UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

PENNY SUE STOUT, 

 Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant. 

Civil Action 2:18-cv-485 

Chief Judge Edmund A. Sargus, Jr. 

Magistrate Judge Chelsey M. Vascura 

REPORT AND RECOMMENDATION 

Plaintiff, Penny Sue Stout (“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. 27), the Commissioner’s Memorandum in Opposition 

(ECF No. 30), Plaintiff’s Reply Memorandum (ECF No. 31), and the administrative record (ECF 

No. 22). 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 

Plaintiff filed her application for Title II Social Security Benefits on April 17, 2014, 

alleging that she had been disabled since February 13, 2014. (R. 157–58.) On May 24, 2016, 

following administrative denials of Plaintiff’s application initially and on reconsideration, a 

hearing was held before Administrative Law Judge Thuy-Anh Nguyen (the “ALJ”). (Id. at 48–

67.) Plaintiff, represented by counsel, appeared and testified. Vocational expert Robert E. 

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Breslin (the “VE”) also appeared and testified at the hearing. On August 3, 2016, the ALJ issued 

a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. 

(Id. at 31–42.) On October 24, 2017, the Appeals Council denied Plaintiff’s request for review 

and adopted the ALJ’s decision as the Commissioner’s final decision. (R. 11–17.) Plaintiff then 

timely commenced the instant action. (ECF No. 1.)1

II. THE ALJ’S DECISION 

On August 3, 2016, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. 31–42.) At step one of the sequential 

evaluation process,2 the ALJ found that Plaintiff had not engaged in substantially gainful activity 

since February 13, 2014, the alleged onset date of Plaintiff’s disability. (Id. at 33.) The ALJ 

found that Plaintiff has the severe impairments of history of CSF [cerebrospinal fluid] 

rhinorrhea, post-meningitis syndrome with headaches, history of inverted papilloma, sinusitis 

 

1

 The Commissioner’s Motion to Dismiss Plaintiff’s Complaint as untimely was denied. (ECF 

No. 19–20.) 

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. § 404.1520(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. § 404.1520(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). 

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with history of surgery, hypertension, adjustment disorder, depressive disorder, and anxiety 

disorder. (Id.) He further found that Plaintiff did not have an impairment or combination of 

impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. 

Part 404, Subpart P, Appendix 1. (Id. at 34.) At step four of the sequential process, the ALJ set 

forth Plaintiff’s RFC as follows: 

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

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

CFR 404.1567(b) with the following limitations: She can frequently stoop, kneel, 

crouch, crawl, and climb ramps and stairs. She cannot climb ladders, ropes, or 

scaffolds. She should avoid concentrated exposure to extreme cold, extreme heat, 

humidity, noise, vibration, fumes, odors, dusts, gases, poor ventilation, and hazards. 

Mentally, she is able to understand, remember, and carry out simple, routine tasks 

and instructions. She would be off task five percent of the workday. 

(Id. at 35.) 

At step five of the sequential process, the ALJ, relying on the VE’s testimony, found that 

Plaintiff is capable of performing past relevant work as a cleaner/housekeeper. (Id. at 40.) The 

ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. (Id. at 

41.) 

In her Statement of Errors (ECF No. 27), Plaintiff raises a single contention of error: that 

the ALJ failed to properly evaluate the opinion evidence of her treating physician, Subinoy Das, 

M.D. 

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 

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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 & 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 a single issue in her Statement of Errors (ECF No. 27): that the ALJ failed 

to properly evaluate the opinion evidence of her treating physician, Subinoy Das, M.D. 

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, like that of Dr. Das, 

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 

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be obtained from the objective medical filings alone . . . .” 20 C.F.R. § 416.927(c)(2); Blakley v. 

Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the treating physician’s opinion is 

“well supported by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the claimant’s] case record, [the ALJ] will 

give it controlling weight.” 20 C.F.R. § 404.1527(c)(2). 

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

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

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

weight: 

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

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

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

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

determining what weight to give the opinion. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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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 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

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

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

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

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

opinion evidence within the written decision). 

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

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

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

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

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

A. Dr. Das’s Opinions 

Here, Dr. Das issued a “Medical Assessment of Ability to Do Work-Related Activities 

(Physical)” dated July 10, 2014, in which he opined that Plaintiff required exertional limitations 

due to fluctuating pressure in her brain due to idiopathic intracranial hypertension (“IIH”). (R. 

513–16.) Specifically, Dr. Das stated that Plaintiff’s ability to stand, walk, and sit was limited by 

her IIH, but that the amount of time she could stand, walk, or sit would vary depending on her 

fluctuating brain pressures: “when pressure rises, maybe incapacitating such that impossible to 

walk/sit.” (Id. at 513.) Dr. Das also opined that Plaintiff’s ability to climb, balance, stoop, 

crouch, kneel, and crawl are “variable depending on brain pressure” and that “with high pressure 

[she] will lose significant coordination” as to her ability to reach, handle, finger, and feel. (Id. at 

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514–15.) Finally, Dr. Das stated that “[h]igh brain pressures will cause severe impairment” of 

seeing, hearing, and speaking. (Id. at 516.) 

This July 10, 2014 Assessment is Dr. Das’s only opinion as to Plaintiff’s vocational 

limitations identified in the record. However, Dr. Das also wrote a letter outlining his 

“professional medical opinion” of Plaintiff to the “Medical Director of Disability Company” on 

March 3, 2015. (R. 499.) In this letter, Dr. Das notes that Plaintiff underwent ICP (intracranial 

pressure) monitoring at Cleveland Clinic, where her brain pressures were found to be normal 

over a 24-hour period. (Id.) Dr. Das also indicated that he now believed Plaintiff’s IIH had been 

cured by her bariatric surgery which took place in 2010, and that her headaches were currently 

being caused by post-meningitic syndrome following two bouts of meningitis in 2013 and 2014. 

(Id.; R. 268, 282, 435.) He referred to Plaintiff’s headaches as “severe” and “incapacitat[ing]” 

but did not opine as to any vocational limitations. (R. 499.) 

Further, Dr. Das wrote a letter dated April 12, 2015, to Dr. Wayne J. Myles, DO, to 

provide an update on Plaintiff. (R. 498.) In this letter, Dr. Das stated again that “[a]fter several 

visits with neurologists and IH experts, we believe that her headaches are currently due to 

postmeningitic syndrome and not a result of fluctuating pressures.” (Id.) He further states that 

“her headaches are being well managed with chronic narcotic use” and assessed Plaintiff as 

“[s]table with current narcotic therapy for her severe postmeningitic syndrome headaches.” (Id.) 

B. The ALJ’s Evaluation of Dr. Das’s Opinions 

The ALJ explained that he gave “little weight” to Dr. Das’s opinions because they are 

vague and unsupported by the record: 

[L]ittle weight has been given to Dr. Das’ opinion that the claimant has variable 

ability to sit, stand, and walk due to fluctuating brain pressures. Dr. Das opined 

that rising pressures could be incapacitating such that it would be impossible for 

her to sit or walk. Moreover, he opined that rising pressures would also affect her 

ability to see, hear, and speak. He further indicated that she would be limited in her 

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ability to perform manipulative functioning, as she would lose significant 

coordination when her brain pressure was high (Exhibit 13F). Not only is this 

opinion vague, it is also not supported by the medical evidence. For instance, 

twenty-four hour intracranial pressure monitoring in March 2015 was normal. 

Additionally, Dr. Das indicated that same month that her elevated intracranial 

hypertension was cured by bariatric surgery. Moreover, his treatment notes show 

the claimant was stable and doing well (Exhibits 8F, page 2 and 11F, pages 3, 25, 

26, and 29). 

Similarly, little weight has been given to Dr. Das’ opinion that the claimant has 

incapacitating headaches and difficulty with cognitive functioning3

 secondary to 

post-meningitic syndrome (Exhibit 9F, page 7). As discussed above, treating and 

examining sources have not noted cognitive difficulty. Additionally, the claimant 

indicated that the severity of her headaches varies daily, ranging from mild to 

severe, and that rest and medication alleviate her pain. Her neurological 

evaluations have been unremarkable (Exhibit 9F, pages 3 and 6 and 11F, pages 7, 

11, 15, and 24). Moreover, Dr. Nicholas and Dr. Oricoli indicated the claimant 

could be experiencing rebound headaches secondary to analgesic overuse (Exhibits 

12F, page 3 and 19F, page 2). 

(R. 39.) 

The Undersigned finds no error with the ALJ’s consideration and weighing of Dr. Das’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 exertional 

limitations Dr. Das recommended in June 2014 were based on the theory that Plaintiff’s 

headaches were caused by fluctuating intracranial pressure; however, Dr. Das himself appears to 

have abandoned that theory by March 2015. Further, descriptions of Plaintiff’s headaches as 

“severe” and “incapacitating” are vague and do not permit the ALJ to impose exertional 

limitations in vocational terms in Plaintiff’s RFC. Finally, as of April 2015, Dr. Das indicated 

that Plaintiff’s headaches were “well-controlled.” 

Plaintiff spends much of her brief extolling Dr. Das’s credentials and arguing that the 

ALJ should have credited his expertise over other consulting sources. But the ALJ did not 

 

3

 Plaintiff is not challenging the ALJ’s consideration of Dr. Das’s opinion regarding her 

cognitive functioning. 

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question Dr. Das’s diagnosis or suggest that Plaintiff does not, in fact, suffer from postmeningitic syndrome or frequent and severe headaches. The problem with Dr. Das’s opinion is 

that he did not opine as to specific exertional limitations that the ALJ could translate into 

vocational terms. Nor does Plaintiff identify any limitations that the ALJ should have included, 

but did not include, in the RFC. The Undersigned therefore concludes that the ALJ did not 

violate the treating physician rule or otherwise err in his consideration and weighing of Dr. Das’s 

opinion. 

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 

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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 

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