UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ERIC B. SMITH, 

Plaintiff, 

 Civil Action 2:18-cv-577 

 Judge George C. Smith 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

 

REPORT AND RECOMMENDATION

 

 Plaintiff, Eric B. Smith (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for 

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

application for a period of disability benefits and disability insurance benefits. This matter is 

before the undersigned for a Report and Recommendation on Plaintiff’s Statement of Errors 

(ECF No. 8), the Commissioner’s Response in Opposition (ECF No. 13), Plaintiff’s Reply (ECF 

No. 18), and the administrative record (ECF No. 7). 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 

Plaintiff protectively filed his application for a period of disability and disability 

insurance benefits on February 10, 2015. Plaintiff alleged a disability onset date of February 1, 

2015. Plaintiff’s application was denied initially on July 14, 2015, and upon reconsideration on 

November 17, 2015. Plaintiff sought a hearing before an administrative law judge. 
2 

Administrative Law Judge Jeannine Lesperance (the “ALJ”) held a hearing on September 28, 

2017, at which Plaintiff, represented by counsel, appeared and testified. Vocational expert 

Connie O’Brien-Heckler (the “VE”) also testified at the hearing. On December 7, 2017, the 

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

Security Act. On April 11, 2018, the Appeals Council denied Plaintiff’s request for review and 

adopted the ALJ’s decision as the Commissioner’s final decision. Plaintiff then timely 

commenced the instant action. 

In his Statement of Errors (ECF No. 8), Plaintiff raises two issues. Plaintiff first asserts 

that the ALJ erred in finding that his mental impairments were not severe. Plaintiff asserts that 

this error was not harmless because the ALJ failed to take his mental impairments into account in 

assessing his residual functional capacity (“RFC”) and in posing the hypothetical to the VE to 

determine whether he could perform his past work. Plaintiff next asserts that the ALJ failed to 

provide good reasons for discounting the opinion of his treating physician, Christopher 

Osbourne, D.O. (“Dr. Osbourne”), regarding his physical impairments. 

II. RELEVANT MEDICAL EVIDENCE 

A. Evidence Relating to Plaintiff’s Alleged Physical Impairments 

1. State-Agency Reviewing Physicians 

Gail Mutchler, M.D. (“Dr. Mutchler”), a reviewing physician for the social security 

administration, found that Plaintiff could occasionally lift and/or carry 20 pounds; frequently lift 

and/or carry 10 pounds; stand and/or walk about 6 hours in an 8-hour workday; and sit about 6 

hours in an 8-hour workday. (R. at 107.) Dr. Mutchler opined that Plaintiff was not limited in 

his ability to push and/or pull beyond his limitations in lifting and/or carrying. (R. at 108.) 
3 

She further found that Plaintiff could occasionally climb ramps/ stairs, stoop, and crouch; never 

climb ladders/ropes/scaffolds; and could frequently balance, kneel, and crawl. (Id.) Dr. 

Mutchler opined that Plaintiff was limited to frequent handling and fingering on the right side. 

(R. at 109.) She also opined that Plaintiff should avoid concentrated exposure to extreme cold 

and heat and should avoid all exposure to hazards such as machinery, heights, etc. (Id.) On 

reconsideration, reviewing physician Anton Freihofner, M.D., adopted the findings of Dr. 

Mutchler. (R. at 123-25.) 

2. Christopher Osbourne, D.O. 

Dr. Osbourne completed an evaluation form on Plaintiff’s behalf. (R. at 559-60.) He 

noted that he first treated Plaintiff on June 8, 2015, and last treated him on October 14, 2015. 

(R. at 559.) Dr. Osbourne diagnosed Plaintiff with low back pain, hypertension, lumber and 

cervical degenerative joint disease, and diabetes mellitus type 2. (Id.) Dr. Osbourne noted that 

on clinical examination, Plaintiff was ambulating with a cane, had positive straight-leg raising 

bilaterally, and tenderness to palpation. (Id.) He further noted that an MRI of Plaintiff’s 

lumbar spine revealed left foraminal narrowing at L5-S1 related to broad-based disc protrusion 

and that an MRI of Plaintiff’s cervical spine showed congenital spinal stenosis with degenerative 

changes and disc bulges. (Id.) He also cited to CT and EMG results from 2015. (Id.) Dr. 

Osbourne opined that Plaintiff would be unable to lift greater than 20 pounds; to stand and/or sit 

for over 1 hour at a time; and that Plaintiff has difficulty walking up stairs due to gait instability. 

(R. at 560.) 
4 

B. Evidence Relating to Plaintiff’s Alleged Mental Impairments 

1. Treating Physician, Boris Valdman, M.D. 

On March 12, 2014, Boris Valdman, M.D. (“Dr. Valdman”) diagnosed Plaintiff with 

depression. (R. at 400.) On July 24, 2014, he noted that Plaintiff had mood swings and 

anxiety. (R. at 393.) On January 28, 2015, Plaintiff reported that he was depressed and wants 

to sleep all the time. (R. at 388.) On February 4, 2015, Dr. Valdman noted that Plaintiff had 

abnormal mood and affect. (R. at 391.) 

2. Consultative Examiner Scott Olenick, Ph.D. 

 On June 17, 2015, Scott Olenick, Ph.D., (“Dr. Olenick”) performed a consultative 

psychological evaluation on Plaintiff related to his claim for disability benefits. (R. at 533.) 

On examination, Dr. Olenick noted that Plaintiff was alert and oriented to time, location, and 

person. (R. 536.) He noted, however, that Plaintiff “tended to lose track of [ ]his thoughts and 

not finish complete ideas verbally.” (Id.) Plaintiff denied any history of hallucinations. (Id.) 

Dr. Olenick found that Plaintiff’s “affect was sad and dysphoric, consistent with his reported 

mood.” (Id.) He further noted that Plaintiff “cried often during the evaluation when he 

discussed his brother’s death, his increasing health problems, and his inability to support his 

family.” (Id.) Dr. Olenick found Plaintiff’s cognitive functioning to be in the average range. 

(R. at 537.) 

Dr. Olenick diagnosed Plaintiff with moderate major depressive disorder, recurrent, with 

anxious distress. (Id.) He noted that Plaintiff’s stressors included “his inability to work, his 

mother’s ailing health, his brother’s death two years ago, and financial instability. . . .” (Id.) 

Dr. Olenick opined that because Plaintiff is not working, the “likelihood of significant 
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improvement in symptom resolution is low, whereas the possibility for significant deterioration 

is high.” (Id.) Dr. Olenick thought psychotropic medication and outpatient mental health 

services could help improve Plaintiff’s mood. (R. at 537-38.) 

 Dr. Olenick also completed a functional assessment. (R. at 538-39.) He opined that 

Plaintiff is “not expected to demonstrate problems in understanding, remembering, and carrying 

out instructions in a work setting,” and “will not demonstrate difficulty in responding 

appropriately to supervision and coworkers in a work setting.” (R. at 538-39.) Regarding 

Plaintiff’s ability to maintain attention, concentration, persistence, and pace to perform simple 

and multi-step tasks, Dr. Olenick opined as follows: 

[Plaintiff’s] attention and concentration were poor today. He described problems 

with attention and concentration outside this appointment. [Plaintiff] was not 

distracted by ambient noises or objects in the office, but would lose track of his 

thought process and would not finish his thoughts. He is expected to demonstrate 

limitations in this area. 

(R. at 538.) With respect to his abilities and limitations in responding appropriately to work 

pressures, Dr. Olenick found that: 

[Plaintiff] did not describe difficulty in dealing with workplace stress. When 

asked how he deals with stress, he responded, “Think it through.” He has 

participated in outpatient mental health treatment; he takes no psychotropic 

medication. He has adequate social support and appeared to cope appropriately 

with stress during the evaluation. He may experience difficulty responding 

appropriately to work pressures due to his physical pain and limitations as well as 

his increasing symptoms of depression. 

(R. at 539.) 

3. State-Agency Reviewing Psychologists, Carl Tishler, Ph.D. and Aracelis Rivera, 

Psy.D. 

State-agency reviewing psychologist, Carl Tishler, Ph.D., (“Dr. Tishler”) gave “Great 

Weight” to Dr. Olenick’s opinions, finding that “Dr. Olenick’s suggestions are consistent with 
6 

his observations and claimant’s reports.” (R. at 107.) Dr. Tishler found that Plaintiff’s 

depression was non-severe and opined that his “depression/affective disorder is not expected to 

cause significant work limitations.” (R. at 106.) In reaching this conclusion, Dr. Tishler 

considered that Plaintiff performs activities of daily living and visits with family; is not currently 

in treatment for any mental health issue; has no history of psychiatric hospitalizations; has a long 

work history of no problems with co-workers and only one issue with a supervisor related to 

physical limitations; drives as needed; mowed his lawn the day before his psychiatric 

consultative examination; was a supervisor for many years; and has a history of drug and alcohol 

usage “and must have at least contact and friends from whom he obtains the substances.” (R. at 

106.) Dr. Tishler found that Plaintiff has mild restrictions in his activities of daily living; mild 

difficulties in maintaining concentration, persistence, or pace; and no difficulties in maintaining 

social functioning. (R. at 105-06.) Dr. Tishler declined to include mental limitations in 

Plaintiff’s RFC. (R. at 105-107.) On reconsideration, Aracelis Rivera, Psy.D., adopted Dr. 

Tishler’s opinions. (R. at 121.) 

4. Treating Psychologist, James E. Gebhart, Ph.D. 

On November 1, 2017, James E. Gebhart, Ph.D., conducted a mental health evaluation on 

Plaintiff and began psychotherapy treatment. (R. at 772.) In a letter to Plaintiff’s attorney, Dr. 

Gebhart stated that Plaintiff’s “major depression has persisted for over three years and requires a 

regimen of Cymbalta.” (Id.) Dr. Gebhart noted that Plaintiff “is burdened with the grief of 

four family deaths in recent times,” and that “[h]is stresses are exacerbated by his wife leaving 

the home and by the fear that his home will be repossessed because he has not been able to work 

and pay bills.” (Id.) Dr. Gebhart diagnosed Plaintiff with severe persistent depressive disorder 
7 

with persistent major depressive episode. (Id.) On mental examination, Plaintiff’s mood and 

affect were “[v]ery depressed, sad, and defeated,” and his affect was “flat” and “deadened.” (Id. 

at 773.) Regarding his attention and concentration, Dr. Gebhart noted that Plaintiff had a 

“[s]trained tendency to momentarily lose line of thought because of pervasive depression and 

fatigue.” (Id.) Dr. Gebhart opined that Plaintiff’s insight and judgment were limited. (Id.) 

5. Columbus Springs East 

On September 15, 2017, Plaintiff presented to Columbus Springs East for a psychiatric 

screening assessment. (R. at 755.) Plaintiff reported increased stress and that he was unable to 

work. (Id.) He further reported that he had increased depression; was sleeping constantly; had 

decreased energy; had decreased interest in activities; that he saw UFOs and “weird” things 

happening around the house; was having “communications” in his head; and was feeling 

confused. (R. at 755.) Plaintiff reported delusions and hallucinations. (R. at 758.) On 

mental status examination, Plaintiff was not noted to have poor concentration. (R. 765.) He 

was noted to have poor hygiene; his mood/affect was anxious, sad, depressed/hopeless/helpless; 

and he exhibited depressed behavior. (Id.) Plaintiff was referred to partial hospitalization, and 

it was noted that his “[s]ymptoms/behaviors manifest to such severity that there is interference 

with social, family, or vocational functioning” and that there was a “moderate deterioration of 

usual level of functioning.” (R. at 767.) Plaintiff did not complete the recommended 

treatment. He returned to Columbus Springs East on October 10, 2017, and reported that he was 

unable to complete the programming due to financial and transportation issues. (R. at 768.) At 

that time, he denied current delusions and hallucinations, but stated he had them 6 months prior. 

(R. at 771.) 
8 

6. Kathleen J. Skubak, CNP 

On September 1, 2017, Plaintiff established care with Kathleen J. Skubak, CNP (“Nurse 

Practitioner Skubak”). Nurse Practitioner Skubak noted that Plaintiff had “some depression for 

years” and that Cymbalta has “improved this overall.” (R. at 747.) On examination, she noted 

as follows: “He has a normal mood and affect. His behavior is normal. Judgment and thought 

content normal.” (Id.) She further noted that he was not nervous or anxious. (Id.) 

III. THE ADMINISTRATIVE DECISION 

 On December 7, 2017, the ALJ issued her decision. (R. at 15-29.) At step one of the 

sequential evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantial 

gainful activity since February 1, 2015, the alleged onset date. (Id. at 17.) 

 

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

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

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

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

1. Is the claimant engaged in substantial gainful activity? 

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

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

the criteria of an impairment set forth in the Commissioner's Listing of 

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

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

perform his or her past relevant work? 

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

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

national economy? 

See 20 C.F.R. § 416.920(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). 
9 

At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc 

disease of the lumbar and cervical spine; right ankle degenerative joint disease; right carpal 

tunnel syndrome; obstructive sleep apnea; restless leg syndrome; type II diabetes mellitus; and 

obesity. (Id. at 18.) The ALJ further found that Plaintiff’s hypertension, cluster headaches, and 

depression are non-severe because “the evidence does not support that these conditions, either 

singly or in combination, cause more than minimal functional limitations.” (Id.) Regarding 

Plaintiff’s depression, the ALJ found that there is “very little evidence of psychiatric issues from 

the alleged onset date through the hearing date (Exhibits 1F-19F).” (R. at 19.) In determining 

that Plaintiff’s depression is non-severe, the ALJ considered the “paragraph B” criteria. (Id.) 

The ALJ found that Plaintiff has no limitations in understanding, remembering, or applying 

information; in interacting with others; or in adapting or managing himself. (R. at 19-20.) She 

found that Plaintiff has mild limitations in concentration, persistence, or in maintaining pace. 

(R. at 20.) The ALJ concluded that Plaintiff’s mental impairment is non-severe because it 

causes no more than “mild limitation” in any of the functional areas. (Id.) 

In concluding that Plaintiff’s mental impairment is non-severe, the ALJ assigned “partial” 

weight to the opinions of the state-agency reviewing psychologists, finding their opinions that 

Plaintiff “has no limitations in social functioning and mild limitations in concentration, 

persistence or pace in addition to the overall conclusion that the claimant’s mental impairment is 

nonsevere are generally consistent with the overall evidence, including the claimant’s selfreports of daily functioning . . .” (R. at 21.) The ALJ gave “great” weight to consultative 

examiner Dr. Olenick’s opinion that Plaintiff “was unlikely to demonstrate problems in 

understanding, remembering and carrying out instructions in a work setting or responding 
10 

appropriately to supervision and coworkers,” and “little” weight to his opinion that Plaintiff 

“may experience difficulty responding appropriately to work pressures and would likely 

demonstrate limitations in maintaining attention, concentration, persistence and pace to perform 

simple tasks.” (Id.) The ALJ also gave “little” weight to treating psychologist Dr. Gebhart’s 

statement that Plaintiff “was struggling to maintain his daily life and that the [his] major 

depression has persisted for over 3 years,” and “some” weight to his mental examination 

findings. (Id.) 

At step three of the sequential process, the ALJ found that Plaintiff did not have an 

impairment or combination of impairments that met or medically equaled one of the listed 

impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 21-23.) At step 

four, the ALJ set forth Plaintiff’s RFC as follows: 

After careful consideration of the entire record, I find that the claimant has the 

residual functional capacity to perform sedentary work as defined in 20 CFR 

404.1567(a) except the claimant can occasionally climb ramps or stairs, stoop, 

kneel, crouch, crawl, balance and push/pull with the right lower extremity; 

frequently handle and finger on the right; can never climb ladders, ropes or 

scaffolds; cannot work around unprotected heights or be exposed to extreme 

temperatures. 

(R. at 23.) In assessing Plaintiff’s physical RFC, the ALJ assigned “partial” weight to the stateagency reviewing physicians’ opinions. (R. at 27.) She assigned “some” weight to Dr. 

Osbourne’s opinion that Plaintiff “is unable to lift greater than 20 pounds and has difficulty 

walking up stairs,” and “little” weight to his opinion that Plaintiff “requires a cane” and is 

“unable to stand and/or sit for over 1 hour at a time.” (Id.) 

 Relying on the VE’s testimony, the ALJ found that Plaintiff can perform his past relevant 

work as a customer service trainer, collections manager, and pawn broker. (R. at 28.) She 
11 

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

IV. 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) (“The 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 & Human 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 (6th Cir. 2009) (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 
12 

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)). 

V. ANALYSIS 

As set forth above, Plaintiff advances the following two contentions of error: (1) the ALJ 

erred in finding that his mental impairments were not severe, and (2) the ALJ failed to provide 

good reasons for discounting the opinions of treating physician, Dr. Osbourne. The undersigned 

considers Plaintiff’s contentions of error in turn. 

A. The ALJ’s Consideration of Plaintiff’s Mental Impairments 

Plaintiff first contends that the ALJ erred in finding that his depression was non-severe 

and in omitting non-exertional limitations from his RFC. Plaintiff asserts that the ALJ’s 

conclusions regarding his mental impairments are inconsistent with the opinions of Drs. Olenick 

and Gebhart and the mental health record as a whole. (Pl.’s Statement of Errors at 7, ECF No. 

8.) Plaintiff further contends that the ALJ’s failure to find his depression severe at step two is 

not harmless error because the ALJ subsequently failed to include non-exertional limitations in 

his RFC and in the hypothetical to the VE when determining whether he could perform his past 

work. 

The Commissioner counters that the ALJ’s step-two findings are supported by substantial 

evidence and that Plaintiff failed to meet his burden of showing that his alleged mental health 

impairments affect him more than minimally. (Response in Opp. at 3, 10, ECF No. 13.) The 

undersigned agrees with the Commissioner and finds Plaintiff’s first contention of error to be 

without merit. 
13 

At step two of the sequential evaluation process, Plaintiff bears the burden of proving the 

existence of a severe, medically determinable impairment that meets the twelve-month durational 

requirement. See Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); Harley v. 

Comm’r of Soc. Sec., 485 F. App’x 802, 803 (6th Cir. 2012). The United States Court of 

Appeals for the Sixth Circuit has construed a claimant’s burden at step two as “a de minimis

hurdle in the disability determination process.” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 

1988). The inquiry is therefore “employed as an administrative convenience to screen out 

claims that are ‘totally groundless’ solely from a medical standpoint.” Id. at 863 (quoting Farris 

v. Sec’y of Health & Hum. Servs., 773 F.2d 85, 90 n.1 (6th Cir. 1985)). 

 A severe impairment is defined as “any impairment or combination of impairments which 

significantly limits your physical or mental ability to do basic work activities,” 20 C.F.R. § 

404.1520(c), and which lasts or can be expected to last “for a continuous period of not less than 

12 months,” 20 C.F.R. 404.1509. “A severe mental impairment is ‘established by medical 

evidence consisting of signs, symptoms, and laboratory findings, not only by [a plaintiff’s] 

statement of symptoms.’” Griffith v. Comm’r, 582 F. App’x 555, 559 (6th Cir. 2014) (quoting 

20 C.F.R. § 416.908). Thus, if no signs or laboratory findings substantiate the existence of an 

impairment, it is appropriate to terminate the disability analysis. See SSR 96-4p, 1996 WL 

374187, at *2 (July 2, 1996) (“In claims in which there are no medical signs or laboratory 

findings to substantiate the existence of a medically determinable physical or mental impairment, 

the individual must be found not disabled at step 2 of the sequential evaluation process set out in 

20 CFR 404.1520 and 416.920 . . . .”). Significantly, “[n]o symptom or combination of 

symptoms by itself can constitute a medically determinable impairment.” Id. Symptoms 
14 

consist of a claimant’s description of his or her alleged impairment. 20 C.F.R. § 404.1528(a). 

In contrast, “signs” include “psychological abnormalities which can be observed.” 20 C.F.R. § 

404.1528(b). In addition, “[p]sychiatric signs are medically demonstrable phenomena that 

indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought, 

memory, orientation, development, or perception.” 20 C.F.R. § 404.1528(b). “Laboratory 

findings” include “psychological phenomena which can be shown by the use of medically 

acceptable laboratory diagnostic techniques.” Id. The Sixth Circuit has advised that “[w]hen 

mental illness is the basis of a disability claim, clinical and laboratory data may consist of the 

diagnosis and observations of professionals trained in the field of psychopathology.” 

Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (internal quotation marks and 

citations omitted). 

 “When there is evidence of a mental impairment documented by ‘medically acceptable 

clinical and laboratory diagnostic techniques,’ 20 C.F.R. § 404.1508, the regulations require the 

ALJ to follow a ‘special technique’ to assess the severity of the impairment, 20 C.F.R. § 

404.1520a.” Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 641 (6th Cir. 2013). The ALJ 

will rate the degree of a claimant’s functional limitation in four broad areas: the ability to 

“[u]nderstand, remember, or apply information; interact with others; concentrate, persist, or 

maintain pace; and adapt or manage oneself.” 20 C.F.R. § 404.1520a(c)(3). For these areas, 

the ALJ will rate the plaintiff on a five-point scale: “[n]one, mild, moderate, marked, and 

extreme.” 20 C.F.R. § 404.1520a(c)(4). If the degree of the claimant’s limitations are rated as 

“‘none’ or ‘mild,’” the ALJ will generally conclude that the plaintiff’s impairments are “not 

severe, unless the evidence otherwise indicates that there is more than a minimal limitation in 
15 

[claimant’s] ability to do basic work activities. . .” 20 C.F.R. § 404.1520a(d)(1). 

Nonetheless, where, as here, the ALJ determines that a claimant had a severe impairment 

at step two of the analysis, “the question of whether the ALJ characterized any other alleged 

impairment as severe or not severe is of little consequence.” Pompa v. Comm’r of Soc. Sec., 73 

F. App’x 801, 803, (6th Cir. 2003). Instead, the pertinent inquiry is whether the ALJ considered 

the “limiting effects of all [claimant’s] impairment(s), even those that are not severe, in 

determining [the claimant’s] residual functional capacity.” 20 C.F.R. § 404.1545(e); Pompa, 73 

F. App’x at 803 (rejecting the claimant’s argument that the ALJ erred by finding that a number 

of her impairments were not severe where the ALJ determined that claimant had at least one 

severe impairment and considered all of the claimant’s impairments in her RFC assessment); 

Maziarz v. Sec’y of Health & Hum. Servs., 837 F.2d 240, 244 (6th Cir. 1987) (same). 

Finally, the ALJ’s determination that a claimant has some mild impairment does not 

require inclusion of mental limitations into the RFC. See, e.g., Little v. Comm’r of Soc. Sec., 

No. 2:14-cv-532, 2015 WL 5000253, at *13-14 (S.D. Ohio Aug. 24, 2015) (no error where ALJ 

did not include RFC limitations to address findings of mild mental limitations); White v. Comm’r 

of Soc. Sec., No. 2:17-CV-1063, 2018 WL 5303060, at *5 (S.D. Ohio Oct. 25, 2018) (same); 

Walker v. Astrue, No. 3:11-cv-142, 2012 WL 3187862, at *4-5 (S.D. Ohio Aug. 3, 2012) 

(finding that substantial evidence supported the ALJ’s determination that the claimant’s mental 

impairments were mild enough not to warrant specific RFC limitations). Severe or non-severe, 

an ALJ need only include limitations arising from an impairment where the impairment affects a 

claimant’s capacity to work. See Griffeth v. Comm’r, 217 F. App’x 425, 426 (6th Cir. 2007) 

(“The RFC describes the claimant’s residual abilities or what a claimant can do, not what 
16 

maladies a claimant suffers from—though the maladies will certainly inform the ALJ’s 

conclusion about the claimant’s abilities. A claimant’s severe impairment may or may not 

affect his or her functional capacity to do work. One does not necessarily establish the other.” 

(internal quotation marks and citations omitted)). 

Here, as set forth above, the ALJ concluded that Plaintiff had several severe physical 

impairments, but no severe mental impairments. (R. at 18-21.) In determining the severity 

of Plaintiff’s depression, the ALJ completed a thorough analysis of the four areas of mental 

functioning, or the “paragraph B” criteria, and concluded that Plaintiff has mild limitations in 

concentration, persistence, or in maintaining pace (R. at 20), and no limitations in 

understanding, remembering, or applying information; in interacting with others; or in adapting 

or managing himself (R. at 19-20). The ALJ concluded that “[b]ecause the claimant’s 

medically determinable mental impairment causes no more than ‘mild’ limitation in any of the 

functional areas, it is nonsevere (20 CFR 401.1520a(d)(1)).” (R. at 20.) The ALJ further 

found that Plaintiff’s depression did not cause more than “minimal” functional limitations and 

declined to include mental limitations in Plaintiff’s RFC. (See R. at 18, 20, and 23.) 

The undersigned finds that substantial evidence supports the ALJ’s determination that 

Plaintiff’s depression did not significantly limit his mental abilities to perform basic work 

activities. (R. at 18, 19-21.) The ALJ explained his reasoning as follows: 

At a psychological consultative examination in June 2015, the claimant was alert 

and oriented to person, place and time, his speech was normal and he appeared calm 

throughout the evaluation (Exhibit 12F). Moreover, the claimant reported 

improvement in his depression with medication in September 2017 (Exhibit 23F). 

While the claimant’s representative submitted new psychiatric evaluations post 

hearing that appear to indicate more serious symptoms [of] depression, this 

evidence is so recent that it does not support that this condition has lasted at a severe 

level or impacted his functioning for at least twelve continuous months from the 
17 

date of onset (see SSR 82-52) (Exhibits 25F; 26F). Moreover, the claimant’s 

symptoms appeared to be exacerbated by four recent deaths in his family and since 

these are unusual stressors, do not necessarily support a conclusion that his more 

acute symptoms would be expected to last for 12 months or longer (Exhibit 26F). 

Furthermore, the new post hearing mental information contains reports by the 

claimant to evaluators that bear little relationship to his reports throughout the rest 

of the file and, thus, raise serious questions as to consistency and supportability 

(Id.). For example, at an evaluation in September 2017, the claimant reported 

seeing UFOs and having auditory hallucinations (Exhibit 25F). However, there 

are no prior reports of hallucinations in the record (Exhibits 1F-24F). In fact, the 

claimant denied hallucinations at multiple prior examinations (Exhibits 5F; 6F; 

12F). Moreover, the claimant apparently failed to mention the purported 

hallucinations or delusions to his new treating provider in November 2017, as there 

is no mention of hallucinations or delusions in the treating provider’s letter on 

November 1, 2017 (Exhibit 26F). Additionally, the claimant commonly denied 

any psychiatric symptoms at medical examinations prior to the hearing date 

(Exhibits 4F; 5F; 22F). 

 

(R. at 19.) 

The undersigned finds that the ALJ appropriately considered that “there is very little 

evidence of psychiatric issues from the alleged onset date through the hearing date.” (R. at 19 

(citing R. at 330-714).) See Griffith, 582 F. App’x at 559 (explaining that a severe mental 

impairment must be shown by the medical evidence, not simply by the plaintiff’s statement of 

symptoms). As the ALJ explained, Plaintiff “commonly denied any psychiatric symptoms at 

medical examinations prior to the hearing date.” (R. at 19 (citing R. at 383-475, 741-45).) 

Indeed, aside from reporting symptoms of depression to his primary care provider on a couple of 

occasions, Plaintiff did not seek treatment for his mental health issues until the Fall of 2017. 

(See R. at 388, 391, 393, 400, 772, 773, and 755-771.) 

The undersigned also finds that the ALJ appropriately considered the mental health 

records from the Fall of 2017, which were submitted post-hearing. (R. at 19 (considering R. at 

755-773).) The ALJ found that although those records “appear to indicate more serious 
18 

symptoms [of] depression, this evidence is so recent that it does not support that this condition 

has lasted at a severe level or impacted his functioning for at least twelve continuous months 

from the date of onset (see SSR 82-52) (Exhibits 25F; 26F).” (R. at 19.) See also 20 C.F.R. 

404.1509 (providing that a severe impairment must last for at least twelve continuous months). 

The ALJ noted that the symptoms reported in the post-hearing records appeared to be 

“exacerbated by four recent deaths” in Plaintiff’s family, and that Plaintiff’s complaints in these 

records “bear little relationship to his reports throughout the rest of the file and, thus, raise 

serious questions as to consistency and supportability.” (R. at 19.) Substantial evidence 

supports the ALJ’s conclusions regarding these medical records. For example, Plaintiff reported 

experiencing delusions and hallucinations on September 15, 2017, but by October 10, 2017, he 

denied delusions and hallucinations. (R. at 738, 771.) Further, on September 1, 2017, Nurse 

Practitioner Skubak noted that Plaintiff was not anxious or nervous and that he had normal 

mood, affect, behavior, judgment, and thought content. (R. at 747.) The ALJ also 

appropriately considered that once Plaintiff began a regimen of medication, he reported an 

overall improvement in his depression. (R. at 19 (citing R. at 746-49)); (see September 1, 2017 

Treatment Note, R. at 747 (noting that Plaintiff has had “some depression for years” and that 

“cymbalta[ ] has improved this overall”)). 

The undersigned finds that the ALJ reasonably considered and weighed the medical 

opinion evidence in reaching her step-two conclusions. The ALJ specifically adopted the stateagency reviewing psychologists’ opinion that Plaintiff’s depression is non-severe and that 

Plaintiff has “no limitations in social functioning and mild limitations in concentration, 

persistence or pace.” (R. at 21.) The ALJ explained that these opinions are “generally 
19 

consistent with the overall evidence, including the [Plaintiff’s] self-reports of daily functioning . . 

. .” (R. at 21.) See 20 C.F.R. § 416.927(c)(4) (identifying “consistency” as a relevant 

consideration when evaluating a medical opinion). The ALJ also reasonably assigned “great 

weight” to Dr. Olenick’s opinion that Plaintiff was “unlikely to demonstrate problems in 

understanding, remembering and carrying out instructions in a work setting or responding 

appropriately to supervision and coworkers.” (R. at 21.) The ALJ explained that these 

opinions were “generally consistent with the overall evidence including the [Plaintiff’s] reports 

that he regularly goes out, lives with others and goes to the grocery store.” (Id.) See 20 C.F.R. 

§ 416.927(c)(4). 

Next, the ALJ reasonably assigned “little weight” to Dr. Olenick’s opinions that Plaintiff 

“may experience difficulty in responding appropriately to work pressures” and that he is 

“expected to demonstrate limitations” in maintaining attention, concentration, persistence and/or 

pace to perform simple tasks, finding that these opinions were not supported by the overall 

evidence of the record. See 20 C.F.R. § 416.927(c)(3)-(4) (identifying “supportability” and 

“consistency” as relevant considerations when evaluating an opinion). For example, with 

respect to Plaintiff’s ability to respond appropriately to work stress, the ALJ concluded that 

Plaintiff had no limitations in this area, as Plaintiff cares for his dog, tries to cook, drives a car, 

and generally has no problem with grooming or hygiene. (R. at 20.) Further, Dr. Olenick’s 

own report provides that Plaintiff identified no difficulty in dealing with workplace stress and 

that “[h]e has adequate social support and appeared to cope appropriately with stress during the 

evaluation.” (R. at 539.) With respect to Plaintiff’s ability to concentrate, persist, and maintain 

pace, the ALJ explained that Plaintiff’s treating sources did not note that he was distracted or 
20 

confused (R. at 21 (citing R. at 383-436; R. at 750-54; R. at 755-71)), and that Plaintiff drives 

daily, “which can be considered a complex task that requires the making of continuous 

decisions/judgment calls” (id. (citing Hearing Testimony)). Elsewhere in the decision, the ALJ 

considered that Plaintiff is “able to concentrate sufficiently to drive every day or every other day, 

use an I-pad and watch TV most of the day.” (R. at 20.) The ALJ concluded that, although 

Plaintiff may have some limitations in his ability to concentrate, persist, and maintain pace, the 

overall evidence demonstrates that his limitations “are mild at the most.” (R. at 21.) The 

undersigned finds that the ALJ reasonably discounted Dr. Olenick’s opinions that Plaintiff 

“may” experience difficulty in responding to work pressures and “is expected to demonstrate 

limitations” in maintaining attention, concentration, persistence and/or pace.2

In addition, contrary to Plaintiff’s contentions, Dr. Olenick’s diagnosis of moderate major 

depressive disorder with anxious distress does not demonstrate that Plaintiff’s depression more 

than minimally limits his ability to perform work. (Pl.’s Statement of Errors at 7, ECF No. 8.) 

This diagnosis does not require the conclusion that Plaintiff had a severe mental impairment and 

does not establish that Plaintiff was significantly limited in performing basic work activities. 

See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis of [the condition] . 

 

2

The undersigned notes that Dr. Olenick’s opinions are vague insofar as that he fails to explain 

the degree or nature of Plaintiff’s purported functional limitations. Indeed, although both Drs. 

Olenick and Gebhart found that Plaintiff tended to lose his train of thought and/or suffer from 

confusion, their opinions fail identify or explain how these findings translate into limitations, if 

any, on Plaintiff’s ability to perform basic work activities. Notably, both state-agency 

reviewing psychologists considered Dr. Olenick’s report and assessed it “Great Weight” in 

rendering their opinions. (R. at 92-106, 114-121.) Despite reviewing Dr. Olenick’s report, 

they concluded that Plaintiff’s depression was non-severe; that he had only mild limitations in 

his ability to concentrate, persist, and maintain pace; and declined to find mental limitations in 

the RFC. (R. at 92-106, 114-121.) 
21 

. . says nothing about the severity of the condition.” (citation omitted)); Despins v. Comm’r of 

Soc. Sec., 257 F. App’x 923, 929-30 (6th Cir. 2007) (“The mere existence of . . . impairments . . . 

does not establish that [the plaintiff] was significantly limited from performing basic work 

activities for a continuous period of time.”). 

The ALJ also reasonably discounted the opinions of Plaintiff’s psychologist, Dr. Gebhart. 

(R. at 21.) The ALJ explained that he assessed “little weight” to Dr. Gebhart’s opinion that 

Plaintiff “was struggling to maintain his daily life” and that his “major depression has persisted 

for over 3 years” because Dr. Gebhart “issued this statement after seeing and/or treating the 

claimant only once.” (R. at 21 (citing R. at 772-73).) The ALJ appropriately considered that 

Dr. Gebhart rendered his opinion after treating Plaintiff only one time. See 20 C.F.R. § 

416.927(c)(2)(i) (identifying the length of the treatment relationship and the frequency of 

examination as relevant factors in assessing a medical opinion); see also Barker v. Shalala, 40 

F.3d 789, 794 (6th Cir. 1994) (finding that the treating physician doctrine does not apply, and a 

medical opinion is “entitled to no special degree of deference” where the physician had only 

treated the plaintiff on one occasion). Similarly, the ALJ reasonably discounted Dr. Gebhart’s 

opinion because he had no personal knowledge of Plaintiff’s mental health history prior to 

rendering his November 2017 opinion. See 20 C.F.R. § 416.927(c)(2)(ii) (providing that “the 

more knowledge a treating source has about [plaintiff’s] impairment(s) the more weight [the 

ALJ] will give to the source’s medical opinion”); see also Mitchell v. Comm’r of Soc. Sec., 330 

F. App’x 563, 569 (6th Cir. 2009) (“A doctor’s report that merely repeats the patient’s assertions 

is not credible, objective medical evidence and is not entitled to the protections of the good 

reasons rule.”). Finally, the ALJ reasonably found Dr. Gebhart’s opinions “inconsistent with the 
22 

overall evidence of record which shows virtually no evidence of any psychiatric issues from the 

alleged onset date through the hearing date.” (R. at 21.) As set forth above, the record contains 

very little evidence of Plaintiff’s mental health conditions prior to the Fall of 2017, and there is 

no evidence that his depression persisted at a severe level or impacted his functioning for the 

requisite durational period. (R. at 330-773.) Accordingly, the undersigned finds no error in the 

ALJ’s consideration and weighing of the opinion evidence at step two. 

Based on the foregoing, the undersigned finds that the ALJ properly considered 

Plaintiff’s mental impairments and reasonably concluded that limitations attributable to his 

mental impairments were not warranted in the RFC. (See R. at 20 (stating “the following 

residual functional capacity assessment reflects the degree of limitation [the ALJ] ha[s] found in 

the ‘paragraph B’ mental function analysis”).) The ALJ thoroughly explained her rationale for 

finding that Plaintiff’s mental impairments did not cause more than minimal functional 

limitations, which included consideration of Plaintiff’s allegations and hearing testimony; mental 

health treatment records; activities of daily living; lack of treatment history; and the opinion 

evidence. (See R. at 19-21.) The undersigned therefore concludes that the ALJ properly 

considered Plaintiff’s mental impairments in assessing his RFC and that substantial evidence 

supports the ALJ’s decision to omit non-exertional limitations attributable to his mental 

impairments. 

Consequently, Plaintiff’s challenge to the validity of the hypothetical question posed to 

the VE likewise lacks merit. The regulations permit an ALJ to use the services of a vocational 

expert at step four to determine whether a claimant can do his past relevant work given his RFC. 

20 C.F.R. § 404.1560(b)(2). “In order for a vocational expert’s testimony in response to a 
23 

hypothetical question to serve as substantial evidence in support of the conclusion that a claimant 

can perform other work, the question must accurately portray a claimant’s physical and mental 

impairments.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010). “[I]n 

formulating a hypothetical question, an ALJ is only required to incorporate those limitations 

which he has deemed credible.” See Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 585 (6th 

Cir. 2010) (citations omitted); Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 

(6th Cir. 1993) (“It is well established that an ALJ may pose hypothetical questions to a 

vocational expert and is required to incorporate only those limitations accepted as credible by the 

finder of fact.”); Infantado v. Astrue, 263 F. App’x 469, 477 (6th Cir. 2008) (holding that the 

failure to incorporate limitations into the hypothetical question that the court gave no weight was 

not in error). Here, the ALJ’s hypothetical question to the VE incorporated the limitations that 

she found to be credible and supported by the record evidence. As set forth above, substantial 

evidence supports her decision to omit non-exertional limitations. The ALJ therefore did not err 

in relying on the VE’s testimony. 

In sum, the undersigned finds that for all of the reasons set forth above, substantial 

evidence supports the ALJ’s determination that Plaintiff had only mild limitation attributable to 

his mental impairments and that he failed to demonstrate that his mental impairments caused 

more than a minimal limitation on his ability to do basic work activities. Although evidence in 

the record may support an alternative finding, the ALJ’s findings were within the ALJ’s 

permissible “zone of choice” and the Court will not re-weigh the evidence. See Blakley, 581 

F.3d at 406. Accordingly, it is RECOMMENDED that Plaintiff’s first contention of error be 

OVERRULED. 
24 

B. The ALJ’s Consideration of Dr. Osbourne’s Opinions Regarding Plaintiff’s Physical 

Impairments 

Plaintiff next contends that the ALJ failed to provide good reasons for discounting the 

opinions of his treating physician, Dr. Osbourne. The Commissioner counters that the ALJ 

properly explained the weight she gave to Dr. Osbourne’s opinions and that her decision to 

discount his opinions was supported by substantial evidence. The undersigned agrees with the 

Commissioner and finds this contention or error 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). Where a treating source’s opinion is submitted, the 

ALJ generally gives deference to it “since these sources are likely to be the medical professionals 

most able to provide a detailed, longitudinal picture of [a patient’s] medical impairment(s) and 

may bring a unique perspective to the medical evidence that cannot be obtained from the 

objective medical filings alone . . . .” 20 C.F.R. § 416.927(c)(2); Blakley, 581 F.3d at 408. If 

the treating physician’s opinion is “well supported by medically acceptable clinical and 

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in 

[the claimant’s] case record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 

404.1527(c)(2). 

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

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

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

weight: 

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

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

treatment relationship, supportability of the opinion, consistency of the opinion 
25 

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

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

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

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

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

opinion evidence within the written decision). 

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

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will 
26 

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). 

As discussed above, the ALJ assigned “some” weight to Dr. Osbourne’s opinions that 

Plaintiff “is unable to lift greater than 20 pounds and has difficulty walking up stairs, given the 

[Plaintiff’s] positive EMG for lumbar radiculopathy, the claimant’s unsuccessful attempt at 

working as a valet and the claimant’s reports of difficulty standing (Exhibits 15F; 18F).” (R. at 

27.) By restricting Plaintiff to sedentary work, the ALJ actually imposed greater limitations on 

Plaintiff’s ability to lift than those opined by Dr. Osbourne. See 20 C.F.R. § 404.1567(a) 

(“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or 

carrying articles like docket files, ledgers, and small tools.”). The ALJ also limited Plaintiff to 

occasional climbing of ramps or stairs; never climbing ladders, ropes or scaffolds; and no work 

around unprotected heights. (R. at 23.) Thus, the ALJ accounted for Dr. Osbourne’s opinions 

that Plaintiff was unable to lift more than 20 pounds and that he has difficulty walking up stairs. 

The undersigned also finds no error in the ALJ’s decision to assign “little” weight to Dr. 

Osbourne’s opinions that Plaintiff requires a cane and that Plaintiff is unable to stand and/or sit 

for over one (1) hour at a time. Although Plaintiff maintains that the ALJ failed to give good 

reasons for assigning “little weight” to these opinions, the ALJ provided the following lengthy 

discussion of how she arrived at her determination: 

However, I give little weight to the treating physician’s opinion that the claimant 

requires a cane, as the evidence of record does not consistently reflect the 

claimant’s use of a cane or any prescription by an acceptable medical source for a 

cane. For example, there is no notation that the claimant was using a cane at a 

neurology visit or at a visit to the Arthritis Center in April 2015 (Exhibits 6F; 8F). 

The claimant has failed to produce any other evidence to satisfy his burden to show 
27 

medical necessity for a cane as described in 96-9p (Hearing Testimony; Exhibits 

1F-26F). I also give little weight to the opinion that the claimant is unable to stand 

and/or sit for over 1 hour at a time, as the opinion is not accompanied by any 

evidentiary support or explanation (Exhibit 15F). Moreover, the opinion appears 

to be based on the claimant’s subjective complaints rather than objective findings. 

Medical examination findings of record do not consistently demonstrate significant 

weakness, sensory deficits or regular falls leading to emergency room treatment or 

causing other injuries. Although neurology notes sometimes indicated some 

weakness on testing, the claimant’s motor strength was mostly 4/5 or 5/5 at other 

examinations (Exhibits 13F; 15F; 17F). I also note that at some visits where 4/5 

strength is documented, it is described as “give-way” weakness which suggests an 

unreliable result or less than full effort (e.g. 13F/1).3

 A recent examination found 

no weakness or sensory deficit (25F/3). 

(R. at 27 (footnote added).) Thus, the ALJ articulated the weight she afforded these opinions 

and properly declined to afford them controlling weight on the grounds that they were not 

supported by the objective findings in the record, are inconsistent with the record, and are based 

on Plaintiff’s subjective complaints rather than objective findings. See 20 C.F.R. § 

404.1527(c)(2) (identifying “supportability” and “consistency” with the record as a whole as 

relevant considerations when evaluating a treating physician’s opinion); Blakely, 581 F.3d at 406 

(quoting SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996)) (“‘[I]t is an error to give an opinion 

controlling weight simply because it is the opinion of a treating source if . . . it is inconsistent 

with the other substantial evidence in the case record.’”); Tate v. Comm’r of Soc. Sec., 467 F. 

App’x 431, 433 (6th Cir. 2012) (finding that the ALJ provided good reasons for discounting a 

treating physician opinion where the ALJ, in part, found the treating physician’s assessment “to 

be based on [plaintiff’s] subjective complaints, without sufficient support from the objective 

clinical or neurological findings”). 

 Furthermore, substantial evidence supports the ALJ’s decision to discount Dr. 

 

3 The ALJ appears to have erroneously cited to 25F/3 instead of 24F/3. 
28 

Osbourne’s opinions that Plaintiff needs a cane and is unable to sit and stand for more than one 

hour at a time. The undersigned first notes that Dr. Osbourne did not specifically opine that 

Plaintiff requires a cane. Instead, his report indicates that Plaintiff used a cane, not that he was 

prescribed a cane or otherwise required one. (R. at 559-60.) As set forth in Social Security 

Ruling 96-9p, 

To find that a hand-held assistive device is medically required, there must be 

medical documentation establishing the need for a hand-held assistive device to aid 

in walking or standing, and describing the circumstances for which it is needed (i.e., 

whether all the time, periodically, or only in certain situations; distance and terrain; 

and any other relevant information). The adjudicator must always consider the 

particular facts of a case. For example, if a medically required hand-held assistive 

device is needed only for prolonged ambulation, walking on uneven terrain, or 

ascending or descending slopes, the unskilled sedentary occupational base will not 

ordinarily be significantly eroded. 

SSR 96-9P (S.S.A. July 2, 1996), 1996 WL 374185. Here, Plaintiff has not provided medical 

documentation that sufficiently establishes a need for a cane or describes the circumstances for 

which it is needed. Further, as the ALJ points out, the medical records do not consistently note 

that Plaintiff used a cane. (R. at 27 (citing 476-77, 484-89)). The undersigned therefore finds 

no error in the ALJ’s decision to omit limitations related to use of a cane. 

 Substantial evidence likewise supports the ALJ’s decision to discount Dr. Osbourne’s 

opinion that Plaintiff is unable to stand and sit for over one (1) hour at a time because it was “not 

accompanied by any evidentiary support or explanation.” (R. at 27, 560.) See Buxton v. 

Halter, 246 F.3d 762, 773 (6th Cir. 2001) (finding that an ALJ “is not bound by conclusory 

statements of doctors, particularly where they are unsupported by detailed objective criteria and 

documentation”). The ALJ also considered that Plaintiff’s medical examination findings often 

demonstrated normal muscle strength (R. at 542-53; 559-598; 634-56), and that a recent 

examination found no weakness or sensory deficit (R. 752.) Elsewhere in her opinion, the ALJ 
29 

thoroughly discussed the objective medical evidence and examination findings and concluded 

that they do not fully support the extreme limitations alleged by Plaintiff. (R. at 24-26.) Thus, 

it was reasonable for the ALJ to discount Dr. Osbourne’s opinions to the extent they were based 

on Plaintiff’s subjective complaints rather than the objective findings. See Tate, 467 F. App’x at 

433 (discounting a treating physician’s opinion where the “assessment appeared to be based on 

[plaintiff’s] subjective complaints, without sufficient support from the objective clinical or 

neurological findings”). Notwithstanding the foregoing, at the hearing, Plaintiff himself 

testified that he is able to stand and sit for longer than one hour at a time. (See R. at 77-78.) 

See Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 550 (6th Cir. 2014) (holding that an ALJ 

reasonably discounts medical source’s opinion where it contradicts with the claimant’s own 

testimony). 

Although Plaintiff points to some evidence in the record that weighs against the ALJ’s 

findings, the existence of such evidence does not mean that the ALJ’s decision to discount Dr. 

Osbourne’s opinions was not supported by substantial evidence. See Mullen v. Bowen, 800 F.2d 

535, 545 (6th Cir. 1986) (“The substantial-evidence standard allows considerable latitude to 

administrative decision makers. It presupposes that there is a zone of choice within which the 

decisionmakers can go either way, without interference by the courts.”) (quoting Baker v. 

Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)). 

Based on the foregoing, the undersigned concludes that the ALJ provided good reasons, 

supported by substantial evidence, for discrediting the opinions of Dr. Osbourne, and did not 

violate the treating physician rule or otherwise err in her assessment of his opinions. It is 

therefore RECOMMENDED that Plaintiff’s second contention of error be OVERRULED. 
30 

VI. DISPOSITION 

From a review of the record as a whole, the undersigned concludes that substantial 

evidence supports the ALJ’s decision denying benefits. Accordingly, it is RECOMMENDED 

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

Social Security’s decision. 

VII. PROCEDURE ON OBJECTIONS 

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

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

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

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

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

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

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

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C. § 

636(b)(1). 

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

Recommendation will result in a waiver of the right to have the District Judge review the Report 

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

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). 
31 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE