plaintiff reported to Dr. Penix that her left hip was aggravated due to “doing a lot of walking on
some uneven ground.” (Tr. 1440). In October 2014, she reported to the physical therapist at
Mercy Health upon discharge that her pain was 0/10 and she had no pain during the prior week.
(Tr. 2004). Plaintiff notes that she reported a recurrence of right shoulder pain to Cincinnati Pain
Management nearly one year later in September 2015, but there is no indication in the record as
to the severity of the pain and plaintiff did not report it as one of her chief complaints at that
time. (Tr. 2220-27).

In addition, the ALJ reasonably discounted plaintiffs credibility because he found her
daily activities were not consistent with her complaints. The ALJ found that although plaintiff's
daily activities are fairly limited, she must carry groceries, including dog food, from her car and
up one flight of stairs to her apartment, which suggests she is able to carry and lift much more
than she alleged. (Tr. 22; see Tr. 74- plaintiff testified that she can lift a gallon of milk but she
uses both hands). Plaintiff alleges the ALJ’s finding was in error because her daily activities are
not indicative of an ability to perform sustained competitive employment. The Court does not
agree that the ALJ erred in this regard. While an individual’s ability to do household chores is
not direct evidence of an ability to perform gainful work, “[aJn ALJ may . . . consider household
and social activities engaged in by the claimant in evaluating a claimant’s assertions of pain or
ailments.” Keeton v. Commr. of Soc. Sec., 583 F. App’x 515, 532 (6th Cir. 2014); Walters, 127
F.3d at 532. See also Blacha v. Sec. of Health & Human Servs., 927 F.2d 228, 231 (6th Cir.
1990) (“[A]n ALJ may consider household and social activities in evaluating complaints of

disabling pain.”). The ALJ here properly considered whether the daily activities described were

20


tolerate interaction with coworkers and supervisors involving limited

interpersonal demands in an object focus nonpublic work setting and can adapt to

routine changes in a simple work setting.
(Tr. 20). Plaintiff has not shown that even if the ALJ was bound to include schizophrenia as a
severe impairment, the disease imposed any additional functional limitations which the ALJ
failed to include in the RFC finding.

Thus, plaintiff has not shown that the ALJ erred by failing to find that schizophrenia was
a severe impairment or, if the ALJ did err, that the error was harmful. Plaintiff's fourth
assignment of error should be overruled.

3. The ALJ did not err in assessing plaintiff's credibility.

Plaintiff's first, second, third and sixth assignments of error relate to the ALJ’s
credibility finding. (Doc. 13). Plaintiff alleges that the ALJ’s credibility finding is not
supported by substantial evidence and does not comply with Social Security Ruling 96-7p.
Plaintiff contends that the ALJ relied on his “own intuition” to discount her credibility without
providing any explanation. (Doc. 13 at 8). Plaintiff also argues that the ALJ erroneously
required her to provide “verifiable objective evidence” in support of her testimony; equated her
activities of daily living and performance of household chores to an ability to perform
substantial gainful activity on a sustained basis; and failed to consider testimony plaintiff
provided regarding the side effects of her medications and rejected other unspecified evidence
that shows the ALJ’s RFC finding does not accurately reflect plaintiff's limitations. Plaintiff
alleges that the ALJ failed to take into account two favorable factors: plaintiff's persistent

efforts to obtain relief for her symptoms as shown by the medical evidence and her “excellent”

14


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

KATHLEEN M. BROWN, Case No. 1:17-cv-151

Plaintiff, Barrett, J.

Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,

Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. 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 on the 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 14 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 (6th Cir. 1981).
24


1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2013.

2. The [plaintiff] has not engaged in substantial gainful activity since September
15, 2008, the initial alleged onset date (20 CFR 404.1571 et seq., and 416.971 et

seq.).

3. The [plaintiff] has the following severe impairments: right shoulder
impingement with history of arthroscopic subacromial decompression, ligament
release and distal clavicle excision; emphysema, left hip chronic bursitis,
degenerative cervical disc disease, borderline intellectual functioning, a bipolar
disorder, schizoaffective features, and an anxiety disorder (20 CFR 404.1520(c)
and 416.920(c)).

4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform light work as defined in
20 CFR 404.1567(b) and 416.967(b) except the right upper extremity can do no
more than occasional overhead reaching with less than 5 pounds; balance
frequently, but no more than occasional stooping, kneeling, crawling, and
climbing of ramps or stairs; but no climbing of ladders, ropes or scaffolds; and no
more than occasional exposure to extreme heat, cold, fumes, dusts, gasses, odors,
and chemicals. The claimant can understand and remember simple instructions
and sustain attention to complete simple, repetitive tasks where production quotas
are not critical; can tolerate interaction with coworkers and supervisors involving
limited interpersonal demands in an object focus nonpublic work setting and can
adapt to routine changes in a simple work setting.

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416,965).!

7. The [plaintiff] was born [in] . . . 1962 and was just under 50 years of age, which
is defined as an individual closely approaching advanced age, as of the amended
alleged disability onset date (20 CFR 404.1563 and 416.963).

‘Plaintiff's past relevant work was as a bag machine operator/machine feeder tender, a heavy unskilled position
which plaintiff performed at the medium exertion level. (Tr. 24).

&)


consistent with the symptoms plaintiff alleged and found her activities were not consistent with
the limited lifting ability she asserted. In making this finding, the ALJ did not improperly equate
plaintiff's ability to perform limited daily activities with an ability to perform substantial gainful
activity.

Plaintiff alleges that the ALJ nonetheless erred by failing to credit her testimony
regarding the side effects of her medication. (Doc. 13 at 17-18). Plaintiff gave vague testimony
at the ALJ hearing that she had “gotten an opinion from [her] doctors” that “most of” the
problems she testified about — joint pain, confusion, memory problems, tiredness, and blurred
vision — were “from my medications.” (Tr. 82-83). However, plaintiff does not point to any
medical evidence that supports her testimony that her medications cause these symptoms or to
show that these side effects impose limitations that are not accounted for in the RFC finding.
The ALJ did not err by failing to fully credit plaintiff's testimony that it was her doctor’s opinion
that “most” of her symptoms were caused by her medications absent corroborating evidence.

Plaintiff further alleges that the ALJ erred by failing to factor her “excellent” work history
into his credibility determination. (Doc. 13 at 8). However, the ALJ’s decision directly refutes
plaintiff's allegation. The ALJ considered plaintiffs “good work history” and found that it
tended to weigh in her favor. (Tr. 22). The ALJ nonetheless determined that evidence on other
factors bearing on plaintiff's credibility outweighed this favorable consideration for reasons the
ALJ thoroughly discussed.

The ALJ properly applied the two-part Duncan standard in evaluating plaintiff's

subjective complaints of pain and other purportedly disabling symptoms. The ALJ conducted a

21


decision that while the change in plaintiffs physical status resulted in the need to limit her
exposure to pulmonary irritants in the RFC finding to account for plaintiff's recent diagnosis of
early emphysema, her limitations do not preclude the performance of substantial gainful activity.
Therefore, the decision of the ALJ should be affirmed.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED and this matter be closed on the

docket of the Court.

Date: Li, 18 FXtren Xbhon
Karen L. Litkovitz

United States Magistrate Judge

23


plaintiff reported an onset of neck pain following a motor vehicle accident, showed stable and
mild degenerative disc disease at C5-C6 that was unchanged from prior tests results. (Tr. 21,
citing Tr. 1015).

Substantial evidence supports the ALJ’s finding that the objective medical evidence also
was not consistent with plaintiffs complaints of a decline in mental functioning since the prior
ALJ decision. (Tr. 24). The ALJ specifically found there was no evidence in the medical record
documenting problems with plaintiff's memory or cognitive decline that would preclude her
from “remembering and completing simple, routine tasks as she had done in the past.” (Tr. 21).
Plaintiff alleges this was error because in an April 2013 Mental Status Questionnaire, treating
psychiatrist Dr. Cheng reported that plaintiff had “short term memory problems.” (Tr. 1089).
However, plaintiff does not point to any treatment records that substantiate this finding or
otherwise support her testimony as to memory problems and cognitive decline.

The ALJ also reasonably discounted plaintiff's allegations that her hallucinations
imposed debilitating limitations on the ground her self-reports of hallucinations were inconsistent
with the medical records. (Tr. 23-24, citing Tr. 1007). The ALJ noted that plaintiff reported that
since 2007 she has seen a “little man” who is always behind her and sometimes talks to her, but
the progress notes indicate that “the hallucinations responds [sic] to medication [] and she rarely
reports being distracted by her schizoaffective symptoms.” (Tr. 23-24, citing Tr. 1808- plaintiff
reported on October 18, 2014, that her hallucinations “were returning” which she believed was
attributable to a decrease in her medications, “more specifically her lithium and Effexor.”).

Plaintiff disputes the ALJ’s finding that the hallucinations did not impose debilitating mental

18


2. The ALJ did not err by failing to find schizophrenia was a severe impairment.
Plaintiff alleges as her fourth assignment of error that the ALJ erred by rejecting a
diagnosis of schizophrenia she was given on the grounds it was (1) based on plaintiff's self-
serving statement, and (2) inconsistent with plaintiffs treatment history, which was focused on
plaintiff's mood and anxiety issues (Tr. 17). (Doc. 13 at 14-15, citing Tr. 1711). The
Commissioner argues in response that the ALJ did not err by omitting schizophrenia as a severe
impairment because the record does not include mental health treatment records in which a
provider made a diagnosis of schizophrenia, and plaintiff has not produced evidence to show she
suffers from debilitating limitations caused by schizophrenia. (Doc. 14 at 8-9). The
Commissioner argues that if the ALJ’s finding was in error, the error was harmless because the
ALJ found that plaintiff suffered from other severe impairments, including schizoaffective
features, at step two of the sequential evaluation process and took all of her impairments into
account at the remaining steps of the process.
An impairment is considered “severe” unless “the [claimant’s] impairment(s) has no
more than a minimal effect on his or her physical or mental ability(ies) to perform basic work
activities.” Social Security Ruling 85-28, 1985 WL 56856, at *3 (1985).° The claimant’s

burden of establishing a “severe” impairment during the second step of the disability

* “Social Security Rulings do not have the force and effect of law, but are ‘binding on all components of the Social
Security Administration’ and represent ‘precedent final opinions and orders and statements of policy and
interpretations’ adopted by the Commissioner.” Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272 n. 1 (6th Cir.
2010) (quoting 20 C.F.R. § 402.35(b)(1)). The Sixth Circuit has refrained from ruling on whether Social Security
Rulings are binding on the Commissioner in the same way as Social Security Regulations but has assumed that they
are. Id. (citing Wilson v. Comm'’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004)).

10


v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of “more than a scintilla of
evidence but less than a preponderance... .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007). In deciding whether the Commissioner’s findings are supported by substantial
evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th
Cir. 1978). Where there has been a prior disability determination, the proper inquiry on judicial
review is “whether ‘new and additional evidence or changed circumstances provide a basis for a
different finding of the claimant’s residual functional capacity.” Rudd v. Comm'r of Soc. Sec.,
531 F. App’x 719, 725-26 (6th Cir. 2013) (quoting AR 98-(6)).

The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)). See also Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
545-46 (6th Cir. 2004) (reversal required even though ALJ’s decision was otherwise supported
by substantial evidence where ALJ failed to give good reasons for not giving weight to treating
physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Errors

On appeal, plaintiff argues that that ALJ erred by: (1) issuing a credibility finding that is
not supported by substantial evidence; (2) requiring plaintiff to provide “verifiable objective

evidence” in support of her testimony; (3) equating plaintiff's activities of daily living and


8. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational rules as a framework supports a finding
that the [plaintiff] is “not disabled” whether or not she has transferable job skills
to other light jobs (See SSR 82-41 and 20 CFR Part 404 Subpart P. Appendix 2).
10. Considering the [plaintiff's] age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national

economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)).?

11 The [plaintiff] has not been under a disability, as defined in the Social Security

Act, from September 15, 2008, through the date of [the ALJ’s] decision (20 CFR

404.1520(g) and 416.920(g)).
(Tr. 16-25).
C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007). The Commissioner’s findings must stand if they are

supported by “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co.

*The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of
representative light occupations such as assembler, inspector quality assurance worker, and packer, which after
taking into account a 10% reduction for the right upper extremity reaching limitations number approximately
815,000 jobs nationally. (Tr. 25).

6


limitations, citing several medical records where she reported hallucinations involving the “little
man.” (Doc. 17 at 6, citing Tr. 1106, 5/30/13- plaintiff reported to consultative examiner that she
“always has a little man behind her that other people cannot see,” she first began seeing him in
2007 when he touched her, and he often tries to shake her hand and talk to her; Tr. 1420,
12/27/13- plaintiff “claims she has a ‘little man that follow[s] her and talks to her at times and
spoke derogatory things and poor sleep as ‘man’ does not let her sleep long”; Tr. 1416, 2/5/14-
plaintiff reported that ““Little man’ continues to mumble to her though it is unintelligible. She is
not distressed by this”; Tr. 1407, 4/21/14- sleep is difficult as her “Little man’ was going manic
in her head,” but she “denies feeling distressed re her atypical hallucination of a ‘Little man’ that
she claims is always present” and she denied any other symptoms of psychosis; Tr. 1404, 5/7/14-
plaintiff reported “seeing a little man standing on her shoulder”; Tr. 1397, 6/18/14- plaintiff
reported “she wasn’t bothered by ‘the little man that stands behind her’”). These records appear
to corroborate the ALJ’s finding that according to her own reports, plaintiff's hallucinations
rarely bothered her. The records thus support the ALJ’s finding that plaintiff's symptoms were
not so severe as to show deterioration in her mental functioning since the prior ALJ decision.
The ALJ reasonably discounted plaintiff's credibility on this basis.

In addition to the lack of objective evidence to support plaintiff's allegations of
debilitating physical and mental limitations, the ALJ reasonably relied on a number of other
factors that he found were inconsistent with plaintiff's allegations of disabling impairments and
pain to find plaintiff's complaints were not fully credible. These factors included inconsistencies

between plaintiffs testimony and her self-reports of symptoms. For instance, in October 2013,

19


living, 2) social functioning, 3) concentration, persistence or pace, and 4) episodes of
decompensation. (Doc. 13 at 16, citing 20 C.F.R. § 404.1520a(c)(3)-(4)).* Plaintiff further
asserts that the ALJ was required to incorporate the results of the evaluation into his findings and
conclusions. (/d., citing 20 C.F.R. § 404.1520a(e)). Plaintiff alleges that the ALJ failed to
consider the four functional areas and make a specific finding as to the degree of limitation in
each area as required by the regulations. In response, the Commissioner contends that the ALJ
explicitly made the required findings and fully complied with the regulations. (Doc. 14 at 7).

In his written decision, the ALJ found that: “In activities of daily living, the claimant has
mild restriction”; “In social functioning, the claimant has moderate difficulties”; “With regard to
concentration, persistence or pace, the claimant has moderate difficulties”; and “As for episodes
of decompensation, the claimant has experienced no episodes of decompensation, which have
been of extended duration.” (Tr. 19). The ALJ incorporated the pertinent findings and
conclusions into his written decision and adequately explained the reasons for his findings. The
ALJ therefore properly assessed the degree of impairment in plaintiff's mental functioning in

compliance with the regulations. See 20 C.F.R. §§ 404.1520a, 416.920a.

Plaintiff's fifth assignment of error should be overruled.

* Section 404.1520a has been modified twice since the date of the ALJ hearing. The regulation in effect on the date
of the hearing provided that in assessing a claimant’s mental functional limitations for purposes of the Listing, the
degree of functional limitation will be assessed in the “four broad functional areas” identified above using a five-
point scale to rate the degree of limitation in the first three areas (“None, mild, moderate, marked and extreme”) and
a four-point scale to rate the degree of limitation in the fourth category (“None, one or two, three, four or more”). 20
C.F.R. § 404.1520a(c)(3)(4); see also 20 C.F.R. § 416.920a(c)(3)(4). The ALJ’s written decision must include “a
specific finding as to the degree of limitations in each of the functional areas. . . .” 20 C.F.R. §§ 404.1520a(e)(4),

416.920a(e)(4).


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KATHLEEN M. BROWN, Case No. 1:17-cv-151
Plaintiff, Barrett, J.
Litkovitz, M.J.
vs.
COMMISSIONER OF REPORT AND
SOCIAL SECURITY, RECOMMENDATION
Defendant.

Plaintiff Kathleen Brown brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security
(Commissioner) denying plaintiff's applications for disability insurance benefits (DIB) and
supplemental security income (SSI). This matter is before the Court on plaintiff's Statement of
Errors (Doc. 13), the Commissioner’s response in opposition (Doc. 14), and plaintiff's reply
(Doc. 17).

I. Procedural Background

Plaintiff originally filed for DIB in May 2009, alleging disability beginning January 5,
2005. She subsequently amended the alleged onset date to September 22, 2008. (Tr. 202).
Plaintiffs application was denied by administrative law judge (ALJ) Christopher McNeil on July
26, 2011 (Tr. 199-215) and the Appeals Council denied review of this decision in February 2013.
(Tr. 224-28). Plaintiff filed her subsequent applications for DIB and SSI in March 2013,
alleging disability since September 15, 2008 due to depression, anxiety, migraines, glaucoma,
rotator cuff disorder-right shoulder, bipolar disorder, a brain aneurysm, COPD, diabetes type 2,

and restless leg syndrome. After initial administrative denials of her claim, plaintiff, through


risperdal. She reports visual and auditory hallucinations. There is a man with a black cape that
has been following her for several [years].” (Tr. 897). When plaintiff again visited Dr. Peeden
to have a form completed for disability purposes on May 21, 2014, Dr. Peeden noted that
plaintiff “is [on] disability due to diagnosis of schizophrenia and bipolar disorder. .. .” (Tr.
1711). In her notes, Dr. Peeden listed schizophrenia as one of two diagnoses. (/d.). These
records suggest that the diagnosis of schizophrenia included in Dr. Peeden’s records was based
on plaintiff's representation that she had previously been diagnosed with schizophrenia and that
Dr. Peeden did not make the diagnosis based on her own medical judgment.

Plaintiff nonetheless alleges the ALJ erred by rejecting a schizophrenia diagnosis on these
grounds because psychiatry is dependent on an individual’s subjective presentations. (Doc. 13 at
15, citing Winning v. Commr. of Soc. Sec., 661 F. Supp. 2d 807, 821 (N.D. Ohio 2009)
(“psychology and psychiatry are, by definition, dependent on subjective presentations by the
patient.”)). However, there is a difference between a plaintiff's subjective complaints and
symptoms and a medical diagnosis that a mental health provider makes based on consideration of
these factors. See, e.g., Byrne v. Astrue, No. 3:11-cv-00353, 2012 WL 5988639, at *9 (S.D. Ohio
Noy. 29, 2012) (Report and Recommendation) (“the ALJ considered all of Plaintiff's alleged

symptoms, as well as the different diagnoses of the various medical source opinions who

considered Plaintiff's symptoms”), adopted, 2013 WL 26124 (S.D. Ohio Jan. 2, 2013). An ALJ
is not obligated to accept a diagnosis of a mental impairment based on the individual’s assertion
that she has been given that diagnosis in the absence of any medical records that substantiate the

individual’s report. Thus, the ALJ did not err by failing to find plaintiff's schizophrenia was a

12


determination process is a “de minimis hurdle.” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.
1988). “Under [this] prevailing de minimis view, an impairment can be considered not severe
only if it is a slight abnormality that minimally affects work ability regardless of age,
education, and experience.” Jd.

The ALJ found that the following mental impairments were “severe impairments” at step
two of the sequential evaluation process: “borderline intellectual functioning, a bipolar disorder,
schizoaffective features, and an anxiety disorder.” (Tr. 16). The ALJ acknowledged that
plaintiff's primary care provider, Dr. Peeden, “did mention” a diagnosis of schizophrenia in her
treatment notes. (Tr. 17, citing Tr. 1711). However, the ALJ declined to find that schizophrenia
was a severe impairment because it was based largely on plaintiff's “self-serving statement about
her mental disability,” and it was inconsistent with plaintiff's mental health treatment history,
which was focused on mood and anxiety issues as opposed to any type of psychotic disorder.
(Id.).

Plaintiff has not shown that the ALJ committed any error at step two by failing to find
schizophrenia was a severe impairment. The record supports the ALJ’s finding that the diagnosis
of schizophrenia included in the record was based in large part on plaintiff's self-report to her
primary care physician, Dr. Peeden. (Tr. 1171). Dr. Peeden reported on June 15, 2010 that
plaintiff came in “to have forms complete[d] for Ohio Job and Family Services . . . Patient has

gone to see Dr[.] Wu’ since last visit and diagnosed [sic] with schizophrenia. She was started on

° The prior ALJ decision of July 26, 2011, states that on June 12, 2010, Dr. Geraldine Wu, M.D., examined plaintiff
on referral from a social worker at Lifepoint Solutions and Dr. Wu assessed “a major depressive disorder, with
psychosis [the claimant again reported visual and auditory hallucinations]. . . .” (Tr. 208).

11


household chores to an ability to perform substantial gainful activity on a sustained basis; (4)
failing to find that schizophrenia was a severe impairment; (5) failing to use the required
technique set forth in 20 C.F.R. § 404.1520a for analyzing the severity of plaintiff's mental
impairments; and (6) failing to consider testimony plaintiff provided regarding the side effects of
her medications and rejecting other unspecified evidence that shows the ALJ’s RFC finding does
not accurately reflect plaintiff's limitations.’ (Doe. 13). Plaintiff's first, second, third and sixth
assignments of error all present challenges to the ALJ’s credibility finding. The Court will
therefore combine these allegations of error and consider them together. The Court will also
consider plaintiff's assignments of error in a different sequence than plaintiff has presented them
in the Statement of Errors.

1. The ALJ did not fail to properly analyze plaintiff's mental limitations.

Plaintiff alleges as her fifth assignment of error that the ALJ failed to properly evaluate
her severe mental impairments. (Doc. 13 at 15-16). Plaintiff notes that the ALJ found she
suffers from borderline intellectual functioning, a bipolar disorder, schizoaffective features, and
an anxiety disorder. (Tr. 16). Plaintiff states that the ALJ was required to evaluate on a four-

point scale how these mental impairments impacted four functional areas: 1) activities of daily

3 Plaintiff makes a conclusory allegation in her Statement of Errors that the ALJ did not properly formulate the RFC
because the ALJ “refused to consider . . . selected opinions of the consultative examiner and treating sources. . . .”
(Doc. 13 at 19). Plaintiff has waived this argument by alluding to it in a cursory manner and failing to develop the
argument factually or legally. Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (stating that the Sixth
Circuit “has consistently held that arguments not raised in a party’s opening brief, as well as arguments adverted to in
only a perfunctory manner, are waived.”) (citing Caudill v. Hollan, 431 F.3d 900, 915 n. 13 (6th Cir. 2005) (citing
decisions that stand for these two related propositions)). See also McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th
Cir. 1997) (“It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court

to... put flesh on its bones.”).

8


thorough evaluation of plaintiffs complaints in light of the objective medical evidence of record,
her reported daily activities, and other pertinent factors. The ALJ reasonably relied on a lack of
supporting objective findings, inconsistencies between plaintiff's testimony and the medical
records, and plaintiff's activities of daily living in finding that plaintiff's allegations of disabling
physical and mental limitations were not fully credible. Although plaintiff has pointed to
medical evidence showing she suffers from several severe impairments and resulting limitations,
the ALJ did not err by resolving inconsistencies in the evidence in plaintiff's favor. Solembrino
v. Astrue, No. 1:10-cv-01017, 2011 WL 2115872, at *8 (N.D. Ohio May 27, 2011) (an ALJ
“does not ‘cherry pick’ the evidence merely by resolving some inconsistencies unfavorably to a
claimant’s position.”). The ALJ performed a sufficient analysis to show he considered the
relevant evidence. See Cross v. Comm'r of Soc. Sec., 373 F. Supp.2d 724, 733 (N.D. Ohio 2005)
(“The ALJ need not analyze all seven factors identified in the regulation but should provide
enough assessment to assure a reviewing court that he or she considered all relevant evidence.”).
The ALJ’s credibility determination is substantially supported and should not be disturbed by this
Court, even if the evidence could support another outcome. Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983); Her v. Commr. of Soc. Sec., 203 F.3d 389-90 (6th Cir. 1999).

Plaintiff's first, second, third and sixth assignments of error should be overruled.
IH. Conclusion

Substantial evidence supports the ALJ’s decision that the record does not disclose new
and material evidence or changed circumstances pertaining to plaintiff's mental RFC since July

26, 2011, the date of the prior ALJ decision. Substantial evidence also supports the ALJ’s

22


When adjudicating a subsequent disability claim with an unadjudicated period

arising under the same title of the Act as the prior claim, adjudicators must adopt

such a finding from the final decision by an ALJ or the Appeals Council on the

prior claim in determining whether the claimant is disabled with respect to the

unadjudicated period unless there is new and material evidence relating to such a

finding or there has been a change in the law, regulations or rulings affecting the

finding or the method for arriving at the finding.
Acquiescence Ruling (AR) 98-4(6), 1998 WL 274052 (June 1, 1998); AR 98-3(6), 1998 WL
274051 (June 1, 1998). See also Perry, for G.D. v. Comm’r of Soc. Sec., 501 F. App’x 425, 427
(6th Cir. 2012) (quoting AR 98-4(6)) (“An ALJ adjudicating a subsequent disability claim
‘arising under the same title of the [Social Security] Act as the prior claim’ must adopt the
original ALJ’s final decision unless ‘new and material evidence’ shows a change in [the]
claimant’s condition.”).

B. The Administrative Law Judge’s Findings

In rendering his decision on plaintiff's subsequent DIB and SSI applications, ALJ Collins
recognized he was bound under principles of administrative res judicata by ALJ McNeil’s prior
findings, absent new and material evidence or changed circumstances pertaining to plaintiff's
residual functional capacity (RFC). (Tr. 24, citing AR 98-3(6), AR 98-4(6)). ALJ Collins found
no evidence of any change in plaintiff's mental impairments and no change in her physical
condition since July 26, 2011, the date of the prior ALJ decision, except that plaintiff now used
an inhaler for early emphysema. (Tr. 24). He added a restriction limiting exposure to pulmonary
irritants in the RFC finding to account for plaintiff's recent diagnosis of early emphysema. (/d.).

The ALJ applied the sequential evaluation process and made the following findings of fact and

conclusions of law:


work history. (/d.). Plaintiff contends that the ALJ’s decision “cherry-picks” select portions of
the record rather than considering the evidence as a whole. (/d. at 11). Plaintiff argues her
testimony is not inconsistent with the substantial medical evidence of record and the ALJ erred
by discounting it. (/d. at 7-14, 16-18).

The Commissioner responds that the record fully supports the ALJ’s finding that
plaintiff's complaints were not entirely credible and were inconsistent with the objective
evidence in the record. (Doc. 14 at 11-16). The Commissioner argues that the ALJ reasonably
considered the lack of supporting objective findings; the treatment records which showed that
treatment improved plaintiff's mental health symptoms; inconsistencies in plaintiff's testimony;
plaintiff's failure to pursue recommended treatment; and plaintiff's activities of daily living.

Title 20 C.F.R. §§ 404.1529, 416.929 and Social Security Ruling 96-7p, 1996 WL
374186 (July 2, 1996)’ describe a two-part process for assessing the credibility of an individual’s
statements about symptoms, including pain. First, the ALJ must determine whether a claimant
has a medically determinable physical or mental impairment that can reasonably be expected to
produce the symptoms alleged; second, the ALJ must evaluate the intensity, persistence, and
functional limitations of those symptoms by considering objective medical evidence and other

evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of

7 Effective March 2016, SSR 96-7p has been superseded by SSR 16-3p, 2016 WL 1119029, which “provides
guidance about how [the SSA] evaluate[s] statements regarding the intensity, persistence, and limiting effects of
symptoms.” There is no indication in the text of SSR 16-3p that the SSA intended to apply SSR 16-3p retroactively,
and the Ruling therefore does not apply here. See Watts v. Comm’r of Soc. Sec., No. 1:16-cv-319, 2017 WL 430733,
at *10, n. 5 (S.D. Ohio Jan. 31, 2017) (Report and Recommendation) (Litkovitz, M.J.), adopted, 2017 WL 680538
(S.D. Ohio Feb. 21, 2017) (Barrett, J.); Cameron v. Colvin, No. 1:15-cv-169, 2016 WL 4094884, at *2 (E.D. Tenn.

Aug. 2, 2016).
15


First, the ALJ reasonably found that the treatment records disclosed that the objective
medical findings were inconsistent with plaintiff's complaints of debilitating physical limitations.
Although the record documents ongoing treatment for plaintiffs hip pain, imaging tests disclosed
only mild hip findings. An MRI of plaintiff's left hip performed on January 10, 2014 showed
“[s]light peritendinous edema lateral to the gluteus medius tendon insertion consistent with mild
tendinopathy” and an “otherwise unremarkable examination.” (Tr. 21, citing Tr. 1532).
Plaintiff's treating orthopedist, Dr. Arnold Penix, M.D., reported that the MRI was consistent
with “some abductor tendinitis.” (Tr. 1440). The record also documents right shoulder
impingement for which plaintiff underwent an arthroscopy and a subacromial debridement,
ligament release, and excision of an osteophyte on June 6, 2013. (Tr. 17, citing 1167; see Tr.
1450-51). In October 2013, Dr. Penix reported the shoulder was doing well overall, although
plaintiff would require further surgery for auxiliary skin abscesses. (Tr. 1440). Treatment
records from Cincinnati Pain Management, where plaintiff treated from May until at least
September 2015 (Tr. 2220-98), repeatedly noted normal shoulder findings, including full range
of motion, full motor strength, and full functioning of the right upper extremity and shoulder.

(Tr. 21, 22, citing Tr. 2230-31, 2242-43, 2258-59, 2282-83, 2295-96). In addition, the ALJ
acknowledged that plaintiff complained on occasion of shortness of breath to her providers. (Tr.
17). However, the ALJ reasonably found that plaintiff's complaints of shortness of breath with
only minimal effort were not supported by her pulmonary function test, which disclosed only
mild emphysema, and her six-minute walking test, which was negative for oxygen desaturation.

(Tr. 21; see Tr. 933-935). Finally, x-rays of the cervical spine taken in October 2012, after

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4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not

disabled. If the claimant cannot make an adjustment to other work, the claimant is

disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004), Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).

Principles of administrative res judicata apply to a decision concerning a claimant’s
eligibility for social security benefits. Drummond v. Comm’r of Social Security, 126 F.3d 837,
841 (6th Cir. 1997); Dennard v. Sec'y of HHS, 907 F.2d 598 (6th Cir. 1990). Social security
claimants and the Commissioner alike are barred from relitigating issues that have previously
been determined. Drummond, 126 F.3d at 842; Dennard, 907 F.2d at 600. Absent evidence that
a claimant’s condition has changed, findings issued by an ALJ in a prior disability determination
are binding on an ALJ in a subsequent proceeding. Drummond, 126 F.3d at 842; Dennard, 907

F.2d at 600. The Commissioner has recognized the binding effect of findings made in a prior

adjudication on subsequent adjudicators:


counsel, requested a hearing. Plaintiff and a vocational expert (VE) testified at a hearing held on
August 6, 2015 before ALJ Steven Collins. Plaintiff amended her alleged onset date at the
hearing to July 14, 2011. (Tr. 14, 41-44). On December 15, 2015, the ALJ issued a decision
denying plaintiff's DIB and SSI applications. Plaintiff's request for review by the Appeals
Council was denied, making the decision of the ALJ the final administrative decision of the
Commissioner.
II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A)
(DIB), 1382c(a)(3)(A) (SSD. The impairment must render the claimant unable to engage in the
work previously performed or in any other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or

mental impairment — i.e., an impairment that significantly limits his or her

physical or mental ability to do basic work activities — the claimant is not

disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the

listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.


severe impairment on the ground the diagnosis in the record was based largely on her self-report
that she had been diagnosed with the impairment.

Further, even if the ALJ erred by failing to include schizophrenia as a severe impairment,
the error was harmless. An ALJ’s failure to find a severe impairment where one exists may not
constitute reversible error where the ALJ determines that a claimant has at least one
other severe impairment and continues with the remaining steps of the disability evaluation.
Maziarz v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987). This rule is
predicated on the notion that the ALJ “properly could consider the claimant’s [non-severe
impairments] in determining whether [the] claimant retained sufficient residual functional
capacity to allow him to perform substantial gainful activity.” /d. In this case, the ALJ
determined that plaintiff had several severe mental impairments, including schizoaffective
features, and the ALJ continued to conduct a meaningful analysis of how plaintiffs severe
impairments impacted plaintiff's mental functioning. (Tr. 16-20). The ALJ considered the
impact of those symptoms in assessing whether plaintiff's mental limitations had changed since
the prior ALJ decision. The ALJ concluded that the “longitudinal record does not suggest any
deterioration” in plaintiffs overall mental condition since the prior ALJ decision. (Tr. 24). The
ALJ found that because there had been no change in the severity of plaintiff's mental
impairments, her mental restrictions were the same as those assessed by the prior ALJ. (/d.).
The ALJ adopted these restrictions from the prior RFC finding to account for plaintiff's
functional limitations resulting from her mental impairments:

[Plaintiff] can understand and remember simple instructions and sustain attention
to complete simple, repetitive tasks where production quotas are not critical; can

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pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage,
effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5)
treatment, other than medication, received for relief of pain or other symptoms; (6) any measures
used to relieve pain or other symptoms; and (7) other factors concerning functional limitations
and restrictions due to pain or other symptoms. 20 C.F.R. §§ 405.1529(c), 416.929(c), SSR
96-7p. “[A]n 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. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
“Nevertheless, an ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence.” Id.

Upon review of the ALJ’s complete credibility determination, the Court finds the ALJ’s
credibility finding is substantially supported by the evidence of record and is entitled to
deference. The ALJ found that plaintiff's testimony was not entirely credible for reasons the ALJ
thoroughly discussed in his written decision. (Tr. 20-24). The ALJ properly considered
plaintiff's subjective statements as to her symptoms and functional limitations together with her
daily activities, the objective medical evidence, and the medical opinions of record. See Newman
y. Colvin, No. 1:15-cv-639, 2017 WL 685685, at *6-7 (S.D. Ohio Feb. 1, 2017) (Report &
Recommendation) (holding that ALJ properly considered the requisite factors in making his
credibility determination because he considered the plaintiff's subjective statements, objective
medical evidence, the plaintiff's activities of daily living, and the record medical opinions),

adopted, Newman v. Comm’r of Soc. Sec., 2017 WL 680632 (S.D. Ohio Feb. 21, 2017).

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