UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LORIE J. LANE, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Civil Action 2:18-cv-297 

Judge James L. Graham 

Magistrate Judge Chelsey M. Vascura 

REPORT AND RECOMMENDATION 

Plaintiff, Lorie J. Lane (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

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

application for social security disability insurance benefits. This matter is before the Court on 

Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in Opposition 

(ECF No. 16), Plaintiff’s Reply Memorandum (ECF No. 17), and the administrative record (ECF 

No. 9). 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. PROCEDURAL HISTORY 

On April 6, 2007, Plaintiff was awarded Period of Disability and Disability Insurance 

Benefits beginning April 26, 2004. (R. 339.) On May 14, 2012, it was determined that Plaintiff 

was no longer disabled as of May 1, 2012. This determination was upheld upon reconsideration 

after a disability hearing by a State Agency Disability Hearing Officer. Thereafter, Plaintiff filed 

timely written request for a hearing before an Administrative Law Judge. Plaintiff appeared and 
2 

testified at a hearing held on August 6, 2013 before Administrative Law Judge Timothy G. 

Keller (the “ALJ”). (R. 386–411.) Plaintiff received an unfavorable decision by the ALJ on 

September 11, 2013. (R. 19–27.) Plaintiff pursued appeals of that decision through the Appeals 

Council and eventually this Court. (See Civil Action No. 2:15-cv-87.) Before the Court 

undertook any substantive analysis of Plaintiff’s appeal, the Court granted the parties’ joint 

motion to remand the case for further administrative proceedings. (See Civil Action No. 2:15-

cv-87, ECF No. 17; R. 435–38.) The Appeals Council vacated the final decision of the 

Commissioner of Social Security and remanded the case to an Administrative Law Judge for 

further resolution of issues. (R. 439–43.) 

Plaintiff, represented by counsel, appeared and testified at a second hearing before ALJ 

Keller on December 17, 2015. (R. 365–385.) Vocational expert Carl Hartung (the “VE”) also 

appeared and testified at the hearing. On January 19, 2016, the ALJ issued a decision finding 

that Plaintiff’s disability under §§ 216(i) and 223(f) of the Social Security Act ended as of May 

1, 2012. (R. 339–359.) On January 30, 2017, the Appeals Council denied Plaintiff’s request for 

review and adopted the ALJ’s decision as the Commissioner’s final decision. (R. 239–34.) 

Plaintiff then timely commenced the instant action. 

II. THE ALJ’S DECISION 

On January 19, 2016, the ALJ issued a decision finding that Plaintiff was no longer 

disabled within the meaning of the Social Security Act as of May 1, 2012. (R. 339–59.) The 

ALJ noted that the most recent decision finding Plaintiff disabled was dated April 6, 2007 (the 

“comparison point decision” or “CPD”). (R. 341.) At the time of the CPD, Plaintiff had 

medically determinable impairments of vertigo and migraine headaches, which were found to 

medically equal Listing 11.03 of 20 C.F.R. Part 404, Subpart P, Appendix 1. At step one of the 
3 

sequential evaluation process,1

 the ALJ determined that Plaintiff had not engaged in substantial 

gainful activity through May 1, 2012. (Id. at 342.) Although Plaintiff had, as of May 1, 2012, 

the medically determinable impairments of vertigo, migraine headaches, degenerative disc 

disease of the spine, an anxiety disorder, and a depressive disorder, the ALJ determined at step 

two that her impairments did not meet or equal the severity of Listing 11.03 or any other 

impairment listed in 20 CFR Part 404, Subpart P, Appendix 1. (Id.) At step three, the ALJ 

found that medical improvement had occurred as of May 1, 2012, and that the medical 

improvement was related to Plaintiff’s ability to work because she no longer met or equaled the 

 

1 Social Security Regulations require ALJs to determine whether a claimant continues to be 

disabled through an eight-step evaluation of the evidence. See 20 C.F.R. § 404.1594(f). If fully 

considered, the sequential evaluation considers and answers eight questions: 

1. Is the claimant engaged in substantial gainful activity? If so, the claimant’s disability 

will be found to have ended. 

2. If not, does the claimant have an impairment alone or in combination, meet or equal the 

severity of an impairment set forth in the Commissioner’s Listing of Impairments, 20 

C.F.R. Subpart P, Appendix 1? If so, the claimant’s disability will be found to continue. 

3. If not, has there been medical improvement as shown by a decrease in medical severity? 

If not, the evaluation proceeds to step 5. 

4. If there has been medical improvement, is it related to the ability of the claimant to do 

work? If not, the evaluation proceeds to step 5; if so, the evaluation proceeds to step 6. 

5. This step contains the exceptions to continuing disability even when no medical 

improvement is found in step 3 or the improvement is not related to ability to do work in 

step 4. If no exceptions apply, the claimant’s disability will be found to continue. If one 

of the first group of exceptions to medical improvement applies, the evaluation proceeds 

to step 6. If an exception from the second group applies, the claimant’s disability will be 

found to have ended. 

6. If medical improvement is shown, is the claimant’s current impairment nonetheless 

severe? If not, the claimant’s disability will be found to have ended. 

7. If the claimant’s current impairment is severe, does the claimant nonetheless have the 

residual functional capacity to perform the claimant’s past work? If so, the claimant’s 

disability will be found to have ended. 

8. If the claimant is not able to perform his or her past work, can the claimant perform other 

work? If so, the claimant’s disability will be found to have ended. If not, the claimant’s 

disability will be found to continue. 

Johnson v. Sec’y of Health & Human Servs., 948 F.2d 989, 991 (6th Cir. 1991). 
4 

same listing that was satisfied at the time of the CPD. (Id. at 345.) Although Plaintiff continued 

to have a severe impairment as of May 1, 2012, the ALJ determined that she nonetheless had the 

following residual functional capacity (“RFC”):2

Based on the impairments present as of May 1, 2012, the claimant had the residual 

functional capacity to perform medium work as defined in 20 CFR 404.1567(c) 

except the claimant could lift, carry, push, and pull up to 50 pounds occasionally 

and 25 pounds frequently. She could sit, stand, and walk up to 6 hours each out of 

an 8-hour workday. The claimant would be precluded from climbing ladders, 

ropes, and scaffolds. She should avoid moving machinery and unprotected heights. 

The claimant would be precluded from commercial driving. She could understand, 

remember, and carry out simple, repetitive tasks and maintain concentration and 

attention for 2-hour segments over an 8-hour work period. The claimant could 

respond appropriately to supervisors and coworkers in a task-oriented setting where 

contact with others is casual and infrequent. Further, the claimant could adapt to 

simple changes and avoid hazards in a setting without strict production 

requirements. 

(R. 346.) Using this RFC, the ALJ determined that Plaintiff was capable of performing past 

relevant work as a housekeeper as of May 1, 2012, and could also perform other jobs existing in 

the national economy. (R. 357–58.) Accordingly, the ALJ concluded that Plaintiff’s disability 

ended as of May 1, 2012. (R. 359.) 

III. STANDARD OF REVIEW 

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

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

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

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

§ 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 

 

2

 A claimant’s RFC is an assessment of “the most [she] can still do despite [her] limitations.” 20 

C.F.R. § 404.1545(a)(1). 
5 

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 & Hum. 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 right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 

746 (6th Cir. 2007). 

IV. ANALYSIS 

Plaintiff raises three issues in her Statement of Errors (ECF No. 12): 

A. The ALJ failed to properly apply the “medical improvement” standard; 

B. The ALJ failed to properly evaluate the opinion of Plaintiff’s treating physician, 

Dr. Forrestal; and 

C. The ALJ failed to account for Plaintiff’s continued problems with concentration, 

persistence, and pace when determining her RFC. 

The undersigned will consider each assertion of error in turn. 
6 

A. Any error by the ALJ in applying the “medical improvement” standard was 

harmless. 

In 20 C.F.R. § 404.1594, the Regulations outline the process for considering medical 

improvement and whether a claimant’s disability period has ended. The United States Court of 

Appeals for the Sixth Circuit has described medical improvement as follows: 

The implementing regulations define a medical improvement as “any decrease in 

the medical severity of your impairment(s) which was present at the time of the 

most recent favorable medical decision that you were disabled or continued to be 

disabled.” 20 C.F.R. § 404.1594(b)(1). A determination of medical improvement 

“must be based on changes (improvement) in the symptoms, signs and/or laboratory 

findings associated with your impairment(s).” Id. And a medical improvement is 

related to an individual’s ability to work only “if there has been a decrease in the 

severity . . . of the impairment(s) present at the time of the most recent favorable 

medical decision and an increase in your functional capacity to do basic work 

activities . . . .” 20 C.F.R. § 404.1594(b)(3). See also Nierzwick v. Commissioner 

of Social Security, 7 Fed. Appx. 358 (6th Cir. 2001). 

Kennedy v. Astrue, 247 F. App’x 761, 764–65 (6th Cir. 2007). In other words, medical 

improvement “is determined by a comparison of prior and current medical evidence . . . .” 20 

C.F.R. § 404.1594(c)(1). The regulations further provide that, “[i]f medical improvement has 

occurred and the severity of the prior impairment(s) no longer meets or equals the same listing 

section used to make our most recent favorable decision, we will find that the medical 

improvement was related to your ability to work.” 20 C.F.R. § 404.1594(c)(3)(i). 

The ALJ’s discussion of Plaintiff’s medical improvement was as follows: 

The medical evidence supports a finding that, as of May 1, 2012, there had been a 

decrease in medical severity of the impairments present at the time of the CPD. The 

record shows the claimant reported vertigo, but chemical and medical treatment 

improved her symptoms (Exhibit B2F). She reported some intermittent dizziness, 

but MRI testing was unremarkable (Exhibit B16F/17F). Further, despite some 

intermittent dizziness, the claimant showed no focal deficits and she maintained a 

normal gait (Exhibits B17F: B18F). Additionally, her symptoms were relieved by 

medications including Antivert (Exhibit B20F). The record supports the claimant’s 

migraine headaches were reduced to intermittent and she was satisfied with her 

migraine treatment (Exhibits B8F; B16F; B18F). She reported she was okay on her 

medication and showed no gait instability (Exhibit B8F/6). When she does report 

a headache, she indicates she continues to obtain relief with medication (Exhibit 
7 

B16F). The claimant experienced some degenerative disc disease, but the record 

supports she stopped attending physical therapy after her interbody fusion surgery 

in February 2015 and continues to engage in normal activities of daily living, 

ambulating without a need for an assistive device, showing no reduced strength or 

irregular gait (Exhibit B21F). Additionally, her most recent mental health treatment 

notes support both her anxiety and depression are controlled with treatment, 

specifically medication management. Therefore, the record shows medical 

improvement since May 1, 2012. 

(R. 345.) 

Plaintiff argues that the ALJ did not undertake the necessary comparison between her 

impairments at the time of the CPD (April 6, 2007) and her impairments as of the date her 

disability allegedly ended (May 1, 2012). (Reply 3–4, ECF No. 17.) Rather, the ALJ evaluated 

her symptoms as of May 1, 2012, concluded that she no longer met Listing 11.03, and 

“summarily concluded” that “the record shows medical improvement.” (Statement of Errors 7, 

ECF No. 12.) 

Plaintiff is correct that the ALJ did not undertake a comparison of her symptoms as of 

May 1, 2012 and the CPD as required by the regulations. In fact, the undersigned can find no 

description of the severity of Plaintiff’s impairments at the time of the CPD anywhere in the 

record. The failure to discuss the severity of Plaintiff’s impairments at the time of the CPD, and 

compare that to the severity of Plaintiff’s impairments as of May 1, 2012, was error. Kennedy, 

247 F. App’x at 765, 768 (reversing ALJ’s decision where no efforts were made to compare the 

severity of prior and current impairments). 

Plaintiff, however, unlike the plaintiff in Kennedy, was found to have impairments 

equaling an impairment listed in 20 CFR Part 404, Subpart P, Appendix 1 at the time of her 

CPD. (R. 342.) Specifically, at the time of the CPD, Plaintiff’s impairments were found to equal 

Listing 11.03 (non-convulsive epilepsy) due to her vertigo and migraine headaches. (Id.) 

Although he did not specifically compare her impairments between the two time periods, the 
8 

ALJ did conclude that Plaintiff’s impairments as of May 1, 2012, did not meet or equal the 

severity of Listing 11.03 (or Listings 1.04 (disorders of the spine), 12.04 (affective disorders), or 

12.06 (anxiety-related disorders)). 

Importantly, Plaintiff does not directly challenge the ALJ’s finding that her impairments 

did not meet or equal the criteria of Listing 11.03 as of May 1, 2012. Even if she had, the Court 

finds that Plaintiff has not identified evidence in the record that would support a finding that she 

met or equaled Listing 11.03. This listing in effect at the time of the ALJ’s decision reads: 

Epilepsy—nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented 

by detailed description of a typical seizure pattern, including all associated 

phenomena; occurring more frequently than once weekly in spite of at least 3 

months of prescribed treatment. With alteration of awareness or loss of 

consciousness and transient postictal manifestations of unconventional behavior or 

significant interference with activity during the day. 

20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 11.03. No one has suggested that Plaintiff ever “met” 

the criteria for Listing 11.03—for one thing, there is nothing in record indicating a diagnosis of 

epilepsy—but in 2007, her vertigo and migraine headaches were found to “medically equal” 

those criteria. Although there is no listing that specifically addresses migraine headaches, the 

Social Security Administration’s Program Operations Manual System (“POMS”) indicates that 

Listing 11.03 is the “most closely analogous listed impairment” for migraine headaches. POMS 

DI 24505.015(B)(7)(b) (2013). The POMS also provides an example of a severe migraine 

condition that could medically equal Listing 11.03: 

[A] claimant has chronic migraine headaches for which she sees her treating doctor 

on a regular basis. Her symptoms include aura, alteration of awareness, and intense 

headache with throbbing and severe pain. She has nausea and photophobia and 

must lie down in a dark and quiet room for relief. Her headaches last anywhere 

from 4 to 72 hours and occur at least 2 times or more weekly. Due to all of her 

symptoms, she has difficulty performing her ADLs [activities of daily living]. The 

claimant takes her medication as her doctor prescribes. The findings of the 

claimant’s impairments are very similar to those of 11.03, Epilepsy, nonconvulsive. Therefore, 11.03 is the most closely analogous listed impairment. Her 

findings are at least of equal medical significance as those of the most closely 
9 

analogous listed impairment. Therefore, the claimant’s impairment medically 

equals listing 11.03. 

POMS DI 24505.015(B)(7)(b) (2013). Although the POMS does not have the force of law and is 

“not [the] product[ ] of formal rulemaking, [it] nevertheless warrant[s] respect” in interpreting 

the Listings. Wash. State Dep’t of Soc. & Health Servs. v. Guardianship Estate of Keffeler, 537 

U.S. 371, 385-86 (2003). 

Under this standard, substantial evidence supports the ALJ’s conclusion that Plaintiff’s 

impairments did not meet or medically equal Listing 11.03 as of May 1, 2012. He noted “there 

was no consistent objective documentation or treatment showing her dizziness occurred on a 

frequent basis or was significant in duration. Further, the record shows, the claimant was again 

driving, ambulating without any significant difficulty, and chemical and medical treatments had 

improved her symptoms.” (R. 343.) He further noted that Plaintiff “was supplied medication 

that was helping her migraine headache condition.” (Id.) Plaintiff’s treating physician, Dr. 

Forrestal, stated in his medical questionnaire dated June 17, 2013, that Plaintiff experienced 

headaches only “every two weeks.” (R. 283.) And although Dr. Forrestal also stated in the same 

medical questionnaire that Plaintiff lost consciousness “once a week,” his treatment notes 

indicate only a handful of episodes involving lost consciousness over a several years. (R. 306, 

519–23.) The undersigned therefore finds no error with the ALJ’s conclusion that Plaintiff’s 

impairments neither met nor medically equaled Listing 11.03. 

Given that Plaintiff’s vertigo and migraine headaches were severe enough to equal 

Listing 11.03 at the time of the CPD, and given that her vertigo and migraine headaches, 

although still present, were not severe enough to equal Listing 11.03 as of May 1, 2012, it 

logically follows that Plaintiff’s vertigo and migraine headaches must have medically improved. 

See Murphy v. Berryhill, 727 F. App’x 202, 207 (7th Cir. 2018) (finding medical improvement 
10 

based on physician’s assessment that plaintiff no longer met the criteria of a previous listing); 

Jones v. Colvin, No. CIV.A. H-13-1221, 2014 WL 3827819, at *10 (S.D. Tex. July 31, 2014) 

(same). As a result, even though the ALJ erred by not making the required comparison between 

Plaintiff’s symptoms at the two relevant points in time, this error was harmless, and reversal is 

not warranted. Rabbers, 582 F.3d at 654–55. 

B. The ALJ did not err in his evaluation of Plaintiff’s treating physician. 

Plaintiff’s second contention of error is that the ALJ failed to properly evaluate the 

opinion of her treating physician, Dr. Forrestal. 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). Where a treating 

source’s opinion is submitted, the ALJ generally gives deference to it “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). 

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. 
11 

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

or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 C.F.R. 

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

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

opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550 

(6th Cir. 2010) (internal quotation omitted). The United States Court of Appeals for the Sixth 

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

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

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

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

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

reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d 

Cir. 1999). The requirement also ensures that the ALJ applies the treating physician 

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

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

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

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

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

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

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

(6th Cir. 2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to 

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

opinion evidence within the written decision). 

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

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

consider opinions of treating physicians “on the nature and severity of your impairment(s),” 
12 

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). 

The ALJ explained he afford Dr. Forrestal’s opinions “little weight” and “some weight” 

because his recommended limitations are not supported by his treatment notes or other evidence 

of record: 

The undersigned gives little weight to the assessment evidenced at Exhibit B12F 

completed by Dr. Forrestal, M.D., the claimant’s treating physician. Dr. Forrestal 

opined the claimant had dizzy spells all of the time, blackouts and loss of 

consciousness once per week, headaches every two weeks, and indicated that her 

complaints are consistent with the objective findings and other medical evidence in 

the record. First, the form is a checkbox form and Dr. Forrestal offers no functional 

explanation as to how the claimant is limited by any of her alleged conditions or 

symptoms. Second, he asserts the claimant’s allegations are supported by and 

consistent with the objective evidence in the record; however, he does not cite to or 

provide examples from the record showing objective testing or documentation 

supporting his statements showing dizziness all of the time, blackouts once per 

week, and headaches every two weeks. In fact, the record supports the claimant 

experience one isolated episode of syncope (Exhibit B 16F). This episode was 

related to her anxiety and not to vertigo or headaches (Exhibit B18F/2). The record 

does not show continuous episodes of blackouts or emergency treatment for 

blackouts. Further, the claimant was driving, an activity she would not be doing if 

she were having routine blackout spells. Dizziness was not something reported 

consistently in the record. During 2013, MRI brain testing was unremarkable 

(Exhibit B16F/17). The claimant’s coordination remained intact and she ambulated 

with a normal gait with no ataxia even when she was dizzy (Exhibit B16F). She 

showed no weakness and there were no exacerbations of her dizziness with bending 

or head movement (Exhibit B16F). The record supported only intermittent 

headaches in 2013 (Exhibits B15F; B16F). The record supports medication 

relieved her symptoms (Exhibit B16F). Therefore, while her treating doctor noted 

the record via objective documentation supported her complaints, the record shows 

during the time the assessment was made in June 2013, the record does not support 

his assessment. As such, the undersigned finds the claimant was responding to 

treatment and that she was not as limited as Dr. Forrestal indicated. 

The undersigned provides some weight to the functional assessment provided by 

Dr. Forrestal, M.D., evidenced at Exhibit B13F. Dr. Forrestal opined the claimant 

was limited to standing and walking 30 minutes at a time for 4 hours each and 

sitting for 20 minutes at a time for 4 hours. He indicated the claimant could lift up 

to 10 pounds rarely, would be precluded from grasping, pulling, or engaging in fine 

manipulation, could not use her feet for movements, could occasionally bend, squat, 

crawl, and climb stairs, and would be precluded from climbing ladders, ropes, and 

scaffolds. He further noted the claimant had constant dizziness with activity and at 
13 

rest, low back and right buttock pain, and occasional blackouts that increased with 

stress. The undersigned affords some weight to the postural limitations indicating 

the claimant would be precluded from climbing ladders, ropes, and scaffolds as 

such a limitation is consistent with the evidence of record, which shows the 

claimant has intermittent problems with vertigo and headaches. The undersigned 

gives less weight to the remaining limitations, as the record does not support such 

restrictive exertional limitations, postural limitations, or manipulative limitations. 

Treatment records documented the claimant continued to show normal strength and 

functioning in both her upper and lower extremities, with no focal deficits, showing 

the claimant could toe walk, heel walk, and engage in deep knee bending without 

difficulty (Exhibit B21F/65). The claimant ambulated with a steady normal gait 

and did not require the use of any assistive device (Exhibit B8F; B5F; B18F: B21F). 

She showed no impairment of fine or gross manipulation (Exhibit B7F). As such 

the record shows no reason to limit the claimant’s use of her hands for engaging in 

fine and gross manipulative activities. Further, the notations regarding dizziness, 

back pain, and blackouts appear to be based on the claimant’s subjecting reporting, 

which for reasons noted above appear to be unreliable. Therefore, overall, the 

undersigned provides Dr. Forrestal no more than some weight. 

(R. 356–57.) 

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

Forrestal’s opinion. The ALJ articulated the weight he afforded the opinion and properly 

declined to afford it controlling weight on the grounds it was unsupported by objective evidence. 

The first assessment, comprised of Dr. Forrestal’s answers to interrogatories dated June 17, 

2013, was a checkbox form with no explanations or supporting citations to the record. (R. 283–

84.) As the Sixth Circuit has held, an ALJ may properly assign little weight to opinions from 

treating sources “where the physician provided no explanation for the restrictions . . . and cited 

no supporting objective medical evidence.” Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563, 

567 (6th Cir. 2016). Moreover, Dr. Forrestal’s assertions that Plaintiff suffers from dizziness “all 

the time” and loses consciousness “once a week” are not supported by Dr. Forrestal’s own 

treatment notes. Rather, his treatment notes indicate only a handful of episodes involving lost 

consciousness over several years (R. 306, 519–23), and his assessment of constant dizziness 

appears to be based on Plaintiff’s subjective complaints. Cf. Poe v. Comm’r of Soc. Sec., 342 F. 
14 

App’x 149, 156 (6th Cir. 2009) (“[S]ubstantial evidence supports the ALJ’s determination that 

the opinion of Dr. Boyd, [the claimant’s] treating physician, was not entitled to deference 

because it was based on [the claimant’s] subjective complaints, rather than objective medical 

data.”). 

Dr. Forrestal’s physical capacity evaluation, also dated June 17, 2013, was also properly 

discounted by the ALJ. Here, Dr. Forrestal opined that Plaintiff could stand for four hours total 

and 30 minutes at one time; could walk for four hours total and 30 minutes at one time; could sit 

for four hours total and 30 minutes at one time; could rarely lift up to 10 pounds; could not use 

her hands for simple grasping, pushing, pulling, or fine manipulation; could not use her feet for 

repetitive movements; could occasionally bend, squat, crawl, and climb steps; and could not 

climb ladders. (R. 286–87.) The ALJ agreed with Dr. Forrestal’s postural limitations due to her 

ongoing complaints of dizziness and precluded Plaintiff from climbing ladders, ropes, and 

scaffolds in the RFC. (R. 346, 356.) However, the ALJ afforded less weight to Dr. Forrestal’s 

other recommended limitations as to walking, standing, sitting, lifting, and hand or foot 

movements as being unsupported by the record. (R. 356.) As the ALJ noted, treatment records 

reflect that Plaintiff demonstrated normal strength and functioning in her upper and lower 

extremities; showed no focal deficits; exhibited a normal gait without the need for an assistive 

device; was able to toe walk, heel walk, and engage in deep knee bending without difficulty; and 

showed no impairment of fine or gross manipulation. (R. 357.) The undersigned therefore 

concludes that substantial evidence supports the ALJ’s decision to discount Dr. Forrestal’s 

opinions. 
15 

C. The ALJ did not err in determining Plaintiff’s RFC. 

Plaintiff next argues that the RFC, as determined by the ALJ, fails to account for issues 

with concentration, persistence, pace, and potential time off task. (Statement of Errors 16, ECF 

No. 12.) For the reasons that follow, the undersigned finds this error lacks merit. 

The ALJ is charged with the final responsibility for determining a claimant’s residual 

functional capacity. See 20 C.F.R. § 404.1527(d)(2) (the final responsibility for deciding the 

residual functional capacity “is reserved to the Commissioner”). Moreover, the Social Security 

Act and agency regulations require an ALJ to determine a claimant’s residual functional capacity 

based on the evidence as a whole. 42 U.S.C. §§ 423(d)(5)(B), 1382c(a)(3)(H)(i) (incorporating 

§ 423(d) for Title XVI); 20 C.F.R. § 404.1545(a) (“the ALJ . . . is responsible for assessing your 

residual functional capacity”). As the court recognized in Henderson v. Comm’r of Soc. Sec., 

No. 1:08-cv-2080, 2010 WL 750222 (N.D. Ohio March 2, 2010), the ALJ is charged with 

evaluating several factors in determining the residual functional capacity, including the medical 

evidence (not limited to medical opinion testimony) and the claimant’s testimony. Id. at *2 

(citing Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004); Social Security Ruling 

96-5p; Social Security Ruling 96-8p). 

An ALJ’s residual functional capacity assessment is based upon consideration of all 

relevant evidence in the case record, including medical evidence and relevant non-medical 

evidence regarding what work a claimant is capable of performing. Social Security Ruling 96-

5p. Social Security Ruling 96-8p instructs that the ALJ’s residual functional capacity assessment 

must be based on all of the relevant evidence in the case record, including factors such as 

medical history, medical signs and laboratory findings, the effects of treatment, daily activities, 

lay evidence, recorded observations, medical source statements, effects of symptoms, and 

evidence from attempts to work. Social Security Ruling 96-8p. 
16 

The applicable regulation, 20 C.F.R. § 404.1527(d)(2), also explains that “[a]lthough we 

consider opinions from medical sources on issues such as . . . your residual functional capacity, 

. . . the final responsibility for deciding these issues is reserved to the Commissioner.” The 

regulations do not require an ALJ to rely solely upon medical opinions when formulating a 

residual functional capacity, but instead explicitly require an ALJ to evaluate medical opinions 

based on their consistency with and support from “medically acceptable clinical and laboratory 

diagnostic techniques.” 20 C.F.R. § 404.1527(c)(2), (3), (4). Indeed, as the Sixth Circuit has 

held, physician opinions “are only accorded great weight when they are supported by sufficient 

clinical findings and are consistent with the evidence.” Cutlip v. Sec’y of Health & Human 

Servs., 25 F.3d 284, 287 (6th Cir. 1994). 

The ALJ included several non-exertional limitations related to Plaintiff’s ability to 

maintain concentration in the RFC. Specifically, he stated that Plaintiff 

could understand, remember, and carry out simple, repetitive tasks and maintain 

concentration and attention for 2-hour segments over an 8-hour work period . . . in 

a task-oriented setting . . . [and] could adapt to simple changes . . . in a setting 

without strict production requirements. 

(R. 346.) According to Plaintiff, these limitations do not sufficiently account for her difficulties 

with concentration, persistence, pace, and potential time off task. (Statement of Errors 16, ECF 

No. 12.) Plaintiff’s argument relies heavily on the opinion of Bill Anderson, MSW, LISW, 

Plaintiff’s treating therapist. (R. 289–91.) Mr. Anderson opined that Plaintiff had numerous 

“marked” and “severe” limitations as to her ability to maintain concentration, adapt to changes in 

the work setting, and tolerate customary work pressures. (Id.) However, as the ALJ and the 

Commissioner point out, Mr. Anderson is not an acceptable medical source and the ALJ did not 

err by not adopting his recommendations. 20 C.F.R. § 404.1513; Miller v. Comm’r of Soc. Sec., 

811 F.3d 825, 838 n.9 (6th Cir. 2016) (licensed social worker is not an acceptable medical source 
17 

whose opinion is owed deferential weight in determining a claimant’s RFC). Moreover, the ALJ 

noted that Mr. Anderson’s opinion that Plaintiff was likely to have 5 or more unscheduled 

absences a month was inconsistent with her recent work experience, where she worked part-time 

without missing days, and eventually stopped working due to her back pain and not any 

difficulties with concentration. (R. 291, 355, 369.) 

Additionally, Mr. Anderson’s more extreme recommended limitations are inconsistent 

with other evidence in the record from medically acceptable sources. In May 2012 and 

November 2012, Plaintiff’s medical evidence was reviewed by psychologists Bonnie Katz, 

Ph.D., and Carl Tischler, Ph.D., respectively. Drs. Katz and Tischler determined that Plaintiff 

was “moderately” limited in her ability to carry out detailed instructions, maintain attention and 

concentration for extended periods, to complete a normal workday and workweek without 

interruptions from psychologically-based symptoms; to perform at a consistent pace without an 

unreasonable number and length of rest periods; to interact appropriately with the general public; 

and to respond appropriately to changes in the work setting. (R. 227–28, 270–71.) 

In December 2012, Psychologist Kent Rowland, Ph.D., a state agency examiner, 

observed that Plaintiff demonstrated average reasoning with only mild difficulties in 

concentration and short-term memory. (R. 224.) Dr. Rowland opined that Plaintiff “may have 

some difficulty periodically performing multi-step tasks with normal persistence due to her 

depression.” (R. 225.) Finally, Plaintiff began seeing Avneet Hira, M.D., for medication 

management in 2013. Dr. Hira noted in 2013 and 2015 that Plaintiff’s concentration, attention, 

and recent and remote memory were intact. (R. 293, 539.) 

Plaintiff does not explain what specific limitations are required that are not already 

incorporated in the RFC; nor does she respond on reply to the Commissioner’s argument that Mr. 
18 

Anderson’s more extreme recommended limitations are not entitled to deference. The 

undersigned therefore concludes that substantial evidence supports the RFC set forth in the 

ALJ’s decision (limiting Plaintiff to simple, repetitive tasks; adapting to only simple changes; 

and to a setting without strict production requirements). 

V. DISPOSITION 

In sum, from a review of the record as a whole, the Court concludes that substantial 

evidence supports the ALJ’s decision denying benefits. For the foregoing reasons, it is 

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

the Commissioner of Social Security’s decision. 

VI. PROCEDURE ON OBJECTIONS 

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

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

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

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

portions of the Report or specified proposed findings or recommendations to which objection is 

made. Upon proper objections, a Judge of this Court may accept, reject, or modify, in whole or in 

part, the findings or recommendations made herein, may receive further evidence or may recommit 

this matter to the Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1). 

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

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

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

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

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). 
19 

/s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE