Slagle v. Commissioner of Social Security

Filing 14

OPINION; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LEON JEFFERY SLAGLE,
Plaintiff,

Case No. 1:15-cv-1178

v.
HON. JANET T. NEFF
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Leon Slagle seeks review of the Commissioner’s decision denying his
claim for disability insurance benefits (DIB) under Title II of the Social Security Act.
STANDARD OF REVIEW
The scope of judicial review in a social security case is limited to determining
whether the Commissioner applied the proper legal standards in making her decision and whether
there exists in the record substantial evidence supporting that decision. See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may not conduct a de novo
review of the case, resolve evidentiary conflicts, or decide questions of credibility. See Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and her findings are conclusive provided they
are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is more than a scintilla, but less than a preponderance. See

Cohen v. Sec’y of Health & Human Servs., 964 F.2d 524, 528 (6th Cir. 1992) (citations omitted).
It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.
See Richardson v. Perales, 402 U.S. 389, 401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). In determining the substantiality of the evidence, the Court must consider the evidence on
the record as a whole and take into account whatever in the record fairly detracts from its weight.
See Richardson v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The
substantial evidence standard presupposes the existence of a zone within which the decision maker
can properly rule either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to the administrative decision maker
considerable latitude, and indicates that a decision supported by substantial evidence will not be
reversed simply because the evidence would have supported a contrary decision. See Bogle, 998
F.2d at 347; Mullen, 800 F.2d at 545.
PROCEDURAL POSTURE
Plaintiff was forty-three years of age on the date of the Administrative Law Judge’s
(ALJ) decision. (PageID.43, 67.) He completed the eighth grade, and was previously employed as
a welder, a computer numerically controlled (CNC) operator, and as a picker. (PageID.69, 94.)
Plaintiff applied for benefits on November 2, 2012, alleging that he had been disabled since
December 1, 2011, due to a major depressive psychotic antisocial personality, a severe major
depressive disorder with psychotic features, cannabis abuse, amphetamine or related
sympathomimetic abuse in remission, and antisocial personality disorder. (PageID.99, 169–170.)
Plaintiff’s application was denied on March 6, 2013, after which time he requested a hearing before
an ALJ. (PageID.111–114, 118–110.) On December 6, 2013, Plaintiff appeared with his counsel

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before ALJ Carol Guyton for an administrative hearing with testimony being offered by Plaintiff and
a vocational expert (VE). (PageID.60, 97.) In a written decision dated March 21, 2014, the ALJ
determined that Plaintiff was not disabled. (PageID.43–59.) On September 21, 2015, the Appeals
Council declined to review the ALJ’s decision, making it the Commissioner’s final decision in the
matter. (PageID.28–33.) Plaintiff subsequently initiated this action pursuant to 42 U.S.C. § 405(g).
ALJ’S DECISION
The social security regulations articulate a five-step sequential process for evaluating
disability. See 20 C.F.R. § 404.1520(a-f).1 If the Commissioner can make a dispositive finding at
any point in the review, no further finding is required. See 20 C.F.R. § 404.1520(a). The regulations
also provide that if a claimant suffers from a nonexertional impairment as well as an exertional
impairment, both are considered in determining the claimant’s residual functional capacity (RFC).
See 20 C.F.R. § 404.1545.
Plaintiff has the burden of proving the existence and severity of limitations caused
by his impairments and that he is precluded from performing past relevant work through step four.

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1.

An individual who is working and engaging in substantial gainful activity will not be found to be
“disabled” regardless of medical findings (20 C.F.R. § 404.1520(b));

2.

An individual who does not have a “severe impairment” will not be found “disabled” (20 C.F.R. §
404.1520(c));

3.

If an individual is not working and is suffering from a severe impairment which meets the duration
requirement and which “meets or equals” a listed impairment in Appendix 1 of Subpart P of
Regulations No. 4, a finding of “disabled” will be made without consideration of vocational factors
(20 C.F.R. § 404.1520(d));

4.

If an individual is capable of performing work he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. § 404.1520(e));

5.

If an individual’s impairment is so severe as to preclude the performance of past work, other factors
including age, education, past work experience, and residual functional capacity must be considered
to determine if other work can be performed (20 C.F.R. § 404.1520(f)).

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Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that accommodate
the claimant’s residual functional capacity (determined at step four) and vocational profile.” Id.
ALJ Guyton determined Plaintiff’s claim failed at the fifth step of the evaluation. At
step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged
disability onset date. (PageID.48.) At step two, the ALJ determined Plaintiff had the following
severe impairments: (1) schizoaffective disorder; (2) cannabis abuse; (3) panic disorder; and (4) antisocial personality disorder. (PageID.48.) At step three, the ALJ found that Plaintiff did not have
an impairment or combination of impairments that met or equaled the requirements of the Listing
of Impairments. (PageID.48–49.) At the fourth step, the ALJ found that Plaintiff retained the RFC
based on all the impairments:
to perform a full range of work at all exertional levels but with the
following nonexertional limitations: performing simple routine tasks
involving no more than simple short instructions and simple work
related decisions with few work place changes, no contact with the
general public and occasional contact with coworkers and supervisors
(PageID.49–50.) Continuing with step four, the ALJ also determined that Plaintiff was unable to
perform any past relevant work. (PageID.54.)
At step five, the ALJ questioned the VE to determine whether a significant number
of jobs exists in the economy which Plaintiff could perform given his limitations. See Richardson,
735 F.2d at 964. The VE identified the positions of sorter (agriculture), garment sorter, and folder
as jobs Plaintiff could perform. (PageID.94.) The VE further testified that these jobs amounted to
a total of 3,260 position in the state. (PageID.94.) This represents a significant number of jobs. See
Hall v. Bowen, 837 F.2d 272, 274 (6th Cir. 1988); McCormick v. Sec’y of Health & Human Servs.,

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861 F.2d 998, 1000 (6th Cir. 1988).
Accordingly, the ALJ determined that Plaintiff was not under a disability at any point
from December 1, 2011 (the alleged disability onset date) through March 21, 2014 (the date of the
decision). (PageID.55.)
DISCUSSION
1.

The ALJ Failed to Properly Consider Dr. Geetha Dhatreechaan’s
Opinion.

On February 13, 2014, Ms. Wendy Ludwig, Plaintiff’s mental health therapist, gave
a statement to Plaintiff’s attorney concerning Plaintiff’s impairments. (PageID.556–558.) Ms.
Ludwig stated that Plaintiff suffered from anxiety and paranoia, and that those conditions were
exacerbated when he was around crowds. He also had depression, hallucinations, irritability, and
paranoid thoughts.

He tended to isolate himself, had poor hygiene, and lacked empathy.

(PageID.556.) Ms. Ludwig opined that Plaintiff would “struggle to maintain any type of competitive
employment.” (PageID.557.) He would have conflicts with others, and supervisors and authority
figures would appear hostile to him. (PageID.557.) She further stated that were Plaintiff to work,
she would expect him to miss more than four days of work per month. On days when he was
working, Ms. Ludwig believed Plaintiff’s symptoms would cause him to be off task for a quarter of
the workday. (PageID.557.) Finally Ms. Ludwig commented on Plaintiff’s marijuana use. She
noted that it was her desire that Plaintiff not use marijuana, but admitted that were he to cease his
substance use, he would not experience a significant improvement in his functioning. (PageID.558.)
The following day, the statement was cosigned by Plaintiff’s treating psychiatrist, Dr. Geetha
Dhatreechaan. (PageID.558.) Plaintiff argues the ALJ erred in failing to give the opinion
controlling weight.
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By way of background, the treating physician doctrine recognizes that medical
professionals who have a long history of caring for a claimant and his maladies generally possess
significant insight into his medical condition. See Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). An ALJ must, therefore, give controlling weight to the opinion of a treating source if: (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 of Soc. Sec., 710 F.3d 365, 375–76 (6th Cir. 2013) (quoting 20 C.F.R.
§ 404.1527).
Such deference is appropriate, however, only where the particular opinion “is based
upon sufficient medical data.” Miller v. Sec’y of Health & Human Servs., 1991 WL 229979, at *2
(6th Cir. Nov. 7, 1991) (citing Shavers v. Sec’y of Health & Human Servs., 839 F.2d 232, 235 n.1
(6th Cir. 1987)). The ALJ may reject the opinion of a treating physician where it is unsupported by
the medical record, merely states a conclusion, or is contradicted by substantial medical evidence.
See Cohen, 964 F.2d at 528; Miller, 1991 WL 229979 at *2 (citing Shavers, 839 F.2d at 235 n.1);
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286–87 (6th Cir. 1994).
If an ALJ accords less than controlling weight to a treating source’s opinion, the ALJ
must “give good reasons” for doing so. Gayheart, 710 F.3d at 376. Such 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. This requirement “ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.” Id. (quoting
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)). Simply stating that the

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physician’s opinions “are not well-supported by any objective findings and are inconsistent with
other credible evidence” is, without more, too “ambiguous” to permit meaningful review of the
ALJ’s assessment. Id. at 376–77.
The ALJ discussed the opinion as follows:
Regarding Ms. Wendy Ludwig’s opinion in Exhibit 10F, there is no
reason to believe the claimant is not capable of working on a
competitive and consistent basis if he were to be placed in a job
within the parameters of the established residual functional capacity.
The office notes clearly show that the claimant has repeatedly
indicated that he uses marijuana despite medical advice to cease use
and follow through with prescribed levels of medications. The
claimant also indicated that he stops using his medications when he
drinks alcohol (Ex 1F, 2F, 6F). Since the claimant has not been
compliant with prescribed treatment, Ms. Ludwig’s opinion is in no
way supported by the evidence. Furthermore, I note the opinion was
later signed by treating psychiatrist, Dr. Dhatreechaan who agreed
with Ms. Ludwig’s statement. However, the office note from
November 25, 2013 indicates the claimant had good eye contact. His
speech was normal, not pressured. His grooming was average, which
is not consistent with Ms. Ludwig’s description of the claimant’s
hygiene issues (Ex 7F, 9F). However, it appears the observations of
the claimant and his demeanor during office visits is generally
consistent with the evidence that the State agency psychiatrist based
much of the March 5, 2013 assessment on (Ex 1A). For this reason
as well as all the evidence, I am giving greater weight to the State
agency assessment.
(PageID.53.) Plaintiff raises a number of arguments regarding the above quoted discussion. The
Court only partially agrees.
Several of Plaintiff’s arguments are not persuasive. Plaintiff argues, for example, that
the ALJ failed to mention that Dr. Dhatreechaan adopted Ms. Ludwig’s opinion and furthermore
failed to state what weight the statement was given. (PageID.580.) Plaintiff also argues the ALJ
was required to separately discuss the opinion as if it had been presented solely from Ms. Ludwig.
(PageID.582–583.) In all this, Plaintiff is mistaken.
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As noted in the ALJ’s discussion, the opinion originated as a statement by Ms.
Ludgwig and it was later adopted by Dr. Dhatreechaan, Plaintiff’s treating psychiatrist. The ALJ
explicitly and accurately stated as much. (PageID.53.) The ALJ also explicitly stated the weight
she was giving the opinion. (PageID.53.) While it may have been preferable for the ALJ to assign
an independent weight to the opinion rather than assign it a weight relative to that of the agency
consultant, Plaintiff has pointed to no authority demonstrating that the ALJ erred here. Similarly,
Plaintiff provides no authority for the assertion the ALJ had to separately discuss the opinion as one
solely from Ms. Ludwig. In any event, the ALJ’s discussion of the opinion easily passes muster
under the standard for considering therapists’ opinions. This is so because the opinions of therapists
fall within the category of information provided by “other sources.” See 20 C.F.R. § 404.1513(d)(1).
While the factors set forth in 20 C.F.R. 404.1527 “can” be applied to other source opinions, the
social security regulations only require that information from other sources be “considered.” SSR
06–03p, 2006 WL 2329939, at *1, 4 (S.S.A. Aug. 9, 2006) (citing 20 C.F.R. §§ 404.1513, 416.913);
Cole v. Astrue, 661 F.3d 931, 939 (6th Cir. 2011); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541
(6th Cir. 2007); see also Hill v. Comm’r of Soc. Sec., No. 1:12-CV-235, 2013 WL 2896889, at *2–3
(W.D. Mich. June 13, 2013). This is not a demanding standard. It was easily met here.
At bottom, however, the parties do not dispute that Dr. Dhatreechaan’s adoption of
Ms. Ludwig’s opinion transformed the opinion into that of a treating source that the ALJ was
required to treat accordingly. Both parties cite the relevant standards for considering such opinions,
but disagree on whether the ALJ satisfied the requirements. Because it is clear the ALJ did not
assign controlling weight to the opinion, the question becomes whether the ALJ provided good
reasons for doing so. See Gayheart, 710 F.3d at 376. The Court is unable to find good reasons here.

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The ALJ began by noting that Plaintiff was not following prescribed treatment, both
by continuing to abuse marijuana despite his treaters’ admonitions, and by failing to take his
medication as prescribed.2 (PageID.53.) Indeed, on several occasions Plaintiff reported to his
examiners that he was not following their recommendations. For example, records from July 26,
2013, demonstrate that Ms. Ludwig recommended Plaintiff cease his substance use as it could affect
his mental health, but Plaintiff disagreed and believed his marijuana use made him more sociable
and calmer. (PageID.365–366.) In October 15, 2013, Ms. Ludwig noted Plaintiff was still using
marijuana and alcohol intermittently. (PageID.350.) Plaintiff also stated that he did not take his
medication when using alcohol. (PageID.377.) The ALJ found that the Plaintiff’s noncompliant
behavior signaled that the “opinion is in no way supported by the evidence.” (PageID.53.)
Certainly a claimant’s failure to follow the prescribed course of treatment may undercut the
claimant’s own credibility. See Sias v. Sec’y of Health & Human Servs., 861 F.2d 475, 480 (6th
Cir.1988). But it is not apparent to the Court why Plaintiff’s failure to follow recommended
treatment should lead to an assignment of less weight to this opinion, and the ALJ did not further
explain her reasoning. If anything, Plaintiff’s inability to follow treatment appears to be consistent
with Ms. Ludwig and Dr. Dhatreechaan’s opinion that Plaintiff would be off-task for a quarter of
the workday. An ALJ “must articulate, at some minimum level, [her] analysis of the evidence to
allow the appellate court to trace the path of [her] reasoning.” Diaz v. Chater, 55 F.3d 300, 307 (7th
Cir. 1995). The Court cannot do so here.
The ALJ also found the opinion to be inconsistent with a treatment note from Dr.
Dhatreechaan dated November 25, 2013. (PageID.53.) But this record appears to demonstrate that

2

The ALJ did not, as Plaintiff claims, discount the opinion because of Plaintiff’s drug use. (PageID.605.)

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Plaintiff was more limited than as the ALJ described it. For example, while the doctor did find
Plaintiff had average grooming and good eye contact, with non pressured speech during the visit,
the note also reports that Plaintiff stated he was hearing voices two to three times a week and seeing
shadows daily. (PageID.546.) He was assigned a GAF score of 45 indicating that he was
experiencing “serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent
shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no
friends, unable to hold a job).” AMERICAN PSYCHIATRIC ASSOCIATION, DIAGNOSTIC

AND

STATISTICAL MANUAL OF MENTAL DISORDERS 32 (4th ed. 1994). Thus this note does not support
the ALJ’s decision either. The Commissioner argues the ALJ discussed other reasons for
discounting the opinion, pointing out that the ALJ also discussed, among other things, Plaintiff’s
relatively conservative treatment and daily activities. (PageID.54, 593–594.) But it does not appear
this was discussed by the ALJ in connection with the opinion. (PageID.53–54.) In any event, the
Commissioner’s argument here is precisely the type of analysis the ALJ should have conducted in
the first instance. For reasons stated above, the Court finds the ALJ failed to provide good reasons
for assigning less than controlling weight to Dr. Dhatreechaan’s opinion.
2.

The ALJ Properly Considered Dr. Ruquiya Tareen’s Opinion.

Plaintiff next argues that the ALJ could not give greater weight to the opinion of Dr.
Ruquiya Tareen, the agency consultant, than to Dr. Dhatreechaan because the Dr. Tareen did not
review the entire record. (PageID.581–582.) This is not sufficient to establish error. “Social
Security regulations recognize that opinions from non-examining state agency consultants may be
entitled to significant weight, because these individuals are ‘highly qualified’ and are ‘experts in
Social Security disability evaluation.’” Cobb v. Comm’r of Soc. Sec., No. 1:12–cv–2219, 2013 WL

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5467172, at *5 (N.D. Ohio Sept. 30, 2013) (quoting 20 C.F.R. §§ 404.1527(e)(2)(i),
416.927(e)(2)(i)); see Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). Indeed, “in appropriate
circumstances, opinions from State agency medical and psychological consultants . . . may be
entitled to greater weight than the opinions of treating or examining sources.” Brooks v. Comm’r of
Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013). However, “[w]hen an ALJ relies on a
non-examining source who did not have the opportunity to review later submitted medical evidence,
especially when that evidence reflects ongoing treatment,” the Sixth Circuit requires “some
indication that the ALJ at least considered these [new] facts before giving greater weight to an
opinion that is not based on a review of a complete case record.” Id. (internal quotations omitted).
Given the delay inherent in the administrative review process, few, if any cases, will present a static
medical record from a date before the decision on initial review through the date of the ALJ’s
decision. It is patent that the ALJ understood that Dr. Tareen gave the opinion on the basis of the
medical record as it existed at the time the opinion was given. (PageID.53.) It is equally clear the
ALJ examined the entire record, including those records dated after Dr. Tareen’s opinion, in arriving
at her determination. (PageID.46, 56–59.) The ALJ is responsible for weighing conflicting
evidence. See Buxton v. Halter, 246 F.3d 762, 775 (6th Cir. 2001); see also Reynolds v. Comm’r of
Soc. Sec., 424 F. App’x 411, 414 (6th Cir. 2011) (“This court reviews the entire administrative
record, but does not reconsider facts, re-weigh the evidence, resolve conflicts in evidence, decide
questions of credibility, or substitute its judgment for that of the ALJ.”). The ALJ was free to
consider the doctor’s opinion and determine what weight, if any, it should be given. The Court finds
no error here.

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3.

Plaintiff Raises A Perfunctory Credibility Argument.

In a short argument consisting of a single paragraph, Plaintiff appears to argue the
ALJ’s RFC determination is unsupported by substantial evidence because it failed to account for the
limitations provided by Dr. Dhatreechaan and his own testimony. (PageID.583–584.) The Court
is already remanding this case for further consideration of the psychiatrist’s opinion. To the extent
Plaintiff claims the ALJ erred in assessing his credibility, he presents no meaningful discussion on
this topic, and has accordingly waived the issue. See Clemente v. Vaslo, 679 F.3d 482, 497 (6th Cir.
2012); Geboy v. Brigano, 489 F.3d 752, 767 (6th Cir. 2007).
4.

The ALJ’s Step Five Determination.

Finally, Plaintiff contends that the ALJ’s hypothetical question was flawed because
the ALJ did not appropriately analyze Dr. Dhatreechaan’s opinion. An ALJ’s finding that a plaintiff
possesses the capacity to perform substantial gainful activity that exists in the national economy
must be supported by substantial evidence that the plaintiff has the vocational qualifications to
perform specific jobs. Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
This evidence may be produced through reliance on the testimony of a VE in response to a
hypothetical question which accurately portrays the claimant’s physical and mental impairments.
Id. However, a hypothetical question need only include those limitations which the ALJ accepts as
credible. See Blacha v. Sec’y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990); see also
Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 118 (6th Cir. 1994) (“the ALJ is not
obliged to incorporate unsubstantiated complaints into his hypotheticals”).
In this case, the ALJ’s hypothetical questions were proper, because the questions
included limitations that the ALJ found credible and consistent with the ALJ’s RFC determination.

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See Stanley, 39 F.3d 115 at 118; Blacha, 927 F.2d at 231. Nevertheless, the Court agrees with
Plaintiff that if the Commissioner adopts some of Dr. Dhatreechaan’s additional restrictions on
remand, and also finds that these restrictions adversely affect his RFC, then it will be necessary for
the Commissioner to obtain additional vocational evidence based upon the new RFC.
CONCLUSION
For the reasons articulated herein, the undersigned concludes that the ALJ’s decision
is not supported by substantial evidence. Accordingly, the Commissioner’s decision will be
REVERSED and this matter is REMANDED for further factual proceedings under sentence four
of 42 U.S.C. § 405(g). On remand, the Commissioner should reevaluate Dr. Dhatreechaan’s
opinion.
Dated:

September 23, 2016

/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE

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