UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

RONALD A. TOM, 

Plaintiff, 

 Civil Action 2:17-cv-858 

 Judge George C. Smith 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 

 Plaintiff, Ronald A. Tom (“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 his 

application for a period of disability, social security disability insurance benefits, and 

supplemental security income. This matter is before the undersigned for a Report and 

Recommendation on Plaintiff’s Statement of Errors (ECF No. 9), the Commissioner’s Response 

in Opposition (ECF No. 12), Plaintiff’s Reply (ECF No. 15), and the administrative record (ECF 

No. 6). 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 his application for a period of disability and disability 

insurance benefits on March 29, 2012, and his application for supplemental security income 

benefits on June 4, 2012. In his applications, Plaintiff alleged a disability onset of December 
2 

20, 2011. Plaintiff’s applications were denied initially on July 5, 2012, and upon 

reconsideration on October 18, 2012. Plaintiff sought a hearing before an administrative law 

judge. Administrative Law Judge Edmund E. Giorgione held a hearing on January 17, 2014, at 

which Plaintiff, represented by counsel, appeared and testified. On February 25, 2014, 

Administrative Law Judge Giorgione issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. On May 19, 2015, the Appeals Council denied 

Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final 

decision. Plaintiff then timely sought review by this Court. On January 25, 2016, this Court 

remanded this action pursuant to Sentence Six of Section 205 of the Social Security Act, 42 

U.S.C. § 405(g). 

On July 28, 2016, Administrative Law Judge Timothy Gates (the “ALJ”) held a second 

hearing, at which Plaintiff, represented by counsel, appeared and testified. Lynne M. Kaufman, 

a vocational expert (“VE”), also appeared and testified at the hearing. On August 26, 2016, the 

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

Security Act. On August 1, 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 his Statement of Errors, Plaintiff advances two contentions of error. First, Plaintiff 

contends that the mental RFC is not supported by substantial evidence because the ALJ failed, 

without explanation, to incorporate the limitations opined by consultative examiner Dr. Miller to 

whose opinion he assigned significant weight. Specifically, Plaintiff submits that the ALJ 

failed to account for Dr. Miller’s opinion that Plaintiff’s attention span and concentration are 
3 

impaired. In Plaintiff’s view, a limitation to simple, routine tasks does not adequately reflect 

his limitations in concentration, persistence, and pace. Second, Plaintiff contends that the ALJ 

erred in his consideration and weighing of the medical source opinions from Plaintiff’s treating 

physicians, Drs. Storrs and Nguyen. Specifically, Plaintiff asserts that the ALJ (1) failed to 

give good reasons for not assigning controlling weight to the opinions from Drs. Storrs and 

Nguyen and (2) failed to comply with the mandate from the Appeals Council on remand in 

evaluating the medical source opinions in the record. 

II. RELEVANT MEDICAL RECORDS 

A. Jeff M. Storrs, M.D. 

On January 28, 2013, Dr. Jeff M. Storrs, M.D., completed a medical opinion form in 

which he opined that Plaintiff was significantly limited by his physical and mental impairments 

as a result of suffering from “extreme” pain. (R. at 345-46.) With regard to physical 

limitations, Dr. Storrs opined that Plaintiff cannot work for any amount of time; can stand for 

fifteen minutes at one time, but not at all during the workday; can sit for thirty minutes at one 

time, but not at all during the workday; can lift up to five pounds occasionally; can occasionally 

bend, but never stoop or balance; can occasionally perform fine manipulation with both hands, 

but can never perform gross manipulation with either hand; can occasionally raise his left arm 

over shoulder level, but never his right arm; can never work around dangerous equipment; can 

occasionally operate a motor vehicle; can frequently tolerate exposure to heat, cold, and dust, 

smoke, or fumes; can occasionally tolerate exposure to noise; has limited close vision and 

hearing; and would need his legs elevated “most of [the] time” during an eight-hour workday.” 

(R. at 345.) With regard to mental limitations, Dr. Storrs opined that Plaintiff has loss of 
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interest in almost all activities; appetite disturbance; sleep disturbance; psychomotor agitation or 

retardation; decreased energy; feelings of guilt or worthlessness; and difficulty concentrating or 

thinking. (R. at 346.) Dr. Storrs also opined that Plaintiff has marked restriction in activities 

of daily living; marked difficulty in maintaining social functioning; and marked deficiencies in 

concentration, persistence, or pace. Id. 

B. Kenneth Nguyen, D.O. 

 On November 15, 2013, Dr. Kenneth Nguyen, D.O., completed a medical source opinion 

form in which he opined that Plaintiff is significantly limited by his physical and mental 

impairments. (R. at 514-515.) With regard to mental limitations, Dr. Nguyen opined that 

Plaintiff suffers from moderate to severe pain that causes loss of interest in almost all activities; 

sleep disturbance; decreased energy; difficulty concentrating or thinking; marked restrictions in 

activities of daily living; marked difficulty in maintaining social functioning; and marked 

deficiencies in concentration, persistence, and pace. (R. at 514.) With regard to physical 

limitations, Dr. Nguyen opined that Plaintiff can work for one hour per day; can stand for fifteen 

minutes at one time, but never during the workday; can sit for fifteen minutes at one time, but 

only ten minutes during the workday; can occasionally lift up to five pounds; can occasionally 

bend, but never stoop or balance; can occasionally perform fine and gross manipulation with 

both hands; can occasionally raise his arms over shoulder level; can never work around 

dangerous equipment or operate a motor vehicle; can occasionally tolerate exposure to heat and 

cold, but never to dust, smoke, or fumes; can occasionally tolerate exposure to noise; and would 

frequently need to elevate his legs during an eight-hour workday. (R. at 515.) 

 On February 3, 2014, at the request of Plaintiff’s counsel, Dr. Nguyen completed a 
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follow-up medical source opinion form clarifying his November 2013 opinion as it related to 

Plaintiff’s ability to sit, stand, and walk. (R. at 522-23.) In his February 2014 opinion, Dr. 

Nguyen opined that Plaintiff can sit for fifteen minutes at one time, but only ten minutes during 

an eight-hour work day; can stand for fifteen minutes at one time, but never during an eight-hour 

workday; and can walk for ten minutes at one time and for ten minutes during an eight-hour 

workday. (R. at 522.) 

 On July 8, 2014, Dr. Nguyen provided an opinion letter, stating as follows: 

I am treating Ronald Tom at the OSU Comprehensive Spine Center. He had a 

recent MRI which shows degenerative disc disease at L5-S1 and facet arthropathy. 

He is undergoing active treatment for this medical issue including physical therapy, 

medication management, and spinal injections for this condition. It is medical[ly] 

necessary that he continue to receive medical treatment for this condition as further 

delay in his treatment can result in continued debility. He is not able to work yet 

due to his condition but his prognosis for recovery is fair to good. 

(R. at 1486.) 

C. Marc E.W. Miller, Ph.D. 

 On July 3, 2012, consultative examiner Dr. Marc E.W. Miller, Ph.D., performed a 

psychological evaluation of Plaintiff. (R. at 315-19.) In relevant part, Dr. Miller opined that 

Plaintiff has “no significant difficulty” understanding, remembering, and carrying out one and 

two step job instructions. (R. at 318.) Dr. Miller also opined that Plaintiff’s “abilities and 

limitations in regard to maintaining attention span and concentration indicate impairment.” 

(Id.) 

