Maynard v. SSA

Filing 28

MEMORANDUM OPINION & ORDER: Plf, Tommy Lee Maynard, appeals the Social Security Commissioner's denial of his application for Disability and Disability Insurance Benefits. 21 . Plf has failed to satisfy his burden of proof to warrant a reversal of ALJ Walter's decision. Commissioner's final decision is AFFIRMED. A separate judgment will follow. Signed by Magistrate Judge Edward B. Atkins on 9/26/2024. (RCB) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
CIVIL ACTION NO. 7:24-CV-00003-EBA
TOMMY LEE MAYNARD,
V.

PLAINTIFF,

MEMORANDUM OPINION & ORDER

MARTIN O’MALLEY,
Acting Commissioner of Social Security,

DEFENDANT.

*** *** *** ***
INTRODUCTION
Plaintiff, Tommy Lee Maynard, appeals the Social Security Commissioner’s denial of his
application for Disability and Disability Insurance Benefits (“DIB”). [R. 21]. Maynard alleges that
the Administrative Law Judge (“ALJ”) improperly denied his disability benefits for two reasons:
(1) the ALJ improperly disregarded Dr. David P. Herr, D.O.’s medical opinion due to his role as a
co-conspirator in the Eric Conn fraud scheme; and (2) the ALJ incorrectly discounted Drs. Leigh
Ann Ford’s and Susan Rhoads’ medical opinions. [Id.]. Maynard and the Commissioner filed
briefs in support of their respective positions. [R. 21; R. 26]. Further, the time for Maynard to file
a Reply has passed and no such brief has been filed. [See R. 5]. So, this matter is ripe for review.
The Court will affirm the Commissioner’s final decision for the reasons below.
FACTS AND PROCEDURAL HISTORY
Plaintiff Maynard is a resident of Pike County, Kentucky who, at the time of his initial
application for disability benefits, alleged he was suffering from pain in his right shoulder, hips,
legs, lower back, knees, sleeping problems, memory and concentration issues, mood swings,
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restless leg syndrome, stomach and heart problems, anxiety and nervousness, numbness in his right
hand, depression, high blood pressure, and headaches. [R. 14 at pg. 83]. As a result of these
impairments, Maynard applied for disability benefits in February of 2010, wherein he alleged that
his disability began on January 4, 2010. [Id. at pgs. 247–48]. Before this onset date, Maynard had
been working in the coal industry since 1995. [Id. at pgs. 249–53]. The SSA then denied his claim
at both the initial and reconsideration levels of review. [Id. at pgs. 80–96].
At the time of this application, Plaintiff was represented by Kentucky attorney Eric Conn.
[R. 3-1 at pg. 2]. As the Social Security Administration (“SSA”) indicates, Conn employed a
fraudulent scheme to secure benefits for his clients that included as co-conspirators Administrative
Law Judge David Daugherty and Dr. David Herr. [R. 26 at pg. 2]. As the Sixth Circuit explained:
Conn, Daugherty, and [Drs. Frederic Huffnagle, Bradley Adkins, Srinivas
Ammisetty, and David P. Herr] were engaged in a widespread scheme to secure
SSI and SSDI benefits for Conn's clients based on fraudulent disability applications.
SSA Br. at 12–15. The scheme, according to the SSA, worked like this: Conn
created a limited number of template Residual Functional Capacity (“RFC”) forms,
which he or attorneys in his office filled out ahead of time. Id. at 13. These forms,
which are normally meant to convey a claimant's “ability to do work-related
activities on a day-to-day basis in a regular work setting,” 16-cv-154 (Hicks), R.
42-2 (Adkins Report, RFC Form) (Page ID #1438), were purportedly manipulated
to ensure that they satisfied the SSA's criteria for establishing a disability. Id. The
doctors above then signed these forms without making any adjustments, and Conn
submitted the forms to the SSA on behalf of his clients. Id. Daugherty, who was
allegedly receiving bribes from Conn, then assigned Conn's cases to himself and
issued favorable rulings to Conn's clients. Id. at 14–15; Pls. Br. at 4.
Hicks v. Comm'r of Soc. Sec., 909 F.3d 786, 793 (6th Cir. 2018). A similar pattern thereafter
occurred here. Maynard requested a hearing before an ALJ to appeal the denial of his benefits, but
on September 2, 2010, Administrative Law Judge (ALJ) David Daugherty issued a fully favorable
decision on Maynard’s behalf, without conducting a hearing, finding him disabled based on
evidence from Dr. David Herr. [R. 14 at pgs. 98–106].
Conn’s scheme, however, was eventually discovered by the SSA via two referrals the
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Commissioner received in May 2015 and November 2017. [R. 12 at pg. 4]. Ultimately, the SSA
Office of Inspector General (OIG) referred approximately 3,700 cases to the SSA based on the
OIG’s belief that fraud was involved in the application for benefits for each of these cases. [Id.].
Maynard’s application was one of the cases the OIG identified in this group. [R. 14 at pgs. 800–
03]. The Appeals Council then sent notice to Plaintiff in May of 2015 that it had reason to suspect
fraud may have been involved in the granting of his benefits in 2010 and under § 205(u) of the
Social Security Act, the SSA would need to redetermine his entitlement to his benefits. [Id. at pg.
184].
On November 17, 2015, a redetermination hearing was held before ALJ Sandra R.
DiMaggio Wallis. [Id. at pg. 57]. ALJ Wallis then issued a decision finding that Plaintiff was not
disabled from January 4, 2010, to September 2, 2010, and ordered that his benefits be terminated.
[Id. at pg. 134]. However, the Appeals Council then remanded the case for another hearing and
decision. [Id. at pg. 143]. Another hearing was then held on February 9, 2017, before ALJ Wallis
again and an unfavorable opinion was rendered on April 11, 2017, denying Plaintiff disability
benefits. [Id. at pgs. 21–30]. The Appeals Council then denied Maynard’s request for a review of
the ALJ’s April 2017 decision. [Id. at pg. 7].
Plaintiff filed suit against the Commissioner challenging the SSA’s 2016 redetermination
process. See Maynard v. Comm’r of Soc. Sec., 7:17-cv-00183-DCR (E.D. Ky.) The Sixth Circuit
then ruled in a related case that refusing to allow the claimants involved in the Conn scheme, such
as Maynard, to rebut the OIG’s assertion of fraud as to their individual applications violated their
Due Process rights under the Fifth Amendment. Hicks, 909 F.3d at 804. After this ruling, this Court
remanded Plaintiff’s case to the Commissioner for further proceedings consistent with the Sixth
Circuit’s ruling in Hicks and that Maynard’s benefits be reinstated pending further administrative

