UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

SHERI S. SMITH, 

Plaintiff, 

 Civil Action 2:17-cv-950 

 Chief Judge Edmund A. Sargus, Jr. 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

 

REPORT AND RECOMMENDATION

 

 Plaintiff, Sheri S. Smith (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

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

application for a period of disability and disability insurance benefits. This matter is before the 

undersigned for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 6), 

the Commissioner’s Response in Opposition (ECF No. 12), and the administrative record (ECF 

No. 5). For the reasons that follow, it is RECOMMENDED that Plaintiff’s Statement of 

Errors be OVERRULED and that the Commissioner’s decision be AFFIRMED. 

I. BACKGROUND 

Plaintiff protectively filed her application for a period of disability and disability 

insurance benefits on January 19, 2014. In her application, Plaintiff alleged a disability onset of 

September 8, 2008. Plaintiff’s application was denied initially on March 31, 2014, and upon 

reconsideration on August 8, 2014. Plaintiff sought a hearing before an administrative law 

judge. Administrative Law Judge Paul E. Yerian (“ALJ”) held a hearing on March 14, 2016, at 
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which Plaintiff, represented by counsel, appeared and testified. Vocational expert Hermona C. 

Robinson, Ph.D. (the “VE”) also appeared and testified at the hearing. On May 11, 2016, the 

ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social 

Security Act. On August 31, 2017, the Appeals Council denied Plaintiff’s request for review 

and adopted the ALJ’s decision as the Commissioner’s final decision. Plaintiff then timely 

commenced the instant action. 

In her Statement of Errors (ECF No. 6), Plaintiff advances two contentions of error. 

First, Plaintiff contends that the ALJ’s residual functional capacity (“RFC”) determination is not 

supported by substantial evidence. In Plaintiff’s view, the ALJ relied on medical and opinion 

evidence that he incorrectly interpreted. The thrust of Plaintiff’s argument is that the opinion 

evidence of record comprises a significant portion of the record and is consistent with a more 

restrictive RFC. Plaintiff further asserts that the ALJ cherry-picked the record “in an effort to 

support his own opinion.” (Pl.’s Statement of Errors 8, ECF No. 6.) Second, Plaintiff 

contends that the ALJ failed to properly evaluate her statements regarding the intensity, 

persistence, and limiting effects of her symptoms. More specifically, Plaintiff argues that the 

ALJ inaccurately summarized Plaintiff’s activities of daily living and failed to account for her 

extensive efforts to seek relief from her pain and other symptoms. Plaintiff concludes, 

therefore, that the ALJ’s decision requires remand because it is not supported by substantial 

evidence. 

II. THE ADMINISTRATIVE DECISION 

 On May 11, 2016, the ALJ issued his decision. (R. at 60-72.) At step one of the 
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sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantial 

gainful activity since September 8, 2008, the alleged onset date. The ALJ found that Plaintiff 

had the severe impairments of cervical disc replacement and degenerative disc disease of the 

cervical spine, status-post two cervical fusions; right shoulder rotator cuff impingement with 

degenerative changes, status-post right shoulder arthroscopy and right rotator cuff repair; 

diabetes mellitus, type II; and obesity. He further found that Plaintiff did not have an 

impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. At step four of the 

sequential process, the ALJ set forth Plaintiff’s RFC as follows: 

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

the residual functional capacity to perform light work as defined in 20 CFR 

404.1567(b) except the claimant could not climb ladders, ropes, or scaffolds, but 

 

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

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

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

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

1. Is the claimant engaged in substantial gainful activity? 

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

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

the criteria of an impairment set forth in the Commissioner's Listing of 

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

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

perform his or her past relevant work? 

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

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

national economy? 

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
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could frequently climb stairs and ramps, stoop, kneel, or crawl; and occasionally 

reach overhead. 

(R. at 64.) In reaching this determination, the ALJ followed a two-step process. The first ALJ 

concluded that “[a]fter careful consideration of the evidence, . . . [Plaintiff’s] medically 

determinable impairments could reasonably be expected to cause the alleged symptoms.” (R. at 

65.) The ALJ then found that Plaintiff’s “statements concerning the intensity, persistence and 

limiting effects of these symptoms are not entirely consistent with the medical evidence and 

other evidence in the record.” (Id.) The ALJ reasoned as follows: 

Considering the criteria enumerated in the regulations for evaluating the 

claimant’s subjective complaints, I conclude that the claimant’s testimony is not 

fully consistent with or fully supported by the objective medical evidence. 

Moreover, the objective medical evidence does not conform to the severity of the 

alleged pain and other functional restrictions arising from the claimant’s 

documented condition, and the claimant’s objectively established medical 

condition is not of such severity as to reasonably be expected to produce disabling 

discomfort or other disabling functional limitations. 

(R. at 68-69.) 

 Relying on the VE’s testimony, the ALJ found that even though Plaintiff is unable to 

perform her past work, she can perform jobs that exist in significant numbers in the national 

economy. (R. at 71-72.) He therefore concluded that Plaintiff was not disabled under the 

Social Security Act. (R. at 72.)

III. STANDARD OF REVIEW 

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

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

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

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. 
5 

§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by 

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

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

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

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

1994)). 

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

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

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

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

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

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

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 

270, 273 (6th Cir. 1997)). 

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

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

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)). 

IV. ANALYSIS 

 As set forth above, Plaintiff maintains that (1) the ALJ’s RFC is not supported by 

substantial evidence and (2) the ALJ erred in evaluating Plaintiff’s subjective statements 
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regarding the intensity, persistence, and limiting effects of her symptoms. The undersigned 

addresses each of these contentions of error in turn. 

A. The ALJ’s RFC Determination 

A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and 

mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 

149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of a 

claimant’s RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 

416.927(e). Nevertheless, substantial evidence must support the Commissioner’s RFC finding. 

Berry v. Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). 

In this case, the ALJ’s decision amply supplies substantial evidence supporting his 

determination. In connection with his RFC determination, the ALJ discussed the record 

evidence, including objective medical evidence, opinion evidence, Plaintiff’s symptoms, and 

Plaintiff’s testimony. The ALJ offered a thorough discussion of the medical evidence and 

ultimately concluded that “[c]onsidering the medical evidence and opinions . . . , as well as the 

claimant’s activities, I find that the claimant’s subjective complaints and alleged limitations are 

not fully consistent with the evidence.” (R. at 70.) Although the ALJ found that Plaintiff was 

not as limited as she alleged, the ALJ acknowledged, discussed, and accommodated Plaintiff’s 

functional limitations by limiting her to light work with postural limitations, including only 

occasional overhead reaching. In reaching his RFC determination, the ALJ relied on opinion 

evidence in the record, specifically the opinions of state agency reviewing physicians James 

Cacchillo, D.O., and Elizabeth Das, M.D. He assigned “significant weight” to the opinions of 

Drs. Cacchillo and Das, explaining that that they were “consistent with the evidence” and “with a 
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limitation to a range of light work.” (R. at 69.) Drs. Cacchillo and Das found that Plaintiff’s 

allegations were “fully credible” and opined the following postural and manipulative limitations: 

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

pounds; could stand and/or walk for six hours in an eight-hour workday and sit for six hours in 

an eight-hour workday; could climb ramps and stairs frequently, but never climb ladders, ropes, 

or scaffolds; could stoop and crouch frequently; could crawl occasionally; and could perform 

limited occasional overhead reaching. (R. at 135-37, 150-51.) With the exception of limiting 

Plaintiff to frequent rather than occasional crawling, the ALJ’s RFC mirrored the opined 

limitations. (Compare R. at 64, with R. at 135-37, 150-51.) 

Plaintiff’s contention that the ALJ erred by “cherry-picking” the evidence lacks merit. 

