IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

DANA COLBERT,

Plaintiff,

v. Civil Action 2:17-cv-876

Judge James L. Graham

Magistrate Judge Jolson

COMMISIONER OF 

SOCIAL SECURITY, 

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, Dana Colbert, brings this action under 42 U.S.C. § 405(g) seeking review of a 

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

for supplemental security income (“SSI”). For the reasons set forth below, it is 

RECOMMENDED that Plaintiff’s Statement of Errors be DENIED, and that judgment be 

entered in favor of Defendant.

I. BACKGROUND

Plaintiff filed her application for SSI on November 27, 2012, alleging that she was 

disabled beginning October 3, 2012. (Tr. 331, PAGEID #: 373). Administrative Law Judge 

Jeffrey Hartranft (the “ALJ”) held the hearing on February 16, 2017, after her application was

denied initially and on reconsideration. (Tr. 157–93, PAGEID #: 196–232). The ALJ issued a 

decision denying Plaintiff’s application for benefits. (Tr. 10–29, PAGEID #: 49–68). The 

Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final 

decision of the Commissioner. (Tr. 1–3, PAGEID #: 40–42).

Plaintiff filed the instant case seeking a review of the Commissioner’s decision on 

October 5, 2017. (Doc. 1). Plaintiff filed her Statement of Errors on January 19, 2018 (Doc. 8),
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Defendant filed an Opposition on March 15, 2018 (Doc. 9), and Plaintiff did not file a Reply. 

Thus, this matter is now ripe for consideration.

A. Relevant Hearing Testimony

Plaintiff was born in 1982 (Tr. 169, PAGEID #: 208), and has a high school education

(Tr. 172, PAGEID #: 211). She lives with her fiancé, who receives disability, and they do not 

have children. (Tr. 170–71, PAGEID #: 209–10). When asked to identify her fiancé’s disabling

condition, Plaintiff stated that she didn’t know but generally “his health is bad, too.” (Tr. 172, 

PAGEID #: 211). Plaintiff does not have a driver’s license but uses public transportation and a 

Medicaid bus. (Id.).

Plaintiff testified that she has constant pain in both of her legs and left knee. (Tr. 177–78, 

PAGEID #: 216–17). Plaintiff explained that her left knee swells, so she elevates it and uses an 

ice pack at least once daily. (Tr. 179, PAGEID #: 218). Plaintiff stated that she had arthroscopic 

surgery on her left knee in June 2016, but it did not alleviate the pain. (Tr. 178, PAGEID #: 

217). Plaintiff testified that she uses a cane for walking, although she did not have it with her on 

the day of the hearing. (Tr. 179, PAGEID #: 218). Plaintiff stated that she lies down the 

majority of the day and sometimes does dishes or “help[s] around the house,” but her fiancé does 

the majority of the housework. (Tr. 174, 177, PAGEID #: 213, 216; see also Tr. 183, PAGEID 

#: 222 (stating that she rests “three quarters of the day”)).

Plaintiff explained that she does not like to be around a lot of people and has difficulty 

with memory, concentration, and reading. (Tr. 182–83, PAGEID #: 221–22). Plaintiff watches 

soap operas but lacks the attention to watch a movie. (Tr. 183, PAGEID #: 222).

Vocational Expert Mark Pinti (the “VE”) testified as an impartial witness. (Tr. 185, 

PAGEID #: 224). The ALJ asked the VE to identify any work for a hypothetical individual of 
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Plaintiff’s age, education, and residual functional capacity (“RFC”) with no relevant work 

history. (Tr. 184–85, PAGEID #: 223–24). The VE testified that the individual could perform 

light, unskilled jobs, such as housekeeper cleaner (300,000 jobs in the national economy), folder

(50,000 jobs in the national economy), and packager (200,000 jobs in the national economy). 

(Tr. 185, PAGEID #: 224). On cross-examination, the VE stated that he assumed, based on the 

hypothetical, that the individual could maintain attention and concentration and possessed an 

ability to complete a normal workday or workweek. (Tr. 192, PAGEID #: 231).

B. Relevant Medical Evidence

Plaintiff alleges that she suffers from both physical and mental impairments. 

Consequently, the Court examines the relevant medical evidence pertaining to each.

1. Physical Evidence

Since being struck by vehicle as a pedestrian, Plaintiff has had difficulty with both of her 

legs. (Tr. 543, PAGEID #: 587; see, e.g., Tr. 695, PAGEID #: 739 (radiology record showing 

right knee problems); Tr. 1014, PAGEID #: 1059 (radiology record showing a right knee joint 

effusion but no acute osseous abnormality); Tr. 778, PAGEID #: 822 (report of left leg pain); Tr. 

769, PAGEID #: 813 (report of left knee “popping”); Tr. 544, PAGEID #: 588 (observation of “a 

little bit of a left-sided limp” but ambulation without assistive devices)). Plaintiff underwent

surgery on her right leg in July 2001 (Tr. 655, PAGEID #: 699), and on her left knee in June

2016 (Tr. 1028, PAGEID #: 1073; see also Tr. 988, PAGEID #: 1033 (report of increased left 

knee pain in 2016, caused by her niece falling onto her leg)).

Prior to Plaintiff’s left-knee surgery, consultative examiner Dr. Yaw Ayesu Offei, M.D. 

examined her on April 17, 2013. (Tr. 544, PAGEID #: 588). Dr. Offei’s diagnoses included 

status post prior traumatic injury to the right leg, right leg pain, and depression that “appear[ed] 
4

to be stable.” (Id.). Dr. Offei opined that Plaintiff was capable of performing “ light physical

activity,” but added that Plaintiff’s “only challenge” would be in a position that required 

“continuous walking, pushing, [sic] lifting.” (Id.).

The state agency reviewing physicians reviewed the record and completed physical 

residual functional capacity assessments in April and November 2013. (Tr. 209–11, 223–25, 

PAGEID #: 249–51, 263–65). The reviewers opined that Plaintiff could perform a reduced range 

of light work, including occasionally climbing ramps/stairs, never climbing ladders, ropes, or 

scaffolds, frequently stooping, kneeling, couching and crawling. (Id.). They further opined that 

Plaintiff was unlimited in her ability to balance and in her ability to be exposed to pulmonary 

irritants, but she should avoid even moderate exposure to hazards. (Tr. 210–11, 224–25, 

PAGEID #: 250–51, 264–65).

Shortly after Plaintiff’s left knee surgery, consultative examiner Dr. Richard Fikes 

examined her in June 2016. (Tr. 827, PAGEID #: 871). Dr. Fikes’s medical source statement 

provided, inter alia:

[Plaintiff] indicates that she is able to walk approximately 1 to 1–1/2 city blocks 

with use of a walker or cane but does require rest and does experience fair to 

severe amounts of pain depending on the length of ambulation. She indicates that 

she is able to sit in an appropriate chair for approximately 2–3 hours without 

regular adjustment. She does believe she can stand for less than 30 minutes at a 

time before severe pain in her right hip occurs. She also indicates that she is 

currently under activity restrictions due to a recent surgical repair of her left 

ACL/PCL and meniscus by her orthopedist. She does believe she could lift a 10–

20 pound weight from a standing position on a single and repetitive basis but does 

not believe she could lift greater than that.

(Tr. 828–29, PAGEID #: 872–73). Thus, Dr. Fikes opined that, “[a]t this point in time[,] [he]

believe[d] the claimant could perform a sedentary to less than sedentary level of work.” (Tr. 

829, PAGEID #: 873).

Dr. Fikes also completed a check-box form. (Tr. 834, PAGEID #: 878). On that form, 
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Dr. Fikes opined that Plaintiff could lift and carry up to 20 pounds occasionally, sit for 4 hours,

stand and walk for 2 hours, and required a cane to ambulate distances greater than 20 feet. (Tr. 

834–35, PAGEID #: 878–79). Dr. Fikes also opined that Plaintiff could only frequently use

her hands (as opposed to continuously), could only occasionally use her feet for foot controls, and

was precluded from any postural activities. (Tr. 836–37, PAGEID #: 880–81). Finally, Dr.

Fikes opined that Plaintiff was unable to ambulate without the use of a wheelchair, a walker, or 2

canes or 2 crutches. (Tr. 839, PAGEID #: 883).

Plaintiff began physical therapy in August 2016, approximately two months after Dr.

Fikes’s examination. She was noted to have impairments in her gait, locomotion, balance, 

coordination, muscle performance, joint integrity, mobility, and range of motion. (Tr. 1048, 

PAGEID #: 1093). In September 2016, Plaintiff was “able to perform with instruction and 

cueing, on 1 crutch, however when ambulating in [the] clinic she revert[ed] back to poor 

mechanics.” (Tr. 1056, PAGEID #: 1101). Plaintiff did not have increased knee pain during 

exercise, but she reported muscle soreness and quick fatigue. (Id.). Plaintiff was “encouraged 

to walk without crutches” and was reminded that “muscle soreness will occur during the 

rehabilitation process.” (Tr. 1062, PAGEID #: 1107). Plaintiff was reported to be 

“progressing” toward her physical therapy goals. (Tr. 1063, PAGEID #: 1108; see, e.g., id. 

(noting that with verbal cueing Plaintiff demonstrated “improvements in knee extension 

strength with progression of exercises” and “improved balance”)).

At a surgical follow-up also in September 2016, Plaintiff reported that physical therapy 

was helping with her range of motion but not her pain. (Tr. 1057, PAGEID #: 1102). She was 

advised to wean off crutches and engage in full-weight bearing as tolerated. (Tr. 1058, 

PAGEID #: 1103).
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By October 2016, Plaintiff reported “improved strengthening and balance while 

ambulating around the house without crutches.” (Tr. 1065, PAGEID #: 1110). She used one 

crutch to go up and down the stairs, and noted “a difference when performing exercises more 

consistently.” (Id.; see also Tr. 1067, PAGEID #: 1112 (noting Plaintiff reported “feeling 

more confident while ambulating the stairs” and continued strengthening with home 

exercises)). Plaintiff “present[ed] to therapy with much improved [left] knee extension while 

ambulating, increased quadriceps strength, and improved [neuromuscular] control when 

ambulating.” (Tr. 1066, PAGEID #: 1111). Plaintiff also “ambulate[d] with a symmetrical 

gait, was able to perform 2x10 [straight leg raises] without extensor lag, and demonstrate[d] 

strong quad contraction with superior patellar glide.” (Id.).

However, Plaintiff demonstrated difficulty maintaining straight leg balance without 

frequent contact with a table for support and had increased postural sway with balance 

exercises. (Tr. 1068, PAGEID #: 1113). She also continued to report fatigue with exercises, 

and her assessment reflected the need “to improve muscular strength and endurance of 

quadriceps muscle for improved ambulation for longer periods of time.” (Id.).

Five months after her surgery, in November 2016, Plaintiff was reported to be “doing 

better.” (Tr. 1077, PAGEID #: 1122). She still had pain but did not require narcotic medication 

and continued to work on her quad strength. (Id.). Plaintiff reported back to physical therapy in 

early December 2016, “after a month of non-attendance.” (Tr. 1079, PAGEID #: 1124). 

Plaintiff again reported fatigue and soreness, and it was observed that her “continued weakness 

... [was] likely related to [her] non-compliance with attendance of formal PT....” (Tr. 1081, 

PAGEID #: 1126).
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By the end of December 2016, Plaintiff continued to report problems navigating the 

stairs, but her “[s]trength ha[d] improved in the quad as demonstrated by the progression of 

exercises with emphasis on single-leg including bridging as well as increased resistance with leg 

extension and leg press.” (Tr. 1083, PAGEID #: 1128). Additionally, Plaintiff “made 

improvements with single-leg balance and ha[d] progressed to unstable surfaces.” (Id.; see also

Tr. 1085, PAGEID #: 1130 (noting that Plaintiff was “able to maintain single-leg balance for 30 

seconds on an unstable surface”)).

In January 2017, it was noted that Plaintiff needed to navigate “2 flights of stairs in order 

to do laundry.” (Tr. 1086, PAGEID #: 1131). Plaintiff reported that she was “currently able to 

do it on her own if she has to,” although she often had help with household chores. (Id.). 

Plaintiff continued to have difficulty with pain and strength in certain areas, but her “[b]alance 

continue[d] to make notable improvements.” (Tr. 1087, PAGEID #: 1132). Generally, Plaintiff 

demonstrated “improvements” but she still had “great difficulty with straight leg balance on

unstable surfaces....” (Tr. 1091, PAGEID #: 1136).

2. Mental Evidence

The state agency consultants found, inter alia, that Plaintiff was limited in maintaining 

concentration and attention and in her ability to complete a normal workday or workweek. (Tr. 

212, 226, PAGEID #: 252, 266). When prompted to provide a narrative of their various findings, 

the state agency consultants explained that Plaintiff would be limited to “simple and some 

complex familiar tasks,” but she would be able “to sustain concentration and persistence to 

perform simple and some complex tasks that are not fast paced.” (Tr. 212–13, 226, PAGEID #: 

252–53, 266). The state agency consultants likewise determined that Plaintiff would be limited 

to occasional, superficial interactions with others and that she may have difficulty responding to 
8

changes due to her history of substance abuse. (Tr. 213, 227, PAGEID #: 253, 267). Thus, the 

state agency consultants opined that Plaintiff was able to perform work-related tasks “in an 

environment where duties are relatively static and changes can be explained.” (Id.).

C. ALJ’s Decision

The ALJ found that Plaintiff had not engaged in substantial gainful activity since October 

3, 2012, the application date. (Tr. 13, PAGEID #: 52). The ALJ determined that Plaintiff 

suffered from the severe impairments of “history of right femur fracture, requiring surgical 

intervention with hardware placement and subsequent hardware removal; asthma/chronic 

obstructive pulmonary disease (COPD); degenerative joint disease of the left knee, including 

arthritis and ACL tear requiring surgical intervention; degenerative joint disease with arthritis of 

the right knee; a depressive disorder; and a history of alcohol dependence (20 C.F.R. 

416.920(c)).” (Tr. 13, PAGEID #: 52). However, none of the impairments alone or in

combination met or equaled a listed impairment. (Tr. 15, PAGEID #: 54).

The ALJ determined that Plaintiff retained the residual functional capacity to:

[p]erform light work as defined in 20 CFR 416.967(b) except the claimant should 

avoid workplace hazards, including unprotected heights and machinery. She 

should occasionally climb ramps and stairs, but would be precluded from 

climbing ladders, ropes, and scaffolds. She could frequently balance and stoop 

and occasionally kneel, crouch, and crawl. The claimant should avoid exposure 

to concentrated pulmonary irritants such as fumes, odors, dusts, and gases. The 

claimant should perform simple, routine, repetitive tasks involving only simple 

work related decisions with few, if any, workplace changes in a setting without 

strict production quotas or fast paced work, such as on an assembly line. The 

claimant should have occasional interaction with the general public, coworkers, 

and supervisors.

(Tr. 16–17, PAGEID #: 55–56). The ALJ found that “a careful review of the record does not 

document sufficient objective medical evidence to substantiate the severity of the pain and 

degree of functional limitations alleged by the claimant.” (Tr. 22, PAGEID #: 61; see also Tr. 
9

24, PAGEID #: 63 (“Although the information provided by the claimant may not be the result of 

a conscious intention to mislead, nevertheless such statements suggest the information provided 

by the claimant is not generally supported by the objective evidentiary record.”)).

In weighing the opinion evidence, the ALJ afforded “some weight” to consultative 

examiner Dr. Offei’s opinion because it was “consistent with the totality of the evidentiary 

record.” (Tr. 24, PAGEID #: 63). The ALJ agreed with Dr. Offei that Plaintiff is capable of 

performing light work. (Tr. 25, PAGEID #: 64). Specifically, the ALJ found that Plaintiff’s 

right femur surgery, left knee surgery, bilateral knee degeneration and arthritis, and asthma 

supported Dr. Offei’s limitations to light level lifting, carrying, sitting, standing, and walking. 

(Tr. 24, PAGEID #: 63). The ALJ also considered that Plaintiff was gaining improvement in her 

lower extremity strength and balance through physical therapy. (Id. (citing Exhibits 11F/12F)). 

However, the ALJ found that Plaintiff’s post-surgical intermittent balance deficits, asthma, and 

COPD warranted additional postural and environmental limitations beyond those given by Dr. 

Offei. (Id.). For this reason, the ALJ “overall [found] the claimant would be more limited than 

[Dr. Offei] suggest[ed]....” (Tr. 24–25, PAGEID #: 63–64).

The ALJ likewise gave “some weight” to the state agency consultants’ physical 

assessments. (Tr. 26, PAGEID #: 65 (citing Exhibit 4A and 6A)). The ALJ gave “significant 

weight” to the portion of their opinion that Plaintiff was capable of performing light work, which 

the ALJ found “consistent with the totality of the evidence of record.” (Id.; see also id. (“The 

record is generally consistent with lifting and carrying up to 20 pounds, even her treating 

physician after surgery indicated that claimant could lift within light level exertional work 

parameters.”)). The ALJ disagreed, however, with their opinions that Plaintiff had an unlimited

ability to balance at that time, although Plaintiff showed subsequent improvement in physical 
10

therapy. (Id. (citing Exhibits 11F and 12F)). The ALJ also disagreed with their opinions 

concerning hazards and exposure to pulmonary irritants, finding that Plaintiff required further 

limitations based upon her conditions. (Tr. 26–27, PAGEID #: 65–66). Thus, overall, the ALJ 

found Plaintiff required “further limitations, but assesse[d] some weight to the consultants’ 

physical statements.” (Tr. 27, PAGEID #: 66).

The ALJ again gave “some weight” to Dr. Fikes’s June 2016 opinion. (Tr. 25, PAGEID 

#: 64). In particular, the ALJ assigned “greater weight” to Dr. Fikes’s opinion that Plaintiff 

should be limited to lifting and carrying 20 pounds consistent with light work, but “less weight to 

the remaining functional limitations” because “they were assessed during the claimant’s left 

[knee] surgery recovery period.” (Id.). The ALJ explained that “[w]hile the limitations during 

this time may have been relevant, the physical therapy notes within subsequent exhibits in 11F 

and 12F document with formal therapy treatment, the claimant was making physical progress, 

increasing lower extremity strength and balance.” (Tr. 25–26, PAGEID #: 64–65).

The ALJ further noted “some inconsistencies between [Dr. Fikes’s] provided functional

capacity and the subsequent check boxes he noted at the end of his functional form.” (Tr. 26, 

PAGEID #: 65). Speaking generally, the ALJ found the record demonstrated that Plaintiff “was 

able to balance and such functioning was improving with treatment.” (Id.). The ALJ elaborated 

that Dr. Fikes assessed that Plaintiff needed a wheelchair, walker, or two crutches, but the record 

reflected that Plaintiff was able to switch her free hand to carry objects. (Id.; see also id. (noting 

that Plaintiff was provided two crutches initially; however, she “did not require the devices 

indefinitely”)). (Id.). The ALJ likewise noted that Plaintiff testified to using a cane only 

intermittently, and she did not require a cane to attend the hearing. (Id.). The ALJ also 

determined that, contrary to Dr. Fikes’s opinion, Plaintiff “showed no deficits to her hands that 
11

would have resulted in a need to reduce her to only frequent use of the hands for manipulative 

activities.” (Id.). Finally, the ALJ found that that, although the record supported “some postural 

and environmental limitations,” it did not support the “elimination/preclusion of all such 

activities.” (Id.).

As to Plaintiff’s mental abilities, the ALJ assigned “some weight” to the state agency 

consultants’ mental assessments. (Tr. 26, PAGEID #: 65 (citing Exhibits 4A and 6A)). 

Specifically, the ALJ assigned “significant weight to the notion that the claimant continues to 

have severe depressive disorders and a history of alcohol abuse, resulting in moderate mental 

limitations.” (Id.). However, the ALJ:

[m]odified the moderate limitations found in the functional capacity to contain 

vocationally relevant terms that show the claimant would be limited in the type of 

tasks that she could perform; that indicate she would have difficulty with 

adaptation in the work setting, requiring limited changes in the work setting and 

limitations on production quotas and fast paced work.

(Id.). “Therefore, overall, the [ALJ] afford[ed] the consultants’ mental assessments some 

weight.” (Id.).

Because Plaintiff had no past relevant work, transferability of job skills was not material 

to the ALJ’s determination. (Tr. 27, PAGEID #: 66). The ALJ observed that Plaintiff is a high 

school graduate who speaks English and was 30 years of age (a younger individual) on the date 

she filed the application. (Id.). Considering Plaintiff’s age, education, work experience, and 

RFC, the ALJ found that there are jobs that exist in significant numbers in the national economy 

that Plaintiff could perform. (Id.). Relying on the VE’s testimony, the ALJ determined that 

Plaintiff could perform jobs such as housekeeping cleaner, folder, and packager. (Tr. 28, 

PAGEID #: 67). Consequently, the ALJ found that Plaintiff has not been under a disability, as 

defined in the Social Security Act, since October 3, 2012, the date the application was filed. (Id.)
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II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is 

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v. 

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). 

“[S]ubstantial 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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) 

(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The 

Commissioner’s findings of fact must also be based upon the record as a whole. Harris v. 

Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account 

whatever in the record fairly detracts from [the] weight” of the Commissioner’s decision. 

Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 

2015). 

III. DISCUSSION

Plaintiff sets forth two statements of error. (See Doc. 8). In her first statement of error, 

Plaintiff argues that the ALJ’s RFC determination is unsupported by substantial evidence 

because he failed to weigh the opinion evidence properly. (Id. at 6–11). In the second statement 

of error, Plaintiff asserts that the ALJ erred by relying on “internally inconsistent opinions” by 

the state agency psychological consultants. (Id. at 12). As explained below, however, Plaintiff’s 

actual argument in the second statement of error is different; specifically, Plaintiff argues that the 

ALJ erred by failing to account for all of her moderate limitations in the RFC and the 

hypothetical to the VE. (Id.).
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A. Opinion Evidence

Plaintiff argues first that the ALJ improperly relied on the use of a check-box form and 

physical therapy notes to discredit examining physician Dr. Fikes’s opinion. (Doc. 8 at 8, 10). 

Plaintiff argues next that the ALJ erred in failing to weigh Dr. Fikes’s opinion more heavily than 

the opinions of the state agency consultants and Dr. Offei. (Id. at 6). Plaintiff claims that Dr. 

Fikes, unlike the other physicians, was aware of all of her severe impairments and provided the 

most accurate assessment of her functional abilities. (Id.). Finally, Plaintiff contends that Dr. 

Fikes’s opinion was entitled to greater weight because it was most recent and based on a more 

developed record. (Id.). For the reasons that follow, this Court disagrees.

1. Check-Box Form and Physical Therapy Notes

The ALJ assigned “some weight” to Dr. Fikes’s June 2016 opinion and explained why he 

weighed certain parts more heavily than others. For instance, the ALJ assigned “greater weight” 

to Dr. Fikes’s opinion that Plaintiff should be limited to lifting and carrying 20 pounds consistent 

with light work, but “less weight to the remaining functional limitations” because “they were 

assessed during the claimant’s left [knee] surgery recovery period.” (Tr. 25, PAGEID #: 64).

The ALJ did not, as Plaintiff suggests, discredit Dr. Fikes’s opinion because he used a 

check-box form. (See Doc. 8 at 8) (“The ALJ attempted to discredit Dr. Fikes’s opinions by 

taking a passing shot at the form by which Dr. Fikes provided his limitations.”). Rather, the ALJ 

noted that there were “some inconsistencies” in Dr. Fikes’s opinion demonstrated by the boxes 

he checked at the end of the form and his functional capacity finding. (Tr. 26, PAGEID #: 65). 

The ALJ explained that, while the claimant used a cane and was able to use her free hand to 

carry objects, Dr. Fikes assessed that she needed a wheelchair, a walker, or two crutches. (Id.). 

The ALJ also noted that Plaintiff was not required to use “the devices indefinitely” and relied on 
14

Plaintiff’s testimony that she used a cane intermittently and did not use a cane to attend her 

disability hearing. (Id.). Thus, the ALJ did not improperly rely on Dr. Fikes’s use of a checkbox form.

Similarly, the ALJ did not err in relying on the physical therapy notes to assign Dr. 

Fikes’s opinion less weight. (See Doc. 8 at 10). Plaintiff admits that the notes refer to her 

progress but argues that “[s]imply because an individual is making ‘progress’ in physical therapy 

does not mean that they do not have limitations or are not disabled as the ALJ suggests.” (Id.). 

Contrary to Plaintiff’s argument, the ALJ did not use the physical therapy notes to find her free 

of limitations or impairments. Instead, the ALJ simply concluded the notes demonstrated 

progress subsequent to Dr. Fikes’s examination during the surgical recovery period. (Tr. 25, 

PAGEID #: 64).

The ALJ acknowledged that the physical therapy notes contained some evidence 

favorable to Plaintiff. For example, the ALJ noted that:

[t]he claimant reported some worsening left knee pain with activity and admitted 

she fell going up the stairs with two crutches. (Exhibit 11F). Physical therapy 

treatment notes showed she could complete the activities with cueing, but without 

cueing she reverted back to her poor body mechanics. (Exhibit 11F/4). 

(Tr. 20, PAGEID #: 59). However, the ALJ found that overall the evidence was a mix of 

evidence both favorable and unfavorable to Plaintiff; for example:

The claimant did not report acute knee pain with her activities during therapy, 

rather she reported muscle soreness and quick fatigue (Exhibit 11F/4). She 

reported trouble ambulating due to a fear of falling and difficulty balancing 

(Exhibit 11F/10). The claimant admitted with treatments she was doing better, 

but reported pain (Exhibit 11F/25). In January 2017, she was able to climb the 

stairs herself without help and with the therapy treatments her balance continued 

to make notable improvement (Exhibit 11F/35). She was able to complete her 

strengthening exercises with encouragement and consistent effort without 

increased pain (Exhibit 11F/37). The record . . . indicate[d] that she was making 

noticeable improvement (Exhibit 12F/33). 
15

(Id.). Thus, the ALJ noted Plaintiff’s reported symptoms such as fatigue but concluded that all 

of the evidence together demonstrated that physical therapy “increased her strength” and 

improved “physical activity after the left knee surgery.” (Id.; see, e.g., Tr. 1056, PAGEID #: 

1101 (noting Plaintiff was able to ambulate on 1 crutch with instruction and cueing); Tr. 1057, 

PAGEID #: 1102 (stating that physical therapy is helping with range of motion); Tr. 1065, 

PAGEID #: 1110 (citing Plaintiff’s report of “improved strengthening and balance while 

ambulating around the house without crutches” and observing “a difference when performing 

[home] exercises more consistently”); Tr. 1083, PAGEID #: 1128 (stating that “patient has made 

improvements with single-leg balance and has progressed to unstable surfaces”); Tr. 1087, 

PAGEID #: 1132 (finding that “balance continues to make notable improvements”); Tr. 1089, 

PAGEID #: 1134 (noting that Plaintiff was “able to complete strength training with 

encouragement to give good consistent effort and was able to complete without complaints of 

increased pain”)).

Even if the physical therapy progress notes could be construed to support a different 

conclusion, Plaintiff fails to demonstrate that the decision falls outside the ALJ’s “zone of 

choice.” See, e.g., Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (noting that “there is a 

‘zone of choice’ within which the Commissioner can act, without the fear of court interference”). 

Thus, the ALJ did not err in relying on Plaintiff’s physical therapy notes.

2. Other Opinion Evidence

Turning to Plaintiff’s next argument, the ALJ did not discredit Dr. Fikes’s opinion “in 

favor of” the opinions of state agency consultants and Dr. Offei. (Doc. 8 at 7). In fact, the ALJ 

afforded each of those opinions “some weight,” explaining that he weighed certain parts of their 

opinions more heavily than others based on the evidence as a whole.
16

Concerning the state agency consultants, the ALJ gave “significant weight” to their 

opinions that Plaintiff was capable of performing light work. (Tr. 26, PAGEID #: 65 (“The 

record is generally consistent with lifting and carrying up to 20 pounds, even her treating 

physician after surgery indicated that claimant could lift within light level exertional work 

parameters.”)). The ALJ gave less weight to their opinions that Plaintiff had an unlimited ability 

to balance at that time, even if Plaintiff subsequently showed improvement in physical therapy. 

(Id. (citing Exhibits 11F and 12F)). The ALJ also assigned less weight to their opinions 

concerning hazards and exposure to pulmonary irritants, finding that Plaintiff required further 

limitations based upon her conditions. (Tr. 26–27, PAGEID #: 65–66). Consequently, the ALJ

afforded some weight to the opinions but determined that Plaintiff required further limitations. 

(Tr. 27, PAGEID #: 66).

The ALJ made similar findings in weighing Dr. Offei’s opinion. Specifically, the ALJ 

gave “some weight” to Dr. Offei’s opinion, more heavily weighing the portion finding Plaintiff 

capable of performing light work. (Tr. 24–25, PAGEID #: 63–64 (finding that Plaintiff’s right 

femur surgery, left knee surgery, bilateral knee degeneration and arthritis, and asthma supported 

the opined limitations on lifting, carrying, sitting, standing, and walking)). The ALJ again 

considered that Plaintiff was gaining improvement in her lower extremity strength and balance 

through physical therapy. (Id. (citing Exhibits 11F and 12F)). However, the ALJ determined

that additional postural and environmental limitations were warranted based on Plaintiff’s postsurgical intermittent balance deficits, asthma, and COPD. (Tr. 24, PAGEID #: 63). 

Accordingly, the ALJ found Plaintiff would be more limited than Dr. Offei’s opinion suggested. 

(Id.).

Thus, the ALJ gave partial weight to the opinions of Dr. Fikes, the state agency 
17

consultants, and Dr. Offei and explained his reasons for doing so based on the record evidence.

Accordingly, the ALJ did not discredit Dr. Fikes’s opinion “in favor of” the opinions of state 

agency consultants and Dr. Offei.

Finally, the ALJ did not err in affording weight to the opinions of state agency 

consultants and Dr. Offei, despite the fact that they were rendered earlier than Dr. Fikes’s 

opinion. The Sixth Circuit has held that an ALJ may rely on opinions that were rendered before 

changes in a claimant’s medical condition if the ALJ also considers subsequent assessments and 

takes into account those changes. McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 

2009). The ALJ did so here by considering, inter alia, both Dr. Fikes’s opinion and the detailed 

physical therapy notes following her left knee surgery. (See supra).

It is the ALJ’s job to resolve inconsistencies in the opinion evidence. See Goodson v. 

Chater, No. 95-6582, 1996 WL 338663, at *1 (6th Cir. June 17, 1996). To be sure, there are 

cases in which an ALJ wholesale adopts medical opinions. In others, such as this case, the ALJ 

parses the opinions and assigns different weights to portions of them. It is not improper to do so. 

See, e.g., Gillespie v. Comm’r of Soc. Sec., No. 1:16-cv-226, 2016 WL 6802894, at *7 (W.D. 

Mich. Nov. 17, 2016) (rejecting Plaintiff’s argument that “the ALJ could not parse out and give 

different weights to portions of the physicians’ opinions, arguing that doing so would be in

violation of the Sixth Circuit’s holding in Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 

2010”)); cf. Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (holding that 

determination of no disability was warranted where “the ALJ’s decision carefully parse[d] all of 

the medical records and accord[ed] them fair weight”); Schulte v. Colvin, No. 4:13-CV-01521, 

2014 WL 1654129, at *5 (N.D. Ohio Apr. 24, 2014) (noting that an ALJ is not required to adopt 

every opinion expressed by a non-examining medical expert, even when an ALJ overall accords 
18

that opinion great weight). For all of these reasons, Plaintiff’s first statement of error is without 

merit.

B. State Agency Consultants’ Mental Assessments

Plaintiff argues next that the ALJ improperly relied on the state agency consultants’ 

mental assessments. In a heading in the Statement of Errors, Plaintiff argues that it was improper 

for the ALJ to rely on those opinions because they were “internally inconsistent.” (Doc. 8 at 12). 

Upon closer review, however, that isn’t Plaintiff’s argument at all. Instead, Plaintiff argues that 

the ALJ erred by “failing to properly account for all of the moderate limitations” in the RFC and 

the hypothetical to the VE. (Doc. 8 at 12–13).

Plaintiff’s more specific point asserts that the ALJ failed to include in the hypothetical

that she was “moderately limited” in the ability to maintain attention and concentration and to 

complete a normal workday and workweek without interruptions from psychological symptoms

as determined by the state agency consultants. (Doc. 8 at 12–13). The state agency consultants 

indeed opined that Plaintiff was limited in maintaining concentration and attention and in her 

ability to complete a normal workday or workweek. (Tr. 212, 226, PAGEID #: 252, 266). 

However, when asked for a narrative of their findings, the state agency consultants explained that 

Plaintiff would be limited to “simple and some complex familiar tasks,” but she would be able 

“to sustain concentration and persistence to perform simple and some complex tasks that are not 

fast paced.” (Tr. 212–13, 226, PAGEID #: 252–53, 266). The state agency consultants likewise 

determined that Plaintiff would be limited to occasional, superficial interactions with others and 

that she may have difficulty responding to changes due to her history of substance abuse. (Tr. 

213, 227, PAGEID #: 253, 267). Thus, the state agency consultants opined that Plaintiff was 
19

able to perform work-related tasks “in an environment where duties are relatively static and 

changes can be explained.” (Id.).

Concerning Plaintiff’s mental health, the ALJ found, inter alia, that the record “showed 

no active specialized mental health treatment” or “mental health medications.” (Tr. 16, 20, 

PAGEID #: 55, 59 (noting that Plaintiff had never been prescribed mental health medications 

and was not in mental health treatment)). Nevertheless, the ALJ assigned “some weight” to the

state agency consultants’ mental assessments. (Tr. 26, PAGEID #: 65 (citing Exhibits 4A and 

6A)). Specifically, the ALJ assigned “significant weight to the notion that the claimant continues 

to have severe depressive disorders and a history of alcohol abuse, resulting in moderate mental 

limitations.” (Id.). However, the ALJ:

[m]odified the moderate limitations found in the functional capacity to contain

vocationally relevant terms that show the claimant would be limited in the 

type of tasks that she could perform; that indicate she would have difficulty 

with adaptation in the work setting, requiring limited changes in the work 

setting and limitations on production quotas and fast paced work. 

(Id.). Therefore, overall, the ALJ afforded the consultants’ mental assessments “some weight” 

because they were not stated in vocationally relevant terms. (Id.).

In modifying the moderate limitations to vocationally relevant terms, the ALJ formulated 

a mental RFC limiting Plaintiff to performing simple, routine, repetitive tasks involving only 

simple work-related decisions with few, if any, workplace changes in a setting without strict 

production quotas or fast paced work, such as on an assembly line. (Tr. 17, PAGEID #: 56). 

The RFC likewise limited Plaintiff to occasional interaction with the general public, coworkers, 

and supervisors. (Id.).

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 
20

149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). It is the ALJ, not a 

physician, who ultimately determines a claimant’s RFC. 42 U.S.C. § 423(d)(5)(B); see also

Coldiron v. Comm’r of Soc. Sec., 391 F. App’x 435, 439 (6th Cir. 2010) (“The Social Security 

Act instructs that the ALJ—not a physician—ultimately determines a claimant’s RFC.”). 

Indeed, an RFC determination is a legal decision rather than a medical one, and the development 

of a claimant’s RFC is solely within the province of an ALJ. See 20 C.F.R. § 404.1527(e). 

Here, the ALJ noted that Plaintiff was moderately limited in her ability to concentrate. 

(Tr. 15, PAGEID #: 54). He also acknowledged Plaintiff’s daily activities despite this limitation,

which included navigating through her community using public transportation, making 

independent purchases, paying bills, counting change, and watching television. (Tr. 16, 23

PAGEID #: 55, 62; see, e.g., Tr. 548. PAGEID #: 592 (discussing Plaintiff’s activities of daily 

living); Tr. 172, PAGEID #: 211 (Plaintiff’s hearing testimony concerning her use of public 

transportation and shopping)). Nevertheless, the ALJ fashioned an RFC that properly addresses 

Plaintiff’s moderate limitation in her ability to concentrate by limiting her to simple, routine, 

repetitive tasks involving only simple work-related decisions with few, if any, workplace 

changes. (Tr. 16–17, 21, PAGEID #: 55–56, 60); see Gipson v. Comm’r of Soc. Sec., No. 5:16 

CV 1108, 2017 WL 3732009, at *12 (N.D. Ohio Aug. 30, 2017) (holding that the ALJ’s RFC 

limiting Plaintiff to simple, routine, repetitive tasks, requiring only simple work-related 

decisions, complied with the moderate limitations the agency psychiatrists placed on Plaintiff’s 

abilities in concentration and pace).

Concerning Plaintiff’s ability to complete a normal workday and workweek without 

interruptions from psychological symptoms, the ALJ expressly considered whether Plaintiff’s 

impairments were so disabling as “to preclude all work activity on a continuing and regular 
21

basis.” (Tr. 22, PAGEID #: 61). However, the ALJ determined that “a careful review of the 

record [did] not document sufficient objective medical evidence to substantiate the ... degree of 

functional limitations alleged by claimant.” (Id.). Again, the ALJ examined Plaintiff’s activities 

of daily living, and found they were “not restricted to the extent that she would be precluded 

from the range of work assessed” in his opinion. (Tr. 23, PAGEID #: 62). He also noted that 

Plaintiff made inconsistent statements—on the one hand representing that she “could not pay 

attention to a television show,” and on the other acknowledging that “she was able to understand 

television.” (Tr. 24, PAGEID #: 63). Thus, the ALJ did not find Plaintiff so limited that she 

would be unable to complete a normal workday and workweek without interruptions from 

psychological symptoms.

Based upon foregoing, the ALJ included the adopted limitations in the hypothetical to the 

VE. Nothing more was required. See Howard v. Comm’r of Soc. Sec., 276 F.3d 239, 241 (6th 

Cir. 2002) (explaining the pertinent requirement is that the hypothetical accurately portray all of 

a claimant’s impairments); see also Casey v. Sec’y of H.H.S., 987 F.2d 1230, 1235 (6th Cir. 

1993) (requiring an ALJ to incorporate only accepted limitations in the hypothetical to the VE)). 

Although Plaintiff is seemingly arguing for more restrictive limitations, it was within the ALJ’s 

purview to make a determination about Plaintiff’s RFC based on the record as a whole. See

Buxton, 246 F.3d at 773 (noting the ALJ’s “zone of choice”). Taking all of the foregoing into 

account, the second statement of error is without merit.

IV. CONCLUSION

For the reasons stated, it is RECOMMENDED that Plaintiff’s Statement of Errors be 

DENIED, and that judgment be entered in favor of Defendant.
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V. 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 finding or recommendations to which objection is made, together with 

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

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

to which objection is made. Upon proper objection, a District 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).

IT IS SO ORDERED.

Date: April 12, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE