Tutt v. Commissioner of Social Security

Filing 17

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 1/31/17. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JAMES TUTT,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)

CASE NO. 1:16CV204
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER

Plaintiff James Tutt (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying his applications for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). ECF Dkt. #1.
In his brief on the merits, filed July 10, 2016, Plaintiff presents three issues for review, namely,
whether: (1) the administrative law judge (“ALJ”) failed to properly evaluate the opinions of
Plaintiff’s treating physicians and mental health professional; (2) the ALJ’s finding that Plaintiff
could perform light work was supported by substantial evidence; and (3) new material evidence
warrants remand. ECF Dkt. #13 at 1, 12-25. On September 22, 2016, Defendant filed a response
brief. ECF Dkt. #15. Plaintiff did not file a reply brief.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed applications for DIB and SSI on December 6, 2011. ECF Dkt. #9 (“Tr.”) at

180.2 In both applications, Plaintiff alleged disability beginning November 30, 2011. Id. These

1

On January 20, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
2

All citations to the Transcript refer to the page numbers assigned when the Transcript was filed in
the CM/ECF system rather than the page numbers assigned when the Transcript was compiled. This allows
the Court and the parties to easily reference the Transcript as the page numbers of the .PDF file containing
the Transcript correspond to the page numbers assigned when the Transcript was filed in the CM/ECF system.

claims were denied initially and upon reconsideration on October 24, 2012, and March 13, 2013,
respectively. Id. Plaintiff then requested a hearing before an ALJ, and the hearing was held on April
29, 2014. Id.
On August 11, 2014, the ALJ denied Plaintiff’s applications for DIB and SSI. Tr. at 177.
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through
December 31, 2015. Id. at 182. Continuing, the ALJ determined that Plaintiff had not engaged in
substantial gainful activity since November 30, 2011, the alleged onset date. Id. The ALJ found
that Plaintiff had the following severe impairments: degenerative joint disease of the knees;
degenerative disc disease of the lumber spine; obesity; cluster headaches; mood disorder; personality
disorder; and polysubstance abuse, in reported remission. Id. at 181-82. Following an analysis of
Plaintiff’s severe impairments, the ALJ determined that Plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of one of the listed
impairments in 20 C.F.R. Subpart P, Appendix 1. Id. at 183. After considering the record, the ALJ
found that Plaintiff had the residual functional capacity (“RFC”) to perform light work as defined
in 20 C.F.R. §§ 404.1567(b) and 416.967(b) insofar as Plaintiff could lift and/or carry up to twenty
pounds occasionally and up to ten pounds frequently, and stand and/or walk for about six hours and
sit for about six hours during an eight-hour workday. Id. at 186. Additionally, the ALJ imposed the
following restrictions: a sit/stand option allowing Plaintiff to alternate positions for five minutes
every hour; occasionally balance, bend, stoop, and climb ramps or stairs with handrails; never kneel
or crawl; avoid all exposure to hazards, such as unprotected heights and dangerous moving
machinery; perform simple, routine, tasks with simple, short instructions; make simple work-related
decisions; limited to work with few changes in the routine work setting; cannot perform fast paced
or quota-based work; cannot perform work that requires responsibility for the safety of others; and
superficial interaction with coworkers, supervisors, and the public. Id. at 186-87.
Next, the ALJ found that Plaintiff was unable to perform any past relevant work. Tr. at 196.
The ALJ stated that Plaintiff was fifty years old on the alleged disability onset date, and was thus
considered an individual closely approaching advanced age. Id. Continuing, the ALJ indicated that
Plaintiff had at least a high school education, was able to communicate in English, and that the
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transferability of job skills was not material to the determination of disability because the MedicalVocational Rules supported a finding that Plaintiff was not disabled. Id. at 196-97. Considering
Plaintiff’s age, education, work experience, and RFC, the ALJ determined that there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform. Id. at 197. In
conclusion, the ALJ found that Plaintiff had not been under a disability, as defined in the Social
Security Act, from November 30, 2011, through the date of the decision. Id. At issue it the decision
of the ALJ dated August 11, 2014, which stands as the final decision.
On January 28, 2016, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. Plaintiff filed a brief on the merits on July 10, 2016, posing the following issues to
the Court for consideration:
1.

Whether the ALJ failed to properly evaluate the opinions of [Plaintiff’s] treating
physicians and mental health professional, resulting in a decision prejudicial to the
Plaintiff and lacking the support of substantial evidence.

2.

Whether the ALJ’s finding that [Plaintiff] can perform light work is supported by
substantial evidence.

3.

Whether material new evidence warrants remand.

ECF Dkt. #13 at 1. Defendant filed a response brief on September 22, 2016. ECF Dkt. #15.
Plaintiff did not filed a reply brief.
II.

SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
After finding that Plaintiff met the insured status requirements of the Social Security Act

through December 31, 2015, and that he had not engaged in substantial gainful activity since
November 30, 2011, the alleged onset date, the ALJ determined that Plaintiff’s severe impairments
caused more that minimal limitations on his ability to perform basic work activities. Tr. at 183. In
addition to the impairments found to be severe, the ALJ explained that the record contained some
reports of stomach irritation, esophageal reflux, and a dislocated finger, however, none of these
conditions constituted a severe impairment. Id. Next the ALJ found that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. at 183-86. When making the
above finding, the ALJ specifically considered Listings 1.02, 1.04, 12.04, 12.07, 12.08, and 12.09,
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as well as the “paragraph B” and “paragraph C” criteria, and ultimately determined that Plaintiff did
not meet any of these Listings or fulfill the criteria under “paragraph B” or “paragraph C”. Id. at
184, 186.
The ALJ also considered Plaintiff’s activities of daily living, social functioning, and
concentration, persistence, or pace. Tr. at 185-86. In activities of daily living, the ALJ found that
Plaintiff had mild restrictions, citing Plaintiff’s testimony that he: cared for two dogs; had a valid
driver’s license and was able to use public transportation; and was able to prepare simple meals,
wash dishes, wash his laundry, take out the trash, and shop for groceries. Id. at 185. Further, the
ALJ noted that Plaintiff reported to fraud investigators that he was able to manage all of his personal
needs without the assistance of others. Id. Regarding social functioning, the ALJ determined that
Plaintiff had moderate difficulties, indicating that the record showed that Plaintiff: spent his time
alone and did not visit with family or friends; complained of irritability; was able to use public
transportation and shop for necessities; and reported having a “nice Thanksgiving” with his family
in 2013. Id. The ALJ further noted that a consultative examiner, as well as Plaintiff’s therapist,
described Plaintiff as cooperative. Id. Continuing, the ALJ found that Plaintiff had moderate
difficulties in concentration, persistence, or pace, stating that the record showed that Plaintiff:
complained of problems with memory and concentration; could spell “world” backwards and
perform simple mathematical equations; and had no memory deficiencies, according to therapy
notes. Id. Further, the ALJ indicated that while the foregoing therapy notes detailed Plaintiff’s
subjective reports of difficulty with attention and concentration, the notes contained no objective
findings to substantiate Plaintiff’s complaints. Id. Continuing, ALJ also indicated that Plaintiff had
experienced no episodes of decompensation of extended duration. Id.
Next, the ALJ discussed the opinions of the reviewing state agency psychological
consultants, Patricia Semmelman, Ph.D., and Karen Terry, Ph.D. Tr. at 185. The ALJ indicated that
the state agency psychological consultants found that Plaintiff experienced: no restriction in
activities of daily living; mild difficulties in maintaining social functioning; no difficulties in
maintaining concentration, persistence, or pace; and no episodes of decompensation of extended
duration. Id. The ALJ concluded that the evidence received at the hearing level showed that
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Plaintiff was more limited than suggested by the state agency psychological consultants, and
therefore afforded the opinions of Dr. Semmelman and Dr. Terry little weight. Id. at 185-86.
Continuing, the ALJ discussed the opinion of Mary Lieder, a nurse practitioner and
Plaintiff’s mental health provider. Tr. at 186. The ALJ indicated that Nurse Lieder opined that
Plaintiff experienced: marked restriction in activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; and four or more episodes of decompenation, each of extended duration. Id. According to the
ALJ, Nurse Lieder’s opinion suggested that she had little understanding of the “paragraph B” criteria
contemplated by the Listings, citing as an example the fact that there was “simply no evidence of
any episodes of decompensation of extended duration.” Id. The ALJ stated that, contrary to Nurse
Lieder’s opinion, at all times relevant to the decision Plaintiff lived in his own home, was able to
tend to his personal needs, and underwent treatment that was limited to outpatient care. Id. Further,
the ALJ indicated that while the record showed that Plaintiff experienced some difficulty in social
functioning and concentration, persistence, or pace, the objective evidence did not suggest that these
difficulties rose to marked levels. Id. Accordingly, the ALJ afforded little weight to Nurse Lieder’s
opinion. Id.
After making the above findings, that ALJ determined that Plaintiff possessed the ability
to perform light work, with the restrictions detailed above. Tr. at 186. When discussing her RFC
determination, the ALJ first indicated that Plaintiff alleged disability due to conditions that included
headaches, knee pain, and problems with memory, concentration, and comprehension. Id. at 188.
The ALJ also noted that Plaintiff testified that he had difficulty reading, experienced knee and back
pain that prevented him from lifting, and used a cane. Id. Further, the ALJ indicated that Plaintiff
acknowledged a history of marijuana and alcohol abuse, but stated he had not used either substance
in over a year, and that he could lift about twenty pounds, stand for about fifteen minutes, and sit
for about half an hour. Id. The ALJ also stated that Plaintiff testified that he: was able to prepare
simple meals, wash his laundry, take out the trash, and shop for groceries; had a driver’s license; and
was able to use public transportation. Id.

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Continuing, the ALJ noted that multiple inconsistencies appeared throughout the record. Tr.
at 188. First, that ALJ indicated that although the record showed recent allegations of illiteracy,
Plaintiff reported in multiple Disability Reports that he could read and write more than his name,
and that Plaintiff’s reading level, while low at a 3.6 grade level, was far from illiterate. Id. Next,
the ALJ stated that a prior Field Office report indicated that Plaintiff had “no difficulty reading or
understanding.” Id. Further, the ALJ indicated that Plaintiff reported to fraud investigators that he
occasionally used a computer to look up information, and, moreover, “after much prodding,”
admitted during the hearing that he completed his own pain questionnaire and work history report.
Id. The ALJ also indicated that Plaintiff reported to his therapist that he had a “nice Thanksgiving”
with his family and that records showed that he reported that he enjoyed spending time with his
grandchildren, despite having testified that he did not socialize with family or friends. Id. After the
above discussion, the ALJ stated that although these issues were not dispositive to the determination
of disability, they were considered when assessing Plaintiff’s credibility. Id.
The ALJ continued, stating that a fraud investigation report from September 2012 further
diminished Plaintiff’s credibility. Tr. at 188. Discussing the report, that ALJ stated that the fraud
investigators reported that Plaintiff: did not appear to have any obvious mental or physical
impairment; did not appear confused at any time; did not use a cane and did not display any signs
of pain or discomfort when descending or ascending the steps of his porch; was clear and concise
despite complaints of problems with memory and confusion in the record; was “very pleasant and
attentive”; and did not become agitated or uncooperative. Id. Further, the ALJ indicated that the
fraud report indicated that Plaintiff stated that he: was running his own handy man business; could
perform all of his household routines, including cooking, laundry, and bathing without the assistance
of others; and occasionally used a computer to look up information, as noted above. Id.
After discussing Plaintiff’s credibility, the ALJ looked to the medical evidence, ultimately
determining that Plaintiff’s medical impairments could reasonably be expected to cause the alleged
symptoms, however, his statements concerning the intensity, persistence, and limiting effects of
those symptoms were not entirely credible. Tr. at 188. The ALJ indicated that the record showed
that Plaintiff sought emergency treatment in November 2001 for reasons including knee pain that
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he reportedly sustained in a fall at work. Id. at 189. It was noted by the ALJ that x-rays performed
at that time showed some degenerative changes and small effusion, but no evidence of a fracture,
and Plaintiff’s prescribed treatment included pain medication and a cane. Id. Next, the ALJ stated
that Plaintiff was evaluated for complaints of headaches and bilateral knee pain in January 2012,
and, despite these complaints, Plaintiff was observed to be in no distress. Id. The ALJ indicated that
although Plaintiff displayed some bilateral knee tenderness, he had a normal gait without any report
of cane usage. Id. According to the ALJ, Plaintiff received a diagnosis of “likely” cluster
headaches, and was prescribed a steroid taper for the headaches and Vicodin for the knee pain. Id.
Continuing, the ALJ stated that later in January 2012, Plaintiff’s knees were evaluated by
James Murphy, M.D., an orthopedic surgeon, who found some tenderness with range of motion and
that Plaintiff moved all his extremities normally, and noted mild degenerative change after
reviewing Plaintiff’s diagnostic imaging. Id. The ALJ indicated that Plaintiff also received primary
care from a physician’s assistant in January 2012 for complaints of back pain and bilateral knee pain.
Id. According to the ALJ, the physician’s assistant noted: decreased range of motion in Plaintiff’s
knees, without any decrease in strength or sensation; that Plaintiff began experiencing back pain
after altering his gait due to knee pain (although it was not clear if this was the physician’s
assistant’s observation or Plaintiff’s subjective report); and no significant clinical findings regarding
Plaintiff’s back. Id. The ALJ noted that a chest x-ray performed in January 2012 revealed
unspecified multilevel degenerative changes of the spine. Id. Further, the ALJ indicated that in
February 2012, a nurse practitioner observed Plaintiff using a cane to ambulate, did not otherwise
examine Plaintiff, and prescribed neoprene knee braces and Voltaren gel at the appointment. Id.
The ALJ then stated that in February 2012, a consultative examiner noted that Plaintiff’s selfreport of pain did not appear consistent with the results of the examination. Tr. at 189. Specifically,
according to the ALJ, the consultative examiner observed that Plaintiff “did not walk in an
extremely pained manner.” Id. Continuing, the ALJ indicated that in February 2012 Plaintiff began
treatment with Michael Harris, M.D., who: described Plaintiff’s degenerative changes as moderate
based on diagnostic imaging; noted some tenderness and crepitus in the knees, right greater than left;
made no observation regarding Plaintiff’s gait or cane usage; and prescribed medications such as
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Celebrex and Percocet, in addition to a course of physical therapy. Id. The ALJ stated that Plaintiff
was referred for physical therapy in June 2012, and that upon referral Plaintiff reported that he
fractured his right knee when he fell in November 2011, despite prior diagnostic imaging having
shown no evidence of fracture. Id. Further, the ALJ noted that Plaintiff reported using a cane for
balance, but only when he left the house, that he became tired, and that he could drive and was
independent with personal care tasks. Id. The ALJ stated that a physical examination showed that
Plaintiff’s gross strength and range of motion “seemed to be within functional limits, but his
endurance and balance were impaired.” Id. at 189-90. Continuing, the ALJ indicated that Plaintiff
was observed to have an antalgic gait, however, the therapist noted that Plaintiff “was walking with
the cane on the wrong side.” Id. at 190. The ALJ noted that Plaintiff admitted at the hearing that
he could read, but he reported that he was illiterate to the physical therapist. Id. Additionally, the
ALJ stated that Plaintiff stopped attending physical therapy after only three sessions. Id.
The ALJ indicated that medical evidence from July 2012 shows that Plaintiff received
primary care for complaints of headaches and knee pain, and was given a steroid taper for the
headaches; however, the ALJ stated that Plaintiff was denied requested narcotic pain relievers
because he was already receiving narcotic pain relievers from a different doctor. Tr. at 190.
Continuing, the ALJ noted that Plaintiff returned to Dr. Harris in August 2013 for a follow-up
appointment regarding his knee pain, and Dr. Harris’ clinical findings were largely similar to his
previous examinations. Id.
Next, the ALJ discussed, at length, the aforementioned September 2012 fraud investigation
conducted against Plaintiff. Tr. at 190. The ALJ indicated that Plaintiff was unwittingly
interviewed by two detectives investigating allegations of fraud on behalf of the Ohio Disability
Determination Service. Id. Continuing, the ALJ noted that during the interview Plaintiff: presented
without any apparent physical or mental impairments; displayed no signs of pain or discomfort when
ascending or descending his porch steps; and indicated he was able to manage all of his personal
needs without the assistance of others. Id. Additionally, the ALJ explained that during the interview
Plaintiff reported operating a handy man business and, upon being asked about the business,
gestured towards a van across the street that advertised services including general labor, light
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hauling, and demolition. Id. The ALJ opined that the observations contained in this report reveal
a functional capacity far above that alleged by Plaintiff, and that there was nothing in the report to
suggest that Plaintiff was unable to work in accordance with the assessed RFC determination. Id.
After discussing the fraud report, the ALJ indicated that a March 2013 progress note
prepared by Dr. Harris showed a complaint of back pain with a duration of only four days. Tr. at
190. The ALJ noted that Plaintiff reported that he exacerbated his back while doing housework that
included painting and moving furniture, activities that suggested a greater functional capacity than
alleged during the hearing. Id. Additionally, the ALJ stated that the progress notes indicated
Plaintiff reported that the Percocet combined with a nonsteroidal anti-inflammatory pain reliever
provided good relief, but that he no longer had a prescription for Percocet. Id. The ALJ stated that
a physical examination showed some tenderness to palpation and positive straight leg raises, and that
Plaintiff was given a Toradol injection in his right knee. Id. The ALJ noted that the record shows
no significant complaints of back pain since that time, and that in August 2013, Plaintiff reported
about ten weeks of relief from the injection in his right knee. Id.
Next, the ALJ stated that Plaintiff sought primary care specifically for his headaches in
August 2013, and that this was the first significant report of this condition since July 2012. Tr. at
191. The ALJ indicated that Plaintiff reported experiencing worsening headaches for about one
month, however he denied any visual disturbances, as well as joint swelling, muscle weakness, or
arthritic pain. Id. Continuing, the ALJ noted that the objective findings from this visit show that
Plaintiff’s mental status was intact, and that Plaintiff was found to have normal strength, muscle
tone, and gait. Id. The ALJ stated that Plaintiff was diagnosed with a cluster headache and given
a steroid taper. Id. According to the ALJ, an express care progress note from the next month shows
that: Plaintiff reported, in spite of his headaches, no weakness, memory loss, fatigue, or gait
dysfunction; a physical examination revealed Plaintiff had no motor deficiencies and retained a
normal gait; and Plaintiff’s back was found to have full range of motion. Id.
The ALJ stated that Plaintiff underwent a neurological evaluation in October 2013, during
which Plaintiff reported headaches occurring six to seven times a day for the previous two months.
Tr. at 191. Continuing, the ALJ indicated that Plaintiff denied any musculoskeletal or psychiatric
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problems, and reported no neurological deficits beyond the headaches. Id. The ALJ noted that
Plaintiff was observed to have full motor strength, normal sensation, and normal gait. Id.
According to the ALJ Plaintiff received a diagnosis of a cluster headache, for which he was given
prescriptions for Verapamil, Topamax, and Percocet. Id. The ALJ stated that Plaintiff sought
emergency care several days after the neurological evaluation, complaining of an intractable
headache, for which he was given an Imitrex injection, which provided partial relief. Id. As noted
by the ALJ, it was recommended that Plaintiff be admitted to the hospital, however, he refused
admission. Id. The ALJ indicated that a follow-up progress note from November 2013 showed that
Plaintiff reported gradually worsening headaches, but the physical examination showed normal
strength, sensation, gait, and normal range of motion in Plaintiff’s back, and that Fioricet was
prescribed. Id.
Continuing, the ALJ stated that the record showed that Plaintiff received follow-up care for
his headaches “on a handful of occasions.” Tr. at 191. The ALJ indicated that while these notes
showed complaints of headaches, the notes showed no clinical finding of any neurological defects
and Plaintiff’s treating neurologist made at least two comments suggesting that his symptoms were
not as severe as alleged. Id. Additionally, the ALJ cited a December 2013 progress note indicating
that Plaintiff was exhibiting drug-seeking behavior. Further, the ALJ points to the most recent
progress note, prepared in March 2014, indicating that Plaintiff was “embellishing the pain.” Id.
The ALJ stated that Plaintiff returned to Dr. Harris for a follow-up appointment regarding
his knees, and, although Plaintiff continued to report knee pain, he also continued to perform “odd
jobs.” Tr. at 191. Continuing, the ALJ indicated that while Dr. Harris noted crepitance when testing
the range of motion of Plaintiff’s right knee, no obvious effusion was observed and the range of
motion was good. Id. The ALJ stated that Dr. Harris administered another therapeutic injection,
and noted that the records showed limited complaints regarding Plaintiff’s right knee since
November 2013. Id. Further, the ALJ indicated that recent diagnostic imaging showed some mild
osteophytic spurring consistent with degenerative disc disease, as well as some joint space
narrowing of the knees, right worse than left, but, nevertheless, Plaintiff was observed to have a
normal gait as recently as March 2014. Id.
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Next, the ALJ stated that although Plaintiff did not specifically allege obesity as an
impairment, he had a Body Mass Index that placed him slightly over what was considered obese
according to the Clinical Guidelines. Tr. at 192. The ALJ stated that the record showed no
consistent findings of gait impairment, routine findings of full strength, and that fraud investigators
noted that Plaintiff had no apparent physical impairment and was able to walk up and down the steps
to his porch without difficulty. Additionally, the ALJ stated that she considered the exacerbation
of Plaintiff’s impairments caused by his obesity when making the RFC finding, and determined that
his obesity would have little, if any, impact on the other impairments. Id.
Regarding Plaintiff’s mental impairments, the ALJ indicated that Plaintiff had an admitted
history of drug use dating back to the 1980s, and the record showed no evidence of any other
significant mental impairments until after Plaintiff’s alleged onset date. Tr. at 192. The ALJ noted
that although the record showed some subjective complaints of memory problems in January 2012,
a progress note from February 2012 showed that Plaintiff denied any psychiatric symptoms,
including memory loss, inattention, and depression. Id. Continuing, the ALJ indicated that Plaintiff
was evaluated by Deborah Koricke, Ph.D., a psychological consultative examiner in February 2012,
and that during the evaluation Plaintiff reported: difficulty getting along with others; difficulty
functioning due to pain; the ability to perform personal care tasks, clean, and prepare meals, despite
daily marijuana use; and no history of inpatient or outpatient mental health treatment. Id. The ALJ
noted that despite Plaintiff’s assertion that he had difficulty getting along with others, Dr. Koricke
indicated that Plaintiff was “sufficiently pleasant in his demeanor” during the evaluation. Id.
Further, the ALJ stated that while Dr. Koricke noted that Plaintiff was a “very poor historian,” she
could not tell if this was due to a genuine memory issue or if it was intentional. Id. The ALJ stated
that Plaintiff was able to spell the word “world” forwards and backwards, and solve simple
mathematical equations; however, the ALJ also noted that Plaintiff refused to attempt certain tasks,
which made it difficult to determine Plaintiff’s actual abilities. Id. Continuing, the ALJ assessed
a diagnosis including: personality disorder; polysubstance abuse, in partial remission; and a global
assessment of functioning (“GAF”) score of fifty-nine, which was indicative of moderate difficulty
in social, occupational, or school functioning. Id. The ALJ noted that the GAF score was not
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particularly helpful as it was a snapshot based on a single evaluation, rather than a longitudinal
treatment history. Id.
The ALJ indicated that one month after his evaluation with Dr. Koricke, during which
Plaintiff reported daily marijuana use, Plaintiff reported to Dr. Harris that he stopped using drugs
in 1997. Tr. at 192. According to the ALJ, Plaintiff was “very upfront” about his drug history,
indicating that he was not using drugs at that time and that he spoke to addicts about addition. Id.
The ALJ noted that Plaintiff continued to deny and significant psychological symptoms at this time.
Id.
Next, the ALJ stated that Plaintiff returned to Dr. Koricke in May 2012 for additional testing.
Tr. at 193. The ALJ indicated that testing showed an I.Q. of sixty-six, Plaintiff’s memory “was less
than 99.9% of the population,” and that Plaintiff had “very limited” concentration. Id. According
to the ALJ, Dr. Koricke suggested that these mental deficits were manifestations of Plaintiff’s
history of drug usage. Id. However, the ALJ stated that the record as a whole suggested greater
mental functioning than Plaintiff demonstrated during testing with Dr. Koricke and cited: multiple
progress notes showing no evidence of psychological impairment; the fraud investigation showing
that Plaintiff had no obvious mental impairments, during which Plaintiff did not appear to be
nervous or confused at any time; Plaintiff’s discussion of his handy man business and statements
indicating that he rented apartment space to tenants to help pay his mortgage; the fact that Plaintiff
did not appear to be in any discomfort, and was “very pleasant” and attentive when questioned by
the fraud investigators; Plaintiff’s indication that he was able to manage all of his personal needs
without the assistance of others; and his occasional use of a computer to look up information. Id.
Accordingly, the ALJ did not find the results of Dr. Koricke’s evaluation persuasive. Id.
The ALJ indicated that Plaintiff sought emergency treatment for symptoms suggestive of
possible depression in December 2012. Tr. at 193. Continuing, the ALJ stated that Plaintiff
appeared agitated and upset, and that the attending physician said that she would not see Plaintiff
again, instead recommending that he be seen by a male provider. Id. The ALJ indicated that a
mental health assessment performed a couple of weeks later showed that Plaintiff reported
depression, anger, mood swings, and multiple social stressors, but, nevertheless, April Priestly, a
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social worker, found that Plaintiff had good recent and remote memory. Id. Further, the ALJ noted
that Ms. Priestly indicated that Plaintiff was agitated, yet still described Plaintiff as displaying: good
insight and judgment; sustained attention and concentration; mood disorder; and a GAF score of
sixty-one to seventy, suggestive of some difficulty in social occupation or school functioning, but
generally functioning pretty well with some meaningful interpersonal relationships. Id. The ALJ
again stated that the GAF score was not a good indicator of an individual’s ability to perform basic
mental work-related activities. Id.
The ALJ indicated that Plaintiff was evaluated by Nurse Lieder in January 2013, and that he
reported “up and down moods” and that he was easily irritable, but also indicated that he was still
running his home repair business. Tr. at 193. According to the ALJ, Nurse Lieder noted that
Plaintiff appeared depressed and easily distracted, however, she found that Plaintiff: was
cooperative; had good recent and remote memory; presented with mood disorder; and displayed a
GAF score of forty-one to fifty. Id. The ALJ stated that Nurse Lieder’s own clinical findings did
not support the “implied level of symptom severity.” Id. Continuing, the ALJ indicated that
Plaintiff had visited approximately once a month with Nurse Lieder since January 2013 for followup appointments regarding his mental impairments, and that Plaintiff subjective complaints largely
revolved around financial stressors and difficulties related to his relationships with his daughter and
siblings. Id. The ALJ stated that Nurse Lieder’s mental status examinations routinely noted that
Plaintiff was cooperative and without any memory deficits, and that there was no objective evidence
to determine the severity of Plaintiff’s reports of difficulties related to attention and concentration.
Id. at 194. According to the ALJ, Nurse Lieder’s progress notes showed no clinical findings
suggesting that Plaintiff’s mental impairments were not accommodated in the RFC finding. Id.
Next, the ALJ indicated that although the record showed inconsistent evidence regarding
Plaintiff’s history of drug use, there was no evidence that his prior drug use was material to the
outcome of the ALJ’s decision. Tr. at 194. The ALJ then summarized the objective evidence,
stating that while the objective evidence was sufficient to establish Plaintiff’s medically
determinable impairments, there was no objective evidence to suggest that Plaintiff could not work
in accordance with the assessed RFC. Id. Specifically, the ALJ noted that: despite the fact that
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plaintiff sought extensive treatment for knee pain, diagnostic imaging showing relatively mild
degenerative changes and multiple observations of normal gait; while Plaintiff received treatment
for cluster headaches, there was no clinical evidence of neurological deficits; there were few
complaints and/or clinical findings regarding Plaintiff’s degenerative disc disease; although the
record showed treatment for mental impairments beginning in December 2012, there were no
clinical findings to suggest Plaintiff’s mental impairments would prevent him from working in
accordance with the assessed RFC; the fraud investigation report resulted in numerous
contradictions between Plaintiff’s observed abilities and the limitations he alleged; and no treating
or examining physician made any clinical findings of functional limitation that were inconsistent
with the assessed RFC. Id.
The ALJ then discussed the opinion evidence. Tr. at 194. First, the ALJ looked to the
opinion of Dr. Koricke. Id. Continuing, the ALJ stated that Dr. Koricke opined that Plaintiff would
have difficulty working with others, and diminished memory and concentration; however, there was
no clinical evidence that these limitations precluded Plaintiff from working in accordance with the
assessed RFC. Id. As an example, that ALJ indicated that Plaintiff appeared cooperative on
multiple occasions, stating that Dr. Koricke noted that Plaintiff remained pleasant even when asked
to perform tests for two hours. Id. The ALJ also noted that while Dr. Koricke’s second evaluation
indicated a significant decrease in Plaintiff’s mental functioning during the three months since the
initial evaluation, the surrounding objective evidence did not reflect increase symptom severity. Id.
Additionally, the ALJ stated that the fraud investigation showed no evidence of any mental
impairments, and Plaintiff was noted to be attentive and cooperative, without any confusion, and
reported that he was able to manage all of his personal needs without any assistance. Id. The ALJ
indicated that Dr. Koricke’s opinion was entitled to some weight insofar as it established Plaintiff’s
difficulty in social functioning and concentration, persistence, or pace, but was entitled to little
weight to the extent the opinion could be considered supportive of a finding of disability. Id. at 19495.
Next, the ALJ addressed Dr. Harris’ opinion, in which he opined disabling limitations. Tr.
at 195. Specifically, the ALJ indicated that Dr. Harris opined that Plaintiff: needed to lie down or
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recline for about one hour during the workday; required “a few” five to ten minute unscheduled
breaks during the day; experienced pain and stress that would frequently interfere with Plaintiff’s
ability to perform work tasks; and would miss five or more days per month. Id. The ALJ stated that
the objective evidence did not support the severity of Dr. Harris’ prescribed limitations, noting that:
while Dr. Harris found some evidence of knee tenderness and crepitance, many examinations in the
record showed the Plaintiff retained a normal gait; Plaintiff’s prescribed treatment was limited to
conservative measures, such as medication, braces, and therapeutic injections; and the record
showed that Plaintiff was able to manage all of his personal needs without the assistance of others
and operate a business. Id. For these reasons, the ALJ found that the opinion of Dr. Harris did not
support a finding of disability. Id.
Continuing, the ALJ discussed the opinion of Dr. Kunhi Veedu, which indicated that Plaintiff
experienced five to six headaches a day and that Plaintiff was unable to work during these
headaches. Tr. at 195. Additionally, the ALJ indicates that Dr. Veedu stated that Plaintiff had
experienced recurrent headaches for the previous twenty years. Id. The ALJ stated that Dr. Veedu’s
opinion was based largely on Plaintiff subjective complaints, and that the objective evidence did not
provide a basis for the opinion. Id. In addition, the ALJ indicated that the record showed only
infrequent complaints of headaches prior to August 2013, and that Dr. Veedu’s own treatment notes
showed his concerns regarding drug-seeking behavior and symptom embellishment. Id. Further,
the ALJ noted that the record showed no clinical evidence of any significant neurological deficit.
Id. The ALJ indicated that, to the extent Dr. Veedu’s opinion was based on Plaintiff’s subjective
reporting, the record showed Plaintiff to be an unreliable historian. Id. For these reasons, the ALJ
concluded that Dr. Veedu’s opinion was entitled to little weight. Id.
The ALJ then addressed the opinion of Nurse Lieder, in which she indicated that Plaintiff’s
mental abilities were “seriously limited” and “unable to meet competitive standards” in numerous
categories relating to social functioning and the ability to perform unskilled, semi-skilled, and
skilled work. Tr. at 195. Continuing, the ALJ noted that Nurse Lieder endorsed that Plaintiff had
a history of an inability to function outside a highly supportive living arrangement for one or more
years. Id. The ALJ stated that the record did not support the level of symptom severity opined by
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Nurse Lieder, indicating that multiple notations in the record characterized Plaintiff as pleasant and
cooperative, and that the fraud investigation showed no evidence of any mental impairment, instead
describing Plaintiff as attentive and without confusion. Id. at 195-96. Further, the ALJ noted that
Plaintiff said that he ran a small business that included dealing with employees, and indicated that
he could manage all of his needs without the assistance of others. Id. at 196. Accordingly, the ALJ
afforded Nurse Lieder’s opinion little weight. Id. Additionally, for the reasons described above,
the ALJ indicated that she afforded little weight to the opinions of the state agency consulting
physicians. Id.
Following the discussion of the RFC determination, the ALJ found that Plaintiff was unable
to perform any past relevant work, was an individual closely approaching advanced age, had a high
school education and was able to communicate in English, and that the transferability of job skills
was not material to the determination of disability because the Medical-Vocational Rules supported
a finding that Plaintiff was not disabled. Id. at 196-97. Considering Plaintiff’s age, education, work
experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers
in the national economy that Plaintiff could perform. Id. at 197. In conclusion, the ALJ found that
Plaintiff had not been under a disability, as defined in the Social Security Act, from November 30,
2011, through the date of the decision. Id.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

social security benefits. These steps are:
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) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));

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4.

If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, 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) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon
v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in scope
by §205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted). Substantial evidence is defined as “more than a scintilla
of evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir.
2007). Accordingly, when substantial evidence supports the ALJ’s denial of benefits, that finding
must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ
could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of choice’
within which [an ALJ] can act without the fear of court interference.” Buxton v. Halter, 246 F.3d
762, 773 (6th Cir.2001). However, an ALJ’s failure to follow agency rules and regulations “denotes
a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon

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the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)
(internal citations omitted).
V.

LAW AND ANALYSIS
A.

Treating Physician Rule

Plaintiff asserts that the ALJ failed to properly evaluate the opinions of his treating
physicians and mental health professional, and that this failure resulted in an inaccurate RFC
finding. ECF Dkt. #13 at 12. An ALJ must give controlling weight to the opinion of a treating
source if the ALJ finds that the opinion is well-supported by medically acceptable clinical and
diagnostic techniques and not inconsistent with the other substantial evidence in the record. Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). If an ALJ decides to discount or reject
a treating physician’s opinion, he must provide “good reasons” for doing so. Social Security Rule
(“SSR”) 96-2p. The ALJ must provide 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.” Id. This allows a claimant to understand how his case is determined,
especially when he knows that his treating physician has deemed him disabled and he may therefore
“be bewildered when told by an administrative bureaucracy that [s]he is not, unless some reason for
the agency’s decision is supplied.” Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999)). Further, it “ensures that the ALJ applies the treating physician rule and permits
meaningful appellate review of the ALJ’s application of the rule.” Id. If an ALJ fails to explain why
he or she rejected or discounted the opinions and how those reasons affected the weight afforded to
the opinions, this Court must find that substantial evidence is lacking, “even where the conclusion
of the ALJ may be justified based upon the record.” Rogers, 486 F.3d at 243 (citing Wilson, 378
F.3d at 544).
The Sixth Circuit has noted that, “while it is true that a lack of compatibility with other
record evidence is germane to the weight of a treating physician’s opinion, an ALJ cannot simply
invoke the criteria set forth in the regulations if doing so would not be ‘sufficiently specific’ to meet
the goals of the ‘good reason’ rule.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 2010 WL
1725066, at *8 (6th Cir. 2010). The Sixth Circuit has held that an ALJ’s failure to identify the
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reasons for discounting opinions, “and for explaining precisely how those reasons affected the
weight” given “denotes a lack of substantial evidence, even where the conclusion of the ALJ may
be justified based upon the record.” Parks v. Social Sec. Admin., No. 09-6437, 2011 WL 867214,
at *7 (6th Cir. 2011) (quoting Rogers, 486 F.3d at 243 ). However, an ALJ need not discuss every
piece of evidence in the administrative record so long as he or she considers all of a claimant’s
medically determinable impairments and the opinion is supported by substantial evidence. See 20
C.F.R. § 404.1545(a)(2); see also Thacker v. Comm'r of Soc. Sec., 99 Fed.Appx. 661, 665 (6th Cir.
2004). Substantial evidence can be “less than a preponderance,” but must be adequate for a
reasonable mind to accept the ALJ’s conclusion. Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, 854
(6th Cir. 2010) (citation omitted).
Plaintiff claims that the ALJ erred by not analyzing the opinions of Plaintiff’s treating
physicians and medical health professional under the treating physician regulation or the secondary
regulation requiring an ALJ to identify how much weight should by given to the opinions according
to a series of factors, and that this failure was contrary to the Sixth Circuit’s opinion in Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 375-77 (6th Cir. 2013). The test presented in Gayheart states
that treating-source opinions must be given “controlling weight” if two conditions are met: (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. Id. at 376.
Additionally, the Sixth Circuit held that an ALJ should consider six factors if it is determined that
the opinion of a treating source is not entitled to controlling weight. Id. at 376. The factors are the:
length of treatment relationship and frequency of examination; nature and extent of the treatment
relationship; supportability of the opinion; consistency of the opinion with the record as a whole;
and specialization of the treating source. 20 C.F.R. § 404.1527(d); Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 660 (6th Cir. 2009).
1.

Dr. Harris’ Opinion

Dr. Harris opined that Plaintiff: needed to lie down or recline for about one hour during the
workday; required “a few” five to ten minute unscheduled breaks during the day; experienced pain
and stress that would frequently interfere with his ability to perform work tasks; and would miss five
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or more days per month. Tr. at 195. Plaintiff asserts that the ALJ violated both prongs of the
treating physician rule, claiming that Dr. Harris’ opinion: (1) should have been given controlling
weight; and (2) should have been given great weight, if not controlling weight, and the ALJ failed
to identify any weight afforded to the opinion. ECF Dkt. #13 at 14-17.
Plaintiff avers that Dr. Harris’ opinion should have been controlling weight because it was
supported by medically acceptable clinical and laboratory diagnostic techniques and was not
inconsistent with other substantial evidence in the record. Id. at 14. In support of this contention,
Plaintiff first agues that “objective evidence exists and treatment was perfectly within medical
protocol,” stating that Dr. Harris treated Plaintiff with therapy, medication, knee injections, and the
prescription of braces and a cane. Id. Additionally, Plaintiff asserts that his ability to manage his
“quite limited needs” did not equate to the ability to perform full-time work. Id. at 14-15.
Alternatively, Plaintiff claims that Dr. Harris’ opinion should have been afforded great weight, if
not controlling weight, and that the ALJ failed to identify the weight afforded to the opinion. ECF
Dkt. #13 at 15-17. Plaintiff claims that the ALJ did not properly weigh Dr. Harris’ opinion based
on the factors described in 20 C.F.R. § 404.1527(d). Id. Specifically, Plaintiff asserts that the ALJ’s
reasoning was far too generalized and failed to provide reasons that were sufficiently specific to
make clear to any subsequent reviewers the weight afforded to Dr. Harris’ opinion and the reason
for that weight. Id. at 15-16. Defendant contends that the ALJ reasonably found that Dr. Harris’
opinion was not supported by the objective medical evidence, Plaintiff’s conservative treatment
history, and/or Plaintiff’s ability to manage his day to day needs. ECF Dkt. #15 at 3. Further,
Defendant asserts that the ALJ did not equate Plaintiff’s ability to manage his day to day needs with
the ability to perform full-time work, and that the ALJ considered the factors presented in 20 C.F.R.
§ 404.1527(d). Id.
Plaintiff’s arguments are without merit as he cannot satisfy either prong of the test presented
in Gayheart ((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, 710 F.3d at 376. The ALJ found that the objective evidence did not
support the severity of Dr. Harris’ opined limitations, indicating that: there was some evidence of
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knee tenderness and crepitance; many examinations showed that Plaintiff retained normal gait;
Plaintiff was treated with conservative measures; and the record showed Plaintiff was able to
manage his own needs. Tr. at 195. Plaintiff cites to a number of pieces of medical evidence, but
provides no explanation of how any of the evidence supports the relatively extreme limitations
imposed by Dr. Harris or demonstrates that Dr. Harris’ opinion was not inconsistent with the
medical evidence. See ECF Dkt. #13 at 14.
A review of the medical evidence corroborates the ALJ’s decision. The medical evidence
presented in this case in no way supports Dr. Harris’ opinion that Plaintiff needed to lie down or
recline for about one hour during the workday, required “a few” five to ten minute unscheduled
breaks during the day, experienced pain and stress that would frequently interfere with Plaintiff’s
ability to perform work tasks; and would miss five or more days per month. Rather, the medical
evidence demonstrates that Plaintiff complained of knee pain and occasional back pain that was
treated with conservative treatment. Moreover, the record is replete with evidence giving reason
to question the severity of Plaintiff’s impairments. For example, Plaintiff was frequently seen
walking with normal gait, often without his cane. See Tr. at 462, 466, 691, 757, 902. Additionally,
Plaintiff’s physical therapist noted that Plaintiff presented with a cane, but was using the cane “on
the wrong side.” Id. at 649. In addition to evidence supporting a conclusion that Plaintiff was not
as limited as opined by Dr. Harris, Plaintiff has failed to identify a single piece of medical evidence
that supports the relatively extreme limitations contained in Dr. Harris’ opinion.
As for Plaintiff’s ability to care for himself and perform daily activities, Plaintiff claims that
the ability to manage his “limited needs” did not equate to the ability to perform full-time work.
ECF Dkt. #13 at 14. Plaintiff told fraud investigators that he had no problem handling his day to
day needs. Tr. at 378. Specifically, Plaintiff stated that he cooked, did laundry, was able to bathe,
feed, and clothe himself, and that he was able to manage all of his personal needs without the
assistance of others. Id. Moreover, Plaintiff told the fraud investigators that he operated his own
handy man business that performed services such as general labor, light hauling, and demolition.
Id. Plaintiff indicated that he currently worked by himself, but had previously hired at least two
people to work for him. Id.
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Plaintiff’s asserts that his ability to care for himself and perform daily activities did not
equate to the ability to perform full-time work, citing two Sixth Circuit cases, Lorman and Rogers.
ECF Dkt. #13 at 14-15 (citing Lorman v. Comm’r of Soc. Sec., 107 F.3d 829, 838 (6th Cir. 2015)
(“there is a significant difference between doing minimal self-sustaining household chores and
performing work 40 hours a week for 52 weeks per year. [The plaintiff’s] ability to perform some
activities on a limited basis is not substantial evidence that [his or her] symptoms are not disabling”);
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 248 (6th Cir. 2007) (the minimal daily functions of
driving, cleaning an apartment, caring for pets, laundry, reading, exercising, and watching the news
are not comparable to typical work activities). Despite his contention that he could manage his
“limited needs,” the record demonstrates that Plaintiff could manage a wide range of needs,
including all of his daily household routines, all of his personal needs, and his finances. Tr. at 37879. Moreover, Plaintiff stated that he worked as a handy man performing services such general
labor, light hauling, and demolition. Id. at 378. Plaintiff indicated that he owned a red van with the
words “Moody’s Home Improvement” printed on the side, and that he signed a driver’s license
application on July 14, 2010, affirming a declaration that he did not have a physical or mental
condition that prevented him from exercising reasonable and ordinary control of a motor vehicle.
Id. at 378-79. For these reason, the Plaintiff in the instant case can be distinguished from the
plaintiff’s in the Sixth Circuit cases he cites because Plaintiff performs a wide range of activities,
including work activity that appears to involve some degree of manual labor. Additionally, it should
be noted that the question at this stage of the proceeding is whether Dr. Harris’ opinion is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and if the opinion
is inconsistent with the other substantial evidence in the case record. Dr. Harris’ opinion imposed
relatively extreme limitations that, for the forgoing reasons, are unsupported by the evidence
presented in the record. Accordingly, Plaintiff has failed to show that Dr. Harris’ opinion was
entitled to controlling weight. See Gayheart, 710 F.3d at 376.
Plaintiff also claims that Dr. Harris’ opinion should have been given great weight, if not
controlling weight, and the ALJ failed to identify any weight afforded to the opinion. ECF Dkt. #13
at 14-17. Contrary to Plaintiff’s position, the ALJ provided sufficient consideration of the factors
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prescribed in 20 C.F.R. § 404.1527(d).3 See Tr. at195. The ALJ considered the length of the
treatment relationship and frequency of examinations, as shown by the ALJ’s thorough recitation
of the medical evidence and opinion evidence, which cites and discusses Plaintiff’s treatment under
Dr. Harris. See Tr. at 188-95. Consideration of the nature and extent of the treatment relationship
by the ALJ is demonstrated in the same manner. Id. The ALJ addressed the supportability and
consistency of the opinion with the record as a whole, as discussed above, and found that Dr. Harris’
opinion was not supported by medical evidence and was inconsistent with the record as a whole.
Id. at 195. Finally, the ALJ indicated that Dr. Harris was a pain management specialist, and acted
in this capacity when treating Plaintiff, showing that she considered the specialization of the treating
source. Id. Insofar as Plaintiff claims that the ALJ did not specify the weight afforded to Dr. Harris’
opinion, any potential error is harmless as it is clear from the ALJ’s decision that Dr. Harris’ opinion
was afforded little or no weight because it was not supported by the record. For the reasons stated
above, Plaintiff’s assertion that the ALJ violated the treating physician rule when assessing Dr.
Harris’ opinion is without merit.
2.

Dr. Veedu’s Opinion

Dr. Veedu, the treating neurologist, opined that Plaintiff experienced five to six headaches
a day and that Plaintiff was unable to work during the headaches. Tr. at 195. Plaintiff claims that
the ALJ erred in giving little weight to the opinion of Dr. Veedu. ECF Dkt. #13 at 17. Specifically,
Plaintiff argues that the ALJ impermissibly relied on the lack of objective medical evidence when
disregarding Dr. Veedu’s opinion. Id. Defendant contends that the ALJ reasonably found that Dr.
Veedu’s opinion was based largely on Plaintiff subjective complaints since there was no objective
findings to support the opinion. ECF Dkt. #15 at 7.
The ALJ reasonably discounted Dr. Veedu’s opinion. Dr. Veedu indicated that Plaintiff
suffered from five to six headaches a day, and that Plaintiff had experienced these headaches for the
previous 20 years. Tr. at 195. The ALJ reasonable determined that Dr. Veedu’s opinion was based

3

The factors are: length of treatment relationship and frequency of examination; nature and extent
of the treatment relationship; supportability of the opinion; consistency of the opinion with the record as a
whole; and specialization of the treating source. 20 C.F.R. § 404.1527(d).

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largely on Plaintiff’s subjective complaints as the record showed only infrequent complaints of
headaches until August 2013. Id. Further, the ALJ also noted that Dr. Veedu also stated that he was
concerned about Plaintiff exhibiting drug-seeking behavior and symptom embellishment. Id. As
stated above, the test presented in Gayheart states that treating-source opinions must be given
“controlling weight” if two conditions are met: (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, 710 F.3d at 376. Here, the ALJ
correctly determined that Dr. Veedu’s opinion was not supported by medically acceptable clinical
and laboratory diagnostic techniques. Accordingly, Plaintiff has failed to show that Dr. Veedu’s
opinion was entitled to controlling weight, or that the ALJ impermissibly relied on the lack of
objective medical evidence when disregarding Dr. Veedu’s opinion. See ECF Dkt. #13 at 17. To
the contrary, the ALJ properly discounted Dr. Veedu’s opinion because of the lack of objective
medical evidence. For these reasons, Plaintiff’s assertion that the ALJ violated the treating
physician rule when assessing Dr. Veedu’s opinion is without merit.
3.

Nurse Lieder’s Opinion

Nurse Lieder opined that Plaintiff’s mental abilities were “seriously limited” and “unable to
meet competitive standards” in numerous categories relating to social functioning and the ability to
perform unskilled, semi-skilled, and skilled work. Tr. at 195. The parties agree that Nurse Lieder
falls into the category of “other source,” rather than “medical source,” under 20 C.F.R. §
404.1513(d). ECF Dkt. #13 at 18, #15 at 7. Plaintiff claims that the ALJ did not consider the
following factors when assessing Nurse Lieder’s opinion: how long the source has known the
individual; how frequency the source has seen the individual; how consistent the opinion of the
source was with other evidence; how well the source explains the opinion; and whether the source
has a specialty or area of expertise related to the individual’s impairment. ECF Dkt. #13 at 18-19
(citing Social Security Ruling 06-03p; Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th Cir.
2007)). Defendant contends that the ALJ considered Nurse Lieder’s opinion and provided good
reasons for assigning the opinion little weight, namely, Nurse Lieder’s poor understanding of the

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“paragraph B” criteria and inconsistencies between her opinion and the record as a whole. Tr. at
186, 195-96.
Plaintiff’s argument is without merit. The ALJ discussed Plaintiff’s initial visit with Nurse
Lieder and the subsequent follow-up visits, as well as the opinion issued by Nurse Lieder. Tr. at
193-95. Accordingly, the ALJ considered how long Nurse Lieder had known Plaintiff and how
frequently he had visited for treatment. The ALJ also addressed how consistent Nurse Lieder’s
opinion was with other evidence, stating that the record did not support the opined level of symptom
severity based on: multiple notations characterizing Plaintiff as pleasant and cooperative; the fraud
investigation report indicating that Plaintiff showed no evidence of any mental impairment or
confusion; Plaintiff’s indication that he ran a small business and dealt with employees; and
Plaintiff’s statement that he could manage his personal needs without the assistance of others. Id.
Additionally, the ALJ considered how well Nurse Lieder explained her opinion, indicating that she
incorrectly endorsed that Plaintiff had a history of inability to function outside a highly supportive
living arrangement for one or more years. Id. Finally, the ALJ noted that Nurse Lieder had a
specialty or area of expertise related to Plaintiff’s impairment, indicating that she was a nurse
practitioner and Plaintiff’s mental health provider. Id. Despite Plaintiff’s contention that the ALJ
did not consider the above factors when assessing Nurse Lieder’s opinion, a review of the decision
shows that the ALJ sufficiently considered each factor. For the above stated reasons, Plaintiff’s
assertion that the ALJ violated the treating physician rule when assessing Nurse Lieder’s opinion
is without merit.
B.

Substantial Evidence

Plaintiff also asserts that the ALJ’s determination that Plaintiff could perform a range of light
work was in error and was not supported by substantial evidence. ECF Dkt. #13 at 19-22.
Specifically, Plaintiff asserts that his use of a cane and bilateral knee braces were not adequately
evaluated by the ALJ when she made her RFC determination. Id. at 19-20. Plaintiff claims that the
evidence in this case establishes that Plaintiff’s cane was medically necessary, and thus it should
have been considered in the RFC determination and included in the hypothetical question posed to
the vocational expert (“VE”). ECF Dkt. #13 at 22. Continuing, Plaintiff recognized that the ALJ
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was only required to pose to the VE limitations found to be credible. Id. at 21. Plaintiff then states
that the ALJ was required to either include the use of a cane in the hypothetical questions posed to
the VE, or to explain his reasons for not including the such a limitation, and her failure to do so
constitutes reversible error. Id. at 21-22. Defendant contends that the ALJ reasonably found that
Plaintiff did not require the cane when assessing his RFC. ECF Dkt. #15 at 13.
Plaintiff’s argument is without merit. As an initial matter, the ALJ cites to numerous
inconsistencies when assessing Plaintiff’s credibility, including inconsistencies regarding:
allegations of illiteracy; self-completion of his pain questionnaire and work history report;
socialization with family and friends; and the fraud investigation during which Plaintiff did not
display any obvious mental or physical impairment, was not using a cane, did not display any signs
of pain or discomfort while descending or ascending the steps of his porch, indicated that he was
working as a handy man at the time, and stated that he could perform all of his household routines
without the assistance of others. Tr. at 188. Moreover, the record is replete with evidence giving
reason to question the credibility of Plaintiff’s claim that he requires a cane to ambulate, as
discussed above. In addition to Plaintiff displaying no problem walking without a cane when
speaking to the fraud investigators, Plaintiff was frequently seen walking with normal gait, often
without his cane. See Tr. at 462, 466, 691, 757, 902.

The ALJ repeatedly addressed the

inconsistency of Plaintiff’s cane use, as well as the findings showing normal gait throughout her
discussion of the medical evidence and opinion evidence. See Tr. at 188-96. Based on Plaintiff’s
diminished credibility, the medical evidence, and the opinion evidence, it was reasonable for the
ALJ to conclude that Plaintiff did not require the cane accommodation, and thus she was not
required to include the use of a cane in her RFC finding or the question posed to the VE. For these
reasons, the ALJ’s finding that Plaintiff could perform a limited range of light work is supported by
substantial evidence, and Plaintiff’s argument is without merit.
C.

New and Material Evidence

Finally, Plaintiff asserts that new evidence, supplied by his treating sources, directly
addresses his functional capacity and would lead to a different RFC determination. ECF Dkt. #13
at 22. The new evidence to which Plaintiff refers consists of the following:
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1.

A treatment note from Dr. Harris dated October 2, 2014.

2.

An updated mental functional capacity report provided by Nurse Lieder on February
6, 2015.

3.

An MRI of Plaintiff’s right knee taken on July 13, 2015.

ECF Dkt. #13 at 22-23.
All of the allegedly new and material evidence provided by Plaintiff post-dates the ALJ’s
decision, which was issued on August 11, 2014. Tr. at 177. This court is confined to review
evidence that was available to the ALJ and to determine whether the decision of the ALJ was
supported by substantial evidence. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 478 (6th Cir. 2003).
The Sixth Circuit has held that “evidence of a subsequent deterioration or change in condition after
the administrative condition is deemed immaterial.” Id. Further, Plaintiff has failed to established
that the new evidence is material. The new evidence offered by Dr. Harris and Nurse Lieder
appears, from Plaintiff’s description, to be similar to the opinions timely offered and considered by
the ALJ. See ECF Dkt. #13 at 22. The MRI was taken nearly a year after the ALJ’s decision, and
Plaintiff has failed to demonstrate why evidence from July 2015 constitutes reason to remand the
ALJ’s August 2014 decision. See Jones, 336 F.3d at 478. Accordingly, Plaintiff has not shown that
these newly submitted pieces of evidence warrant this case being remanded.
VI.

CONCLUSION
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the

instant case in its entirety with prejudice.

Date: January 31, 2017

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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