IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JOSEPH A. PRICE, 

Plaintiff,

v. Civil Action 2:18-cv-128

Judge James L. Graham 

Magistrate Judge Jolson 

COMMISIONER OF 

SOCIAL SECURITY, 

Defendant. 

REPORT AND RECOMMENDATION

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

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

for Disability Insurance Benefits (“DIB”). For the reasons set forth below, it is 

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

the Commissioner’s decision. 

I. BACKGROUND

Plaintiff filed his application for DIB in March 2014, alleging that he was disabled 

beginning August 29, 2012. (Doc. 8, Tr. 314–17, PAGEID #: 319–42). After his application 

was denied initially and on reconsideration, the Administrative Law Judge (the “ALJ”) held a 

hearing on November 18, 2016. (Tr. 184–216, PAGEID #: 1163–95). On January 30, 2017, the 

ALJ issued a decision denying Plaintiff’s application for benefits. (Tr. 11–26, PAGEID #: 990–

1005). The Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the 

final decision of the Commissioner. (Tr. 1–4, PAGEID #: 980–83).

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

on February 16, 2018. (Doc. 1). Plaintiff filed his Statement of Errors (Doc. 9) on August 3, 

2018.
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Defendant filed an Opposition (Doc. 10) on September 17, 2018, and Plaintiff filed his Reply

(Doc. 11) on October 2, 2018. Thus, this matter is now ripe for consideration. 

A. Relevant Hearing Testimony

Plaintiff testified that he injured his back at work in 2011 and was unable to work 

following that injury. (Tr. 185–86, PAGEID #: 1164–65). Plaintiff testified that, despite 

multiple surgeries, he continues to suffer from chronic pain that affects his ability to stand, walk, 

and sit. (Tr. 186–89, PAGEID #: 1164–68). Plaintiff also reported a history of drug and alcohol 

abuse that has required him to attend rehabilitation. (Id.).

Plaintiff also testified that he suffers from depression. (Tr. 187, PAGEID #: 1166). 

According to him, some days his depression has been so severe that he has not wanted to get out 

of bed or leave his bedroom. (Id.). Plaintiff stated that he has not wanted to take any medication 

for his depression or for any other mental health issues. (Tr. 187–88, PAGEID #: 1166–67). 

According to him, he took medication for depression at one point but did not like the way it 

made him feel. (Tr. 197, PAGEID #: 1176). Plaintiff did, however, see a mental health 

counselor once or twice a month. (Id.). Plaintiff testified that his physical impairments were 

what kept him “from being able to work more than [his] mental” impairments. (Tr. 205, 

PAGEID #: 1184). 

For a hobby, Plaintiff indicated that he liked to “tinker” around his garage and work on 

his motorcycles a few times a month. (Tr. 189–90, PAGEID #: 1168–69). He estimated that he 

typically sweeps the garage floor and polishes his bike for 15–20 minutes at a time. (Tr. 191–92, 

PAGEID #: 1170–71). 

With respect to activities of daily living, Plaintiff testified that he can do some laundry, 

wash the dishes, and sweep and mop the floors. (Tr. 192, PAGEID #: 1171). Plaintiff testified 

that he can do the dishes for about 10 minutes in which time he could get about half a load done. 
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(Id.). He further testified that he was not able to perform these activities regularly. (Tr. 194, 

PAGEID #: 1173). Plaintiff reported being able to drive a car and, occasionally, a motorcycle. 

(Tr. 195, PAGEID #: 1174). 

Vocational Expert Dr. Michael Klein (the “VE”) testified as an impartial witness (Tr. 

207–08, PAGEID #: 1186–87). The ALJ asked the VE several hypothetical questions. First, he 

asked: 

Hypothetical 1 light work as provided by the regulations, push or pull is 

limited as per exertional weight limits, never climbing ladders, ropes, or scaffolds. 

Occasional for climbing ramps, or stairs, balancing, stooping, kneeling, 

crouching, crawling. 

Goal based production work measured by end result not pace work. Work 

allowed off task five percent of the day, work in a low stress job defined as only 

occasional changes in the work setting. Can the hypothetical individual perform 

any of the past jobs? 

(Tr. 209, PAGEID #: 1188). The VE concluded that the hypothetical individual could 

potentially perform his or her past work as a short order cook and that there were other jobs the 

individual could potentially perform, including marker/labeler (5,000 state, 180,000 nationally), 

racker (4,000 state, 10,000 nationally), and cleaner (8,000 state, 175,000 nationally). (Tr. 209–

10, PAGEID #: 1188–89). 

Next, the ALJ stated, “Hypothetical number 2 [is] the same as hypothetical number 1 

exception some additional limitations of interaction with the public, none. Interaction with coworkers with supervisors occasional, work where others can be around but he’s more off by 

himself. I think the past jobs would be out. Am I correct?” (Tr. 210, PAGEID #: 1189). The 

VE opined that the individual’s past jobs would not be possible with those additional limitations, 

but that the individual could still work as a marker/labeler, racker, or cleaner. (Id.). 

The ALJ continued, “Hypothetical number 3 [is] the same as hypothetical number 1 

except lift and/or carry 10 pounds occasionally, lift and/or carry five pounds frequently, stand 
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and/or walk two hours out of an eight-hour day, and sit six hours out of an eight-hour day. Past 

jobs are out again?” (Id.). The VE agreed and opined that the individual could nonetheless work 

as a porter/clerk (4,000 state, 140,000 nationally), lens inserter (5,000 state, 150,000 nationally), 

or a charge account clerk (8,000 state, 100,000 nationally). (Tr. 210–11, PAGE ID#: 1189–90). 

For his last hypothetical, the ALJ stated:

Hypothetical number 4 [is] the same as hypothetical number 3 except a couple of 

different limitations. Work in a low stress job defined as only occasional decision 

making required, work where others may be around where’s [sic] he off by 

himself, no interaction with the public, interaction with co-workers is occasional 

and supervisors is occasion [sic]. Can the hypothetical individual do any work? I 

assume past work is again out. 

(Tr. 211, PAGEID #: 1190). The VE opined that the individual could not perform past work but 

would be able to perform work as an account clerk, lens inserter, or surveillance system monitor 

(2,000 state, 105,000 nationally). (Id.).

Following up on the ALJ’s hypotheticals, counsel for Plaintiff questioned the VE: 

If we were to look at either the light or the sedentary hypotheticals and the 

examples that were provided there if I were to state that within the confines of the 

normal break schedule of two 15 minute breaks and one 30 minute our individual 

might be able to sustain these activities but would have to be afforded the 

opportunity to recline during his regular break periods or are we into the realm of 

accommodation here?

(Tr. 215, PAGEID #: 1194). The VE stated, “I think accommodation here.” (Id.). 

B. Relevant Medical Background 

Plaintiff’s arguments concern his mental impairments only. Consequently, the Court 

examines the relevant medical evidence pertaining to the same.

1. Treatment Notes and Opinions of Treating Sources

From 2013 through 2016, Plaintiff attended counseling sessions at Weinstein & 

Associates, Inc. to treat his depression. (Tr. 1025–1148, PAGEID #: 854–977). Specifically, 
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Plaintiff attended counseling with William Froilan, Ph.D.; Lee Roach, Ph.D.; and Holly 

Conant, LISW. (Id.). During that same time period, Dr. Froilan, Dr. Roach, and Ms. Conant 

completed a number of evaluations to support Plaintiff’s worker’s compensation claim. 

(Tr. 514–25, PAGEID #: 342–53; Tr. 596–611, PAGEID #: 424–39; Tr. 622–25, PAGEID #: 

450–453; Tr. 733–839, PAGEID #: 562–668). In December 2013, Dr. Froilan found that 

Plaintiff experienced marked limitations in his activities of daily living and adaption and 

moderate limitations in social functioning and concentration, persistence, and pace because of 

his mental impairments. (Tr. 515, PAGEID #: 343). Dr. Froilan opined that Plaintiff’s 

prognosis was fair. (Id.). During the relevant period, Dr. Froilan, Dr. Roach, and Ms. 

Conant consistently found that Plaintiff’s prognosis was fair and that he had mild, marked, 

or moderate limitations in all four categories used to evaluate Plaintiff’s functional status. 

(Tr. 516–25, PAGEID #: 344–53; Tr. 596–611, PAGEID #: 424–39; Tr. 622–25, PAGEID #: 

450–453). In June 2013, Plaintiff presented at the emergency room for a psychiatric evaluation and 

treatment for polysubstance abuse. (Tr. 466, PAGEID #: 294). He stated that he drank 30 beers 

or a bottle of whiskey a day. (Tr. 468, PAGEID #: 296). He also indicated that he used Vicodin 

daily and occasionally used cocaine. (Id.). Plaintiff reported being depressed and feeling 

worthless and that substance abuse exacerbated his depression. (Id.). He stated that he had not 

received any prior psychiatric treatment and denied any suicidal ideation. (Id.). 

On August 8, 2014, Plaintiff presented at the emergency room with suicidal ideation and 

was hospitalized for several days. (Tr. 526–67, PAGEID #: 354–95). At the time of admission, 

Plaintiff was intoxicated, and a toxicology screen was positive for cocaine and marijuana. (Tr. 

527–28, PAGEID #: 355–56). Treatment notes indicate that his short-term memory, long-term 

memory, attention, and concentration were all intact. (Tr. 530–31, PAGEID #: 358–59). 
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Plaintiff was diagnosed with Depression NOS and alcohol dependence. (Tr. 531, 

PAGEID #: 359). 

In August 2015, Dr. Roach completed a Medical Source Statement as to Ability to 

Perform Work Related Activities (Mental). (Tr. 622–25, PAGEID #: 450–453). Dr. Roach 

found that Plaintiff suffered from moderate or marked limitations in social interaction, sustained 

concentration and persistence, and adaption, and that these restrictions had existed and persisted 

since August 2012. (Id.). He further concluded that Plaintiff was “likely to have partial or full 

day unscheduled absences from work occurring 5 or more days per month due to the diagnosed 

conditions and/or side effects of medication” and that Plaintiff’s condition was “likely to 

deteriorate if he . . . is placed under stress, particularly the stress of an 8 hour per day, 5 days per 

week job.” (Tr. 624, PAGEID #: 452). 

In January 2016, Dr. Roach and Ms. Conant, drafted a letter analyzing whether Plaintiff 

had reached maximum medical improvement for his depression. (Tr. 840–42, PAGEID #: 669–

71). They noted that Plaintiff continued to struggle with symptoms of depression, including 

“depressing mood, difficulty sleeping, fatigue, little interest in previously enjoyable activities, 

issues with memory, difficulty coping with stress, trouble sleeping, and irritability.” (Tr. 840, 

PAGEID #: 669). Dr. Roach and Ms. Conant opined that Plaintiff would continue to improve 

with additional treatment. (Id.). They observed that his activities of daily living and his 

persistence, concentration, and pace were moderately impaired by his depression. (Id.). Further, 

they found that Plaintiff’s social functioning had improved since starting treatment and that 

Plaintiff had reconnected with friends and family and had started a new relationship. (Tr. 841, 

PAGEID #: 670). Dr. Roach and Ms. Conant acknowledged that Plaintiff still struggled with 

social functioning to the extent he became irritable as a result of the pain from his injury. (Id.). 
7 

With respect to Plaintiff’s ability to adapt to stress in a work environment, they stated that 

Plaintiff’s depression was improving but still prevented him from returning to work. (Id.). Their 

case notes “document[ed] a consistent pattern of gradual improvements in [Plaintiff’s] 

psychological condition.” (Id.).

2. Worker’s Compensation Psychological Evaluation

In August 2013, Plaintiff underwent a psychological evaluation with Dr. Marian 

Chatterjee as part of his claim for worker’s compensation. (Tr. 471–75, PAGEID #: 299–303). 

Dr. Chatterjee observed that Plaintiff presented as mildly depressed and that his initial affective 

state was constricted. (Tr. 471, PAGEID #: 299). Plaintiff reported that he felt worthless and 

was unable to work or perform various activities at home. (Id.). He further indicated that he did 

not bathe or dress regularly and that he spent most of his time on the couch at home. (Id.).

Plaintiff reported no history of psychological treatment before his back injury at work. 

(Tr. 472, PAGEID #: 300). Due to pain and boredom, however, Plaintiff began drinking heavily 

and became increasingly depressed. (Id.). He stated that he cried a lot while sober and often just 

stayed in the house because he was afraid to leave. (Id.). 

Based on her mental status examination, Dr. Chatterjee concluded that Plaintiff’s shortterm concentration and attention were fair, his short-term memory was grossly intact, and his 

long-term memory was intact as well. (Tr. 473, PAGEID #: 301). Dr. Chatterjee further found 

that Plaintiff’s judgment and insight “were marginal” and that a “Beck Depression Inventory-II 

indicated depression in the severe range.” (Id.). Dr. Chatterjee ultimately opined that Plaintiff 

suffered from Depressive Disorder, NOS for which she recommended psychiatric counseling and 

medication. (Id.). 

3. SSA Psychological Evaluation
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On September 9, 2014, James Spindler, M.S., completed a psychological evaluation of 

Plaintiff. (Tr. 588–95, PAGEID #: 416–23). Plaintiff appeared to be nervous and mildly 

depressed during the evaluation. (Tr. 591, PAGEID #: 419). He reported that his depression was 

a result of his chronic pain and being unable to work. (Id.). Mr. Spindler observed that 

Plaintiff’s cognitive functioning was average and that he demonstrated adequate insight and 

judgment. (Id.). Plaintiff reported managing his finances and shopping for necessities. (Id.). 

He indicated that his ex-wife handled most of the housework because of his chronic pain. (Id.). 

For hobbies, Plaintiff reported enjoying fishing, hunting, and riding bikes but that he had not 

gone hunting or fishing that year. (Tr. 592, PAGEID #: 420). Plaintiff also indicated that he 

socialized with a small group of friends. (Id.). Mr. Spindler diagnosed Plaintiff with Alcohol 

Use Disorder – Severe, Unspecified Depressive Disorder – Mild, Unspecified Anxiety Disorder 

– Mild, and Cannabis Use Disorder – Mild. (Id.). In his functional assessment, Mr. Spindler

opined: 

[Plaintiff] seems capable of understanding, remembering and carrying out 

instructions in most job settings. . . . He appears to have the mental ability to

sustain a working pace and to maintain a level of attention and concentration that 

would be sufficient for most job settings. . . . Claimant reports that when he was 

employed he received good job performance ratings and had no major problem 

getting along with others. He seems likely to respond appropriately to 

supervision and to coworkers. . . . [Plaintiff] seems capable of responding 

appropriately to routine work pressures. 

(Tr. 593, PAGEID #: 421). 

4. State Agency Psychological Consultants

Later that month, Karla Voyten, Ph.D., a state agency psychological consultant, 

conducted an initial review at the request of the SSA and concluded that Plaintiff’s depression 

and anxiety were non-severe impairments. (Tr. 224–25, PAGEID #: 47–48). She found that 

Plaintiff had mild restrictions in his activities of daily living and mild difficulties in maintaining 
9 

concentration, persistence, or pace. (Id.). She further found that Plaintiff had no difficulties in 

maintaining social functioning and no repeated episodes of extended decompensation. (Id.). 

In December 2014, Jaime Lai, Psy. D., a state agency psychological consultant, 

conducted a review at the reconsideration level. (Tr. 232–47, PAGEID #: 55–70). Like Dr. 

Voyten, Dr. Lai concluded that Plaintiff’s depression and anxiety were non-severe impairments. 

(Tr. 239, PAGEID #: 63). Dr. Lai found that Plaintiff had mild restrictions in his activities of 

daily living and mild difficulties in maintaining social functioning. (Id.). Further, Dr. Lai noted 

Plaintiff had moderate difficulties in maintaining concentration, persistence, or pace but no 

repeated episodes of decompensation. (Tr. 242, PAGEID #: 65). 

Turning to Plaintiff’s Mental Residual Function Capacity Assessment, Dr. Lai first

opined that Plaintiff had no limitations with respect to understanding and memory. (Tr. 242, 

PAGEID #: 65). Second, Dr. Lai concluded that Plaintiff had, at most, moderate limitations with 

respect to sustained concentration and persistence. (Tr. 242–43, PAGEID #: 65–66). Dr. Lai 

asserted that Plaintiff was moderately limited in his ability to “complete a normal workday and 

workweek without interruptions from psychologically based symptoms and to perform at a 

consistent pace without an unreasonable number and length of rest period.” (Tr. 243, 

PAGEID #: 66). Dr. Lai explained that Plaintiff’s mental health issues “may interfere with [his] 

ability to concentrate on tasks for extended periods of time. [He] can complete tasks with 

regularly scheduled breaks” and “would benefit from some flexibility in his break and work 

schedule during periods of increased symptoms.” (Id.). Third, Dr. Lai found that Plaintiff had 

no significant social interaction limitations but that his “[m]ood symptoms and substance abuse 

would be expected to produce some limitations in the capacity for superficial interactions with 

others.” (Tr. 243–44, PAGEID #: 66–67). Fourth, Dr. Lai opined that Plaintiff had no 
10 

significant adaptation limitations but that his “[d]epression and substance use may reduce [his] 

capacity to adjust to major changes in the workplace setting. He would benefit from access to 

supervisory support during times of change.” (Tr. 244, PAGEID #: 67). 

C. The ALJ’s Decision

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

29, 2012, the alleged onset date. (Tr. 13, PAGEID #: 992). The ALJ determined that Plaintiff 

suffered from the following severe impairments: lumbar degenerative disc disease, spondylosis, 

osteoarthritis, depressive disorder, anxiety disorder, and alcohol dependence. (Id.). The ALJ, 

however, found that none of Plaintiff’s impairments, either singly or in combination, met or 

medically equaled a listed impairment. (Tr. 13–15, PAGEID #: 992–94). 

Specifically, the ALJ concluded that Plaintiff’s mental symptomatology did not result in 

at least two limitations or one extreme limitation in the areas of activities of daily living, social 

functioning, concentration/persistence/pace, or episodes of decompensation as required in 

“paragraph B” in 12.00 of the Listing of Impairments. (Tr. 13–14, PAGEID #: 992–93). Rather, 

the ALJ found Plaintiff had moderate limitations in his ability to understand, remember, or apply 

information; moderate difficulties interacting with others; moderate limitations with regard to 

concentrating, persisting, or maintaining pace; and mild limitations in his ability to adapt or 

manage himself. (Tr. 14, PAGEID #: 993). Thus, the ALJ held that Plaintiff did not satisfy the 

“paragraph B” criteria. (Id.). Similarly, the ALJ concluded that Plaintiff did not satisfy the 

“paragraph C” criteria. (Tr. 14–15, PAGEID #: 993–94).

As to Plaintiff’s RFC, the ALJ opined: 

[T]he claimant has the residual functional capacity to perform a reduced range of 

sedentary work as defined in 20 CFR 404.1567(a). Specifically, the claimant can 

lift and/or carry 10 pounds occasionally and 5 pounds frequently, stand and/or 

walk 2 hours out of an 8-hour day, sit 6 hours out of an 8-hour day, push/pull is 
11

limited as per weight limits, he can never climb ladders, ropes or scaffolds, can 

occasionally climb ramps and stairs, occasionally balance, stoop, kneel, crouch or 

crawl. In addition, the claimant is limited to goal based production measured by 

end result not pace work, will be off task for 5% of workday, and needs work in a 

low stress job, defined as only occasional changes in the work setting.

(Tr. 15, PAGEID #: 994).

After consideration of the evidence, however, the ALJ found that Plaintiff’s “statements 

concerning the intensity, persistence, and limiting effects of [his] symptoms [were] not entirely 

consistent with the medical evidence and other evidence in the record.” (Tr. 16, 

PAGEID #: 995). The ALJ elaborated on how he reached that finding:

[T]he claimant is able to participate in a range of activities, such as light 

housework, hanging out with friends, occasionally riding his motorcycle, driving, 

shopping, and working on projects. Indeed, he is likely less active than prior to 

his injury but his activities certainly show that he could perform a range of 

sedentary work as described above. Further, there are some inconsistencies in the 

claimant’s behavior and his allegations. For instance, he reports disabling mental 

conditions, but does not use any psychotropic medication. The record also 

indicates, as discussed above, that he has shown exacerbated pain behavior.

(Tr. 24, PAGEID #: 1003). 

II. STANDARD OF REVIEW

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

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

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

“[S]ubstantial evidence is defined as ‘more than a scintilla of evidence but less than a 

preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to 

support a conclusion.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) 

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

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

Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To this end, the Court must “take into account 
12

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

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

2015).

III. DISCUSSION

Plaintiff raises two errors to the Court. (Doc. 9). First, Plaintiff argues that the ALJ erred 

by improperly accounting for the limitations recognized by a state agency psychological 

consultant, Dr. Lai. (Doc. 9 at 8–11; Doc. 11 at 2–4). Second, Plaintiff contends that the ALJ 

erred because he improperly evaluated Plaintiff’s mental RFC. (Doc. 9 at 11–15; Doc. 11 at 4–

5). The Court addresses each of these alleged errors in turn.

A. Dr. Lai

Plaintiff contends that the ALJ erred in his RFC by failing to account for all of Dr. Lai’s 

credited limitations. Dr. Lai opined that Plaintiff would benefit from flexibility in his break and 

work schedule and that Plaintiff would need supervisory support during times of change. (Doc. 

9 at 9). Plaintiff emphasizes that the ALJ concluded that Dr. Lai’s opinions were entitled to 

partial weight but failed to explain why those limitations were not included in his RFC. (Id. at 

9–10). According to Plaintiff, this omission is significant because those limitations would have 

been work preclusive and thus would have entitled Plaintiff to an award of benefits. (Id. at 10–

11). 

“Because State agency medical and psychological consultants and other program 

physicians and psychologists are experts in the Social Security disability programs,” ALJs are 

required “to consider their findings of fact about the nature and severity of an individual’s 

impairment(s) as opinions of no examining physicians and psychologists.” SSR 96-6P, 1996 

WL 374180, at *2 (S.S.A. July 2, 1996). ALJs “are not bound by findings made by State agency 
13

or other program physicians and psychologists, but they may not ignore these opinions and must 

explain the weight given to the opinions in their decisions.” Id. 

“Even where an ALJ provides ‘great weight’ to an opinion, there is no requirement that 

an ALJ adopt a state agency psychologist’s opinions verbatim; nor is the ALJ required to adopt 

the state agency psychologist’s limitations wholesale.” Reeves v. Comm’r, 618 F. App’x 267, 

275 (6th Cir. 2015) (citing Harris v. Comm’r of Soc. Sec. Admin., No. 1:13–CV–00260, 2014 

WL 346287, at *11 (N.D. Ohio Jan. 30, 2014)). Ultimately, RFC assessments are an issue 

“reserved to the Commissioner in 20 CFR 404.1527(e) and 416.927(e).” SSR 96-6P, 1996 WL 

374180, at *3 (S.S.A. July 2, 1996).

The ALJ properly evaluated Dr. Lai’s opinion. Based on his review of Dr. Lai’s 

assessment and the record, he concluded that Dr. Lai’s opinion was entitled to “some partial 

weight.” (Tr. 23, PAGEID #: 1002). The ALJ disregarded Dr. Lai’s opinion that Plaintiff might

be limited to superficial interactions with others because it was inconsistent with the record and 

Dr. Lai’s own findings. (Id.). But the ALJ credited the other limitations recognized by Dr. Lai, 

namely, “that the claimant would need assistance during times of change and some ability to be 

off task.” (Id.). Significantly, the ALJ stated that those limitations “are generally consistent with 

the above residual functional capacity which has been set forth in more vocationally relevant 

terms.” (Id. (emphasis added)). In other words, the ALJ found that Dr. Lai’s limitations that 

were supported by the record were already addressed by his RFC assessment.

A review of the ALJ’s RFC corroborates this conclusion. Relevant here, the ALJ limited 

Plaintiff to “goal based production measured by end result not pace work, will be off task for 5% 

of workday, and needs work in a low stress job, defined as only occasional changes in work 

setting. (Tr. 15, PAGEID #: 994). Limiting Plaintiff to goal-based production and allowing him 
14

to be off task for 5% of the workday addressed Dr. Lai’s opinion that Plaintiff might need some 

ability to be off task. And limiting Plaintiff to a low stress job with only occasional changes in 

work setting addressed Dr. Lai’s opinion that Plaintiff might need assistance during times of 

change.

True, the ALJ did not adopt verbatim Dr. Lai’s opinion. But the ALJ was not required to 

do so. See Reeves, 618 F. App’x at 275 (citing Harris, 2014 WL 346287, at *11). Instead, the 

ALJ acknowledged Dr. Lai’s opinion, explained the weight he assigned to that opinion, and 

concluded that the limitations identified by Dr. Lai that were supported by the record were 

incorporated into his RFC assessment. (Tr. 23, PAGEID #: 1002). That is all that was required 

here. See generally SSR 96-6P, 1996 WL 374180 (S.S.A. July 2, 1996).

Stacey v. Commissioner of Social Security does not alter the Court’s conclusion. Plaintiff 

contends that the ALJ “credited” and “relied” on Dr. Lai’s findings and was therefore “required 

to explain why these limitations were being excluded.” (Doc. 9 at 10 (citing Stacey v. Comm’r of 

Soc. Sec., 451 F. App’x. 517, 518–20 (6th Cir. 2011)). In Stacey, an examining physician, Dr. 

Randolph, opined that the plaintiff “was permanently limited to performing sedentary work—an 

assessment that, if accepted, likely would have rendered Stacey disabled and entitled him to 

Social Security Disability Insurance benefits.” 451 F. App’x at 518. “The ALJ did not explain 

why he (apparently) rejected Dr. Randolph’s assessment of Stacey’s physical capabilities in 

favor of Dr. McCloud’s, [a non-examining state agency physician].” Id. at 519. The Court 

acknowledged that the ALJ did not have to “give good reasons” for the weight he assigned to Dr. 

Randolph’s opinion, but emphasized that he was obligated to “say enough to allow the appellate 

court to trace the path of his reasoning.” Id. (internal citations and quotation marks omitted). 

Because the ALJ failed to offer any explanation for his decision to disregard Dr. Randolph’s 
15

opinion, the Court found that his decision failed to satisfy that standard. Id. at 519–20.

Stacey turned on the fact that the ALJ discounted a medical source opinion and failed to 

explain his decision to do so. In contrast here, rather than disregarding the opinion of Dr. Lai,

the ALJ incorporated Dr. Lai’s limitations that were supported by the record into his RFC using 

“more vocationally relevant terms.” (Tr. 23, PAGEID #: 1002). As a result, the ALJ did not err.

B. RFC Analysis

Next, Plaintiff argues that, “[i]nstead of relying on the medical evidence of record 

documenting greater functional limitations, the ALJ improperly discredited every single mental 

health source of record, on his way to crafting an inaccurate mental residual functional capacity.” 

(Doc. 9 at 11–12). Plaintiff emphasizes, “the ALJ failed to provide “good reasons” for rejecting 

the treating source opinions of record.” (Id. at 14). 

A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and 

mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 

149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The Social Security 

regulations, rulings, and Sixth Circuit precedent provide that the ALJ is charged with the final 

responsibility in determining a claimant’s residual functional capacity. See, e.g., 20 C.F.R. 

§ 404.1527(d)(2) (the final responsibility for deciding the residual functional capacity “is 

reserved to the Commissioner”). And it is the ALJ who resolves conflicts in the medical 

evidence. King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984). In doing so, the ALJ is charged 

with evaluating several factors when determining the RFC, including the medical evidence (not 

limited to medical opinion testimony), and the claimant’s testimony. Henderson v. Comm’r of 

Soc. Sec., No. 1:08-cv-2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010) (citing Webb v. 

Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004)). Nevertheless, substantial evidence 
16

must support the Commissioner’s RFC finding. Berry v. Astrue, No. 1:09CV000411, 2010 WL 

3730983, at *8 (S.D. Ohio June 18, 2010). 

The Court finds that substantial evidence supports the ALJ’s mental RFC. While 

Plaintiff insists that “every single mental health source of record” supports a more restrictive 

mental RFC, (Doc. 9 at 12), the record is more mixed than Plaintiff acknowledges. Plaintiff 

testified that his physical impairments were what kept him “from being able to work more than 

[his] mental” impairments. (Tr. 205, PAGEID #: 1184). Significantly, Plaintiff did not take any 

medication for his depression or any other mental health issues. (Tr. 187–88, PAGEID #: 1166–

67). Evidence regarding Plaintiff’s activities of daily living and social functioning supported the 

conclusion that he could work with certain limited restrictions. (See, e.g., Tr. 192, PAGEID #: 

1171 (Plaintiff testifying that he could do some laundry, wash the dishes, and sweep and mop the 

floors); Tr. 195, PAGEID #: 1174 (Plaintiff testifying that he could drive a car and, occasionally,

a motorcycle); Tr. 591–92, PAGEID #: 419–20 (Plaintiff reporting to Mr. Spindler that he 

managed his finances, shopped for basic necessities, socialized with friends, and enjoyed fishing, 

hunting, and riding bikes); Tr. 224–25, PAGEID #: 47–48 (Dr. Voyten opining that Plaintiff had 

mild limitations in his activities of daily living and no limitations in terms of social functioning); 

Tr. 841, PAGEID #: 670 (Dr. Roach and Ms. Conant opining that Plaintiff’s social functioning 

had improved since starting treatment and that Plaintiff had reconnected with friends and family 

and had started a new relationship)). So did evidence regarding his understanding and memory, 

and concentration, pace, and persistence. (See, e.g., Tr. 224–25, PAGEID #: 47–48 (Dr. Voyten 

finding that Plaintiff mild difficulties in maintaining concentration, persistence, or pace); Tr. 593, 

