Thomas v. Commissioner of Social Security

Filing 22

Memorandum Opinion and Order that the Court finds the decision of the Commissioner supported by substantial evidence. Accordingly, the decision is AFFIRMED and judgment is entered in favor of the defendant. (Related Document 1 ). Signed by Magistrate Judge Greg White on 5/27/2015. (S,SR)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SHERRY A. THOMAS,

)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security )
)
Defendant.
)

CASE NO. 1:14-cv-01385

MAGISTRATE JUDGE GREG WHITE

MEMORANDUM OPINION & ORDER

Plaintiff Sherry A. Thomas (“Thomas”) challenges the final decision of the Acting
Commissioner of Social Security, Carolyn W. Colvin (“Commissioner”), denying her claim for a
Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security
Income (“SSI”) under Title(s) II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 416(i),
423, 1381 et seq. This matter is before the Court pursuant to 42 U.S.C. § 405(g) and the consent
of the parties entered under the authority of 28 U.S.C. § 636(c)(2).
For the reasons set forth below, the final decision of the Commissioner is AFFIRMED.
I. Procedural History
On January 14, 2011, Thomas filed an application for POD, DIB, and SSI, alleging a

disability onset date of December 31, 2008. (Tr. 11.) Her application was denied both initially
and upon reconsideration. Thomas timely requested an administrative hearing.
On November 1, 2012, an Administrative Law Judge (“ALJ”) held a hearing during
which Thomas, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr.
11.) On January 10, 2013, the ALJ found Thomas was able to perform a significant number of
jobs in the national economy and, therefore, was not disabled. (Tr. 21-22.) The ALJ’s decision
became final when the Appeals Council denied further review.
II. Evidence
Personal and Vocational Evidence
Age thirty-eight (38) at the time of her administrative hearing, Thomas is a “younger”
person under social security regulations. See 20 C.F.R. § 404.1563(c) & 416.963(c). (Tr. 21.)
Thomas has a high school education and past relevant work as a dancer. (Tr. 21.)
III. Standard for Disability
In order to establish entitlement to DIB under the Act, a claimant must be insured at the
time of disability and must prove an inability to engage “in substantial gainful activity by reason
of any medically determinable physical or mental impairment,” or combination of impairments,
that can be expected to “result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months.” 20 C.F.R. §§ 404.130, 404.315 and 404.1505(a).1
1

The entire process entails a five-step analysis as follows: First, the claimant must not be
engaged in “substantial gainful activity.” Second, the claimant must suffer from a “severe
impairment.” A “severe impairment” is one which “significantly limits ... physical or mental
ability to do basic work activities.” Third, if the claimant is not performing substantial gainful
activity, has a severe impairment that is expected to last for at least twelve months, and the
impairment, or combination of impairments, meets a required listing under 20 C.F.R. § 404,
Subpt. P, App. 1, the claimant is presumed to be disabled regardless of age, education or work
2

A claimant is entitled to a POD only if: (1) she had a disability; (2) she was insured when
she became disabled; and (3) she filed while she was disabled or within twelve months of the
date the disability ended. 42 U.S.C. § 416(i)(2)(E); 20 C.F.R. § 404.320.
Thomas was insured on her alleged disability onset date, December 31, 2008 and
remained insured through June 30, 2015. (Tr. 11.) Therefore, in order to be entitled to POD and
DIB, Thomas must establish a continuous twelve month period of disability commencing
between these dates. Any discontinuity in the twelve month period precludes an entitlement to
benefits. See Mullis v. Bowen, 861 F.2d 991, 994 (6th Cir. 1988); Henry v. Gardner, 381 F. 2d
191, 195 (6th Cir. 1967).
A disabled claimant may also be entitled to receive SSI benefits. 20 C.F.R. § 416.905;
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). To receive SSI benefits, a
claimant must meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
416.1201.
IV. Summary of Commissioner’s Decision
The ALJ found Thomas established medically determinable, severe impairments, due to
depression, anxiety disorder, learning disorder, and asthma. (Tr. 13.) However, her
impairments, either singularly or in combination, did not meet or equal one listed in 20 C.F.R. Pt.
404, Subpt. P, App. 1. (Tr. 14.) Thomas was found incapable of performing her past relevant
work, but was determined to have a Residual Functional Capacity (“RFC”) for the full range of

experience. 20 C.F.R. §§ 404.1520(d) and 416.920(d)(2000). Fourth, if the claimant’s
impairment does not prevent the performance of past relevant work, the claimant is not
disabled. For the fifth and final step, even though the claimant’s impairment does prevent
performance of past relevant work, if other work exists in the national economy that can be
performed, the claimant is not disabled. Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990).
3

work at all extertional levels with some added non-exertional limitations. (Tr. 16, 21.) The ALJ
then used the Medical Vocational Guidelines (“the grid”) as a framework and VE testimony to
determine that Thomas was not disabled. (Tr. 21-22.)
V. Standard of Review
This Court’s review is limited to determining whether there is substantial evidence in the
record to support the ALJ’s findings of fact and whether the correct legal standards were applied.
See Elam v. Comm’r of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003) (“decision must be affirmed
if the administrative law judge’s findings and inferences are reasonably drawn from the record or
supported by substantial evidence, even if that evidence could support a contrary decision.”);
Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983). Substantial evidence has been
defined as “[e]vidence which a reasoning mind would accept as sufficient to support a particular
conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than
a preponderance.” Laws v. Celebrezze, 368 F.2d 640, 642 (4th Cir. 1966); see also Richardson v.
Perales, 402 U.S. 389 (1971).
The findings of the Commissioner are not subject to reversal merely because there exists in
the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762,
772-3 (6th Cir. 2001) (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)); see also Her v.
Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) (“Even if the evidence could also
support another conclusion, the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached. See Key v. Callahan, 109 F.3d 270,
273 (6th Cir. 1997).”) This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference. Mullen, 800 F.2d at 545 (citing
4

Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
In addition to considering whether the Commissioner’s decision was supported by
substantial evidence, the Court must determine whether proper legal standards were applied.
Failure of the Commissioner to apply the correct legal standards as promulgated by the
regulations is grounds for reversal. See, e.g.,White v. Comm’r of Soc. Sec., 572 F.3d 272, 281 (6th
Cir. 2009); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2006) (“Even if supported
by substantial evidence, however, 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.”)
Finally, a district court cannot uphold an ALJ’s decision, even if there “is enough evidence
in the record to support the decision, [where] the reasons given by the trier of fact do not build an
accurate and logical bridge between the evidence and the result.” Fleischer v. Astrue, 774 F.
Supp. 2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir.1996);
accord Shrader v. Astrue, 2012 WL 5383120 (E.D. Mich. Nov. 1, 2012) (“If relevant evidence is
not mentioned, the Court cannot determine if it was discounted or merely overlooked.”);
McHugh v. Astrue, 2011 WL 6130824 (S.D. Ohio Nov. 15, 2011); Gilliam v. Astrue, 2010 WL
2837260 (E.D. Tenn. July 19, 2010); Hook v. Astrue, 2010 WL 2929562 (N.D. Ohio July 9,
2010).
VI. Analysis
Listing 12.05
In her first assignment of error, Thomas argues that the ALJ’s finding at Step Three, that
she did not meet Listing 12.05(C), was unsupported by substantial evidence. (ECF No. 17 at 85

14.)
At Step Three of the sequential evaluation, the burden of proof for establishing that an
impairment meets or equals the requirements of a listing rests squarely with the claimant. See
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). To meet a listed impairment, a claimant must
satisfy all of the criteria in the listing. See Roby v. Comm’r of Soc. Sec., 48 Fed. Appx. 532, 536
(6th Cir. 2002) (citing Hale v. Sec’y of Health & Human Servs., 816 F.2d 1078, 1083 (6th Cir.
1987)).
Listing 12.05(C), 20 C.F.R. Pt. 404, Subpt. P, App. 1, states, in pertinent part:
Mental retardation refers to significantly subaverage general intellectual
functioning with deficits in adaptive functioning initially manifested during the
developmental period; i.e., the evidence demonstrates or supports onset of the
impairment before age 22.
The required level of severity for this disorder is met when the requirements
in A, B, C or D are satisfied.
***
C. A valid verbal, performance, or full scale IQ of 60 through 70 and a physical or
other mental impairment imposing an additional and significant work-related
limitation or function;
Id.2
Under each mental retardation listing, including Listing 12.05(C), a claimant must
establish that her impairment: (1) satisfies the “diagnostic description in the introductory
paragraph and any one of the four sets of criteria.” 20 C.F.R. pt. 404, Subpt. P, App. 1, §
2

In 2013, but not until after the ALJ’s decision, the term “mental retardation” was replaced in
the Code of Federal Regulations with the term “intellectual disability.” See Burbridge v.
Comm'r of Soc. Sec., 572 Fed. App’x 412 (6th Cir. 2014). This Court will continue to use the
previous terminology in effect at the time of the decision for the sake of consistency. Notably,
the underlying requirements of the listings have not changed.
6

12.00(A) (emphasis added). If a claimant does not show that her impairment satisfies the
diagnostic description for mental retardation, then she cannot be found disabled. Foster v.
Halter, 279 F.3d 348, 354 (6th Cir. 2001); accord Cox v. Comm’r of Soc. Sec., 2012 U.S. Dist.
LEXIS 143719 (E.D. Tenn. Sept. 7, 2012); Green v. Astrue, 2012 U.S. Dist. LEXIS 92685 at *8
(S.D. Ohio July 5, 2012). “Plaintiff bears the burden of showing he had ‘deficits in adaptive
functioning’ before age 22.” Cox v. Comm’r of Soc. Sec., 2012 U.S. Dist. LEXIS 143719 (E.D.
Tenn. Sept. 7, 2012) (citing Foster, 279 F.3d at 354) (emphasis added).
The ALJ acknowledged that Thomas had test scores consistent with mental retardation,
specifically noting IQ scores of 58, 60, and 66. (Tr. 14.) Though the ALJ does not indicate as
much, her decision is consistent with a finding that Thomas suffered from an additional and
significant work-related limitation or function, as the ALJ found that depression, anxiety
disorder, and asthma were all severe impairments.3 (Tr. 13.)
3

Pursuant to 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.00A:
For paragraph C, we will assess the degree of functional limitation the
additional impairment(s) imposes to determine if it significantly limits your
physical or mental ability to do basic work activities, i.e., is a “severe”
impairment(s), as defined in §§ 404.1520(c) and 416.920(c)6. If the additional
impairment(s) does not cause limitations that are “severe” as defined in §§
404.1520(c) and 416.920(c), we will not find that the additional impairment(s)
imposes “an additional and significant work-related limitation of function,”
even if you are unable to do your past work because of the unique features of
that work.

An impairment that is “severe” necessarily constitutes a significant additional limitation. See,
e.g., Breitenstein v. Astrue, 2011 WL 1235018 (S.D. Ohio Jan. 6, 2011) report and
recommendation adopted sub nom. Breitenstein v. Comm’r of Soc. Sec., 2011 WL 1234902
(S.D. Ohio Mar. 30, 2011) (finding that because the ALJ’s decision itself acknowledges the
existence of additional severe impairments – stuttering and depression/anxiety – these findings
satisfy Listing 12.05(C)’s requirement of an “additional and significant work-related limitation
of function.”)
7

Nevertheless, the ALJ found that Listing for 12.05(C) was not met because the threshold
diagnostic description in the listing was not demonstrated. Id.
1.

Subaverage General Intellectual Functioning with Deficits in Adaptive
Functioning Manifested Before Age 22

Based on the above, to satisfy Listing 12.05(C), a claimant must demonstrate: (1)
subaverage general intellectual functioning with deficits in adaptive functioning initially
manifested before age 22; (2) a valid verbal, performance, or full scale IQ of 60 through 70; and,
(3) an additional and significant work-related limitation or function. See, e.g., Turner v. Comm’r
of Soc. Sec., 381 F. App’x 488, 491 (6th Cir. 2010). In this case, the decisive issue centers on the
first requirement.
The ALJ, in addressing whether Thomas had met her burden of demonstrating deficits in
adaptive functioning prior to age 22, found as follows:
[W]hile there is evidence of a learning disorder, the record as a whole does not
support a diagnosis of mental retardation, as there is proof of adaptive
functioning.
***
However, to establish a claim under listing 12.05, a claimant must show proof of
deficits in adaptive functioning initially manifested during the developmental
period (emphasis added). According to a Mental Residual Functional Capacity
report submitted on November 21, 2011, State agency psychological consultant
Leslie Rudy, Ph.D. noted that the claimant had sustained substantial gainful
employment in the past as a cashier, secretary, food prep worker and factory
worker. These jobs, Dr. Rudy stated, implied a degree of adaptive functioning
that was inconsistent with mental retardation (Ex. 4A at 7-8). The earnings
records on file confirm that the claimant engaged in steady substantial gainful
activity between 1999 and 2008, only dipping below the minimum monthly
countable earnings in 2001 and 2002 (Ex. 9D). Therefore, although the
undersigned did find proof of a severe learning disorder, the claimant’s adaptive
functioning ruled out the presence of mental retardation, mild or otherwise.
***
8

In activities of daily living, the claimant has mild restriction. The claimant is able
to perform basic chores with her boyfriend’s help. She goes grocery shopping
with her boyfriend and mother. Dr. Terry found the claimant mildly impaired in
the area of daily living (Ex. 2A at 5-9).
In social functioning, the claimant has moderate difficulties. The claimant lives
with her boyfriend (Ex. 5F), whom she has been dating for three to four years.
The claimant enjoys being with her children (Ex. 22F) Dr. Terry found the
claimant moderately impaired in social functioning. The claimant experienced
paranoia and obsession-type behavior in the past, along with conflicts with others,
but retained the ability to interact with others on an occasional basis for very brief
periods (Ex. 2A at 5-9).
With regard to concentration, persistence or pace, the claimant has moderate
difficulties. The claimant graduated from high school and was not placed in
learning disabilities classes (Ex. 5F). The claimant has a driver’s license but does
not drive because her car broke down. She learned how to take public transit and
use Dial-A-Ride. The claimant enjoys learning and went to school for medical
assisting and medical coding (Ex. 22F). She further indicated that she would like
to take a phlebotomy class or to attend college for holistic health (Ex. 18F). Dr.
Litwin noted problems with memory and concentration (Ex. 5F). Dr. Terry found
the claimant moderately impaired in concentration, persistence and pace. She
found that the claimant would likely have difficulty with very detailed
instructions. However, her thought content and processes were essentially within
normal limits, according to records, with circumstantial thoughts happening on
occasion (Ex 2A at 5-9).
(Tr. 14-15.)
Listing 12.05 does not define the phrase “adaptive functioning.” Other courts have noted,
however, that another portion of the Listings offers examples of “adaptive activities,” which
include “cleaning, shopping, cooking, taking public transportation, paying bills, maintaining a
residence, caring appropriately for your grooming and hygiene, using telephones and directories,
and using a post office.” 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.00(C)(1); see e.g., Wright v.
Astrue, 2013 U.S. Dist. LEXIS 26795 at **31-32 (S.D. Ohio Feb. 26, 2013). The Sixth Circuit
has described deficits in adaptive functioning as follows:
9

The adaptive skills prong evaluates a claimant’s effectiveness in areas such as
social skills, communication skills, and daily-living skills. Heller v. Doe, 509 U.S.
312, 329, 113 S. Ct. 2637, 125 L. Ed. 2d 257 (1993) (quoting Am. Psychiatric
Ass’n, Diagnostic and Statistical Manual of Mental Disorders, 28-29 (3d rev. ed.
1987) (“DSM-III”)). To determine the definition of mental retardation under the
SSA, it is appropriate to consult leading professional organizations’ definitions.
See 67 Fed. Reg. 20022 (2002). The American Psychiatric Association defines
adaptive-skills limitations as “[c]oncurrent deficits or impairments . . . in at least
two of the following areas: communication, self-care, home living, social/
interpersonal skills, use of community resources, self-direction, functional
academic skills, work, leisure, health, and safety.” DSM-IV-TR at 49.
Hayes v. Comm’r of Soc. Sec., 357 Fed. Appx. 672, 677 (6th Cir. 2009); accord Wright, 2013
U.S. Dist. LEXIS 26795 at **31-32; Greathouse v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS
18904 (N.D. Ohio Feb. 14, 2014).
A number of recent decisions from within this Circuit have pointed out that “[n]owhere in
the paragraph [discussing the diagnostic description] is it specified how severe such limitations
must be to qualify.” Gethin v. Colvin, 2014 WL 4104130 at *10 (W.D. Ky. Aug. 18, 2014);
Robinson v. Comm’r of Soc. Sec., 2014 U.S. Dist. LEXIS 93783 (S.D. Ohio July 10, 2014) (“The
plain language of Listing 12.05 does not identify how severe limitations must be to qualify as
‘deficits in adaptive functioning.’”) The Gethin and Robinson decisions indicate that case law
from the Sixth Circuit and other federal courts suggest that a claimant must have “relatively
significant deficits” to satisfy the Listing. Id. It seems unlikely that an individual with relatively
low IQ scores, whether falling in the range of mental retardation or borderline intellectual
functioning, would have absolutely no deficits in adaptive functioning. As such, this Court
agrees that significant deficits in adaptive functioning are required before the diagnostic criteria
can be considered satisfied.
Thomas essentially argues that her school records, which show a low grade point average
10

and poor achievement on test scores, demonstrate the requisite deficits in adaptive functioning.4
(ECF No. 17 at 10-11.) However, as noted above, functional academic skills is only one
component of what the American Psychiatric Association defines as adaptive-skills limitations.
Moreover, the Sixth Circuit “has never held that poor academic performance, in and of itself, is
sufficient to warrant a finding of onset of subaverage intellectual functioning before age
twenty-two.” Hayes, 357 Fed. App’x at 676-77; see also Peterson v. Comm’r of Soc. Sec., 552
Fed. Appx. 533, 540 (6th Cir. 2014) (“neither circumstantial evidence such as school records nor
a history of special education combined with an adult IQ score are necessarily enough to
demonstrate that a claimant had adaptive functioning deficits before age twenty-two.”); Eddy v.
Comm’r of Soc. Sec., 506 F. App’x 508, 510 (6th Cir. 2012) (holding that a claimant quitting
school after the eighth grade with a history of special education classes was “insufficient to
undermine the ALJ’s conclusion” that she did not establish deficits in adaptive functioning prior
to age twenty-two); Foster v. Halter, 279 F.3d 348, 355 (6th Cir. 2001) (“The only evidence in
the record pertaining to this issue is that Foster left school after completing ninth grade, but why
Foster did not continue her studies is unclear.”) Herein, the ALJ expressly noted that Thomas
“graduated from high school and was not placed in learning disabilities classes.” (Tr. 15.)
Admittedly, the ALJ’s discussion of the specific issue of deficits in adaptive functioning
manifested prior to age 22 could have been more thorough. However, there is no “heightened
articulation standard” in considering the listing of impairments; rather, the court considers
4

The Court does not construe Thomas’s brief to argue that her low IQ scores
themselves demonstrate deficits in adaptive functioning. (ECF No. 17 at 8-13.) To the extent
such an argument can be inferred, it is rejected. See, e.g., Golden v. Comm’r of Soc. Sec., 591
Fed. App’x 505, 506 (6th Cir. 2015) (“[claimant’s] IQ scores on their own fail to establish that
her intellectual functioning was significantly subaverage.”)
11

whether substantial evidence supports the ALJ’s findings. Bledsoe v. Barnhart, 165 F. App’x
408, 411 (6th Cir. 2006); accord Osborne v. Comm'r of Soc. Sec., 2014 U.S. Dist. LEXIS 113937
(N.D. Ohio Aug. 15, 2014); Snoke v. Astrue, 2012 U.S. Dist. LEXIS 21930, 2012 WL 568986, at
*6 (S.D. Ohio 2012). A reviewing court may, however, “look to the ALJ’s decision in its
entirety to justify the ALJ’s step-three analysis.” Osborne, 2014 U.S. Dist. LEXIS 113937 at
*22.
As noted supra, adaptive skills also refers to a claimant’s effectiveness in areas such as
social skills, communication skills, and daily-living skills. The ALJ highlighted the finding of
Leslie Rudy, Ph. D., that Thomas was able to obtain gainful employment in the past as a cashier,
secretary, and food prep worker, and factory worker. (Tr. 14.) Thomas believes the ALJ’s
reliance on this is erroneous because she ultimately concluded that the earnings from these jobs
did not result in substantial gainful activity (“SGA”). (ECF No. 17 at 11.) Thomas cites no
authority suggesting that it is improper for an ALJ to consider a claimant’s ability to engage in
employment as evidence that the claimant does not have the required adaptive deficits of social
functioning merely because the earnings did not rise to the level of SGA. Also, Thomas
concedes in her brief that while the Listing 12.05 requires evidence of adaptive deficits prior to
age 22, it is helpful to look at an individual’s functioning even after the age of 22, including the
individual’s current functioning. (ECF No. 17 at 11.)
Thomas also asserts that she struggled with interpersonal matters, paranoia, and anxiety,
and also stopped driving and relinquished care of her children to her mother. (ECF No. 17 at 1213.) By doing so, presumably, Thomas is arguing that she had significant adaptive deficits in
communication, self-care, home living, social/ interpersonal skills, use of community resources,
12

self-direction, functional academic skills, work, leisure, health, and safety. The ALJ, however,
discussed many of these issues but plainly did not find that they demonstrated significant deficits
in adaptive functioning. (Tr. 14-15.) Thomas is essentially asking this Court to reweigh the
evidence, and to find significant deficits in adaptive functioning based on an interpretation of the
evidence that differs from the ALJ. As noted by the Sixth Circuit in Barnett ex rel. D.B. v.
Comm’r of Soc. Sec., 573 Fed. App’x. 461, 463-464 (6th Cir. 2014), such an “argument enters the
forbidden field of re-weighing the evidence. We must ‘accept the agency’s factual finding[]’
when it is supported by substantial evidence, even when substantial evidence could justify a
different result.” 573 Fed. App’x at 463-464 (citations omitted).
Because the ALJ’s decision fell within the zone of substantial evidence, Thomas’s first
assignment of error is without merit.
Treating Physician
In her second assignment of error, Thomas argues that the ALJ erred in her evaluation of
the opinions of her treating psychiatrist, Praveen Abraham, D.O. (ECF No. 17 at 18.)
Under Social Security regulations, the opinion of a treating physician is entitled to
controlling weight if such opinion (1) “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and (2) “is not inconsistent with the other substantial evidence
in [the] case record.” Meece v. Barnhart, 2006 WL 2271336 at * 4 (6th Cir. Aug. 8, 2006); 20
C.F.R. § 404.1527(c)(2). “[A] finding that a treating source medical opinion . . . is inconsistent
with the other substantial evidence in the case record means only that the opinion is not entitled
to ‘controlling weight,’ not that the opinion should be rejected.” Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399 (6th Cir. 2009) (quoting Soc. Sec. Rul. 96-2p, 1996 SSR LEXIS 9 at *9); Meece,
13

2006 WL 2271336 at * 4 (Even if not entitled to controlling weight, the opinion of a treating
physician is generally entitled to more weight than other medical opinions.) Indeed, “[t]reating
source medical opinions are still entitled to deference and must be weighed using all of the
factors provided in 20 C.F.R. § 404.1527 and 416.927.” Blakley, 581 F.3d at 408.5
If the ALJ determines a treating source opinion is not entitled to controlling weight, “the
ALJ must provide ‘good reasons’ for discounting [the opinion], reasons that are ‘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.’” Rogers, 486 F.3d at 242 (quoting
Soc. Sec. Ruling 96-2p, 1996 SSR LEXIS 9 at * 5). The purpose of this requirement is two-fold.
First, a sufficiently clear explanation “‘let[s] claimants understand the disposition of their cases,’
particularly where a claimant knows that his physician has deemed him disabled and therefore
‘might be bewildered when told by an administrative bureaucracy that she is not, unless some
reason for the agency’s decision is supplied.’” Id. (quoting Wilson v. Comm’r of Soc. Sec., 378
F.3d 541, 544 (6th Cir. 2004)). Second, the explanation “ensures that the ALJ applies the treating
physician rule and permits meaningful appellate review of the ALJ’s application of the rule.”
Wilson, 378 F.3d at 544. Because of the significance of this requirement, the Sixth Circuit has
held that the failure to articulate “good reasons” for discounting a treating physician’s opinion
“denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
5

Pursuant to 20 C.F.R. § 404.1527(c)(2), when not assigning controlling weight to a treating
physician’s opinion, the Commissioner should consider the length of the relationship and
frequency of examination, the nature and extent of the treatment relationship, how
well-supported the opinion is by medical signs and laboratory findings, its consistency with the
record as a whole, the treating source’s specialization, the source’s familiarity with the Social
Security program and understanding of its evidentiary requirements, and the extent to which
the source is familiar with other information in the case record relevant to the decision.
14

based upon the record.” Rogers, 486 F.3d at 243.
Nevertheless, the opinion of a treating physician must be based on sufficient medical data,
and upon detailed clinical and diagnostic test evidence. See Harris v. Heckler, 756 F.2d 431, 435
(6th Cir. 1985); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993); Blakley, 581 F.3d at 406.
The ALJ is not bound by conclusory statements of a treating physician that a claimant is disabled,
but may reject such determinations when good reasons are identified for not accepting them.
King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1984); Duncan v. Sec’y of Health & Human Servs.,
801 F.2d 847, 855 (6th Cir. 1986); Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
According to 20 C.F.R. § 404.1527(d)(1), the Social Security Commissioner makes the
determination whether a claimant meets the statutory definition of disability. This necessarily
includes a review of all the medical findings and other evidence that support a medical source’s
statement that one is disabled. “A statement by a medical source that you are ‘disabled’ or
‘unable to work’ does not mean that we will determine that you are disabled.” Id. It is the
Commissioner who must make the final decision on the ultimate issue of disability. Duncan, 801
F.2d at 855; Harris, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954, 958 n. 1 (11th Cir.
1982).
According to Thomas, she received mental health treatment from Dr. Abraham at
Pathways for “[a]while” but could not be more precise. (Tr. 53.) Notably, on April 26, 2011, Dr.
Abraham completed a Mental Functional Capacity Assessment wherein he drew a line straight
down the form indicating that Thomas was markedly limited in all three categories (and the
within subcategories), including “understanding and memory,” “social interaction,” and
“adaptation.” (Tr. 708.) The form indicated that the aforementioned mental functional
15

limitations were expected to last twelve months or more. Id. Dr. Abraham indicated that
Thomas suffered from depression, anxiety, and sleep problems. (Tr. 709.)
On March 30, 2012, less than twelve months later, Dr. Abraham completed a medical
source statement concerning Thomas’s ability to carry out mental work-related activities. (Tr.
609-610.) Dr. Abraham found that Thomas had no limitations in her ability to understand and
remember simple instructions, to carry out simple instructions, or to make judgments on simple
work-related decisions. (Tr. 609.) He further found that Thomas had only mild limitations in her
ability to understand and remember complex instructions, to carry out complex instructions, and
to make judgments on complex work-related decisions. Id. In the area of interacting with others,
Dr. Abraham again found only mild limitations in Thomas’s ability to interact appropriately with
co-workers, supervisors, and the public. (Tr. 610.) Thomas was also only mildly limited in her
ability to respond appropriately to usual work situations and to changes in a routine work setting.
Id. Dr. Abraham indicated that no other capabilities were affected by Thomas’s impairments. Id.
In addressing these two starkly different opinions from the same treating psychiatrist, the
ALJ found as follows:
Finally, the undersigned considered the two medical source statements provided
by Praveen Abraham, D.O, who provided most of the claimant’s treatment at
Pathways. On April 26, 2011, Dr. Abraham found the claimant markedly limited
in virtually all areas (Ex. 19F). However, by March 29, 2012, he found her able to
understand, remember and carry out simple instructions and make judgments on
simple work-related decisions. He found the claimant only mildly impaired in her
abilities to understand, remember and carry out complex instructions, make
judgments on complex work-related decisions, interact with public, supervisors
and coworkers, and respond to usual work situations and changes (Ex. 1OF). The
undersigned gave Dr. Praveen’s initial assessment no weight, as there is no other
evidence on file for such marked restrictions. However, the March 2012
assessment was not only more consistent with the evidence as a whole, but
strongly suggested that the claimant responded to treatment. As noted above,
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there is evidence that she became more motivated and willing to seek out
employment over this period. For these reasons, Dr. Abraham’s March 2012
assessment received great weight.
In sum, the above residual functional capacity assessment is supported by the
treatment records, State agency medical expert opinion, and Dr. Abraham's
opinion.
(Tr. 21.)
Thomas argues that the ALJ erred because her brief analysis does not allow this Court to
conduct a meaningful review. Furthermore, Thomas asserts that the ALJ’s statement – that Dr.
Abraham’s latter opinion “strongly suggested that the claimant responded to treatment” – is
tantamount to the ALJ substituting her lay opinion for that of the doctor. (ECF No. 17 at 16.)
This Court disagrees. It is abundantly clear that the ALJ could not give great or controlling
weight to both of these conflicting opinions. Theoretically, the ALJ could have credited the
earlier 2011 opinion as an accurate portrayal of Thomas’s limitations on the day the opinion was
written, a snapshot of her limitations at that time. However, such a finding would not have
helped Thomas as the disabling limitations must last at least twelve months. While Dr. Abraham
believed the limitations he described on April 26, 2011 would last twelve months or more, he
plainly changed his mind less than twelve months later, on March 30, 2012, by drastically
reducing Thomas’s limitations.6 To discard Dr. Abraham’s 2012 opinion in favor of the 2011
opinion, as Thomas suggests, would require the ALJ to substitute her own opinion for that of Dr.
Abraham. This is precisely what an ALJ is not permitted to do.

6

While Dr. Abraham’s 2012 opinion did not expressly state that Thomas had positively
responded to treatment, the significant improvement in her limitations was certainly the opinion
of Dr. Abraham and not the ALJ. Therefore, under these circumstances, it was not
unreasonable for the ALJ to infer that Thomas had responded to treatment.
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Moreover, Thomas has not cited any law, ruling, or regulation suggesting that an ALJ
violates the treating source rule when she decides between two inconsistent opinions offered by
the same treating physician within a relatively short period of time. Where the treating doctor
offers no explanation for the inconsistency, an ALJ cannot possibly credit both opinions. In fact,
some courts have held that an ALJ may disregard all of a treating source’s inconsistent opinions.
See, e.g., Prosch v. Apfel, 201 F.3d 1010, 1013 (8th Cir. 2000) (“we have upheld an ALJ’s
decision to discount or even disregard the opinion of a treating physician ... where a treating
physician renders inconsistent opinions that undermine the credibility of such opinions.); Palomo
v. Barnhart, 154 Fed. App’x. 426, 429 (5th Cir. 2005) (finding the inconsistency in between
treating physicians’ initial assessments with later assessments provided “good cause for not
giving their testimony greater weight.”); Tiffany v. Colvin, 2014 U.S. Dist. LEXIS 67400 (W.D.
Ky. Mar. 18, 2014) (noting that the opinion of a treating source need not be given deference
where there is tension between two opinions from the same treating source); cf. Parker v. Colvin,
No. 13-7258, 2015 WL 1401770, at *4 (C.D. Cal. Mar. 25, 2015) (“Nothing in the regulations
suggests that, between two opinions from the same treating source, the factfinder must give
weight to an unsupported opinion simply because it was prepared later in the treating
relationship.”)
In sum, Thomas’s argument that the ALJ assigned “no weight” to Dr. Abraham’s opinion
is simply inaccurate. She ascribed great weight to Dr. Abraham’s March 2012 opinion which
implicitly overruled an earlier one. As such, her second assignment of error is without merit.
VII. Decision
For the foregoing reasons, the Court finds the decision of the Commissioner supported by
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substantial evidence. Accordingly, the decision is AFFIRMED and judgment is entered in favor
of the defendant.
IT IS SO ORDERED.
/s/ Greg White
U.S. Magistrate Judge
Date: May 27, 2015