IN THE UNITED STATES DISTRICT COURT 

 FOR THE SOUTHERN DISTRICT OF OHIO 

 EASTERN DIVISION 

CAROLYN DAWN JONES, 

 

 Plaintiff, 

 

 Civil Action 2:17-cv-1062 

vs. Judge Algenon L. Marbley 

 Chief Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

 

ORDER and 

REPORT AND RECOMMENDATION 

 Plaintiff, Carolyn Dawn Jones, brings this action under 42 U.S.C. §§ 405(g) and 

1383(c)(3) for review of a final decision of the Commissioner of Social Security 

(“Commissioner”) denying her applications for social security disability insurance benefits and 

supplemental security income. This matter is before the Chief United States Magistrate Judge 

for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 13), the 

Commissioner’s Memorandum in Opposition (ECF No. 18), Plaintiff’s Reply (ECF No. 19), and 

the administrative record (ECF No. 12). For the reasons that follow, it is RECOMMENDED 

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

decision. 

 Because the parties have adequately presented the facts and legal arguments in their 

briefs, Plaintiff’s request for oral argument (ECF No. 13) is DENIED. 
2 

I. BACKGROUND

Plaintiff applied for security disability insurance benefits and supplemental security 

income in June 2014, asserting that two deteriorating discs at L3-L4 and L4-L5, back pain, 

muscle spasms, neuropathy, emphysema, anxiety, and depression constitute a disability, which 

began on March 15, 2014. (R. at 204-08, 209-17, 255.) Plaintiff’s applications were denied 

initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative 

law judge. (R. at 144-45.) Administrative Law Judge Carrie Kerber (“ALJ”) held a video 

hearing on January 11, 2017, at which Plaintiff, who was represented by counsel, appeared and 

testified. (R. at 44-66.) A vocational expert also appeared and testified at the hearing. (R. at 67-

71.) On February 8, 2017, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 18–34.) On October 16, 2017, the Appeals 

Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the 

Commissioner’s final decision. (R. at 1–6.) Plaintiff then timely commenced the instant action. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

At the administrative hearing, Plaintiff testified that she lived with her mother. (R. at 45.) 

She had a driver’s license but did not drive to the hearing. A friend brought her for the hour-long 

drive, in which she testified that her “back was hurting real bad.” (R. at 46.) She does not drive 

long distances. (Id.) 

After discussing her job history, Plaintiff testified that she believes she cannot work due 

to her back. “My back, it swells up real bad. I have real sharp pain in my back. It goes down to 

my right leg. My right leg locks on me [] and I can’t get it to move. If I sit too long of a time 
3 

my back hurts. If I stand too long of a time my foot locks up and I can’t put pressure on it.” (R. 

at 57.) Plaintiff rated her pain severity at a level of 8 on a 0-10 visual analog scale. (R. at 59-

60.) Plaintiff also testified to suffering from chronic obstructive pulmonary disease (COPD), she 

uses inhalers and smokes a half-a-pack of cigarettes a day. (R. at 58.) 

Plaintiff estimated that she can stand for approximately 20 minutes, sit for approximately 

20-25 minutes, and walk for 1-2 blocks. (R. at 57-58.) She can lift approximately 5 pounds or a 

gallon of milk. (R. at 59, 63.) Plaintiff walks with a limp on her right leg. (R. at 66.) 

She spends a typical day watching TV and lying down. Plaintiff testified that she spent 

“half the day” lying on her back with a pillow between her legs to relieve her pain. (R. at 61.) 

Plaintiff is able to feed and dress herself, do basic housework, attend doctor’s appointments 

independently, shop independently, and care for her dog without assistance. (R. at 62-64.) She 

likes to read cook books and play bingo, even though she cannot sit for a long period of time. 

(R. at 65.) Plaintiff testified that she visits with friends “probably twice a week.” (Id.) She 

reported having no problems getting along with others. (Id.) 

B. Vocational Expert Testimony 

 Before the vocational expert (“VE”) testified at the administrative hearing, Plaintiff’s 

counsel objected to him being deemed an expert in the area of determining job numbers. 

Plaintiff’s counsel asked the VE to explain the methods that he uses to come up with job 

numbers. The VE responded, “I use the Bureau of Labor Statistics data. I use the 

O*NET and other federal government publications, including the Occupational Outlook 

Quarterly and I perform minimally three time per week labor market surveys for the States of 

Michigan and Ohio, contacting employers. I also look at various help wanted websites 
4 

in my work as a vocational rehabilitation counselor, assisting people into placement into 

employment.” (R. at 68.) The ALJ overruled Plaintiff’s counsel’s objection finding the VE duly 

qualified based upon the information in the file and his testimony. (Id.) 

 The VE testified that Plaintiff’s past relevant work includes work as a nurse’s aide, a 

medium semi-skilled job; a packer, a medium, unskilled job; and a picker, a medium, unskilled 

job. (R. at 68-69.) 

 The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional 

capacity (“RFC”) to the VE. (R. at 69-70.) Based on Plaintiff’s age, education, and work 

experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could 

not perform her past relevant work, but could perform approximately 555,000 unskilled, light 

jobs in the national economy such as a packer, sorter, and inspector. (R. at 69.) The VE also 

testified that if the hypothetical individual would be off tasks 10% of the workday or miss more 

than one day of work a month, it would be work preclusive. (R. at 70.) 

III. MEDICAL RECORDS 

A. Adil Yamour, M.D. 

 Plaintiff initially treated with Dr. Yamour, on February 12, 2013 after re-acquiring 

medical insurance. She was seen for her history of degenerative disc disease in the lumbar spine. 

(R. at 507.) Plaintiff indicated to Dr. Yamour that she graduated from high school, attended 

technical school and was a state tested nursing assistant. (“STNA”) (R. at 491.)1 On 

examination, Dr. Yamour found tenderness in the lower lumbar and right hip. (R. at 508.) Dr. 

 1

 Plaintiff testified at the hearing that she did not graduate from high school and that she 

did not obtain a GED. (R. at 46-47.) 
5 

Yamour assessed lumbago, ordered an MRI, and Plaintiff was given medication, Tramadol. (R. 

at 510-11.) 

 A February 15, 2013, MRI of the lumbar spine showed disc desiccation and anterior 

spondylosis at L4-L5 with shallow disc displacement abutting but not compressing the thecal 

sac. The disc encroaches mildly into the floor of the foramina bilaterally. There was no 

evidence of nerve root compression. There was also disc desiccation and anterior spondylosis at 

L3-L4 with shallow protrusion. The findings result in mild narrowing of the floor of the 

foramina bilaterally without nerve root compression. Minimal flattening of the thecal sac by the 

protruding disc was noted. (R. at 516-17.) 

 In a March 2013 examination, Plaintiff showed a normal range of motion in the bilateral 

lower extremities, with no evidence of joint tenderness or evidence of muscle atrophy. (R. at 

492.) In October 2013, Plaintiff was found to maintain a normal gait and station, and she 

exhibited no evidence of joint erythema or limitations in ambulation with slight tenderness over 

the lumbar spine. (R. at 458.) By January 2014, Plaintiff was found to continue to exhibit slight 

tenderness over the lumbar spine and right hip. Her range of motion was intact over the lower 

back and extremities. (R. at 439.) In April 2014, Plaintiff reported her low back hurts all of the 

time and she “sometimes” rated her pain as a 10 out of 10 on an analog pain scale. Dr. Yamour 

diagnosed chronic lumbar/lumbosacral disc degeneration and began Plaintiff on the medication, 

Percocet. (R. at 426.) In June 2014, Plaintiff was found to have an intact range of motion, with 

no evidence of joint erythema or joint tenderness, despite her complaints of ongoing pain in the 

lower back and right lower extremity. (R. at 416.) When seen in May 2015, Plaintiff reported 

joint pain but denied joint stiffness, decreased range of motion, joint swelling, and erythema of 
6 

the joints. (R. at 677.) Dr. Yamour referred Plaintiff to pain management for her chronic lumbar 

disc degeneration. (R. at 678.) 

B. Fayette County Memorial Hospital 

 In August 2014, Plaintiff presented to the emergency department after falling on some 

steps which injured her low back and right shoulder. Examination showed spasms in the right 

low back. She was diagnosed with contusion of the right low back and lumbosacral strain. (R. 

at 635-42.) In September 2014, she returned to the emergency department with pain in her left 

shoulder and examination showed tenderness and limited range of motion. She was diagnosed 

with AC joint arthralgia. (R. at 642-52.) 

 Plaintiff was evaluated for pain management in July 2015 by Timothy Mellish, PA-C. 

Mr. Mellish indicated Plaintiff was being evaluated for her low back pain with radiation to the 

right leg that had been ongoing for three years. Plaintiff rated her pain severity at a level of 8 on 

a 0-10 visual analog scale and described her pain as aching, constant and exacerbated by sitting 

for too long, bending and driving. Plaintiff reported her previous treatment included pain 

medication, baths and heating pads. (R. at 615.) Mr. Mellish observed tenderness along the 

lumbar facets worse on the right than on the left. A FABER Patrick test on the left elicited pain 

in the right part to her back and straight leg raise was positive on the right for radicular pain. Mr. 

Mellish diagnosed lumbar spondylosis and sacroiliitis and referred Plaintiff to physical therapy 

before beginning injection therapy. (R. at 616.) 

 Anshuman Raj Swain, M.D., a pain management specialist, saw Plaintiff in August 2015 

and noted she had been in physical therapy for two weeks and was having numbness, tingling 

and weakness in the right leg and left elbow. Plaintiff again rated her pain severity at a level of 8 
7 

on a 0-10 visual analog scale which she described worsened with getting up and down and 

improved with medication. Dr. Swain resumed her medication, Percocet, and asked Plaintiff to 

complete physical therapy after which Dr. Swain would determine what injection treatment 

would be indicated for Plaintiff. (R. at 617.) 

 Plaintiff saw Mr. Mellish in September 2015, noting her pain was worse with sitting and 

transitioning and made better with ice. At that time, Plaintiff had completed four weeks of 

physical therapy and she felt it provided “some relief but not much.” Plaintiff was still 

experiencing numbness and weakness in the left arm as well as right sided weakness. Mr. 

Mellish refilled Plaintiff’s prescription medication. (R. at 619.) X-rays of the lumbar spine were 

found to be unremarkable. (R. at 618.) 

 Plaintiff attended 12 physical therapy sessions. Upon discharge, she subjectively 

reported “fair” improvement. Plaintiff was found to still have sacral torsion. It was 

recommended that she may benefit from more physical therapy after injections and pain is 

managed. (R. at 565-66.) 

 When Plaintiff saw Mr. Mellish in November 2015, she reported the same aggravating 

factors of sitting and transitioning. On examination, Mr. Mellish found tenderness in the right 

lumbar facet and right facet loading which produced increased pain. Mr. Mellish ordered a 

series of facet nerve blocks. (R. at 621-22.) The nerve blocks were administered in December 

2015 by Dr. Swain. (R. at 623, 719-25.) Plaintiff reported 50% relief from the first block for 

two days and no relief from the second block. Her symptoms continued to be aggravated by 

sitting. On examination, Mr. Mellish found tenderness in the right lumbar spine, right lumbar 

facet loading positive for low back pain, flexion biased posture, and palpable trigger points felt 
8 

in the right lumbar muscular. Mr. Mellish ordered a third facet block of the lumbar spine due to 

his belief that Plaintiff has complications with muscle spasms causing her to be unable to have 

relief from the second block. (R. at 624-25.) 

 In January 2016, Plaintiff was dismissed from the program for failing to present for a pill 

count. (R. at 560.) 

C. Marta Grynuik, M.D. 

 Plaintiff established care with internist, Dr. Grynuik on August 14, 2015, for chronic pain 

in her neck, back, upper extremities and lower extremities and decreased range of motion. She 

also described left hand pain. She described her symptoms as worsening and symptoms are 

exacerbated by standing and motion and relieved with rest, nonsteroidal anti-inflammatory drugs 

and opioid analgesics. Dr. Grynuik diagnosed back pain and noted she was being followed by 

pain management. (R. at 758-59.) 

 In September 2015, Plaintiff reported “incredible back pain.” Her symptoms included 

pain, stiffness, and decreased range of motion. Dr. Grynuik noted Plaintiff was seen by pain 

management. (R. at 753.) 

 In March 2016, Dr. Grynuik indicated Plaintiff was discharged from pain management 

due to an inability to come for a pill count. She referred Plaintiff to a new pain management 

specialist, Comprehensive Pain Specialists. (R. at 742.) Plaintiff reported in August 2016 that 

she continued to have chronic low back pain with stiffness, decreased range of motion and 

radiation to the right leg. (R. at 739.) Dr. Grynuik noted that Plaintiff was taking Cymbalta from 

her pain specialist. (R. at 740.) 
9 

 On December 9, 2016, Dr. Grynuik, provided a medical source statement in which she 

noted she had been treating Plaintiff for one and half years, seeing her every two to three months 

for the diagnoses of back pain, depression, fibromyalgia, insomnia, osteoporosis, hyperlipidemia 

and COPD. Dr. Grynuik noted that Plaintiff’s symptoms and limitations have lasted or can be 

expected to last for over twelve months, and that she would be off task more than twenty-five 

percent of the work day. Dr. Grynuik also believed that Plaintiff would also be absent from 

work more than four days per month due to her impairments and/or treatment. (R. at 832.) Dr. 

Grynuik opined Plaintiff can lift and carry less than ten pounds frequently, ten pounds 

occasionally and twenty pounds rarely, due to her bulging disc which prevents normal 

functioning. Plaintiff can sit for three hours, stand for one hour and walk for three hours in an 

eight-hour work day and will require the option to sit or stand at will, due to her becoming very 

uncomfortable in any body position which she is in for more than 30 minutes. Although noting 

that Plaintiff did not require the use of a cane for ambulation, Dr. Gryniuk noted that Plaintiff 

would need a cane or other assistive device at least sometimes. (R. at 833.) Dr. Grynuik noted 

she based Plaintiff’s limitations on Plaintiff’s radiculopathy with weakness in the lower 

extremities which progresses with distance walked. Plaintiff can occasionally push and pull, and 

frequently reach, handle, finger and feel. She could occasionally use her feet bilaterally for foot 

controls due to EMG study showing impairment of nerve conduction. (R. at 834.) Plaintiff 

would be limited to no climbing of ladders and scaffolds, crouching or crawling, rarely 

balancing, stooping and kneeling, occasional climbing of stairs and ramps and frequent rotation 

of the head and neck, all due to nerve damage in both lower extremities. (R. at 834-35.) 

According to Dr. Grynuik, Plaintiff has the environmental limitations of no exposure to 
10 

unprotected heights, moving mechanical parts and extreme heat, rarely be exposed to dusts, 

odors, fumes, pulmonary irritants and extreme cold, occasionally be exposed to humidity and 

wetness and frequently be exposed to operating a vehicle and vibrations. (R. at 835.) 

D. Comprehensive Pain Specialists 

 Plaintiff began treating with Dwight E. Mosely, Jr., M.D. at Comprehensive Pain 

Specialists in July 2016. (R. at 552-57.) Initially, Dr. Mosely found focal tenderness and muscle 

spasms in the paravertebral muscles and pain elicited in paraspinous and spinous percussion as 

well as pain palpable over the SI joints bilaterally. Plaintiff’s gait was observed to be antalgic 

and she had positive Faber and Patricks’ test, positive facet loading, positive paraspinal 

tenderness, lumbar paravertebral tenderness and positive SI joint examination. Dr. Mosely 

assessed lumbar radiculopathy, long-term opiate therapy, opiate dependence secondary to daily 

use, depression, and bilateral sacroiliitis. He recommended additional SI joint injections in the 

lumbar spine and anti-inflammatory medications. He also indicated close medication 

management of her narcotic medications. He ordered an MRI and EMG. (R. at 555.) 

 When seen by Dr. Mosely in August 2016, he indicated the EMG showed right and left 

L5-S1 radiculopathy. Plaintiff reported her right leg was the worst of her pain. Dr. Mosely 

administered an injection. (R. at 542-46.) Dr. Mosely administrated an epidural steroid injection 

on September 28, 2016. (R. at 533.) In October 2016, when Plaintiff was to receive her next 

epidural steroid injection, Dr. Mosely elected to hold off on the second injection pending an 

elevation by a surgeon. (R. at 520.) Plaintiff reported her pain was aggravated by stooping and 

bending, changing from sitting to standing, lifting or carry heavy and small loads and walking. 

(Id.) 
11 

E. State Agency Review 

 In August 2014, after review of Plaintiff’s medical record, Edmond Gardner, M.D., 

opined that Plaintiff could lift twenty-five pounds frequently and fifty pounds occasionally; 

stand/walk for about six hours out of eight, and sit for six hours out of eight. (R. at 82.) Dr. 

Gardner also found Plaintiff could frequently climb ramps/stairs, stoop; occasionally climb 

ladders, ropes, or scaffolds; with unlimited balance, kneel, or crouch. (R. at 82-83.) Dr. Gardner 

explained that his residual functional capacity findings are based on Plaintiff’s history of lumbar 

spine degenerative disc disease. (Id.) In January 2015, Rannie Amiri, M.D., reviewed the record 

upon reconsideration and modified Dr. Gardner’s opinion by noting Plaintiff retained the 

residual functional capacity to lift and carry 20 pounds occasionally, 10 pounds frequently. (R. 

at 103-04.) 

IV. THE ADMINISTRATIVE DECISION 

 On February 8, 2017, the ALJ issued her decision. (R. at 18-34.) The ALJ first found 

that Plaintiff met the insured status requirements through December 31, 2019. At step one of the 

sequential evaluation process,2

 the ALJ found that Plaintiff had not engaged in substantially 

 

2 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? 
12 

gainful activity since March 15, 2014, the alleged onset date. (R. at 20.) The ALJ found that 

Plaintiff has the following severe impairments: lumbar spondylosis; sacroilliitis; hyperlipidemia; 

COPD; and depression. (Id.) The ALJ determined that Plaintiff’s history of substance abuse, 

although the record reflects that opioid and marijuana abuse was present during the alleged 

period of disability, this usage did not have a significant impact on her ability to function relative 

to her physical and psychological impairments. (R. at 21.) She 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. (Id.) The ALJ 

assessed the severity of Plaintiff’s impairments by comparing the medical evidence to the 

requirements of the following listings: 1.02 for Major Dysfunction of a Joint; 1.04 for Disorders 

of the Spine; 3.02 Chronic Pulmonary Insufficiency; 12.04 Affective Disorders; and 12.06 

Anxiety-Related Disorders. (R. at 21-24.) At step four of the sequential process, the ALJ set 

forth Plaintiff’s RFC as follows: 

 

 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).

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

[Plaintiff] has the residual functional capacity to perform light work as defined in 

20 CFR 404.1567(b) and 416.967(b) except: frequent climbing of ladders, ropes, 

or scaffolds; frequent stooping and crawling; and further limited to simple, routine 

tasks that are not fast paced or requiring strict production quotas, and only 

occasional exposure to respiratory irritants such as fumes, odors, dusts, gases and 

poor ventilation. 

(R. at 24.) In making the above determination, the ALJ assigned Dr. Gryniuk’s opinion partial 

weight finding it contradicted by other medical evidence, and inconsistent with the objective x-
13 

rays and MRI scans of Plaintiff’s lumbar spine. (R. at 30.) The ALJ also assigned partial 

weight to the assessments from the state agency reviewing physicians, Drs. Gardner and Amiri. 

(R. at 31.) 

 Relying on the VE’s testimony, the ALJ concluded that Plaintiff is unable to perform her 

past relevant work but she can perform jobs that exist in significant numbers in the national 

economy. (R. at 32-34.) She therefore concluded that Plaintiff was not disabled within the 

meaning of the Social Security Act. (R. at 34.) 

 The ALJ noted that Plaintiff’s representative filed a post-hearing brief and specifically 

addressed Plaintiff’s objections to the testimony and number of jobs identified by the VE. (R. at 

33.) The ALJ addressed the objections as follows: 

However, the undersigned notes that [Plaintiff’s] representative was present at the 

hearing and had the opportunity to cross-examine the witness while under oath. 

Additionally, [Plaintiff’s] representative was provided with an opportunity to 

supply his own witness or vocational expert to challenge the evidence offered by 

[the VE], but failed to do so. Pursuant to 20 CFR 404.15.1560(b)(2), 

404.1566(d), 416.960(b)(2), and 416.966(d), a sufficient basis for vocational 

expert testimony can be found based upon the vocational expert’s professional 

knowledge and experience, as well as reliance on job information available from 

various governmental and other publications. Therefore, because [Plaintiff’s] 

representative was present in the courtroom, had the opportunity to cross-examine 

the witness, and was afforded the opportunity to call his own witnesses in 

contradiction to the testimony offered by the vocational expert, the undersigned 

finds the objections to the vocational expert’s testimony not well taken and denies 

the same. 

(R. at 33.) 
14 

V. 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. at 2009) 

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

U.S.C. § 405(g) (“[t]he 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 (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 
15 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th 

Cir. 2007)). 

VI. ANALYSIS 

In her Statement of Errors, Plaintiff contends that the ALJ erred in relying on vocational 

expert testimony and impermissibly shifted the burden to Plaintiff at step 5. According to 

Plaintiff, the ALJ failed to adequately address the objections she raised in her post-hearing brief. 

Second, Plaintiff maintains that the ALJ failed to properly evaluate the opinions of her treating 

physician, Dr. Gryniuk. (ECF No. 13 at pp. 5-20, ECF No. 19.) The Undersigned addresses 

each assignment of error in turn. 

A. ALJ’s Reliance on the VE’s Testimony 

 Plaintiff frames her first assignment of error as follows: 

[D]espite a clear obligation to do so, the ALJ in this case failed to directly address 

the objection made to the vocational expert’s testimony regarding how the jobs 

the vocational expert identified (and which were relied upon by the ALJ to deny 

benefits, as above) are currently performed in the national economy (briefly, that 

when described 30 years ago in the DOT these jobs were unskilled jobs, but as 

currently performed, are skilled jobs). The evidence presented by Plaintiff, which 

derives from the Department of Labor’s current resource for categorization of job 

data, directly contradicts the testifying vocational expert’s opinion and the ALJ’s 

reliance upon it, and the objection is facially relevant to the issue of the ALJ’s 

step 5 burden. . . . 

(Pl’s Brief, at p. 2.) 

 Plaintiff suggests that the ALJ violated the SSA’s own regulations and guidance at step 5 

by failing to address her post-hearing objections to the VE’s testimony. (R. 15, Pl.’s Mem. at 4-

6.) This argument has no support in fact or law. As a factual matter, the ALJ did address 

Plaintiff’s post-hearing objections and provided a narrative explanation for overruling them. (R. 

at 33.) The ALJ discussed Plaintiff’s representative’s failure to challenge the VE’s testimony at 
16 

the hearing and noted that Plaintiff’s representative was provided an opportunity to supply his 

own witness or vocational expert to challenge the evidence offered by the VE but failed to do so. 

The ALJ cited the various applicable regulations and concluded that vocational-expert testimony 

is properly supported when it is based on the vocational expert’s professional knowledge and 

experience, as well as reliance on job information available from various governmental and other 

publications. For these reasons, the ALJ overruled and denied Plaintiff’s objections to the VE’s 

testimony. (Id.) Accordingly, as a factual matter, the ALJ did rule directly on Plaintiff’s posthearing objections. 

 Nor has Plaintiff shown that the ALJ violated a legal obligation set out by the SSA’s 

Hearings, Appeals and Litigation Law (“HALLEX”) manual, which, Plaintiff contends, 

“embodies the principles of procedural due process found in the Constitution and the 

Administrative Procedure Act.” (Pl’s Reply, at p. 2; see also Pl’s Brief, at p. 4, n.2.) Plaintiff 

points to HALLEX § I-2-6-74(B)3 which provides that at the hearing the ALJ must ask the 

claimant’s representative if she has any objections to the VE’s testimony and if so, must rule on 

any objections either “on the record during the hearing, in narrative form as a separate exhibit, or 

in the body of his or her decision.” HALLEX § I-2-6-74(B). In this case, Plaintiff did not raise 

the objections to the VE’s testimony until after the hearing. As such, this HALLEX provision 

does not apply.4 Because Plaintiff did not raise the objections at the hearing and because the 

ALJ specifically addressed her post-hearing objections in the body of her written decision, 

 3

 Available at https://www.ssa.gov/OP_Home/hallex/I-02/I-2-6-74.html 4

 Plaintiff also cites to HALLEX § I-2-5-30, available at 

https://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-30.html (Pl. Brief at p. 4.) This provision also 

relates to hearing objections and indicates that the “ALJ will respond to any objections, either in 

writing or on the record at the hearing.” Again, because Plaintiff did not raise the objections at 
17 

Plaintiff has not shown that the ALJ violated any obligations established by HALLEX. See 

Horner v. Berryhill, No. 17 C 4823, 2018 WL 1394038, at *2 (N.D. Ill. Mar. 20, 2018) 

(“Because HALLEX does not compel an ALJ to rule on objections to VE testimony posed after a 

hearing has ended, the ALJ's failure to do so in this case was not erroneous.”); Owens v. 

Berryhill, 17-cv4824, 2018 WL 3303274, at *2 (N.D. Ill. July 5, 2018) “Here [plaintiff] did not 

raise the relevant objections to the VE’s testimony until after the hearing, so the cited HALLEX 

provision does not apply.”); Rockholt v. Berryhill, 2018 WL 4462231, at *7 (W.D. Okla., 2018) 

(collecting cases). 

 At bottom, Plaintiff maintains that the ALJ erred by failing to address her rebuttal 

evidence regarding her ability to perform the light, unskilled jobs of packer, sorter or inspector, 

as the VE concluded, and that those jobs as described in the DOT are outdated and fail to reflect 

the positions as they are now generally performed.5 Yet, Plaintiff could have cross-examined the 

VE to elicit testimony as to her ability to perform the requirements of a packer, sorter or 

inspector, but did not. Plaintiff has thus waived her challenge to the testimony. See Slone v. 

Berryhill, 2018 WL 5729591 at *5 (N.D. Ind. Nov. 1, 2018) (“Had [plaintiff]’s attorney actually 

questioned the VE's testimony on this topic at the hearing, the VE could have said more about 

the resources and her methodology. Claimants may forfeit arguments concerning vocational 

 

the hearing, this provision also does not apply. 

5

 Plaintiff fails to acknowledge that the VE did not rely exclusively on the DOT and 

considered O*NET, other federal governmental publications including Occupational Outlook 

Quarterly, multiple weekly labor market surveys and various help-wanted websites. Even if the 

VE had not reviewed other materials, in the Sixth Circuit, an ALJ may “rely solely on the 

vocational expert’s testimony[,] . . . [because the] regulations do not require the [Commissioner] 

or the [VE] to rely on classifications in the [DOT].” Conn v. Sec’y of Health & Human Servs., 

51 F.3d 607, 610 (6th Cir. 1995). 
18 

expert testimony by failing to object to the testimony during the hearing.”); Gassler v. Berryhill, 

2019 WL 945972, at *3 (S.D. Ga., 2019) (same).6 

 In any event, even if the Court were to assume that the ALJ failed to follow the 

HALLEX, the Undersigned concludes that the error was harmless. While the HALLEX 

procedures are binding on the Social Security Administration, they are not binding on courts in 

conducting their review of the administrative proceedings. See Bowie v. Commissioner of Social 

Security, 539 F.3d 395, 399 (6th Cir. 2008) (observing that the procedural guidance in HALLEX 

is “not binding on this court”). Moreover, the agency procedures set forth in HALLEX, in and of 

themselves, do not create federal due process rights for claimants. “No circuit has held that the 

HALLEX creates constitutional rights because, of course, only the Constitution, not an agency’s 

rules or procedures, is the source of such rights.” Davenport v. Astrue, 417 F. App’x 544, 547–48 

(7th Cir. 2011); Engelhart v. Comm’r of Soc. Sec., No. 2:15-cv-2017, 2017 WL 780606 (S.D. 

Ohio March 1, 2017) (noting no procedural due process rights arise from HALLEX procedures 

and consequently, “even if the Commissioner failed to follow HALLEX procedures, such a fact 

would not necessarily entitle [plaintiff] to relief.”); Dukes v. Commissioner of Social Sec., 2011 

WL 4374557, at *9 (W.D. Mich., 2011) (same). 

Plaintiff attempts to nuance her stance by indicating she is not arguing that HALLEX 

creates a due process right but rather is asserting that HALLEX “embodies the procedural due 

process found in the Constitution and the Administrative Procedures Act.” (Pl’s Reply at p. 2.) 

The Undersigned finds this argument unpersuasive. Plaintiff still has not demonstrated that the 

ALJ violated the letter of HALLEX, that she sufficiently preserved her objections, or that there is 

 6

 Plaintiff was given the opportunity to call additional witnesses (R. at 42) and could have 
19 

a cognizable claim in this Court for violation of HALLEX. For these reasons, it is 

RECOMMENDED that the Court OVERRULE this assignment of error. 

B. ALJ’s Assessment of Plaintiff’s Treating Physician 

 Plaintiff next contends that the ALJ erred when she failed to evaluate the opinions of 

Plaintiff’s treating physician in accordance with SSA policy and Sixth Circuit precedent. The 

Undersigned concludes that the ALJ properly evaluated and discounted the opinion of Plaintiff’s 

treating physician, Dr. Grynuik. 

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 physicians and psychologists or other acceptable medical sources that reflect 

judgments about the nature and severity of your impairment(s), including your symptoms, 

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 416.927(a)(2). 

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 

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). 

 

called her own vocational expert, but did not take advantage of these options. 
20 

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 Amust 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 

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

See Halloran v. Barnhart, 362 F.3d 28, 32B33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544B45. 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). 
21 

There is no requirement, however, that the ALJ Aexpressly@ 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). 

Here, the ALJ acknowledged that Plaintiff with Dr. Grynuik for approximately one and a 

half years. (R. at 29.) Nevertheless, the ALJ assigned only partial weight to the opinion of Dr. 

Grynuik. In making this finding, the ALJ concluded that her opinion was not entitled to 

controlling weight: 

[B]ecause objective medical records from Dr. Grynuik’s office and the medical 

records from Comprehensive Pain Specialists contradict her finding that the 

[Plaintiff] can only rarely lift and carry up to 20 pounds, sit for 3 hours, and stand 

for 1 hour secondary to lower back pain. Furthermore, the [ALJ] notes that the 

opinion of Dr. Gryniuk is generally inconsistent with the objective x-rays and 

MRI scans of [Plaintiff’s] lumbar spine, which show that she has only mild 

evidence of degenerative disc disease. Additionally, the [ALJ] notes that the 

opinion of Dr. Gryniuk is inconsistent with the treatment notes from Fayette 

County Memorial Hospital, which show that [Plaintiff] was found to have 

essentially no evidence of upper extremity limitations that would warrant a 

limitation on reaching, handling and fingering. Moreover, the [ALJ] notes that 

the opinion of Dr. Gryniuk is inconsistent with records from her own office, 

which show that she required only minimal treatment for her symptoms of 

depression and anxiety. However, the [ALJ] notes that Dr. Gryniuk’s opinion is 

generally consistent with the medical records from the Fayette County Memorial 

Hospital and Comprehensive Pain Specialists, which show that she did receive 
22 

ongoing treatment for symptoms of lower back pains that did interfere with her 

level of functioning. Therefore, based upon the foregoing, the [ALJ] gives only 

partial weight to the opinion of Dr. Gryniuk. 

(R. at 30.) 

 According to Plaintiff, this explanation is deficient for several reasons. Plaintiff first 

faults the ALJ because she did not mention that Dr. Grynuik is “likely to be the medical 

professional[] most able to provide a detailed, longitudinal picture of his medical impairment(s).” 

(Pl’s Brief at pp. 13-14.) Plaintiff also suggests that the ALJ’s reasoning is defective because she 

did not expressly find that Dr. Gryniuk had “reasonable knowledge” of Plaintiff’s impairments. 

(Id.) Neither of these arguments has merit. 

 Contrary to Plaintiff’s apparent opinion, the ALJ is not required to discuss, let alone quote, 

all the regulatory factors when evaluating medical opinions. Francis v. Comm’r of Soc. Sec., 414 

F. App’x 802, 804 (6th Cir. 2011) (“Although the regulations instruct an ALJ to consider these 

factors, they expressly require only that the that the ALJ's decision include ‘good reasons . . . for 

the weight . . . give[n] [to the] treating source’s opinion’—not an exhaustive factor-by-factor 

analysis.); see also SSR 06-03p 2006 WL 2329939 at *5 (“Not every factor for weighing opinion 

evidence will apply in every case.”) Here, the ALJ cited to the treating physician rule and 

recognized that Dr. Gryniuk was Plaintiff’s treating physician. (R. at 29-30.) The ALJ also 

noted the length of that treating physician relationship, acknowledging that Plaintiff treated with 

Dr. Gryniuk for approximately one and one-half years. (R. at 29). The ALJ was aware of the 

frequency of the examinations, as evidenced by the fact that she referenced and discussed 

Plaintiff’s examinations with Dr. Gryniuk at length. (R. at 26-27.) While discussing Dr. 

Gryniuk’s treatment notes, the ALJ noted that Plaintiff required only conservative treatment for 
23 

her symptoms of COPD, anxiety and depression. This discussion demonstrates that the ALJ was 

aware of the nature and extent of the treatment relationship. (R. at 28-29.) The ALJ also 

considered the consistency of Dr. Gryniuk’s opinion with other evidence in the record. (R. at 

30.) Put short, the ALJ discussed the relevant factors when evaluating the opinion of Dr. 

Gryniuk. 20 C.F.R. § 404.1527(c). 

 Plaintiff also criticizes the ALJ’s evaluation because she did not mention that Dr. Gryniuk 

is board certified in internal medicine. (Pl’s Brief at p. 14.) As set forth more fully below, 

however, the ALJ adequately supported her decision to discount Dr. Gryniuk’s opinion based on 

other factors, which the ALJ evidently found more compelling than the doctor’s board-certified 

training. 

 The ALJ provided good reasons for not affording Dr. Gyniuk’s opinion controlling weight 

and the reasoning is supported by substantial evidence. For instance, the ALJ noted that Plaintiff 

had required only conservative treatment symptoms of COPD, anxiety and depression and 

therefore reasonably concluded that Dr. Gyniuk’s opinion was not entitled to controlling weight. 

See 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 ALJ also concluded that Dr. Gryniuk’s opinion was inconsistent with the medical 

evidence, including her own treatment notes. Substantial evidence supports this conclusion. 

Records from Comprehensive Pain Specialists, Fayette County Memorial Hospital, X-rays and 

MRI scans that show only mild degenerative disc disease and little to no limitations in her upper 

extremities. Although she placed significant limitations on Plaintiff’s abilities, Dr. Gryniuk’s 
24 

own notes reflect that she required only minimal treatment for her symptoms of depression and 

anxiety. The ALJ reasonably discounted the opinion of Dr. Gryniuk because it was not 

consistent with other substantial evidence in the record including objective diagnostic tests, her 

own office notes and treatment notes from other medical sources. Although the record reflects 

that Plaintiff had some limitations, it does not support the limitations noted in Dr. Gryniuk’s 

opinion, namely that Plaintiff could rarely lift and carry up to 20 pounds, sit for 3 hours and 

stand for 1 hour. These are good reasons and the ALJ reasonably concluded that Dr. Gryniuk’s 

opinion was not entitled to controlling weight. See Cosma v. Comm. of Soc. Sec., 652 F. App’x 

310, 311 (6th Cir. 2016) (holding the ALJ reasonably gave no weight to doctor’s opinion in part 

because it conflicted with the objective medical evidence in the record and the doctor’s own 

treatment notes); Warner v. Comm. of Soc. Sec., 375 F.3d 387, 391 (6th Cir. 2004) (finding it 

was proper to reject doctor’s conclusion regarding plaintiff’s limitations when it was inconsistent 

with the substantial evidence in the record indicating otherwise); see also Social Security Ruling 

96-2p (“Even if well-supported by medically acceptable clinical and laboratory techniques, the 

treating source’s medical opinion also must be ‘not inconsistent’ with the other ‘substantial 

evidence’ in the individual’s case record.”) For these reasons, it is RECOMMENDED that the 

Court overrule Plaintiff’s second assignment of error. 

VII. CONCLUSION

 For the foregoing reasons, For the reasons that follow, it is RECOMMENDED that the Court 

OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision. 

 Because the parties have adequately presented the facts and legal arguments in their 

briefs, Plaintiff’s request for oral argument (ECF No. 13) is DENIED. 
25 

VIII. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

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

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate 

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the 

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). 

IT IS SO ORDERED. 

Date: June 18, 2019 /s/ Elizabeth A. Preston Deavers 

Elizabeth A. Preston Deavers 

 Chief United States Magistrate Judge