UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

STEPHANIE R. JORDAN SMITH, 

Plaintiff, 

 Civil Action 2:18-cv-286 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

 

 Plaintiff, Stephanie R. Jordan Smith (“Plaintiff”), brings this action under 42 U.S.C. § 

405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) 

denying her applications for a period of disability, disability insurance benefits, and 

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

Recommendation on Plaintiff’s Statement of Errors (ECF No. 14), the Commissioner’s Response 

in Opposition (ECF No. 19), and the administrative record (ECF No. 11). For the reasons that 

follow, it is RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that 

the Commissioner’s decision be AFFIRMED. 

I. BACKGROUND 

Plaintiff protectively filed her applications for a period of disability, disability insurance 

benefits, and supplemental security income on September 13, 2013. In her applications, 

Plaintiff alleged a disability onset of March 1, 2012. Plaintiff’s applications were denied 
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initially on May 14, 2014, and upon reconsideration on October 31, 2014. Plaintiff sought a 

hearing before an administrative law judge. Administrative Law Judge Thomas L. Wang (the 

“ALJ”) held a hearing on January 6, 2017, at which Plaintiff, represented by counsel, appeared 

and testified. Vocational Expert Carl W. Hartung (the “VE”), also appeared and testified at the 

hearing. On March 22, 2017, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. On January 30, 2018, the Appeals Council 

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

decision. Plaintiff then timely commenced the instant action. 

II. HEARING TESTIMONY 

At the hearing, Plaintiff testified that she is disabled due to headaches resulting in 

“terrible pain.” (R. at 48-49.) She further testified that she has blackouts in her eyesight, 

pressure in her head, memory problems, cognitive decline, shoulder pain, allergies, sleep apnea, 

and neck pain. (R. at 49, 55-57, 61.) Plaintiff estimated that she gets pressure headaches 

“maybe two, maybe three times a week.” (R. at 60.) Plaintiff explained that, when she has a 

headache, she usually sits with an ice pack on her head unless she has physical therapy. (R. at 

62.) Plaintiff testified that she had a shunt put in her head in February 2016, and that since 

then, she has “[her] good times and [her] bad times.” (R. at 63.) She thinks the shunt “drains 

[her] better than all the medication. . .” (Id.) Plaintiff testified that she has complied with her 

doctor’s recommendations regarding her headaches and that she has a home health aide at her 

doctor’s suggestion. (R. at 63-64.) 

Regarding activities of daily living, Plaintiff testified that her mother helps her care for 

her daughter and with cooking. (R. at 65.) She testified that she is able to drive, but her 
3 

parents “really don’t like [her] to drive,” so her mom takes her daughter to her dance lessons. 

(R. at 65.) Plaintiff testified that she “tr[ies] to do laundry and stuff.” (Id.) 

The VE also testified at the hearing. The ALJ asked the VE a series of hypothetical 

questions for the purpose of determining whether Plaintiff can perform past work and/or other 

work in the regional and national economy. (R. at 66-70.) The ALJ first asked the VE as 

follows: 

Q: Assume a hypothetical individual with the claimant’s age, education, and past 

job. 

Hypothetical No. 1: Light work as defined by the regulations; push or pull is limited 

as per exertional weight limits; no commercial driving; no inspection work; 

overhead reaching is limited to the frequent level; forward and laterally is 

unlimited; occasional exposure to loud noise, as defined by the SCO as code 4; 

occasional exposure to irritants, such as fumes, odors, dusts, and gases; no use of 

hazardous machinery; no exposure to unprotected heights; goal-based production 

work measured by end result, not pace work; work that’s limited to simple, routine, 

and repetitive tasks; work allowed off task 5 percent of the day; work in a low stress 

job, defined as only occasional changes in the work setting. Interaction with the 

public, coworkers, and supervisors is limited to the occasional level. Avoiding 

exposure to extreme bright lighting, like stage lighting, headlights, bright 

inspection lights; normal office and home lighting is acceptable. 

Can the hypothetical individual perform the past job? 

A: No, Judge, they cannot. 

Q: Can the hypothetical individual perform any other work? 

A: Judge, there are other jobs that would meet the parameters of the hypothetical. . 

. . 

(R. at 67-68.) The VE testified that Plaintiff can perform the job of marker, routing clerk, and 

housekeeping cleaner. (R. at 68-69.) The ALJ subsequently asked the VE the following 

hypothetical question: 
4 

Q: If I were to take Hypothetical No. 1 base and state that the hypothetical 

individual would be able to work within a 5 percent off-task component and would 

not need the additional breaks but that she would eventually pay for that and she 

would require two absences every month on a consistent basis after having worked 

for that month. 

Would that limitation render – added to Hypothetical 1, render Hypothetical 1 work 

preclusive? 

A: Yes, Judge. For unskilled work, I believe that’s accurate. 

(R. at 70.) 

III. THE ADMINISTRATIVE DECISION 

 On March 22, 2017, the ALJ issued his decision. (R. at 15-35.) The ALJ first found 

that Plaintiff meets the insured status requirements through December 31, 2017. (Id. at 18.) At 

step one of the sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged in 

 

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

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

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

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

1. Is the claimant engaged in substantial gainful activity? 

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

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

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

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

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

perform his or her past relevant work? 

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

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

national economy? 

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

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
5 

substantial gainful activity since March 1, 2012, the alleged onset date. (Id.) At step two, the 

ALJ found that Plaintiff had the severe impairments of “idiopathic intracranial hypertension; 

migraine headaches; nuclear sclerosis of the eyes; allergic rhinitis; RC tear; morbid obesity; an 

adjustment disorder with mixed depression and anxiety; and borderline intellectual functioning.” 

(Id.) He further found that Plaintiff had the non-severe impairments of obstructive sleep apnea 

and gastroesophageal reflux disease. (Id.) At step three, the ALJ found that Plaintiff did not 

have an impairment or combination of impairments that met or medically equaled one of the 

listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 18-19.) At 

step four of the sequential process, the ALJ set forth Plaintiff’s residual functional capacity 

(“RFC”) as follows: 

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

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

CFR 404.1567(b) and 416.967(b) except pushing/pulling is limited as per the 

exertional weight limits. She would be precluded from engaging in commercial 

driving and precluded from engaging in inspection work. The claimant could 

frequently reach overhead, but would be unlimited in forward and lateral reaching. 

She could have occasional exposure to loud noise, defined by the SCO as code 4. 

She could have occasional exposure to irritants, such as fumes, odors, dusts, and 

gases. She would be precluded from the use of hazardous machinery and 

precluded from exposure to unprotected heights. The claimant would require goal 

based production, where work is measure[d] by the end result, not pace work. She 

could perform simple, routine, repetitive tasks and work allowed off task would be 

five (5) percent of the day. She would require a low stress job, defined as only 

occasional changes in the work setting. She could have occasional interaction with 

the public, coworkers, and supervisors. The claimant should avoid exposure to 

extreme bright lighting, such as stage lighting, headlights, and bright inspection 

lighting, but exposure to normal office/home lighting is acceptable. 

(R. at 22.) In calculating Plaintiff’s RFC, the ALJ considered Plaintiff’s credibility and found 

that her allegations regarding her symptoms and limitations were not generally supported by the 

objective evidence in the record. (R. at 31.) 
6 

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

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

economy. (R. at 33-34.) He therefore concluded that Plaintiff was not disabled under the 

Social Security Act. (R. at 35.) 

In her Statement of Errors, Plaintiff contends that the ALJ’s decision is not supported by 

substantial evidence for two reasons. First, she contends that the ALJ erred in his credibility 

analysis. Second, Plaintiff asserts that the ALJ improperly relied upon the VE’s testimony at 

step five because it was based on a hypothetical question that was “incomplete and inaccurate.” 

IV. STANDARD OF REVIEW 

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

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

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

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

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

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 
7 

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

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

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

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

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

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

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

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

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

(6th Cir. 2007)). 

V. ANALYSIS 

 As set forth above, Plaintiff raises two issues in her Statement of Errors (ECF No. 14). 

First, she asserts that the ALJ erred in analyzing her credibility. Second, she posits that the 

ALJ’s decision is not supported by substantial evidence because the hypothetical question posed 

to the VE was inaccurate and incomplete. The undersigned considers each contention of error 

in turn. 

A. The ALJ’s Credibility Determination 

Plaintiff first asserts that the ALJ erred in evaluating her credibility. (Pl.’s Statement of 

Errors at 8, ECF No. 14.) Within this contention of error, Plaintiff alleges that the reasons the 

ALJ provides for discounting her credibility are invalid or are not supported by substantial 

evidence. The Commissioner counters that the ALJ appropriately evaluated Plaintiff’s 

allegations in light of the rules and regulations and substantial evidence supports the ALJ’s 
8 

credibility findings. (Def.’s Mem. in Opp. at 14, ECF No. 19.) The undersigned agrees with 

the Commissioner and finds Plaintiff’s first contention of error to be without merit. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

controls to the extent it is consistent with the clarification of the rules embodied in SSR 16-3p’s 
9 

clarification. 

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

credibility assessment: 

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

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

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

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

whether the there is an underlying medically determinable physical impairment that 

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

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

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

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

Rogers, 486 F.3d at 247. 

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

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

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

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

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

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

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

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

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

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

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

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

review.”). In addition, the Regulations list a variety of factors an ALJ must consider in 
10 

evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of 

medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 16–3p; but 

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

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

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

Here, the ALJ’s analysis supplies substantial evidence supporting his credibility finding 

and properly considers the requisite factors in evaluating Plaintiff’s subjective statements. The 

ALJ thoroughly discussed the record evidence and concluded that it did not support Plaintiff’s 

subjective complaints, explaining as follows: 

The claimant does have underlying medically determinable impairments that could 

reasonably cause some symptomatology. However, the pivotal question is not 

whether such symptoms exist, but whether those symptoms occur with such 

frequency, duration, or severity as to reduce the claimant’s residual functional 

capacity as set forth above or to preclude all work activity on a continuing and 

regular basis. In this case, a careful review of the record does not document 

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

degree of functional limitation alleged by the claimant. The objective evidence 

fails to document the presence of any impairment or combination of impairments 

that could reasonably be expected to result in pain or other symptoms of such a 

severity or frequency as to preclude the functional abilities described above. 

Rather, the factors set forth in 20 CFR 404.1529(c) and 20 CFR 416.929(c) support 

the residual functional capacity as assessed. 

With respect to the nature of the claimant’s symptoms, precipitating and 

aggravating factors, the medications taken and any side effects, and other measures 

used to relieve the symptoms, the claimant reported some memory loss and 

confusion as a result of her prescribed medications. While she testified to such 

side effects, and how much she had lost mentally, the record was devoid of routine 

or consistent reports of such significant side effects to her treating medical 

providers. 

In addition to the general lack of objective evidence, the evidence of record does 

not support her subjective complaints. The claimant testified and the record 

documented that despite filing for disability she intended to return to work. Her 

intention to return to work suggests she believed she remained able to engage in 
11 

work related activities. The belief one is able to engage in work related activities 

is inherently inconsistent with the filing of disability, asserting one is unable to 

work. 

 

The claimant’s daily activities are not restricted to the extent that she would be 

precluded from the range of work assessed herein. The claimant testified that she 

lived at home with her family, including her mother. The record documented 

while she testified she used the assistance of doctor suggested, but not prescribed 

home health care, she reported she remained able to drive a motor vehicle and 

transport her daughter to school (Exhibit 20F/3). She was able to perform 

household chores, including cleaning and washing laundry (Exhibit 20F/3). The 

claimant indicated that she shared responsibilities of cleaning, cooking, and 

shopping with her mother (Exhibit 20F/3). She admitted at times she would help 

her husband with his work (Exhibit 20F/3). She stated that she enjoys attending 

her daughter’s games and activities, as well as staying in touch with her friends and 

family (Exhibit 20F/3). The claimant admitted she remains able to use the 

computer and enjoys watching television (Exhibit 20F/3). 

The record contains inconsistent statements. The claimant reported she was in 

significant pain; however, the record noted she was observed to be in no apparent 

or acute distress on multiple occasions (Exhibits 6F/11; 9F/3, 8; 21F/12). The 

claimant endorsed she was depressed; however, she did not seek routine or 

consistent mental health treatment with any licensed mental health specialist or 

counselor, but rather received no more than conservative medication management 

from her general practitioner. The claimant reported memory deficits; however, 

she continued to be her head of household and was able to provide care for herself 

and for her daughter. She was able to operate a motor vehicle and navigate through 

her community, taking her daughter to school and sharing the responsibility of 

going shopping with her mother. While she reported that she used a home health 

care aide, there was nothing in the record to suggest the home health care aide was 

medically necessary or prescribed by any treating medical source. The claimant 

reported 2-3 headaches per week; however, post shunt placement, the record does 

not objectively support the severity, intensity, or persistence of the claimant’s 

subjectively reported headaches, nor does the record objectively support the 

frequency of her head pain. The claimant did not submit any headache log or 

journal post shunting nor does the emergency treatment record support the claimant 

experienced intractable migraines 2-3 times per week post shunt placement in 

March 2015. While the claimant reports back pain and states she is unable to stand 

for long periods of time, the record is devoid of any specific treatment for her back, 

such as physical therapy for the spine or spinal injections. The claimant reported 

she needed surgery on the left shoulder. The record documents the claimant 

reported left shoulder pain as a result of her inability to use her right shoulder all of 

the time; however, the record was devoid of any medical need for left shoulder 

surgery or suggested left shoulder surgical intervention. The claimant testified at 
12 

the hearing that she thinks she ran herself over at the Sonic drive in due to a seizure; 

however, the record does not objectively document any receive [sic] seizure related 

activities. Further, EEG testing in the record was unremarkable. 

The record also documents non-compliance. The claimant stopped taking her 

prescribed headache medication for a period of time due to a lack of insurance 

coverage (Exhibit 4F/1). The undersigned considered this lack of insurance 

coverage when assessing her non-compliance. The claimant reportedly was not 

using her prescribed CPAP as directed (Exhibit 4F/2; 8F/13). The record noted 

the claimant had indicated she was using her medications as needed rather than as 

directed/prescribed by her treating physician (Exhibit 2F/40). The claimant no 

showed for a scheduled appointment, suggesting her alleged symptoms were not as 

severe as she reported (Exhibit 4F/45). The claimant stopped attending her 

treatment sessions for her vision (Exhibit 10F/4). The claimant was discharged 

from one physician for no showing to too many of her appointment sessions 

(Exhibit 14F/50). The claimant reported inconsistency with her home exercise 

programs (Exhibit 27F/4). The claimant did not attend an appointment for a 

prescribed TENS unit despite her reporting continued right shoulder pain (Exhibit 

27F/12). The claimant no showed to her scheduled treatment session, suggesting 

her reported symptoms were not as severe as she had alleged (Exhibit 34F/1). 

Despite reporting limited range of motion in her shoulder and some reduced 

strength, the claimant stopped attending physical therapy and was discharged due 

to her lack of follow up treatment (Exhibit 27F/4). 

Although the information provided by the claimant may not be the result of a 

conscious intention to mislead, nevertheless such statements suggest that the 

information provided by the claimant is not generally supported by the objective 

evidentiary record. 

(R. at 29-31.) 

Substantial evidence supports the ALJ’s credibility findings. First, the ALJ reasonably 

discounted Plaintiff’s allegations on the grounds that the objective evidence did not support her 

subjective complaints. See 20 C.F.R. § 404.1529(c)(2) (objective medical findings are useful in 

assessing the intensity and persistence of a claimant’s symptoms); Long v. Comm’r of Soc. Sec., 

56 F. App’x 213, 214 (6th Cir. 2003) (holding that plaintiff “did not introduce sufficient 

objective evidence to support the existence or severity of her allegedly disabling headaches”); 

Donerson v. Comm’r of Soc. Sec., No. 1:16 CV 3028, 2017 WL 6987958, at *7 (N.D. Ohio Dec. 
13 

28, 2017) (finding that “the ALJ did not err in relying on the lack of objective evidence as one 

factor in discounting Plaintiff's credibility regarding the limiting effects of her migraines.”). 

Thus, the ALJ reasonably considered that objective testing revealed a normal EEG showing no 

seizure related activity or brain abnormalities; a normal EKG; a normal MRI of the brain; and no 

evidence of any acute brain parenchymal abnormality. (R. at 25 (citing R. at 825, 1173, and 

1248).) The ALJ also reasonably considered that treating physician Dr. McGregor noted that 

Plaintiff’s symptoms had been stable for the last two years; were intermittent, episodic, and mildto-moderate in severity; and that she was “relatively symptom free at th[e] time.” (R. at 25, 

1404, 1408, 1413.) And contrary to Plaintiff’s contention, the ALJ reasonably considered that 

Plaintiff appeared in no acute distress during examinations. (R. at 24 (citing R. at 576)); (R. at 

30 (citing R. at 402, 509, 514, 772)). See Ison v. Acting Comm’r of Soc. Sec., No. 2:16-CV00464, 2017 WL 4124586, at *10 (S.D. Ohio Sept. 18, 2017) (finding the ALJ properly 

supported his credibility assessment by, inter alia, “extensively review[ing] the medical opinions 

of the state agency medical examiners and treating physicians which did not contain evidence 

that the plaintiff was in acute distress such that her headaches would be disabling”); Arnwine v. 

Comm’r of Soc. Sec., No. 1:12 CV 1483, 2013 WL 3365137, at *10 (N.D. Ohio July 3, 2013) 

(upholding credibility assessment where ALJ found, among other things, that plaintiff frequently 

appeared in no acute distress). 

The ALJ likewise reasonably considered the effectiveness of treatment and Plaintiff’s 

compliance with prescribed treatment. See 20 C.F.R. § 404.1529(c)(3)(v). See SSR 16-3p, 

2017 WL 5180304 (Oct. 25, 2017) (in assessing credibility, the adjudicator must consider, 

among other factors, “[t]he type, dosage, effectiveness, and side effects of any medication the 
14 

individual takes or has taken to alleviate pain or other symptoms” and “[t]reatment, other than 

medication, the individual receives or has received”); 20 C.F.R. § 404.1529(c)(3) (same). The 

ALJ considered that Plaintiff’s headaches were responsive to medication (R. at 25, 1061), and 

that Plaintiff “saw improvement in headaches from her prescribed medications, as well as 

changes in her diet, including reducing her gluten intake” (R. at 24; 1481-82). The ALJ also 

found that Plaintiff reported improvement following her shunt surgery, (R. at 26, 1334; see also 

R. at 63, 1267, 1275, and 1338), and “admitted her symptoms were worse when she was not 

compliant with both medications as prescribed” (R. at 25, 1309). Thus, it was also reasonable 

for the ALJ to discount Plaintiff’s credibility based on her lack of compliance with prescribed 

treatment. 

According to Plaintiff, however, the ALJ failed to appropriately consider her lack of 

insurance in assessing her failure to comply with treatment plans. This Court has explained that 

Under SSR 96-7p, a claimant’s statements “may be less credible if the level or 

frequency of treatment is inconsistent with the level of complaints, or if the medical 

reports or records show that the individual is not following the treatment as 

prescribed and there are no good reasons for this failure.” SSR 96-7p, 1996 WL 

374186, at *7. However, an ALJ cannot discount a claimant’s credibility in this 

regard “without first considering any explanations that the individual may provide, 

or other information in the case record, that may explain” the type or frequency of 

treatment actually received. Id. Such reasons may include the plaintiff’s inability 

“to afford treatment” or lack of “access to free or low-cost medical services.” Id. at 

*8. 

Collins v. Comm’r of Soc. Sec., No. 3:16-CV-356, 2017 WL 3124158, at *5 (S.D. Ohio July 24, 

2017). Here, the ALJ appropriately considered Plaintiff’s lack of insurance when assessing her 

noncompliance. (R. at 30 (finding that Plaintiff stopped taking her prescribed headache 

medication for a period of time due to lack of insurance and noting that the ALJ considered 

Plaintiff’s lack of insurance in assessing her credibility).) Further, the ALJ considered 
15 

numerous instances of non-compliance that were unrelated to Plaintiff’s lack of insurance. The 

ALJ considered that Plaintiff failed to use her prescribed CPAP as directed; indicated she was 

using medications as needed rather than as prescribed by her doctors; failed to attend several 

appointments; reported inconsistency with her home exercise programs; failed to attend an 

appointment to receive a TENS unit for reported shoulder pain; and stopped attending physical 

therapy. (R. at 331-32, 376, 381, 483, 519, 583, 922, 930, and 1205.) The undersigned finds 

no error in the ALJ’s consideration of Plaintiff’s non-compliance with prescribed treatment. 

Plaintiff’s contention that the ALJ improperly discredited her allegations based on her 

record of conservative treatment for depression is likewise without merit. (Pl.’s Statement of 

Errors at 10-11, ECF No. 14.) Although Plaintiff did not allege she was disabled due to 

depression alone, she alleged that she suffered from depression and that it limited her ability to 

work. (R. at 101-02.) Under such circumstances, the ALJ reasonably considered Plaintiff’s 

failure to seek routine or consistent mental health treatment in assessing her credibility. See 

SSR 16-3p, 2017 WL 5180304 (Oct. 25, 2017) (in assessing credibility, the adjudicator must 

consider, among other factors, “[t]he type, dosage, effectiveness, and side effects of any 

medication the individual takes or has taken to alleviate pain or other symptoms” and 

“[t]reatment, other than medication, the individual receives or has received”); 20 C.F.R. § 

404.1529(c)(3) (same). 

The undersigned is also not persuaded that the ALJ mischaracterized or failed to address 

certain evidence related to her activities of daily living. (Pl.’s Statement of Errors at 9, ECF No. 

14.) As a preliminary matter, the ALJ is not required to “discuss every piece of evidence in the 

record to substantiate [his] decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 
16 

(6th Cir. 2016) (citing Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)). 

Further, an allegation of “cherry picking” “is seldom successful because crediting it would 

require a court to re-weigh record evidence.” DeLong v. Comm’r of Soc. Sec. Admin., 748 F.3d 

723, 726 (6th Cir. 2014). Here, contrary to Plaintiff’s assertion, the ALJ considered Plaintiff’s 

testimony that she has a home health care aide and relies on her mother for assistance. (R. at 23, 

30.) Furthermore, review of the hearing transcript reveals that Plaintiff testified that she can no 

longer coach and participate in her children’s sports, not that she can no longer attend her 

daughter’s games and activities. (Compare R. at 756 to R. at 57.) As demonstrated above, the 

ALJ reasonably considered the record as a whole and properly discounted Plaintiff’s credibility 

based on her activities of daily living. (R. at 29-31.) See 20 C.F.R. § 404.1529(c)(3)(i) (daily 

activities may be useful to assess nature and severity of claimant’s symptoms); Warner v. 

Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (“The administrative law judge 

justifiably considered [the claimant’s] ability to conduct daily life activities in the face of his 

claim of disabling pain.”). 

 Finally, the ALJ did not err in considering Plaintiff’s desire to return to work in assessing 

her credibility. See Hickey v. Colvin, No. 3:14CV00264, 2015 WL 4575179, at *7 (S.D. Ohio 

July 29, 2015) (upholding credibility assessment based, in part, on plaintiff’s expressed a desire 

to return to work or school). Although not dispositive, Plaintiff’s desire to return to work bears 

on her credibility because it conflicts with her claim that she is disabled. Even without this 

reason for discounting Plaintiff’s credibility, however, substantial evidence supports the ALJ’s 

credibility assessment. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) 

(explaining that “[a]s long as the ALJ cited substantial, legitimate evidence to support his factual 
17 

conclusions, [the Court] are not to second-guess. . .”). 

In summary, the undersigned finds that the ALJ properly evaluated Plaintiff’s allegations 

regarding her symptoms and that substantial evidence supports the ALJ’s credibility assessment. 

Although substantial evidence may also support an alternative finding, the ALJ’s findings were 

within the ALJ’s permissible “zone of choice” and the Court will not re-weigh the evidence. 

See Blakley, 581 F.3d at 406. Accordingly, it is RECOMMENDED that Plaintiff’s first 

contention of error be OVERRULED. 

B. The ALJ’s Step Five Finding 

Plaintiff asserts that the ALJ’s step five finding is not supported by substantial evidence 

because the hypothetical question posed to the VE was inaccurate and incomplete. More 

specifically, Plaintiff asserts that the ALJ should have adopted a limitation that “Plaintiff will 

miss work two days a month, on a consistent basis, due to migraine headaches.” (Pl.’s 

Statement of Errors at 14-15, ECF No. 14.) Plaintiff contends that the omission of this 

limitation constitutes reversible error because the VE testified that no work would be available 

for an individual with Plaintiff’s age, education, work experience, and RFC if he/she missed two 

days of work per month on a consistent basis. (Id.) The Commissioner counters that the ALJ 

appropriately omitted this limitation from Plaintiff’s RFC as no medical source opined that 

Plaintiff would miss two days of work per month, and Plaintiff failed to point to any medical 

evidence supporting inclusion of the limitation. (Def.’s Mem. in Opp at 20, ECF No. 19.) The 

undersigned agrees with the Commissioner and finds Plaintiff’s second contention of error to be 

without merit. 

The Sixth Circuit has “held repeatedly that the testimony of a vocational expert 
18 

identifying specific jobs available in the regional economy that an individual with the claimant’s 

limitation can perform can constitute substantial evidence supporting an ALJ’s finding at step 5 

that the claimant can perform other work.’” Staymate v. Comm’r of Soc. Sec., 681 F. App’x 

462, 469 (6th Cir. 2017) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 

2004) (citations omitted)). “In order for a vocational expert’s testimony in response to a 

hypothetical question to serve as substantial evidence in support of the conclusion that a claimant 

can perform other work, the question must accurately portray a claimant’s physical and mental 

impairments.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). “[I]n 

formulating a hypothetical question, an ALJ is only required to incorporate those limitations 

which he has deemed credible.” See Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 585 (6th 

Cir. 2010) (citations omitted); Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 

(6th Cir. 1993) (“It is well established that an ALJ may pose hypothetical questions to a 

vocational expert and is required to incorporate only those limitations accepted as credible by the 

finder of fact.”); Infantado v. Astrue, 263 F. App’x 469, 477 (6th Cir. 2008) (holding that the 

failure to incorporate limitations into the hypothetical question that the court gave no weight was 

not in error). 

Here, the ALJ incorporated the limitations that he found to be credible and supported by 

the record evidence in the hypothetical question to the VE. Plaintiff contends that the ALJ 

should have incorporated a limitation into the hypothetical question that provided she would 

miss two days of work per month on a consistent basis. Plaintiff, however, fails to point to any 

evidence in the record that supports such a limitation. No medical source opined that Plaintiff 

would miss two days of work per month. Further, as set forth above, substantial evidence 
19 

supports the ALJ’s conclusion that the record evidence does not support Plaintiff’s allegations 

regarding the severity, intensity, persistence, or frequency of her headaches and instead 

“supports no more than intermittent episodic headaches that are generally controlled with 

prescribed treatment.” (R. at 30, 25). Accordingly, the ALJ reasonably omitted a limitation 

for Plaintiff missing two days of work per month, and the hypothetical to the VE was proper and 

serves as substantial evidence that Plaintiff can perform work in the national economy. Ealy, 

594 F.3d at 516. The undersigned therefore finds Plaintiff’s second contention of error to be 

without merit. It is therefore RECOMMENDED that Plaintiff’s second contention of error be 

OVERRULED. 

VI. DISPOSITION 

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

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

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

Social Security’s decision. 

VII. PROCEDURE ON OBJECTIONS 

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

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

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

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

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

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

modify, in whole or in part, the findings or recommendations made herein, may receive further 
20 

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

636(b)(1). 

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

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

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

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

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

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE