and deference to the ALJ’s finding. Walters, 127 F.3d at 531. Accordingly, plaintiff's first
assignment of error should be overruled.

2. Whether the ALJ erred in evaluating plaintiff's migraines.

Plaintiff alleges as her second assignment of error that the ALJ erred in finding that her
migraines were non-severe. (Doc. 11 at 13). Plaintiff alleges that in 2014 and 2015, she
“suffered from frequent, excruciating headaches with accompanying migraine symptoms, such as
nausea and vomiting.” (/d. at 14). Plaintiff alleges that Riverhills Neurology physicians agreed
that she had severe chronic migraines, although there was some debate about the diagnosis.

(Id.).

In response, the Commissioner argues that the ALJ reasonably concluded that plaintiff's
migraines were non-severe in light of plaintiff's infrequent complaints of headaches and largely
normal physical examinations between 2014 and 2016. (Doc. 17 at 8). The Commissioner
maintains that the ALJ’s conclusion that plaintiff's migraines were not a severe impairment does
not constitute reversible error because the ALJ found that plaintiff had other severe impairments
and proceeded through the sequential analysis. (/d. at 9).

The regulations define a severe impairment or combination of impairments as one which
significantly limits the physical or mental ability to perform basic work activities. 20 C.F.R. §
404.1520(c). Plaintiff is not required to establish total disability at this level of the sequential
evaluation process. Rather, the severe impairment requirement is a threshold element which
plaintiff must prove in order to establish disability within the meaning of the Act. Gist v. Sec'y
of H.H.S., 736 F.2d 352, 357 (6th Cir. 1984). An impairment will be considered non-severe only

if it is a “slight abnormality which has such a minimal effect on the individual that it would not

20


any medical opinion suggesting that she had ‘incapacitating or debilitating symptoms.”” (/d.)
(citing 20 C.F.R. § 404.1529(c)(1)). The Commissioner contends that the ALJ explicitly
referenced evidence in support of plaintiff's claim for disability, including her crying spells,
occasional auditory and visual hallucinations, the side effects of her medications, and her reports
of anxiety and depression. (Jd. at 14-15) (citing Tr. 12, 23-24). The Commissioner further
contends that the ALJ fully considered plaintiff's schizophrenia diagnosis, finding it to be a
severe impairment and referencing schizophrenia multiple times in the RFC determination. (/d.
at 15).

In reply, plaintiff maintains that the objective abnormal findings cited by the
Commissioner in the statement of facts, including hearing voices, limited cognition, severely
anxious mood, hallucinations, and chronic suicidal thoughts lend support to her credibility and
support disability. (Doc. 18 at 2).°

c. Resolution

The SSA rescinded SSR 96-7p and replaced it with SSR 16-3p, which is applicable to
agency decisions issued on or after March 28, 2016. SSR 16-3p, 2017 WL 5180304 (Oct. 25,
2017). SSR 16-3p therefore applies to the ALJ’s decision issued in this case on April 28, 2017.

SSR 16-3p eliminates “the use of the term ‘credibility’” from the SSA’s sub-regulatory policy

5 Plaintiff also argues in her reply memorandum that the ALJ committed reversible error by failing “to make any
finding regarding [her] ability to be on task or how much work Plaintiff would miss in a month’s time. . . .” (Doc. 18
at 3). Plaintiff further argues that the ALJ erred in crediting the opinions of the non-examining state agency
physicians who rendered their opinions in March 2015, two years before the hearing and before other medical
records were available. (/d.). However, plaintiff did not raise these issues in her Statement of Errors and may not
raise new issues for the first time in her reply brief. See Wright v, Holbrook, 794 F.2d 1152, 1156 (6th Cir. 1986).
See also Bishop v. Oakstone Academy, 477 F. Supp. 2d 876, 889 (S.D. Ohio 2007) (“[I]t is well established that a
moving party may not raise new issues for the first time in its reply brief.”). The Court therefore declines to review
any new claims of error raised in plaintiff's reply brief.

14


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION
LORA B. MARRERO, Case No. 1:18-cv-198
Plaintiff, Black, J.

Litkovitz, M.J.

vs.
COMMISSIONER OF

SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of

the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party’s objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140

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

24


preponderance. . ..” Rogers v. Commr of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545—46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).

D. Specific Errors

On appeal, plaintiff alleges two assignments of error: (1) the ALJ’s credibility
determination is not supported by substantial evidence, and (2) the ALJ erred in finding that
plaintiff's migraine headaches were non-severe. (Doc. 11).

1. Whether the ALJ erred in evaluating plaintiffs subjective complaints.

a. Plaintiff’s Hearing Testimony and Medical Evidence of Record

Plaintiff testified at the March 15, 2017 hearing that she has difficulty performing
household chores and that her mother performs 95% of the chores. (Tr. 42). Plaintiff testified
she goes through spells where she does not shower. (Tr. 42-43). Plaintiff testified that she could
make a sandwich and put a meal in the microwave. (Tr. 43). Plaintiff testified that she could

drive up to four hours to see her teenage children. (/d.). She is unable to go to the movie theater


be expected to interfere with the individual’s ability to work, irrespective of age, education, and
work experience.” Farris v. Sec'y of H.H.S., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v.
Heckler, 724 F.2d 914, 920 (11th Cir. 1984)). The severity requirement is a “de minimis hurdle”
in the sequential evaluation process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). A
plaintiff bears the burden of demonstrating that he suffers from a medically determinable
impairment. Wilson, 378 F.3d at 548. Generally, an ALJ does not commit error requiring
automatic reversal of the Commissioner’s decision and an immediate award of benefits when the
ALJ finds a non-severe impairment and determines that a claimant has at least one other severe
impairment and then goes on with the remaining steps in the disability evaluation. Maziarz v.
Secretary of Health and Human Services, 837 F.2d 240, 244 (6th Cir. 1987).

At step two in the sequential analysis, the ALJ determined that plaintiff's migraine
headaches were non-severe impairments. (Tr. 20). The ALJ concluded that plaintiff's migraine
headaches “have not caused more than minimal limitation in the ability to perform basic work
activities for 12 consecutive months.” (/d.).

Plaintiff summarizes the relevant evidence on her migraine headaches as follows:

[Plaintiff] was referred to Riverhills Neurology. She complained of daily,

worsening headaches with accompanying tremors, fatigue, nausea/vomiting,

blurred vision and confusion. In April of 2014, Dr. Anthony found absence of eye
pulsation and swollen discs, leading him to diagnose migraine, pseudotumor celebri

and ataxia. In October of 2014, Dr. Schmerler diagnosed that [plaintiff] suffered

from myoclonus and migraine headaches. In October of 2015, Dr. Schmerler found

chronic oscillipsia [sic] and diagnosed “severe prolonged migraines with aura.”

Over this treatment period, Riverhills Neurology prescribed multiple medications

to combat these diagnoses.

(Doe. 11 at 6) (citing Tr. 658-707; 773-786).

Plaintiff has not shown that the ALJ committed any error at step two by failing to find

21


IT IS THEREFORE RECOMMENDED that the decision of the Commissioner be

AFFIRMED and this case be closed on the docket of the Court.

Date: Z hh of) q Zin thai.
Karen L. Litkovitz

United States Magistrate Judge

23


supports the ALJ’s finding that plaintiff's symptoms were not as severe as alleged. Although the
medical record documents “tangential/scattered thinking, rumination, crying, disheveled
appearance and depressed/anxious mood,” as plaintiff argues (Doc. 11 at 10), the ALJ reasonably
found that this objective evidence did not fully corroborate plaintiff's subjective allegations of
debilitating mental limitations. Plaintiff argues that the ALJ erred by completely failing to
mention her September 2015 psychological evaluation. (Doc. 11 at 12). The evaluation to
which plaintiff refers was conducted by psychiatrist Dr. Carlos Cheng at Solutions. (Tr. 402-04).
Plaintiff is correct that the ALJ did not cite to this report in her decision. However, there is no
requirement that the ALJ discuss every piece of evidence in the administrative record. Kornecky
v. Comm’r of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006). Moreover, the ALJ discussed in
detail no less than 18 of plaintiff's examinations and treatment notes over a three-year period in
evaluating plaintiff's subjective allegations under the regulatory factors. This is not a case of
cherry-picking the evidence as plaintiff suggests. In any event, Dr. Cheng’s evaluation appears
to provide further support for the ALJ’s determination that plaintiff's allegations are not
consistent with the evidence of record. Dr. Cheng noted that plaintiff presented with a “dulled
mood,” but otherwise she had fair eye contact and a cooperative and pleasant behavior. (Tr.
402). Dr. Cheng noted that plaintiff had “fair” functioning in her activities of daily living,
including self-care, family/childcare, some relations/interpersonal effectiveness, and some
leisure. (/d.).° Plaintiff also argues that the ALJ failed to consider her schizophrenia. (Doc. 11

at 13). Plaintiff argues that “[t]hough the ALJ cited some bits of medical records which reported

° Plaintiff alleges that during this evaluation, she took a “DLA test, which showed that [she] was markedly limited in
the areas of Health, Coping and Communication.” (Doc. 11 at 12). Plaintiff does not provide a citation to the record
for this piece of evidence and it is not the Court’s role to comb through the administrative record. Therefore, it will

not be considered.
18


voices and sees occasional shadows. (/d.). CNP Spradlin adjusted plaintiff's medications. (Tr.
408).

On September 22, 2015, psychiatrist Carlos Cheng, M.D., noted on mental status
examination that plaintiff presented with a dulled mood, fair eye contact, and cooperative and
pleasant behavior. (Tr. 402). Plaintiff exhibited no delusions/obsessions and no clinical
ruminations or excessive generalized worrying/intrusive thoughts. (/d.). Plaintiff had intact
cognition and she denied hallucinations or suicidal ideation. Dr. Cheng noted that plaintiff
exhibited mild cognitive assumptions and shallow affective reactivity and interpersonal
dynamics/discord, which was suggestive of behavioral/temperamental style. (/d.). Dr. Cheng
reported that plaintiff had some functioning in her activities of daily living (self-care,
family/childcare, some relations/interpersonal effectiveness, basic/some leisure), but she had
decreased functioning in self-actualization and quality of life. (/d.). Dr. Cheng adjusted
plaintiff's medications. (Tr. 403).

Plaintiff saw psychiatrist Irfan Dahar, M.D. on November 23, 2015, on follow up and
reported problems with mood swings, anxiety and insomnia, and feeling nervous and depressed.
Plaintiff also reported that she was sleeping 2-3 hours per night with awakenings and took her
medications with no side effects. No mania or psychosis was noted. No suicidal or homicidal
ideations were reported. Dr. Dahar noted plaintiff was engaged in therapy focused on improving
quality of life, symptoms management, and coping skills. On mental status examination,
plaintiff exhibited a nervous mood and anxious affect, a goal-directed thought process and
appropriate content, normal perception, cooperative behavior, intact cognition, and fair insight

and judgment. (Tr. 376). Plaintiff saw Dr. Dahar three more times through March 2016 and

10


Solutions Community Counseling (“Solutions”) with Dr. Rakeshkumar Kaneria, M.D.? (Tr. 262-
69). Plaintiff presented with a history of schizoaffective disorder and PTSD. (Tr. 262). Plaintiff
reported she experienced depressed mood, anhedonia, poor sleep, poor concentration, and
hopelessness. She denied suicidal or homicidal ideations and auditory or visual hallucinations.
She also reported nightmares, flashbacks, and excessive anxiety. (/d.). On mental status
examination, plaintiff was found to be well-groomed, and she maintained average eye contact.
She denied delusions and self-abuse. Her thought process was logical. Her mood was

depressed, and she was anxious with a constricted affect. She was cooperative, and she had
problems with her attention and concentration. (Tr. 263). Dr. Kaneria assessed schizoaffective
disorder and PTSD and prescribed Topamax, Zyprexa, and Effexor. (Tr. 264-66).

Plaintiff began treatment with Certified Nurse Practitioner Deborah Spradlin (“CNP
Spradlin”) at Solutions on October 17, 2014. CNP Spradlin noted that plaintiff presented in
crisis. Plaintiff reported that the Effexor had stopped working and she was hearing voices,
seeing shadows, having suicidal thoughts at times, and feeling anxious. CNP Spradlin adjusted
plaintiff's medications, and she was given Ativan as a short-term aide during the transition to
offset her anxiety. Plaintiff expressed concerns about losing her job and being able to take care
of her five children. CNP Spradlin noted that plaintiff was “very concerned about continued
functioning.” (Tr. 283).

On November 18, 2014, CNP Spradlin noted that plaintiff was unable to maintain her job

and take care of her children at that time. She was somewhat tearful but felt better on Lithium.

3 Plaintiff was previously evaluated at Solutions in September 2011. (Tr. 270-75).


or church due to the large crowds of people. (/d. at 43-44). Plaintiff also testified that she
watches television, helps with the laundry, and sometimes helps her son with homework,
although she does not have the patience to read. (/d.). At the time of the hearing, plaintiff
worked part-time as a cashier, usually for 2% hours a day. (Tr. 45). Plaintiff testified that she
has had to leave work early due to anxiety attacks or panic attacks. (Tr. 50). Plaintiff described
one of her panic attacks at work as involving excessive crying, hyperventilating, and sometimes
vomiting. (Tr. 50-51). Sometimes she would have to call in sick to work due to “bad anxiety”
which she described as nervousness, crying, shaking, and nausea. (Tr. 51). She was having a
hard time working even ten hours per week. (Tr. 55).

Plaintiff spends a lot of time in bed. (Tr. 45, 59). Her psychiatric medications “help
some,” and she had less depression and “a little less of the hearing voices.” The medications
have not helped her anxiety. (Tr. 49-50). Plaintiff testified that she had individual counseling in
the past but she did not “find it super effective.” She switched to group therapy and participated
for six months. (Tr. 49, 51). Plaintiff testified she had suicidal thoughts in the past, but not at
the time of the hearing. (Tr. 56-57). Plaintiff testified that her panic attacks last up to fifteen
minutes, (Tr. 57). She had headaches every day and her symptoms included tremors, nausea,
and vomiting. (Tr. 58). Plaintiff also testified that she cried multiple times per day. (/d.).
Plaintiff testified that she tried to attend events at her son’s school but missed some due to the

presence of large crowds. (Tr. 59).

On March 17, 2014, plaintiff had an evaluation and medication management session at


that Plaintiff was doing fairly well, the ALJ failed to account for other parts of the record that
proved Plaintiffs psychosis/schizophrenia was active and causing disabling symptoms.” (/d.).
However, plaintiff does not point to any additional treatment records that support that her
allegations of debilitating mental limitations resulting from schizophrenia.

In addition to the lack of objective evidence to support plaintiff's allegations of
debilitating mental limitations, the ALJ reasonably relied on plaintiffs daily activities that she
found were inconsistent with plaintiffs allegations of disabling impairments. (Tr. 25). The ALJ
reasonably considered that plaintiff returned to work part-time as a cashier and was working
“many hours” as recently as December 2016. Miller v. Comm’r of Soc. Sec., 524 F. App’x 191,
194 (6th Cir. 2013) (ALJ did not error by considering ability to maintain part-time employment
as one factor relevant to disability determination). Moreover, the ALJ considered that plaintiff
was able to care for her three to five children at any given time. (Tr. 25). The ALJ reasonably
considered that “[n]o treating source refers to the [plaintiff] as having incapacitating or
debilitating symptoms that would prevent her from returning to the workplace, or has otherwise
described the [plaintiff] as ‘totally and permanently disabled’ by her impairments and
complaints.” (/d.). Gerrick v. Comm’r of Soc. Sec., No. 16-2664, 2017 WL 5992235, at *2 (6th
Cir. Aug. 14, 2017) (holding that substantial evidence supported the ALJ’s credibility finding
where ALJ cited no treating source opinion as one relevant factor).

The ALJ reasonably determined that plaintiff's allegations of disabling mental limitations
were inconsistent with the record as a whole, as well as plaintiff's daily activities and lack of
treating source opinion. Where, as here, the ALJ’s assessment of plaintiffs subjective

allegations of her limitations is supported by substantial evidence, the Court affords great weight

19


children, going to church regularly, and taking her son shopping. (Tr. 471). She reported that
she had been hospitalized three times at Atrium Medical Center and once at Clinton Memorial
Hospital. She had overwhelming symptoms of depression, anxiety, and hearing voices, which
she was unable to get under control. Her medications at that time included Invega and Xanax.
(Tr. 472). Plaintiff's diagnoses remained schizoaffective disorder and PTSD. (Tr. 473).

On March 24, 2015, plaintiff reported that she was “doing much better.” She was less
anxious and sleeping better. Her mood was somewhat brighter and her Effexor was just starting
to work. (Tr. 411). On mental status examination, CNP Spradlin found plaintiff was well-
groomed, and her thought process was linear and goal-directed. Her thought content was
normal. She denied hallucinations. Her mood was depressed, and her affect was constricted.
She denied suicidal or homicidal ideations. She was cooperative with good insight and
judgment. (Tr. 411). CNP Spradlin increased her Geodon medication for increased stabilization.
(Tr. 412).

In May 2015, plaintiff saw a therapist, Jacob Bergstedt and presented as highly anxious,
crying, and worried about her medications. (Tr. 477-78). Mr. Bergstedt noted that plaintiff
exhibited a severely anxious mood. She had a full affect, was well-groomed, maintained average
eye contact, and suffered no delusions, self-abuse, aggression, or hallucinations. (/d.).
According to Mr. Bergstedt, plaintiff demonstrated a logical thought process, cooperative
behavior, no cognitive impairment, average intelligence, and average insight and judgment.

(id.). In June 2015, plaintiff reported improvement in her symptoms on her medications. (Tr.

407). CNP Spradlin noted that plaintiff had difficulty sleeping due to anxiety and still hears


UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

LORA B. MARRERO, Case No. 1:18-cv-198

Plaintiff, Black, J.

Litkovitz, M.J.

vs.
COMMISSIONER OF REPORT AND
SOCIAL SECURITY, RECOMMENDATION

Defendant.

Plaintiff Lora B. Marrero, brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner) denying her
application for disability insurance benefits (“DIB”). This matter is before the Court on
plaintiff's statement of errors (Doc. 11), the Commissioner’s response in opposition (Doc. 17),
and plaintiff's reply memorandum. (Doc. 18).

I. Procedural Background

Plaintiff protectively filed her application for DIB on November 20, 2014, alleging
disability since November 17, 2014, due to anxiety, manic depression, and schizoaffective
disorder. The application was denied initially and upon reconsideration. Plaintiff, through
counsel, requested and was granted a de novo hearing before administrative law judge (“ALJ”)
Pamela E. Loesel. Plaintiff and a vocational expert (“VE”) appeared and testified at the ALJ
hearing on March 15, 2017. On April 25, 2017, ALJ Loesel issued a decision denying plaintiff's
DIB application. Plaintiff's request for review by the Appeals Council was denied, making the

decision of ALJ Loesel the final administrative decision of the Commissioner.


remained committed to coming off of this medication. Plaintiff continued to report various
voices speaking to her throughout the day, at times seemingly worse without Clonazepam. Dr.
Barton found plaintiff exhibited an anxious mood, mildly blunted affect, and mild auditory
hallucinations. He assessed rebound anxiety, insomnia, and other symptoms causing a
significant disturbance in day-to-day functioning since running out of Clonazepam. Dr. Barton
restarted plaintiff at a lower dose and tapering slowly over the next several months to allow her a
greater period to adjust. Dr. Barton noted that her current medication seemed helpful with no
acute safety concerns. (Tr. 766-68).

State agency psychologist, Cynthia Waggoner, Psy.D., reviewed plaintiff's file in January
2015 on initial consideration. State agency psychologist, Deryck Richardson, Ph.D., reviewed
the file on reconsideration in March 2015. (Tr. 25, 80-82, 90-93). Drs. Waggoner and
Richardson determined that plaintiff could perform simple, routine one-to-two step tasks; would
perform best in a relatively static environment with infrequent changes; could carry out familiar
two-to-three step tasks that do not require problem solving or extended periods of concentration;
could engage in intermittent, superficial interactions with co-workers or supervisors but should
avoid direct interactions with the general public; and would perform best in an environment not
requiring strict production or rapid pace demands. (Tr. 80-82, 90-93).

b. The Parties’ Arguments

Plaintiff alleges as her first assignment of error that the ALJ erred in weighing her
subjective complaints of mental limitations. (Doc. 11 at 8-13). Plaintiff alleges that the
overwhelming objective evidence of record supports her allegations that she cannot work full-

time due to her mental impairments. (/d. at 10). Plaintiff alleges that beginning in 2014, she

12


reported symptoms of depression and anxiety. Dr. Dahar adjusted her medications. (Tr. 639-40,
648-49, 714-15).

Plaintiff saw psychiatrist Lucas Barton, M.D., in May 2016 and reported daily auditory
hallucinations, mood swings and depression, and chronic suicidal thoughts. (Tr. 728). On
mental status examination, Dr. Barton found plaintiff was well-groomed, pleasant, and
cooperative with coherent, linear, logical, and goal-directed thoughts. She exhibited intact
memory and average intelligence. She had a dysphoric mood and was tearful at times. Dr.
Barton found no abnormal behavior, fair insight and judgment, and good eye contact. (/d.). Dr.
Barton adjusted her medications. (Tr. 729-30).

When seen by Dr. Barton in September 2016, plaintiff reported that she had started
working as a cashier. On her workdays, she was sleeping better. She also reported that she was
using more Clonazepam on work days. She denied suicidal or homicidal ideations, auditory or
visual hallucinations, delusions, or symptoms of mania. On mental status examination, Dr.
Barton found plaintiff was pleasant and cooperative with good eye contact; her affect was
euthymic, mildly blunted range and congruent; and her mood was “calm.” Dr. Barton found
plaintiff was stable on her current medications. Plaintiff's diagnosis remained schizoaffective
disorder. (Tr. 755-57).