III. THE ADMINISTRATIVE DECISION 

 On August 26, 2016, the ALJ issued his decision. (R. at 631-46.) The AJL first found 

that Plaintiff meets the insured status requirements through December 31, 2016. (R. at 634.) 
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At step one of the sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged 

in substantial gainful activity since December 20, 2011, the alleged onset date. (Id.) The ALJ 

found that Plaintiff had the severe impairments of lumbar degenerative disc disease, lumbar 

spondylosis, obesity, major depressive disorder, borderline personality disorder, and attention 

deficit hyperactivity disorder. (Id.) 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. (R. at 635.) At step four of the 

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

After careful consideration of the entire record, the undersigned finds that the 

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

CFR 404.1567(b) and 416.967(b) except he can occasionally reach overhead 

bilaterally, frequently climb ramps and stairs, occasionally climb ladders, ropes, or 

scaffolds, frequently balance, kneel, stoop, and crouch, occasionally crawl, and 

 

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). 
7 

have only frequent exposure to workplace hazards such as unprotected heights and 

moving mechanical parts. In addition, the claimant is limited to performing 

simple routines tasks with occasional interaction with supervisors, coworkers and 

the general public and can work in a static work environment where changes are 

infrequent and explained in advance. 

(R. at 637.) 

 In calculating Plaintiff’s RFC, the ALJ considered the opinions provided by consultative 

examiner Dr. Miller and Plaintiff’s treating physicians, Drs. Storrs and Nguyen. The ALJ 

assigned “significant weight” to Dr. Miller’s opinion, explaining that it was consistent with the 

record as a whole. (R. at 641.) The ALJ assigned “little weight” to the opinions from Drs. 

Storrs and Nguyen, explaining that the opined limitations are neither internally consistent nor 

consistent with the record as a whole. (R. at 641-42.) Additionally, the ALJ found that Dr. 

Nguyen’s July 2014 opinion that Plaintiff could not work reached an issue reserved for the 

Commissioner. (R. at 642.) 

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

perform his past work, he can perform jobs that exist in significant numbers in the national 

economy. (R. at 644-45.) He therefore concluded that Plaintiff was not disabled under the 

Social Security Act. (R. at 645.) 

IV. STANDARD OF REVIEW 

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

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

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

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

§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by 
8 

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)). 

V. ANALYSIS 

 As set forth above, Plaintiff maintains that the ALJ erred in his consideration of the 

medical opinion evidence in the record because he (1) improperly omitted from the RFC a 

credited limitation related to attention span and concentration and (2) failed to provide good 
9 

reasons for discrediting the opinion of treating physicians Drs. Storrs and Nguyen. The 

undersigned finds these contentions of error unavailing. 

As a threshold matter, Plaintiff’s assertion within his second contention of error that 

reversal is required because the ALJ failed to comply with the mandate of the Appeals Council 

on remand lacks merit. As this Court has previously explained: 

When the Appeals Council denies a claimant’s request for review, the 

decision of the administrative law judge becomes the final decision of the 

Commissioner. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1233 

(6th Cir. 1993) (citing 20 C.F.R. § 404.955). The Court’s review of the final 

decision of the Commissioner is confined to a review of the administrative law 

judge's decision and the evidence presented to the administrative law judge. Jones 

v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (citing Wyatt v. Sec’y of 

Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992)). “Whether an ALJ 

complies with an Appeals Council order of remand is an internal agency matter 

which arises prior to the issuance of the agency’s final decision.” [Brown v. 

Comm’r of Soc. Sec., No. 1:08–CV–183, 2009 WL 465708, at *6 (W.D. Mich. Feb. 

24, 2009)]. 

. . . This Court has no authority to review the decision of the Appeals 

Council. Cline v. Comm’r of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996). 

Moreover, “Section 405(g) does not provide this court with authority to review 

intermediate agency decisions that occur during the administrative review process.” 

Brown, 2009 WL 465708 at *6. The Undersigned concludes, therefore, that this 

Court lacks jurisdiction to consider whether the ALJ properly complied with the 

Appeals Council’s instructions on remand. 

Llaneza v. Comm’r of Soc. Sec., No. 2:15-cv-2437, 2016 WL 4054918, at *13 (S.D. Ohio Jul 29, 

2016) (Preston Deavers, Mag. J.), R&R adopted, 2016 WL 4398673 (S.D. Ohio Aug. 18, 2016). 

Moreover, here, as in Llaneza, the Appeals Council had an opportunity to review the ALJ’s 

decision for compliance with its directives upon Plaintiff’s appeal. The Appeals Council, 

however, declined to remand the matter a second time. The undersigned’s review is therefore 

confined to the final decision of the Commissioner. 
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A. Omission of Opined Limitation on Attention Span and Concentration 

 Plaintiff first contends that, without explanation, the ALJ omitted a limitation related to 

attention span and concentration as opined by Dr. Miller, to whom the ALJ assigned significant 

weight, thereby depriving the RFC of support by substantial evidence. Within this contention 

of error, Plaintiff relies upon Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010), to argue 

that the ALJ’s RFC failed to account for the opined impairment in concentration, persistence, or 

pace that the ALJ found credible in Dr. Miller’s opinion. Plaintiff contends that Ealy stands for 

the proposition that limiting a claimant to simple, routine tasks does not properly account for a 

claimant’s moderate limitations in concentration, persistence, or pace. (Pl.’s Statement of 

Errors 8, ECF No. 9.) The undersigned finds this contention of error to be without merit. 

 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 

RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e). 

 Here, the undersigned finds that substantial evidence demonstrates that the ALJ’s RFC 

adequately accounted for all of the limitations he found credible. The ALJ concluded that 

Plaintiff had the following mental RFC: “[T]he claimant is limited to performing simple routine 

tasks with occasional interaction with supervisors, coworkers and the general public and can 

work in a static work environment defined as an environment where changes are infrequent and 

explained in advance.” (R. at 637.) Contrary to Plaintiff’s assertion, the ALJ’s decision does 

not reflect that the ALJ credited evidence that would support a finding that Plaintiff had pace 

limitations on his ability to perform unskilled, simple, and repetitive tasks. Significantly, the 
11 

ALJ’s RFC essentially adopted the functional limitations opined by Dr. Miller, to whom the ALJ 

accorded significant weight. (R. at 637.) Dr. Miller opined that “[Plaintiff’s] abilities and 

limitations in regard to maintaining attention span and concentration indicate impairment,” but 

also that Plaintiff’s “abilities and limitations in regard to understanding, remembering, and 

carrying out one and two step job instructions indicate no difficulty.” (R. at 318.) Notably, 

Dr. Miller did not opine that Plaintiff’s impairments with attention span and concentrations had 

any effect on his ability to perform simple, routine tasks. In light of the foregoing, the 

undersigned concludes that the limitations the ALJ incorporated into the RFC adequately 

addressed the moderate limitations in concentration, persistence, or pace that he and Dr. Miller 

found. 

 Ealy, the case upon which Plaintiff relies, is distinguishable. On this point, SmithJohnson v. Comm’r of Soc. Sec., 579 F. App’x 426 (6th Cir. 2014), is instructive. The SmithJohnson Court analyzed the very same argument Plaintiff advances here as follows: 

 Smith–Johnson’s first challenge concerns her concentration, persistence, or 

pace. She relies on Ealy, 594 F.3d 504, to support her argument that more specific 

limitations should have been included in the hypothetical to the VE. Yet, Ealy is 

distinguishable from this case. In Ealy, the claimant’s doctor limited him to 

“simple, repetitive tasks [for] [two-hour] segments over an eight-hour day where 

speed was not critical.” Ealy, 594 F.3d at 516. In that RFC assessment, 

however, the ALJ included only a limitation to “simple repetitive tasks and 

instructions in nonpublic work settings.” Id. That RFC finding was included in 

the hypothetical to the VE. Id. This court held that the RFC assessment and the 

hypothetical did not adequately reflect the claimant’s limitations because it 

truncated the doctor’s specific restrictions. Id. 

 Here, the limitation to simple, routine, and repetitive tasks adequately 

conveys Smith–Johnson’s moderately-limited ability “to maintain attention and 

concentration for extended periods.” Unlike in Ealy, Dr. Kriauciunas did not 

place any concrete functional limitations on her abilities to maintain attention, 

concentration, or pace when performing simple, repetitive, or routine tasks. 

Instead, Dr. Kriauciunas plainly determined that Smith–Johnson could perform 
12 

simple tasks on a “sustained basis,” even considering her moderate limitations in 

maintaining concentration and persistence for “extended periods.” In other 

words, the limitation to simple tasks portrays the tasks that she can perform without 

being affected by her moderate limitations. The ALJ thus did not fail to include a 

restriction on her ability to maintain concentration, persistence, or pace while 

performing simple tasks, and he further reduced the required attention and 

concentration by restricting her to routine and repetitive tasks. 

579 F. App’x at 436–37. Here, Dr. Miller, like Dr. Kriauciumas in Smith-Johnson, did not 

place functional limitations on Plaintiff’s ability to maintain pace when performing simple, 

repetitive, or routine tasks. Given that the ALJ did not find that Plaintiff had non-exertional 

limitations greater than those set forth by Dr. Miller, Ealy does not undermine the undersigned’s 

conclusion that substantial evidence supports the ALJ’s RFC determination. Accordingly, 

Plaintiff’s first contention of error lacks merit. It is therefore RECOMMENDED that 

Plaintiff’s first contention of error be OVERRULED. 

B. Consideration and Weighing of Medical Source Opinions 

Plaintiff next argues that the ALJ erred in discrediting the opinions from his treating 

physicians, Drs. Storrs and Nguyen. The undersigned disagrees. 

The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions 

as “statements from acceptable medical sources that reflect judgments about the nature and 

severity of your impairment(s), including your symptoms, diagnosis and prognosis.” 20 C.F.R. 

§ 416.927(a)(1). 

 The ALJ generally gives deference to the opinions of a treating source “since these 

sources are likely to be the medical professionals most able to provide a detailed, longitudinal 

picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical 
13 

evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. § 

416.927(c)(2); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the 

treating physician’s opinion is “well-supported by medically acceptable clinical and laboratory 

diagnostic techniques and is not inconsistent with the other substantial evidence in [the 

claimant's] case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors-namely, the length of the treatment 

relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the treating source-in 

determining what weight to give the opinion. 

Id. Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of 

determination or decision for the weight [the ALJ] give[s] your treating source's opinion.” 20 

C.F.R. § 416.927(c)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to 

make clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s 

medical opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 

543, 550 (6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals for 

the Sixth Circuit has stressed the importance of the good-reason requirement: 

“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases,” particularly in situations where a claimant knows that 

his physician has deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she is not, unless some 

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 

(2d Cir. 1999). The requirement also ensures that the ALJ applies the treating 
14 

physician rule and permits meaningful review of the ALJ’s application of the rule. 

See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important 

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v. 

Comm’r of Soc. Sec., 313 Fed. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors 

within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 

2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to 

explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical 

opinion evidence within the written decision). 

 Finally, the Commissioner reserves the power to decide certain issues, such as a 

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will 

consider opinions of treating physicians “on the nature and severity of your impairment(s),” 

opinions on issues reserved to the Commissioner are generally not entitled to special 

significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007). 

As discussed above, the ALJ assigned “little weight” to the opinions of Plaintiff’s treating 

physicians, Drs. Storrs and Nguyen. Although Plaintiff maintains that the ALJ failed to give 

good reasons for the weights assigned, the ALJ provided the following lengthy discussion of 

how he arrived at his determination: 

Dr. Storrs completed a form on January 28, 2013 in which he noted that the 

claimant suffered from “extreme” pain and had resulting limitations including the 

inability to lift 5 pounds at the most and sit for no more than 30 minutes at one time. 

Dr. Storrs is a treating physician but the record does not show many treatment notes 

from this physician. However, even as a treating physician, his opinion has been 

given little weight for several reasons. First, his opinion is internally inconsistent. 

For instance, Dr. Storrs opined that the claimant can stand for 15 minutes at a time 
15 

and sit for 30 minutes at a time, but yet opined that the claimant cannot stand or sit 

at all in a workday. Next, Dr. Storrs’ opinions are also inconsistent with the 

evidence as a whole. He opined that the claimant had “extreme” pain, yet in the 

record the claimant described his pain as “soreness” and like a “headache.” Dr. 

Storrs opined that the claimant needed to elevate his legs during the workday, but 

failed to provide any reason for this restriction and the record does not show that 

the claimant had any edema. In fact, as noted above, the record most often showed 

generally mild findings on examination with improvement with treatment. Last, 

Dr. Storrs opined that the claimant had marked mental restrictions yet Dr. Storrs is 

not a mental health specialist and his opinions are not consistent with the evidence. 

Dr. Miller, the examining psychologist, did not find marked limitations and his 

opinion is given more weight as he is a specialist and it is consistent with the 

evidence. As noted above, the claimant had normal findings on most mental health 

evaluations and reported improvement with treatment. 

Dr. Nguyen completed a functional capacity form on November 15, 2013 

and set forth significant restrictions for the claimant. Dr. Nguyen’s opinions are 

given little weight for the following reasons. First, while Dr. Nguyen is a treating 

physician, his opinion is internally inconsistent and inconsistent with his treatment 

notes. Dr. Nguyen opined that the claimant could sit for 15 minutes at one time 

but only sit for 10 minutes in a workday. He also stated that the claimant could 

[stand] for one hour a day but not stand at all in a workday. These extreme 

limitations are also not consistent with his treatment notes that show that he often 

assessed mostly normal findings with noted mild to moderate pain. Dr. Nguyen 

also opined that the claimant’s limitations existed in May 2011 but this is not 

consistent with the evidence that he was working through 2011. Next, Dr. 

Nguyen’s opinions are not consistent with the evidence as a whole, which shows 

that the claimant was able to perform a wide range of activities and had generally 

conservative treatment. Finally, while Dr. Nguyen set forth mental restrictions, he 

is not a mental health specialist and treated the claimant primarily for his complaints 

of pain not complaints of mental health impairments. 

Dr. Nguyen completed another form on February 3, 2014, and this has also 

been given little weight. Dr. Nguyen’s opinions are inconsistent with his treatment 

notes and internally inconsistent. For instance, Dr. Nguyen found that the claimant 

could sit and stand for 15 minutes at a time but could only sit 10 minutes total in a 

workday and could not stand at all in a workday. This form was to clarify his prior 

opinion, but again he provided inconsistencies. Nevertheless, both opinions 

whether 15 minutes or 10 minutes of sitting or standing are simply inconsistent with 

the evidence as a whole which, as discussed above, shows primarily mild to 

moderate pain and findings. 

In addition to the above, on July 8, 2014, Dr. Nguyen wrote a letter and 

stated, among other things, that the claimant was “not able to work yet due to his 
16 

condition.” This opinion is given little weight as an opinion as to whether the 

claimant is disabled is reserved for the Commissioner. Further, this opinion is 

inconsistent with the evidence as a whole. 

(R. at 641-42 (citations to exhibits omitted).) 

 The undersigned finds no error with the ALJ’s consideration and weighing of the 

opinions from Drs. Storrs and Nguyen. The ALJ articulated the weight he afforded the opinions 

and properly declined to afford them controlling weight on the grounds they were internally 

inconsistent and inconsistent with other substantial evidence in the record. See 20 C.F.R. § 

404.1527(c)(2) (identifying “supportability” and “consistency” with the record as a whole as 

relevant considerations); Blakely, 581 F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188, at *2 

(July 2, 1996)) (“‘[I]t is an error to give an opinion controlling weight simply because it is the 

opinion of a treating source if . . . it is inconsistent with the other substantial evidence in the case 

record.’”). 

 As the ALJ noted, the opinions from Drs. Storrs and Nguyen largely suffer from the same 

deficiencies. Specifically, as the ALJ found, their opinions are internally inconsistent and 

inconsistent with the record as a whole, and, although neither physician specializes in mental 

health, they offered extreme limitations related to Plaintiff’s mental impairments. Significantly, 

consistency, both internal and with the record, as well as specialization, are relevant 

considerations when evaluating a treating physician’s opinion. See 20 C.F.R. § 404.1527(c)(2), 

(4)-(5) (identifying consistency with the record and the source’s specialization as relevant 

considerations). Here, the record supports the ALJ’s findings. 

 First, the ALJ reasonably discredited Drs. Storrs’ and Nguyen’s opinions due to internal 

inconsistencies. Internal inconsistencies constitute good reason for discrediting a treating 
17 

source’s opinion. See Ledford v. Astrue, 311 F. App’x 746, 754 (6th Cir. 2008) (identifying 

internal inconsistencies as a proper basis for discrediting medical opinions). The record 

supports the ALJ’s findings. Specifically, as the ALJ noted, Dr. Storrs opined that Plaintiff can 

stand for fifteen minutes at one time and sit for thirty minutes at one time. Dr. Storrs also 

opined, however, that Plaintiff can not stand or sit for any period of time during a workday. It is 

unclear on what Dr. Storrs based these limits, but it is clear that the limitations are inconsistent 

with one another. Moreover, there is no apparent explanation for the inconsistencies in the 

record. Dr. Nguyen’s opinions suffered from this same inconsistency. Specifically, in his 

November 2013 opinion, Dr. Nguyen opined that Plaintiff could stand for fifteen minutes at one 

time, but never during the workday, and could sit for fifteen minutes at one time, but only ten 

minutes during the workday. Such limitations are clearly inconsistent. Indeed, Plaintiff 

appears to have recognized the inconsistencies, as he requested a second opinion from Dr. 

Nguyen “[f]or clarification purposes” because “[o]n the previous opinion form, [Dr. Nguyen’s] 

opinions regarding [Plaintiff’s] ability to stand and sit at one time and total in a workday 

conflicted.” (R. at 522.) Regardless, Dr. Nguyen’s second opinion suffers from the same 

deficiencies as the opined limitations were unchanged. As with Dr. Storrs, there is no apparent 

explanation for the observed inconsistencies. The undersigned is thus persuaded that the 

inconsistencies in Drs. Storrs Nguyen’s opinions constitute good reason to discredit them. 

Next, the ALJ reasonably concluded that the doctors’ opinions are inconsistent with the 

evidence as a whole. Consistency with the evidence is a relevant consideration when weighing 

any medical opinion, including one from a treating physician. See 20 C.F.R. § 404.1527(c)(2), 

(4) (providing that more weight will be given to opinions that are consistent with the record as a 
18 

whole). Here, the record supports the ALJ’s conclusions. With respect to Dr. Storrs’ opinion, 

the ALJ noted that Dr. Storrs opined that Plaintiff was suffering from “extreme” pain and needed 

to elevate his legs during the workday. As the ALJ observed, however, the record reflects that 

Plaintiff described his pain as “soreness” and “like a headache” (R. at 612, 618), that he reported 

“mild to moderate” pain levels (see, e.g., R. at 618; see also R. at 612 (reporting pain level of “3-

4/10”)), and that radio frequency ablation resulted in “at least 70% pain relief” (R. at 612). 

Treatment notes from Dr. Nguyen also reflect that Plaintiff decreased his opioid use following 

the radio frequency ablation (R. at 615, 621) and wanted to decrease his Butran patch (R. at 612), 

further suggesting that Plaintiff was not suffering from “extreme” pain symptoms. (R. at 615, 

621.) Moreover, as the ALJ observed, there is no indication in the record that Plaintiff needed 

to elevate his legs for any period of time during the day. Rather, results of objective 

examinations revealed largely mild findings with no edema. (See, e.g., R. at 425 (observing no 

edema); 1102 (“No LE edema.”).) 

 With respect to Dr. Nguyen’s opinions, the ALJ concluded that the extreme limitations 

opined are inconsistent with Plaintiff’s activities of daily living and his conservative treatment. 

These inconsistencies constitute good reason to discredit an opinion from a treating source. See 

Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997, 1001 (6th Cir. 2011) (setting forth 

inconsistency with other record evidence and activities of daily living as “good reasons” for 

discounting opinion evidence); 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). The record supports the ALJ’s 

findings. For example, Plaintiff’s reported activities of daily living include: grooming, cooking 
19 

and cleaning, and driving to the store alone (R. at 257); daily exercise (R. at 257, 321, 339); 

camping in the woods with friends (R. at 424, 431); and helping his mother with chores (R. at 

317-18). Such extensive activities of daily living directly contradict Dr. Nguyen’s restrictive 

opinions. Next, Plaintiff’s treatment modalities have largely been conservative, primarily 

involving pain medication, radio frequency ablation, and physical therapy, and have effectively 

reduced Plaintiff’s pain. (See, e.g., R. at 1026 (observing that Plaintiff’s pain is “better with 

butran, RFA, [and] PT”); R. at 1028 (noting that Plaintiff’s pain is “much better on RFA” and 

that “[h]e has decreased his opioids”).) In addition, the ALJ found that Dr. Nguyen’s restrictive 

opinions are inconsistent with his own treatment notes. Indeed, the treatment notes reflect 

reduction in pain and positive effects of treatment, as well as recommendations that Plaintiff 

“continu[e] to perform [his] usual activities of daily living” and that he should “avoid prolonged 

rest as a means for pain control.” (See, e.g., R. at 614, 620.) 

 The ALJ likewise did not err in considering that neither Dr. Storrs nor Dr. Nguyen is a 

mental health specialist. A medical source’s specialization is a relevant consideration under the 

regulations. See 20 C.F.R. § 404.1527(c)(5) (“We generally give more weight to the medical 

opinion of a specialist about medical issues related to his or her area of specialty than to the 

medical opinion of a source who is not a specialist.”). In this case, both Drs. Storrs and Nguyen 

opined that Plaintiff is markedly limited in his mental abilities. However, Dr. Miller, the 

examining psychologist and mental health specialist upon whose opinion the ALJ relied, did not 

find such extreme mental limitations. (See R. at 315-19.) Moreover, the record reflects 

primarily positive results of treatment, mild to normal results of psychological examinations, and 

reports that Plaintiff is “doing well.” (See, e.g., R. at 366, 493-95, 900, 911, 914, 918, 933.) 
20 

Thus, the ALJ ALJ reasonably discredited the more restrictive opinions of Drs. Storrs and 

Nguyen. 

 Finally, the ALJ reasonably discredited Dr. Nguyen’s July 2014 opinion on the basis that 

it reached an opinion reserved for the Commissioner. Specifically, Dr. Nguyen opined that 

Plaintiff was “not [yet] able to work.” (R. at 1486.) As set forth above, opinions on issues 

reserved to the Commissioner are generally not entitled to special significance. 20 C.F.R. § 

404.1527(d); Bass, 499 F.3d at 511. The undersigned concludes, therefore, that the ALJ did not 

err in discrediting Dr. Nguyen’s opinion that Plaintiff was not able to work. 

Based on the foregoing, the undersigned concludes that the ALJ provided good reasons, 

supported by substantial evidence, for discrediting the opinions of Drs. Storrs and Nguyen and 

did not violate the treating physician rule or otherwise err in his assessment their opinions. It is 

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

VI. 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. 

VII. 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 
21 

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