IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

GINA M. KENNEDY,

Plaintiff,

v. Civil Action 2:18-cv-649

Judge James L. Graham

Magistrate Judge Jolson

COMMISIONER OF 

SOCIAL SECURITY, 

Defendant.

REPORT AND RECOMMENDATION

Plaintiff Gina M. Kennedy brings this action under 42 U.S.C. § 405(g) seeking review of 

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

applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). 

For the reasons set forth below, it is RECOMMENDED that the Court OVERRULE Plaintiff’s 

Statement of Errors (Doc. 10) and AFFIRM the Commissioner’s decision.

I. BACKGROUND

Plaintiff filed her applications for DIB and SSI on February 16, 2011, alleging that she was 

disabled beginning February 3, 2011. (Doc. 7, Tr. 159). After her application was denied initially 

and on reconsideration, the Administrative Law Judge (the “ALJ”) held the hearing on January 15, 

2013. (Tr. 35–66). On February 22, 2013, the ALJ issued a decision denying Plaintiff’s 

application for benefits. (Tr. 16–28). The Appeals Council denied Plaintiff’s request for review, 

making the ALJ’s decision the final decision of the Commissioner. (Tr. 1–6). Plaintiff appealed 

the decision to this Court. See Kennedy v. Comm’r of Soc. Sec., 2:14-cv-419 (S.D. Ohio). The 

Court remanded the case to the Commissioner under Sentence Four of § 405(g). The Appeals 

Council vacated the ALJ decision and ordered a remand. (Tr. 964–68). A second administrative 
2

hearing was held on July 10, 2015. (Tr. 840–76), and about four months later, the ALJ issued a 

decision denying Plaintiff’s application for benefits. (Tr. 801–38). The Appeals Council again 

denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the 

Commissioner. (Tr. 719–26).

Plaintiff filed the instant case seeking a review of the Commissioner’s decision on July 2, 

2018 (Doc. 1), and the matter is now ripe for consideration. (See Docs. 7, 10, 12).

A. Relevant Hearing Testimony

The ALJ usefully summarized Plaintiff’s hearing testimony:

The claimant testified that she is 64 inches tall and that she weighs 273 pounds. 

She lives alone in an apartment. The claimant has no dependent children. She had 

a driver’s license but she does not have an automobile. She receives transportation 

to the grocery store and to appointments through the “Recovery Zone” 

organization. The claimant has been involved with that organization for five years. 

She attends group therapy sessions at the Recovery Zone five days per week. The 

claimant testified that she experiences anxiety and depression. She testified that 

she has not had any problems with substance abuse. Prior to moving into her 

apartment, the claimant lived in a group home through the Recovery Zone. She 

testified that she lacks motivation. She is able to prepare simple meals in a 

microwave oven. She does her own laundry. The claimant testified that she does 

not have a boyfriend. She visits with family members including her parents and 

siblings. The claimant shops and has no difficulty relating to other persons she 

encounters in the community. She attends church regularly (once per week). A 

friend picks her up and drives her to church. She occasionally goes to a movie or 

out to eat with her friend. The claimant uses a computer to play games and watch 

movies. She reads but not very often. The claimant is able to attend to her own 

personal grooming and hygiene needs. However, upon questioning by her attorney, 

the claimant qualified that testimony by stating that she only showers once per week 

and that she does not like to brush her teeth. The claimant testified that she is able 

to sleep adequately with the use of CPAP therapy and medication. She testified that 

she becomes mentally overwhelmed and that she experiences panic attacks. The 

claimant complained of poor concentration and memory deficits. She can only 

sustain concentration for about 30 minutes at a time. The claimant also complained 

of mood swings and lack of energy. The claimant takes prescribed medication for 

her alleged symptoms and impairments (Exhibits 15E and 24E).

(Tr. 804).
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B. Relevant Medical Background 

In her decision, the ALJ also summarized Plaintiff’s medical diagnoses and symptoms:

* * *

There is evidence of mental health treatment for symptoms of depression and 

anxiety (Exhibits 2F to 5F, 7F, 12F, 13F, 30F, 3lF, 50F and 5lF). Depressive 

disorder NOS (not otherwise specified) and generalized anxiety disorder were 

diagnosed (Exhibit 2F at 10). There is evidence of episodes of psychological 

symptom exacerbation in 2011 with apparent suicidal ideation (Exhibits 2F, 3F and 

7F). Situational factors (e.g., unemployment, homelessness, financial difficulties, 

family relationship issues) seem to have been at the root of these episodes (see, for 

example, Exhibits 3F at 3 and 9; 30F at 70; 5lF at 2). On each occasion, the 

claimant was effectively treated within a matter of a few days. Her condition 

stabilized and she was released from treatment. Personality disorder was also 

diagnosed (Exhibit 7F at 10). Generally (and over an extended period of time), the 

claimant was assigned Global Assessment of Functioning (GAF) scores in the 

range of “5l–60” (Exhibits 5F, 7F and 5lF at 49). GAF scores in the range of “5l60” are indicative of “moderate” symptoms (Diagnostic and Statistical Manual of 

Mental Disorders, 4th Ed [DSM IV-TR], Text Revision, Washington, D.C., 

American Psychiatric Association, 2000, pp. 32-34). The claimant’s primary mode 

of treatment was psychotropic medication (see Exhibits 7F and 30F).

Mental health treatment records indicate that the claimant “has no notable substance 

use difficulties” (Exhibit 7F at 5). She has good hygiene skills and no difficulty 

with the performance of household chores and regular and routine daily activities 

(Exhibit 7F at 5). There was no evidence of thought disturbance. The claimant 

displayed normal judgment and insight as well as appropriate behavior. Her 

memory was intact. She was oriented and alert. Thought content was normal. The 

claimant demonstrated the capacity to stay on task (Exhibit 7F at 4).

It was noted that the claimant has difficulty coping with stress but that “under low 

stress, [she] can maintain her attention and tolerate frustration well” (Exhibit 12F 

at 3). She becomes angry without much provocation. Her symptoms were 

responding to prescribed medication and treatment (Exhibit 12F at 4). It was 

reported that the claimant exhibited stable mood with no panic attacks (Exhibit 13F

at 6).

(Tr. 807).

The ALJ also considered the individual records of Plaintiff’s care providers and 

treatment centers: 
4

1. Therapist Tracy Detwiler and Psychiatrist Dr. Linda Griffith 

(Treatment Records from 2012– 2015) 

Therapist Tracy Detwiler, PA-C, reported that the claimant was “doing well” with 

treatment (Exhibit 50F at 31). It was reported that the claimant had a boyfriend 

with whom she was going out to eat but that they had broken up. Even so, the 

claimant reported “doing very well” in terms of her mental status (Exhibit 50F at 

7).

Ms. Detwiler assessed the claimant’s mental functioning capabilities on October 1, 

2012 (Exhibits 30F at 2–3 and 32F). According to Ms. Detwiler, the claimant’s 

social functioning capabilities are “markedly” impaired in all respects (i.e., an 

inability to function from 26 percent to 50 percent of the time during any given 

work day or work week). Her ability to tolerate customary work pressures is also 

“markedly limited.” The claimant would likely miss work five or more days per 

month due to her impairment in the estimation of Ms. Detwiler. Ms. Detwiler 

indicated that the claimant’s ability to maintain sustained concentration and 

persistence is “moderately limited” (i.e., an inability to function from 11 percent to 

25 percent of the time during any given work day or work week). Her ability to 

respond appropriately to changes in work setting and to behave predictably and 

reliably and in an emotionally stable manner are both “markedly” limited (Exhibit 

32F at 2).

Another (similar) assessment was completed by Ms. Detwiler and co-signed by 

Linda Griffith, M.D., a psychiatrist, on June 11, 2015 (Exhibit 45F). In this 

assessment, it was reported that the claimant’s functional capabilities were 

compromised to an even greater (i.e., “extreme”) extent. For example, the 

claimant’s ability to work in coordination with other persons without distracting 

them or exhibiting behavioral extremes and her ability to respond appropriately to 

co-workers and peers were both characterized as “extremely” impaired (i.e., an 

inability to function over 50 percent of a given work day or work week). In all 

other respects (with the exception of ability to maintain personal appearance and 

hygiene which was rated as “moderately” limited), the claimant’s ability to 

maintain concentration and her adaptability were rated as “markedly” or 

“extremely” impaired (Exhibit 45F at 2–3).

(Tr. 807–08).

2. Therapist Ann Nash (2012 Assessment)

Ann Nash, PC, (a therapist with Consolidated Care), completed an assessment of 

the claimant’s mental functioning capabilities on July 20, 2012 (Exhibit 15F). Ms. 
5

Nash concluded that the claimant’s social interaction capabilities are all “markedly”

impaired. Except for the ability to carry out instructions and complete tasks 

independently (which Ms. Nash rated as “moderately” impaired), the claimant’s 

capacity to sustain concentration and persistence was rated as “markedly” impaired 

in all respects. The claimant’s capacity for adaptability was rated as “markedly”

limited in all respects with the exception of ability to remember locations, 

procedures and instructions and ability to be aware of normal hazards and take 

necessary precautions both of which were rated as “moderately” limited (Exhibit 

15F at 3). Ability to cope with stress was rated as “markedly” limited and, like Ms. 

Detwiler before her, Ms. Nash indicated that the claimant would likely miss work 

five or more days per month due to her impairment (Exhibit 15F at 4).

(Tr. 808).

3. Light the Way Christian Counseling Center and “A Friend’s House” 

Residential Program (Treatment Records from 2010–2012) 

The claimant was treated at the “Light the Way Christian Counseling Center” from 

2010–2012 for “interpersonal conflict in her work setting that ultimately resulted 

in her termination” (Exhibits 3lF at 2 and 5lF). The claimant apparently “developed 

a close relationship” with a client while working as a home-health aide but her 

feelings were not reciprocated and she “engaged in some dangerous behaviors that 

frightened” both the claimant and the client. The claimant’s actions reportedly 

“crossed ethical practice boundaries” (Exhibit 3lF at 2). A treating therapist, 

Angelia Parsons, MSW, LISW, reported that the claimant decided that a residential 

program might be best for her and she shifted her treatment to “A Friend’s House”

(Exhibit 3lF at 2).

A report was taken from Dixie Gerber, the claimant’s “advocate” at “A Friend’s 

House” on June 22, 2011, concerning the claimant’s usual activities (see Exhibits 

1lF and 6E). Ms. Gerber indicated that she met with the claimant once a week 

during which time she counseled the claimant. Ms. Gerber indicated that the 

claimant enjoyed doing crafts and reading at the library. She participated in group 

activities such as swimming, exercising, walking and playing video games. The 

claimant cleaned her own room and did other assigned chores. The claimant 

demonstrated the capacity to work independently. She exhibited no behavior 

problems. Initial instructions sometimes needed to be explained and clarified to 

insure that the claimant understood. The claimant was sometimes “awkward” in 

social interactions but she socialized better with older individuals. She was 

somewhat superficial in her interactions but her behavior was always appropriate. 
6

The claimant interacted appropriately with other individuals while a resident at “A 

Friend’s House” in Indiana from March 30, 2011, until June 29, 2011 (Exhibit 11F). 

The claimant “had a hard time accepting responsibility” but she “was willing to 

work on goals” and was found to have the mental capacity to take part in the 

program offered by that organization (Exhibit 11F). However, the claimant later 

decided that she did not wish to continue with the program and she was discharged 

at her own request (Exhibit 11F).

(Tr. 808–09).

4. “Recovery Zone” Peer Support Center (Treatment Records from 

2012–2014) 

Thereafter, following her relocation to Ohio, the claimant became involved with 

the “Recovery Zone” –“a Certified Peer Support Center through the State of Ohio”

(Exhibits 48F and 49F). This organization was described as a “safe haven for those 

in metal [sic] health and drug and alcohol recovery, who are in need of socialization 

without stigma or prejudice” (Exhibit 48F at 2). “Recovery Zone provides a 

supportive environment set to assist those coping with mental illness and addiction 

through increased knowledge and understanding of specific illnesses, treatments 

and medications in the quest for recovery” (Exhibit 48F at 2). It was noted that the 

claimant was not actually treated, per se, through this organization which “is a place 

to learn skills and share ideas to cope and deal with the different aspects of everyday 

life” (Exhibit 48F at 2). The claimant was capable of leading a peer support group 

herself every Monday in late 2014 and she was doing art projects (Exhibit 49F at 

1, 17 and 29). It was reported that psychotropic medication had been “very helpful” 

and that the claimant exhibited a “much more stable” mood (Exhibit 49F at 25). 

The claimant was driving a van for the Recovery Zone (Exhibit 49F at 17 and 21).

(Tr. 809).

5. Psychiatrist Dr. Sudhir Dubey (2007 Examination)

The claimant was examined by psychologist Sudhir Dubey, Psy.D., on March 28, 

2007 (Exhibit 1F). At the time of this examination, the claimant was doing parttime work as a babysitter. She was looking for work through an agency as well. 

The claimant was cooperative and pleasant. Her speech was coherent. Thoughts 

were logical and goal-directed. Affect was appropriate. Emotional reactions were 

within normal limits. The claimant denied mood swings. She denied feelings of 

guilt, hopelessness or helplessness. She denied feelings of anhedonia and suicidal 

ideation. The claimant denied feelings of panic or anxiety attacks. The claimant 

was fully oriented and alert. She denied any difficulty concentrating or with 

memory. Her daily activities included doing household chores and babysitting. 
7

She was able to manage her own financial affairs. She attended church and Bible 

study sessions. Reasoning, insight and judgment were appropriate. WAIS-III test 

results included a Full-Scale IQ of 74, Performance IQ of 75 and Verbal IQ of 76 

(Exhibit 1F at 7). The claimant reported that she enjoyed reading and walking. She 

was able to drive an automobile. She shopped. Dr. Dubey diagnosed personality 

disorder NOS and borderline intellectual functioning. Even so, Dr. Dubey found 

that the claimant’s mental ability to understand, remember and follow instructions 

was only mildly impaired. The claimant’s ability to maintain attention, 

concentration, persistence and pace to perform simple repetitive tasks was mildly 

impaired. Dr. Dubey found that the claimant’s ability to relate to other persons was 

not impaired. Her ability to cope with stress was only mildly impaired. Dr. Dubey 

assigned the claimant a GAF score of “71” (Exhibit 1F at 5). A GAF score of “71” 

is indicative of (at worst) only symptoms that are “transient and expectable 

reactions to psychological stressors” and “no more than slight impairment in social, 

occupational, or school functioning” (DSM IV-TR at 32-34). . . .

(Tr. 809–10).

6. Psychologist Dr. Sherwin Kepes (2011 Examination)

Another psychological examination was conducted on June 14, 2011, by Sherwin 

Kepes, Ph.D. (Exhibit 8F). At the time of this examination, the claimant was 

residing at a residential facility (A Friend’s House). She was involved with various 

teaching groups. She did assigned chores and she socialized with other residents. 

The claimant responded to questions in a relevant and coherent manner. She 

indicated that she enjoyed socializing with friends, reading and watching television. 

In fact, when asked what gives her pleasure, she responded “being with other 

people.” The claimant was cooperative. She was alert and oriented. Results 

obtained by Dr. Kepes yielded findings that did “not suggest significant issues in 

[the claimant’s] level of intellectual functioning.” In the opinion of Dr. Kepes, the 

claimant’s mental status was stable. He diagnosed recurrent major depression (with 

a provisional diagnosis of borderline intellectual functioning). Dr. Kepes assigned 

the claimant a GAF score of “60” (Exhibit 8F at 5). A GAF score of “60” is 

indicative of “moderate” symptoms but is at the borderline of the range of 

psychological symptom severity indicative of only “mild” symptoms (DSM I VTR at 32-34).

(Tr. 810). 

7. Treating Physician Dr. Charles Kratz (2012 Assessment)

Treating family physician Charles Kratz, M.D., (see Exhibit 46F at 2), completed 

an assessment of the claimant’s mental capabilities (Exhibit 14F at 4-6). According 
8

to Dr. Kratz, the claimant “is really mostly disabled from a depression/mental 

health standpoint which I feel very much limits her” (Exhibit 14F at 3). He 

characterized the claimant’s mental functioning capabilities as being, primarily, 

“moderately” limited with a few areas of “marked” limitation (such as the ability 

to process subjective information accurately and to use appropriate judgment; the 

ability to perform at production levels expected by most employers; and the ability 

to behave predictably and reliably and in an emotionally stable manner) (Exhibit 

14F at 5). Ability to cope with stress was rated as “moderately” impaired (Exhibit 

14F at 6).

(Id.).

8. Psychologist Dr. Joseph Pressner (2011 Assessment)

Psychologist Joseph Pressner, Ph.D., evaluated the claimant’s mental condition 

based on the evidence of record without examining the claimant on behalf of the 

Division of Disability Determination (DDD) on June 22, 2011 (Exhibits 9F and 

10F). In the opinion of Dr. Pressner, the claimant has “severe” mental impairments 

of organic mental disorder, affective disorder and anxiety-related disorder. The 

claimant experiences “moderate” limitation in her ability to do activities of daily 

living. She experiences “moderate” limitation in her ability to maintain social 

functioning. The claimant experiences “mild” limitation in her ability to maintain 

concentration, persistence or pace. She did not experience repeated episodes of 

psychological decompensation each of extended duration in the relevant past in the 

opinion of Dr. Pressner. Dr. Pressner reported that the claimant would be able to 

do unskilled tasks. She would be able to maintain at least superficial contact with 

co-workers and supervisors (Exhibit l0F at 3).

(Id.).

9. Psychologist Dr. Caroline Lewin (2012 Assessment)

Psychologist Caroline Lewin, Ph.D., evaluated the claimant’s mental condition 

based on the evidence of record without examining the claimant on behalf of the 

Division of Disability Determination (DDD) on January 9, 2012 (Exhibits 5A at 7-

8 and 6A at 7-8). In the opinion of Dr. Lewin, the claimant has “severe” mental 

impairments of affective disorder, personality disorder and borderline intellectual 

functioning. The claimant experiences “moderate” limitation in her ability to do 

activities of daily living. She experiences “moderate” limitation in her ability to 

maintain social functioning. The claimant also experiences “moderate” limitation 

in her ability to maintain concentration, persistence or pace. She experienced one 

or two episodes of psychological decompensation each of extended duration in the 

relevant past in the opinion of Dr. Lewin. In the opinion of Dr. Lewin, the claimant 

could perform simple to some moderately routine tasks that do not require fast pace 
9

or strict production quotas or significant interaction with other persons (Exhibit 6A 

at 9). 

(Tr. 810–11). 

10. Bureau of Vocational Rehabilitation and Educational Records 

In 2012, Plaintiff received services, including computer training and job coaching, 

from the Bureau of Vocational Rehabilitation (“BVR”). BVR records show that Plaintiff 

has limited computer schools. (Tr. 287–88). These records also show that Plaintiff 

exhibited no unusual behaviors, was pleasant to be around, and asked appropriate 

questions. (Tr. 301). She retained instructions, did not require undue prompting, and 

exhibited no difficulty completing assigned tasks. (Id.). Employer feedback notes indicate

that Plaintiff caught on quickly and met expectations. (See, e.g., Tr. 303, 305). Plaintiff 

displayed a friendly disposition and did not have difficulty completing clerical work, (Tr. 

305), but struggled with typing skills, (Tr. 309).

Plaintiff’s educational records show that Plaintiff struggles with math but can read 

at the 11th grade level or higher. (Tr. 266). Plaintiff graduated from high school and 

expressed interest in post-secondary education. (Tr. 268). 

C. The ALJ’s Decision

The ALJ found that Plaintiff met the insured status requirements of the Social Security Act 

through December 31, 2015 and had not engaged in substantial gainful employmentsince February 

3, 2011, the alleged disability onset date. (Tr. 805). The ALJ determined that Plaintiff suffered 

from the following severe impairments: obesity, residuals of right ankle surgery, obstructive sleep 

apnea, depressive disorder, anxiety disorder, personality disorder, and borderline intellectual 

functioning. (Id.). The ALJ, however, found that none of Plaintiff’s impairments, either singly or 

in combination, met or medically equaled a listed impairment. (Tr. 818). 
10

As to Plaintiff’s residual functional capacity (“RFC”), the ALJ opined:

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

light work as defined in 20 CFR 404.1567(b) and 416.967(b): She can lift and carry 

up to 20 pounds occasionally and ten pounds frequently. Postural activities (i.e., 

climbing stairs or ramps, balancing, stooping, kneeling, crouching or crawling) can 

be done no more than occasionally. The claimant cannot climb ladders, ropes, or 

scaffolds. She should not be exposed hazards such as dangerous machinery or 

working at unprotected heights. The claimant can use foot controls on the right no 

more than occasionally. She is limited to performing simple, repetitive tasks 

involving low stress (i.e., no strict production quotas or fast pace and only routine 

work with few changes in the work setting). The claimant should have no contact 

with the public as part of job duties. She should have only occasional contact with 

co-workers and supervisors. The claimant should not be expected to do tasks 

involving teamwork or requiring close (i.e., “over-the-shoulder”) supervision.

(Tr. 820)

The ALJ weighed the opinion evidence and ultimately found: 

Consideration of the entire record leads to the conclusion that the opinion evidence 

presented by Dr. Kratz (as well as that supplied by Ms. Nash, Ms. Detwiler and Dr. 

Griffith) is excessively pessimistic and entitled (in some respects) to little-or-no 

weight. There is no logical or even reasonable basis in the record to support a 

finding that the claimant experiences more than “moderate” limitation in any aspect 

of her mental functioning capabilities. A finding that the claimant experiences 

“marked” or even “extreme” limitation in her mental functioning capabilities is 

neither well supported by medically acceptable clinical and laboratory diagnostic 

techniques nor consistent with other substantial evidence in the case record.” 

(Tr. 815). 

As a result, the ALJ concluded that Plaintiff has “mild “limitations in her ability to do 

activities of daily living, “moderate” limitations in her ability to maintain social functioning, and 

“moderate” limitations in her ability to maintain concentration, persistence or pace. (Tr. 817–18). 

Finally, after careful evaluation of the record, the ALJ concluded that “[t]he extent of (physical 

and mental) impairment alleged by the claimant is unsubstantiated by convincing objective 

medical evidence or clinical findings.” (Tr. 824). 
11

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 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 expressly raises just one error to the Court. (Doc. 10). Plaintiff seems to take 

issue with the ALJ’s treatment of the opinion evidence but ultimately argues that substantial 

evidence does not support the ALJ’s decision. The Court considers both assertions. 

A. Opinion Evidence

Turning first to the ALJ’s evaluation of the opinion evidence, Plaintiff asserts that the ALJ 

“tried to create a variance in a record where no such variance exists.” (Doc. 10 at 15; see also

Doc. 15 at 2 (“Ms. Kennedy’s argument is that the overwhelming majority of opinion evidence, 

including every treating and examining source after the alleged onset date documented greater 

functional restrictions than accounted for by the ALJ. Ms. Kennedy’s argument is that the ALJ 

incorrectly described these opinions as consistent with one another as a means to discredit 
12

them.”)). 

In framing her argument, Plaintiff relies on favorable medical records and alleges that the 

ALJ both relied on “carefully selected records” in order to create the appearance of inconsistency 

and also mischaracterized the opinion evidence. (Doc. 10 at 13–14). More specifically, Plaintiff 

states that the ALJ should not have relied on the opinions of Dr. Dubey, a one-time examining 

source, or those of the state agency psychologists because those opinions were outdated and 

therefore not reflective of the entire record. Plaintiff argues instead that the ALJ should have relied 

on the opinions of her counselors and treating physician. (Id. at 10–12). 

To start, the Undersigned rejects Plaintiff’s suggestion that the ALJ purposefully created 

inconsistencies in the record. The ALJ carefully detailed numerous inconsistencies throughout the 

record. For example, the ALJ found Plaintiff’s daily activities to be inconsistent with Plaintiff’s 

alleged impairments (Tr. 824); the ALJ found Plaintiff’s conservative treatment history to be 

inconsistent with her alleged impairments (Tr. 825–26); and the ALJ found reports in the record 

detailing Plaintiff’s social behavior to be inconsistent with her alleged impairments (Tr. 814–15). 

It is the ALJ’s function to resolve inconsistencies and conflicts in the medical evidence, see King 

v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984), and the record reveals that the ALJ properly 

considered the totality of the evidence in the record in reaching her conclusion.

Moreover, Plaintiff has not shown reversible error regarding the ALJ’s treatment of the 

individual opinions. Plaintiff argues that the ALJ should not have “us[ed] Dr. Dubey’s opinion as 

contrary evidence” because his opinion predates the alleged onset date. (Id. at 13). But Plaintiff 

mischaracterizes the ALJ’s opinion. The ALJ expressly acknowledged that Dr. Dubey’s opinion 

related to a remote time period and was therefore of limited relevance. (Tr. 810 n.2 (“It is 

acknowledged that the examination conducted by Dr. Dubey was done in the remote past (2007)—
13

well before the alleged disability onset date. Nonetheless, the findings of Dr. Dubey provide 

insight into the background of the claimant’s condition and are, therefore, deemed relevant to at 

least a limited extent.”)). Accordingly, Plaintiff has shown no error in this regard; the ALJ was 

required to consider all of the opinion evidence and, consistent with that responsibility, properly 

weighed Dr. Dubey’s opinion, keeping in mind its potentially limited value. 

Similarly, the ALJ did not err in her evaluation of the state agency psychologists’ opinions. 

The ALJ recognized that the psychologists did not personally examine Plaintiff, and contrary to 

Plaintiff’s suggestion otherwise, the ALJ was not required to reject their opinions because they did 

not have access to the entire record. Plaintiff states only that “[t]here was a plethora of evidence 

that was submitted after their opinions were formulated” but does not cite specific evidence. (Doc. 

10 at 14). Yet, because the ALJ provided a detailed review of the medical records, including those 

dated after the state agency psychologists’ opinions, Plaintiff has shown no error. See, e.g., 

McGrew v. Comm’r of Soc. Sec., 343 F. App’x 26, 32 (6th Cir. 2009) (“McGrew also argues that 

the ALJ improperly relied on the state agency physicians’ opinions because they were out of date 

and did not account for changes in her medical condition. It is clear from the ALJ’s decision, 

however, that he considered the medical examinations that occurred after [the state agency 

physician’s] assessment . . . and took into account any relevant changes in McGrew’s condition”). 

Nor did the ALJ err in her assessment of Dr. Kepes’ opinion. For this point, Plaintiff argues 

that the ALJ mischaracterized Dr. Kepes’ opinion. (Doc. 10 at 13 (“[T]he ALJ claimed that Dr. 

Kepes ‘saw evidence of no worse than ‘moderate’ functional limitations.’ However, upon review 

of Dr. Kepes’ examination report, there is no evidence that Dr. Kepes limited Ms. Kennedy to no 

worse than ‘moderate’ functional limitations.”) (citations omitted)). The Undersigned finds the 

opposite is true. Plaintiff states that the ALJ erroneously relied on only Dr. Kepes’ reported GAF 
14

score of 60. But, the quote at issue—that “one-time examining psychologist Dr. Kepes who (more 

recently) saw evidence of no worse than ‘moderate’ functional limitation”— is merely a summary 

of the ALJ’s longer analysis of Dr. Kepes’ opinion. Indeed, earlier in her opinion, the ALJ 

thoroughly explained Dr. Kepes’ treatment records. (See supra at 7 (quoting Tr. 810)). When 

read in context, it is clear that the ALJ provided more than adequate support for her assessment of 

Dr. Kepes’ opinion. Plaintiff has shown no error in this regard. 

Finally, the ALJ did not err in her treatment of treating physician Dr. Kratz’s opinion. 

While Plaintiff wants the ALJ to accept in full the limitations posed by her counselors and treating 

physician, Dr. Kratz, the ALJ found those opinions to be unsupported by the record and articulated 

good reasons for concluding so. Specifically, the ALJ noted that Dr. Kratz is not a mental health 

specialist; compelling evidence from mental health providers show less severe limitations; Plaintiff 

has been able to work in the past despite mental health issues; and medication and counseling have 

been effective. (See also supra at 7–8 (quoting Tr. 815)).

As noted previously, the basis for the Court’s remand order was that the prior 

decision of February 22, 2013, did not adequately evaluate opinion evidence 

provided by treating source Dr. Kratz (see Exhibit 9A at 17). Dr. Kratz is a family 

physician and not a specialist in mental disorders (see Exhibit 46F). Compelling 

evidence provided by psychologists and psychiatrists, for the most part, describes 

possible “moderate” functional limitation as a result of a mental impairment but not 

any greater degree of limitation and certainly not an inability to function in any type 

of employment environment as suggested by Dr. Kratz. In fact, the claimant worked 

on a van driver during 2012, 2013 and 2014, albeit minimal earnings (see Exhibit 

18D). She has worked at least a few years at substantial gainful activity in the past 

as well despite a personality disorder and the questionable borderline intellectual 

functioning. Mental health treatment records in particular and the overall evidence 

of record in general do not document a mental impairment of a severity that would 

be expected to render an individual disabled from all work activity over any 

extended period of time. Psychotropic medication and counseling have been 

effective in alleviating the claimant’s symptoms of depression and anxiety. It

appears that the claimant was quite functional during the relevant past (except 

possibly during two relatively brief episodes of psychological symptom 

exacerbation in 2011 (two hospitalizations in February 2011 brought about by 

situational factors, including homelessness–see Exhibits 2F and 3F and4F at 13; 
15

and some follow-up care–7 F). The claimant, no doubt, was having severe stressors 

at the time of the alleged onset date. However, subsequent evidence shows 

considerable improvement with treatment, including medications and nothing as 

severe as at that period.

(Tr. 815; see also Tr. 816 (explaining why the record does not establish, despite opinions from the 

record to the contrary, that Plaintiff experiences more than “mild” limitations in her ability to do 

activities of daily living); Tr. 816–17 (explaining why the record does not establish more than 

“moderate” limitations in Plaintiff’s capacity for social interaction and mental functioning); Tr. 

817–18 (explaining why the record establishes no more than “moderate” limitations in Plaintiff’s 

ability to maintain concentration, persistence or pace)).

B. Substantial Evidence 

At base, although Plaintiff discusses the ALJ’s analysis of the opinion evidence, Plaintiff’s 

cumulative argument is that substantial evidence exists to support a finding that Plaintiff is 

disabled. (See, e.g., id. at 16 (“Aside from the numerous sources agreeing with that the above 

limitations exist, the record provides substantial support for the limitations”); id. at 17 (“Here, the 

record does not lack evidence to support the above-mentioned limitations. The record contains 

evidence documenting the fact that Ms. Kennedy can become easily overwhelmed and frustrated 

. . . These are the exact types of notes and evidence that would support the limitations mentioned 

above”); id. at 15–17 (arguing that the record supports the opinion that Plaintiff would likely miss 

work more than five days a month and that her mental health would likely deteriorate if placed 

under the stress of full-time employment.)). 

Plaintiff’s argument reflects a misconception of the standard of review applicable to the 

ALJ’s decision. The question the Court must answer is whether substantial evidence supports the 

ALJ’s conclusion that Plaintiff is not disabled under the Regulations. Winn, 615 F. App’x at 320 

(holding that courts are “limited to determining whether the Commissioner’s decision is supported 
16

by substantial evidence and was made pursuant to proper legal standards”). “[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, 

486 F.3d at 241 (6th Cir. 2007) (quoting Cultip, 25 F.3d at 286). “If substantial evidence supports 

the Commissioner’s decision [courts must] defer to that finding even if there is substantial 

evidence in the record that would have supported an opposite conclusion.” Longworth v. Comm’r 

Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005) (citation and quotations omitted). 

Because that is what occurred here, the Court must defer to the ALJ’s findings. In her 

decision, the ALJ cited substantial evidence supporting her conclusion. (See, e.g., Tr. 816 

(explaining why the record does not establish, despite opinions from the record to the contrary, 

that Plaintiff experiences more than “mild” limitations in her ability to do activities of daily living); 

Tr. 816–17 (explaining why the record does not establish more than “moderate” limitations in 

Plaintiff’s capacity for social interaction and mental functioning); Tr. 817–18 (explaining why the 

record establishes no more than “moderate” limitations in Plaintiff’s ability to maintain 

concentration, persistence or pace) Tr. 824 (explaining why Plaintiff’s daily activities are 

inconsistent with Plaintiff’s alleged impairments); Tr. 825–26 (detailing why Plaintiff’s treatment 

history is inconsistent with a finding of disability)). Although Plaintiff cites evidence purportedly 

showing a different result, she has not shown that the ALJ’s conclusion was outside the ALJ’s 

permissible “zone of choice” that grants the ALJ discretion to make findings without “interference 

by courts.” Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).

Taking into account all that the ALJ considered, substantial evidence supports her

determination.
17

IV. CONCLUSION

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

Statement of Errors (Doc. 10) and AFFIRM the Commissioner’s decision.

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: July 1, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE