UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

NATALIA NICOLE 

HOFFMAN-SHAW, 

Plaintiff, 

 Civil Action 2:18-cv-836 

 Judge Algenon L. Marbley 

v. Magistrate Judge Chelsey M. Vascura 

 

COMMISSIONER OF SOCIAL SECURITY, 

Defendant. 

 

REPORT AND RECOMMENDATION

 

Plaintiff, Natalia Nicole Hoffman-Shaw (“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 her application for Supplemental Security Income. This matter is before the 

undersigned for a Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 9), 

the Commissioner’s Response in Opposition (ECF No. 16), Plaintiff’s Reply (ECF No. 17), and 

the administrative record (ECF No. 8). 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 her application for Supplemental Security Income on 

December 31, 2014. Plaintiff’s application was denied initially on June 2, 2015, and upon 

reconsideration on October 6, 2015. Plaintiff sought a hearing before an administrative law 

judge. Administrative Law Judge Matthew Winfrey (“ALJ”) held a hearing on August 9, 2017, 
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at which Plaintiff, represented by counsel, appeared and testified. Vocational expert Eric 

Walter Pruitt (the “VE”) also appeared and testified at the hearing. On December 1, 2017, the 

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

Security Act. On June 8, 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 her Statement of Specific Errors (ECF No. 9), Plaintiff raises two contentions of error. 

Plaintiff first asserts that the ALJ impermissibly failed to assess the opinions of Rhonda Lilley, 

Ph.D., for controlling weight as required by the treating physician rule. Plaintiff next contends 

that the ALJ’s finding that Plaintiff will be “off tasks 8% of the time, approximately five minutes 

per hour” was not supported by substantial evidence. Plaintiff therefore posits that the ALJ’s 

hypothetical to the VE did not accurately capture all of her mental limitations, and that the VE’s 

testimony does not constitute substantial evidence that she can perform work in the national 

economy. 

II. THE ADMINISTRATIVE DECISION 

On December 1, 2017, the ALJ issued a decision finding that Plaintiff was not disabled 

within the meaning of the Social Security Act. (R. at 15-24.) At step one of the sequential 

evaluation process,1

 the ALJ found that Plaintiff had not engaged in substantial gainful activity 

 

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? 
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since December 31, 2014, the application date. (Id. at 17.) At step two, the ALJ found that 

Plaintiff had the severe impairments of anxiety, obsessive-compulsive disorder, and depression. 

(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 17-18.) 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 a full range of work at all exertional levels 

but with the following nonexertional limitations: she is limited to simple routine 

repetitive tasks but not at a production rate pace, such as no assembly line work, 

limited to simple work-related decisions, can interact with supervisors and 

coworkers occasionally, but no interaction with the public, can tolerate occasional 

changes in the workplace and will be off tasks 8% of the time, approximately five 

minutes per hour. 

(Id. at 19.) 

 In assessing Plaintiff’s RFC, the ALJ found that Plaintiff’s testimony regarding her 

symptoms and limitations was not fully consistent with the evidence. (R. at 22.) The ALJ also 

 

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). 
4 

considered the medical opinion evidence and assigned “little” weight to the opinions of 

consultative examiner John S. Reece, Psy.D, state-agency reviewing consultants Juliette 

Savitscus, Ph.D. and Cynthia Waggonor, Psy. D., and evaluating psychologist Rhonda Lilley, 

Ph.D. (R. at 21-22.) 

 At step four, the ALJ found that Plaintiff has no past relevant work. (R. at 23.) At step 

five, relying on the VE’s testimony, the ALJ concluded that Plaintiff could perform jobs existing 

in significant numbers in the national economy. (Id. at 23.) The ALJ therefore found that 

Plaintiff was not disabled under the Social Security Act. (Id. at 24.) 

III. 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 
5 

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 

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)). 

IV. ANALYSIS 

As set forth above, Plaintiff raises two contentions of error. First, she asserts that the 

ALJ erred in failing to apply the treating physician rule in considering Dr. Lilley’s opinions. 

She next contends that the ALJ’s finding that Plaintiff will be “off tasks 8% of the time, 

approximately five minutes per hour” is not supported by substantial evidence. Consequently, 

she asserts that the hypothetical question posed to the VE was flawed and that the VE’s 

testimony does not constitute substantial evidence that she can perform work in the national 

economy. The undersigned considers Plaintiff’s contentions of error in turn. 

A. The ALJ’s Consideration of Rhonda Lilley, Ph.D.’s Opinion 

Plaintiff first contends that the ALJ improperly failed to apply the treating physician rule 

in assessing the opinions of Dr. Lilley. The Commissioner counters that Dr. Lilley was not a 

treating physician. The Commissioner further posits that the ALJ nonetheless properly 
6 

evaluated Dr. Lilley’s opinions and provided good reasons for assigning them “little” weight. 

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

be without merit. 

The ALJ must consider all medical opinions that he receives in evaluating a claimant’s 

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

“statements from acceptable medical sources that reflect judgments about the nature and severity 

of your impairment(s), including your symptoms, diagnosis and prognosis.” 20 C.F.R. § 

416.927(a)(1). The source of a medical opinion “dictates the process by which the 

Commissioner accords it weight.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th 

Cir. 2013). The United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) has 

explained as follows: 

As a general matter, an opinion from a medical source who has examined a claimant 

is given more weight than that from a source who has not performed an examination 

(a “nonexamining source”), id. § 404.1502, 404.1527(c)(1), and an opinion from a 

medical source who regularly treats the claimant (a “treating source”) is afforded 

more weight than that from a source who has examined the claimant but does not 

have an ongoing treatment relationship (a “nontreating source”), id. § 404.1502, 

404.1527(c)(2). In other words, “[t]he regulations provide progressively more 

rigorous tests for weighing opinions as the ties between the source of the opinion 

and the individual become weaker.” Soc. Sec. Rul. No. 96–6p, 1996 WL 374180, 

at *2 (Soc. Sec. Admin. July 2, 1996). 

Id., at 375. 

 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); Blakley, 581 F.3d at 408. If a treating physician’s opinion is “well-supported by 
7 

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 

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 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 
8 

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). 

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). 

The “good reason” requirement does not apply where the medical source has not treated 

the claimant. See Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). Regardless 

of the source of a medical opinion, however, in weighing the opinion, the ALJ must apply the 

factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment relationship, 

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

specialization of the source. 20 C.F.R. § 416.927(c). In addition, the regulations provide that 

where the ALJ does not assign controlling weight to a treating physician, he or she must explain 

the weight assigned to the opinions of the medical sources. 20 C.F.R. § 416.927(c). 

As discussed above, the ALJ assigned “little weight” to the opinions of Dr. Lilley. Dr. 

Lilley completed a report dated February 29, 2016, and an addendum, dated August 7, 2017. 

(R. at 435-38, 830-32.) In her February 29, 2016 opinion, Dr. Lilley stated that she had first 

seen Plaintiff on July 23, 2015, and last seen her on November 19, 2015. (R. at 436.) She 

opined that Plaintiff had obsessive compulsive disorder, bipolar disorder, and generalized 

anxiety disorder. (Id.) She noted that Plaintiff was in therapy at Syntera, and that she has been 

in treatment with another clinician for the last several years. (R. at 436, 438.) Dr. Lilley 
9 

opined that Plaintiff “has minimal ability to tolerate stressors seen in most work setting[s]. Her 

ability to sustain full-time or even part-time employment is very poor. I do not see this 

individual capable of work.” (R. at 438.) On August 7, 2017, Dr. Lilley submitted an 

“addendum” to her February 29, 2016 opinion. (R. at 830.) In this addendum, Dr. Lilley 

indicated that Plaintiff “was seen for evaluative purposes . . . on 7.23.15, 8.22.15, 11.19.15, and 

6.29.16,” that “[s]he has not been seen since 11.19.15,” and that Dr. Lilley “ha[s] not engaged in 

her treatment.” (R. at 830.) Dr. Lilley found that Plaintiff was in the average range of 

intelligence. (R.at 831.) She opined that Plaintiff “is likely to have trouble with concentrating 

and finds it difficult to keep her mind on a task or job,” and that she has limitations in “judgment, 

decision-making, and problem solving skills.” (R. at 831-32.) She noted that Plaintiff is 

“generally uncomfortable in social situations, finds it difficult to talk to people who she does not 

know, and avoids people if given the opportunity.” (R. at 832.) Dr. Lilley also opined that 

Plaintiff is likely to have suicidal thoughts and attempts. (Id.) Dr. Lilley made the following 

conclusions: 

In conclusion, [Plaintiff] has been in treatment with several clinicians, but her 

presentation in 2015 would indicate that she has not responded to treatment. She 

was seen for a follow-up session on 6.29.16 and no improvements were apparent. 

Thus, [Plaintiff’s] ability to tolerate stressors that might be present in the work place 

are severely limited. She has severe limitations in her ability to interact with 

supervisors and co-workers in the work place. Her ability to sustain full-time or 

even part-time employment is severely limited. Her disability is not a function of 

any cognitive limitation, as her abilities are in the average range, but are the direct 

manifestation of her Obsessive Compulsive Disorder, her Bipolar Disorder Idepressed, and her Generalized Anxiety Disorder. 

(R. at 832.) 

Although Plaintiff maintains that the ALJ failed to state whether Dr. Lilley was a treating 

source, apply the treating physician rule, or give good reasons for assigning “little weight” to Dr. 
10 

Lilley’s opinions, the ALJ provided the following lengthy discussion of how he arrived at his 

determination: 

Rhonda Lilley, Ph.D., completed a functional capacity form on February 29, 2016 

and provided an addendum to this form on August 7, 2017 (Exhibit 5F, 11F). Her 

opinions have been given little weight for several reasons (Exhibit 5F). First, it 

appears that Dr. Lilley only treated the claimant on a few occasions and thus she 

did not have a longitudinal perspective of the claimant’s functioning (Exhibit 

11F/3). Next, Dr. Lilley’s opinions are not consistent with the treatment notes. 

For example, Dr. Lilley noted that the claimant resisted leaving home, could not 

attend college and had no interests outside the home, yet the evidence shows that 

the claimant was able to complete college courses, attend a convention where she 

met her favorite actor and occasionally go out to eat and go to church. While Dr. 

Lilley opined that the claimant’s symptoms did not respond to treatment, the 

claimant testified that medications helped her and the treatment notes show that 

often the claimant responded to treatment and did not present with any abnormal 

findings on psychological testing (Exhibits 9F, 10F). Finally, Dr. Lilley’s opinion 

that the claimant cannot sustain work is a determination that is reserved for the 

Commissioner. 

 

(R. at 22.) The undersigned finds no error in the ALJ’s consideration and weighing of Dr. 

Lilley’s opinion. The ALJ reasonably explained that he assigned “little” weight to Dr. Lilley’s 

opinion because (1) “Dr. Lilley only treated the claimant on a few occasions and thus she did not 

have a longitudinal perspective of the claimant’s functioning,” (2) “Dr. Lilley’s opinions are not 

consistent with the treatment notes,” and (3) “Dr. Lilley’s opinion that the claimant cannot 

sustain work is a determination that is reserved for the Commissioner.” (R. at 22.) 

 Plaintiff’s contentions of the contrary are unavailing. First, the ALJ did not err in 

considering whether Dr. Lilley was a treating source and whether her opinion was entitled to 

controlling weight. (Pl.’s Statement of Errors at 8, ECF No. 9.) Pursuant to 20 C.F.R. § 

416.927(a)(2), “treating source” is defined as follows: 

Treating source means your own acceptable medical source who provides you, or 

has provided you, with medical treatment or evaluation and who has, or has had, an 

ongoing treatment relationship with you. Generally, we will consider that you have 
11 

an ongoing treatment relationship with an acceptable medical source when the 

medical evidence establishes that you see, or have seen, the source with a frequency 

consistent with accepted medical practice for the type of treatment and/or 

evaluation required for your medical condition(s). We may consider an acceptable 

medical source who has treated or evaluated you only a few times or only after long 

intervals (e.g., twice a year) to be your treating source if the nature and frequency 

of the treatment or evaluation is typical for your condition(s). We will not consider 

an acceptable medical source to be your treating source if your relationship with 

the source is not based on your medical need for treatment or evaluation, but solely 

on your need to obtain a report in support of your claim for disability. In such a 

case, we will consider the acceptable medical source to be a nontreating source. 

20 C.F.R. § 416.927(a)(2). Thus, to qualify as a treating source, a physician must have an 

“ongoing treatment relationship” with the claimant. Id. A Court must determine whether or 

not an ongoing treatment relationship exists at the time the physician’s opinion is rendered. 

Kornecky v. Comm’r of Soc. Sec., No. 04-2171, 167 F. App’x 496, 506 (6th Cir. Feb. 9, 2006); 

see also Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883, 885 (6th Cir. 2003) (finding that “two 

examinations did not give [the physician] a long term overview of [the claimaint’s] condition.”). 

As an initial matter, by assigning “little” weight to Dr. Lilley’s opinions and stating that 

Dr. Lilley “only treated the claimant on a few occasions and thus . . . did not have a longitudinal 

perspective of the claimant’s functioning,” it can be inferred that the ALJ declined to find that 

Dr. Lilley was a treating source. (R. at 22); see 20 C.F.R. § 416.927(c)(2) (explaining that the 

reason deference is given to opinions of a treating source is because they “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 . . .”). Here, the ALJ specifically 

concluded that Dr. Lilley could not provide a longitudinal picture of Plaintiff’s impairments. 

Furthermore, the undersigned is not persuaded that Dr. Lilley was a treating source as 
12 

defined in 20 C.F.R. § 416.927(a)(2). Dr. Lilley’s August 7, 2017 opinion specifically states 

that she has “not engaged in [Plaintiff’s] treatment:” 

The following are an addendum to the information provided to ODD on 2.29.16, 

and are provided at the request of Cutter Hall Karlock LLC. 

[Plaintiff] was seen for evaluative purposes in my office on 7.23.15, 8.22.15, 

11.19.15, and 6.29.16. She has not been seen since 11.19.15 and I have not 

engaged in her treatment. A summary of that evaluation and diagnostic findings 

were provided to ODD. 

(R. at 830.) Based on Dr. Lilley’s representations, it appears that she evaluated Plaintiff for the 

purpose of providing a report in support of her disability claim, not based on a medical need for 

treatment. See 20 C.F.R. § 416.927(a)(2) (“We will not consider an acceptable medical source 

to be your treating source if your relationship with the source is not based on your medical need 

for treatment or evaluation, but solely on your need to obtain a report in support of your claim 

for disability.”); see also Boucher v. Apfel, 238 F.3d 419 (6th Cir. 2000) (finding that the ALJ 

correctly considered evaluating psychologists nontreating sources where “plaintiff consulted 

with [them] solely for the purpose of reporting to varying agencies”). 

Additionally, Dr. Lilley only saw Plaintiff on a handful of occasions, which was not 

typical of the nature and frequency with which Plaintiff received treatment for her mental health 

impairments. See 20 C.F.R. § 416.927(a)(2) (explaining that the ALJ “may consider an 

acceptable medical source who has treated or evaluated you only a few times . . . to be your 

treating source if the nature and frequency of the treatment or evaluation is typical for your 

condition(s)”); (see also Treatment Records, generally, R. at 309-900 (demonstrating frequent, 

continuous treatment and evaluation from treating mental health specialist, Jodi Kauble, and 

treating psychiatrist, Dr. Eric Kahn)); see also Downs v. Comm’r of Soc. Sec., 634 F. App’x 551, 
13 

556 (6th Cir. 2016) (noting that “the handful of visits Downs had with Dr. Murphy do not 

necessarily render Dr. Murphy a ‘treating source’ with an ‘ongoing treatment relationship’”). 

Furthermore, when asked about her current treatment, Plaintiff responded: 

A. Well, I see three different people. One, Jod[i] [Kauble], she comes to the 

house, like, usually, every two weeks, and she sees both me and my sister. Then I 

see Dr. Kahn, who, I guess, is a psychiatrist. He kind of just prescribes 

medications, basically. He doesn’t really try to help, like, give ideas on how to 

improve. That’s usually what Jod[i] does. And I see – 

Q. Sure. 

A. – Chris Frazer a couple times a year. I don’t see him as often as other people 

in my family do. It’s kind of a family thing for Christian counseling, basically. 

And – but I don’t go to that very often, only every couple months, really. 

(R. at 42-43.) Plaintiff did not mention any ongoing treatment relationship with Dr. Lilley. 

(Id.) She also did not submit any treatment notes from Dr. Lilley demonstrating an ongoing 

treatment relationship. See Francis v. Comm’r of Soc. Sec., No. 2:17-CV-1022, 2018 WL 

4442596, at *8 (S.D. Ohio Sept. 18, 2018) (“To the extent other records exist that would 

establish a treating relationship, it was Plaintiff’s burden to supply those records.”) (citing 20 

C.F.R. § 404.1512(a)(1)). Indeed, despite Dr. Lilley’s report stating that she evaluated Plaintiff 

on a few different occasions, Plaintiff submitted no records from those evaluations. Dr. Lilley’s 

February 2016 assessment also states that Plaintiff “has been in treatment w[ith] another 

clinician for last several years,” and refers to those treatment records in response to certain 

questions. (R. at 438-39.) Based upon the foregoing, the undersigned is not persuaded that Dr. 

Lilley had an ongoing treatment relationship with Plaintiff. 

 Nonetheless, even if Dr. Lilley were a treating source, the ALJ appropriately considered 

her opinions and reasonably declined to assign them controlling weight. Here, the ALJ 
14 

reasonably discounted Dr. Lilley’s opinions based on his finding that they were not consistent 

with the treatment notes in the record. The ALJ first found that Dr. Lilley’s opinion that 

“claimant resisted leaving home, could not attend college and had no interests outside the home,” 

was not supported by evidence in the record, which instead reflected that Plaintiff “was able to 

complete college courses, attend a convention where she met her favorite actor and occasionally 

go out to eat and go to church.” (R. at 22.) In other parts of his decision, the ALJ considered 

that Plaintiff “had a summer internship,” “was able to go on vacation,” and “was able to 

complete college courses, take multiple tests in a week, and graduate.” (R. at 21-22.) These 

findings are supported by substantial evidence in the record. (See, e.g., Treatment Notes, R. at 

609 (“Clt had three tests last week. She had an increase in anxiety, however she used coping 

skills to manage anxiety. She reports that she didn’t have a panic attack or throw up. Classes 

are going well.”); R. at 637 (“Discussed recent symptoms and how clt is doing with summer 

internship.”); R. at 681 (“Clt finished up her class and graduated from Columbus State”); R. at 

683 (“Discussed how clt did on trip and how clt managed anxiety during trip.”); R. at 687 (“Clt 

got in her application for OSU.”); R. at 699 (“Clt did well on family vacation and has been more 

willing to leave the house. She was more depressed after vacation was over. Clt expressed a 

willingness to keep fighting.”); R. at 809 (“Pt went to another convention for her TV idol and 

spoke to him briefly again which was positive.”).) (See also Pl.’s Testimony, R. at 48 

(explaining that she met a classmate at Westerville Library to work on a project); R. at 54 

(testifying that she will go out to eat “if it’s someplace [she] really likes”); R. at 37 (testifying 

that she still plans to enroll in OSU part-time).). 

The ALJ also found that Dr. Lilley’s opinion that Plaintiff’s symptoms did not respond to 
15 

treatment was inconsistent with Plaintiff’s testimony that her medications helped her and 

treatment notes in the record showing improvement. (R. at 22.) The ALJ’s finding is 

supported by substantial evidence in the record. Plaintiff testified that her medications help. 

(R. at 42.) Treatment notes in the record also demonstrate that Plaintiff responded to 

medications and treatment. (See, e.g., R. at 725, 730, 745, 770, 779, 789, 794, 820.) On July 4, 

2017, Plaintiff’s treating psychiatrist, Dr. Kahn, noted that Plaintiff is “doing well, meds are 

‘perfect.’” (R. at 820.) 

The ALJ also found Dr. Lilley’s opinions inconsistent with records of psychological 

testing, which did not reveal abnormal findings. (R. at 22 (citing R. at 550-707, 708-827).) For 

example, Dr. Kahn performed a mental status examination on June 20, 2017, and noted that 

Plaintiff had normal appearance/behavior; normal gait/ movement; normal speech/ language; 

euthymic mood; full-range effect; normal thought process/ orientation; no hallucinations; no 

suicidal/ self-injurious behaviors; no homicidal behaviors; normal orientation/ attention/ 

concentration; normal memory/ fund of knowledge; and good judgment/ insight. (R. at 815.) 

On April 27, 2015, consultative examiner John S. Reece, Psy.D., noted largely normal findings 

on mental status examination and found that Plaintiff was “mildly” anxious. (R. at 346-348.) 

Thus, even if Dr. Lilley were a treating physician, the ALJ reasonably declined to assign her 

opinions controlling or any other significant weight. See 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.’”). 

 The ALJ set forth two additional reasons that support his decision to discount Dr. Lilley’s 
16 

opinions. As set forth above, the ALJ found that “Dr. Lilley only treated the claimant on a few 

occasions and thus she did not have a longitudinal perspective of the claimant’s functioning.” 

(R. at 22.) The ALJ appropriately considered Dr. Lilley’s treatment relationship with Plaintiff 

in discounting her opinions. See 20 C.F.R. § 404.1527(c)(2) (identifying the length of the 

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

relationship as relevant considerations in weighing a medical opinions). The ALJ also 

appropriately rejected Dr. Lilley’s opinion that Plaintiff cannot sustain work because such a 

determination is reserved to the Commissioner. See Bass v. McMahon, 499 F.3d 506, 511 (6th 

Cir. 2007) (explaining that “the conclusion of disability is reserved to the [Commissioner]”). 

Although the ALJ will consider opinions of physicians “on the nature and severity of [a 

claimant’s] impairment(s),” opinions on issues reserved to the Commissioner are generally not 

entitled to special significance. 20 C.F.R. § 404.1527(d); Bass, 499 F.3d at 511. 

In summary, the undersigned finds no error in the ALJ’s consideration and weighing of 

Dr. Lilley’s opinions. Although Plaintiff points to some evidence that could support an 

alternative finding (Pl.’s Statement of Errors at 10-11, ECF No. 9), the ALJ’s findings were 

within the ALJ’s permissible “zone of choice,” and the undersigned will not re-weigh the 

evidence. See Blakley, 581 F.3d at 406; see also 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)). Accordingly, the undersigned RECOMMENDS that Plaintiff’s first 

contention of error be OVERRULED. 
17 

B. The ALJ’s RFC Assessment and Hypothetical to the VE 

 Plaintiff next asserts that the ALJ’s finding that Plaintiff “will be off tasks 8% of the 

time, approximately five minutes per hour” is not supported by substantial evidence. (Pl.’s 

Statement of Errors at 11-14, ECF No. 9.) Plaintiff contends that the ALJ “provided no support 

for how he determined that Plaintiff would be off task 8% of the work day, as opposed to 7%, 

10% or some other figure.” (Id. at 12.) Within this contention of error, Plaintiff asserts that the 

ALJ failed to specifically address her reports of panic attacks and “shutting down” and how they 

affect her ability to remain on task. (Id.) As a result, Plaintiff asserts, the hypothetical to the 

VE did not account for all of her mental limitations, and the VE’s testimony cannot constitute 

substantial evidence that she is able perform work in the national economy. (Id.) The 

Commissioner counters that the RFC was supported by substantial evidence and that because no 

medical source opined that Plaintiff “required any time to be off task, let alone five minutes per 

hour, the ALJ was reasonable in allowing Plaintiff to be off task approximately five minutes per 

hour based solely on her subjective report at the hearing.” (Def.’s Mem. in Opp. at 15, ECF No. 

16.) The undersigned agrees with the Commissioner and finds Plaintiff’s second contention of 

error to be without merit. 

As an initial matter, the ALJ adequately considered Plaintiff’s testimony regarding panic 

attacks and “shutting down” in assessing her RFC. At the hearing, Plaintiff testified that she has 

panic attacks when something frightens her, such as death and dying. (R. at 39.) She stated 

that she has panic attacks “like every other day,” and that they last for “like, half an hour.” (R. 

at 39-40.) She testified that she hyperventilates, shakes, and gets nauseous when having a panic 

attack, and that, if it occurs in public, she tries to mask it. (R. at 39-40.) Regarding “shutting 
18 

down,” Plaintiff testified that when she gets “stressed out,” it is hard for her to do anything and 

she shuts down. (R. at 38-39.) She explained that she “feel[s] like [she] can’t do anything 

except try to – [ ] basically try to force myself to finish it.” (Id.) 

The ALJ’s analysis demonstrates that he sufficiently considered Plaintiff’s allegations of 

panic attacks, shutting down, and intrusive thoughts. The ALJ expressly considered Plaintiff’s 

testimony that she “has panic attacks and that they last for about half an hour and she 

hyperventilates and gets nauseous.” (R. at 19.) He further considered her testimony that if a 

panic attack occurs in public, “she tries to ‘mask’ it and goes to the bathroom.” (Id.) 

Additionally, the ALJ considered Plaintiff’s testimony that she “is unable to work because she 

gets stressed out easily,” as well as her reports of anxiety. (R. at 19.) Although the ALJ did not 

specifically mention Plaintiff’s testimony regarding “shutting down,” it is well established that 

an ALJ is not required to “discuss every piece of evidence in the record to substantiate [his] 

decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 (6th Cir. 2016) (citing 

Thacker v. Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004)); see also Dykes ex rel. 

Brymer v. Barnhart, 112 F. App’x 463, 467–68 (6th Cir. 2004) (“Although required to develop 

the record fully and fairly, an ALJ is not required to discuss all the evidence submitted, and an 

ALJ’s failure to cite specific evidence does not indicate that it was not considered.”) (citations 

omitted). 

Moreover, the ALJ specifically stated that he “considered all of the evidence in the record 

and f[ound] it to be inconsistent with [Plaintiff’s] subjective allegations.” (R. at. 22.) The ALJ 

explained this finding as follows: 

In addition to the above medical evidence and opinions, I have considered all 

evidence of record and find it to be inconsistent with her subjective allegations. 
19 

As discussed throughout the record above, the claimant performs many activities 

that are not consistent with her allegations of total disability. The treatment notes 

revealed that she had a summer internship, attended college classes, went to a 

convention to see her favorite actor and was able to go on vacation (Exhibits 9F/88, 

132-134, 10F/102). At the hearing, the claimant explained that she went on a 

family vacation and convention but that this was the first one she had gone to in 

years. However, the record shows that she went on vacation in August 2016 

(Exhibit 9F/132-134) and she went to “another convention” to see her favorite actor 

in May 2017 (Exhibit 10F/102). Throughout treatment notes, the claimant was 

documented to have moderate symptoms and often did not have any abnormal 

findings on mental status evaluations. Overall, the record is not consistent with 

her subjective allegations. 

(R. at 22.) Thus, the ALJ did not find Plaintiff’s subjective complaints regarding her symptoms 

to be fully consistent with the record.2

 

Furthermore, after providing an overview of Plaintiff’s subjective reports and the 

objective medical evidence, the ALJ explained that Plaintiff’s allegations were “included in the 

[RFC] to the extent that they are consistent with the evidence as whole.” (R. at 22.) With 

respect to being off-task, the ALJ explained as follows: 

I find that due to her combination of impairments she would be off task 8% of the 

time, approximately five minutes per hour and can tolerate occasional changes in 

the workplace. Overall, the records show that the claimant does have some mental 

health symptoms but overall she reported improvement with medication and 

counseling (Exhibits 9F, 10F). She has supportive family and receives consistent 

treatment and, as a result, the evidence shows that she has primarily moderate 

symptoms and normal findings on mental status testing. 

(R. at 21.) Plaintiff’s contention that the ALJ failed to support this finding with specific 

evidence is unavailing, as the ALJ reached his RFC determination after providing an overview of 

Plaintiff’s testimony, activities of daily living, and treatment records. (R. at 19-21.) The 

 

2 Plaintiff does not challenge the ALJ’s credibility analysis, and the undersigned declines to 

disturb it. See McPherson v. Kelsey, 125 F.3d 989, 996-96 (6th Cir. 1997) (“[I]ssues adverted to 

in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed 

waived.” (internal quotation marks and citations omitted)). 
20 

undersigned finds that the ALJ adequately explained his rationale for providing leeway for 

Plaintiff to be off tasks 8% of the day, approximately five minutes per hour.3

 

Plaintiff, on the other hand, fails to point to any evidence that would support additional 

RFC restrictions. See 20 C.F.R. § 416.912 (explaining Plaintiff has burden of proving she is 

disabled). In fact, Plaintiff’s medical records only refer to panic attacks on one occasion. (R. 

at 703 (“Clt reports having recent panic attacks.”).) The consultative examiner, Dr. Reece, 

specifically noted that “[n]o panic attacks were reported,” but noted she reported “periods of 

increased anxiousness with only shortness of breath and nausea.” (R. at 347.) Dr. Lilley’s 

reports also do not mention panic attacks. (R. at 437, 830-32). And although Plaintiff points to 

several records that document her reports of “intrusive” thoughts, she fails to point to any 

evidence demonstrating that they would cause her to be off task more than approximately 5 

minutes per hour. (See Pl.’s Statement of Errors at 12, ECF No. 9 (citing R. at 311, 355, 437, 

589, 605, 695, 697, 703).) Plaintiff also fails to point to any evidence demonstrating the length 

of her “intrusive thoughts” and to explain what additional limitations the ALJ should have 

included in her RFC. See Ware v. Comm’r of Soc. Sec., No. 2:17-CV-01015, 2019 WL 696945, 

at *11 (S.D. Ohio Feb. 20, 2019) (“[W]here a plaintiff challenges an ALJ’s mental-health related 

findings but does not explain what limitations the ALJ erred in excluding or point to any 

evidence from within the applicable period suggesting that she had additional mental-health 

related restrictions, then the plaintiff’s challenge is meritless”) (citing McNier v. Comm’r of Soc. 

 

3 The undersigned notes that Plaintiff would also have regularly scheduled breaks throughout 

the day. See Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 724 (6th Cir. 2013) (finding that 

breaks every two hours are “normal and assumed to be present in most jobs”). 
21 

Sec., 166 F. Supp. 3d 904, 914 (S.D. Ohio Feb. 23, 2016)). Accordingly, the undersigned finds 

no error in the ALJ’s RFC assessment. 

Finally, the ALJ properly relied upon the VE’s testimony in determining that Plaintiff 

could perform work in the national economy. The Sixth Circuit has “held repeatedly that the 

testimony of a vocational expert identifying specific jobs available in the regional economy that 

an individual with the claimant’s limitation can perform can constitute substantial evidence 

supporting an ALJ’s finding at step 5 that the claimant can perform other work.’” Staymate v. 

Comm’r of Soc. Sec., 681 F. App’x 462, 469 (6th Cir. 2017) (quoting Wilson v. Comm’r of Soc. 

Sec., 378 F.3d 541, 549 (6th Cir. 2004) (citations omitted)). “In order for a vocational expert’s 

testimony in response to a 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.” See Ealy, 594 F.3d at 516. In formulating the 

hypothetical, an ALJ is only “required to incorporate those limitations accepted as credible by 

the finder of fact.” Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 

1993). 

The undersigned finds that the ALJ’s hypothetical question incorporated all of the 

limitations that the ALJ found credible and supported by the evidence and, therefore, was proper. 

As set forth above, Plaintiff fails to identify any evidence the ALJ found credible that 

demonstrates she would be off task more than five minutes per hour or that supports additional 

RFC restrictions. 

Furthermore, Plaintiff’s contention that the RFC assessment was not “sufficiently specific 

enough to rule out a work preclusive off task limitation,” (Pl.’s Statement of Errors at 13, ECF 
22 

No. 9), is unavailing. In posing the hypothetical to the VE, the ALJ specifically stated that the 

hypothetical individual with Plaintiff’s age, education, and RFC “would be off task 8% of the 

time, which is roughly five minutes per hour.” (R. at 56.) The VE testified that the 

hypothetical individual could perform jobs such as laundry worker, machine packager, and floor 

technician. (R. at 56-57.) On cross-examination, Plaintiff’s counsel asked the VE if it would 

make a difference if Plaintiff was off-task 8% of the day, but instead of for five minutes per hour, 

for two additional twenty-minute breaks or one additional forty-minute break. (R. at 58.) The 

VE testified that it would make a difference and that under the scenario presented by Plaintiff’s 

counsel, the amount of time off-task would be problematic. (R. at 58-59.) Based on this 

testimony, Plaintiff argues the RFC assessment does not rule out a work preclusive off-task 

limitation. The undersigned is not persuaded. The ALJ’s hypothetical to the VE specifically 

stated that Plaintiff “would be off task 8% of the time, which is roughly 5 minutes per hour.” 

(See also Plaintiff’s RFC at R. 18-19 (determining “Plaintiff will be off tasks 8% of the time, 

approximately five minutes per hour.”). The VE clearly interpreted the hypothetical to mean 

that Plaintiff would be off task for five minutes per hour, as opposed to some other combination 

of time that amounts to 8% of the work day. Indeed, under the ALJ’s hypothetical, the VE 

found that Plaintiff could perform work. (R. at 56-57.) When Plaintiff’s counsel altered the 

hypothetical from being off-task for five minutes per hour to two additional twenty-minute 

breaks or one additional forty-minute break, the VE testified that it would “make a difference” 

and pose a problem. (R. at 58-59.) Thus, the ALJ clearly understood the ALJ’s hypothetical 

and interpreted it to mean that Plaintiff would be off task for five minutes per hour, not some 

other combination of time that amounts to 8% of the day. 
23 

Accordingly, the ALJ did not err in relying on the VE’s testimony to conclude that she 

can perform jobs in the national economy. The undersigned therefore RECOMMENDS that 

Plaintiff’s second contention of error be OVERRULED. 

V. 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. 

VI. 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 
24 

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). 

 /s/ Chelsey M. Vascura 

CHELSEY M. VASCURA 

UNITED STATES MAGISTRATE JUDGE