Significantly, Plaintiff does not challenge the ALJ’s weighing and consideration of the opinion 

evidence. Rather, she maintains that the ALJ mischaracterized the evidence, arguing he erred in 

determining the opinions were inconsistent with the record, even though “the opinions make up a 

significant part of the record (8 exhibits).” (Pl.’s Statement of Errors 6, ECF No. 6.) The 

undersigned is not aware of any authority requiring an ALJ to include a particular RFC limitation 

based upon the quantity of record exhibits that support such a limitation. Regardless, Plaintiff 

misstates the proportion of the evidence comprised of opinions to which the ALJ gave limited 

weight. The medical evidence comprises several hundred pages of the greater-than 1,000 page 

record, whereas the discredited opinions account for fewer than thirty pages. (See R. at 373-77 

(opinion from Dr. James Sardo); R. at 387-89 (opinion from Dr. Denise Choice); R. at 422-26 

(opinion from Dr. Arvin Gallanosa); R. at 445-48 (opinion from Dr. Robert Stephenson); R. at 

478 (opinion from Dr. Ralph Rohner); R. at 503, 506-08 (opinion from physical therapist Alice 
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Moneypenny); R. at 917 (opinion from Dr. Ying Chen); R. at 1011-12, 1017-18 (reports of work 

ability).) Moreover, other record evidence and opinions (in addition to the opinions of the state 

agency reviewing physicians) support the ALJ’s determination. For example, Dr. H. Tom 

Reynolds opined that Plaintiff “could possibly perform light duty physical activity levels limiting 

motion of right upper limb at the shoulder,” and physical therapist Joy Atwood opined that 

Plaintiff could “occasionally lift up to 17.5 lbs . . . [and] carry up to 20 lbs.” (R. at 444, 460.) 

See also 20 C.F.R 404.1567(b) (“Light work involves lifting no more than 20 pounds at a time 

with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight 

lifted may be very little, a job is in this category when it requires a good deal of walking or 

standing, or when it involves sitting most of the time with some pushing and pulling of arm or 

leg controls.”). Plaintiff’s argument that discredited opinions support a more restrictive RFC 

does not persuade the undersigned that remand is necessary in view of the countervailing record 

evidence upon which the ALJ relied. Rather, as set forth above, “there is a zone of choice 

within which the decision-makers can go either way, without interference by the courts.” 

Blakely, 581 F.3d at 406; Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) 

(“Even if the evidence could also support another conclusion, the decision of the Administrative 

Law Judge must stand if the evidence could reasonably support the conclusion reached.”). 

In summary, the undersigned concludes that the ALJ’s RFC determination is supported 

by substantial evidence. Accordingly, it is RECOMMENDED that Plaintiff’s first contention 

of error be OVERRULED. 
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B. The ALJ’s Credibility Determination 

 For decisions rendered on or after March 28, 2016, the ALJ will evaluate a claimant’s 

statements concerning the intensity, persistence, and limiting effects of symptoms of an alleged 

disability under SSR 16-3p. SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017). SSR 16-3p 

superseded SSR 96-7p, 1996 WL 374186 (July 2, 1996), which required the ALJ to evaluate the 

overall credibility of a plaintiff’s statements. In contrast, SSR 16-3p requires the ALJ to 

evaluate the consistency of a plaintiff’s statements, without reaching the question of overall 

credibility, or character for truthfulness. See id. at *11 (“In evaluating an individual’s 

symptoms, our adjudicators will not assess an individual’s overall character or truthfulness in the 

manner typically used during an adversarial court litigation. The focus of the evaluation of an 

individual’s symptoms should not be to determine whether he or she is a truthful person.”). 

