Komora v. Social Security
ORDER Adopting 20 Report and Recommendation. Signed by District Judge Terrence G. Berg. (AChu)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
DENISE LYNN KOMORA,
COMMISSIONER OF SOCIAL
HON. TERRENCE G. BERG
HON. ANTHONY P. PATTI
IN PART REPORT AND
(ECF NO. 20),
PLAINTIFF’S MOTION FOR
(ECF NO. 18), AND
GRANTING THE DEFENDANT’S
MOTION FOR SUMMARY
JUDGMENT (ECF NO. 19)
This is a Social Security case in which Plaintiff Denise Lynn
Komora seeks review of a final decision of the Commissioner of Social Security denying her application for Disability Insurance and
Supplemental Security Income benefits. This matter is before the
Court on Magistrate Judge Anthony Patti’s Report and Recommendation, which recommends that the Court deny Plaintiff’s motion
for summary judgment, grant Defendant’s motion for summary
judgment, and affirm the decision of the Commissioner. ECF No.
The law provides that either party may serve and file written
objections “[w]ithin fourteen days after being served with a copy” of
the Report and Recommendation. 28 U.S.C. § 636(b)(1). Plaintiff
filed timely objections to the Report and Recommendation on September 16, 2020. ECF No. 21. Defendant filed timely responses to
those objections. ECF No. 22. A district court must conduct a de
novo review of the parts of a Report and Recommendation to which
a party objects. See 28 U.S.C. § 636(b)(1). “A judge of the court may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate
judge with instructions.” Id.
The Court has reviewed Magistrate Judge Patti’s Report and
Recommendation, Plaintiff’s objections thereto, and Defendant’s responses to Plaintiff’s objections. For the reasons set forth above,
Plaintiff’s first and third objections are OVERRULED, Plaintiff’s
second objection is SUSTAINED, and the Report and Recommendation is MODIFIED IN PART. Accordingly, the Court DENIES
Plaintiff’s Motion for Summary Judgment (ECF No. 18), GRANTS
Defendant’s Motion for Summary Judgment (ECF No. 19), and the
decision of the Commissioner of Social Security is AFFIRMED.
Plaintiff contends she became disabled on May 23, 2013 when
she was 47 years old. ECF No. 9-5, PageID.200. Her disability report lists both bipolar disorder and spinal stenosis as limiting her
ability to work. ECF No. 9-6, PageID.239. On August 2, 2013 and
December 31, 2014, Plaintiff filed applications for Social Security
Disability Insurance Benefits and Supplemental Security Income
Benefits (“SSI”), respectively. ECF No. 9-12, PageID.552. After
these applications were denied, Plaintiff filed a timely request for a
After a hearing on March 24, 2015, where both Plaintiff and
a vocation expert, Luanne Castilana, testified, Administrative Law
Judge Ramona L. Fernandez issued a decision finding that Plaintiff
was not disabled within the meaning of the Social Security Act.
ECF No. 9-2, PageID.51. After her request for review by the Appeals Council was denied, Plaintiff sought judicial review of the decision. ECF No. 9-13, PageID.637. The District Court remanded the
case with instructions to “obtain an opinion from a medical expert
as to whether Komora’s impairments met or medically equaled a
listing of impairments.” ECF No. 18, PageID.906.
On May 17, 2018, Plaintiff and Vocational Expert Michele
Robb testified in a new hearing held before ALJ Fernandez. ECF
No. 9-12, PageID.598. Once again, ALJ Fernandez determined
Plaintiff was not disabled within the meaning of the Social Security
Act. ECF No. 9-12, PageID.591. Subsequently, the Appeals Council
again denied Plaintiff’s timely request for review. ECF No. 9-12,
PageID.552. Therefore, ALJ Fernadez’s decision became the Commissioner’s final decision. Plaintiff commenced this action on June
STANDARD OF REVIEW
The Social Security Act
The Social Security Act “entitles to benefits payments certain
claimants who, by virtue of a medically determinable physical or
mental impairment of at least a year’s expected duration, cannot
engage in ‘substantial gainful activity.’” Combs v. Comm'r of Soc.
Sec., 459 F.3d 640, 642 (6th Cir. 2006) (quoting 42 U.S.C. §
423(d)(1)(A)). “A claimant qualifies as disabled if she cannot, in
light of her age, education, and work experience, ‘engage in any
other kind of substantial gainful work which exists in the national
economy.’” Id. (quoting 42 U.S.C. § 423(d)(1)(A)). The Social Security Administration (SSA) has established a five-step sequential
evaluation process for determining whether an individual is disabled. See 20 C.F.R. § 404.1520(a)(4).
“In Social Security cases, the Commissioner determines
whether a claimant is disabled within the meaning of the Act and
therefore entitled to benefits.” Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007). If the Appeals Council denies review,
then the ALJ’s decision stands as the Commissioner’s final decision.
See 20 C.F.R. § 404.981. A federal district court is permitted to conduct a limited judicial review of the Commissioner’s final decision
under 42 U.S.C. § 405(g).
The Court’s “review of the Commissioner's decision is limited
to determining whether it is supported by substantial evidence and
was made pursuant to proper legal standards.” Rogers, 486 F.3d at
241. “Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” White
v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). The substantial evidence standard is less exacting than the preponderance of evidence standard.
Rogers, 486 F.3d at 241. (“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.”). In exercising review of the Commissioner’s
decision, this Court does not have to agree with the Commissioner’s
finding. Kyle v. Comm'r of Soc. Sec., 609 F.3d 847, 854 (6th Cir.
2010). “Even if this Court might have reached a contrary conclusion
of fact, the Commissioner's decision must be affirmed so long as it
is supported by substantial evidence.” Id. at 854-55.
Finally, “an ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted
by a party. Nor must an ALJ make explicit credibility findings as
to each bit of conflicting testimony, so long as his factual findings
as a whole show that he implicitly resolved such conflicts.” Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006)
(quoting Loral Defense Systems-Akron v. N.L.R.B., 200 F.3d 436,
453 (6th Cir. 1999)).
De Novo Review
Plaintiff filed three objections to the Magistrate Judge’s Report and Recommendation. Once timely objections to a report and
recommendation are filed, the district court must conduct a de novo
review “of those portions of the report or specified proposed findings
or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1). “A judge of the court may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the
magistrate judge. The judge may also receive further evidence or
recommit the matter to the magistrate judge with instructions.” Id.
“The Sixth Circuit’s decision to require the filing of objections
is supported by sound considerations of judicial economy,” and “enables the district judge to focus attention on those issues—factual
and legal—that are at the heart of the parties’ dispute.” Thomas v.
Arns, 474 U.S. 140, 147 (1985). As such, “[o]nly those specific objections to the magistrate’s report made to the district court will be
preserved for appellate review; making some objections but failing
to raise others will not preserve all the objections a party may
have.’” McClanahan v. Comm’r of Soc. Sec., 474 F.3d 830, 837 (6th
Cir. 2006) (quoting Smith v. Detroit Fed’n of Tchrs. Loc. 231, Am.
Fed’n of Tchrs., AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987)).
Plaintiff raises three objections to Magistrate Judge Patti’s
Report and Recommendation. In her first objection, Plaintiff asserts
that “[t]he Magistrate Judge improperly invoked the ‘cursory nature’ of Dr. Zamari’s opinion in his consideration of whether or not
the ALJ’s provided ‘good reason’ for discounting this opinion.” ECF
No. 21, PageID.983. Next, Plaintiff contends “Komora’s alleged
medication noncompliance was not a good reason for discounting
the treating physician opinion.” ECF No. 21, PageID.986. Finally,
Plaintiff argues that “[t]he Magistrate Judge failed to show that the
ALJ otherwise offered sufficiently compelling reasons to discount
the opinion of the treating physician.” ECF No. 21, PageID.989.
Each objection will be addressed in turn.
All three of Plaintiff’s objections are centered on the ALJ’s decision to not give controlling weight to the opinion of Plaintiff’s
treating physician, Dr. Zamari. In general, the opinion of a treating
physician—a medical source who regularly treats the claimant—is
given more weight than opinions from sources who have examined
the claimant but who do not have an “ongoing treatment relationship” with them. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375
(6th Cir. 2013). The ALJ must give the opinion of a treating physician “controlling weight” if the opinion is (1) “well-supported by
medically acceptable clinical and laboratory diagnostic techniques”
and (2) “not inconsistent with the other substantial evidence in
[the] case record.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544
(6th Cir. 2004) (quoting 20 C.F.R. § 404.1527 (d)(2)).1 If the ALJ
does not give the treating physician controlling weight, “then the
opinion is weighed based on the length, frequency, nature, and extent of the relationship, as well as the treating source’s area of specialty and the degree to which the opinion is consistent with the
record as a whole.” Gayheart, 710 F.3d at 376 (internal citations
removed). Additionally, if a treating-source’s opinion is discounted,
the ALJ must provide “good reasons” that are “supported by the
evidence in the case record.” Id (quoting Soc. Sec. Rule. No. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)).
Plaintiff’s claim was filed prior to March 27, 2017. Therefore, 20
C.F.R. § 404.1527 applies. See 20 C.F.R. § 404.1527 (“For claims
filed (see § 404.614) before March 27, 2017, the rules in this section apply. For claims filed on or after March 27, 2017, the rules in
§ 404.1520c apply.”).
In addition to ensuring meaningful review, the requirement
of “good reasons” exists to help claimants understand the outcome
in their cases. Wilson, 378 F.3d at 544. This is particularly important “in situations where a claimant knows that his physician
has deemed him disabled and therefore ‘might be especially bewildered when told by an administrative bureaucracy that she is not,
unless some reason for the agency's decision is supplied.’” Id. (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999)). Finally, “in all
cases there remains a presumption, albeit a rebuttable one, that the
opinion of a treating physician is entitled to great deference, its
non-controlling status notwithstanding.” Rogers, 486 F.3d at 242
(6th Cir. 2007) (quoting Soc. Sec. Rul. 96–2p, 1996 WL 374188, at
The Court may “reverse and remand a denial of benefits, even
though ‘substantial evidence otherwise supports the decision of the
Commissioner,’ when the ALJ fails to give good reasons for discounting the opinion of the claimant's treating physician.” Friend
v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (quoting Wilson, 378 F.3d at 543–46). Even if the ultimate conclusion of
the ALJ may be justified based on the record, “[a] failure to follow
the procedural requirement ‘of identifying the reasons for discount-
ing the opinions and for explaining precisely how those reasons affected the weight accorded the opinions denotes a lack of substantial evidence[.]’” Id. (quoting Rogers, 486 F.3d at 243).
However, in some circumstances, a failure to provide “good
reasons” for discounting the opinion of a treating source might be
“harmless error.” Friend, 375 F. App’x at 551. For example, in Wilson, the Sixth Circuit observed that a violation of the procedural
requirement may be harmless error if “(1) “a treating source's opinion is so patently deficient that the Commissioner could not possibly
credit it”; (2) “if the Commissioner adopts the opinion of the treating
source or makes findings consistent with the opinion”; or (3) “where
the Commissioner has met the goal of § 1527(d)(2)—the provision
of the procedural safeguard of reasons—even though she has not
complied with the terms of the regulation.” Id. (quoting Wilson, 378
F.3d at 547). Thus, the Court may consider the record as a whole to
determine if the ALJ’s decision was based on substantial evidence
which would make the ALJ’s failure to provide “good reason” a
harmless error. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528,
536 (6th Cir. 2001) (finding the failure to provide an explanation of
weight given to a treating source’s opinion was harmless error).
a. First Objection: “Cursory Nature” of Dr. Zamari’s
Plaintiff first argues that Magistrate Judge Patti’s consideration of the “cursory nature” of Dr. Zamari’s opinion is both legally
improper and factually incorrect because the ALJ who decided this
case never discussed or raised this argument in her decision. According to Plaintiff, “judicial review of agency action is limited to
the reasoning employed by the agency.” ECF No. 21, PageID.983.
Therefore, the consideration of the “cursory nature” of the form
should not be a consideration for this Court because it is an improper post-hoc rationalization of the ALJ’s decision.
Plaintiff also contends that the present case differs in meaningful ways from the facts of cases where the Sixth Circuit has
found it appropriate to “cast doubt” on the usefulness of check-off
forms, specifically Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563
(6th Cir. 2016). According to Plaintiff, Dr. Zamari provided her own
objective observations to support her conclusions. ECF No. 21,
PageID.984-85 (“. . . as she noted in her form that Komora had a
‘labile affect’ (‘goes from crying to laughing’), was ‘hypertalkative’,
had ‘flight of ideas’, and was ‘tangential’ with ‘rapid speech’”).
Lastly, Plaintiff argues that unlike the court in Ellars, the ALJ here
“never expressly considered the level of explanation provided by Dr.
Zamari” before affording her opinion little weight. ECF No. 21,
“It is a ‘foundational principle of administrative law’ that judicial review of an agency action is limited to ‘the grounds that the
agency invoked when it took the action.’” Dept. of Homeland Sec. v.
Regents of the Univ. of California, 140 S. Ct. 1891, 1908 (2020)
(quoting Michigan v. E.P.A., 576 U.S. 743,758 (2015)). The Sixth
Circuit has applied this principle to social security decisions, noting
“an agency’s decision must be affirmed on the grounds noted in the
decision.” Berryhill v. Shalala, 1993 WL 361792, at *7 (6th Cir.
Sept. 16, 1993). “An ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.” Kornecky, 167 F. App’x at 508 (quoting Loral
Defense Systems-Akron, 200 F.3d at 453).
However, the Sixth Circuit has determined that a court’s review of the ALJ’s opinion “must be based on the record as a whole.”
Dykes ex rel. Brymer v. Barnhart, 112 F. App’x 463, 467 (6th Cir.
2004) (referencing Heston, 245 F.3d at 535). “Both the court of appeals and the district court may look to any evidence in the record,
regardless of whether it has been cited by the Appeals Council.”
Heston, 245 F.3d at 535 (referencing Walker v. Sec’y of Health &
Human Servs., 884 F.2d 241, 245 (6th Cir. 1989)). Therefore, the
key question in the analysis is “whether the Defendant or court develops new arguments, not whether they cite evidence to support
the ALJ's arguments.”
This Court must determine whether the Magistrate Judge’s
discussion of the treating physician’s use of the check-off form represents a new argument not considered by the ALJ, or if the Report
and Recommendation merely cites additional evidence to support
the ALJ’s contention that Dr. Zamari did not provide enough detail
to support her opinion. While Plaintiff is correct that the Report and
Recommendation addresses an argument not specifically made by
the Commissioner, a fact which Magistrate Judge Patti acknowledges, a review of the record shows that the ALJ did generally consider the level of detail provided in Dr. Zamari’s August 2014 opinion when considering the overall weight to be given to it. For example, while the ALJ does not explicitly discuss the “check-off” portion
of the form, her opinion states that she gives limited weight to the
GAF assessments based on the fact that “the clinicians did not
clearly explain the reasons behind their GAF ratings, and the period to which the rating apply.” ECF No. 9-2, PageID.64. It appears
that in this way, the ALJ did refer to the lack of evidence in the
opinion as a rationale for discounting it. Due to the ALJ’s consideration of the lack of extensive explanation, the Court finds that the
Magistrate Judge did not rely on the check-off form as a new argument and instead only highlighted it as an additional fact from the
Plaintiff’s first objection is overruled.
b. Second Objection: Alleged Medical
Next, Plaintiff argues both the ALJ and Magistrate Judge
Patti failed “to take into account the full factual record” when determining whether Plaintiff’s medication noncompliance constituted a sufficient reason to discount Dr. Zamari’s opinion. ECF No.
21, PageID.986. For example, when discussing how Plaintiff’s
symptoms improved with Adderall, neither the ALJ or the magistrate judge discuss how a doctor later took Plaintiff off Adderall due
to her elevated blood pressure and anxiety. Because the ALJ failed
to consider the reasons for noncompliance, Plaintiff argues that the
ALJ was not justified in discounting Dr. Zamari’s opinion.
Plaintiff’s objection concerns the ALJ’s decision to discount
Dr. Zamari’s opinion without consideration of the reasons Plaintiff
failed to take medication as prescribed. While the Sixth Circuit has
recognized that “[f]or some mental disorders, the very failure to
seek treatment is simply another symptom of the disorder itself,”
the Magistrate Judge’s Report and Recommendation correctly notes
that the two cases cited by Plaintiff to support her argument address a different scenario than the one currently at issue. White,
572 F.3d at 283. In both of the cited cases, the issue was the ALJ’s
decision to discount the claimant’s testimony—not that of the treating physician—because of the claimant’s noncompliance with taking prescribed medication. Rogers v. Comm’r of Soc. Sec., No. 1714151, 2019 WL 1102226, at *4 (E.D. Mich. Jan. 17, 2019), report
and recommendation adopted, No. 17-14151, 2019 WL 1099019
(E.D. Mich. Mar. 8, 2019) (“It was the ALJ's responsibility to consider the foregoing evidence before relying on Rogers' noncompliance to discredit his testimony.”); Robinson o/b/o D.S.L.R. v.
Comm’r of Soc. Sec., No. 18-11835, 2019 WL 1474024, at *5 (E.D.
Mich. Mar. 8, 2019), report and recommendation adopted, No. 1811835, 2019 WL 1471464 (E.D. Mich. Apr. 3, 2019) (“[T]he third
reason articulated by the ALJ for discounting Plaintiff's allegations
of disability is the fact that he purportedly was not ‘entirely compliant in taking prescribed medications.’”).
However, this does not end our inquiry, because we must consider other cases in this circuit which evaluate an ALJ’s failure to
consider the reasons for noncompliance when discounting a treating physician’s opinion. See Rowley v. Comm’r of Soc. Sec., No. CV
15-11988, 2016 WL 4224974, at *6 (E.D. Mich. July 12, 2016), report and recommendation adopted, No. CV 15-11988, 2016 WL
4191739 (E.D. Mich. Aug. 9, 2016) (“Under the circumstances,
where the ALJ did not mention (let alone consider) the reasons contained in the record for Rowley’s lack of participation in group therapy, the Court finds that her reliance on this fact in discounting the
opinion of Rowley's treating physician was error.”); Sneed v.
Comm’r of Soc. Sec., No. 12-CV-15203-DT, 2014 WL 861525, at *1819 (E.D. Mich. Mar. 5, 2014) (reversing when ALJ gave little weight
to the treating psychiatrist’s opinion because she assumed without
explaining why that the claimant’s failure to comply with medical
advice was the reason for her condition); Black v. Comm’r of Soc.
Sec., No. 1:13 CV 229, 2013 WL 6837193, at *4 (N.D. Ohio, Dec. 26,
2013), report and recommendation adopted, No. 13-00229 (discussing procedure for proving whether a claimant’s mental state played
a role in his non-compliance with medical advice).
For example, in Sneed the ALJ discounted the opinion of
claimant’s treating physician, Dr. Stipic, because the medical record failed to support the functional assessment. 2014 WL 861525 at
*16. In particular, the ALJ found that when taking all her medication the claimant “had more energy and felt either only episodic irritability or no irritability or sadness at all,” which was inconsistent
with the limitations outlined in Dr. Stipic’s opinion. Id. The district
court found the ALJ’s explanation insufficient because the administrative record provided some evidence that the claimant’s failure
to take her medication was due to her mental impairments. Id. at
*18. Not only did the explanation of the discounted opinion fail to
discuss this evidence, the ALJ also failed to discuss the other factors
that must be considered when assigning less than controlling
weight to a treating physician’s opinion, such as the failure to discuss the treating physician’s familiarity with the claimant. Id. See
Rogers, 486 F.3d at 242. The district court remanded the case and
ordered the ALJ to reconsider Dr. Stipic’s letter because the explanation for discrediting the opinion was insufficient.
In the matter currently before the Court, the ALJ assigned
“limited weight” to Dr. Zamari’s August 2014 opinion for several
reasons including Dr. Zamari’s failure to take into consideration the
“claimant’s refusal to take anything other than Effexor, and her refusal to add a mood stabilizer, as recommended.” ECF No. 9-12,
PageID.582-83. The ALJ explained, “when the claimant takes medication as prescribed, her condition and symptoms are noted to improve.” Id. at 583.
As previously discussed, if the ALJ assigns less than “controlling” weight to a treating source’s opinion then she must supply the
Court and the claimant a sufficient explanation for rejecting the
opinion of a long-term treating physician. Wilson, 378 F.3d at 544.
Here, based on Dr. Zamari’s treatment notes, the ALJ determined
that when Plaintiff was “compliant” with her medication her conditions and symptoms were less severe than indicated in Dr. Zamari’s
August 2014 opinion. ECF No. 9-2, PageID.583. Yet, like in Sneed,
the ALJ fails to explain why it is proper to compare Plaintiff’s condition when she was medically “compliant” against the assessment
made by Dr. Zamari regarding her limitations. See 2014 WL 861525
at *16. This is particularly concerning because the record provides
support for the view that Plaintiff’s mental impairments may have
caused such noncompliance. The record notes that Plaintiff testified
that she was “really scared of pills” (ECF No. 9-12, PageID.628),
had once dropped her pills in “a bucket” (ECF No. 9-7, PageID.295),
stopped taking Rsisperdal because it made her muscles “twitch”
(ECF No. 9-11, PageID.534), and experienced “horrendous side effects” including feeling like she was “going to die like Jimi Hendrix”
on one medication (ECF No. 9-12, PageID.610-11). The above is not
clearly inconsistent with Dr. Zamari’s opinion that Plaintiff is impacted by bipolar affective disorder, manic without psychosis, anxiety, and depression, which interfere with Plaintiff’s functioning.
ECF No. 9-2, PageID.61. Further, even if the ALJ correctly found
that Plaintiff’s condition was better managed when she was on Adderall, the ALJ failed to discuss Dr. Zamari’s notes that even
though Adderall was “working pretty well” the Plaintiff was still
depressed and “cries a lot” (ECF No. 9-11, PageID.544) and that
Plaintiff alleged that she continued to have trouble concentrating
while on the medication (ECF No. 9-2, PageID.97). The ALJ should
have considered and discussed this evidence before discounting Dr.
Zamari’s opinion based on Plaintiff’s noncompliance with medication.
Therefore, because the ALJ’s explanation for discrediting Dr.
Zamari’s opinion based on noncompliance with medication was insufficient, Plaintiff’s second objection is sustained. Notably, the
ALJ provided multiple reasons for discounting Dr. Zamari’s opinion
and for this reason the Court must consider whether the other reasons demonstrate that the decision was based on substantial evidence which would make the ALJ’s failure to provide “good reason”
a harmless error. See Heston, 245 F.3d 528, 536 (6th Cir. 2001).
c. Third Objection: Other Sufficiently Compelling
Plaintiff objects to the Report and Recommendation on the
ground that it incorrectly concludes that the ALJ provided good reasons for not giving controlling weight to Dr. Zamari’s opinion. ECF
No. 21, PageID.989. The reasons given by the ALJ for discounting
Dr. Zamari’s opinion were: (1) Dr. Zamari’s “Global Assessment of
Function” or “GAF” scores were inconsistent and did not support
her opinion that Petitioner had serious symptoms and limitations,
(2) Dr. Zamari’s determination that Plaintiff could not function independently was contradicted by Plaintiff’s ability to conduct minimal daily functions, (3) Plaintiff’s cannabis use impacted her mental health impairments, (4) Plaintiff’s attempt to be reinstated at
her previous job suggested she was not disabled, and (5) Plaintiff’s
complaints unduly influenced Dr. Zamari to provide a sympathetic
opinion that overstated her disability to avoid patient-doctor tension.
“To be given controlling weight, a treating source opinion
must be ‘well-supported by medically acceptable clinical and laboratory diagnostic techniques’ and not be ‘inconsistent with other
substantial evidence in [the] case record.’” Vitale v. Comm’r of Soc.
Sec., Case No. 16-12654, 2017 WL 4296608, at *2 (E.D. Mich. Sept.
28, 2017) (emphasis in original) (quoting Gayheart, 710 F.3d at
376).For the reasons that follow, the Court concludes that the ALJ
did not err when she afforded “limited weight” to Dr. Zamari’s August 2014 opinion because the opinion was inconsistent with other
evidence in the record.
First, Plaintiff contends it was not appropriate to discount Dr.
Zamari’s opinion on the basis that there was a “mere” five-point
discrepancy between the two of the GAF scores assigned to Plaintiff. A GAF score is a “clinician’s subjective rating of an individual’s
overall psychological functioning” and it may be utilized by the ALJ
when assessing a claimant’s mental residual functional capacity.
Kennedy v. Astrue, 247 F. App’x 761, 766 (6th Cir. 2007). A GAF
score of 51 to 60 indicates moderate symptoms or moderate difficulty in social or occupational functioning, while a score of 41 to 50
indicates serious impairment. Kornecky, 167 F. App’x at 503. However, the scores are not “raw medical data” and the Sixth Circuit
has looked at inconsistency between different doctor’s GAF scores
as a proper reason for rejecting an opinion. Kennedy, 247 F. App’x
at 766; Gribbins v. Comm’r of Soc. Sec. Admin., 37 F. App’x 777,
779 (6th Cir. 2002).
The ALJ discounted Dr. Zamari’s opinion because she assigned two different GAF scores a day apart without explanation.
While Dr. Zamari’s August opinion assigned Plaintiff a GAF score
of 50, the previous day she assigned Plaintiff a GAF assessment of
55. ECF No. 9-12, PageID.583. This is a rational reason for discounting the August opinion as the numbers were not only inconsistent a day apart without explanation, but the shift also changed
the indication of Plaintiff’s functional limitation from moderate to
severe. Plaintiff’s assertion that, with limited exceptions, her GAF
score was consistently between 45 and 50 is unavailing as the concern is not the overall consistency with the record, but why the score
could change—a change which resulted in a different indication of
functional limitations—within a day. Therefore, it was reasonable
for the ALJ to question Dr. Zamari’s failure to explain the inconsistent scores. Accordingly, the ALJ provided at least one “good reason” for discounting Dr. Zamari’s opinion.
Next, Plaintiff argues that the ALJ should not have discounted the weight afforded to Dr. Zamari’s opinion based on the
inconsistency with Plaintiff’s own assessment of her functional abilities. An ALJ may decline to give a treating source opinion “controlling weight” if it is not well-supported and is inconsistent with the
other evidence in the case record. 20 C.F.R. § 404.1527(c). However,
“it is not enough to dismiss a treating physician's opinion as ‘incompatible’ with other evidence of record; there must be some effort to
identify the specific discrepancies and to explain why it is the treating physician's conclusion that gets the short end of the stick.”
Friend, 375 F. App’x at 552.
To support the decision to discount Dr. Zamari’s August opinion based on its inconsistency with claimant’s self-reported ability
to perform daily activities, the ALJ cites to a list of exhibits,2 which
demonstrate that Dr. Zamari’s opinion is “not consistent with the
The Court finds that the format of the ALJ’s explanation, providing reference to exhibits without specifically explaining each one,
is not in and of itself a deficiency. The ALJ in Vitale v. Commissioner of Social Security also addressed a treating physician’s
opinion with citations to exhibits. The court concluded that the
“ALJ met its obligation to provide good reasons for giving less
weight to [the physician’s] opinion.” 2017 WL 4296608, at *2.
claimant’s self-reported ability to perform activities of daily living
independently.” ECF No. 9-12, PageID.582-84. While Dr. Zamari
asserted that Plaintiff could not “function independently” (ECF No.
9-8, PageID.393), the exhibits the ALJ points to contradict this
opinion. Among other things, the function report filled out by claimant notes that she was able to feed her dogs (ECF No. 9-6,
PageID.247), take care of her personal needs and grooming without
special reminders (ECF No. 9-6, PageID.248), not require help taking medication (ECF No. 9-6, PageID.248), prepare her own meals
on a daily basis (ECF No. 9-6, PageID.248), she is able to drive a
car, go out to stores, pay bills and handle a savings account (ECF
No. 9-6, PageID.249), and she does not need someone to accompany
her when she goes out (ECF No. 9-6, PageID.250). These inconsistencies are also concerning in light of Dr. Zamari’s failure to provide
“examples of social functioning/activities and interests,” despite being expressly invited to do so on the form. ECF No. 9-8, PageID.393.
See Vitale, 2017 WL 4296608, at *2 (“Based on Plaintiff’s own testimony, the ALJ found that Plaintiff has no restriction in activities of
daily living and that she completes household tasks without difficulty.”) (emphasis added).
While the Court acknowledges that the ALJ could have provided an elaboration on the exhibits rather than referencing them
generally, the Court is still unable to conclude that the ALJ improperly discounted Dr. Zamari’s opinion on this basis. Here, unlike the
case in Gayheart where “the reviewing court could not determine
what the problem with the treating physician’s opinion was,” the
Court can assess by referring to the exhibits the contradictions that
the ALJ highlights. See Vitale, 2017 WL 4296608, at *3 (referencing
Gayheart, 710 F.3d at 377). The evidence of contradiction in the
case record is highlighted, which makes it clear where any subsequent reviewers can turn in order to find support for the ALJ’s decision to discount the opinion. See Wilson, 378 F.3d at 544 (referencing Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *5 (1996)).
The other reasons provided by the ALJ for discounting Dr. Zamari’s opinion are less compelling. Plaintiff contends that the discussion of the use of cannabis and its potential impacts on her mental health are speculative and the Court agrees. The ALJ focused
on a discrepancy between Dr. Zamari’s conclusion that Plaintiff’s
cannabis dependence was in remission and office records from Dr.
Siddiqui which indicate that Plaintiff tested positive for cannabis.
ECF No. 9-12, PageID.583. While the ALJ points to this inconsistency, there is no evidence, description, or explanation that connects Plaintiff’s cannabis use to her mental health impairments.
Therefore, the potential inconsistency regarding cannabis use was
not a “good reason” for discounting Dr. Zamari’s opinion.
The ALJ also discounted Dr. Zamari’s opinion based on the
fact that Plaintiff sought reinstatement to her previous job, which
required “frequent contact and interaction with others.” ECF No. 912, PageID.583. While Plaintiff’s own assessment of her functionality may have been different from Dr. Zamari’s, the ALJ gives no
explanation as to why Plaintiff’s determination should win out over
a treating physician. Friend, 375 F. App’x at 552. Additionally, the
ALJ does not cite to any evidence in the record that demonstrates
that Plaintiff could in fact perform her previous job—just that she
wanted to do so. Without more, the ALJ failed to provide sufficient
“good reason” to discount Dr. Zamari’s opinion based on Plaintiff’s
effort to be reinstated at her previous job.
Finally, Plaintiff contends that there is no evidence to support
the ALJ’s discussion of the possibility that Dr. Zamari may have
reached her opinion based on sympathy for Plaintiff rather than her
medical expertise. ECF No. 9-12, PageID.583. While the opinion
notes that “it is difficult to confirm the presence of such motives,”
the Court finds the suggestion entirely unsupported. The ALJ
seems to assert that undue influence is a possibility because Dr.
Zamari’s opinion “departs substantially from the rest of the evidence in the record,” but then provides no explanation or citation to
the record that would support the statement that her opinion is in
fact such a substantial departure from the evidence. ECF No. 9-12,
PageID.583. See Bergschwenger v. Comm’r of Soc. Sec., 2012 WL
4009916, at *12 (E.D. Mich. Aug. 20, 2012), report and recommendation adopted, No. 11-11752, 2012 WL 4009909 (E.D. Mich. Sept.
12, 2012) (“While the ALJ found that the remainder of Dr. Ahmad's
opinions to likely have been issued out of sympathy, because they
were so inconsistent with the medical evidence of record, the ALJ
does not actually cite any particular evidence that was so inconsistent with [the treating physician’s] opinions.”). Because the ALJ
provided no evidence or explanation of Dr. Zamari’s alleged sympathy motive, the ALJ failed to provide “good reason” for discounting
Dr. Zamari’s opinion based on possible undue influence.
Despite these less than compelling explanations, the Court
finds that the discrepancy in GAF scores and the inconsistency between Dr. Zamari’s August opinion and claimant’s self-reported
abilities, provide sufficient evidence to support the ALJ’s decision
to accord less than controlling weight to Dr. Zamari’s opinion.
Further, even acknowledging the less compelling arguments
presented by the ALJ and the fact that the ALJ could have articulated more specific “good reasons,” any failures here amount to
harmless error. A court may conclude that an insufficient discussion of “good reasons” is harmless error if:
(1) a treating source's opinion is so patently deficient that the
Commissioner could not possibly credit it; (2) if the Commis26
sioner adopts the opinion of the treating source or makes findings consistent with the opinion; or (3) where the Commissioner has met the goal of § 1527(d)(2)—the provision of the
procedural safeguard of reasons—even though she has not
complied with the terms of the regulation.
Friend, 375 F. App’x at 551 (internal quotation marks omitted)
(quoting Wilson, 378 F.3d at 547).
The few incomplete sentences Dr. Zamari provides at the bottom of the August Mental Residual Functional Capacity Assessment do not negate the fact that the opinion was cursory: it largely
consisted of a check-form report, in several places she did not include any remarks or comments despite being requested to do so
(ECF No. 9-8, PageID.392), and even when Dr. Zamari did add minimal commentary she declined to provide examples and gave conclusory statements (ECF No. 9-8, PageID.393). See Hernandez v.
Comm’r of Soc. Sec., 644 F. App’x 468, 474-75 (6th Cir. 2016);
Ellars, 647 F. App’x at 566-67. The Court acknowledges that Dr.
Zamari provided slightly more than just checked boxes, unlike the
aforementioned cases. However, the less than thirty words Dr. Zamari offers in explanation can hardly be said to provide convincing
support for the opinions expressed.
While the above-described problems in Dr. Zamari’s opinion
may not amount to a “patently deficient” treating source opinion, it
does appear that the Commissioner has satisfied the third situation
because the Court and the claimant are able to reference the exhibits and conflicting GAF scores to understand why Dr. Zamari’s opinion was not given controlling weight. See Heston, 245 F.3d 528, 536
(6th Cir. 2001). The Court finds that the record taken as a whole
provides adequate and sufficiently specific reasons for the weight
given to Dr. Zamari’s opinion. Taken together, it is clear that whatever errors the ALJ’s opinion suffered in failing to set out with clarity the “good reasons” for giving less weight to Dr. Zamari’s opinion,
As noted earlier, it is clear the ALJ could have provided more
detail in the decision and the Court would encourage including such
detail to ensure that “claimants understand the disposition of their
cases,’ particularly in situations where a claimant knows that his
physician has deemed him disabled and therefore ‘might be especially bewildered when told by an administrative bureaucracy that
she is not, unless some reason for the agency's decision is supplied.’”
Wilson, 378 F.3d at 544 (quoting Snell, 177 F.3d at 134). However,
here, the ALJ’s reasoning did not fall below the minimum standard
of analysis required. Accordingly, Plaintiff’s objection will be overruled.
After a de novo review of the record and the materials submitted by the parties, IT IS HEREBY ORDERED that Plaintiff’s first
and third objections are OVERRULED, Plaintiff’s second objections is SUSTAINED, and the Report and Recommendation is
MODIFIED IN PART. Accordingly, Plaintiff’s Motion for Summary Judgment (ECF No. 18) is DENIED. Defendant’s Motion for
Summary Judgment (ECF No. 19) is GRANTED, and the decision
of the Commissioner of Social Security is AFFIRMED.
Dated: March 31, 2021
s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
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