and is not inconsistent with the other substantial evidence in your case record, we will 

give it controlling weight.” 20 C.F.R. § 404.927(c)(2); see also Warner v. Com'r of Soc. 

Sec., 375 F.3d 387, 390 (6th Cir. 2004); SSR 96-2p. Based upon the express language 

of the regulation, an ALJ is not required to give controlling weight to the opinion of a 

 

2Although many varying opinions can be found in the record, Plaintiff’s first claim of error focuses solely on

Drs. Chunn, Yeh, and Simons.
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treating physician if it is not well-supported, is internally inconsistent, and/or is 

inconsistent with the record as a whole.

In addition, the regulations draw distinctions between the type of medical 

“opinions” from treating physicians that are entitled to controlling weight, and legal 

determinations that must be made by an ALJ. “When a treating physician...submits an 

opinion on an issue reserved to the Commissioner – such as whether the claimant is 

‘disabled’ or ‘unable to work’ the opinion is not entitled to any particular weight.” Turner 

v. Com’r of Soc. Sec., 381 Fed. Appx. 488, 492 (6th Cir. 2010); see also 20 C.F.R. § 

416.927(c)(1). Finally, it is the ALJ who remains responsible to determine a claimant’s 

RFC. 20 C.F.R. §416.936(c). 

When an ALJ does not give controlling weight to the medical opinion of a treating 

physician, the Commissioner is required to provide “good reasons” for that decision. Id. 

The ALJ must explain the amount of weight given to the opinion after considering the 

following relevant factors: the length, nature, and extent of treatment relationship, 

evidence in support of the opinion; consistency with the record as a whole; and the 

physician’s specialization. 20 C.F.R. § 416.927(c). However, while an ALJ is required to 

provide “good reasons” for the weight given to the treating source’s opinion, the ALJ is 

not required to provide “an exhaustive factor-by-factor analysis.” Francis v. Com’r of Soc. 

Sec., 414 Fed. Appx. 802, 804 (6th Cir. 2011). 

In the case presented, Plaintiff argues that the ALJ’s analysis of the opinions of 

Drs. Chunn, Simons, and Yeh was inadequate or insufficient. To the contrary, the 

undersigned concludes that the ALJ’s analysis of each of the three physicians’ opinions 

is substantially supported by the record and satisfies the “good reasons” standard. 
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Dr. Chunn

Dr. Michael Chunn, a family medicine physician, began treating Plaintiff shortly 

after her fall at work. At a March 20, 2008 visit with him, he stated that her “[c]urrent 

activity restrictions are no lifting > 10 lbs, freq position changes, no bending, stooping, 

reaching.” (Tr. 1301). He subsequently completed multiple forms opining that Plaintiff 

was disabled, but never again provided specific restrictions. For example, on April 11, 

2008, Dr. Chunn wrote on a prescription pad: “Please excuse pt from work starting 4/11 

– 4/22/08 due to disability.” (Tr. 371). A second nearly identical note, dated April 10, 

2008, lists an end “disability” date of April 19, 2008. (Tr. 372). 

Later, Dr. Chunn partially completed many one-page forms for the Bureau of 

Workers’ Compensation. Notably, Dr. Chunn left most of the forms entirely blank, 

declining to complete the portion that sought (in check-box style) information on the 

claimant’s lifting restrictions, postural restrictions, or other work limitations. On a form 

dated April 24, 2008, Dr. Chunn summarily opined that Plaintiff could not return to light 

duty work because she “has attempted to perform light duty tasks since the injury and 

has not been able to tolerate the pain,” thus ostensibly remaining “disabled” from work 

through July 11, 2008. (Tr. 360-361; Tr. 345). On June 2, 2008, Dr. Chunn stated that 

Plaintiff was disabled from April 11, 2008 to an “estimated” date of July 11, 2008 based 

upon active management of her acute back injury. (Tr. 351, 365). 

On June 18, 2008, Dr. Chunn again opined that Plaintiff was totally disabled from 

April 11, 2008 through July 11, 2008, although in this note, he suggests that her disability 

might be specific to a position that requires more than light duty work: “Pt. is awaiting 

approval for surgical repair of injuries. She states she is unable to tolerate the pain she 

experiences at work. The current job description light duty seems reasonable however.” 
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(Tr. 343, emphasis added). On June 24, 2008, Dr. Chunn partially completed another 

form, opining vaguely that Plaintiff was “totally disabled from work from June 24 until “after 

[future] surgery.” (Tr. 320). On July 8, 2008, Dr. Chunn stated again that Plaintiff was 

disabled from work beginning April 11, 2008 until “after surgery and release by Dr. Yeh.” 

(Tr. 316). 

Several of Dr. Chunn’s notes reflect his reliance on Plaintiff’s reports of pain and/or 

Plaintiff’s report that another physician had opined she was disabled. For example, on 

July 22, 2008, Dr. Chunn stated: “Injured worker has been placed totally disabled from 

work by the neurosurgeon. Justification for such designation needs to come from him.” 

(Tr. 310, emphasis added). On the July 22, 2008 form, no dates indicate whether the 

alleged disability is temporary or permanent. Consistent with all other forms, the 

work/non-work functional capabilities check-boxes are again left entirely blank, providing 

no information as to any specific limitations. (Id.) On September 30, 2008, Dr. Chunn 

partially completed another form, opining that Plaintiff could not return to her position as 

a teacher and could not return to other work until an estimated date of January 1, 2009. 

He again provided no explanation other than a reference to active management of her 

acute back injury. (Tr. 1414). On January 25, 2010, Dr. Chunn partially completed one

last form, again opining that Plaintiff could not return to her work as a teacher, and that 

she was unable to return to other employment due to “decreased lumbar ROM” and 

“pain,” and because: “Pt has not participated in voc. Rehab/ work hardening yet.” (Tr. 

1341). The “estimated” return to work date listed on that form was July 1, 2010.

After acknowledging the multiple statements by Dr. Chunn that Plaintiff was “totally 

disabled from various dates,” the ALJ gave those opinions “little weight.” As reflected 

above, virtually all of the “opinions” were not medical opinions but instead conclusory 
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determinations of “disability” that were wholly unsupported. The ALJ appropriately 

dismissed those statements as not entitled to controlling weight, because such 

determinations are “reserved to the Commissioner.” (Tr. 21). In addition, Dr. Chunn’s 

statements were not well-supported and were inconsistent with the record as a whole. 

Aside from the fact that an opinion on the ultimate issue of disability is never entitled to 

controlling weight, the ALJ reasoned that it is not “known what [Dr. Chunn] meant by 

‘totally disabled’ or unable to perform work,” given that the record “does not demonstrate 

an inability to perform basic activities of daily living, including driving or performing 

household chores,” and that “objective evidence demonstrated only slightly decreased 

muscle strength in the lower extremities and a slow gait,” which “[did] not support a 

complete inability to perform all work.” (Tr. 21). The ALJ also noted that despite Plaintiff’s

complaints, she “demonstrated an appropriate affect without demonstrating pain 

behavior.” (Id.) 

The ALJ’s reasoning for rejecting Dr. Chunn’s opinions is well-supported by 

substantial evidence in the record as a whole. Dr. Chunn offered specific restrictions on 

only one occasion, limiting Plaintiff to lifting less than 10 pounds and opining that she 

could not stoop, bend, kneel or squat. The ALJ gave that opinion “partial weight,” noting 

that it was provided only a month after Plaintiff’s initial injury, at a time when Plaintiff

demonstrated a normal gait, 5/5 strength, and negative straight leg raises, despite her 

reduced range of motion in her lumbar spine. The ALJ cited evidence that “these 

restrictions did not last for 12 consecutive months since by January 6, 2009 the claimant 

demonstrated a 100% weight bearing ability, 5/5 muscle strength throughout and normal 

sensation to light touch, and “was able to engage in activities of daily living that required 

some bending, stooping and kneeling.” (Tr. 22).
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Dr. Hwa-Shain Yeh

Dr. Yeh was Plaintiff’s treating neurosurgeon. In April 2008, Dr. Yeh initially offered 

conservative management or surgery; Plaintiff declined surgery at that time. (Tr. 368). 

In June 2008, Dr. Yeh opined that Plaintiff should not work, but provided no explanation

at all. (Tr. 341). Eventually, on December 22, 2008, Dr. Yeh performed a spinal fusion 

surgery from L4 to S1, and inserted hardware. (Tr. 403-405). At a post-operative visit in 

March 2009, Dr. Yeh noted: “The patient has not returned to work,” despite improvement

in her ability level and symptoms, only moderate post-operative pain, and the lack of any 

post-operative complications. (Tr. 673). At that time, Dr. Yeh opined that Plaintiff “is 

...permitted to take a desk job with restriction of weight lifting, no more than 15 pounds 

for three months.” (Tr. 673). However, in April 2009, an x-ray demonstrated an interval 

increase in the degree of slippage with fracture of one piece of hardware. (Tr. 419). 

Therefore, in June 2009, Plaintiff underwent a second surgery. (Tr. 431-32, 499-500). 

The ALJ gave “little weight” to Dr. Yeh’s March 2009 opinion that Plaintiff could 

“take a desk job” and lift up to 15 pounds for a period of three months, implying fewer or 

no restrictions after that time. Like Dr. Chunn’s conclusory “disability” opinions, any 

opinion by Dr. Yeh on the ultimate issues was “reserved to the Commissioner.” (Tr. 21). 

The ALJ also found Dr. Yeh’s three-month “desk job” opinion was not entitled to 

controlling weight because it was not well-supported; in fact, “Dr. Yeh fails to note what 

objective evidence he relied on in providing the ...restrictions. Furthermore, at the 

time...the claimant demonstrated 100% weight bearing, with reported improved activity 

level and pain symptoms.” (Tr. 22). The ALJ further observed that Plaintiff demonstrated 

5/5 muscle strength through, and normal sensation to the touch only weeks prior to Dr. 

Yeh’s opinion. (Tr. 22). The ALJ also noted the medical evidence wherein Plaintiff was 
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consistently found to have negative straight leg raises, (Tr. 17-18), and that her 100% 

weight bearing continued with improving activity level and pain symptoms at the time of 

Dr. Yeh’s opinion. (Tr. 22). 

In her reply memorandum, Plaintiff argues that the ALJ failed to address specific 

records from Dr. Yeh that reflected that prior to and after her two surgeries by Dr. Yeh, 

including after implantation of the spinal cord stimulators, Dr. Yeh’s clinical findings 

included decreased deep tendon reflexes, decreased and painful lumbar range of motion, 

week lumbar strength, slow and cautious gait and station, and parethesia in her bilateral 

lower limbs. (Doc. 14 at 2). Plaintiff argues that those clinical findings prove that she 

“continued to have ongoing problems in her low back, and legs which limited her ability 

to engage in work related activity.” (Id.)

There are several problems with Plaintiff’s argument. First, the argument expands 

so greatly on Plaintiff’s first claim concerning Dr. Yeh, including citations to multiple 

portions of the record when none were originally included, as to constitute a new claim 

presented for the first time in reply.3 However, even considering the greatly expanded 

claim, the undersigned still finds no reversible error. “Although required to develop the 

record fully and fairly, an ALJ is not required to discuss all the evidence submitted, and 

an ALJ's failure to cite specific evidence does not indicate that it was not considered.” 

Simons v. Barnhart, 114 Fed.Appx. 727, 733 (6th Cir. 2005) (quoting Craig v. Apfel, 212 

F.3d 433, 436 (8th Cir. 2000)); see also Kornecky v. Com'r of Soc. Sec., 167 Fed. Appx. 

496, 508 (6th Cir. 2006) (holding that an ALJ is not required to discuss “every single piece 

 

3Plaintiff also argues for the first time in reply that the ALJ erred by failing to “fully” address the medical 

findings of Dr. Tann Nichols. This new claim should not be considered. However, the ALJ adequately

discussed Dr. Nichols’ findings. (Tr. 18).
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of evidence submitted by a party.”) (additional citations omitted). Contrary to Plaintiff’s 

assertion, the ALJ’s opinion contains multiple references to the records that Plaintiff

claims that the ALJ did not discuss. (See, e.g., Tr. 16, citing Exhibit 1F/32 [Tr. 337-338] 

and noting evidence of Plaintiff’s “slow cautious gait” and reported “intermittent” 

paresthesis during that June 2008 exam; Tr. 17, citing 6F/28 [Tr. 670]). Finally, while the 

cited records provide some evidence of pain and back impairment, they simply do not 

undermine the substantial evidence on which the ALJ relied (some of which is noted in 

the very same records) that Plaintiff’s level of impairment was not disabling.4 This court 

will not reverse merely because substantial evidence exists in the record to support a 

different conclusion. In sum, I conclude that the ALJ’s stated reasons for giving “little 

weight” to Dr. Yeh’s opinions are adequately articulated “good reasons” that are 

substantially supported by the record in this case.