Although SSR 16-3p supersedes SSR 96-7p, “according to the very language of SSR 16-3p, its 

purpose is to ‘clarify’ the rules concerning subjective symptom evaluation and not to 

substantially change them.” Brothers v. Berryhill, No. 5:16-cv-01942, 2017 WL 2912535, at 

*10 (N.D. Ohio June 22, 2017). The rules were clarified primarily to account for the difference 

between a credibility determination, which necessarily impacts the entirety of a claimant’s 

subjective testimony, and a consistency determination, which applies only to specific statements 

regarding symptoms. See SSR 16-3p at *2. It follows, therefore, that the procedures for 

reviewing an ALJ’s credibility assessment under SSR 16-3p are substantially the same as the 

procedures under SSR 96-7p. Accordingly, the undersigned concludes that existing case law 

controls to the extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s 

clarification. 
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 The Sixth Circuit has provided the following guidance in considering an ALJ’s 

credibility assessment: 

Where the symptoms and not the underlying condition form the basis of the 

disability claim, a two-part analysis is used in evaluating complaints of disabling 

pain. 20 C.F.R. § 416.929(a); Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001); 

Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994). First, the ALJ will ask 

whether the there is an underlying medically determinable physical impairment that 

could reasonably be expected to produce the claimant’s symptoms. 20 C.F.R. § 

416.929(a). Second, if the ALJ finds that such an impairment exists, then he must 

evaluate the intensity, persistence, and limiting effects of the symptoms on the 

individual’s ability to do basic work activities. Id. 

Rogers, 486 F.3d at 247. 

The ALJ’s credibility determination “with respect to [a claimant’s] subjective complaints 

of pain” is generally given deference. Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 

2009) (quoting Siterlet v. Sec’y of Health & Hum. Servs., 823 F.2d 918, 920 (6th Cir. 1987)). 

Despite this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by 

substantial evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on 

credibility must be “based on a consideration of the entire record.” Rogers, 486 F.3d at 247 

(internal quotation omitted). An ALJ’s explanation of his or her credibility decision “must be 

sufficiently specific to make clear to the individual and to any subsequent reviewers the weight 

the adjudicator gave to the individual’s statements and the reasons for that weight.” Id. at 248; 

see also Mason v. Comm’r of Soc. Sec. Admin., No. 1:06–CV–1566, 2012 WL 669930, at *10 

(N.D. Ohio Feb. 29, 2012) (“While the ALJ’s credibility findings ‘must be sufficiently specific’, 

Rogers, 486 F.3d at 248, the intent behind this standard is to ensure meaningful appellate 

review.”). In addition, the Regulations list a variety of factors an ALJ must consider in 

evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of 
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medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 16–3p; but 

see Ewing v. Astrue, No. 1:10–cv–1792, 2011 WL 3843692, at *9 (N.D. Ohio Aug. 12, 2011), 

adopted, 2011 WL 3843703 (suggesting that although an ALJ is required to consider such 

factors, he or she is not required to discuss every factor within the written decision). 

In this case, the undersigned concludes that the ALJ’s detailed discussion supplies 

substantial evidence supporting his credibility finding and that he properly considered the 

requisite factors in evaluating Plaintiff’s subjective statements. Contrary to Plaintiff’s 

assertions, the ALJ included a lengthy and thorough discussion of the record evidence, which 

included a review of the objective medical findings. See 20 C.F.R. § 404.1529(c)(2) (objective 

medical findings are useful in assessing the intensity and persistence of a claimant’s symptoms). 

For example, the ALJ discussed the mild results of imaging studies and the normal results of 

EMG testing (see, e.g., R. at 66-67 (identifying normal results of February 2009 EMG)); R. at 68 

(noting that “follow up imaging studies [of the cervical spine] showed a stable appearance of 

both the anterior and posterior instrumentation (exhibit 31 F, p. 4).”), as well as results of 

physical examinations reflecting mild symptomology (see, e.g., R. at 66 (noting that results from 

a May 2012 shoulder exam reflected “tenderness, decreased range of motion, and 4/5 strength, 

but with no signs of instability and she was neurovascularly intact”); R. at 68 (“Post-operatively, 

the claimant complained of some neck pain and paresthesia in the fourth digits; however, she 

was otherwise neurologically intact with no focal weakness.”).) 

The ALJ also reasonably considered the record evidence reflecting Plaintiff’s activities of 

daily living. See 20 C.F.R. § 404.1529(c)(3)(i) (daily activities may be useful to assess nature 

and severity of claimant’s symptoms); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th 
12 

Cir. 2004) (“The administrative law judge justifiably considered [the claimant’s] ability to 

conduct daily life activities in the face of his claim of disabling pain.”). Contrary to Plaintiff’s 

assertions, the ALJ accurately summarized Plaintiff’s activities of daily living as follows: 

She testified that she [] did not perform any household chores, that she performed 

most of her personal care with her left arm, with help from her husband with some 

activities, and that she only drove about two times a week because of her 

limitations. However, the treatment notes indicate that she could perform her 

personal care independently, with only some modification due to decreased range 

of motion. Other notes reflect the ability to do yardwork, drive and lift light to 

medium weights. Additionally, despite standing two to three times during the 

hearing, the claimant was able to attend the hearing proceedings closely and fully. 

(R. at 68.) The record supports the ALJ’s findings. For example, the record supports the ALJ’s 

observation that Plaintiff is able to perform her personal care, generally without assistance. 

(See, e.g., R. at 462 (“[Plaintiff] is independent with activities of daily living . . . including: 

dressing, grooming, bathing, hygiene, [and] cooking . . . .”); R. at 505 (“The client reports that 

she is able to perform her personal care activities independently, although she has had to change 

the way that she does those activities secondary to her decreased ROM and strength and 

increasing pain.”); R. at 551 (Plaintiff’s reports, including “Can wash and bathe myself, [c]an 

dress myself, can do all my self care . . . .”); R. at 565 (“Can do all my self care . . . .”).) The 

record also supports the ALJ’s acknowledgment that Plaintiff has reported the ability to do 

yardwork, chores, drive, and lift up to medium weights. (See, e.g., R. at 462 (reporting 

Plaintiff’s ability to perform basic chores, although “[m]inimal assistance is required for 

laundry”); R. at 505 (“The client reports that she is . . . able to lift light to medium weights that 

are conveniently placed.”); R. at 551 (Plaintiff reporting that she “can drive a vehicle, can ride in 

a vehicle, [and] can do yardwork”).) Finally, in performing a “work related” assessment, Ms. 

Atwood observed that Plaintiff “demonstrated the ability to occasionally lift up to 17.5 lbs. 
13 

[f]loor to [w]aist, 15 lbs. [w]aist to [s]houlder, carry up to 20 lbs, push 29.6 lbs. of force, and pull 

18.6 lbs. of force.” (R. at 460.) Thus, although some record evidence support the conclusion 

that Plaintiff is more limited in her activities of daily living, (see, e.g., R. at 424), the 

undersigned finds that substantial evidence supports the ALJ’s findings with respect to Plaintiff’s 

activities of daily living. 

 In addition, the ALJ properly relied upon the credited medical opinions in the record. 

First, Plaintiff’s contention that the ALJ improperly relied on physical therapist Alice 

Moneypenny’s report that Plaintiff can lift light to medium weights is unpersuasive. As the 

Commissioner correctly notes, Ms. Moneypenny’s statement was based on Plaintiff’s reported 

activities, and nothing in the ALJ’s decision indicates that he interpreted this statement to mean 

Plaintiff could perform medium work as defined in 20 C.F.R. § 404.1567(c). (Cf. R. at 64 (RFC 

determination that Plaintiff can perform light work).) Rather, the ALJ’s decision reflects that he 

considered Ms. Moneypenny’s statements, together with the rest of the record evidence, as part 

of his evaluation of Plaintiff’s statements. (See R. at 68 (explaining “[o]ther notes reflect the 

ability to do yardwork, drive and lift light to medium weights.” (citations to exhibits omitted)).) 

Consistently, the ALJ later expressly recognized that “the claimant has reported having the 

ability to lift light to medium weights.” (R. at 69 (emphasis added).) 

Plaintiff’s reliance on the credibility findings of the state agency reviewing physicians is 

likewise misplaced. Plaintiff correctly notes that Drs. Cacchillo and Das found Plaintiff to be 

fully credible, reasoning that “[Plaintiff’s] statements regarding her impairments are consistent 

with the objective findings in [the] file[] and are considered credible.” (R. at 135, 150.) As the 

Commissioner points out, however, Drs. Cacchillo and Das also found that Plaintiff’s statements 
14 

about the intensity, persistence, and functionally limiting effects of her symptoms are not 

substantiated by the objective medical evidence alone. (R. at 135, 149.) Moreover, even 

though Drs. Cacchillo and Das found Plaintiff to be credible, they opined that she retained the 

functional capacity to engage in light work with postural limitations. As discussed above, the 

ALJ assigned significant weight to the opinions of Drs. Cacchillo and Das, a determination that 

Plaintiff does not challenge, and essentially mirrored the limitations they opined in his RFC 

determination. That is, to the extent Plaintiff alleged that she required limitations greater than 

that they and the ALJ assessed, Drs. Cacchillo and Das clearly did not find such allegations 

credible. 

 Finally, contrary to Plaintiff’s arguments, the ALJ considered Plaintiff’s attempts to find 

pain relief at length. (See R. at 65-67 (detailing Plaintiff’s treatment history, including 

continuing reports of pain and associated treatments).) Plaintiff fails to acknowledge that the 

ALJ also observed that following Plaintiff’s surgeries, she received only conservative treatments 

(see R. at 66 (“The claimant did not require any more aggressive treatment measures prior to her 

date last insured.”); R. at 68 (“Follow up imaging studies [of the cervical spine] showed a stable 

appearance of both the anterior and posterior instrumentation (Exhibit 31F, p.4). She was 

released to being physical therapy in November 2013.”)), and that she displayed some noncompliance with treatment recommendations (see, e.g., R. at 68 (“Despite her pain complaints, 

she indicated that she was only taking pain medication about every other day.” (citation 

omitted)); R. at 116 (Plaintiff’s testimony that “I’m very, very concerned about becoming an 

addict. I take pain medication very, very rarely.”)). Cf. Richendollar v. Colvin, No. 1:13-cv495, 2014 WL 4910477, at *5 (S.D. Ohio Aug. 7, 2014) (“A claimant’s failure to follow 
15 

treatment can indicate that he is not as disabled as alleged.” (citing Mullen v. Bowen, 800 F.2d 

535, 547 (6th Cir. 1986))); Tate v. Comm’r of Soc. Sec’y, 467 F. App’x 431, 433 (6th Cir. 2012) 

(holding that substantial evidence supported ALJ’s weighing of treating physician’s opinion 

where there were substantial gaps in treatment); Lester v. Soc. Sec. Admin., 596 F. App’x 387, 

389 (6th Cir. 2015) (concluding that ALJ reasonably discounted a doctor’s opined limitations 

where, among other things, the claimant was receiving conservative treatment). 

 In sum, the undersigned finds that the ALJ properly evaluated the consistency of 

Plaintiff’s statements regarding her symptoms and limitations and that substantial evidence 

support his credibility assessment. Although substantial evidence may also support an 

alternative finding, the undersigned agrees with the Commissioner that the ALJ’s findings were 

within the ALJ’s permissible “zone of choice.” See Blakley, 581 F.3d at 406. Accordingly, it 

is RECOMMENDED that Plaintiff’s second contention of error be OVERRULED. 

V. DISPOSITION 

From a review of the record as a whole, the undersigned concludes that substantial 

evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED 

that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of 

Social Security’s decision. 

VI. PROCEDURE ON OBJECTIONS 

If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this Report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A Judge of this Court shall make a de novo 
16 

determination of those portions of the Report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a Judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1). 

The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the District Judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE