Derry v. Commissioner of Social Security

Filing 28

OPINION AND ORDER The decision of the Commissioner is AFFIRMED. The Clerkis directed to enter a judgment in favor of the Commissioner and against Derry. ***Civil Case Terminated. Signed by Magistrate Judge Susan L Collins on 4/24/19. (kjp)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ROBERT L. DERRY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY, sued as Nancy A.
Berryhill, Acting Commissioner of SSA,
Defendant.

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CAUSE NO. 1:18-cv-00090-SLC

OPINION AND ORDER
Plaintiff Robert L. Derry appeals to the district court from a final decision of the
Commissioner of Social Security (“Commissioner”) denying his application under the Social
Security Act (the “Act”) for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”).1 (DE 1). For the following reasons, the Commissioner’s decision will be
AFFIRMED.
I. FACTUAL AND PROCEDURAL HISTORY
Derry applied for DIB and SSI in April 2013, alleging disability as of May 3, 2012. (DE
10 Administrative Record (“AR”) 186-88, 194-99). Derry was last insured for DIB on March
31, 2017 (AR 1063), and therefore, he must establish that he was disabled as of that date with
respect to his DIB claim. See Stevenson v. Chater, 105 F.3d 1151, 1154 (7th Cir. 1997)
(explaining that a claimant must establish that he was disabled as of his date last insured in order
to recover DIB benefits). Derry’s application was denied on initial consideration and on
reconsideration. (AR 137-52).

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All parties have consented to the Magistrate Judge. (DE 13); see 28 U.S.C. § 636(c).

A hearing was held on February 14, 2014, before an administrative law judge (“ALJ”),
ALJ Maryann S. Bright (“ALJ Bright”), at which Derry, who appeared pro se, and a vocational
expert testified. (AR 59-90). On May 14, 2014, ALJ Bright rendered an unfavorable decision to
Derry, concluding that he was not disabled because despite the limitations caused by his
impairments he could perform a significant number of unskilled, medium-exertional jobs in the
economy. (AR 43-53). The Appeals Council denied Derry’s request for review (AR 1-3), at
which point ALJ Bright’s decision became the final decision of the Commissioner. See 20
C.F.R. §§ 404.981, 416.1481.
On December 23, 2015, Derry filed a civil action in this Court, and on February 28, 2017,
the Court issued an Opinion and Order remanding the case to the Commissioner for further
proceedings. (AR 886-902). Pursuant to the Court’s Order, the Appeals Council remanded the
case to an ALJ on June 12, 2017. (AR 905). On remand, a hearing was held before ALJ Terry
Miller (“ALJ Miller”) on December 12, 2017, at which Derry, who was represented by counsel;
Derry’s father; Dr. Nathan Strahl, a medical expert; and Marie Barhydt, a vocational expert,
testified. (AR 731-805). On February 8, 2018, ALJ Miller rendered another unfavorable
decision to Derry, concluding that he was not disabled because despite the limitations caused by
his impairments he could perform a significant number of unskilled, light-exertional jobs in the
economy. (AR 705-22). Derry did not seek review of the decision by the Appeals Council, and
ALJ Miller’s decision became the final decision of the Commissioner. See 20 C.F.R. §§
404.981, 416.1481.
Derry filed a complaint with this Court on April 12, 2018, seeking relief from the
Commissioner’s final decision. (DE 1). In this appeal, Derry argues that ALJ Miller erred by:

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(1) improperly discounting the opinion of Catherine Duchovic, his treating psychiatric nurse
practitioner; and (2) failing to evaluate a one-page affidavit from Garrett Hill, a former
employer. (DE 18 at 9-14).
At the time of ALJ Miller’s decision, Derry was 38 years old (AR 186, 722); had a high
school education (AR 241); and had past work experience as a janitor, fast food worker, drill
press operator, maintenance mechanic, sales clerk, and delivery driver (AR 1150). Derry alleges
disability due to the following impairments: obesity, chronic left knee pain due to a left knee
injury/left knee chondrocalcinosis, bipolar I disorder, social anxiety disorder, and social phobia.
(DE 18 at 2). Derry does not challenge the findings of ALJ Miller in regard to his physical
residual functional capacity (“RFC”) (DE 18 at 9-14); rather, his arguments center on the ALJ’s
consideration of his mental impairments.
II. STANDARD OF REVIEW
Section 405(g) of the Act grants this Court “the power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or reversing the decision of the
[Commissioner], with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). The
Court’s task is limited to determining whether the ALJ’s factual findings are supported by
substantial evidence, which means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Schmidt v. Barnhart, 395 F.3d 737, 744 (7th Cir. 2005)
(citation omitted). The decision will be reversed only if it is not supported by substantial
evidence or if the ALJ applied an erroneous legal standard. Clifford v. Apfel, 227 F.3d 863, 869
(7th Cir. 2000) (citation omitted).
To determine if substantial evidence exists, the Court reviews the entire administrative

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record but does not reweigh the evidence, resolve conflicts, decide questions of credibility, or
substitute its judgment for the Commissioner’s. Id. Rather, if the findings of the Commissioner
are supported by substantial evidence, they are conclusive. Jens v. Barnhart, 347 F.3d 209, 212
(7th Cir. 2003) (citation omitted). “In other words, so long as, in light of all the evidence,
reasonable minds could differ concerning whether [the claimant] is disabled, we must affirm the
ALJ’s decision denying benefits.” Books v. Chater, 91 F.3d 972, 978 (7th Cir. 1996).
III. ANALYSIS
A. The Law
Under the Act, a claimant is entitled to DIB or SSI if he establishes an “inability to
engage in any substantial gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to . . . last for a continuous period of not less than 12
months.” 42 U.S.C. §§ 416(i)(1), 423(d)(1)(A), 1382c(a)(3)(A). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques.” 42 U.S.C. §§ 423(d)(3), 1382c(a)(3)(D).
The Commissioner evaluates disability claims pursuant to a five-step evaluation process,
requiring consideration of the following issues, in sequence: (1) whether the claimant is
currently unemployed; (2) whether the claimant has a severe impairment; (3) whether the
claimant’s impairment or combination of impairments meets or equals one of the impairments
listed by the Commissioner, see 20 C.F.R. § 404, Subpt. P, App’x 1; (4) whether the claimant is
unable to perform his past work; and (5) whether the claimant is incapable of performing work in

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the national economy.2 See Dixon v. Massanari, 270 F.3d 1171, 1176 (7th Cir. 2001) (citations
omitted); 20 C.F.R. §§ 404.1520, 416.920. An affirmative answer leads either to the next step
or, on steps three and five, to a finding that the claimant is disabled. Zurawski v. Halter, 245
F.3d 881, 886 (7th Cir. 2001) (citation omitted). A negative answer at any point other than step
three stops the inquiry and leads to a finding that the claimant is not disabled. Id. (citation
omitted). The burden of proof lies with the claimant at every step except the fifth, where it shifts
to the Commissioner. Clifford, 227 F.3d at 868 (citation omitted).
B. The Commissioner’s Final Decision
On February 8, 2018, ALJ Miller issued the decision that ultimately became the
Commissioner’s final decision. (AR 705-22). At step one of the five-step analysis, ALJ Miller
found that Derry had not engaged in substantial gainful activity since his alleged onset date of
May 3, 2012. (AR 708). At step two, ALJ Miller found that Derry had the following severe
impairments: a history of bipolar affective disorder/depression, reported social anxiety
disorder/social phobia, a history of poly-substance dependence/abuse, primarily the abuse of
marijuana/synthetic marijuana/cannabis use disorder, obesity, and chronic left knee pain due to
left knee injury/left knee chondrocalcinosis. (AR 709). At step three, ALJ Miller concluded that
Derry did not have an impairment or combination of impairments severe enough to meet or equal
a listing. (AR 709-11).
Before proceeding to step four, ALJ Miller considered Derry’s symptom testimony and
found that it was not entirely consistent with the medical evidence and other evidence of record.
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Before performing steps four and five, the ALJ must determine the claimant’s RFC or what tasks the
claimant can do despite his limitations. 20 C.F.R §§ 404.1520(e), 404.1545(a), 416.920(e), 416.945(a). The RFC is
then used during steps four and five to help determine what, if any, employment the claimant is capable of. 20
C.F.R. §§ 404.1520(e), 416.920(e).

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(AR 719). ALJ Miller then assigned Derry the following RFC:
[T]he claimant has the physical [RFC] to perform light work . . . .
The claimant retains the mental [RFC] to understand, remember,
and carry out simple, routine, repetitive tasks consistent with
unskilled work (defined as occupations that can be fully learned
within a short period of time of no more than 30 days, and requires
little or no judgment to perform simple tasks). He has the ability
to sustain those tasks throughout the eight-hour workday without
frequent redirection to task. His ability to use judgment in making
work-related decisions is limited to making only simple workrelated decision[s]. The claimant cannot tolerate sudden or
unpredictable workplace changes in terms of use of work tools,
work processes, or work settings and if there are workplace
changes, they are introduced gradually. He cannot perform tasks
requiring intense/focused attention for more than two hours
continuously, but can maintain attention/concentration for twohours segments of time. He cannot perform work that requires
satisfaction of strict or rigid production quotas or that involves
assembly line pace work. As to social interactions, the claimant
can engage in only superficial interactions with supervisors and
coworkers defined as occasional and casual contact with no
prolonged conversations. Contact with supervisors must be short
but allows the supervisors to give instructions. He cannot interact
with the general-public. He should not have concentrated
exposure to intense or critical supervision, and is best suited to
working alone, in semi-isolation from others, or as part of a small
group.
(AR 711). Based on the RFC and the vocational expert’s testimony, ALJ Miller concluded at
step four that Derry could not perform any of his past relevant work. (AR 720). At step five,
ALJ Miller found that Derry could perform a significant number of unskilled, sedentary jobs in
the economy, including address clerk, document preparer, and surveillance system monitor. (AR
721). Therefore, Derry’s applications for DIB and SSI were denied. (AR 721-22).
C. Ms. Duchovic’s Opinion
Derry argues that ALJ Miller improperly discounted the opinion of Ms. Duchovic, his
treating psychiatric nurse practitioner at Park Center. Contrary to Derry’s assertion, ALJ
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Miller’s weighing of Ms. Duchovic’s opinion is supported by substantial evidence.
The opinion of a nurse practitioner is not an “acceptable medical source” under the Social
Security regulations, but rather is considered an “other source.” Masch v. Barnhart, 406 F.
Supp. 2d 1038, 1055 (E.D. Wis. 2005); SSR 06-03p, 2006 WL 2329939, at *1-2 (Aug. 9, 2006).
Although information from an “other source” cannot establish the existence of a medically
determinable impairment, it may be used “to show the severity of the individual’s impairment(s)
and how it affects the individual’s ability to function.” SSR 06-03p, 2006 WL 2329939, at *2;
see Koschnitzke v. Barnhart, 293 F. Supp. 2d 943, 950 (E.D. Wis. 2003). “[T]he adjudicator
generally should explain the weight given to opinions from these ‘other sources,’ . . . when such
opinions may have an effect on the outcome of the case.” SSR 06-03p, 2006 WL 2329939, at
*6; see Masch, 406 F. Supp. 2d at 1055 (stating that opinions from “other sources” must not be
ignored). “[D]epending on the particular facts in a case, and after applying the factors for
weighing opinion evidence, an opinion from a medical source who is not an ‘acceptable medical
source’ may outweigh the opinion of an ‘acceptable medical source,’ including the medical
opinion of a treating source.” SSR 06-03p 2006 WL 2329939, at *4.
Here, Derry saw Ms. Duchovic for medication management approximately 20 times from
March 2014 through October 2017; Ms. Duchovic’s treatment notes consist mainly of check-thebox forms. (AR 1183-90, 1197-1203, 1208-15, 1243-51, 1310-36, 1352-61, 1385-93, 1426-34,
1447-55, 1480-84, 1509-13, 1516-18, 1541-44, 1571-80). Derry also received counseling, group
therapy, and case management services from Park Center during this period. (See generally AR
532-33, 1191-1582).
On November 8, 2017, Ms. Duchovic completed a five-page mental impairment

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questionnaire, providing both yes/no and narrative answers. (AR 1823-27). Ms. Duchovic
qualified essentially all of her answers by writing “per client report” beside them, even when
doing so made little sense.3 (AR 1823-27). Specifically, Ms. Duchovic identified Derry’s
symptoms “per client report” as insomnia, nightmares, depressed mood, low energy, isolation,
anxiety, paranoia, crying outbursts, and concentration difficulties. (AR 1823). She wrote that
“per client report” Derry’s depressed mood occurred daily for at least three months, and that “per
client report” he could not control his depression, emotional outbursts, short temper, and
increased anxiety. (AR 1823). Similarly, Ms. Duchovic circled “Yes” and added “per client
report” to the following questions: whether Derry’s symptoms would worsen if he were to return
to full-time work; whether his mental illness would like cause him to be absent from work, tardy,
or cause him to leave work early more than three times a month, excluding any problems relating
to substance abuse; and whether his mental illness was serious enough that he would have
trouble maintaining attention and concentration during an eight-hour workday for unskilled
work, excluding any problems relating to substance abuse. (AR 1824-26). Ms. Duchovic further
indicated “per client report” that Derry could remain on task in unskilled work less than 70 % of
the day and tolerate no more than occasional, superficial contact with others. (AR 1826-27).
At the hearing, ALJ Miller called a medical expert, Dr. Strahl, a psychiatrist, to review
Derry’s record and testify regarding the psychological evidence in the case. (AR 736-53). In a
nutshell, Dr. Strahl opined that when Derry was taking his medication as prescribed and not

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For example, in response to whether she saw Derry with the frequency consistent with accepted medical
practice for the type of treatment or evaluation required for Derry’s medical condition, Ms. Duchovic circled “Yes”
and wrote “per client report” beside it. (AR 1823). Ms. Duchovic answered the same in response to whether
Derry’s treatment plan is consistent with the nature and severity of Derry’s mental impairment. Clearly these two
questions sought Ms. Duchovic’s professional judgment, not Derry’s subjective report.

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using substances, he could do simple work requiring minimal contact with supervisors and the
public, and occasional contact with coworkers; Dr. Strahl estimated that Derry would miss no
more than one day of work per month due to his mental impairments. (AR 746-49). Dr. Strahl
testified that he had reviewed Ms. Duchovic’s mental impairment questionnaire but that it should
be given no weight, because it essentially “quote[s]” Derry’s subjective statements and was not
based on “anything objective in the medical record.” (AR 745).
In his decision, ALJ Miller considered the opinions of Ms. Duchovic and Dr. Strahl in
detail, penning at least 10 paragraphs about Ms. Duchovic’s opinion and many more about Dr.
Strahl’s opinion. (AR 710-19). ALJ Miller also penned three paragraphs on the opinion of Dr.
B. Randal Horton, a state agency psychologist, who reviewed the record on March 30, 2016, and
concluded that Derry’s mental impairment was non-severe. (AR 864-65). Ultimately, ALJ
Miller assigned significant weight to Dr. Strahl’s opinion (AR 711); the narrative portion of Dr.
Horton’s opinion; and Dr. Horton’s finding that Derry had moderate deficits in concentration,
persistence, or pace (AR 718). ALJ Miller gave no significant weight to Ms. Duchovic’s opinion
(AR 716) or the remaining portions of Dr. Horton’s opinion (AR 718).
In discounting Ms. Duchovic’s opinion, ALJ Miller explained that he agreed with Dr.
Strahl’s reasons for giving Ms. Duchovic’s mental impairment questionnaire little weight. (AR
713). ALJ Miller and Dr. Strahl observed that Ms. Duchovic’s medical impairment
questionnaire was essentially based on what Derry said he could or could not do, rather than on
objective findings; Ms. Duchovic did not list any mental diagnoses in the questionnaire; she did
not directly address Derry’s past substance use in her answers; and her treatment records do not
fully support and are not entirely consistent with the limitations in the questionnaire. (AR 713,

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715-18). ALJ Miller concluded that while the treatment records overall indicate that Derry
would have some problems working, they do not establish greater limitations of function than
expressed in the assigned RFC, which is supported by Dr. Strahl’s and Dr. Horton’s opinions.
(AR 718).
Derry challenges ALJ Miller’s reasoning for discounting Ms. Duchovic’s opinion. First,
Derry argues that Ms. Duchovic’s limitations are based on Derry’s depression, crying spells, and
anger/emotional control problems, which are reflected in Ms. Duchovic’s treatment notes at
Derry’s medication-management appointments. In that regard, Ms. Duchovic’s treatment notes
consist mainly of check-the-box forms that routinely indicated that Derry had withdrawn
behavior; some crying episodes; depressed, anxious, or fluctuating mood; and depressive,
hopeless, and helpless thought content; but a cooperative attitude; coherent thought form;
congruent affect; alert sensorium; fair judgment; no homicidal ideation, and rarely any suicidal
thoughts and no suicidal intent. (AR 1183-90, 1197-1203, 1208-15, 1243-51, 1310-36, 1352-61,
1385-93, 1426-34, 1447-55, 1480-84, 1509-13, 1516-18, 1541-44, 1571-80). As such, while Ms.
Duchovic’s treatment records certainly support some degree of mental impairment, ALJ Miller
was correct in observing that “her treatment records do not fully support and are not entirely
consistent with her [medical source] statement.” (AR 717); Brown v. Astrue, No. 1:10-cv01035-SEB-MJD, 2011 WL 2693522, at *4 (S.D. Ind. July 8, 2011) (“The lack of objective
support for a conclusion is a valid reason for discounting a treating physician’s opinion.”
(citations omitted)); see Henke v. Astrue, 498 F. App’x 636, 640 (7th Cir. 2012) (“The ALJ
rightly emphasized that Dr. Preciado’s sweeping conclusions lacked support in his own
treatment notes.” (citations omitted)).

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Furthermore, in completing the questionnaire, Ms. Duchovic never referenced her
treatment notes, or for that matter, the notes of any other Park Center clinician; rather, she made
it clear that she based her assessment on Derry’s subjective statements by writing “per client
report” next to essentially all of her answers. (AR 1823-27). As such, both Dr. Strahl and ALJ
Miller found that Ms. Duchovic’s opinion merited little weight because it was heavily based on
Derry’s subjective report. (AR 713, 744-45).
Derry argues, however, that the Seventh Circuit Court of Appeals has found error where
an ALJ has excluded a mental health provider’s opinion for the reason that it is based on the
patient’s own report of his symptoms. In doing so, the Seventh Circuit explained: “A
psychiatrist does not merely transcribe a patient’s subjective symptoms. Mental-health
assessments normally are based on what the patient says, but only after the doctor assesses those
complaints through the objective lens of her professional expertise.” Mischler v. Berryhill, — F.
App’x —, 2019 WL 1299948, at *5 (Mar. 20, 2019) (citation omitted); see also Price v. Colvin,
794 F.3d 836, 840 (7th Cir. 2015) (“But psychiatric assessments normally are based primarily on
what the patient tells the psychiatrist, so that if the judge were correct, most psychiatric evidence
would be totally excluded from social security disability proceedings—a position we rejected . . .
.” (citation omitted)); Adaire v. Colvin, 778 F.3d 685, 688 (7th Cir. 2015) (finding that the ALJ
made “the fundamental error that ‘subjective’ statements are to be given zero weight”).
The foregoing cases, however, are distinguishable from the instant case. Here, Ms.
Duchovic expressly qualified her answers on the questionnaire by writing “per client report”
beside them. Thus, her opinion does appear to “merely transcribe [Derry’s] subjective
symptoms,” making it an exception to the norm. Mischler, 2019 WL 1299948, at *5. That is,

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there is no indication that Ms. Duchovic ever actually assessed Derry’s subjective complaints
“through the objective lens of her professional expertise.” Id. (citation omitted). Therefore, on
this unique record, ALJ Miller’s decision to assign little weight to Ms. Duchovic’s questionnaire
is logical and adequately supported by evidence of record, namely, by the opinion of Dr. Strahl.
See, e.g., Edwards v. Comm’r of Soc. Sec., No. 1:17-cv-30, 2018 WL 442328, at * 9 (S.D. Ohio
Jan. 16, 2018) (affirming the ALJ’s discounting of a mental health therapist’s opinion that was
replete with statements— “per client report,” which reflected that she heavily relied on the
patient’s subjective reports with no other evidentiary support); Gosse v. Colvin, No. 14-14066LTS, 2015 WL 7253679, at *10 (D. Mass. Nov. 17, 2015) (affirming the ALJ’s discounting of a
treating psychiatrist’s opinion where the physician prefaced each check-the-box answer with the
words “Per Client Report’); Akers v. Colvin, No. 12-CV-489-FHM, 2013 WL 4500783, at *3
(N.D. Okla. Aug. 21, 2013) (affirming the ALJ’s discounting of a physician’s opinion where it
was conclusory with little explanation of the evidence relied on in forming the opinion about the
claimant’s mental impairments, and the physician qualified some limitations with “per client’s
report”).
Not to be deterred, Derry contends that ALJ Miller selectively reviewed the evidence
when concluding that Derry was functional when compliant with his medications and not
abusing substances. Indeed, “[a]n ALJ may not select and discuss only that evidence that favors
his ultimate conclusion, but must articulate, at some minimum level, his analysis of the evidence
to allow the appellate court to trace the path of his reasoning.” Diaz v. Chater, 55 F.3d 300, 30708 (7th Cir. 1995) (citations omitted). “An ALJ’s failure to consider an entire line of evidence
falls below the minimal level of articulation required.” Id. (citation omitted).

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As Derry sees it, that his medications were adjusted 16 of the 25 times he was seen for
medication management at Park Center from February 2013 through August 2017, and that
counseling, case management, and group therapy services were added to his treatment plan, is
evidence that cuts against ALJ Miller’s conclusion that Derry was functional when taking his
medications and not abusing substances. (DE 18 at 12-13). But the ALJ sufficiently
summarized Derry’s treatment history throughout his decision and minimally articulated his
consideration of this evidence. (See AR 713-19).
Furthermore, as already explained, ALJ Miller’s assessment is supported by the
testimony of Dr. Strahl, who opined that Derry’s medications were effective when Derry took
them reliably and abstained from substances.4 (AR 742). Dr. Strahl acknowledged that at
different points in the record Derry had stopped and started his medications, resulting in his
decompensation. (AR 741; see AR 713-19). But aside from those circumstances, Derry fails to
point to any time where his medication adjustments were other than routine. “An impairment
that is controllable or amenable to treatment does not support a finding of disability.” Tomlin v.
Colvin, No. 4:13CV2424 SPM, 2015 WL 58934, at *16 (E.D. Mo. Jan. 5, 2015) (citation
omitted).
Additionally, Derry contends that ALJ Miller ignored that his mental health providers at
Park Center characterized his substance abuse as a mild problem. (See, e.g., AR 437, 1288). But
Dr. Strahl directly responded to this issue when Derry’s attorney questioned him at the hearing:
Dr. Strahl explained that Park Center still diagnosed Derry with a cannabis use disorder or poly

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ALJ Miller’s conclusion is supported by Dr. Horton’s narrative opinion as well, as Dr. Horton opined that
Derry’s “symptoms appear to be managed better when he is no longer a [drug and alcohol] abuser.” (AR 865).

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substance dependence, which means “[i]t’s causing a problems as far as they’re concerned in
some way” (AR 750; see, e.g., AR 1183, 1208, 1243, 1310, 1352, 1385, 1426, 1447, 1471, 1480,
1509, 1516, 1541, 1571). In fact, one of Derry’s treatment goals at Park Center was to “[a]bstain
from marijuana.” (See, e.g., AR 1483-84). Dr. Strahl opined that Derry’s ongoing use of
cannabis for most of the period at issue and his use of Spice—“a psychotic inducing agent”—as
recently as August 2017 aggravated his bipolar condition. (AR 716, 740, 742-44); see Chandler
v. Astrue, No. 1:08 CV 2265, 2010 WL 148124, at *4 (N.D. Ohio Jan. 8, 2010) (“The purpose of
the medical expert is to advise the ALJ on medical issues, answer specific questions about the
claimant’s impairments, the medical evidence, the application of the listings, and functional
limitations based on the claimant’s testimony and the record.” (citations omitted)). As such, ALJ
Miller did not err by relying on Dr. Strahl’s testimony that Derry’s substance abuse aggravated
his bipolar disorder. See, e.g., Dean v. Comm’r of Soc. Sec., No. 3:12-cv-267, 2013 WL
4518744, at *7 (S.D. Ohio Aug. 26, 2013) (“[T]he ALJ did not err in relying on the medical
expert’s recommendations to help formulate Plaintiff’s RFC.” (citation omitted)); Chandler,
2010 WL 148124, at *4 (“[I]t is proper for the ALJ to rely on medical expert testimony in order
to resolve conflicts between medical opinions.” (citations omitted)).
Finally, Derry challenges ALJ Miller’s consideration of Ms. Duchovic’s treatment note
dated August 27, 2017, in which Ms. Duchovic documented that Derry was pleasant, attentive,
cooperative, and alert; had a normal memory; and had a euthymic but depressed and anxious
mood. (AR 718, 1480-84). Ms. Duchovic also wrote in the treatment note that Derry reported
feeling depressed in the morning but would “pull out of it around noon.” (AR 718). Derry
disputes ALJ Miller’s characterization of this treatment note (as well as Ms. Duchovic’s other

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notes) as not “fully support[ing]” and not “entirely consistent” with Ms. Duchovic’s
questionnaire. (AR 718). Derry asserts that Ms. Duchovic’s statement on the questionnaire that
he would have to leave work early due to crying episodes is entirely consistent with her August
27, 2017, treatment note.
Not so. Ms. Duchovic’s questionnaire states that Derry would be able to get himself to
work but would have problems staying at work (see AR 789 (indicating that Derry worked
mornings at Papa Murphy’s Pizza)), while her treatment note two months earlier indicates that
Derry has crying episodes in the morning but would pull out of it by noon. (AR 1480-82, 1825).
Therefore, Derry’s assertion that Ms. Duchovic’s November 2017 questionnaire is “entirely
consistent” with her treatment note from just two months earlier (as well as her other treatment
notes) is unpersuasive. (DE 18 at 13).
For all of the foregoing reasons, ALJ Miller’s discounting of the mental impairment
questionnaire completed by Ms. Duchovic on November 27, 2017, is supported by substantial
evidence.
D. Garrett Hill Affidavit
Derry also argues that ALJ Miller erred by failing to evaluate the one-page affidavit
dated October 24, 2017, from Garrett Hill, the owner of Papa Murphy’s Pizza where Derry was
employed on a part-time basis from January 2009 to July 2012. (AR 1147). In the affidavit, Mr.
Hill stated that Derry “would show up for work,” but had frequent crying episodes and “couldn’t
necessarily make it through the day” and would be sent home. (AR 1147). Mr. Hill stated that
Derry was scheduled at busy times when they had enough people to cover so that they did not
need to rely on him. (AR 1147).

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Derry contends that ALJ Miller’s failure to expressly address Mr. Hill’s affidavit in his
decision constitutes reversible error because “it is from a neutral third party and supports a key
finding of Ms. Duchovic that Derry would be tardy or late for work greater than three times a
month.” (DE 18 at 14). However, an ALJ “need not address every piece of evidence in his
decision.” Sims v. Barnhart, 309 F.3d 424, 429 (7th Cir. 2002) (citation omitted). Rather, an
ALJ must only “minimally articulate his or her justification for rejecting or accepting specific
evidence of disability,” which has been described as a “lax standard.” Berger v. Astrue, 516
F.3d 539, 545 (7th Cir. 2008) (citation omitted).
Here, contrary to Derry’s argument in his brief, Mr. Hill’s affidavit does not support Ms.
Duchovic’s opinion “that Derry would be tardy or late for work greater than three times a
month.” (DE 18 at 14). Rather, Mr. Hill’s affidavit states just the opposite—that Derry showed
up for work (AR 1147); there is no mention of tardiness in the affidavit. Thus, the affidavit
arguably speaks only to Ms. Duchovic’s opinion that Derry would have to leave work early more
than three times a month.
Significantly, however, most of Derry’s employment with Papa Murphy’s Pizza occurred
prior to his alleged disability onset date of May 3, 2012, and during a time that Derry admitted
he was regularly using marijuana or Spice. (See AR 737-39 (testifying that it “was pretty close
to everyday use for a while”)). Derry testified at the hearing that his use of marijuana actually
worsened his anxiety. (AR 713, 739). As such, Mr. Hill’s affidavit does not speak to Derry’s
ability to work when he is taking his medications as prescribed and refraining from using
substances.
For these reasons, ALJ Miller’s failure to expressly discuss Mr. Hill’s affidavit—which

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addresses a time period when Derry admitted he was regularly using substances, and that his use
of substances worsened his anxiety—does not rise to the level of necessitating a remand of the
Commissioner’s final decision.
IV. CONCLUSION
For the foregoing reasons, the decision of the Commissioner is AFFIRMED. The Clerk
is directed to enter a judgment in favor of the Commissioner and against Derry.
SO ORDERED.
Entered this 24th day of April 2019.
/s/ Susan Collins
Susan Collins
United States Magistrate Judge

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