Dr. Simons 

In January 2010, Dr. Mitchell Simons, a pain management specialist, began 

treating Plaintiff. At the time, Plaintiff reported 70% pain relief and a pain level of 5/10 

with narcotic medication. (Tr. 1025). In June 2011, Dr. Simons noted that Plaintiff was 

“doing fantastic,” (Tr. 1018), with 60-90% pain relief after a spinal cord stimulator trial. In 

September 2011, Plaintiff underwent surgery and placement of a surgical paddle for a 

permanent spinal cord stimulator. (Tr. 726). At a follow-up visit a week later, Dr. Simons 

noted the paddle lead was significantly relieving Plaintiff’s pain, reducing her pain levels 

to a “2-3” on the pain scale. (Tr. 1010). In April 2012, Dr. Simons noted he was unsure 

 

4Plaintiff’s assertion that the cited clinical records reflect Dr. Yeh’s findings after the completion of both 

surgeries and the implantation of her spinal cord stimulator also is incorrect. Many of the records are prior 

to Dr. Yeh’s two surgeries. The spinal cord stimulator was implanted in 2011; the latest of the clinical 

findings cited by Plaintiff predate that implantation. (See, e.g., Doc. 14 at 2).
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of the cause of a reported flare up of Plaintiff’s pain given the lack of any change in her 

condition. (Tr. 1001). However, he noted that Plaintiff was “heading towards the hearing 

on her disability [and] that could be a factor emotionally.” (Id.) At a follow-up appointment 

a few weeks later, he reduced the amount of pain medication due to reported drowsiness. 

(Tr. 1000). In May 2012, Plaintiff reported significant pain relief and Dr. Simons noted 

Plaintiff would start vocational rehabilitation. (Tr. 999). 

In July 2012, Nurse Practitioner Buddendeck/Dr. Simons opined that Plaintiff “can 

do sedentary work, but the in and out of the car looking for work is over her restriction,” 

because “if she could do that then she could do light duty work.” (Tr. 995). Based upon 

the fact that Plaintiff reported having to “go to 10 places per week for face to face 

interviews” to look for work, Nurse Buddendeck stated that “no driving” should be added 

to Plaintiff’s restrictions.5 (Id.) On January 10, 2013, a note co-signed by Dr. Simons

reflects that although Plaintiff had asked to be restricted to 2 hours per day of work in 

order to be able to obtain working wage loss, her treating physician “do[es] not believe 

that [reduction in hours] is appropriate for her.” (Tr. 985). Instead of decreasing her work 

capacity from the stated 4 hours per day, on February 7, 2013, Dr. Simons increased her 

work capacity to 6 hours per day 3-4 days per week in order to “free her up some in her 

job search.” (Tr. 984). In June 2013, Dr. Simons told Plaintiff he did not think it was a 

good idea for her to go on disability, and he thought she could work and continue looking 

for a new job. (Tr. 981). The records reflect Plaintiff’s reports that she was continuing to 

set up interviews to find a new job. (Tr. 979-980).

 

5Although the note appears to have been dictated by Nurse Buddendeck, it reflects that “Dr. Simons was 

present....” (Tr. 995).
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On December 27, 2013, Plaintiff attended another follow-up appointment with 

Nurse Buddendeck at Dr. Simons’s office, at which Dr. Simons was present. The 

December 27 note states: “since no further surgery is recommended, she already has a 

spinal cord stimulator for treatment of her pain, we will recommend permanent total 

disability due to her Workers Comp injury.” (Tr. 975). A month later on January 24, 2014, 

Dr. Simons wrote: “I assume since she cannot get down on the floor, she really cannot 

do the daycare she was doing, and that is the definition for disability. Therefore, her 

temporary disability should be turned into permanent based on the legal definition.” (Tr. 

974).6 However, in the same note. Dr. Simons states that the pain management 

treatment is effective in “helping her to become more functional,” with medication helping 

“at least 60 percent,” and the spinal cord simulator benefitting her an even higher 

percentage. (Id.) 

The ALJ gave Dr. Simons’ “disability” opinions “little weight,” on the basis that the 

ultimate decision on disability was “reserved to the Commissioner,” and that it was not 

clear what Dr. Simons meant by “totally disabled” given records that reflected Plaintiff

could continue to perform basic activities of daily living and had few objective findings that 

would support a complete inability to perform all work. (Tr. 21). Although Dr. Simons 

mistakenly believed that Plaintiff’s inability to get down on the floor to perform her past 

job as a daycare worker rendered her totally disabled, the ALJ appropriately noted that 

“[n]ot only does the record fail to support a complete inability to get down on the floor...but 

...the inability to perform past work is only one step in the sequential evaluation.” (Tr. 

23). The ALJ next pointed out the inconsistency between the “various opinions [by Dr. 

 

6Dr. Simons’ belief that because Plaintiff could no longer perform her past relevant work as a teacher or 

daycare provider, she met “the definition for disability” does not conform with social security law.
15

Simons] regarding the claimant’s functional ability despite little to no change in the 

claimant’s objective condition.” (Tr. 22). The ALJ noted that Dr. Simons’s refusal to 

reduce Plaintiff’s hourly work limits, because he felt she could work more, undermined

any conclusion that she was disabled, and that the restrictions that had been requested 

by Plaintiff but rejected by Dr. Simons were not only unsupported by the medical record, 

but appeared to be based upon Plaintiff’s financial motivation to increase her workers’ 

compensation benefits rather than an actual inability to work. (Tr. 23). 

In April 2012, Dr. Simons again questioned Plaintiff’s subjective report of increased 

pain given the lack of any apparent objective change in her condition. (Tr. 24). In fact, 

from January 2012 through May 2013, Plaintiff’s subjective complaints steadily increased 

even though her objective assessments, medication, use of spinal cord stimulator, and 

treatment plan remained essentially unchanged. (Tr. 982-986). There appears to be no 

basis for adjustments made by Dr. Simons to work-related limitations throughout the 

same period. Finally, the ALJ noted that “the record indicates [that] Dr. Simons 

provided...restrictions on May 14, 2012, the record does not contain a statement from Dr. 

Simons or objective reasoning for these restrictions.” (Tr. 24). The ALJ also noted that 

it was “not clear who provided these restrictions,” and the ALJ gave them “little weight” 

because they were unsupported even assuming that Dr. Simons provided them. 

For the first time in her reply memorandum, similar with her argument with respect 

to Dr. Yeh, Plaintiff points to specific records authored by Dr. Simons (or Nurse 

Buddendeck) that she asserts the ALJ failed to discuss. However, as with the citations 

to Dr. Yeh’s records, the ALJ specifically cites to most of the records that Plaintiff claims 

she “disregarded.” (See, e.g. Tr. 19). Once again, the undersigned finds no reversible 

error and finds the ALJ’s rejection of Dr. Simons’ contradictory and unsupported opinions 
16

to be substantially supported by the evidence in the record as a whole. I further conclude 

that the ALJ adequately articulated “good reasons” for her analysis.

2. Weight Given To State Agency Medical Consultants

In her second and third claims of error, Plaintiff argues that the ALJ erred by giving 

greater weight to the opinions of non-examining medical consultants than to the opinions 

of examining consultants. Despite a regulatory structure that generally requires ALJs to 

give “greater deference to the opinions of treating physicians than to the opinions of nontreating physicians,” see Blakley v. Com’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009), 

"[i]n appropriate circumstances,” the opinions of non-examining consultants “may be 

entitled to greater weight than the opinions of treating or examining sources.” Id., 581 

F.3d at 409 (quoting Soc. Sec. Rul. 96-6p, 1996 WL 374180, at *3 (July 2, 1996)). 

However, in Blakley the Sixth Circuit reversed because the state non-examining sources 

did not have the opportunity to review “much of the over 300 pages of medical 

treatment...by Blakley’s treating sources,” and the ALJ failed to indicate that he had “at 

least considered [that] fact before giving greater weight” to the consulting physician’s 

opinions. Id., 581 F.3d at 409 (quoting Fisk v. Astrue, 253 Fed. Appx. 580, 585 (6th Cir. 

2007)). Under Blakley, then, an ALJ is permitted to credit non-examining consulting 

opinions, but only if she articulates sufficient reasons for doing so.

On the record presented, the ALJ gave “great weight” to the physical RFC opinions 

of two non-examining consultants, Dr. Gerald Klyop and Dr. Diane Manos. Plaintiff 

argues that reversal is required under Blakley. However, unlike in Blakley, where the 

consultants had lacked access to a substantial body of critical evidence and the ALJ had 

failed to address that fact or discuss the relevant records, the ALJ here committed no 

similar error. The ALJ gave the opinions of the consultants “great weight” only after 
17

explaining that they “were privy to the majority of the medical evidence dated prior to the 

date last insured.” (Tr. 25). Indeed, relatively little medical evidence was submitted after 

Dr. Manos’s December 2014 review, which review was dated six months after Plaintiff’s 

date last insured. No other source had access to as complete a record, and Plaintiff 

does not identify any piece of medical evidence that the ALJ and/or the consultants failed 

to review. 

The ALJ explained that despite Plaintiff’s complaints of significant symptoms 

including pain, the objective evidence did not support her reported limitations, but instead 

was consistent with the consulting physicians’ assessments. (Tr. 25).

For example, the claimant does not demonstrate pain behavior, an impaired 

gait or positive straight leg raises. Despite alleging not doing anything and 

sleeping 16 hours a day, the record does not demonstrate atrophy or others 

[sic] symptoms of significant deconditioning since 2008. Therefore, the 

consultants’ assessments are given great weight.

(Tr. 25). 

The undersigned finds no reversible error. As discussed by the ALJ, the Plaintiff

consistently displayed negative straight leg raises, beginning from her alleged onset date 

through her date last insured, as well as a normal gait. (Tr. 17-18). Following surgery for 

placement of a spinal cord stimulator in 2011, Plaintiff’s pain level dropped to 2-3/10 and 

approximately six weeks after placement of the stimulator, Plaintiff reported such good 

relief that she began weaning herself off her narcotics. (Tr. 18, citing 726, 730, 1010). 

While Plaintiff still experienced some back pain, with a combination of physical therapy, 

her stimulator, injections and medication, Plaintiff’s objective symptoms were relatively 

mild. (Tr. 20). Plaintiff herself stated that her stimulator and medication consistently 

provided 60% pain relief. (Tr. 967-77, 992-94, 996-99, 1004). Moreover, there was no 

evidence to support Plaintiff’s claim that she slept 16 hours daily. (Tr. 25).
18

In her closely related third claim, Plaintiff argues that the ALJ erred in failing to give 

greater weight to the opinions of two examining consultants who completed physical RFC 

forms in the context of Plaintiff’s workers’ compensation claim. Specifically, one-time 

examining consultant Dr. Koppenhoefer opined in October 2009 that Plaintiff was then

unable to work while she healed from recent back surgery, although he also predicted 

she may be able to perform sedentary work six months later after some healing occurred. 

(Tr. 1090-91). The ALJ reasonably found that the opinions of Dr. Koppenhoefer were not 

supported by objective medical evidence and were entitled to only “little weight.” (Tr. 23-

24, noting that Dr. Koppenhoefer “fails to acknowledge what objective findings support 

his opinion,” and instead “relied on complaints of pain with palpation and decreased range 

of motion,” which contrasted with objective findings of normal muscle strength, normal 

straight leg raises, and no evidence of atrophy). 

In July 2010, Dr. Bell opined that Plaintiff still could perform sedentary work, but 

not her past work. (Tr. 1085). Dr. Bell acknowledged that he did not perform or have 

access to any functional testing results. (Tr. 1084). The ALJ also gave his opinion “little 

weight” because notwithstanding objective evidence that demonstrated decreased range 

of motion, Plaintiff continued to exhibit normal motor function and strength. The ALJ also 

noted that Dr. Bell’s opinion that a stimulator was unlikely to improve her condition was 

contrary to the Plaintiff’s own report of functional improvement with pain relief. (Tr. 23). 

Based on the evidence as a whole, the undersigned finds the ALJ’s assessment of Dr. 

Bell’s opinion to be substantially supported.

4. Credibility Assessment

Plaintiff’s final claim is that the ALJ erred by finding Plaintiff to be less than 

completely credible. Plaintiff testified that she is unable to work due to her pain level and
19

estimated she could stand for a maximum of 10 minutes but spent most of her day seated 

on the couch and sleeps 16 hours per day, including 8 hours during the morning and 

afternoon. The ALJ found Plaintiff’s testimony concerning the intensity, persistence and 

limiting effects of her symptoms not to be “entirely consistent with the medical evidence 

and other evidence in the record....” (Tr. 20). The ALJ explained her credibility analysis 

in multiple areas of the opinion. 

An ALJ’s credibility assessment must be supported by substantial evidence, but 

“an ALJ’s findings based on the credibility of the applicant are to be accorded great weight 

and deference, particularly since an ALJ is charged with the duty of observing a witness’s 

demeanor and credibility.” Walters v. Com’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 

1997). Further, a credibility determination cannot be disturbed “absent a compelling 

reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). Thus, it is proper for an ALJ 

to discount the claimant’s testimony where there are contradictions among the medical 

records, her testimony, and other evidence. Warner v. Com’r of Soc. Sec., 375 F.3d at 

387. 

Plaintiff argues that the ALJ discredited her testimony on the basis that she was 

able to perform certain daily activities, which is far different from the ability to sustain 

“working eight hours a day in a labor-intensive job.” (Doc. 8 at 5). The regulations permit 

an ALJ to consider a claimant’s daily activity level as one factor in assessing the credibility 

of subjective pain complaints that are not wholly supported by objective evidence. See 

also SSR 16-3p, 2016 WL 1119029 at *7 (Mar. 16, 2016). Here, the undersigned 

concludes that the ALJ’s adverse credibility finding is substantially supported and was 

based on many inconsistencies in the record. 
20

For example, Plaintiff alleged part of her disabling pain came from bone spurs in 

her right shoulder, and that she had trouble reaching above her head and was limited to 

lifting a gallon of milk. (Tr. 16). However, the ALJ found based on the medical record 

that she did not have a severe impairment in her shoulder or knee, because she did not 

continue to complain after treatment. (Tr. 14). Plaintiff also alleged bladder urgency, but 

no medical evidence to support that complaint was noted and It was not listed as a severe 

impairment. 

Plaintiff testified that she requires use of a wheelchair due to an inability to walk 

through a grocery store. She testified that she was able to navigate her home but only in 

pain. She testified that she shared cooking but relied on her husband and son to do 

laundry and wash dishes. (Tr. 16). She claimed that she was unable to shower daily due 

to pain, and alleged she slept for five to five and a half hours prior to noon and for another 

two to three hours prior to dinner, due to drowsiness from her medications. (Tr. 16). She 

alleged that therapy worsened her back pain even though the medical records appeared 

to contradict that claim. She admitted she continued to camp a few times a year and

attributed her inability to camp more to the lack of money to travel rather than to any 

disability. (Tr. 16). 

Although the ALJ noted inconsistencies between Plaintiff’s subjective reports and 

the evidence in the record throughout her written opinion, the ALJ particularly focused on 

credibility issues in the following section:

In terms of the claimant’s alleged limitations, I find the objective 

evidence...does not fully support her allegations. For example, the claimant 

alleged significant deficits in her ability to engage in activities of daily living 

due to back pain; however, the record demonstrates little to no pain 

behavior. In fact, Dr. Simons often notes the claimant displayed a 

cooperative affect despite alleging serious pain including a pain level of 

7/10. Even when following up with her vocational counselor, the claimant 

was often noted to not demonstrate pain behavior.... While the claimant 
21

had extensive back surgery with repair of the rod, the record demonstrates 

that with physical therapy, a spinal cord stimulator, injections and 

medication, her objective symptoms have been relatively mild. She has not 

repeatedly demonstrated an impaired gait or the need for a cane despite 

alleging a decreased walking capacity, including the inability to walk around 

a store. Physical examination has demonstrated myofascial tenderness 

along with joint tenderness, however she has demonstrated 5/5 muscle 

strength and normal reflexes during most examinations. Examination has 

revealed some sensory deficits particularly in the right lower extremity; 

however, this objective finding does not explain the claimant’s alleged 

severe limitations. Furthermore, the record demonstrates despite alleging 

extreme limitations in her ability to perform activities of daily living she has 

reported traveling to Myrtle Beach, going camping, and going out to dinner. 

In fact, the record demonstrates she reported camping three times in 2013 

and camping as recent[ly] as Memorial Day weekend in 2014.... Her ability 

to engage in pleasurable activities, while alleging an inability to perform 

even daily activities of daily living hinders her allegations.

The medical evidence of record demonstrates that her doctors have 

routinely encouraged the claimant to stay active and lose weight in order to 

improve her reported pain complaints. Despite these recommendations, 

the record demonstrates the claimant has been unsuccessful.... [W]hale the 

claimant has alleged virtually an inactive lifestyle, the record does not 

demonstrate atrophy or other objective signs of such a sedentary lifestyle. 

Straight leg raises have ben routinely negative. Moreover, Dr. Simons 

noted that once the claimant expressed a desire to seek disability, she 

began reporting worsening in her back pain, with no objective change in her 

condition. Dr. Simons noted he felt there was an emotional factor to the 

claimant’s reported pain symptoms. Finally, while the claimant has alleged 

severe side effects from her medication including [] sleeping for up to 8 

hours during the daytime, the record fails to support her allegations. 

Instead, the record demonstrates the claimant often reported no side effects 

from her medication.... The claimant occasionally complained of dizziness 

or nausea, however these complaints did not last and were often 

contributed to [by] other factors. On occasion, the claimant did report 

drowsiness..., however, her medication was often adjusted and resulted in 

the claimant reporting no side effects the next visit. ....Moreover, she did 

not display a fatigued affect and did not allege sleeping half the day.

(Tr. 20-21). 

The ALJ acknowledged Plaintiff’s “back impairment and her extensive road to 

recovery,” (Tr. 21), but made an adverse credibility determination based upon the many 

inconsistencies and contradictions in the record. For example, despite alleging extreme 

limitations in her abilities to engage in activities of daily living, including an inability to 
22

shower regularly or perform personal care needs based on pain, the record reflected that 

Plaintiff was clean, appropriately dressed, with good hygiene. In addition, despite alleging 

severe depressive symptoms, she had not sought mental health treatment other than 

medication. (Tr. 21). And, despite complaints of intermittently increased pain with activity

in 2010, “the claimant admitted she was minimally active with good walking ability and a 

fair quality of life.” (Tr. 17). During a psychological evaluation performed in connection 

with her spinal cord implant trial in January 2011, Plaintiff stated that she performs 

household chores and runs errands, and that she showers and changes her clothes daily 

and independently. (Tr. 18). In October 2011, after surgical placement of the paddle for 

the spinal cord stimulator, Plaintiff reported good relief of her pain symptoms, being able 

to wean off her narcotics, and was advised to increase her activity level. (Tr. 18). In 

another psychological evaluation performed in June 2014, Plaintiff reported driving, 

folding laundry, taking care of her dog, making meals, walking briefly, reading, watching 

television, visiting relatives and friends, dining out, working on puzzles, using the 

computer, going to the store and attending appointments. (Tr. 20). She reported she 

continued to enjoy camping, 3-4 times in the summer of 2013 as well as over Memorial 

Day weekend in 2014, and that she attends her son’s basketball games. (Tr. 20). 

III. Conclusion and Recommendation

As other courts have noted, many people experience chronic pain that is less than 

disabling. See Blacha v. Secretary of Health and Human Services, 927 F.2d 228, 230–

231 (6th Cir.1990) (affirming ALJ's determination that back pain from nerve root 

compression and herniated disc, coupled with degenerative changes, was not disabling). 

The ALJ considered Plaintiff's back condition, including her pain complaints, to be limiting, 

but not disabling. That decision is supported by substantial evidence. Therefore, IT IS 
23

RECOMMENDED THAT Defendant’s decision be AFFIRMED, and that this case be 

CLOSED.

/s Stephanie K. Bowman 

Stephanie K. Bowman

United States Magistrate Judge
24

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

MICHELLE LEE HOFF , Case No. 1:17-cv-550

Plaintiff, Black, J.

Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

NOTICE 

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

objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of 

the filing date of this R&R. That period may be extended further by the Court on timely 

motion by either side for an extension of time. All objections shall specify the portion(s) of 

the R&R objected to and shall be accompanied by a memorandum of law in support of 

the objections. A party shall respond to an opponent’s objections within FOURTEEN (14) 

DAYS after being served with a copy of those objections. 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 (6th Cir. 1981).