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proceedings. [Id. at pgs. 692–93]. Due to the COVID-19 Pandemic, an in-person hearing on the
matter was not conducted until May 5, 2023, which was then held before ALJ Nicholas Walter.
[Id. at pg. 639]. During the hearing Walter gave Maynard’s counsel an opportunity to rebut the
exclusion of Dr. Herr’s findings and counsel argued that this evidence should not be excluded
because this was not “a case where fraud was definitely involved.” [Id. at pg. 643].
ALJ Walter then issued his opinion on May 19, 2023, finding that “[a]fter considering the
evidence absent fraud or similar fault, the undersigned concludes there is insufficient evidence
supporting a finding of disability during the period at issue.” [Id. at pg. 628]. As part of his
decision, Walter stated he ultimately did not consider Herr’s findings and detailed his reasoning
for this exclusion with the following:
In this case, Mr. Conn represented the beneficiary during the initial application for
benefits. Additionally, the record contains an examination by Dr. Herr, with the
opinion satisfying SSA’s criteria for establishing disability (Exhibit 15F).
Furthermore, the beneficiary’s original decision awarding benefits was issued by
Administrative Law Judge Daugherty on the record, relying entirely on Dr. Herr’s
report (Exhibit 5A). Given the similarities between Mr. Conn’s admitted fraud
scheme and the facts of this case, there is reason to believe that fraud or similar
fault was involved in the submission of evidence from Dr. Herr. Therefore, this
evidence has not been considered.
During the May 2023 hearing, the beneficiary’s representative questioned whether
the evidence from Dr. Herr should be excluded, given that the beneficiary’s case
and the evidence at Exhibit 15F was not specifically named in the OIG affidavit
(Exhibit 17D). While the affidavit does not identify the beneficiary or the specific
piece of evidence at issue, the undersigned is able to make inferences based on facts
and characteristics common to patterns of known or suspected fraudulent activity.
The undersigned makes the same inference here, in light of all the other admissions
by the fraudulent actors. Therefore, the undersigned has disregarded the
examination and opinion by Dr. Herr. Even if this examination was not excluded,
the undersigned would find it of little probative value given the established
fraudulent conduct of Dr. Herr when working with Mr. Conn.
[Id. at pgs. 618–19]. Maynard then filed exceptions to the ALJ’s decision, but in a letter issued on
November 14, 2023, the Appeals Council stated that they had “determined that the ALJ did not

