Tester-Kopec v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY E. TESTER-KOPEC, 	) 	CASE NO. 1:25-cv-00001
)
Plaintiff, 	) 	JUDGE BRIDGET MEEHAN BRENNAN
)
v. 	)
)
COMMISSIONER OF SOCIAL 	) 	MEMORANDUM OPINION
SECURITY, 	) 	AND ORDER
)
Defendant. 	)
Before the Court is Magistrate Judge James E. Grimes’ Report and Recommendation
(“R&R”) recommending the Commissioner of Social Security’s decision be affirmed. (Doc. 13.)
Plaintiff Kelly E. Tester-Kopec (“Tester-Kopec”) timely filed objections (Doc. 14), and
Defendant Commissioner of Social Security (“Defendant”) responded. (Doc. 15.)
For the following reasons, Tester-Kopec’s objections are OVERRULED, the R&R is
ACCEPTED and ADOPTED, and the Commissioner’s final decision is AFFIRMED.
I. 	BACKGROUND
A. 	Tester-Kopec’s Medical History
Tester-Kopec does not object to the factual record and procedural history in the R&R.
(See Doc. 14.) 1 Notwithstanding, the Court summarizes the facts pertinent to Tester-Kopec’s
objections.
In her application for Supplemental Security Income (“SSI”), Tester-Kopec claimed
hearing loss in both ears, cholesteatoma in her left ear, progressive arthritis, thyroid removal,
1 For ease and consistency, briefing citations reflect the electronically stamped CM/ECF
document and PageID# rather than any internal pagination.
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ovarian cysts removal, and left arm issues. (Doc. 13 at 2662.) She previously worked as a
dishwasher and a cafeteria food service worker. (Id. at 2663.)
In September 2019, test results showed concerns about a left middle ear cholesteatoma.
(Id.) In July 2020, Tester-Kopec saw an orthopedist for her left shoulder pain. (Id.) This exam
noted no swelling, atrophy, or deformity, and normal strength, but pain with range of motion and
positive impingement signs. (Id. at 2663-64.) Tester-Kopec was diagnosed with left shoulder
impingement and complete rotator cuff tear or rupture and given a home exercise program. (Id.
at 2664.) In August 2020, she complained of joint pain, swelling, and stiffness in her thumbs
and ankles. (Id.) Tester-Kopec exhibited normal strength and range of motion and no joint
deformities, and testing showed she was negative for rheumatoid factor and antinuclear
antibodies. (Id.) An MRI showed a rotator cuff tear and Tester-Kopec was recommended to
undergo shoulder surgery in September 2020. (Id.)
In January 2021, Tester-Kopec underwent surgery on her left ear, and reported feeling
better following the operation. (Id.) In May, Tester-Kopec showed signs of a recurrent
cholesteatoma and a perforation in her right ear. (Id. at 2664-65.) In July 2021, she complained
of hand and foot pain that made it hard to walk or drive, though her exams showed full range of
motion and normal strength in her extremities. (Id. at 2665.) X-rays were unremarkable. (Id.)
That month, Tester-Kopec saw Dr. James Bircher (“Dr. Bircher”) for a consultative exam. (Id.)
He noted hearing loss in both ears, left shoulder pain, lower back pain, unsteady gait, and
reliance on a cane. (Id.) In sum, Dr. Bircher noted Tester-Kopec had normal strength and range
of motion but would have difficulty walking for more than an hour, standing for an hour, or
lifting twenty pounds. (Id. at 2666.) In July 2021, Tester-Kopec also saw a doctor to assess her
right ankle and foot pain and was advised to continue a home exercise program. (Id.)
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In October 2021, Tester-Kopec was seen for joint pain and swelling and exhibited full
range of motion and normal strength. (Id. at 2667.) In November 2021, she was diagnosed with
persistent conductive hearing loss in her left ear. (Id.) Tester-Kopec underwent surgery in early
2022 and exhibited no signs of recurrence at an appointment fourteen months later. (Id.) In
April 2023, Tester-Kopec went to the emergency room after tripping down a flight of stairs.
(Id.)
In June 2024, Tester-Kopec inquired about orthotics for flat feet and ankle deformities.
(Id.) Tester-Kopec was fitted for braces, prescribed steroids, referred to physical therapy, and
ordered to attend a follow-up appointment. (Id.) Two weeks later, she was seen for pain in her
right shoulder and diagnosed with right shoulder impingement after an MRI revealed
abnormalities. (Id. at 2668.) In July 2024, Tester-Kopec was assessed with “unspecified
osteoarthritis” after requesting a CT scan. (Id.) She stated she had difficulty walking due to her
ankles dislocating. (Id.)
A few days later, Tester-Kopec reported vertigo, difficulty hearing, as well as swelling,
stiffness, and pain in her left arm to Dr. Sara Noureldin (“Dr. Noureldin”). (Id.) Tester-Kopec
exhibited unsteady gait and used a cane. (Id. at 2669.) She could not squat, get up or down from
the exam table, or jump on one foot. (Id.) Dr. Noureldin diagnosed Tester-Kopec with severe
hearing impairment, chronic ankle instability, a high fall risk, left arm osteoarthritis, and severe
ankle pain. (Id.) In Dr. Noureldin’s opinion, Tester-Kopec had severe limitations in sitting,
standing, walking, motor skill (i.e., lifting, carrying, grasping, and feeling) because of pain,
vertigo, ankle instability, and high risk of falling. (Id.)
B. 	State Agency Opinions
In September 2020, Dr. Dimitri Teague (“Dr. Teague”) assessed Tester-Kopec’s residual
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functional capacity (“RFC”) and determined she could perform light work. (Id. at 2670.) In
September 2021, Dr. Leslie Green (“Dr. Green”) reviewed this conclusion and affirmed Dr.
Teague’s finding, adding environmental restrictions based on Tester-Kopec’s hearing loss. (Id.)
C. 	Tester-Kopec’s First Administrative Hearing and Appeal
In January 2022, Tester-Kopec, who was represented by counsel, testified at an
administrative hearing before an Administrative Law Judge (“ALJ”). (Id. at 2671.) In February
2022, the ALJ found Tester-Kopec was not disabled. (Id. at 2662.) Tester-Kopec appealed. The
decision was vacated and the matter remanded for further proceedings consistent with the
Court’s October 20, 2023, Order. (Id.); see Kopec v. Comm’r of Soc. Sec., No. 1:23-CV-680,
2023 U.S. Dist. LEXIS 188606, 2023 WL 6958636 (N.D. Ohio Oct. 20, 2023) (“Tester-Kopec
I”).
At issue in Tester-Kopec I was the ALJ’s determination that “the treatment notes did not
establish the need for a cane or that [Tester-Kopec] could walk, stand, or sit for only one hour.”
Id. at *5. The ALJ also highlighted the treatment notes “failed to document substantial problems
with [Tester-Kopec] being on her feet or sitting” and “the ongoing need for a cane or any
ambulatory aid.” Id. She appealed the ALJ’s decision and argued the ALJ failed to discuss the
supportability factor of Dr. Bircher’s testimony. Id. at *6. The court agreed. Id. In the court’s
October 20, 2023, Order, the court found “the ALJ’s explanation about the inconsistency of Dr.
Bircher’s opinion with other evidence in the record doesn’t fulfill the ALJ’s obligation to explain
the supportability factor.” Id. The court also found the ALJ’s exclusion of supportability was
not harmless error. Id. at *7. As a result, the court determined the ALJ “erred in evaluating Dr.
Bircher’s opinion” and remanded the case so that the supportability factor of Dr. Bircher’s
findings could be addressed.
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D. 	Tester-Kopec’s Second Administrative Hearing
A second administrative hearing then took place in September 2024. Tester-Kopec
testified. (Doc. 13 at 2671-73.) Dr. Steven Golub (“Dr. Golub”), a medical expert, testified he
could not describe any functional limitations because most of Tester-Kopec’s physical issues
were subjective in nature. (Id. at 2673.) Thomas Nimberger (“Mr. Nimberger”), a vocational
expert, testified Tester-Kopec could not perform her previous work but could perform the duties
of a document preparer, surveillance systems monitor, and addresser. (Id. at 2674.) Mr.
Nimberger testified about how these jobs were performed at the time of the hearing. (Id.)
While the ALJ found Tester-Kopec had severe impairments, namely osteoarthritis,
irritable bowel syndrome, left shoulder rotator cuff tear and impingement syndrome, ankle pain,
vertigo, and conductive hearing loss, these impairments alone or in combination were
insufficient to meet or be medically equal to the severity of one of the impairments listed in 20
CFR Part 404, Subpart P. (Id.) The ALJ found Tester-Kopec could perform sedentary work as
defined in 20 CFR § 416.967(a). Tester-Kopec could occasionally balance, stoop, kneel, crouch,
crawl, and climb ramps and stairs. She could have no exposure to unprotected heights,
hazardous machinery, or commercial driving. Tester-Kopec was also limited to work performed
in a moderate noise environment, consistent with an office setting. (Id.) In sum, the ALJ
concluded Tester-Kopec did not establish a disability as defined by 20 CFR § 404.1520(g) and
20 CFR § 419.920(g) during the relevant period. (Id. at 2676.)
E. 	Procedural History
In July 2020, Tester-Kopec filed an application for SSI, claiming a disability onset date
of July 23, 2020. (Id. at 2661.) The Social Security Administration denied her application and
motion for reconsideration. (Id. at 2662.) At Tester-Kopec’s request, a hearing before an ALJ
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occurred in January 2022, where Tester-Kopec and a separate vocational expert testified. (Id.)
In February 2022, the ALJ issued a written decision finding Tester-Kopec was not disabled. (Id.)
In Tester-Kopec I, the Commissioner’s decision was vacated and the matter remanded for
further proceedings. In September 2024, a different ALJ held an administrative hearing where
Tester-Kopec, a medical expert, and Mr. Nimberger testified. (Id.) The ALJ concluded she was
not disabled. (Id.)
On January 2, 2025, Tester-Kopec appealed the second ALJ’s finding to this Court (Doc.
1) raising three assignments of error (Doc. 9 at 2605). On June 25, 2025, the R&R
recommended the Court affirm the Commissioner’s final decision. (Doc. 13.) Tester-Kopec
timely submitted four specific objections. (Doc. 14.) The Commissioner responded. (Doc. 15.)
II. 	LAW AND ANALYSIS
A. 	Standard of Review
A district court “shall make a de novo determination of those portions or specified
proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C)
(flush language); see Powell v. United States, 37 F.3d 1499 (Table), 1994 U.S. App. LEXIS
35044, 1994 WL 532926, at *1 (6th Cir. Sept. 30, 1994) (“Any report and recommendation by a
magistrate judge that is dispositive of a claim or defense of a party shall be subject to de novo
review by the district court in light of specific objections filed by any party.”) (citations omitted).
“A judge of the court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).
The Social Security Act defines “disability” as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
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period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).
The impairment must prevent the claimant from doing the claimant’s previous work, as
well as any other work which exists in significant numbers in the region where the individual
lives or in several regions of the country. 42 U.S.C. § 423(d)(2)(A). In making a disability
determination, an ALJ engages in a five-step sequential evaluation:
1. 	If the claimant is doing substantial gainful activity, he is not disabled.
2. 	If the claimant is not doing substantial gainful activity, his impairment must be
severe before he can be found to be disabled. To be severe, the claimant must
have a severe medically determinable physical or mental impairment, or a
combination of impairments, that must have lasted or be expected to last for at
least 12 months, unless it is expected to result in death.
3. 	If the claimant is not doing substantial gainful activity and is suffering from a
severe impairment that has lasted or is expected to last for a continuous period
of at least twelve months, and his impairment meets or equals a listed
impairment in Appendix 1 to Subpart P of Part 404, the claimant is presumed
disabled without further inquiry.
4. 	If the impairment does not meet or equal a listed impairment, the ALJ must
assess the claimant’s residual functional capacity and use it to determine if the
claimant’s impairment prevents him from doing past relevant work. 	If the
claimant’s impairment does not prevent him from doing his past relevant work,
he is not disabled.
5. 	If the claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is capable
of performing other work that exists in significant numbers in the national
economy.
20 C.F.R. §§ 404.1520, 416.920; see also Quisenberry v. Comm’r of Soc. Sec., 757 F. App’x
422, 426 (6th Cir. 2018) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.
1997)).
During the first four steps, the claimant bears the burden of proof. Walters, 127 F.3d at
529. The “burden shifts to the Commissioner only at step five.” Id.
The Court’s review of the Commissioner’s decision to deny benefits is limited to
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determining whether the ALJ applied the correct legal standards and whether the findings are
supported by substantial evidence. 42 U.S.C. § 405(g); Kyle v. Comm’r of Soc. Sec., 609 F.3d
847, 854 (6th Cir. 2010). “Substantial evidence is ‘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.’” McGlothin v. Comm’r of Soc. Sec., 299 F. App’x 516, 521 (6th Cir.
2008) (quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal
citation omitted)). “The standard ‘presupposes that there is a zone of choice within which the
decisionmakers can go either way, without interference by the courts.’” Edwards v. Comm’r of
Soc. Sec., No. 23-5490, 2024 U.S. App. LEXIS 3315, 2024 WL 2705000, at *2 (6th Cir. Feb. 12,
2024) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc) (citation omitted)).
If substantial evidence supports the Commissioner’s finding that the claimant is not disabled, that
finding must be affirmed even if the reviewing court would decide the matter differently. Cutlip
v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citation omitted).
A reviewing court is not permitted to resolve conflicts in evidence or to decide questions
of credibility. Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007) (citation omitted). The
Commissioner’s decision must be affirmed even if the claimant’s position is also supported by
substantial evidence. Wallace v. Comm’r of Soc. Sec., 221 F.3d 1337 (Table), 2000 U.S. App.
LEXIS 24244, 2000 WL 799749, at *1 (6th Cir. 2000) (citing Casey v. Sec’y of Health & Hum.
Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)).
B. 	First Objection: Compliance with the October 20, 2023 Order
In October 2023, Tester-Kopec’s case was remanded so “[t]he ALJ [could] explain the
supportability factor [and] whether and to what extent Dr. Bircher’s opinion was supported by
Dr. Bircher’s own evaluation of [Tester-Kopec].” Kopec, 2023 WL 6958636, at *6.
In determining the persuasiveness of a medical opinion, ALJs consider several factors:
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“the opinion’s supportability and consistency; the treating source’s relationship with the claimant
and specialization; and other factors, such as the medical source’s familiarity with other evidence
relevant to the claim.” Sallaz v. Comm’r of Soc. Sec., No. 23-3825, 2024 U.S. App. LEXIS
14411, 2024 WL 2955645, at *5 (6th Cir. June 12, 2024); 20 C.F.R. § 404.1520c. Of these
factors, “the two most important are supportability and consistency.” 20 C.F.R. §
404.1520c(b)(1); Sallaz, 2024 WL 2955645, at *5 (“Supportability and consistency are ‘the most
important factors,’ and the ALJ must explain her consideration of them.”). “[T]he ALJ may, but
is not required to, explain how she considered the other factors.” Sallaz, 2024 WL 2955645, at
*5; 20 C.F.R. § 404.1520c(b)(2).
Supportability and consistency are two distinct concepts. See 20 C.F.R. § 404.1520c(1)-
(2). Supportability goes to “how well a medical source’s own objective findings and
explanations support [its] own medical opinion.” Ford, 2023 WL 2088157, at *17; 20 C.F.R. §
404.1520c(1). Consistency goes to “how consistent a medical opinion is with the record
evidence from other medical and nonmedical sources.” Ford v. Comm’r of Soc. Sec. Admin., No.
20-cv-524, 2023 U.S. Dist. LEXIS 27912, 2023 WL 2088157, at *17 (N.D. Ohio Jan. 31, 2023);
20 C.F.R. § 404.1520c(2). In assessing both, “an ALJ ‘need not necessarily use the words
“supportability” or “consistency,” as long as the ALJ still performs the requisite analysis of these
factors,’ and a reviewing court is able to follow the ALJ’s reasoning.” Id. at *18 (quoting Todd
A. v. Kiljakazi, No. 20-cv-594, 2021 U.S. Dist. LEXIS 221864, 2021 WL 5348668, at *4-5 (E.D.
Va. Nov. 16, 2021)). An ALJ is also not required to discuss each piece of data in their opinion
so long as they “consider the evidence as a whole and reach a reasoned conclusion.” Bosley v.
Comm’r of Soc. Sec. Admin, 397 F. App’x 195, 199 (6th Cir. 2010).
Tester-Kopec challenges supportability only. To her, the ALJ’s analysis “added
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additional wording” but failed “to conform to the regulations” because it did not adequately
address the supportability factor of Dr. Bircher’s opinion. (Doc. 14 at 2692.) Tester-Kopec also
argues Dr. Bircher’s opinion is not “vague” and urges this Court to find the ALJ’s opinion did
not provide “any additional accurate information.” (Id. at 2691-92.)
Defendant points out that Tester-Kopec’s objection begins with an argument about
consistency, not supportability. (Doc. 15 at 2703.) This challenge was not raised in her Brief to
the magistrate judge and “should be deemed forfeited.” (Id.) Next, Defendant highlights that the
parties agree the ALJ’s discussion of vagueness weighs on the supportability of Dr. Bircher’s
opinion. (Id. at 2704.) Therefore, “the only question is whether substantial evidence supports
the ALJ’s decision finding Dr. Bircher’s opinion vague.” (Id.)
Tester-Kopec’s argument that the ALJ’s wording does not add to its analysis is not
supported by the record. The ALJ described Dr. Bircher’s assessment as “relatively vague”
despite his personal examination of Tester-Kopec. (Doc. 7 at 1076.) This holding is an
assessment of his opinion’s supportability. See Molnar v. Comm’r of Soc. Sec., 2024 U.S. Dist.
LEXIS 62615, 2024 WL 1521243, at *13 (N.D. Ohio Apr. 3, 2024) (affirming ALJ’s opinion
that “vague” limitations “detracted from any meaningful supportability of this opinion”); see also
Maldonado v. Comm’r of Soc. Sec., 2025 U.S. Dist. LEXIS 70236, 2025 WL 1104886 at *2
(N.D. Ohio Apr. 14, 2025) (discussing vagueness and supportability).
The ALJ also noted both where Dr. Bircher’s exam generally supported his findings and
where it did not. (Doc. 7 at 1076.) The ALJ found Dr. Bircher’s conclusion Tester-Kopec is
“limited to sedentary work broadly” was “generally supported.” (Id.) In contrast, the ALJ noted
Dr. Bircher’s exam “did not support the finding that [Tester-Kopec] could only sit for an hour”
because he “did not explain what findings support such limitation.” (Id.) The ALJ also noted
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Dr. Bircher’s exam “did not show an ongoing need for an ambulatory aid” but rather reflected
that Tester-Kopec described “only intermittent complaints and treatment” for her shoulder pain,
improvement in her ankle pain, and instability with braces. (Id.) Finally, the ALJ concluded
“Dr. Bircher’s opinion was not supported by his own exam and was inconsistent with the
evidence as a whole.” (Id.) Taken together, the ALJ’s analysis properly added specific
observations of supportability. (Compare id. at 53 with id. at 1076.) “If supported by substantial
evidence, the Commissioner’s decision must be affirmed, even if the reviewing court would
decide the case differently.” Wallace, 221 F.3d 1337 at *1. This objection is OVERRULED.
C. 	Second Objection: The R&R’s Description of Dr. Golub’s Testimony
To Tester-Kopec, the R&R misleadingly and inaccurately described Dr. Golub’s
testimony.2 (Doc. 14 at 2692-93.) “[N]one of the medical source opinions supported the ALJ’s
RFC,” and the R&R mistreated Dr. Golub’s analysis of her symptoms. (Id. at 2693.)
In the last sentence, Tester-Kopec suggests Dr. Golub’s testimony was not sufficient to
support the RFC analysis. (Doc. 14 at 2693.) Defendant does not address this section of Tester-
Kopec’s objection. (See Doc. 15 at 2704-05.)
As referenced above, the Court must affirm the Commissioner’s conclusions unless “the
ALJ has failed to apply the correct legal standards or has made findings of fact unsupported by
substantial evidence in the record.” Jordan v. Comm’r of Soc. Sec., 548 F.3d 417, 422 (6th Cir.
2008). Substantial evidence exists when the “existing administrative record . . . contains
‘sufficien[t] evidence’ to support the agency’s factual determinations.” Biestek v. Berryhill, 587
U.S. 97, 103, 139 S.Ct. 1148, 203 L.Ed.2d 504 (2019) (citations omitted).
2 This objection largely challenges the R&R’s summary of Dr. Golub’s testimony in the fact
section. This part of the objection is without merit.
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Dr. Golub’s testimony supports the ALJ’s decision. To start, Dr. Golub testified he read
Tester-Kopec’s medical files. (Doc. 7 at 1110.) Dr. Golub discussed Tester-Kopec’s ear and
pain issues, and her medical history regarding both. (Id. at 1110-11.) While Dr. Golub conceded
he is not qualified to assess Tester-Kopec’s ear issues, he did state her other pain issues do not
meet or medically equal an impairment described in the listing of impairments. (Id. at 1112.) He
also agreed that “any of the limitations the doctors may have given [Tester-Kopec] are subjective
in nature rather than based on a diagnosis.” (Id. at 1112-13.) Dr. Golub additionally testified he
“can’t offer you restrictions or limitations based on just subjective reporting” of Tester-Kopec’s
pain. (Id.)
To Tester-Kopec, Dr. Golub’s inability to testify to any restrictions meant the ALJ’s use
of his testimony to support her RFC is deficient. (Doc. 14 at 2693.) But Dr. Golub ultimately
concluded Tester-Kopec has functional limitations that result from her impairments. (Doc. 7 at
1112.) He only declined to go into further detail because he did not “have information here that
would be objective or at least indicate what the underlying etiology is.” (Id.) The ALJ included
this admission in her evaluation of Dr. Golub’s opinion. (Id. at 1077.) Ultimately, the ALJ still
found Dr. Golub’s opinion persuasive because he “examined the entire record and based his
assessment on his review of the evidence.” (Id.) While Dr. Golub was unable to assess what
specific restrictions might apply to Tester-Kopec, he concluded that a functional limitation of
some form likely existed. (Id. at 1112.) Although Tester-Kopec disagrees with the ALJ’s
evaluation of Dr. Golub’s testimony, it is correctly part of the substantial evidence she drew from
to support her RFC. Tester-Kopec’s second objection is OVERRULED.
D. 	Third Objection: The ALJ Did Not Sufficiently Explain Inconsistencies
Between Tester-Kopec’s Testimony and Other Evidence
Tester-Kopec’s third objection is that the ALJ erred by rejecting her subjective
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allegations. (Doc. 14 at 2694.) Tester-Kopec lists the conditions the ALJ allegedly did not
consider in sufficient detail:
(1) her surgeries did not improve her hearing or eliminate bouts of vertigo;
(2) she cannot reach overhead with her left arm due to a rotator cuff tear;
(3) she needs a cane for balance due to instability in both ankles;
(4) that she has pain in her hands, ankles, hips, and lower back;
(5) she is no longer able to drive; and
(6) she needs to elevate her lower extremities to reduce the swelling in her feet and
ankles.
(Doc. 14 at 2695.) At its heart, Tester-Kopec’s objection is a claim the ALJ did not properly
consider all evidence in the record before making her decision. (Id.) (“The unexplained
ambiguities—between the ALJ’s findings regarding Plaintiff’s description of her symptoms and
the actual record—warrant remand.”).
20 C.F.R. § 404.1529(c)(2) provides that ALJs will not “reject your statements about the
intensity and persistence of your pain or other symptoms or about the effect your symptoms have
on your ability to work solely because the objective medical evidence does not substantiate your
statements.” ALJs must “consider all of the available evidence,” including a claimant’s
“statements about the intensity, persistence and limiting effects of your symptoms.” 20 C.F.R. §
404.1529(c)(4). In accordance with these regulations, “[s]ubjective complaints of pain or other
symptoms may support a claim of disability.” Blankenship v. Bowen, 874 F.3d 1116, 1123 (6th
Cir. 1989). Even so, “these complaints must be evidenced by an underlying medical condition,
and there must be either objective medical evidence confirming the severity of the alleged pain,
or there must be an objectively determined medical condition of a severity which can reasonably
be expected to give rise to that pain.” Id. (citing McCormick v. Sec’y of Health & Hum. Servs.,
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861 F.3d 998, 1003 (6th Cir. 1988) and Duncan v. Sec’y of Health & Hum. Servs., 801 F.3d 847
(6th Cir. 1986)); see also Cohen v. Sec’y of Dep’t of Health & Hum. Servs., 964 F.2d 524, 529
(6th Cir. 1992) (a claimant “may rely in part on her own testimony in combination with objective
medical evidence in order to establish that she is disabled”) (emphasis in original).
ALJ’s use a two-step process to evaluate a claimant’s symptoms. 20 CFR §
404.1529(c)(3); 416.929(c)(3); Soc. Sec. Ruling 16-3p, Titles II & XVI: Evaluation of Symptoms
in Disability Claims, SSR 16-3P (S.S.A. Oct. 25, 2017), 2017 WL 5180304. First, the ALJ
determines whether the individual has a medically determinable impairment that could produce
the individual’s alleged symptoms. SSR 16-3p, 2017 WL 5180304, at *3. Next, the ALJ
evaluates the intensity, persistence, and limiting effects of the claimant’s symptoms. Id. at *4.
“[O]bjective medical evidence is a useful indicator to help make reasonable conclusions about
the intensity and persistence of symptoms . . . . [The ALJ] must consider whether an individual’s
statements about the intensity, persistence, and limiting effects of his or her symptoms are
consistent with the medical signs and laboratory findings of record.” Id. at *5.
Tester-Kopec argues the ALJ failed to explain inconsistencies between her testimony and
other evidence, while also failing to discuss in sufficient detail other symptoms in Tester-
Kopec’s record. (Doc. 14 at 2694.) To Tester-Kopec, because her symptoms “appear to be
disabling,” they “may not properly be ignored on the basis of the cherry-picked normal
findings.” (Doc. 14 at 2694 (citing Moore v. Comm’r of Soc. Sec. Admin., No. 5:24-cv-1175,
2025 U.S. Dist. LEXIS 114971, 2025 WL 1692398, at *12 (N.D. Ohio June 17, 2025)).) Tester-
Kopec acknowledges, however, the R&R identifies excerpts from the ALJ’s decision discussing
these subjective allegations, but argues these passages “were not connected by a logical bridge
from [her] testimony to the ALJ’s conclusion.” (Id. at 2695.)
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Defendant counters that the ALJ articulated several reasons why Tester-Kopec’s
testimony was inconsistent with her medical records. (Doc. 15 at 2705-07.) Defendant
emphasizes specific passages from the R&R highlighting instances where the ALJ found Tester-
Kopec’s treatment and other evidence were “only partially consistent with the evidence.” (Id. at
2705-06.) Defendant argues Tester-Kopec’s objection fails to challenge the legal or factual
sufficiency of the ALJ’s reasoning. (Id. at 2707.) Instead, the objection “points to other
evidence [Tester-Kopec] claims supports her subjective complaints,” which is insufficient to
support remand. (Id.)
The Court is unpersuaded by Tester-Kopec’s argument. To start, the ALJ properly
evaluated Tester-Kopec’s descriptions of her symptoms and the medical evidence, even
addressing many of the symptoms that she outlines in her Objection. (Doc. 7 at 1077-78.) The
ALJ found Tester-Kopec’s assertions “only partially consistent with the evidence.” (Id.) The
ALJ also discussed Tester-Kopec’s ongoing shoulder pain and her lack of follow-up for “more
substantive treatment.” (Id.) The ALJ then detailed Tester-Kopec’s pain, limited motion, and
“some weakness,” but that medical evaluations showed “generally normal fine and gross
manipulative abilities.” (Id.) The ALJ further mentions that Tester-Kopec’s vertigo is
intermittently discussed in her medical records. (Id.) Regarding Tester-Kopec’s use of a cane
and instability, the ALJ discusses that “the balance of the treatment notes did not indicate use of
a cane and she had a normal gait.” (Id. at 1078.) The ALJ also noted Tester-Kopec’s ankle
instability improved with braces. (Id.)
To be sure, the ALJ does not specifically mention Tester-Kopec was unable to drive and
needed to “elevate her lower extremities to prevent swelling in her feet and ankles.” (Doc. 14 at
2695.) But the ALJ’s finding is not subject to reversal simply because there is “substantial
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evidence to support a different conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001).
The ALJ was also not required to “discuss every piece of evidence in the record to substantiate
[their] decision.” Conner v. Comm’r of Soc. Sec., 658 F. App’x 248, 254 (6th Cir. 2016). “An
ALJ need not discuss every piece of evidence in the record for his decision to stand.” Thacker v.
Comm’r of Soc. Sec., 99 F. App’x 661, 665 (6th Cir. 2004); Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 508 (6th Cir. 2006) (“ALJ[s] can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted by a party”). ALJs are also
“not subject to reversal merely because there exists in the record substantial evidence to support
a different conclusion.” Buxton, 246 F.3d at 772. Given the ALJ’s thorough discussion of
Tester-Kopec’s testimony and medical history, reversal is not warranted. Tester-Kopec’s third
objection is OVERRULED.
E. 	Fourth Objection: Failure to Comply with Emergency Message 24027
Tester-Kopec challenges the ALJ’s reliance on jobs like “document preparer, surveillance
system monitor, and addresser.” (Doc. 14 at 2696.) At Tester-Kopec’s hearing, Mr. Nimberger
described the ways in which these positions have changed since being defined in 1991. (Id.)
Tester-Kopec argues his testimony was insufficient to meet the ALJ’s duty to “rely on jobs that
still exist in significant numbers” and show these occupations as currently performed are
consistent with Tester-Kopec’s RFC. (Id.)
Emergency Message 24027 (“E.M. 24027”) provides that:
An adjudicator may not cite any of the DOT occupations listed below to support a
framework ‘not disabled’ determination or decision without additional evidence
from a VS or VE supporting the adjudicators conclusion that, as the occupation is
currently performed:
(1) Its requirements are consistent with the individual’s RFC, and
(2) It exists in the national economy in numbers that alone, or in combination with
work in other cited occupations, are significant.
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E.M 24027. Further, “[t]he determination or decision must include or summarize the VS or VE’s
evidence that supports such a conclusion.” Id. This standard applies if an ALJ intends to rely
upon specific occupations to support a decision of “not disabled.” The occupations cited by the
ALJ in the instant case—addresser, document preparer, and surveillance system monitor—all
appear on the list of occupations included in E.M. 24027.
Tester-Kopec argues E.M. 24027 was not complied with because Mr. Nimberger’s
testimony failed to confirm that the national numbers for these positions are significant as they
relate to how these jobs are currently performed. (Doc. 14 at 2697.) Defendant disagrees with
Tester-Kopec’s characterization, highlighting that Mr. Nimberger testified how these jobs are
practiced in the present-day. (Doc. 15 at 2708.) Defendant also asserts Mr. Nimberger discussed
the present number of these jobs in the national economy. (Id.)
E.M. 24027 Step One. Based upon Tester-Kopec’s medical and vocational history, Mr.
Nimberger described why he believed she would be qualified to serve as a document preparer,
surveillance systems monitor, and addresser. (Doc. 7 at 1116.) Critically, when the ALJ asked if
a hypothetical person with Tester-Kopec’s same conditions could perform other work, Mr.
Nimberger stated these three occupations are consistent with her RFC. (Id. at 1116-17.)
E.M. 24027 Step Two. Mr. Nimberger also testified about the number of these positions
in the national economy. Mr. Nimberger stated that a document preparer has a “national
number” of 14,000, a surveillance system monitor has a national number of 15,500, and an
addresser has a national number of 1,700. (Id. at 1116.) In the aggregate, the national number of
positions for these jobs is 31,200.
“[T]here is no ‘magic number’ that qualifies as ‘significant’ for purposes of satisfying
this prong of the disability inquiry.” Cunningham v. Astrue, 360 F. App’x 606, 615 (6th Cir.
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2010) (quoting Hall v. Bowen, 837 F.2d 272, 275 (6th Cir. 1988)). “The question of whether a
significant number of jobs exists in light of a vocational expert’s testimony ‘should ultimately be
left to the trial judge’s common sense in weighing the statutory language as applied to a
particular claimant’s factual situation.’” Sias v. Sec’y of Health & Hum. Servs., 861 F.2d 475,
480 (6th Cir. 1988) (quoting Bowen, 837 F.2d at 275). That said, the Sixth Circuit has found as
few as 2,000 jobs to be significant. See Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 579
(6th Cir. 2009) (2,000 jobs significant). Case law indicates 31,200 jobs is significant. 3
Tester-Kopec claims Mr. Nimberger did not discuss how the above jobs are currently
performed. But the transcript establishes the opposite. Mr. Nimberger testified how each job has
changed since the DOT manual was published in 1991. (Doc. 7 at 1116-17.) Mr. Nimberger
also explained “the number [of positions] are very paltry compared to the hundreds of thousands
I used to be able to quote 20 years ago.” (Id.) On cross-examination, Mr. Nimberger also
testified that the “database for national jobs wouldn’t be reduced” except a “little bit” for
document preparer were Tester-Kopec to use a cane. (Id.)
Mr. Nimberger discussed how the national numbers for these jobs are reduced in
comparison to what they were 20 years ago, indicating the recency of his estimate. (Id.) He also
discussed how each of these jobs have evolved over time. (Id. at 1116-18.) When providing
occupational evidence, a vocational expert “may use any reliable source of occupational
information that is commonly used by vocational professionals and is relevant under our rules,
along with their professional knowledge, training, and experience.” See SSR 24-3p. Left to the
3 See also Doran v. Comm’r of Soc. Sec., 467 F. App’x 446, 449 (6th Cir. 2012) (significant
because “thousands of these jobs exist on a national basis”); Born v. Sec’y of Health & Human
Servs., 923 F.2d 1168, 1174-75 (6th Cir.1990) (2,500 jobs significant); Taskila v. Comm’r of
Soc. Sec., 819 F.3d 902, 905 (6th Cir. 2016) (6,000 jobs significant); Moats v. Comm’r of Soc.
Sec., 42 F.4th 558, 563 (6th Cir. 2022) (32,000 jobs significant).
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Court’s “common sense,” the record shows Mr. Nimberger discussed national numbers that are
significant and current. Accordingly, the ALJ complied with E.M. 24027. Bowen, 837 F.2d at
275. Tester-Kopec’s fourth objection is OVERRULED.
III. 	CONCLUSION
For the reasons above, Plaintiff Kelly E. Tester-Kopec’s objections are OVERRULED,
the R&R is ACCEPTED and ADOPTED, and the final decision of the Commissioner of Social
Security is AFFIRMED.
IT IS SO ORDERED.
________________________________
Date: December 15, 2025 	BRIDGET MEEHAN BRENNAN
UNITED STATES DISTRICT JUDGE
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