Shy v. Commissioner of Social Security

Filing 23

Memorandum Opinion and Order that the decision of the Commissioner denying Shy's application for disability insurance benefits and supplemental security income is affirmed. (Related docs. # 1 , # 15 ). Signed by Magistrate Judge William H. Baughman, Jr., on 02/29/2016. (S,MD)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MELANIE DAWN SHY,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 1:14 CV 2544

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
A.

Nature of the case and proceedings
Before me1 is an action by Melanie Dawn Shy under 42 U.S.C. § 405(g) for judicial

review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and

1

ECF # 15. The parties have consented to my exercise of jurisdiction.

2

ECF # 1.

3

ECF # 11.

4

ECF # 12.

5

ECF # 7.

procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 After review of the briefs, the issues presented, and the record, it was
determined that this case can be decided without oral argument.
B.

Background facts and decision of the Administrative Law Judge (“ALJ”)
Shy, who was 49 years old at the time of the administrative hearing,10 graduated from

high school and her employment history consists of working as a janitor for Ohio State
University, and as a fast food worker at Long John Silvers.11
The ALJ, whose decision became the final decision of the Commissioner, found that
Shy had the following severe impairments: osteoarthrosis, right shoulder impingement,
affective disorder, schizoaffective disorder and posttraumatic stress disorder.12
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Shy’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567© and 416.967©, with restrictions. Specifically,
she can lift and carry no more than 50 pounds occasionally and 25 pounds
6

ECF # 13.

7

ECF # 16 (Shy’s brief); ECF # 22 (Commissioner’s brief).

8

ECF # 17 at 3-10 (Shy’s charts); ECF # 22-1 (Commissioner’s charts).

9

ECF # 17 at 1-2 (Shy’s fact sheet).

10

Transcript (“Tr.”) at 34.

11

Tr. 42 and 51.

12

Tr. at 13.
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frequently. In an eight-hour workday, she can stand and/or walk for six hours
and sit for six hours, with normal breaks. She can frequently climb ramps and
stairs, but never climb ladders, ropes or scaffolds. She can frequently balance,
stoop, kneel, crouch and crawl. She is limited to occasional reaching overhead
with the bilateral upper extremities. She is limited to non-complex tasks, such
as tasks which can be learned within 30 days. She is limited to low-stress
tasks, such as tasks that do not require high production quotas, strict time
requirements, work that is paid at a piece rate, or tasks that involve arbitration,
negotiation or confrontation. She is limited to tasks that involve superficial
interaction with co-workers and the public, such as interaction of a brief
duration and for a specific purpose. In addition, the claimant will be off task
five percent of the time.13
Based on that RFC, the ALJ found Shy capable of her past relevant work as a janitor
as it is generally performed14 but that she cannot perform her past relevant work as a janitor
as she actually performed that job because she lifted up to 50 pounds on a frequent basis,
which is beyond the medium exertional level demands. Therefore, the ALJ found Shy not
under a disability.15
C.

Issues on judicial review and decision
Shy asks for reversal of the Commissioner’s decision on the ground that it does not

have the support of substantial evidence in the administrative record. Specifically, Shy
presents the following issues for judicial review:
•

The ALJ failed to provide good/specific/supported” reasons for
discounting the opinions of the treating and examining doctors in this
case. The ALJ ‘s mental RFC is deficient as a matter of law even
assuming the least favorable opinion of record, that of the

13

Id. at 16.

14

Id. at 22.

15

Id. at 22, 23.
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nonexamining consultant, and this error is not harmless because it
undermines the vocational expert’s testimony. Similarly, the ALJ’s
physical RFC is also deficient based on improper rejection of SSA’s
examining physicians opinions, and because the ALJ never considered
the effect of plaintiff’s obesity, as required by Social Security Ruling
02-1p.16
•

The ALJ erred by failing to consider Ms. Shy’s strong work history
when determining her RFC and assessing her credibility, violating clear
Agency regulations and policy.17

For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.

Analysis
A.

Standards of review

1.

Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant

16

ECF # 16 at 10.

17

Id. at 21.
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evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.18

Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.19 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.20
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.

Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to

give more weight to opinions of treating sources than to those of non-treating sources under
appropriate circumstances.
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
18

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

19

LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
20

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-5-

objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.21
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.22
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.23 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.24
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.25 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,26 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.27 In deciding if such

21

20 C.F.R. § 404.1527(d)(2).

22

Id.

23

Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).

24

Id.

25

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
26

Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).

27

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
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supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.28
In Wilson v. Commissioner of Social Security,29 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.30 The court noted that the regulation expressly
contains a “good reasons” requirement.31 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
•

State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
case record.

•

Identify evidence supporting such finding.

•

Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.32

The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.33 It drew a distinction between a

28

Id. at 535.

29

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).

30

Id. at 544.

31

Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).

32

Id. at 546.

33

Id.
-7-

regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.34 The former confers a substantial, procedural right on
the party invoking it that cannot be set aside for harmless error.35 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
rule.36
The Sixth Circuit in Gayheart v. Commissioner of Social Security37 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.38 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,39
Blakley v. Commissioner of Social Security,40 and Hensley v. Astrue.41

34

Id.

35

Id.

36

Id.

37

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).

38

Id. at 375-76.

39

Rogers 586 F.3d at 242.

40

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).

41

Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
-8-

As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.42 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
with other substantial evidence in the administrative record.43 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Only if the ALJ decides not to give
the treating source’s opinion controlling weight will the analysis proceed to what weight the
opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii),
(3)-(6) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).44 The treating source’s non-controlling status
notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating
physician is entitled to great deference.”45
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.46 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.47 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary

42

Gayheart, 710 F.3d at 376.

43

Id.

44

Id.

45

Rogers, 486 F.3d at 242.

46

Gayheart, 710 F.3d at 376.

47

Id.
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criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,48 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
and the treatment reports.49 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.50
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.51
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.52 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not
giving those opinions controlling weight.53 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating

48

Id.

49

Id.

50

Id.

51

Id.

52

Rogers, 486 F.3d 234 at 242.

53

Blakley, 581 F.3d at 406-07.
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physician disagrees with the opinion of a non-treating physician54 or that objective medical
evidence does not support that opinion.55
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.56 The Commissioner’s post hoc arguments on judicial review are immaterial.57
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:

54

Hensley, 573 F.3d at 266-67.

55

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).

56

Blakley, 581 F.3d at 407.

57

Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,

2010).
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•

the failure to mention and consider the opinion of a treating source,58

•

the rejection or discounting of the weight of a treating source without
assigning weight,59

•

the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),60

•

the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,61

•

the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,62 and

•

the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”63

The Sixth Circuit in Blakley64 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to
support the ultimate finding.65 Specifically, Blakley concluded that “even if we were to agree

58

Blakley, 581 F.3d at 407-08.

59

Id. at 408.

60

Id.

61

Id. at 409.

62

Hensley, 573 F.3d at 266-67.

63

Friend, 375 F. App’x at 551-52.

64

Blakley, 581 F.3d 399.

65

Id. at 409-10.
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that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”66
In Cole v. Astrue,67 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
despite non-compliance.68
B.

Application of standards
This case again presents an issue as to how an allegedly treating source opinion was

evaluated and weighed.
The opinion at issue is that of Dr. Gary Wilkes, M.D., a psychiatrist. The record shows that
Wilkes saw Shy once, in July, 2013, for about fifteen minutes to evaluate whether to continue the
medication dosage prescribed by Dr. Daniel Schweid, M.D.,69 a psychiatrist who had been treating
Shy since April 8, 2013,70 and who had adjusted Shy’s medications in June of 201371 and then saw

66

Id. at 410.

67

Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).

68

Id. at 940.

69

Tr. at 501.

70

Id. at 469-99.

71

Id. at 503.
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her again on June 14, 2013.72 Exactly one week after Dr. Wilkes’ single visit with Shy, he completed
a mental functional assessment form supplied by Shy’s counsel.73
In that assessment, Dr. Wilkes opined that Shy had moderate restrictions in daily living and
social functioning, as well as marked limitations in concentration, persistence and pace, and episodes
of deterioration or decompensation.74 He further found that her work related limitations included an
inability to interact with supervisors or the public, and to respond to even routine work pressures and
changes.75
The ALJ assigned these opinions “some weight ... but not full weight,”determining that
Wilkes’ conclusions should be discounted for four reasons:
(1) he had seen Shy only once before rendering an opinion;
(2) the opinion was based on Shy’s subjective complaints;
(3) the opinions are internally inconsistent in finding a marked limitation in concentration,
persistence and pace, while also finding no more than a moderate limitation in her ability to
understand, remember and carry out simple and detailed instructions; and
(4) the opinion as to Shy’s ability to interact with others and as concerns her activities of
daily life was inconsistent with inconsistent with the evidence as a whole, particularly as the ALJ
discussed early in the opinion where he evaluated the B criteria of Listings 12.04 and 12.06.76

72

Id. at 502.

73

Id. at 489-94.

74

Id. at 491, 494.

75

Id. at 493-94.

76

Id. at 19.
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In that discussion of the B criteria, the ALJ noted that Shy had only mild restrictions in
activities of daily living, pointing specifically, with citations to the record, to her hygiene and
grooming, ability to prepare her own meals, housekeeping abilities, use of public transit, and
managing her finances.77 The ALJ specifically stated that although Dr. Wilkes’ opinion found
moderate restrictions in activities of daily living, the evidence cited by the ALJ, often from Shy’s
own testimony, plus the opinion of the state agency reviewers supported the finding that her
restriction in this area was no more than mild.78
Similarly, the ALJ reviewed in some detail Shy’s limitations as to social functioning. Here,
noted that despite Shy’s statement that she does not get along well with others, the evidence of
record shows that he is able to maintain family relationships and engage in superficial social
relationships involved in shopping and taking public transit.79 He also specifically cited to record
evidence that treating mental health professionals have described Shy as cooperative and pleasant
during office sessions.80 On that basis, and consistent with the opinions of the state agency reviewers
who opined that Shy had no more than moderate difficulties with social functioning, the ALJ
adopted that finding and rejected Dr. Wilkes’ opinion of marked limitations in this area as
“inconsistent with the claimant’s current social functioning.”81

77

Id. at 15 (citing record).

78

Id.

79

Id. (citing record).

80

Id.

81

Id.
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As Shy appears to concede,82 Dr. Wilkes, who examined Shy only once before issuing an
opinion as to her functional limitations, is not a treating source whose opinion is presumed to be
entitled to controlling weight. I recently discussed this issue at some length in Mitchell v.
Commissioner of Social Security:83
Although the precise words of the regulations make clear that a determination of
whether a source is a “treating source’ may not be reduced to simply calculating the
number of visits the claimant made to the source, courts have suggested some
guidelines in that regard.84 First, the Supreme Court in Black & Decker Disability
Plan v. Nord 85 observed in general terms that “the assumption that the opinion of a
treating physician warrants greater credit than the opinions of [other sources] may
make scant sense when, for example, the relationship between the claimant and the
treating physician has been of short duration.86 The Sixth Circuit in Helm v.
Commissioner of Social Security87 also expressed a similar observation in a slightly
different context when it noted that “it is questionable whether a physician who
examines a patient only three times over a four month period is a treating source–as
opposed to a non-treating examining source.”88 In a somewhat more definitive
statement, the Sixth Circuit in Yamin v. Commissioner of Social Security89 found that
a doctor who examined the claimant on only two occasions did not have a long-term
overview of the claimant’s condition and so was not a treating source90

82

ECF # 16 at 12. “Even accepting that Dr. Wilkes cannot be considered a ‘treating
source’ because he had only examined Ms. Shy once before he issued his opinion ....”
83

Mitchell v. Commissioner of Social Security, 2015 WL 3454743 (N.D. Ohio May
29, 2015).
84

Id. at 6

85

Black & Decker Disability Plan v. Nord, 538 U.S. 822 (2003).

86

Id. at 832.

87

Helm v. Comm’r of Soc. Sec., 405 F. App’x 997 (6th Cir. 2011).

88

Id. at 1000 n. 3.

89

Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883 (6th Cir. 2003).

90

Id.
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As I observed in Montana v. Commissioner of Social Security,91 the regulations direct that
the district court look to the accepted medical practice for the type of treatment under review in
determining whether a source is a treating source.92 Thus, where the practice in the field of
psychiatry may involve a physician personally seeing a patient only infrequently to prescribe
medications on the reports of others, such a relationship may constitute a treating relationship under
the regulatory rubric stating that the treating relationship is to be determined by the frequency of
contact required by the patient’s condition or evaluation needed in the context of the patient’s
impairment.93
That said, there is nothing to establish Dr. Wilkes as a treating source. Shy saw him only
once for a few minutes at a time when she was under the care of Dr. Schweid, for the apparent
purpose of determining whether she needed to have the dosage adjusted of the medications earlier
prescribed by Dr. Schweid. As such, there is no “ongoing treatment relationship” with Dr. Wilkes,
which is the touchstone of treating source status.
Shy further argues that although Dr. Wilkes may not be a treating source, and so entitled to
a presumption of controlling weight, he at least examined Shy and so his opinion should receive
greater weight than the opinions of the state agency reviewing sources who did not examine her.94
While as a general rule, all other things being equal, the regulations do favor greater weight for

91

Montana v. Commissioner of Social Security, 2013 WL 6903764 (N.D. Ohio Dec.
31, 2013)(Report and Recommendation adopted by district court).
92

Id. at *8 (citations omitted).

93

Id. (citations omitted).

94

ECF # 16 at 12.
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examining sources over reviewing ones,95 that regulation is not an automatic, permanent trump card
for any opinion from an examining source when considered together with an opinion from a
reviewing one. Rather, in such a situation, the ALJ may give greater weight to the opinion of the
reviewing source. 96
As I discussed in some detail in Gordon v. Commissioner of Social Security:
That said, while it is true that the opinion of an examining, non treating source is
generally entitled to more weight than that of a reviewing source, it is not true, as
Gordon seems to suggest, that it is per se so erroneous for an ALJ to give greater
weight to the opinion of a reviewing source over that given to a non-treating,
examining source.97 As the Sixth Circuit clearly teaches, any medical opinion in the
record, even that of a treating source, may be rejected completely, or assigned lesser
weight than another opinion, when the source opinion at issue is not well supported
by the medical diagnostics, or if it is inconsistent with the other evidence in the
record.98 Moreover, and of particular relevance here, an ALJ need only make any
presumption set forth in Gayheart v. Commissioner of Social Security,99 in cases
involving the opinion of a treating source.100
Simply put, an ALJ is permitted to credit the opinions of state agency reviewing
sources over that of a one-time examining source when the reviewing source
opinions are more consistent with the overall record.101 And, in making this
determination, the ALJ is under no special articulation requirement to explain in
detail the relative weights given to the non-treating examining source opinion as

95

See, 20 C.F.R. § 404.1527(c)(1).

96

Gordon v. Commissioner of Social Security, 2015 WL 1040180 (N.D. Ohio March
10, 2015).
97

Gordon, 2015 WL 1040180, at * 3 (citations omitted).

98

20 C.F.R §§ 404.1527, 416.927, Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514
(6th Cir.2010).
99

Gayheart, 710 F.3d 365.

100

Norris v. Comm’r of Soc. Sec., 461 F. App’x 433 (6th Cir. 2012).

101

Id. at 440 (citing Ealy, 594 F.3d at 514-15)
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compared to the opinions of the reviewing sources.102 As the Sixth Circuit set out in
Norris,103 “[s]o long as the ALJ’s decision adequately explains and justifies its
determination as a whole, it satisfies the necessary requirements to survive this
court’s review.”
Here, the ALJ more than adequately explained in detail and in the text of the opinion the
reasons and justification for the relative weight assigned to the opinions. The decision to assign
greater weight to the opinions of the state agency reviewers over that of the one-time examiner, Dr.
Wilkes, fully conforms to the requirements of the regulations and relevant case law and is further
supported by substantial evidence, as is set forth more fully above.
As to obesity, that the Commissioner correctly points out that there is no requirement that
the ALJ invoke that specific word as a magic talisman to provide proof that it was considered by an
ALJ.104 By crediting the reports of the agency reviewing physicians that explicitly took note of Shy’s
height and weight, the ALJ sufficiently considered Shy’s obesity in formulating the RFC.105
Further, as the Commissioner also observes, the ALJ did not err in his discounting of Shy’s
credibility.106 An ALJ’s findings as the credibility of a claimant are entitled to great deference by

102

See Gayheart, 710 F.3d at 376. Unlike as with a treating physician, “opinions from
nontreating and nonexamining sources are never assessed ‘controlling weight.’ The
Commissioner instead weighs these opinions based on the examining relationship (or lack
thereof), specialization, consistency and supportability, but only if a treating source opinion
is not deemed controlling. Other facts ‘which tend to support or contradict the opinion’ may
be considered in assessing any type of medical opinion.”
103

See Norris, 461 F. App’x 433 at 440.

104

See, ECF # 22 at 20.

105

Bledsoe v. Barnhart, 165 F. App’x 408, 412 (6th Cir. 2008)(citation omitted).

106

ECF # 22 at 21-22.
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the reviewing court,107 and will be disturbed only where the ALJ’s finding was not reasonable or
supported by substantial evidence.108
Here, Shy disputes the ALJ’s handling of her testimony concerning her work history.109 In
fact, the ALJ did not ignore Shy’s work history, but noted that she was able to work steadily for 13
years prior to the alleged onset date because she was compliant with her medications and had an
easier time working when she became familiar with her co-workers.110 The ALJ then reasonably
concluded that substantial evidence supported a finding that Shy is capable of working when she
takes her medication.111
Shy’s argument that her prior good work history should have been viewed as a reason to now
credit her complaints of a disabling impairment112 rests on an assertion that the ALJ should have
interpreted her prior work history in a different way, and not that he failed to account for it. To the
degree that the ALJ noted her good work history and interpreted it as he did was reasonable, even
if it was not as Shy would have wished.

107

Walters v. Commissioner of Social Security, 127 F.3d 525, 531 (6th Cir. 1997).

108

Jones v. Commissioner of Social Security, 336 F.3d 469, 476 (6th Cir. 2003).

109

ECF # 21-22.

110

Tr. at 21 (citing record).

111

Id.

112

ECF # 21 (“it is unlikely that someone would trade in their productive, and
lucrative, work career for the far less lucrative ‘career” of receiving disability benefits”).
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Conclusion
Substantial evidence supports the finding of the Commissioner that Shy had no
disability. The denial of Shy’s applications is affirmed.
IT IS SO ORDERED.

Dated: February 29, 2016

s/ William H. Baughman, Jr.
United States Magistrate Judge

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