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abuse his discretion, and there are no other reasons under our rules to assume jurisdiction in your
case.” [R. 14-1 at pg. 3].
Plaintiff Maynard then filed his Complaint in this matter on January 9, 2024. [R. 1].
Concurrently with his Complaint, Maynard filed a motion to enjoin the Commissioner from
ceasing his benefits while his appeal is pending or, alternatively, for the Court to order an
evidentiary hearing on the matter. [R. 3]. During the briefing on this motion, the parties consented
to the referral of this matter to a magistrate judge. [R. 8]. Accordingly, this matter was referred to
the undersigned to conduct all proceedings and order the entry of a final judgment in accordance
with 28 U.S.C. § 636(c) and FED. R. CIV. P. 73. Additionally, the SSA moved to dismiss Plaintiff’s
§ 1983 claim on the grounds that this claim was not a viable legal theory. [R. 11]. The undersigned
ultimately denied Plaintiff’s motion for to enjoin the Commissioner and granted the SSA’s partial
motion to dismiss. [R. 15; R. 16].
Now, Maynard requests judicial review of ALJ Walter’s decision. [R. 1]. He presents two
issues in this appeal. First, Maynard argues that the ALJ improperly disregarded Dr. Herr’s
findings. [R. 21 at pg. 11]. Second, Plaintiff asserts that the ALJ incorrectly discounted Drs. Ford’s
and Rhoads’ medical opinions. [Id. at pgs. 12–13].
STANDARD OF REVIEW
A court reviewing the Social Security Commissioner’s conclusions must affirm unless it
determines that the Commissioner has failed to apply the correct legal standards or has made
findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g);
Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a mere
scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Besaw v. Sec’y of Health & Hum. Servs.,

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966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health & Hum. Servs.,
889 F.2d 679, 681 (6th Cir. 1989)); Sias v. Sec’y of Health & Hum. Servs., 861 F.2d 475, 479 n.1
(6th Cir. 1988). The Commissioner’s findings “as to any fact if supported by substantial evidence
shall be conclusive.” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006)
(citing U.S.C. § 405(g)). It is important to note that where, as here, the Appeals Council declines
to review an Administrative Law Judge’s decision, that decision becomes the final decision of the
Commissioner for purposes of judicial review. Friend v. Comm’r of Soc. Sec., 375 F. App’x 543,
550 (6th Cir. 2010).
A reviewing court owes the Commissioner great deference. 1 In conducting its review, a
court may not try the case de novo, resolve conflicts in the evidence, or decide questions of
credibility. See Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (quoting
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). Consequently, an administrative decision
is not subject to reversal even if substantial evidence would have supported the opposite
conclusion. See id. at 714 (quoting Bass, 499 F.3d at 509). In other words, even if the Court would
have resolved the factual issues differently, the Administrative Law Judge’s decision must stand
if supported by substantial evidence. Id.; see also Tyra v. Sec’y of Health and Human Servs., 896
F.2d 1024, 1028 (6th Cir. 1990). That said, a reviewing court may consider evidence not referenced
by the Administrative Law Judge. Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir.
2001). However, an ALJ’s factual findings “shall be conclusive if supported by substantial
evidence.” Biestek v. Berryhill, 587 U.S. 97, 102 (2019) (quoting 42 U.S.C. § 405(g)) (internal
quotation marks omitted). “Under the substantial-evidence standard, a court looks to an existing
“Precisely because agency action often takes the form of determination of general statutory principles,
agencies are often in the position of architects carrying out a commission whose broad goals have been set
by Congress. Judges should thus afford agencies leeway to carry out the task of the architect.” ADRIAN
VERMEULE, COMMON GOOD CONSTITUTIONALISM 152 (2022).
1

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administrative record and asks whether it contains ‘sufficien[t] evidence’ to support the agency's
factual determinations.” Id. (citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct.
206, 83 L.Ed. 126 (1938)).
Administrative Law Judges are tasked with conducting a five-step analysis to determine
whether a person is disabled within the meaning of Title II. 20 C.F.R. § 404.1520(4). The five
steps are:
(i)

At the first step, we consider your work activity, if any. If you are doing
substantial gainful activity, we will find that you are not disabled.

(ii)

At the second step, we consider the medical severity of your impairment(s).
If you do not have a severe medically determinable physical or mental
impairment that meets the duration requirement in § 404.1509, or a
combination of impairments that is severe and meets the duration
requirement, we will find that you are not disabled.

(iii)

At the third step, we also consider the medical severity of your
impairment(s). If you have an impairment(s) that meets or equals one of our
listings in appendix 1 of this subpart and meets the duration requirement,
we will find that you are disabled.

(iv)

At the fourth step, we consider our assessment of your residual functional
capacity and your past relevant work. If you can still do your past relevant
work, we will find that you are not disabled.

(v)

At the fifth and last step, we consider our assessment of your residual
functional capacity and your age, education, and work experience to see if
you can make an adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.

Id.
Generally, the burden of proof rests with the person claiming benefits. Bowen v. Yuckert,
482 U.S. 137, 146 n.5 (1987). However, if the ALJ reaches the fifth step of the analysis, the burden
shifts to the Commissioner to demonstrate that jobs exist within the national economy that can

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align with the claimant’s residual functional capacity, age, education, and past work experience.
Her v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999).
ANALYSIS
A
Maynard first argues that ALJ Walter improperly disregarded Dr. Herr’s medical findings
because of his involvement in Conn’s fraudulent scheme. [R. 21 at pg. 11]. Maynard asserts that
this decision was not made on the basis of objective facts but was instead done upon an inference
that Dr. Herr’s report was fraudulent, that claimant was not given a proper opportunity to rebut the
exclusion of this report, and that ALJ Walter was not a neutral decisionmaker due to his statement
that he would have found Herr’s report to be of little probative value even if it had not been
excluded. [Id. at pg. 12]. The SSA, however, maintains that the ALJ properly disregarded Herr’s
report because he “had a reason to believe that the report was tainted by fraud or similar fault,”
that Maynard had an opportunity to rebut the exclusion of this evidence, and that Maynard has
failed to demonstrate that ALJ Walter was not a neutral decisionmaker when he rendered his
decision. [R. 26 at pgs. 6–10].
Pursuant to 42 U.S.C. § 405(u)(1)(B), “[w]hen redetermining the entitlement, or making
an initial determination of entitlement, of an individual under this subchapter, the Commissioner
of Social Security shall disregard any evidence if there is reason to believe that fraud or similar
fault was involved in the providing of such evidence.” The SSA has explained in the past that the
“reason to believe standard” under 42 U.S.C. § 405(u)(1)(B) “means reasonable grounds to suspect
that fraud or similar fault was involved in the application or the provision of evidence. The reason
to believe standard requires more than mere suspicion, speculation, or a hunch, but it does not
require a preponderance of evidence.” SSR 22-2p(B)(5), 2022 WL 2533117, at *4 (May 17, 2022).

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To make this determination, “[a]djudicators may make reasonable inferences based on all the
information in the record such as facts or case characteristics common to patterns of known or
suspected fraudulent activity. For us to disregard evidence, it is not necessary that the affected
beneficiary or recipient had knowledge of or participated in the fraud or similar fault.” Id. at *5.
In other words, “[o]n its face, then, § 405(u) requires the SSA to redetermine benefits based
on something less than proof of fraud.” Hicks, 909 F.3d at 809 (citing Deutsche Bank Nat. Tr. Co.
v. Tucker, 621 F.3d 460, 463 (6th Cir. 2010)). Indeed, this Court has specifically held that “[t]he
reason-to-believe standard is a ‘very low bar,’ lacking a requirement that ‘the Commissioner ...
provide evidence specifically tying the fraud to their individual applications.’ Hicks, 909 F.3d at
820 (Rogers, J., dissenting).” Ison v. Kijakazi, No. CV 5:23-054-DCR, 2023 WL 4411026, at *4
(E.D. Ky. July 7, 2023). In fact, the situation in Ison also involved one of Conn’s clients whose
case was connected to his fraudulent scheme and Ison, the client, alleged that the ALJ had
improperly excluded the report of one of the doctors who was also involved in this conspiracy, Dr.
Huffnagle. Id. Ultimately, this Court found that the ALJ’s exclusion of Dr. Huffnagle’s report was
proper given the low bar on the reason-to-believe standard and the similarities in Ison’s case with
the other cases that were involved in Conn’s scheme. Id.
Much like in Ison, ALJ Walter found that “[g]iven the similarities between Mr. Conn’s
admitted fraud scheme and the facts of this case, there is reason to believe that fraud or similar
fault was involved in the submission of evidence from Dr. Herr.” [R. 14 at pg. 618]. ALJ Walter
then described the numerous similarities between this matter and the scheme Conn and Dr. Herr
perpetuated over the course of multiple cases. As the ALJ explained:
As described in the OIG affidavit and plea agreements, Mr. Conn admitted to
fabricating residual functional capacity forms, medical summary reports, and x-ray
reports. Mr. Conn also admitted to paying four medical professionals for their
signature on the falsified documents. David P. Herr, D.O., is one of the identified
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co-conspirators of this scheme. Moreover, Mr. Conn also admitted to paying
Administrative Law Judge Daugherty to decide that Mr. Conn’s clients were
disabled (Exhibit 15D; 16D; 17D).
In this case, Mr. Conn represented the beneficiary during the initial application for
benefits. Additionally, the record contains an examination by Dr. Herr, with the
opinion satisfying SSA’s criteria for establishing disability (Exhibit 15F).
Furthermore, the beneficiary’s original decision awarding benefits was issued by
Administrative Law Judge Daugherty on the record, relying entirely on Dr. Herr’s
report (Exhibit 5A).
[Id.]. Plaintiff maintains that the ALJ’s conclusion to disregard Dr. Herr’s report through
this inference is not supported by the law. [R. 21 at pg. 11]. However, the similarities ALJ
Walter points out combined with the OIG agent’s affidavit and testimony [see R. 14 at pgs.
920–23], establishing similarities between this case and the other cases involved in Conn
and Herr’s scheme indicates that the ALJ’s exclusion is proper under the reason-to-believe
standard. See also Ison, 2023 WL 4411026 at *4 (where this Court found that the ALJ’s
exclusion of Dr. Huffnagle’s report was proper given the similarities between the case and
the other cases involved in Conn’s fraudulent scheme). As the SSA asserts, “this case has
all the hallmarks of the typical Conn/Daugherty fraud scheme” and Maynard has not
presented sufficient evidence to indicate that ALJ Walter’s finding on this issue was
improper. [See R. 26 at pg. 8].
As for Maynard’s other arguments on this point, they too must fail. As previously
indicated, Maynard argues that he was not provided with sufficient opportunity to rebut the
exclusion of this report. [R. 21 at pg. 12]. However, the transcript of the hearing
demonstrates that ALJ Walter told Maynard that he could “make any arguments as to
whether fraud or similar faults was or was not involved in your original application for
benefits” and counsel for Maynard noted “an objection to preserve for the record as to the
exclusion based on the affidavit not specifically identifying this as a case where fraud was
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definitely involved. . .” [R. 14 at pgs. 641, 643]. Therefore, because Maynard had the
opportunity to rebut this exclusion, this argument must fail. See Sexton v. Comm'r of Soc.
Sec., No. 23-5981, 2024 WL 1994918, at *4 (6th Cir. May 6, 2024) (“Because she had the
chance to rebut the OIG's assertion of fraud and to present evidence supporting her claim,
Sexton has not demonstrated that the procedures employed at her hearing violated her due
process rights.”).
Finally, Maynard has provided no proof that ALJ Walter was not a neutral decisionmaker beyond his statement that Dr. Herr’s report had, regardless of any fraud issues, little
probative value. [R. 21 at pg. 12]. Maynard avers that this statement was improper because
“in addition to [Dr. Herr] never having been charged in connection with the Conn scheme,
his report is corroborated by the objective medical evidence found in the Plaintiff’s MRIs
and by the medical opinions of Dr. Rhoads and Dr. Ignatiadis. As such, this report should
not have been disregarded, and it should have been given proper weight.” [Id.]. However,
the Sixth Circuit has explained that “the court must start from the presumption that
administrative adjudicators are unbiased, and that honesty and integrity exist among them.”
Wells v. Apfel, 234 F.3d 1271 (6th Cir. 2000) (citations omitted). Therefore, the burden to
show an ALJ is biased is on the party making that assertion and prove that a conflict of
interest or some other specific reason for disqualification exists. Id. “Alleged prejudice
must be evident from the record and cannot be based on speculation or inference.” Id.
(citing Schwiker v. McClure, 456 U.S. 188, 196 (1982)). Here, Maynard has failed to
provide any substantive evidence to satisfy that burden or show that this statement from
the ALJ demonstrates that a conflict of interest or some other reason for disqualification
exists in this matter. Thus, this argument must also fail.

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B
Next, Maynard claims that ALJ Walter improperly gave minimal weight to Drs. Ford’s and
Rhoads’ medical opinions “despite the fact that they performed consultative examinations at the
behest of the Social Security Administration.” [R. 21 at pg. 12]. To begin with, Dr. Ford conducted
an examination of Maynard in March of 2010 and made the following findings:
[Maynard’s] ability to understand, remember, and carry out instructions toward
performance of simple repetitive tasks is not affected. [Maynard's] ability to tolerate
stress and pressure of day-to-day employment is affected by the impairment with
moderate limitations noted. [Maynard’s] ability to sustain attention and
concentration towards performance of simple repetitive tasks is affected by the
impairment with marked limitations noted. [Maynard’s] capacity to respond
appropriately to supervision, co-workers, and work pressures in a work setting is
affected by the impairment with moderate limitations noted.
[R. 14 at pg. 488]. ALJ Walter considered this opinion, but ultimately determined that the opinion
should be given minimal weight and explained his reasoning with the following:
The undersigned gives minimal weight to the psychological consultative opinion
from Leigh Ann Ford, Ph.D. Dr. Ford examined the beneficiary on March 24, 2010
(Exhibit 9F). The beneficiary complained of chronic depression and anxiety. His
pain management provider prescribed Xanax, but the beneficiary was not currently
seeking care for these symptoms with a mental specialist. Dr. Ford concluded that
the beneficiary demonstrated “moderate” limitation in ability to tolerate stress and
pressure of day-to-day employment and respond appropriately to supervision, coworkers, and work pressures in a work setting. Dr. Ford also found “marked”
limitation in his ability to sustain attention and concentration towards performance
of simple repetitive tasks. The undersigned finds that Dr. Ford’s assessment is
inconsistent with the lack of mental health treatment during the period at issue, and
is overly deferential to the beneficiary’s subjective description of symptoms.
Additionally, in February 2010, the beneficiary reported he could pay attention for
30 minutes and typically complete tasks that he started, which is inconsistent with
marked limitation in sustaining concentration (Exhibit 2E).
[Id. at pg. 623].
Pursuant to 20 C.F.R.§ 404.1527(c), an ALJ must consider several factors when
determining how much weight to give to a medical opinion, including how consistent the opinion
is with the overall medical record. In fact, further regulations indicate that consistency with the
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medical record is a vital factor to consider when analyzing a medical opinion and its authority in
each case. See 20 C.F.R. § 404.1520c(b)(2) (“The factors of supportability (paragraph (c)(1) of
this section) and consistency (paragraph (c)(2) of this section) are the most important factors we
consider when we determine how persuasive we find a medical source's medical opinions or prior
administrative medical findings to be.”); 20 C.F.R. § 404.1520c(c)(2) (“The more consistent a
medical opinion(s) or prior administrative medical finding(s) is with the evidence from other
medical sources and nonmedical sources in the claim, the more persuasive the medical opinion(s)
or prior administrative medical finding(s) will be.”). Further, as both parties acknowledge, Dr.
Ford and Dr. Rhoads’ opinions are not given controlling weight because they are not Maynard’s
treating providers. [See R. 21 at pg. 12; R. 26 at pg. 12]. Indeed, this Court has held in the past that
“[i]t is well established that the opinions of consultative examiners are not entitled to controlling
weight.” Caldwell v. Astrue, No. CIV. A. 08-350-HRW, 2009 WL 3756992, at *3 (E.D. Ky. Nov.
9, 2009) (citations omitted); see also Crider v. Colvin, No. CIV.A. 13-13-HRW, 2014 WL
2155261, at *4 (E.D. Ky. May 22, 2014) (consultative examiner’s opinion is not accorded any
special weight or deference). While the ALJ must provide good reasons when explaining the
weight that has been given to treating providers’ opinions, such a requirement is not needed when
discussing an examining but non-treating opinion. See 20 C.F.R. § 404.1527(c)(2); see also Ealy
v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010). Finally, as previously indicated, the
ALJ’s decision to discount and reject these opinions will be upheld if substantial evidence exists
to support that finding. See 42 U.S.C. § 405(g).
Here, Dr. Ford’s examination was properly discounted. Dr. Ford’s report indicated
Maynard was suffering from several mental impairments, including the fact he could not spell the
word “world” backwards, he could not recite three or four digits backwards, and his “[c]apacity

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for abstraction appears to be limited to the concrete interpretation of language as the claimant could
not explain simple proverbs.” [R. 14 at pgs. 487–88]. Dr. Ford thus found that Maynard was
suffering from moderate limitations that affected his ability to respond to the stress and pressure
of day-to-day employment and to respond appropriately to co-workers and others in the workplace.
[Id. at pg. 488]. However, this finding is not supported by the rest of the record. Indeed, as the ALJ
points out, “in February 2010, the beneficiary reported he could pay attention for 30 minutes and
typically complete tasks that he started, which is inconsistent with marked limitation in sustaining
concentration.” [Id. at pg. 623]. Maynard’s own statements in his medical record therefore
contradict Dr. Ford’s findings. Further, as the parties acknowledge, the only medical record from
the relevant period indicated Maynard’s mental state was normal and the only record of mental
health treatment was a prescription for Xanax. [See R. 21 at pg. 13; R. 26 at pg. 14; see also R. 14
at pgs. 481, 487].
Maynard’s medical record therefore contradicts Dr. Ford’s findings on his mental status
and the fact Maynard was prescribed Xanax cannot save his argument. Rather, as the ALJ
determined, it appears that Dr. Ford’s assessment is “overly deferential to the beneficiary’s
subjective description of symptoms.” [R. 14 at pg. 623]. Plaintiff maintains that Dr. Ford’s findings
were not based solely on his subjective descriptions, but beyond Dr. Ford’s own findings Maynard
has failed to provide any other support to justify Dr. Ford’s findings. [See R. 21 at pg. 13]. As the
Sixth Circuit has explained in the past, a medical opinion may be properly discounted when it is
determined that the opinion relies too heavily on the claimant’s subjective complaints. See
Staymate v. Comm'r of Soc. Sec., 681 F. App'x 462, 467 (6th Cir. 2017). Maynard has failed to
present evidence to rebut the ALJ’s finding that Dr. Ford’s opinion was contradicted by the record

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and relied too heavily on his subjective complaints, therefore ALJ Walter’s decision to discount
this opinion was supported by substantial evidence.
As for Dr. Rhoads, she determined from her examination the following:
The claimant’s ability to perform work-related activities, such as bending, stooping,
lifting, walking, crawling, squatting, carrying and traveling, and pushing and
pulling heavy objects, is impaired due to fair to poorly controlled hypertension,
chronic low back pain with lumbar disc disease and a history of radiculopathy, a
subacute left shoulder injury, loss of range of motion of the left elbow and forearm,
poorly controlled hypertension, occasional numbness in the right middle and index
fingers, chronic bronchitis, dyspnea on exertion, atypical chest wall pain, and an
abnormal electrocardiogram by history.
[R. 14 at pgs. 498–99]. The ALJ, however, made the following findings as to Dr. Rhoads’ opinion:
The undersigned gives minimal weight to the opinion that Susan Rhoads, M.D.
provided after examining the beneficiary in May 2010. Dr. Rhoads opined that the
beneficiary’s “ability to perform work-related activities, such as, bending, stooping,
lifting, walking, crawling, squatting, carrying and traveling, pushing and pulling
heavy objects, is impaired” due to hypertension, back pain, and a left shoulder
injury. Dr. Rhoads’ observations and examination findings are informative, but the
opinion that the beneficiary is “impaired” in various physical functions is vague
and non-specific as to the beneficiary’s work-related capabilities. The undersigned
has accommodated the beneficiary’s shoulder pain and back pain above with a
limited range of light work with postural, reaching, and environmental limitations.
[Id. at pg. 626]. Maynard contends that ALJ Walter’s decision to give minimal weight to this
opinion was improper because the 2010 Disability Determination Explanation gave great weight
to it and because Dr. Rhoads’ opinion is otherwise supported by the record and her findings
sufficiently describe Maynard’s impairments. [R. 21 at pg. 13].
However, this argument must also fail. First, as the SSA explains, “[w]hile Dr. Rhoads
explained that plaintiff had physical limitations, she didn’t clarify the extent of those limitations.”
[R. 26 at pg. 12]. As the Sixth Circuit has held in the past, the ALJ is within his rights to afford
little weight to an opinion that was vague. See Quisenberry v. Comm'r of Soc. Sec., 757 F. App'x
422, 431 (6th Cir. 2018). Further, Maynard has failed to demonstrate that affording this opinion

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more weight would have ultimately changed his RFC calculation. After considering the records
and opinions in this matter, ALJ Walter determined that Maynard had the RFC to “perform light
work as defined in 20 CFR 404.1567(b) except he could occasionally stoop, kneel, crouch, crawl,
and climb ramps or stairs. He could never climb ladders, ropes, or scaffolds. He could occasionally
reach overhead with the left upper extremity. He could not tolerate concentrated exposure to
vibration or to hazards.” [R. 14 at pg. 624]. Maynard fails to provide any evidence or citations to
the record to indicate that the RFC calculation would have changed even if Dr. Rhoads’ opinion
had been given greater weight. See Watters v. Comm'r of Soc. Sec. Admin., 530 F. App'x 419, 423
(6th Cir. 2013) (holding that failure to properly accord weight to a medical report is harmless error
if the ALJ makes findings otherwise consistent with the medical opinion). Finally, the fact the June
2010 Disability Determination Explanation relied heavily on Dr. Rhoads’ opinion was not binding
on ALJ Walter when he rendered his decision. See 20 C.F.R. § 404.921 (holding that a
reconsideration determination is not binding if the claimant appeals the decision to an ALJ).
Therefore, ALJ Walter was not required to also rely as heavily on Dr. Rhoads’ opinion when he
made his determination. Because the ALJ’s decision to accord little weight to Dr. Rhoads’ opinion
is supported by substantial evidence and Maynard has otherwise failed to demonstrate that the
ultimate RFC calculation would have changed if more weight had been given to the opinion, this
argument must also fail.
CONCLUSION
Tommy Lee Maynard appealed the Acting Commissioner’s final decision that he is not
entitled to disability insurance benefits. Maynard argues that the ALJ’s determination that Dr.
Herr’s report was tainted by fraud and his decision to give little weight to the opinions of Drs. Ford
and Rhoads necessitate a reversal of the ALJ’s decision. But the record indicates that there is

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substantial evidence to support the ALJ’s findings on Dr. Herr’s report and his consideration of
Drs. Ford’s and Rhoads’ medical opinions. Plaintiff has failed to satisfy his burden of proof to
warrant a reversal of ALJ Walter’s decision. The Commissioner’s final decision is therefore
AFFIRMED. A separate judgment will follow.
Signed September 26, 2024.

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