UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

AMY L. HURLBUT, 

 

 Plaintiff, 

 Case No. 2:18-cv-402 

 v. JUDGE JAMES L. GRAHAM 

 Chief Magistrate Judge Elizabeth P. Deavers 

 

COMMISSIONER OF SOCIAL 

SECURITY, 

 

 Defendant. 

 

REPORT AND RECOMMENDATION 

 Plaintiff, Amy L. Hurlbut, brings this action under 42 U.S.C. § 405(g) for review of a 

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

for disability insurance benefits and supplemental security income. This matter is before the 

United States Magistrate Judge for a Report and Recommendation on Plaintiff’s Statement of 

Errors (ECF No. 14), the Commissioner’s Memorandum in Opposition (ECF No. 20), and the 

administrative record (ECF No. 9). Plaintiff did not file a Reply. For the reasons that follow, it 

is RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the 

Commissioner’s decision be AFFIRMED. 

I. BACKGROUND

 In April 2014, Plaintiff filed applications for both supplemental security income and 

disability insurance benefits, alleging that she had been disabled since March 30, 2014. (R. at 

249–64.) Plaintiff’s application was denied initially and upon reconsideration. (R. at 152–78.) 

Plaintiff sought a de novo hearing before an administrative law judge. (R. at 179–80.) 
2 

Administrative Law Judge Carrie Kerber (“ALJ”) held a hearing on February 21, 2017, at which 

Plaintiff, who was represented by counsel, appeared and testified. (R. at 48–90.) On March 30, 

2017, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the 

Social Security Act. (R. at 25–40.) On February 23, 2018, the Appeals Council denied 

Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final 

decision. (R. at 1–7.) Plaintiff then timely commenced the instant action. 

II. HEARING TESTIMONY1

A. Plaintiff’s Testimony 

Plaintiff testified at the administrative hearing that she was thirty-six years old on the date 

of the administrative hearing and that she was approximately five feet, one inch tall, and weighed 

approximately 185 pounds. (R. at 55.) Plaintiff lives with her mother and step-father. (R. at 

56.) Plaintiff has her driver’s license and drives to get groceries “or go to the food place. The 

Job and Family Services or the Social Security.” (Id.) Plaintiff receives Medicaid assistance. 

(R. at 56–57.) 

Plaintiff received a college degree as a Certified Nursing Assistant and was certified in 

Missouri and North Carolina where she worked as a nursing assistant. (R. at 57, 60–62.) Before 

she became certified, she worked as a home health aide. (R. at 61–62.) Plaintiff also attended 

school to become a physical therapy assistant but did not finish that degree. (R. at 57.) Plaintiff 

worked at Walmart as a stock clerk and a deli worker. (R. at 58–60.) 

Plaintiff testified about her typical day and explained that she has difficulty getting out of 

bed sometimes. (R. at 64–65.)2

 

1

 The Undersigned limits the analysis of the evidence and the administrative decision to the 

issues raised in the Statement of Errors. 

2 This testimony is discussed in detail in the analysis. 
3 

Plaintiff testified that her biggest problems are her fatigue and constant pain. (R. at 69.) 

Although she has pain everywhere, her pain is located mostly in her upper body. (Id.) At the 

time of the hearing, Plaintiff was taking Paxil for anxiety, panic attacks, and headaches, and 

taking ibuprofen for headaches. (R. at 70.) She stopped taking other medications because they 

made her heart race and made her shake. (Id.) 

 Plaintiff sometimes attends religious services, attending approximately once a month. (R. 

at 72.) She cannot go to the morning services because of problems of getting out of bed. (Id.) 

Plaintiff testified that she spends the entire day in bed approximately four times a month. (R. at 

72–73.) 

 Plaintiff is able to sweep with a broom and dust pan with a long handle for approximately 

twenty minutes. (R. at 66.) Plaintiff prepares meals in the microwave for herself and does her 

own grocery shopping. (Id.) When she is at the grocery store, most of the times she walks but 

she will use a motorized chair if she has to walk more than thirty minutes. (R. at 66–67.) 

Plaintiff does her own laundry but does not carry the laundry basket down to the basement where 

the front-loading laundry machine is located. (R. at 67–68.) Plaintiff is able to sit and fold 

laundry. (R. at 69.) Plaintiff used to help with yard maintenance by picking up sticks, mowing, 

weeding, cleaning gutters, but has not done that since her symptoms flared up around 2014. (R. 

at 68.) 

 Plaintiff reads magazines and books for entertainment but many times has to re-read what 

she has read. (R. at 73–74.) She testified that she has the same problem watching television or 

movies and will space out and not know what is going on in the show. (R. at 74.) The previous 

year, Plaintiff went with her mother who drove to North Carolina. (R. at 74–75.) She was there 

for about a week and “pretty much just chilled there.” (R. at 75.) She did not have the energy to 
4 

go shopping and keep up with everyone. (Id.) Plaintiff testified that when she returns from 

vacation she crashes and indicated that “I’ve had to learn not to push it all the time because I’ll 

end up in a bed and I get out.” (Id.) 

 Plaintiff goes to sleep around 2:00 or 3:00 in the morning and get up around 11:00 a.m. 

or 12:00 p.m. (R. at 76.) She naps between two and six hours a day depending on how tired her 

body is. (Id.) Plaintiff testified that she sometimes falls and is not sure if that is a result of a 

combination of fatigue and being dizzy. (R. at 79.) Plaintiff further testified that she never had 

fatigue before getting multiple sclerosis. (R. at 80.) 

B. Vocational Expert Testimony 

 Joseph Thompson testified as a vocational expert (“VE”) at the February 21, 2017, 

administrative hearing. (R. at 84–89.) The VE testified that Plaintiff’s past relevant work 

included a nursing assistant (very heavy as performed), deli worker, home health aide, and stock 

clerk, which is heavy as performed and semi-skilled position. (R. at 86.) 

 The ALJ proposed a series of hypothetical questions regarding a hypothetical individual 

with Plaintiff’s age, education, and vocational background. (R. at 86–89.) The VE testified that 

such an individual with the residual functional capacity (“RFC”) the ALJ ultimately assessed for 

(except with the ability to perform a full range of work at the light exertional level) could not 

perform Plaintiff’s past employment due to exertion and skill level. (R. at 86–87.) Such an 

individual with a sit/stand capability could, however, perform 140,000 light, unskilled jobs in the 

national economy, including the representative jobs of production inspector, packer, and 

assembler. (R. at 87.) The individual could also perform over 50,000 sedentary, unskilled jobs 

in the national economy, including representative jobs of bench worker, bonder, and assembler. 

(Id.) The VE testified that those jobs would not be available at either the light or sedentary 
5 

exertional level if the individual was to be absent from work four days per month. (R. at 87–88.) 

The VE further testified that the tolerance for being off task would be twenty percent, which 

would include scheduled breaks in the morning and afternoon, a thirty-minute lunch, and 

additional unscheduled breaks of one to two times per eight-hour shift. (R. at 88.) 

III. MEDICAL RECORDS 

 Douglas Woo, M.D., a neurologist, began treating Plaintiff on March 12, 2015. (R. at 

652–59.) Plaintiff presented with complaints of multiple sclerosis, complaining of fatigue, 

weight gain, falling asleep during the day, frequent nocturia, sleep disruption from pain, 

difficulty with bright lights, impaired night vision, dry mouth, shortness of breath, productive 

cough, presyncope, chronic constipation, pain in joints, depression, and headaches. (R. at 653–

54.) Upon examination, Dr. Woo noted no distress but multiple focal areas of pain to palpation 

over bilateral neck consistent with myofascial trigger points. (R. at 655.) Noted impressions by 

Dr. Woo included multiple sclerosis, myalgias due to myofascial trigger points and osteoarthritis 

in neck/skull base, and fatigue and memory loss. (R. at 656.) Dr. Woo recommended that she 

continue with her Tysabri infusions for her multiple sclerosis. (Id.) 

 On May 21, 2015, Plaintiff declined a Tysabri infusion, reporting that she had decided to 

discontinue her infusions. (R. at 647–48.) Upon her request, Dr. Woo spoke with Plaintiff and 

discontinuation paperwork was completed for Dr. Woo’s signature. (R. at 648.) 

 On January 24, 2016, Plaintiff presented to Dr. Woo for a check-up for her multiple 

sclerosis, reporting complaints of fatigue and pain in the back, neck, and shoulders. (R. at 664.) 

Since her last visit in March 2015, Plaintiff denied any symptoms of breakthrough clinical 

relapse or significant progressive neurologic decline. (R. at 665.) Dr. Woo noted that Plaintiff 

was not on any disease-modifying therapy for multiple sclerosis. (Id.) Plaintiff reported 
6 

increased fatigue with the cold weather. (R. at 666.) Upon examination, Dr. Woo noted multiple 

focal areas of pain to palpation over bilateral neck base consistent with myofascial trigger points 

but normal sensation, movement, strength, and gait and her multiple sclerosis was currently 

clinically stable. (R. at 668–70.) Dr. Woo also assessed that Plaintiff had immediate recall, 

working memory, and long-term memory intact. (R. at 668.) Dr. Woo noted that Plaintiff’s 

multiple sclerosis was currently clinically stable. (R. at 670.) Dr. Woo opined that her fatigue 

was likely multifactorial from a combination of multiple sclerosis, pain from myalgias, sleep 

disruption from pain, vitamin D deficiency, and mood disorder and that he would continue to 

monitor it. (Id.) He would defer starting any disease-modifying therapy for now because she 

was not currently interested in being on anything. (Id.) Dr. Woo noted that he would schedule a 

MRI of the brain. (Id.) 

 Upon examination on July 11, 2016, Dr. Woo again noted multiple focal areas of pain to 

palpation over bilateral neck and left upper back consistent with myofascial trigger points but 

normal sensation, movement, strength, and gait. (R. at 773–75.) Dr. Woo continued to defer 

starting any disease modifying therapy for Plaintiff’s multiple sclerosis. (R. at 775.) 

 On July 18, 2016, Dr. Woo completed a Mental Impairment Questionnaire. (R. at 782–

84.) Dr. Woo recorded diagnoses of attention deficit disorder / memory loss and multiple 

sclerosis. (R. at 782.) Dr. Woo opined that Plaintiff would be absent from work more than four 

days per month. (id.) Dr. Woo assessed marked limitation in her ability to perform six work 

activities. (R. at 783–84.) Dr. Woo assessed only moderate limitations in her ability to 

understanding, remember, and carry out very short and simple instructions and perform at a 

consistent pace without an unreasonable number and length of rest periods. (Id.) While he 

assessed Plaintiff with marked limitation/difficulty in maintaining concentration, persistence, or 
7 

pace, Dr. Wood determined that Plaintiff had no limitations in activities of daily living or in 

maintaining social functioning. (R. at 784.) 

 Plaintiff presented to Dr. Woo on December 7, 2016, with complaints of multiple 

sclerosis. (R. at 808–15.) Upon examination, Dr. Woo noted multiple focal areas of pain to 

palpation over bilateral neck base consistent with myofascial trigger points but normal sensation, 

movement, strength, and gait. (R. at 811–13.) Dr. Woo noted that Plaintiff’s language was 

fluent with intact repetition and comprehension and that her immediate recall, working memory, 

and long-term memory were intact. (R. at 812.) Dr. Woo performed a trigger point injection in 

connection to myalgia/myofascial pain. (R. at 813.) Dr. Woo noted that he would send for a 

repeat brain MRI and would defer starting Plaintiff on a disease-modifying therapy for her 

multiple sclerosis until the results are known. (R. at 814.) 

 On December 19, 2016, Dr. Woo complete a Multiple Sclerosis Residual Functional 

Capacity questionnaire. (R. at 801–06.) Dr. Woo identified several symptoms, including 

fatigue, balance problems, poor coordination, weakness, unstable walking, spasticity, bladder 

problems, pain, difficulty remembering, depression, emotional ability, difficulty solving 

problems, problems with judgment, and shaking tremor and/or speech/communication 

difficulties. (R. at 801.) Dr. Woo noted that Plaintiff did not have disorganization of motor 

function with sustained disturbance of gross and dexterous movement or of gait and station and 

did not have significant reproducible fatigue or motor function with substantial muscle weakness 

on repetitive activity demonstrated on physical examination. (R. at 802.) Dr. Woo noted that 

Plaintiff complained of a type of fatigue best described as lassitude rather than a fatigue of motor 

function and this kind of fatigue is typical of patients with multiple sclerosis. (Id.) Dr. Woo 

opined that Plaintiff’s experience of pain, fatigue, or other symptoms would constantly interfere 
8 

with her attention and concentration and that she was incapable of even “low stress” jobs. (R. at 

803.) According to Dr. Woo, Plaintiff could walk one to two city blocks without rest; sit for 

thirty minutes at a time for a total of less than two hours; stand for thirty minutes at a time for a 

total of less than two hours. (R. at 803–04.) Dr. Woo reported that Plaintiff needed a job that 

permits unscheduled breaks lasting five to ten minutes every thirty to sixty minutes and permits 

shifting positions at will from sitting, standing, or walking. (R. at 804.) Dr. Woo reported that 

Plaintiff’s legs should not be elevated with prolonged sitting. (Id.) Dr. Woo opined that Plaintiff 

could lift and carry ten pounds occasionally; could reach ten percent of the workday and perform 

fine and gross manipulation twenty percent of the workday; could stoop and crouch ten percent 

of the workday; and must avoid all exposure to noise, fumes, odors, dusts, gases, poor 

ventilation, and hazards. (R. at 805–06.) Dr. Woo further opined that Plaintiff’s impairments 

would likely produce “good days” and “bad days” and that she was likely to be absent from work 

more than four times a month. (R. at 806.) 

IV. ADMINISTRATIVE DECISION 

 On March 30, 2017, the ALJ issued her decision. (R. at 25–40.) The ALJ found that 

Plaintiff met the insured status requirements of the Social Security Act through June 30, 2019. 

(R. at 27.) At step one of the sequential evaluation process,3 the ALJ found that Plaintiff had not 

 

3

 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 404.1520(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant’s residual functional capacity, can the claimant 
9 

engaged in substantially gainful activity since her alleged onset date of March 30, 2014. (Id.) 

 At step two, the ALJ concluded that Plaintiff had the severe impairments of multiple 

sclerosis, obesity, depressive disorder, and post-traumatic stress disorder (“PTSD”). (R. at 28.) 

 The ALJ next concluded that that Plaintiff did not have an impairment or combination of 

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

Part 404, Subpart P, Appendix 1. (R. at 28.) 

 At step four of the sequential process, the ALJ assessed Plaintiff’s RFC as follows: 

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

claimant has the residual functional capacity to perform sedentary work as defined 

in 20 CFR 404.1567(a) and 416.967(a) except: occasionally climb ramps and stairs, 

balance, stoop, kneel, crouch, and crawl. She can never climb ladders, ropes, or 

scaffolds. Additionally, the claimant can have only occasional exposure to extreme 

heat or cold, humidity, vibration, and workplace hazards such as dangerous moving 

machinery and unprotected heights. She is limited to simple, routine tasks that are 

not fast-paced and should have no strict production quotas. Furthermore, the 

claimant’s work should be repetitive from day to day with few and expected 

changes. Finally, the claimant is limited to only occasional interaction with coworkers, supervisors, and the public with no conflict resolution, persuading others, 

or tandem tasks. 

(R. at 30.) 

 Relying on the VE’s testimony, the ALJ determined that even though Plaintiff is unable 

to perform her past relevant work, other jobs exist in the national economy that she can perform. 

(R. at 38–39.) She therefore concluded that Plaintiff was not disabled under the Social Security 

Act. (R. at 40.) 

 

 perform his or her past relevant work? 

 5. Considering the claimant’s age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. § 404.1520(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 
10 

V. STANDARD OF REVIEW 

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

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

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

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

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by 

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is 

defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant 

evidence as a reasonable mind might accept as adequate to support a conclusion.’” Rogers, 486 

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 

(6th Cir. 2007)). 
11 

VI. ANALYSIS 

 Plaintiff advances one contention of error. Plaintiff asserts that the ALJ erred in 

weighing the treating source opinion of Dr. Woo. (ECF No. 14 at 9–16.) Specifically, Plaintiff 

contends that the ALJ did not provide good reasons for the weight assigned to the opinion and 

failed to fairly consider the various factors outlined in 20 C.F.R. § 404.1527(c). (Id.) For the 

reasons that follow, the Undersigned finds Plaintiff’s challenges to the ALJ’s consideration and 

weighing of Dr. Woo’s opinions to be without merit. 

The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as 

“statements from physicians and psychologists or other acceptable medical sources that reflect 

judgments about the nature and severity of your impairment(s), including your symptoms, 

diagnosis and prognosis, what you can still do despite impairment(s), and your physical or 

mental restrictions.” 20 C.F.R. § 416.927(a)(2). 

 The ALJ generally gives deference to the opinions of a treating source “since these 

sources are likely to be the medical professionals most able to provide a detailed, longitudinal 

picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical 

evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. § 

416.927(c)(2). “An ALJ is required to give controlling weight to ‘a treating source’s opinion on 

the issue(s) of the nature and severity of [the claimant’s] impairment(s) ‘if the opinion ‘is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not 

inconsistent with the other substantial evidence in [the] case record.’” LaRiccia v. Comm’r of 

Soc. Sec., 549 F. App’x 377, 384 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2)) 
12 

(alterations in original); see also Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 

2009) (explaining the “treating physician rule”). 

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

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

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

weight: 

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

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

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

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

determining what weight to give the opinion. 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 
13 

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

within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 

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

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

opinion evidence within the written decision). 

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

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

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

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

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

Here, the ALJ considered Dr. Woo’s opinions and assigned them “some weight,” 

reasoning as follows: 

Douglas Woo, M.D., a treating provider since March 2015, completed a multiple 

sclerosis Questionnaire in December 2016 and noted symptoms including fatigue, 

balance problems, poor coordination, weakness, unstable walking, and problems 

with judgment and remembering (Exhibit 29F/2-3). He noted that the claimant did 

not have disorganization of motor function with sustained disturbance of gross and 

dexterous movement or of gait and station and did not have significant reproducible 

fatigue of motor function with substantial muscle weakness on repetitive activity 

demonstrated on physical examination (Exhibit 29F/3). However, he suggested 

that the claimant’s pain, fatigue, and other symptoms would constantly interfere 

with her attention and concentration and she was incapable of even low stress jobs 

(Exhibit 29F/4). Dr. Woo indicated that the claimant could walk 1 to 2 blocks 

without rest; sit for 30 minutes at a time for a total of less than 2 hours; stand for 

30 minutes at a time for a total of less than 2 hours; and needed an option to sit, 

stand, or walk at will (Exhibit 29F/4-5). He further stated that the claimant could 

lift and carry less than 10 pounds occasionally; could reach 10 percent of the 

workday and perform fine and gross manipulation 20 percent of the workday, each; 

could stoop and crouch 10 percent of the workday; and needed to avoid exposure 

to hazards (Exhibit 29F/6-7). Finally, Dr. Woo suggested that the claimant required 

unscheduled breaks every 30 to 60 minutes for 5 to 10 minutes and would be absent 

from work more than 4 times per month (Exhibit 29F/5, 7). Dr. Woo is a treating 

provider, but his limitations are not consistent with his examination findings, 

including an examination in December 2016 showing normal sensation, movement, 
14 

strength, and gait (Exhibits 19F; 21F; 26F; 30F/6-7). His limitations are also not 

consistent with the claimant’s testimony, such as her statement that she could sit 

for hours at a time. Therefore, Dr. Woo’s physical limitations are given only some 

weight. 

(R. at 35–36.) 

 As set forth above, Plaintiff argues that the ALJ did not provide good reasons for the 

weight assigned to Dr. Woo’s opinion and that the ALJ failed to fairly consider the various 

factors outlined in 20 C.F.R. § 404.1527(c). (ECF No. 14 at 9–16.) The Court addresses each 

argument in turn. 

A. “Good reasons” 

 Plaintiff argues that the ALJ’s proffered reasons for giving reduced weight to Dr. Woo’s 

opinion, namely, that Dr. Woo’s assessed limitations were inconsistent with his own examination 

findings and with Plaintiff’s hearing testimony, were not good reasons. (Id. at 11–15.) 

1. Normal examination findings 

 Plaintiff contends that the ALJ erred by relying on normal examination findings because 

her primary symptom of her multiple sclerosis is a debilitating fatigue known as lassitude that 

has no connection to normal findings of sensation, movement, strength, and gait. (Id. at 12–13.) 

Plaintiff therefore argues that normal findings in these areas “are irrelevant to the central issue in 

this case, which is the degree to which [she] is limited by her fatigue.” (Id. at 13.) 

 “[M]ultiple sclerosis is a progressive disease for which there is no cure” and “[t]he 

disease is subject to periods of remission and exacerbation.” Jones v. Sec’y of Health and 

Human Servs., No. 93-1958, 1994 WL 468033, at *3 (6th Cir. Aug. 29, 1994) (citations 

omitted); accord Tuohy v. Sec’y of Health and Human Servs., 1994 WL 454880, at *1 (6th Cir. 

1994) (“The disease [multiple sclerosis] is characterized by periods of exacerbation, in which the 

victim experiences acute aggravation of her symptoms, and periods of remission, in which the 
15 

victim may be able to function almost normally.”); Parish v. Califano, 642 F.2d 188, 193 (6th 

Cir. 1981) (“Multiple sclerosis is an incurable, progressive disease subject to [ ] periods of 

remission and exacerbation.”). “Nevertheless, in this circuit, multiple sclerosis is not per se 

disabling under the social security regulations.” Jones, 1994 WL 468033, at *3 (collecting 

cases); see also Headrick v. Sec’y of Health & Human Servs., No. 87-1939, 1988 WL 120897, at 

*2 (6th Cir. Nov. 14, 1988) (“In this case there is abundant objective medical evidence of the 

claimant’s multiple sclerosis. What is lacking, however, is medical evidence confirming the 

severity of her fatigue or demonstrating that her multiple sclerosis had reached a stage where it 

was reasonably likely to produce a degree of fatigue that could fairly be said to be disabling.”); 

Mannis v. Colvin, No. 3:12-cv-619, 2014 WL 652931, at *7 (E.D. Tenn. Feb. 20, 2014) 

(“Although the Plaintiff’s September 2009 MRI suggests the possibility of multiple sclerosis, a 

diagnosis alone ‘says nothing about the severity of the condition.’”) (citation omitted). 

 “In evaluating multiple sclerosis, or any other episodic disease, consideration should be 

given to the frequency and duration of the exacerbations, the length of the remissions, and the 

evidence of any permanent disabilities.” Wilcox v. Sullivan, 917 F.2d 272, 277 (6th Cir. 1990). 

Accordingly, “when a claimant with multiple sclerosis applies for social security benefits, it is 

error to focus on periods of remission from the disease to determine whether the claimant has the 

ability to engage in substantial gainful employment.” Jones, 1994 WL 468033, at *3; see also 

Wilcox, 917 F.2d at 278 (finding that “Wilcox should not be penalized because he had the 

courage and determination to continue working despite his disabling condition” and that the 

“Secretary erroneously relied on Wilcox’s activities during the periods of remission as evidence 

of his substantial gainful employment”); Myland v. Astrue, No. 1:08-cv-63, 2009 WL 5216067, 

at *12 (W.D. Mich. Dec. 29, 2009) (noting that “the lesson of Parish and Wilcox ‘is that multiple 
16 

sclerosis is a disease that requires a longitudinal evaluation’ and that the ALJ erred because ‘the 

period focused upon by the ALJ was a period of remission’”) (citations omitted). 

 Here, the ALJ thoroughly discussed Plaintiff’s treatment records addressing her multiple 

sclerosis and fatigue, implicitly considering any exacerbations, the length of the remissions, and 

the evidence of any permanent disabilities over her years of treatment. (R. at 32–33, 35–38.) 

The ALJ considered Plaintiff’s treatment in early 2014 through December 2016, detailing those 

visits, examination findings, and test results. (Id.) In doing so and concluding that Plaintiff was 

not disabled, the ALJ relied on normal examination findings throughout these years. (Id.) 

Specifically, while Plaintiff complained of pain and fatigue, examinations over the years, 

including up until a few months before the ALJ rendered her decision, revealed normal 

sensation, movement, strength, gait, reflexes, range of motion, motor skills, and coordination. 

(R. at 402, 440, 451, 462, 472, 503, 519, 526, 580, 600, 605, 609, 651, 656, 668–70, 773–75, 

787, 812–13.) While Plaintiff argues that these normal findings are not a “good reason” for 

assigning less weight to Dr. Woo’s opinion (ECF No. 14 at 13), the ALJ did not err in giving less 

weight to his opinion when considering these findings. Cf. 20 C.F.R. § 404.1527(c)(3)-(4) 

(requiring medical opinions be evaluated for supportability and consistency); James B. C. v. 

Comm’r of Soc. Sec’y, 2019 WL 1199834, at *5 n.4 (S.D. Ill. Mar. 14, 2019) (“That plaintiff 

suffered from fatigue as a common symptom of MS, however, tells nothing about how the 

symptom is debilitating for the plaintiff, or how it affects his ability to maintain competitive 

employment with sedentary limitations.”); Sparing v. Soc. Sec. Admin., No. 2:12-cv-1572, 2014 

WL 2527117, at *8, 10–11 (D. Nevada June 5, 2014) (finding that the ALJ appropriately rejected 

treating physician’s opinion where that opinion was not supported by objective evidence, 

including, inter alia, normal motor strength); Wood v. Astrue, No. 2:10-cv-132, 2011 WL 
17 

3510987, at * (E.D. Tenn. July 26, 2011) (affirming denial of benefits where, inter alia, “[m]ore 

tellingly, his [treating physician’s] treatment notes indicate normal muscle tone and strength, 

normal ranges of motion, and normal deep tendon reflexes. . . . These examinations were in 2007 

and 2008, the last being only 3 months before the ALJ rendered his decision”), adopted by 2011 

WL 3511042 (E.D. Tenn. Aug. 10, 2011); Simmons v. Astrue, 736 F. Supp. 2d 391, 402 (D. N.H. 

2010) (affirming denial of benefits where, inter alia, “[i]n the physical evaluations conducted by 

Simmons’ treating physicians she has consistently exhibited normal energy level, awareness, 

strength, muscle tone, reflexes, gait, etc.”). The ALJ’s decision to give less weight to Dr. Woo’s 

opinion because of, inter alia, normal examination findings enjoys substantial support in the 

record. Id.; see also 20 C.F.R. § 416.927(c)(2); Jones, 1994 WL 468033, at *3; Wilcox, 917 F.2d 

at 277; Headrick, 1988 WL 120897, at *2.

2. Plaintiff’s testimony 

 Plaintiff next contends that the ALJ did not fairly summarize her hearing testimony 

regarding her ability to sit. (ECF No. 14 at 13–15.) At the hearing, Plaintiff testified as follows 

about a typical day: 

A I wake up and it’s hard to get out of the bed. Sometimes I crawl out of bed. A 

lot of times I do. Until I get a I probably have a cup of coffee. I sit. I watch some 

TV. I’m very fatigued, as soon as I’m up. I’m very I’m very – I’m in a lot of pain. 

Once I -- not matter -- if I’m awake, I’m in pain. If I’m awake, I’m fatigued. So I 

try to wake up. It takes me, typically two or three hours, literally to try to focus on 

things. And then once I’m up, I try to get something little done. If I can get the 

energy to get up and do -- I don’t know, make a you know, make a thing of coffee. 

That’s work for me or if I -- if I want to sweep the floor, which I have, I do. That’s 

work for me. Once I’m done, just something that small, I’m ready to sit down 

again. I’m ready to collapse. My legs – 

Q Now, when you say I’m sorry. Go ahead. 

A My legs typically feel like Jell-O and like something is grabbing a hold of them 

and trying to hold me down. And I typically drag my feet and I get slack for that 

from people who don’t understand and they’ll say, why are you dragging your feet 
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all the time, and I’ll say, I don’t even notice that I’m doing it. It’s just because I'm 

that fatigued. My body -- I drag it everywhere, you know. You got to do what you 

got to do and life is very different for me now, than it used to be. I fight every day. 

Every day, I fight, so that I’m not in that bed all the time. Because if I didn’t fight 

that’s where I’d be and – 

(R. at 64–65.) 

 Plaintiff also testified as follows about how the position in which she spends the majority 

of her day: 

Q What position do you spend the majority of your day in? Are you sitting? Lying 

down? 

A With my legs up. 

Q In a recliner? 

A I wish I had one. No. Just the couch. Couch. 

Q Sitting on the couch with your legs up? 

A Yeah. I’m very fidgety because of the pain. It’s hard for me to become 

comfortable anywhere I sit. Littlest thing or things can make me hurt worse. I have 

to have – 

Q How can you normally sit at one time? 

A Well, I sit a lot. Several hours, but – 

Q You can sit for hours at one time? 

A But I’m typically moving all the -- you know, a lot because of the pain. And I 

have to switch my legs up and down, up and down. My legs are always – 

Q Okay. 

A -- hurting. 

(R. at 65.) 

 Plaintiff contends that the ALJ, when explaining why she gave less weight to Dr. Woo’s 

opinion, takes Plaintiff’s statements out of context and unfairly characterizes them as a 

“statement that she could sit for hours at a time.” (ECF No. 14 at 14 (citing R. at 36).) 
19 

Plaintiff’s assertion is not well taken. While the ALJ did note as Plaintiff contends that she could 

sit for hours at a time (see R. at 36), the ALJ also acknowledged Plaintiff’s fidgeting and 

movement. (R. at 31.) Notably, the ALJ specifically considered the entirety of Plaintiff’s 

testimony in this regard, noting that Plaintiff “can sit for a long time, but is fidgety due to pain 

and adjusts her positions.” (Id.) Accordingly, the ALJ fairly considered Plaintiff’s testimony 

regarding her ability to sit and the ALJ did not err when relying on this testimony in deciding to 

assign less weight to Dr. Woo’s opinion. 

B. Factors outlined in 20 C.F.R. § 404.1527(c)

 Finally, Plaintiff contends that the ALJ did not properly weigh the factors under 20 

C.F.R. § 404.1527(c). (ECF No. 14 at 15–16.) As noted above, if an ALJ does not give a 

treating source’s opinion controlling weight, the ALJ must apply certain factors in determining 

what weight to give the opinion, including the length of the treatment relationship and the 

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

the opinion, consistency of the opinion with the record as a whole, and the specialization of the 

treating source. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); see also 20 

C.F.R. § 404.1527(c); Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550 (6th Cir. 2010) 

(explaining that the ALJ’s reasoning “must be sufficiently specific to make clear to any 

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

and the reasons for that weight”) (internal quotation omitted). 

 Here, as discussed above, the ALJ thoroughly discussed Plaintiff’s treatment records with 

Dr. Woo as well as questionnaires completed by Dr. Woo. (R. at 32–33, 35–38.) In doing so, 

the ALJ implicitly considered the length of the treatment relationship and the frequency of 

examination, the nature and extent of Plaintiff’s treatment relationship with Dr. Woo, 
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supportability of Dr. Woo’s opinion, consistency of his opinion with the record as a whole, and 

Dr. Woo’s specialization. (Id.) As previously discussed, the ALJ nevertheless assigned less 

weight to Dr. Woo’s opinion because his limitations were inconsistent with Plaintiff’s normal 

findings and her hearing testimony. For these reasons, the ALJ properly applied the relevant 

Wilson factors and her decision enjoys substantial support in the record. 

VII. CONCLUSION

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

substantial evidence supports the ALJ’s decision denying benefits. Based on the foregoing, it is 

therefore RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the 

Commissioner’s decision be AFFIRMED. 

VIII. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

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

Recommendation will result in a waiver of the right to de novo review by the District Judge and 

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 
21 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, 

appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 

981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to 

specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation 

omitted)). 

Date: July 9, 2019 s/ Elizabeth A. Preston Deavers _______ 

ELIZABETH A. PRESTON DEAVERS 

 CHIEF UNITED STATES MAGISTRATE JUDGE