In December 2016, plaintiff reported to Dr. Barton that she ran out of Clonazepam about
3-4 weeks prior and she thought she would have enough to last until this appointment. She had
been anxious, irritable, having trouble with concentration, calling off work, and not sleeping well
since coming off of the medication. Plaintiff denied symptoms of withdrawal and her symptoms

had not improved over the last couple of weeks. She requested to restart Clonazepam but

11


On mental status examination, her appearance was appropriate and her demeanor was calm.
Plaintiff's thought process was somewhat scattered, but her thought content was within normal
limits. She denied active hallucinations. Her mood was depressed and her affect was
constricted. She denied suicidal or homicidal ideations. She was cooperative and engaged with
good insight and judgment. CNP Spradlin continued plaintiff with her current medications. (Tr.
279-80).

Plaintiff treated with CNP Spradlin twice in December 2014, complaining of side effects
from her medications. (Tr. 276-78, 417-18). During both visits, plaintiff's mood and affect
remained depressed and anxious, but her examination was otherwise unremarkable. (Tr. 276).
During the first visit, plaintiff reported that she felt dull and listless, and she struggles with low
energy level, mood instability, and tearfulness. (/d.). Plaintiff also reported that she had to quit
her job because “some days she was just not able to get out of bed and work.” (/d.). CNP
Spradlin noted they would continue to work on stabilizing the medications, and plaintiff was
prescribed Xanax. (/d.).

When seen in January 2015, CNP Spradlin reported that plaintiff presented with
somewhat improved symptoms. On mental status examination, she was depressed and anxious
but improved, she was cooperative and engaged, and she reported reduced hallucinations. Her
thought process and content, behavior, cognition, appearance, and insight and judgment
remained normal. (Tr. 415-16).

Plaintiff participated in an Adult Diagnostic Assessment Update on February 10, 2015.
(Tr. 471-74). Plaintiff reported hearing voices, but she indicated that her medication seemed to

be helping. (Tr. 471). She reported engaging in activities such as going to the movies with her


migraine headaches were a severe impairment. Substantial evidence supports the ALJ’s finding
that plaintiff's migraine headaches constituted a non-severe impairment because the medical
evidence demonstrates that plaintiff's migraine headaches did not cause more than a minimal
limitation in her ability to perform basic work activities for 12 consecutive months. The record
reflects that most of plaintiff's treatment for migraine headaches occurred before the alleged
onset date of November 17, 2014. There is only one treatment record documenting plaintiff's
migraine headaches after the alleged onset date. On October 15, 2015, plaintiff reported to Dr.
Schmerler that she had headaches a few times per week accompanied by tremors in her eyeballs.
(Tr. 783). The treatment record from that visit indicates that previous MRI and EEG test results
were normal. (/d.). Plaintiffs physical examination from that visit was normal. (Tr. 785). Dr.
Schmerler diagnosed plaintiff with intractable and worsening severe chronic migraine with
prolonged aura. (/d.). Dr. Schmerler noted that plaintiff preferred no new medications for her
headaches but would try riboflavin and magnesium. He also discussed with plaintiff the
transformation of episodic migraines into chronic daily headaches with the use of daily or
frequent analgesic pain medications. (Tr. 786). Plaintiff has not cited any additional medical
records post-dating the alleged onset date which demonstrate that her migraine headaches caused
more than a minimal effect on her ability to perform work-related activities for the required 12-
month disability period. In addition, plaintiff has not shown that even if the ALJ was bound to
include migraine headaches as a severe impairment, the headaches imposed any additional
functional limitations which the ALJ failed to include in the RFC finding. Accordingly,

plaintiffs second assignment of error should be overruled.

22


8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding that
the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable job
skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the [plaintiff]’s age, education, work experience, and residual
functional capacity, there were jobs that existed in significant numbers in the
national economy that the [plaintiff] can perform (20 CFR 404.1569 and
404.1569(a)).2

11. The [plaintiff] has not been under a disability, as defined in the Social Security

Act, from November 17, 2014, through the date of this decision (20 CFR

404.1520(g)).
(Tr. 19-27).

C. Judicial Standard of Review

Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229

(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a

? The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of
representative light, unskilled jobs such as marker, with 1,900,000 jobs in the national economy and
garment sorter, with 242,000 jobs in the national economy and medium, unskilled jobs such as laundry
worker, with 202,000 jobs in the national economy. (Tr. 26-27, 66).


and clarifies that “subjective symptom evaluation is not an examination of an individual’s
character.” Jd. Under SSR 16-3p, “an ALJ must focus on the consistency of an individual’s
statements about the intensity, persistence and limiting effects of symptoms, rather than
credibility.” Rhinebolt v. Comm'r. of Soc. Sec., No. 2:17-cv-369, 2017 WL 5712564, at *8 (S.D.
Ohio Nov. 28, 2017) (Report and Recommendation), adopted, 2018 WL 494523 (S.D. Ohio Jan.
22, 2018).

The regulations and SSR 16-3p describe a two-part process for evaluating an individual’s
statements about symptoms, including pain. First, the ALJ must determine whether a claimant
has a medically determinable physical or mental impairment that can reasonably be expected to
produce the symptoms alleged; second, the ALJ must evaluate the intensity, persistence, and
functional limitations of those symptoms by considering objective medical and other evidence,
including: (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other
symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side
effects of any medication taken to alleviate pain or other symptoms; (5) treatment, other than
medication, received for relief of pain or other symptoms; (6) any measures used to relieve pain
or other symptoms; and (7) other factors concerning functional limitations and restrictions due to
pain or other symptoms. 20 C.F.R. § 405.1529(c); SSR 16-3p, 2017 WL 5180304, *3-8. The
ALJ's credibility determination “with respect to [a claimant’s] subjective complaints of pain” is
generally given deference. Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir.

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

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

15


hallucinations. (/d.). Plaintiff presented with a depressed and anxious mood, and a constricted
affect, but her thought process was logical and she denied delusions and self-abuse. (/d.).
Plaintiff was prescribed Topamax, Zyprexa, and Effexor. (Tr. 265-66). After medication
adjustments in 2014, plaintiff reported during an Adult Diagnostic Assessment Update in
February 2015 that her medication seemed to be helping and that she could engage in activities
such as going to church, the movies, and shopping. (Tr. 23) (citing Tr. 471-73). In March 2015,
plaintiff reported that she was less anxious, sleeping better, and overall “doing much better.”
(d.) (citing Tr. 411-12). While plaintiff's mood was depressed and her affect was constricted,
her thought process was linear and goal-oriented and she denied hallucinations. (/d.). Plaintiff
reported further improvement in June 2015. (Tr. 24) (citing Tr. 407-08). In November 2015,
plaintiff exhibited a goal-directed thought process, appropriate content, and normal perception,
and she denied mania and suicidal ideations. (/d.) (citing Tr. 376). While plaintiff also exhibited
a nervous mood and anxious affect, she was participating in therapy designed to improve quality
of life, symptoms management, and coping skills. (/d.). In March 2016, plaintiff reported
during group therapy that she was crying less and getting out of the house more. (/d.) (citing Tr.
709). In September 2016, plaintiff denied auditory or visual hallucinations, delusions, or
symptoms of mania. She had a calm mood and her psychiatrist noted that her condition was
stable with current medications. (/d.) (citing Tr. 755-57). In December 2016, plaintiff reported
that her symptoms returned after running out of medication and eight days later, plaintiff
reported that she was doing “okay.” (Tr. 766-69).

Thus, the lack of objective medical evidence corroborating plaintiff's allegations, in

addition to plaintiff's documented improvement with treatment and medication adjustments,

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perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon vy. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999),

B. The Administrative Law Judge’s Findings

The ALJ applied the sequential evaluation process and made the following findings of

fact and conclusions of law:

1. The [plaintiff] meets the insured status requirements of the Social Security Act
through December 31, 2017.

2. The [plaintiff] has not engaged in substantial gainful activity since November
17, 2014, the alleged onset date (20 CFR 404.1571, et seq.).

3. The [plaintiff] has the following severe impairments: schizoaffective disorder,
posttraumatic stress disorder, and depressive disorder, NOS (20 CFR 404.1520(c)).

4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] had the residual functional capacity [(“RFC”)] to perform a full range of
work at all exertional levels but with the following nonexertional limitations: She
can perform simple routine tasks (unskilled work) with infrequent change and no
fast pace or high production quotas. She can have superficial interaction (meaning
of a short duration for a specific purpose) with co-workers and supervisors. There
should be no direct work with the public (i.e. customer service type work). She can
perform low stress work meaning no arbitration, negotiation, responsibility for the
safety of others or supervisory responsibility.

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565).!

7. The [plaintiff] was born [in] . .. 1980 and was 34 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date (20 CFR
404.1563).

' Plaintiff has past relevant work as a waitress, cashier, and cleaner. (Tr. 26).

3


II. Analysis

A. Legal Framework for Disability Determinations

To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).
The impairment must render the claimant unable to engage in the work previously performed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C. §
423(d)(2).

Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:

1) If the claimant is doing substantial gainful activity, the claimant is not disabled.

2) If the claimant does not have a severe medically determinable physical or mental

impairment — i.e., an impairment that significantly limits his or her physical or

mental ability to do basic work activities — the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or equals one of the listings

in Appendix 1 to Subpart P of the regulations and meets the duration requirement,

the claimant is disabled.

4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.

5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four
steps of the sequential evaluation process. Jd.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548

(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
2


began suffering from “persistent hallucinations, suicidal ideation, flashbacks, insomnia and
feelings of being overwhelmed.” (/d.). Plaintiff contends that her treatment providers found
many objective signs of mental impairment, including “tangential/scattered thinking, rumination,
crying, disheveled appearance and depressed/anxious mood.” (/d.). Plaintiff argues that the ALJ
erred in finding that her testimony was only partially credible because the record shows no
evidence of drug or alcohol abuse and no evidence of criminal behavior and demonstrates that
she was compliant with treatment and sought to keep working to support her family. (/d. at 11).
Plaintiff argues that the ALJ ignored many clinical findings that support her disability claim,
including a psychological medical evaluation conducted in September 2015. (/d. at 12).
Plaintiff further argues that the ALJ failed to cite to plaintiff's testimony of disabling symptoms,
such as her crying spells and visual hallucinations. (/d. at 13). Finally, plaintiff contends that
the ALJ failed to adequately consider her schizophrenia diagnosis. (/d.).*

In response, the Commissioner argues that the ALJ’s evaluation of plaintiff's symptoms
is supported by the objective medical and other evidence of record and therefore must be upheld
under 20 C.F.R. § 404.1529(c) and SSR 16-3. (Doc. 17 at 13). The Commissioner argues that
the ALJ properly considered the objective medical evidence and the non-exhaustive list of
factors set forth in 20 C.F.R. § 404.1529(c) and “reasonably found that Plaintiff's allegations of
disabling limitations were undermined by her many benign examination results, her reported

daily activities, the evidence regarding the efficacy of her medical treatment, and the absence of

* Plaintiff also argues that the ALJ failed to “adequately explain or cite evidence that Plaintiff could work full-time
as opposed to part time.” (Doc. 11 at 13). Without explanation, plaintiff cites an unpublished decision from the
Tenth Circuit Court of Appeals in support of this argument. The Court declines to consider this argument. See
Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (The Sixth Circuit “has consistently held that
arguments not raised in a party’s opening brief, as well as arguments adverted to in only a perfunctory manner, are
waived.”) (internal citations omitted).

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substantial evidence.” Walters v. Comm'r of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Furthermore, the ALJ’s decision on credibility must be “based on a consideration of the entire
record.” Rogers, 486 F.3d at 247 (internal quotation omitted). An ALJ’s explanation of his or
her credibility decision “must be sufficiently specific to make clear to the individual and to any
subsequent reviewers the weight the adjudicator gave to the individual’s statements and the
reasons for that weight.” Jd. at 248.

The ALJ conducted a thorough review of the record and evaluated plaintiff's subjective
complaints in accordance with 20 C.F.R. § 404.1529(c) and SSR 16-3p. The ALJ determined
that plaintiff's contentions as to the severity, chronicity, and frequency of her symptoms were not
entirely consistent with the objective medical evidence and other evidence of record. In making
this determination, the ALJ thoroughly evaluated and relied on: (1) the lack of supporting
objective medical evidence, including the lack of an opinion from a treating source, and (2)
plaintiff's daily activities. These factors substantially support the ALJ’s finding that plaintiff's
allegations regarding her symptoms were not entirely consistent with the medical and other
evidence of record.

Substantial evidence supports the ALJ’s determination that the longitudinal medical
evidence does not support the severity of limitations that plaintiff described in her hearing
testimony. Contrary to plaintiff's assertion, the ALJ considered evidence both supporting and
contradicting a disability finding. The ALJ noted that plaintiff was diagnosed with
schizoaffective disorder, NOS, and PTSD after an initial psychiatric evaluation in March 2014.
(Tr. 23). At that evaluation, plaintiff reported a depressed mood, anhedonia, poor sleep, poor

concentration, and hopelessness, but she denied suicidal ideations and auditory or visual

16