Webb v. Colvin

Filing 33

OPINION AND ORDER DENYING Plaintiff's 25 Motion for Summary Judgment; and GRANTING 26 Motion for Summary Judgment--Signed by Magistrate Judge Anthony P. Patti. (MWil)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIANA SHELENE WEBB,
Plaintiff,

Case No. 2:16-cv-10015
Magistrate Judge Anthony P. Patti

v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
___________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR
SUMMARY JUDGMENT (DE 25), GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT (DE 26) and AFFIRMING THE DECISION
OF THE COMISSIONER OF SOCIAL SECURITY
I.

BACKGROUND
Plaintiff, Kiana Shelene Webb, brings this action under 42 U.S.C. § 405(g)

and 42 U.S.C. § 1383(c)(3) for review of a final decision of the Commissioner of
Social Security (“Commissioner”) denying her applications for disability insurance
(DI) benefits and supplemental security income (SSI) benefits. Plaintiff filed these
applications on May 10, 2013, alleging that she has been disabled since October
18, 2011, at the age of 35. (R. at 142-145, 146-151.) Plaintiff’s applications were
denied on July 22, 2013, and she sought a de novo hearing before an
Administrative Law Judge (“ALJ”). (R. at 67-92, 97-98, 103-105.) ALJ B. Lloyd
Blair held a hearing on September 3, 2014 and subsequently determined that

Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 4266, 22-41.) On November 4, 2015, the Appeals Council denied Plaintiff’s request
for review. (R. at 1-7, 16-20.) ALJ Blair’s decision became the Commissioner’s
final decision. Plaintiff then timely commenced the instant action on January 4,
2016. (DE 1.)
II.

THE INSTANT MOTIONS
In her motion for summary judgment, Plaintiff asserts that ALJ Blair

committed reversible error by: (1) determining her claim on the basis of an
incomplete record; (2) concluding at Step 3 that the severity of Plaintiff’s mental
impairments does not meet or medially equal the criteria of Listings 12.04
(“Depressive, bipolar and related disorders”) and 12.06 (“Anxiety and obsessivecompulsive disorders”); and (3) failing “to give adequate consideration to the
expert medical opinions of Claimant’s treating and examining physicians” within
the Step 4 RFC determination (DE 25 at 2-3, 24-29.) The Commissioner opposes
the motion and has filed a motion for summary judgment, arguing that substantial
evidence supports the Commissioner’s decision and that any error the ALJ may
have made was harmless. (DE 26.)
The parties have consented to my authority. (DEs 11, 14, 15.) A hearing
was held on March 2, 2017, at which Plaintiff and her counsel (Lisa A. Welton)
appeared in person and Defendant’s counsel (AUSA Natasha Oeltjen of

2

Massachusetts) appeared by telephone. (See DEs 28, 31, 32.) Following oral
argument, I took these motions under advisement.
III.

STANDARD OF REVIEW
The District Court has jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case
under the Social Security Act, the Court “must affirm the Commissioner’s decision
if it ‘is supported by substantial evidence and was made pursuant to proper legal
standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see
also 42 U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under
this standard, “substantial evidence is defined as ‘more than a scintilla of evidence
but less than a preponderance; it is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Rogers, 486 F.3d at 241
(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). In deciding whether substantial evidence supports the ALJ’s decision, the
court does “not try the case de novo, resolve conflicts in evidence or decide
questions of credibility.” Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007);
Rogers, 486 F.3d at 247 (“It is of course for the ALJ, and not the reviewing court,
to evaluate the credibility of witnesses, including that of the claimant.”).

3

Furthermore, the claimant “has the ultimate burden to establish an entitlement to
benefits by proving the existence of a disability.” Moon v. Sullivan, 923 F.2d
1175, 1181 (6th Cir. 1990).
Although the substantial evidence standard is deferential, it is not trivial.
The Court must “‘take into account whatever in the record fairly detracts from
[the] weight’” of the Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384,
395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487
(1951)). Nevertheless, “if substantial evidence supports the ALJ’s decision, this
Court defers to that finding ‘even if there is substantial evidence in the record that
would have supported an opposite conclusion.’” Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997));
see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive . . . .”).
Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a
decision of the Commissioner will not be upheld where the SSA fails to follow its
own regulations and where that error prejudices a claimant on the merits or
deprives the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
IV.

DISCUSSION
A.

Plaintiff has not shown a procedural due process error that
warrants remand.
4

Plaintiff’s procedural due process argument stems from Exhibit 15F’s
absence from the administrative record at the time the ALJ rendered his November
19, 2014 decision and extends to the Appeals Council’s November 4, 2015
consideration of the missing evidence. (DE 25 at 24-25.)
1.

Submitting written evidence to an ALJ

On August 28, 2013, Plaintiff, on her own behalf, requested a hearing by an
ALJ, noting that she had additional evidence to submit from Heron Ridge
Associates and Dr. Grimm. (R. at 97-98.) At that time, she was also supposed to
“submit information or evidence as required by § 404.1512 or any summary of the
evidence to the administrative law judge.” 20 C.F.R. §§ 404.935(a), 416.1435(a).
As that regulation further provides, “[e]ach party must make every effort to ensure
that the administrative law judge receives all of the evidence and must inform [the
SSA] about or submit any written evidence, as required in § 404.1512, no later
than 5 business days before the date of the scheduled hearing.” 20 C.F.R. §§
404.935(a), 416.1435(a).
The September 3, 2013 hearing process explanation sent to Plaintiff
explained the process for “Providing Additional Evidence.”

(R. at 106-108.)

Significantly, this notice provides: “We can help you get evidence you believe the
ALJ should see. If you need help, contact our office, your local Social Security
office, or your representative (if you appoint one) immediately[,]” and “[i]f a
5

physician, expert, or other person is not providing documents important to your
case, you may ask the ALJ to issue a subpoena.” (R. at 107.) Approximately four
months later, on January 9, 2014, Plaintiff retained counsel. (R. at 113-114, 115.)
A hearing was noticed for September 3, 2014. (R. at 116-133.) The hearing notice
contained a section entitled, “You May Submit More Evidence and Review Your
File.” (R. at 117, 123.)
The opening paragraph of Plaintiff’s September 3, 2014 hearing brief alleges
that “updated mental health treatment records remain outstanding from Claimant’s
treating psychiatrist Dr. [Mallhi], and therapist D. [Hartman][,]” and requests that
“the administrative record remain open for a period of 2 weeks post-hearing to
permit submission of this material evidence upon receipt of same by Claimant’s
counsel.” (R. at 226-230 (emphases added).) A hearing was conducted that same
day. (R. at 42-66.) Approximately 2 ½ months later, ALJ Blair issued his
November 19, 2014 decision, based on medical records found at Exhibits 1F
through 14F. (R. at 22-41). In other words, the ALJ issued his decision without
the benefit of Exhibit 15F. There is no evidence that the ALJ failed to keep the
record open for a two week period after the hearing, as requested.
a.

Plaintiff’s responsibility to develop the record

Plaintiff claims her counsel “repeatedly requested the updated mental health
treatment records of HRA [Heron Ridge Associates], but the records were not

6

produced prior to the hearing, or within the extended time provided by the ALJ
post hearing.” (DE 25 at 25.) To determine whether Plaintiff had any further
responsibility to develop the record once she brought it to the ALJ’s attention in
her hearing brief, the Court looks to the SSA regulation that specifically addresses
evidence. In general, it provides:
. . . you have to prove to us that you are blind or disabled. You must
inform us about or submit all evidence known to you that relates to
whether or not you are blind or disabled. This duty is ongoing and
requires you to disclose any additional related evidence about which
you become aware. This duty applies at each level of the
administrative review process, including the Appeals Council level if
the evidence relates to the period on or before the date of the
administrative law judge[’s] hearing decision. We will consider only
impairment(s) you say you have or about which we receive evidence.
20 C.F.R. §§ 404.1512(a), 416.912(a) (emphasis added). Moreover, as to the
claimant’s responsibility, the evidence regulation further provides: “You must
inform us about or submit all evidence known to you that relates to whether or not
you are blind or disabled. When you submit evidence received from another
source, you must submit that evidence in its entirety, unless you previously
submitted the same evidence to us or we instruct you otherwise.” 20 C.F.R. §§
404.1512(c), 416.912(c) (emphasis added).
Here, Plaintiff’s counsel’s hearing brief, which is dated the same day as the
hearing itself, asserts that the missing evidence is “material.” (R. at 226.) Thus,
even if the Commissioner is correct that Plaintiff’s counsel did not raise the

7

missing records issue at the hearing (DE 26 at 6), it is clear that she expressly
brought this issue to the ALJ’s attention on that same date.
b.

The ALJ’s responsibility to develop the record

In support of her argument, Plaintiff cites the regulation regarding ALJ
hearing procedures:
A hearing is open to the parties and to other persons the administrative
law judge considers necessary and proper. At the hearing, the
administrative law judge looks fully into the issues, questions you and
the other witnesses, and, subject to the provisions of § 404.935:
Accepts as evidence any documents that are material to the issues;
may stop the hearing temporarily and continue it at a later date if he or
she finds that there is material evidence missing at the hearing; and
may reopen the hearing at any time before he or she mails a notice of
the decision in order to receive new and material evidence. The
administrative law judge may decide when the evidence will be
presented and when the issues will be discussed.
20 C.F.R. §§ 404.944, 416.1444. Plaintiff seems to allege that ALJ Blair failed to
“look[] fully into the issues” at the September 3, 2014 hearing, as he “should have
tried to obtain this medical evidence before deciding the claim but did not.” (DE
25 at 25.)
Here, the Court considers whether the ALJ, having been put on notice by
Plaintiff’s hearing brief that certain evidence had yet to be secured, had a duty to
further develop the record before issuing his decision or to withhold his decision
until the records were submitted. As to the SSA’s responsibility, the evidence
regulation instructs:

8

Before we make a determination that you are not disabled, we will
develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is
a reason to believe that development of an earlier period is necessary
or unless you say that your disability began less than 12 months
before you filed your application. We will make every reasonable
effort to help you get medical reports from your own medical sources
when you give us permission to request the reports.
20 C.F.R. §§ 404.1512(d), 416.912(d) (emphases added). Plaintiff’s argument
does not cite to any evidence that she gave the ALJ permission to request the
records at issue, nor does she provide authority for a presumed argument that the
ALJ had a duty to withhold his decision indefinitely until the records were
received. (DE 25 at 24-25.) Moreover, Plaintiff did not ask the ALJ to obtain or
subpoena the additional records, let alone give permission for him to do so; to the
contrary, Plaintiff made clear an intention to undertake that task herself, by stating
that the material evidence would be submitted “upon receipt of same by Claimant's
counsel.” (R. at 226.) The record is devoid of any request to the Commissioner
for assistance in carrying out this record gathering.
2.

Review by the Appeals Council

On January 15, 2015, Plaintiff requested review by the Appeals Council and
an extension of time to submit “additional evidence.” (R. at 19, 234.) Based on
the facsimile time-stamp, it appears that Plaintiff’s counsel received the documents
at issue on January 29, 2015. Exhibit 15F is comprised of 47 pages of documents
from Heron Ridge Associates, PLC and includes:
9



An August 13, 2013 Adult Personal History and Initial
Evaluation (R. at 447-457)



September 2013 Person-Centered Master Treatment Plan,
Consultation Form, Adult Biopsychosocial Assessment,
Psychiatric Evaluation and Consent for Use of Psychiatric
Medications (R. at 458-464, 479-483)



A December 2013 Treatment Plan Review Form (R. at 465)



A March / April 2014 Treatment Plan Review Form (R. at 466)



A January 8, 2015 request for prescription (R. at 493)

This exhibit also includes what appear to be therapy notes dated August 2013
through August 2014 (R. at 467-478) and Medication Reviews dated October 2013
through November 2014 (R. at 484-492).
The Appeals Council will review a case if, among other reasons, it “receives
additional evidence that is new, material, and relates to the period on or before the
date of the hearing decision, and there is a reasonable probability that the
additional evidence would change the outcome of the decision.” 20 C.F.R. §§
404.970(a)(5), 416.1470(a)(5). In order for the Appeals Council to consider such
evidence, Plaintiff must “show good cause for not informing [the SSA] about or
submitting the evidence as described in § 404.935 because[,] [for example,] [y]ou
actively and diligently sought evidence from a source and the evidence was not
received or was received less than 5 business days prior to the hearing[.]” 20
C.F.R. §§ 404.970(b), 416.1470(b).

10

On March 10, 2015, the Appeals Council granted Plaintiff’s request for an
extension of time to submit additional material. (R. at 12.) Plaintiff represents that
she submitted the missing evidence to the Appeals Council and it was admitted
into the record. (DE 25 at 25.) Based on the Appeals Council exhibits list and
order, there is no dispute that the Appeals Council had Exhibit 15F before it when
it rendered its November 4, 2015 denial of Plaintiff’s request for review. (R. at 5,
6.)
Instead, at issue in this appeal is the adequacy of the Appeals Council’s
review of the Heron Ridge Associates records dated August 13, 2013 through
November 18, 2014 (the day before ALJ Blair’s decision). (DE 25 at 25, Ex. 15F
[R. at 447-493].) In pertinent part, the Appeals Council’s November 4, 2015
decision states:
In looking at your case, we considered the reasons you disagree with
the decision and the additional evidence listed on the enclosed Order
of Appeals Council.
We considered whether the Administrative Law Judge's action,
findings, or conclusion is contrary to the weight of evidence of record.
We found that this information does not provide a basis for changing
the Administrative Law Judge's decision.
(R. at 2 (emphasis added).)
I conclude that Plaintiff has not shown that she suffered a violation of
procedural due process that warrants remand. Preliminarily, “[a]n Appeals
Council order denying review is not . . . a reviewable order; such an order serves
11

only to make the decision of the ALJ the final reviewable decision of the
Secretary.” Meeks v. Sec'y of Health & Human Servs., No. 92-6303, 1993 WL
216530, *1 (6th Cir. June 18, 1993). Moreover, even if, arguendo, the Appeals
Council’s November 4, 2015 denial of Plaintiff’s request for review were
reviewable, the above quoted portions of the Appeals Council’s decision indicate
that it considered “the additional evidence listed,” which would include Exhibit
15F. (R. at 2, 6.) This Court takes the Appeals Council at its written word – that
the additional records were indeed considered – and Plaintiff makes no showing to
the contrary.
Finally, even if the Appeals Council’s order were reviewable, and even if
this Court were to assume that the Appeals Council inadequately considered the 47
pages in Exhibit 15F, Plaintiff has not shown that such error was harmful. For
starters, 12 of those pages were duplicates of records already contained within
Exhibit 9F. (Compare R. at 339-343, 348-351 & 352-353; R. 456-457, 467-471,
479-482 & 484.)1 More importantly, Plaintiff has not shown how the 35 pages of
“new evidence”2 would have resulted in a different decision. Although Plaintiff

1

Heron Ridge Associates records are located at both Ex. 9F (R. at 337-353) and
Ex. 15F (R. at 447-493).
2

The 35 pages of “new” evidence presented in Exhibit 15F consists of the August
13, 2013 adult personal history (R. at 447-455), the September 11, 2013
consultation form (R. at 460), the September 12, 2013 consent for use of
psychiatric medications (R. at 483), the September 24, 2013 adult biopsychosocial
12

cites Exhibit 15F within her review of the medical evidence and again within her
description of the evidence submitted to the Appeals Council, she does so quite
generally. (See DE 25 at 14, 23.) Thus, her argument that Exhibit 15F (or the
HRA records dated August 13, 2013 to November 18, 2014) was “not considered”
(DE 25 at 25) does not illustrate to this Court how the “new” or “non-duplicative”
evidence should have altered the ALJ’s and/or Appeals Council’s decisions. In
other words, she has failed to show that “there is a reasonable probability that the
additional evidence would change the outcome of the decision.” 20 C.F.R. §§
404.970(a)(5), 416.1470(a)(5).
3.

Sentence six

Plaintiff’s alternative request for relief seeks a “sentence six remand”
pursuant to 42 U.S.C. § 405(g). The Commissioner points out that Plaintiff has
failed to show that the evidence was unavailable to her “at the time of the
administrative proceeding, that there is a reasonable probability it would have
changed the ALJ’s disability finding, or that she was justified in failing to submit
the records in a timely manner.” (DE 26 at 12.)
“[W]here the Appeals Council considers new evidence but declines to
review a claimant's application for disability insurance benefits on the merits, the
assessment and centered master treatment plan (R. at 458-459, 461-464), the
November 2013 through November 18, 2014 notes of Dr. Mallhi / therapist
Hartman (R. at 465-466, 472-478, 485-492) and the January 8, 2015 notes of Dr.
Mallhi (R. at 493).
13

district court cannot consider that new evidence in deciding whether to uphold,
modify, or reverse the ALJ's decision.” Cline v. Comm'r of Soc. Sec., 96 F.3d 146,
148 (6th Cir. 1996) (citing Cotton v. Sullivan, 2 F.3d 692, 695–96 (6th Cir.1993)).
However, this Court can “remand the case for further administrative proceedings in
light of the evidence, if a claimant shows that the evidence is new and material,
and that there was good cause for not presenting it in the prior proceeding.” Id.
(emphases added). As the Sixth Circuit has explained:
For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new
only if it was “not in existence or available to the claimant at the time
of the administrative proceeding.” Such evidence is “material” only if
there is “a reasonable probability that the Secretary would have
reached a different disposition of the disability claim if presented with
the new evidence.” A claimant shows “good cause” by
demonstrating a reasonable justification for the failure to acquire and
present the evidence for inclusion in the hearing before the ALJ. As
noted above, the burden of showing that a remand is appropriate is on
the claimant.
Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001) (emphases added) (internal
citations omitted).
With specific reference to several records, Plaintiff contends that “new and
material evidence [was] submitted to the Appeals Council[,]” and that “the failure
to consider it mandates remand.” (DE 25 at 2, 23, 25.) However, as illustrated
above, Exhibit 15F was considered by the Appeals Council. Moreover, the
Appeals Council correctly dismissed the January 2015 and February 2015 medical
source statements on the basis that they post-dated the ALJ’s November 2014
14

decision. (R. at 2, 15, 21.) Thus, while Plaintiff may be challenging the adequacy
of the Appeals Council’s review of such evidence, which is addressed above,
Plaintiff cannot say that this evidence was “new” to the Appeals Council.
Furthermore, “where new evidence is presented after the administrative
hearing is closed, the ‘court can remand for further consideration of the evidence
only where the party seeking remand shows that the new evidence is material.’”
Snider v. Comm'r of Soc. Sec., 328 F. Supp. 2d 703, 710 (E.D. Mich. 2004)
(quoting Wyatt v. Secretary of Health and Human Services, 974 F.2d 680, 685 (6th
Cir.1992)) (emphasis added). “In order for the claimant to satisfy this burden of
proof as to materiality, he must demonstrate that there was a reasonable probability
that the Secretary would have reached a different disposition of the disability claim
if presented with the new evidence.” Sizemore v. Sec'y of Health & Human Servs.,
865 F.2d 709, 711 (6th Cir. 1988). Although Plaintiff refers to these records as
“new” and/or “material” within her table of contents, her summary of the
administrative proceedings and her summary of the administrative record (see DE
25 at 2, 6, 23), her conclusory assertion that the August 13, 2013 to November 18,
2014 HRA records were “new and material” and that “the failure to consider it
mandates remand[,]” (see DE 25 at 25), without more, makes no such showing.
4.

Conclusion

15

Plaintiff has not shown that she was denied procedural due process before
the ALJ or the Appeals Council. Nor has she shown an entitlement to remand
under Sentence six. Therefore, she is not entitled to remand on either of these
bases.
B.

The ALJ appropriately evaluated the opinion evidence within the
Step 4 RFC determination.

Plaintiff argues that the ALJ did not give appropriate weight to the opinion
evidence, particularly that of Dr. Mallhi, Dr. Mills and Dr. Balunas.3 The
Commissioner posits that substantial evidence supports ALJ Blair’s weighing of
the opinion evidence. (DE 26 at 20-26.)
1.

Consideration of opinion evidence when treating
physician’s opinion is discounted

If the ALJ does not afford controlling weight to a treating physician’s
opinion, as is the case here, the ALJ must meet certain procedural requirements.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if
an ALJ does not give a treating source’s opinion controlling weight:
[A]n ALJ must apply certain factors—namely, the length of the
treatment relationship and the frequency of examination, the nature
and extent of the treatment relationship, supportability of the opinion,
3

Although the ALJ made several assignments of weight within his November 19,
2014 Step 3 and Step 4 RFC determinations, Plaintiff’s allegations of error in this
appeal concern her mental impairments. Therefore, this opinion does not address
the weight assigned to Drs. Vaupel, Edmond and Needleman’s opinions. (R. at 3435.)

16

consistency of the opinion with the record as a whole, and the
specialization of the treating source—in determining what weight to
give the opinion.
Wilson, 378 F.3d at 544 (citing 20 C.F.R. § 404.1527(d)(2), now 20 C.F.R.
404.1527(c)(2)). However, there is no per se rule that requires a written
articulation of each of the six regulatory or “Wilson factors” listed in 20 C.F.R. §§
404.1527(c)(1)-(6), 416.927(c)(1)-(6). Tilley v. Comm’r of Soc. Sec., 394 F.App’x
216, 222 (6th Cir. 2010). In other words, the regulations do not require “an
exhaustive factor-by-factor analysis.” Francis v. Comm’r of Soc. Sec., 414
F.App’x 802, 804-805 (6th Cir. 2011) (citing 20 C.F.R. § 404.1527(d)(2), now 20
C.F.R. § 404.1527(c)(2)).
2.

Treating provider Naumaan Mallhi, D.O.

Dr. Mallhi’s October 2013 “treating mental health care professional
questionnaire” specifically evaluated Plaintiff as to Listings 12.04 and 12.06,
noting between the two that Plaintiff had “marked restriction of activities of daily
living[,]” “marked difficulties in maintaining social functioning[,]” and “repeated
episodes of decompensation, each of extended duration[.]” More important to this
Step 4 RFC analysis, Dr. Mallhi’s opinion as to Plaintiff’s “mental functional
capacity” included “marked” limitations in her abilities to “interact appropriately
with supervisors and supervisory demands in a competitive job setting,” “interact
appropriately with co-workers in a competitive job setting,” “deal appropriately

17

with the public,” “maintain sustained concentration and attention,” and “respond
appropriately to customary work pressures five days a week in a routine work
setting.” Dr. Mallhi also opined that Plaintiff’s mental impairment(s) and
treatment would cause her to be absent from work four times per month. (R. at
344-347 [Ex. 9F], R. at 354-357 [Ex. 10F].)4
The ALJ assigned “little weight” to this opinion, noting the following three
inconsistencies: (1) Dr. Mallhi’s September 12, 2013 psychiatric evaluation
assessed Plaintiff’s global assessment of functioning score as 55, which suggests
moderate symptoms and difficulties, not marked or severe ones (R. at 342, 482);5
(2) Dr. Mills’s August 17, 2012 CE report, which, inter alia, found an adequate
ability to follow simple instructions and a mild impairment in her ability to interact
with others (R. at 334-336); and, (3) Plaintiff’s June 2013 and July 2013 function
reports, each of which stated “O.K.” when asked how well she got “along with
authority figures” or follows “spoken instructions,” although the June 2013 form
4

It seems that this form was actually prepared by therapist Dianne Hartman,
LMSW. A therapist is an “other source,” whose opinion “may” be used “to show
the severity of your impairment(s) and how it affects your ability to work.” 20
C.F.R. §§ 404.1513(d)(1), 416.913(d)(1) (emphasis added) (effective pre-March
27, 2017); see also 20 C.F.R. §§ 404.1502, 416.902 (effective March 27, 2017).
Perhaps for this reason, the form was also reviewed and approved by Dr. Mallhi.
(R. at 347, 357.)
5

“A Global Assessment of Functioning (GAF) score of 55 indicates ‘moderate
symptoms and moderate difficulty in social, occupational or school functioning.’”
Hernandez v. Comm'r of Soc. Sec., 644 F. App'x 468, 470 (6th Cir. 2016) (quoting
DeBoard v. Comm'r of Soc. Sec., 211 F. App’x. 411, 415 (6th Cir.2006)).
18

made her ability to follow instructions contingent upon whether she was taking
“pain medication[.]” (R. at 188-189, R. at 201-202). (R. at 35.) Therefore, the
ALJ discounted Dr. Mallhi’s medical source statement as internally inconsistent,
inconsistent with other record medical evidence and inconsistent with Plaintiff’s
own function reports. In other words, the ALJ permissibly discounted Dr. Mallhi’s
opinion on the basis of the consistency factor. 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4).
Plaintiff argued in her brief and at oral argument that this assignment of
weight was erroneous, because it placed too much emphasis on Dr. Mallhi’s
September 12, 2013 assessment that Plaintiff’s GAF score was 55 when there were
lower scores elsewhere in her medical record. Such an argument asks this Court to
reweigh the evidence in her favor, a task which it is not permitted to undertake.
“Our task is not to reweigh the evidence. That is solely the province of the
Secretary.” Mullins v. Sec'y of Health & Human Servs., 680 F.2d 472, 472 (6th
Cir. 1982) (citing Wokojance v. Weinberger, 513 F.2d 210 (6th Cir. 1975)); see
also Haun v. Comm'r of Soc. Sec., 107 F. App'x 462, 465 (6th Cir. 2004) (“We
may not reweigh conflicting evidence on appeal . . . .”). Furthermore, even if
Plaintiff were correct on this point, the ALJ offered two other valid reasons for
discounting Dr. Mallhi’s statement. Finally, the ALJ expressly considered August,
September and October 2013 mental health records from Heron Ridge Associates,

19

ultimately citing the September 12, 2013 psychiatric evaluation as one of the bases
for assessing the limitations of “no work in close proximity to coworkers” and
“only superficial contact with the public.” (R. at 33-35.) Consistently, the Step 4
RFC determination contains the corresponding limitation that Plaintiff “cannot
perform . . . work in close physical proximity of coworkers[,]” and, although
inartfully stated, limits Plaintiff to “brief and superficial contact with the public.”
(R. at 30.) Thus, he did not entirely discount all of Dr. Mallhi’s records.
3.

Consultative examiner (CE) Terrance A. Mills, Ph.D.

The ALJ assigned “some weight” to the August 17, 2012 opinion of
“consultative psychological examiner” Dr. Mills that Plaintiff’s ability to follow
simple instructions was adequate and was mildly impaired in her ability to interact
with others. (R. at 35, R. at 334-336). The ALJ found Dr. Mills’s opinion
“somewhat consistent with the record.” (R. at 35.) Thus, the ALJ addressed the
consistency factor. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4).
Plaintiff also points out that Dr. Mills would not have had access to any
mental health treatment records. (DE 25 at 28.) Even so, the ALJ recognized that
Dr. Mills was a consultative psychological examiner. (R. at 35.) Thus, he
considered the treatment relationship, or lack thereof. 20 C.F.R. § 404.1527(c)(2),
416.927(c)(2). Moreover, the regulations provide for such an examination. 20
C.F.R. §§ 404.1519, 416.919 (“A consultative examination is a physical or mental

20

examination or test purchased for you at our request and expense from a treating
source or another medical source, including a pediatrician when appropriate.”).
Plaintiff also claims that Dr. Mills’s opinion is internally inconsistent, where
he concluded that she had mild social impairment but she reported some difficulty
with social functioning. (DE 25 at 28, R. at 334, 336.) However, Dr. Mills also
noted that Plaintiff’s “interactions with this examiner were appropriate” and “were
positive, as she was friendly, responsive, reserved, and cooperative.” (R. at 334335.) In addition, Plaintiff reported to him that, despite “some conflicts with her
family,” and being fired from a job after a physical confrontation with a coworker,
she “has a few friends,” and “overall she got along well . . . .” (R. at 334.) She
claims that Dr. Mills’s opinion conflicts with Dr. Qadir’s opinion and Dr. Mallhi’s
medical source statement; however, as with her similar challenge to Dr. Balunas’s
opinion, see infra Section IV.B.4, Plaintiff does not elaborate on these conflicts.
(DE 25 at 28, R. at 322-324, 344-347, 354-357.) These arguments are
unconvincing and essentially ask this Court to reweigh the evidence. Accordingly,
the Court concludes that the ALJ appropriately assigned “some weight” to Dr.
Mills’s opinion.
4.

Non-examining, state agency psychological consultant
Leonard C. Balunas, PhD.

Within the Step 4 RFC determination, the ALJ assigned “significant weight”
to Dr. Balunas’s July 22, 2013 opinion that Plaintiff can “carry out one and two
21

step tasks that do not require extended periods of sustained concentration[,]” and
“perform tasks that involve occasional, incidental contact with the general public.”
(R. at 35, R. at 76-77, 89-90). The ALJ found that Dr. Balunas’s opinion was
“consistent with the record.” (R. at 35.) This is permitted by the regulations,
which state that “[g]enerally, the more consistent an opinion is with the record as a
whole, the more weight we will give to that opinion.” 20 C.F.R. §§
404.1527(c)(4), 416.927(c)(4).
As she did with Dr. Mills, Plaintiff takes issue with this assignment of
weight, contending that Dr. Balunas did not have the “benefit of access to any
mental health treatment records.” (DE 25 at 28.) However, it appears that Dr.
Balunas had access to the July 11, 2013 CE report of Dr. Qadir, a board certified
psychiatrist, and his GAF score of 47 was mentioned within the “Findings of Fact
and Analysis of Evidence.” (R. at 69 & 71, 82 & 84).6 Moreover, although a
nonexamining source, Dr. Balunas is a highly qualified psychologist who is an
expert in social security disability evaluation. 20 C.F.R. § 404.1527(e)(2)(i),
416.927(e)(2)(i). The Sixth Circuit has recognized that there will “always be a gap

6

On July 11, 2013, Dr. Qadir, performed a consultative examination. Dr. Qadir
diagnosed “bipolar disorder, most recent episode depressed” and sought to “rule
out posttraumatic stress disorder.” He assessed Plaintiff’s GAF score as 47 and
noted that her prognosis was “guarded.” (R. at 322-324.) The ALJ discussed Dr.
Qadir’s opinion in the Step 3 paragraph B criteria discussion and within the Step 4
review of mental health treatment records; however, the ALJ did not make an
express assignment of weight to this CE report. (R. at 29, 33.)
22

between the time the agency experts review the record and give their opinion . . .
and the time the hearing decision is issued.” Kelly v. Comm’r of Soc. Sec., 314 F.
App’x 827, 831 (6th Cir. 2009). The ALJ may rely on such opinions as long as the
record reflects that the ALJ has considered the entire record. Ealy v. Comm’r of
Soc. Sec., 594 F.3d 504, 513 (6th Cir. 2010).
Finally, Plaintiff claims Dr. Balunas’s opinion conflicts with Dr. Qadir’s
opinion and Dr. Mallhi’s medical source statement, but she does not elaborate how.
(DE 25 at 28, R. at 322-324 [Ex. 6F], 354-357 [Ex. 10F].) Plaintiff also points out,
in fairly conclusory fashion, that Dr. Mallhi’s medical source statement is
supported by his longitudinal treatment records and is consistent with Dr. Qadir’s
CE report, but she does not illustrate how. (See DE 25 at 28-29, Exs. 6F, 9F, 15F.)
It is not the Court’s role (particularly where Plaintiff is represented by counsel) to
comb this extensive medical record and make these comparisons, but, rather, to
determine if the ALJ based his decision on substantial evidence. Without more,
the Court concludes that the ALJ appropriately assigned “significant weight” to Dr.
Balunas’s opinion.
5.

Conclusion

Plaintiff points out that Dr. Mallhi is a specialist in psychiatry “who had
evaluated and treated [Plaintiff] several times.” (DE 25 at 28.) Even so, the ALJ
makes clear that he appreciated that very point, acknowledging Balunas as the state

23

agency psychological consultant, Mills as the consultative psychological examiner
and Mallhi as Plaintiff’s psychiatrist. (R. at 35.) Therefore, the ALJ took into
consideration each doctor’s specialization and the treatment relationship. See 20
C.F.R. §§ 404.1527(c)(2),(5), 416.927(c)(2),(5).
As noted above, the ALJ considered the treatment relationship, consistency
and/or specialization factors in weighing the opinions of Drs. Mallhi, Mills and
Balunas. Moreover, the regulations do not require “an exhaustive factor-by-factor
analysis.” Francis, 414 F.App’x at 804-805.
In the end, the Court concludes that ALJ Blair appropriately assigned
“significant weight” to the opinion of state agency psychological consultant Dr.
Balunas, “some weight” to the opinion of CE Dr. Mills, and “little weight” to the
medical source statement of treating psychiatrist Dr. Mallhi. As the ALJ’s
treatment of the opinion evidence within the Step 4 RFC determination is
consistent with 20 C.F.R. §§ 404.1527, 416.927, is clear to this subsequent
reviewer,7 and was Plaintiff’s only basis to challenge the Step 4 RFC
determination, the Step 4 RFC determination is affirmed.
C.

Plaintiff has not shown an error in the ALJ’s Step 3
determination as to Listings 12.04 and 12.06.

7

“[T]he notice of the determination or decision . . . 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.” SSR 96-2P,
1996 WL 374188 (July 2, 1996).
24

Plaintiff argues that the ALJ erred in finding that Plaintiff’s mental
impairments do not meet or equal a listed impairment, in particular Listings 12.04
(“Depressive, bipolar and related disorders”) and 12.06 (“Anxiety and obsessivecompulsive disorders”). (DE 25 at 25-27.) The Commissioner argues that
substantial evidence supports ALJ Blair’s Step 3 finding as to these listings. (DE
26 at 13-20.)
To begin, Plaintiff’s one and a half page challenge to the Step 3 findings are
largely undeveloped, and, as such, may be treated as waived. “[I]ssues adverted to
in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its
bones.” McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir. 1997)) (citation and
internal quotation marks omitted).Still, even if the Court treats it otherwise,
Plaintiff has failed to demonstrate reversible error.
At Step 3, the ALJ concluded that “[t]he severity of the claimant's mental
impairments do[es] not meet or medically equal the criteria of Listings 12.04 and
12.06.” (R. at 28). In finding that Plaintiff had “mild restriction” in activities of
daily living, “moderate difficulties” in social functioning, “moderate difficulties”
with regard to concentration, persistence or pace, and “no episodes of
decompensation, which have been of extended duration[,]” the ALJ assigned

25

“great weight” to the July 22, 2013 opinions of state agency psychological
consultant, Dr. Balunas. (R. at 28-29, 68-79, 81-92).
Along the way, the ALJ also relied upon the August 17, 2012 consultative
examination (CE) report of licensed psychologist Terrance A. Mills, Ph.D. (R. at
334-336 [Ex. 8F]), the July 11, 2013 CE report of Fariha Qadir, M.D. (R. at 321324 [Ex. 6F]),8 and certain records from Heron Ridge Associates (R. at 337-353
[Ex. 9F]). Moreover, the ALJ relied upon Plaintiff’s function reports (R. at 183195 [Ex. 3E], 196-208 [Ex. 4E]) and hearing testimony (R. at 42-66). In the end,
the ALJ stated, “[b]ecause the claimant's mental impairment does not cause at least
two ‘marked’ limitations or one ‘marked’ limitation and ‘repeated’ episodes of
decompensation, each of extended duration, the ‘paragraph B’ criteria are not
satisfied.” (R. at 29-30.)
Plaintiff has not met her burden on this issue: “even if these reasons failed
to support the ALJ's step-three findings, the error is harmless, because [Plaintiff]
has not shown that h[er] impairments met or medically equaled in severity any
listed impairment . . . .” Forrest v. Comm'r of Soc. Sec., 591 F. App'x 359, 366
(6th Cir. 2014). Initially, as previously noted, her listings argument is

8

In two different places in his decision, the ALJ erroneously refers to Dr. Mills’s
CE has having been subsequent to the CE by Dr. Qadir. (See R. at 29, 33.)
However, as the Commissioner notes, “any error regarding the ALJ’s discussion of
the timing of the mental consultative reports was harmless.” (DE 26 at 15 n.7.)

26

undeveloped. Plaintiff claims that “ample evidence was presented to demonstrate
listing level combined conditions of Depression (12.04), and Anxiety Disorder
(12.06),” based on “marked to severe impairments in activities of daily living,
social functioning, and attention / concentration[,]” but Plaintiff’s suggested
conclusion appears to rely upon lay evidence, the opinion of Dr. Qadir and the
October 2013 medical source statement from Dr. Mallhi. (See DE 25 at 25-27.)
Here, I note that Dr. Mallhi’s October 2013 medical source statement “checks off”
how Plaintiff meets 12.04’s requirements for “Depressive syndrome” and 12.06’s
requirements for “generalized persistent anxiety,” and further claims that she first
met these listings in October 2011. (R. at 344-346 [Ex. 9F], 354-356 [Ex. 10F].)
Still, other than noting that Dr. Qadir assessed Plaintiff as having a GAF of 47,
Plaintiff has not shown how Dr. Mallhi’s medical source statement is consistent
with Dr. Qadir’s July 11, 2013’s CE report (R. at 321-324 [Ex. 6F]). Plaintiff does
not go through the various “criteria” of the listings. Also, the ALJ considered the
lay evidence. First, he expressly considered Plaintiff’s hearing testimony and
function reports in evaluating each of the first three Paragraph B factors. (R. at 2829.) Second, even if the ALJ did not expressly refer to Plaintiff’s WHODAS form,
she has not challenged the ALJ’s finding that “the claimant's statements concerning
the intensity, persistence and limiting effects of these symptoms are not entirely

27

credible.” (R. at 31-34.) Finally, the ALJ’s failure to expressly cite Plaintiff’s
mother’s WHODAS form is not fatal. As one Court has summarized:
The ALJ may use evidence of “other” sources to show the severity of
a claimant's impairments and how those impairments affect the
claimant's ability to work. 20 C.F.R. § 404.1513(d). These “other”
sources include non-medical sources such as spouses, parents and
other caregivers, siblings, other relatives, friends, neighbors and
clergy. 20 C.F.R. § 404.1513(d)(4). Perceptible weight must be
given to lay testimony when “it is fully supported by the reports of the
treating physicians.” Lashley v. Secretary of Health and Human
Services, 708 F.2d 1048, 1054 (6th Cir.1983). See also, Simons v.
Barnhart, 114 Fed. Appx. 727, 733 (6th Cir.2004) (“[t]he testimony
of lay witnesses, however, is entitled to perceptible weight only if it is
fully supported by the reports of the treating physicians”) (citing
Lashley).
McHaney v. Commissioner of Social Sec., No. 1:11–CV–51, 2012 WL 1094663
(W.D. Mich. Mar. 30, 2012 (emphases added)). Plaintiff points out that her
mother’s WHODAS form alleges that Plaintiff has severe or extreme problems
with “understanding and communicating,” “getting along with people,” and
“participation in society,” and further points out that her mother’s August 27, 2014
letter explains that she is the caretaker of her daughter and toddler grandchild;
however, this reference occurs within her review of the administrative record. (DE
25 at 8, R. at 221-223, 225.)9 Within her listings argument, Plaintiff has not shown
that her mother’s statements are “fully supported by the reports of the treating

9

The administrative record also contains a letter from Plaintiff’s mother, which
Plaintiff also cites in her review of the administrative record. (DE 25 at 8, R. at
225 [Ex. 10E].)
28

physicians[,]” namely Dr. Mallhi’s October 2013 medical source statement (R. at
344-347 [Ex. 9F], R. at 354-357 [Ex. 10F]), as required by Lashley, 708 F.2d at
1054. In fact, it seems that Plaintiff’s only other reference to “Ex. 9E” is in a
string citation within her listings argument after purporting to describe how Dr.
Balunas’s opinion was “inconsistent with overwhelming lay evidence.” (DE 25 at
26.)
Instead, Plaintiff’s Step 3 listings argument essentially rehashes her
argument that the ALJ improperly weighed the opinion evidence at Step 4, which
this Court finds unpersuasive. (Compare DE 25 at 25-27, 27-29.) For example,
Plaintiff contends that Dr. Balunas’s finding of mild to moderate impairments
conflicts with Dr. Qadir’s July 11, 2013 CE report, which assesses a GAF of 47 (R.
at 321-324 [Ex. 6F]), and Dr. Mallhi’s October 2013 “treating mental health care
professional questionnaire,” presumably because it assesses “marked restriction of
activities of daily living,” “marked difficulties in maintaining social functioning,”
and/or “repeated episodes of decompensation, each of extended duration” as to
Listings 12.04 and 12.06 (R. at 344-347 [Ex. 9F], R. at 354-357 [Ex. 10F]). (DE
25 at 25.) However, as addressed above, the ALJ appropriately weighed the
opinion evidence.
Also, Plaintiff argues that the ALJ took the single GAF score of 55 and
made it “dispositive of issues of listing level severity or RFC assessment,” contrary

29

to SSA Instruction AM-13066. (DE 25 at 26.) I disagree. As to “social
functioning,” the ALJ considered various assessments of Plaintiff’s GAF scores –
50 by Dr. Mills on August 17, 2012 (R. at 334-336), 47 by Dr. Qadir on July 11,
2013 (R. at 322-324), and 55 by Dr. Mallhi on September 12, 2013 (R. at 340-343,
479-482). (R. at 29.) Then, in finding that Dr. Mallhi’s GAF score of 55 was
“more consistent with the record[,]” the ALJ explained:
In particular, the claimant testified that she has trouble being around
others because of a history of abuse (Hearing Testimony). In the
Function Reports, the claimant stated that people got on her nerves but
that she got along with authority figures (Exhibits 3E, 4E). The
consultative psychological examiner, Dr. Mills, indicated that the
claimant interacted appropriately with the examiner. Dr. Mills also
found that the claimant had only a mild impairment interacting with
others (Exhibit 8F). Thus, the undersigned gives great weight to the
State agency psychological consultant's opinion that the claimant is
moderately limited in social functioning, as it is consistent with the
record (Exhibits 2A, 4A).
(R. at 29.) Accordingly, the ALJ did not treat Dr. Mallhi’s GAF score of 55 as
“dispositive,” but instead found it consistent “with the record as a whole,” as he
was permitted to do. 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4). Again, the ALJ
gave good reasons, supported by substantial evidence, for why the higher GAF
score appeared closer to the mark and why he weighed the evidence as he did.
This Court cannot reweigh this evidence or choose differently among the various
GAF scores on appeal.
4.

Conclusion

30

The ALJ’s consideration of the opinion evidence from “acceptable medical
sources” at Step 3 was consistent with 20 C.F.R. §§ 404.1527, 416.927. Moreover,
Plaintiff has not successfully challenged the ALJ’s Step 3 treatment of opinion
evidence from “other sources.” 20 C.F.R. §§ 404.1513(d)(4), 416.913(d)(4). For
these reasons, the ALJ’s Step 3 determination is affirmed.
V.

ORDER
Having considered the motion papers and thoughtful oral arguments of

counsel for the parties, Plaintiff’s motion (DE 25) is DENIED, Defendant’s
motion (DE 26) is GRANTED, and the Commissioner’s decision is AFFIRMED.
IT IS SO ORDERED.

Dated: March 29, 2017

s/Anthony P. Patti
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE

I hereby certify that a copy of the foregoing document was sent to parties of record
on March 29, 2017, electronically and/or by U.S. Mail.
s/Michael Williams
Case Manager for the
Honorable Anthony P. Patti

31