Athey v. Social Security, Commissioner of

Filing 22

ORDER Overruling Plaintiff's 20 Objection to Report and Recommendation, Adopting in Part the Magistrate Judge's 19 REPORT AND RECOMMENDATION, Granting Defendant's 16 MOTION for Summary Judgment, and Denying Plaintiff's 12 MOTION for Summary Judgment. Signed by District Judge Matthew F. Leitman. (Monda, H)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK ATHEY,
Plaintiff,

Case No. 13-cv-12528
Hon. Matthew F. Leitman

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________/
ORDER OVERRULING PLAINTIFF’S OBJECTION (ECF #20);
ADOPTING IN PART THE MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION (ECF #19); GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (ECF #16); AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT (ECF #12)
This matter is before the Court on the Objection by Plaintiff Mark Athey
(“Athey”) to Magistrate Judge Mona K. Majzoub’s August 6, 2014, Report and
Recommendation.

The Court now OVERRULES Athey’s Objection (the

“Objection,” ECF #20); ADOPTS IN PART the Report and Recommendation (the
“R&R,” ECF #19); GRANTS Defendant Commissioner of Social Security’s (the
“Commissioner’s”) Motion for Summary Judgment (ECF #16); and DENIES
Athey’s Motion for Summary Judgment (ECF #12).

PROCEDURAL HISTORY
Athey filed an application for Social Security disability insurance benefits
on October 22, 2010, alleging that he was unable to work due to various physical
ailments (including back pain and asthma) and mental impairments (including
anxiety and depression). (See Application for Disability Insurance Benefits, ECF
#8-5 at 2, Pg. ID 167; Function Report, ECF #8-6 at 2-9, Pg. ID 182-189.) In
support of his application, Athey submitted an opinion from his treating
psychiatrist, Dr. Cherukuri. In a two-page, check-box questionnaire, Dr. Cherukuri
indicated that Athey suffered from four limitations: (1) marked restriction of
activities of daily living; (2) marked difficulties in maintaining social functioning;
(3) marked difficulties in maintaining concentration, persistence, or pace; and (4)
repeated episodes of decompensation, each of extended duration.

(See the

“Impairment Checklist,” ECF #8-7 at 497-98, Pg. ID 529-30.)
On February 9, 2012, Administrative Law Judge Craig R. Petersen (the
“ALJ”) denied Athey’s application for benefits. (See the “ALJ’s Decision,” ECF
#8-2.) The ALJ found that (1) Athey’s impairments did not meet or medically
equal the severity of an impairment listed in 20 CFR Part 404, Subpart P,
Appendix 1; (2) Athey had residual functional capacity to perform light work, with
certain restrictions; (3) there were jobs in significant numbers in the national

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economy that Athey could perform; and (4) Athey therefore was not disabled. (See
id. at 4-13, Pg. ID 49-58.)
In reaching his conclusion, the ALJ gave only partial weight to Dr.
Cherukuri’s opinion. (See id. at 6, Pg. ID 51.) The ALJ stated that:
The undersigned has given Dr. Cherukuri’s opinion some weight
regarding the nature and persistence of [Athey’s] depressive
symptoms. However, the record does not support the degree of
limitation reported…. In particular, as noted above, there is no
evidence of any episode of decompensation during the relevant
period.
(Id.) (emphasis added). The ALJ also explained that the record indicated that
Athey had only a “mild restriction” with respect to activities of daily living and
“moderate difficulties” in social functioning and concentration, persistence, or
pace. (Id. at 5-6, Pg. ID 50-51.)
Athey filed this action challenging the Commissioner’s denial of benefits.
(See Complaint, ECF #1.)

Athey then moved for summary judgment on the

grounds that the ALJ erred by failing to give controlling weight to Dr. Cherukuri’s
opinion. (See Athey’s Motion, ECF #12.) The Commissioner filed a cross-motion
for summary judgment. (See the Commissioner’s Motion, ECF #16.)
On August 6, 2014, the Magistrate Judge issued her R&R in which she
suggested that the ALJ erred by failing to provide good reasons for giving Dr.
Cherukuri’s opinion less than controlling weight. (See R&R at 17, Pg. ID 609.)
However, the Magistrate Judge also suggested that (1) Dr. Cherukuri’s opinion was
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patently deficient because it consisted solely of checkmarks, without any
supporting explanation, and (2) the ALJ’s failure to explain the weight afforded to
Dr. Cherukuri’s opinion was therefore harmless error. (See id. at 17-18, Pg. ID
609-10.) Accordingly, the Magistrate Judge recommended that this Court affirm
the ALJ’s Decision. (See id. at 18, Pg. ID 610.)
Athey then filed his Objection to the R&R. (See Objection.) Athey objects
on only one ground: that Dr. Cherukuri’s opinion was not patently deficient. (See
id. at 2, Pg. ID 613.) Athey requests that this Court remand the instant action to
the Commissioner “to determine if the opinion is well supported.” (Id.) The
Commissioner responded that substantial evidence supported the ALJ’s denial of
benefits and that the Court should therefore affirm the ALJ’s Decision. (See the
Commissioner’s Response, ECF#21.)
GOVERNING LEGAL STANDARD
Where a party has objected to portions of a Magistrate Judge's Report and
Recommendation, the Court conducts a de novo review of those portions. See Fed.
R. Civ. P. 72(b); Lyons v. Comm'r, 351 F.Supp.2d 659, 661 (E.D. Mich. 2004). “In
conducting a de novo review, the district court is not constrained by the parties’
objections” – rather, the Court may review the Report and Recommendation in its
entirety. See Childrey v. Chater, 91 F.3d 143 at n. 1 (6th Cir. 1996) (table opinion)
(citing Thomas v. Arn, 474 U.S. 140, 154 (1985)).
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In reviewing the findings of the ALJ, the Court is limited to determining
whether those findings are supported by substantial evidence and made pursuant to
proper legal standards.

See 42 U.S.C. § 405(g) (“The findings of the

Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive...”). 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.” Rogers v. Comm'r, 486
F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health & Human Servs.,
25 F.3d 284, 286 (6th Cir. 1994)). “It is of course for the ALJ, and not the
reviewing court, to evaluate the credibility of witnesses, including that of the
claimant.” Rogers, 486 F.3d at 247. “[A] court is obligated to remand for further
administrative proceedings if there are any unresolved essential factual issues.”
Meehleder v. Comm’r, 2012 WL 3154968, at *2 (E.D. Mich. Aug. 2, 2012) (citing
Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994)).
ANALYSIS
An ALJ must grant “controlling weight” to the opinion of a claimant’s
treating physician where “(1) the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques; and (2) the opinion is not
inconsistent with the other substantial evidence in the case record.” Gayheart v.
Comm’r, 710 F.3d 365, 376 (6th Cir. 2013) (citing 20 CFR 404.1527(c)(2))
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(internal punctuation omitted). If the opinion of a treating physician is not entitled
to controlling weight, the ALJ must consider certain factors in determining the
weight to give to the opinion. See 20 CFR 404.1527(c)(2). These factors include
the “length of the treatment relationship and the frequency of examination, the
nature and extent of the treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and the specialization of the
treating source.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir.
2004); see also 20 CFR 404.1527(c)(2).
The ALJ must provide “good reasons” for giving a treating physician’s
opinion less than controlling weight. Gayheart, 710 F.3d at 376 (citing 20 CFR
404.1527(c)(2)). “These reasons must be supported by the evidence in the case
record, and must be sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical opinion and the
reasons for that weight.” Id. (quoting Soc. Sec. Rul. No. 96-2p). If the ALJ does
not provide “good reasons” for discounting a treating physician’s opinion, a district
court may affirm the ALJ’s decision only if it finds the error harmless. See
Francis v. Comm’r of Soc. Sec., 414 Fed. App’x 802, 804 (6th Cir. 2001) (citing
Wilson, 378 F.3d at 546-47).
In this case, the ALJ did not err in his evaluation of Dr. Cherukuri’s opinion.
Indeed, the ALJ did provide good reasons for according only “some weight” –
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rather than controlling weight – to that opinion. (ALJ’s Decision at 6, Pg. ID 51.)
In particular, the ALJ explained that “the record does not support the degree of
limitation” that Dr. Cherukuri reported. (Id.) The ALJ specifically addressed each
of the four limitations that Dr. Cherukuri identified and explained that the record,
taken as a whole, did not establish that Athey experienced “marked” restrictions:
 The ALJ found that Athey had only a “mild restriction” in activities of daily
living. The ALJ noted that the record “contains no evidence of psychiatric
hospitalizations, emotional liability, or psychomotor agitation,” and the
“claimant’s treating mental health professionals have consistently noted
good hygiene and grooming.” (Id. at 5, Pg. ID 50.)
 The ALJ found that Athey had only “moderate difficulties” in social
functioning. The ALJ noted that Athey “has never been hospitalized for
anxiety-related symptoms;” that Athey told Dr. Cherukuri in November
2011 that “his panic attacks generally did not interfere with his functioning;”
and that “none of [Athey’s] clinicians has observed overt signs of anxiety on
mental status examination.” (Id.)
 The ALJ found that Athey had only “moderate difficulties” with
concentration, persistence, or pace. The ALJ noted that Dr. Cherukuri
reported during a psychiatric evaluation in June 2011 that Athey exhibited
“generally normal memory, and no evidence of distractibility or
impulsivity,” and “the record reflects general improvement in [Athey’s]
mental symptoms with counseling and medication.” (Id. at 6, Pg. ID 51.)
 The ALJ found that Athey “has experienced no episodes of decompensation,
which have been of extended duration.” The ALJ noted that Athey “has
never been psychiatrically hospitalized.” (Id.)
Thus, the ALJ cited specific evidence justifying his conclusions that Athey did not
suffer from the “marked” limitations that Dr. Cherukuri identified.

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Athey correctly asserts that the ALJ did not expressly discuss this evidence
in the paragraph of the decision in which he concluded that Dr. Cherukuri’s
opinion was not entitled to controlling weight.1 (See Athey’s Motion at 7, Pg. ID
551.) However, the ALJ discussed this evidence in the section of the decision
immediately preceding his assessment of Dr. Cherukuri’s opinion.

(See ALJ

Decision at 5-6, Pg. ID 50-51.) Furthermore, the Court reads the ALJ’s statement
that “the record does not support the degree of limitation reported” – the key
justification that the ALJ provided for discounting Dr. Cherukuri’s opinion – as
referring to the evidence that the ALJ had just cited in support of his conclusion
that Athey experienced only “mild” or “moderate” restrictions. (Id. at 6, Pg. ID
51.)

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The paragraph of the ALJ’s Decision in which the ALJ assigned “some weight”
to Dr. Cherukuri’s opinion read, in full:
In January 2012, Dr. Cherukuri reported that [Athey] had a depressive
syndrome characterized by anhedonia, appetite disturbance, sleep
disturbance, difficulty concentrating, and hallucination[s], among
other symptoms. (Ex. 17F/2). Additionally, Dr. Cherukuri observed
that the claimant’s depression cause[d] marked limitations in activities
of daily living, social functioning, and concentration persistence, or
pace, along with repeated episodes of decompensation (Ex. 17F/3).
The undersigned has given Dr. Cherukuri’s opinion some weight
regarding the nature and persistence of [Athey’s] depressive
symptoms. However, the record does not support the degree of
limitation reported with respect to the “paragraph B” criteria. In
particular, as noted above, there is no evidence of any episode of
decompensation during the relevant period.

(ALJ Decision at 6, Pg. ID 51) 
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Read as a whole, therefore, the ALJ’s Decision leaves no doubt that the ALJ
found Dr. Cherukuri’s opinion to be “inconsistent with the other substantial
evidence in the case record.” Gayheart, 710 F.3d at 376; see also Gates v. Colvin,
No. 12-cv-00220, 2013 WL 3087268 at *13 (S.D. Ohio June 18, 2013) (“it is
proper to read the ALJ’s decision as a whole) (quoting Rice v. Barnhart, 384 F.3d
363, 370 n.5 (7th Cir. 2004)). Furthermore, the ALJ appears to have considered
the factors in 20 CFR 404.1527(c)(2) – in particular, he noted that Dr. Cherukuri
specialized in psychiatry, and he found that Dr. Cherukuri’s opinion was not fully
supportable.2 (See ALJ’s Decision at 5-6, Pg. ID 50-51.) Moreover, as described
above, the ALJ provided good reasons for his decision that were supported by
evidence in the record. Accordingly, the ALJ satisfied his obligation to “make
clear to … subsequent reviewers” why he did not give Dr. Cherukuri’s opinion
controlling weight. Gayheart, 710 F.3d at 376.
Because the Court concludes that the ALJ did not err by failing to provide
good reasons for assigning less than controlling weight to Dr. Cherukuri’s opinion,
the Court need not address the Magistrate Judge’s suggestion that the ALJ’s

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Although the ALJ did not address some of the factors in 20 CFR 404.1527(c)(2)
– including the length and nature of Athey’s treating relationship with Dr.
Cherukuri – the ALJ nonetheless provided sufficient reasons for discounting Dr.
Cherukuri’s opinion. See Francis, 414 Fed. App’x at 802 (“Although the
regulations instruct an ALJ to consider the[] factors [in 20 CFR 404.1527(c)(2)],
they expressly require only that the ALJ’s decision include ‘good reasons … for
the weight give[n] [to the] treating source’s opinion’ – not an exhaustive factor-byfactor analysis”) (emphasis added).
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purported error was harmless. The Court will adopt the Magistrate Judge’s R&R
to the extent that it recommends affirming the ALJ’s Decision.
CONCLUSION
For all of the reasons stated above, IT IS HEREBY ORDERD THAT the
Court OVERRULES Athey’s Objection (ECF #20) and ADOPTS IN PART the
R&R (ECF #19).
IT IS FURTHER ORDERED THAT the Commissioner’s Motion for
Summary Judgment (ECF #16) is GRANTED and Athey’s Motion for Summary
Judgment (ECF #12) is DENIED.
IT IS FURTHER ORDERED THAT this action is DISMISSED WITH
PREJUDICE.
s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE
Dated: September 11, 2014
I hereby certify that a copy of the foregoing document was served upon the parties
and/or counsel of record on September 11, 2014, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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