PAGEID #: 421 (Mr. Spindler opining that “[Plaintiff] seems capable of understanding, 

remembering and carrying out instructions in most job settings. . . . He appears to have the 
17

mental ability to sustain a working pace and to maintain a level of attention and concentration 

that would be sufficient for most job settings”); Tr. 473, PAGEID #: 301 (Dr. Chatterjee opining 

that Plaintiff’s short-term concentration and attention were fair, his short-term memory was 

grossly intact, and his long-term memory was intact as well); Tr. 530–31, PAGEID #: 358–59 

(treatment notes indicating that Plaintiff’s short-term memory, long-term memory, attention, and 

concentration were all intact)). Taken together, the evidence of record and the evidence the ALJ 

relied on is “more than a scintilla of evidence” that “a reasonable mind might accept as adequate 

to support a conclusion.” Rogers, 486 F.3d at 241 (internal quotation marks omitted). 

Plaintiff has done a thorough job identifying evidence that supports a more restrictive 

mental RFC. (Doc. 9 at 12–14). But the Court may not reverse the Commissioner’s decision 

merely because it disagrees or because “there exists in the record substantial evidence to support 

a different conclusion.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006).

Plaintiff’s “good reasons” argument is similarly unpersuasive. Plaintiff is correct that, if 

an ALJ discounts a treating physician’s opinion, he or she is “procedurally required to give ‘good 

reasons’ for discounting” those opinions. Reeves, 618 F. App’x at 273 (quoting Rogers, 486 

F.3d at 242). Good reasons 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.’” Reeves, 618 F. App’x at 273 (quoting Rogers, 486 F.3d at 242).

A review of the ALJ’s decision makes clear that he satisfied that standard. For example, 

in discounting the opinion of Dr. Frolian, the ALJ explained:

Dr. Frolians’ [sic] opinions have been afforded little weight for several reasons. 

First, they are inconsistent with the evidence as a whole. For instance, Dr. Frolian 

noted that the claimant had marked limitations in things such as social interaction, 

activities of daily living and ability to respond to stressful situations, yet the 

claimant reported no difficulty with personal care, and he is able to shop, visit 

friends, attend appointments and take medications without reminders. Treatment 
18 

notes also do not support marked limitations in functional areas, as the claimant 

was noted to be only “mildly” depressed, often demonstrated normal or mild 

findings related to concentration, insight, memory and judgment and often the 

social worker noted mild findings during her sessions. Next, the record contains 

limited medical evaluations from Dr. Frolian. Dr. Frolian noted that the claimant 

“reported moderate to marked disruption of his functional capacities.” Yet as 

noted above the claimant was able to do a range of activities that is not consistent 

with this report, including riding a motorcycle and working on a project for a 

nursing home. Additionally, Dr. Frolian did not set forth any specific functional 

limitations due to the claimant’s mental impairments. Last, Dr. Frolian found that 

the claimant was temporarily not released to work for limited three month period 

relevant to the claim for workers’ compensation. As noted above, a decision by 

other agencies about whether the claimant is disabled is based on its own rules 

and thus is not binding on the Commissioner. 

(Tr. 21–22, PAGEID #: 1000–01). While Plaintiff asserts that reasons given by the ALJ for 

discounting the testimony of Dr. Frolian and others were “cursory and inconsistent,” (Doc. 9 at 

14), the Court respectfully disagrees. As demonstrated by the above analysis, the ALJ identified 

specific inconsistencies between Dr. Frolian’s opinion and the medical record and noted a lack of 

evidentiary support for Dr. Frolian’s conclusions. (See Tr. 21–22, PAGEID #: 1000–01). These 

are acceptable bases to discount opinion evidence. See C.F.R. § 404.1527(d)(3) (“Supportability. 

The more a medical source presents relevant evidence to support an opinion, particularly medical 

signs and laboratory findings, the more weight we will give that opinion.); 20 C.F.R. 

§ 404.1527(d)(4) (“Consistency. Generally, the more consistent an opinion is with the record as a

whole, the more weight we will give that opinion.”). The ALJ did the same for the other treating 

and non-treating sources. (See Tr. 21–23, PAGEID #: 1000–02). As a result, the ALJ did not err 

in his RFC analysis. 

IV. CONCLUSION

Based on the foregoing, it is RECOMMENDED that the Court OVERRULE Plaintiff’s

Statement of Errors and AFFIRM the Commissioner’s decision. 
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V. PROCEDURE ON OBJECTIONS

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

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

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

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

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

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

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

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28 

U.S.C. § 636(b)(1).

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

Recommendation will result in a waiver of the right to have the district judge review the Report 

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

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

140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: October 24, 2018 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE