Killebrew v. Social Security Administration, Commissioner of
Memorandum Opinion and Order: The decision of the Commissioner is AFFIRMED. Magistrate Judge Kathleen B. Burke on 2/21/2017. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL
CASE NO. 1:16CV1120
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Tonya Killebrew (“Killebrew”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying her application for
Supplemental Security Income (“SSI”). Doc. 1. This Court has jurisdiction pursuant to 42
U.S.C. § 405(g). This case is before the undersigned Magistrate Judge pursuant to the consent of
the parties. Doc. 13.
For the reasons stated below, the decision of the Commissioner is AFFIRMED.
I. Procedural History
Killebrew protectively filed an application for SSI on February 28, 2013, alleging a
disability onset date of April 4, 1992.1 Tr. 13, 176, 197. She alleged disability based on the
following: bipolar disorder, post-traumatic stress disorder (“PTSD”), and depression. Tr. 201.
After denials by the state agency initially (Tr. 90) and on reconsideration (Tr. 123), Killebrew
requested an administrative hearing. Tr. 54. A hearing was held before Administrative Law
Killebrew also filed an application for Child’s Insurance Benefits, which was denied. Tr. 13, 24. She does not
appeal that decision. Doc. 15, p. 1. The ALJ explained that the time period encompassing her claim for childhood
disability benefits ran from 1998 to 2003, and her SSI claim began to run on February 28, 2013, her application date.
Judge (“ALJ”) Peter Beekman on January 6, 2015. Tr. 30-53. In his March 23, 2015, decision
(Tr. 13-25), the ALJ determined that there were jobs in the national economy that Killebrew
could perform, i.e., she was not disabled. Tr. 23. Killebrew requested review of the ALJ’s
decision by the Appeals Council (Tr. 7) and, on March 31, 2016, the Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-3.
A. Personal and Vocational Evidence
Killebrew was born in 1980 and was 32 years old on the date her application was filed.
Tr. 176. She has a GED and had attended some college. Tr. 33. She has no past relevant work.
B. Relevant Medical Evidence2
On May 25, 2010, Killebrew underwent an initial psychiatric evaluation while
incarcerated at the Cuyahoga County Corrections Center. Tr. 378. She stated that she had been
raped the previous month, had had nightmares since then, and was unable to sleep. Tr. 378. She
also reported manic episodes and stated that she believed she was bipolar. Tr. 378. Upon exam,
she was awake, alert, oriented in all spheres, calm and cooperative, had good eye contact, had
good insight and judgment, and denied suicidal/homicidal ideation and hallucinations. Tr. 378.
She was diagnosed with PTSD; mood disorder, NOS; and polysubstance dependence (she
admitted using tobacco, THC, ecstasy, cocaine and alcohol). Tr. 378. She was prescribed
Prozac, Buspar, and Trazadone. Tr. 378.
On June 21, 2010, Killebrew discontinued taking her Trazadone because she complained
that it was administered too early—4:00 p.m.—causing her to fall asleep from that time until
Killebrew challenges the ALJ’s decision with respect to her mental impairments and the opinion evidence as it
relates to her physical impairments. As explained below, she did not receive treatment for her back impairment;
accordingly, the medical evidence described herein relates to Killebrew’s alleged mental impairments.
about 12:00 a.m., at which time she woke up. Tr. 351, 352. This caused her to be more irritable
and to get angry more easily. Tr. 351. Upon exam, she was awake, alert, oriented, calm,
cooperative, had good eye contact, and denied psychotic symptoms. Tr. 351.
On August 16, 2010, Killebrew reported returning to prison on August 10, 2010. Tr. 333.
She stated that she was “okay” and advised that, accordingly, she no longer wanted to take any
medication. Tr. 333. She still had nightmares. Tr. 333. Upon examination, she was alert and
oriented, calm and cooperative, denied psychotic symptoms, and displayed good insight and
judgment. Tr. 333. Her medications were discontinued. Tr. 333.
Killebrew was released from prison and then imprisoned again; on December 15, 2010,
she was seen by the prison nurse. Tr. 381, 326. She had been off her medications for one week
and last drank alcohol three days prior. Tr. 381. Upon exam, she exhibited appropriate speech
and behavior, had a depressed mood, showed a logical and coherent thought process, and had no
suicidal ideation or hallucinations. Tr. 381.
On January 8, 2011, Killebrew reported feeling very depressed and that she had not slept
in more than two weeks. Tr. 326. Upon exam, she was awake, alert, oriented, calm, cooperative,
had good eye contact, and denied suicidal ideation. Tr. 326. She was prescribed Prozac and
Trazadone. Tr. 326. On February 6, 2011, she again stopped taking her Trazadone. Tr. 325.
On December 14, 2012, Killebrew had been out of prison for two weeks and presented to
Mental Health Services for Homeless Persons for a mental health assessment. Tr. 511. She
reported that she spent her free time reading, going to Narcotics Anonymous meetings, and
talking to her family. Tr. 514. She was taking lithium and Prozac. Tr. 516. She reported the
following in a trauma assessment: the murder of her brother, her molestation as a child, and
being the victim of rape in her teens and 30’s. Tr. 519. She reported two prior suicide attempts,
at ages 15 and “20 something.” Tr. 519. She was diagnosed with bipolar affective disorder by
history, most recent episode depressed, and alcohol, cannabis and cocaine dependence in full
sustained remission. Tr. 524. She was assessed a Global Assessment of Functioning (“GAF”)
score of 40 to 45.3 Tr. 524.
On February 23, 2013, Killebrew reported that she had not been taking her medications
for two months and that she needed lithium. Tr. 527. She reported sleeplessness for four days
and then crashing, sadness and depression, and manic symptoms. Tr. 527. She had been in
prison three times for committing four felonies. Tr. 527. Upon examination, she was oriented,
her thought content was linear, goal-directed and optimistic, and her speech was normal. Tr.
528. She had a depressed mood, full affect, no suicidal ideation, fair concentration, concrete
abstract thinking and no observed deficits in memory. Tr. 528. She was diagnosed with bipolar
disorder, NOS, and polysubstance dependence in remission per Killebrew (stating that she had
not used drugs or alcohol for 3 years). Tr. 527, 528. She was assessed a GAF score of 50 and
prescribed lithium. Tr. 528.
On October 31, 2013, Killebrew visited Mental Health Services. Tr. 560. She reported
that she felt manic, was not getting enough sleep, was “blowing off school” and missing
appointments, and experienced sexual indiscretion and inappropriate spending. Tr. 560. She
stated that, prior to her manic episode, she had been depressed for two weeks, could not get out
of bed, and did not shower. Tr. 560. She had been off her medications. Tr. 560. She was
diagnosed with bipolar disorder, NOS, PTSD, and polysubstance dependence in partial
remission. Tr. 560. She was prescribed lithium for mood stabilization. Tr. 560.
GAF (Global Assessment of Functioning) considers psychological, social and occupational functioning on a
hypothetical continuum of mental health illnesses. See American Psychiatric Association: Diagnostic & Statistical
Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric
Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 41 and 50 indicates “serious symptoms (e.g.,
suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational,
or school functioning (e.g., few friends, unable to keep a job).” Id.
On December 5, 2013, Killebrew returned to Mental Health Services and reported feeling
“aggravated as hell” and having stress, anxiety, and difficulty falling asleep. Tr. 559. Upon
exam, she was calm and engaged, her speech was un-pressured, and her mood was congruent.
On February 6, 2014, Killebrew saw Neil Goldenberg, M.D., at Mental Health Services,
stating that she did not think her medications were working. Tr. 558. She reported that her
mood had been down the past few months, she was sleeping a lot (up to 16 hours), isolating
herself, and having suicidal thoughts. Tr. 558. She was a full-time college student living at a
halfway house. Tr. 558. On examination, she exhibited normal speech, good eye contact,
depressed mood, restricted affect, no internal stimuli, and had no present suicidal ideation. Tr.
558. Dr. Goldenberg restarted her on lithium, noting that it had been effective in the past. Tr.
On June 18, 2014, Killebrew reported that she took her medications regularly but she was
out of lithium and Prozac. Tr. 551, 555. She stated that her medications seemed to help. Tr.
On July 10, 2014, Killebrew returned to Dr. Goldenberg stating, “I need meds”; she had
been off her medications for a month. Tr. 557. She complained that lithium made her eye and
neck twitch. Tr. 557. She described high anxiety from situational stressors: her mother was
diagnosed with cancer, her landlord evicted her, and she wanted to break up with her fiancé. Tr.
557. She had difficulty falling asleep, a depressed mood, and racing thoughts. Tr. 557. Her
alcohol intake had increased to 2 to 3 beers a day and she was smoking marijuana every other
day. Tr. 557. Dr. Goldenberg assessed her with depression and anxiety in the context of
multiple stressors, that she was sleep-deprived, and noted that she reported bad reactions to
Trazadone in the past. Tr. 557. He diagnosed PTSD, bipolar NOS, and alcohol and marijuana
abuse. Tr. 557. He prescribed lithium, citalopram and Zolpidem for sleep. Tr. 557.
On September 10, 2014, Killebrew saw Dr. Goldenberg reporting that she was going to
have a nervous breakdown because her mother kicked her out of the house and she had moved
up the street to an associate’s house where the situation was very stressful (people drinking,
arguing, creating drama, causing fighting between her and her boyfriend). Tr. 556. She stated
that she beat her boyfriend up. Tr. 556. She stated that the Zolpidem did not work and that she
had been out of her medications for one month. Tr. 556. Upon exam, she was irritable and her
mood was “losing it.” Tr. 556. Dr. Goldenberg assessed that she was stressed by her living
situation and, combined with her medication withdrawal, had gotten physically violent with her
boyfriend due to jealousy. Tr. 556. He restarted her medication for mood and agitation and
discussed coping skills with her. Tr. 556.
C. Medical Opinion Evidence
1. Treating source
On November 20, 2014, Dr. Goldenberg completed a mental residual functional capacity
assessment on behalf of Killebrew. Tr. 561-563. He listed her diagnosis (PTSD, unspecified
mood disorder, and alcohol and marijuana use disorder) and her medications (aripiprazole for
mood stabilization, Citalopram for depression/PTSD, Clonazipam for anxiety, and Doxipin for
sleep). Tr. 561. He opined that Killebrew’s symptoms would interfere with her attention and
concentration 20 to 25% of an eight-hour workday; that she would likely miss several days of
work per month due to depression and anxiety; and that she would be unable to sustain an eight
hour work day five days per week because she becomes overwhelmed and flooded with
emotion easily, is highly irritable, and has a difficult time with interpersonal relations. Tr.
561-562. He assessed her as moderately to markedly limited in most work-related mental
functions. Tr. 562-563.
2. Consultative examiner
On May 15, 2013, Killebrew saw Hasan Assaf, M.D., for a physical consultative
examination. Tr. 530-538. She reported having back pain for more than 10 years but had not
seen a doctor for it and did not take pain medication. Tr. 530. She stated that the pain was worse
with standing, walking and bending. Tr. 530. She also reported not sleeping for periods of time,
having taken medication in the past to help with her sleep, but that she currently had no access to
medications. Tr. 530. She also complained of headaches for a long time but stated that she does
not take any treatment for the pain. Tr. 530. At the time of her exam she was living in a halfway
house and cooked five times per week, cleaned daily, did her laundry weekly, and showered and
dressed daily. Tr. 531.
Upon examination, Dr. Assaf observed that Killebrew had a normal gait, heel and toe
walked without difficulty, squatted fully, had a normal stance, rose from a chair without
difficulty, and could get on and off the examination table without assistance. Tr. 532. Her joints
were stable and non-tender. Tr. 532. She had no sensory deficits, a full range of motion in her
extremities except for her hips and knees, no abnormalities in her thoracic spine, and full motor
strength. Tr. 532-533, 535-538. Her height was recorded at 5 feet 9 inches and her weight at
359 pounds. Tr. 531. Dr. Assaf diagnosed Killebrew with low back pain, “probably muscular in
origin,” headache consistent with migraines, and obesity. Tr. 533. He assessed that she had
“moderate restrictions in activities involving standing, walking and bending.” Tr. 533.
3. State agency reviewers
Mental: On April 11, 2013, state agency psychologist Paul Tangeman, Ph.D., reviewed
Killebrew’s records. Tr. 85-87. Regarding Killebrew’s mental residual functional capacity
(“RFC”), Dr. Tangeman opined that she could understand and follow simple and complex
instructions, perform simple tasks that are repetitive and do not require strict production
standards, interact on an occasional and superficial basis with others, and could perform static
tasks. Tr. 85-87. On August 14, 2013, state agency psychologist Katherine Fernandez, Psy.D.,
reviewed Killebrew’s record and adopted Dr. Tangeman’s opinion. Tr. 102-104.
Physical: On May 20, 2013, state agency reviewing physician Anne Prosperi, D.O.,
reviewed Killebrew’s record, including her complaints of back pain and her morbid obesity. Tr.
84. Regarding Killebrew’s physical RFC, Dr. Prosperi opined that she was capable of
performing medium work with frequent or occasional postural activities. Tr. 84-85. On August
17, 2013, state agency physician Kourosh Golestany, M.D., reviewed Killebrew’s record and
adopted Dr. Prosperi’s opinion. Tr. 101-102.
D. Testimonial Evidence
1. Killebrew’s Testimony
Killebrew was represented by counsel and testified at the administrative hearing. Tr. 3348. She confirmed that she had been a full-time college student but had stopped attending school
in the fall of 2014. Tr. 33. She believes that she stopped because her mood disorders hindered
her; when she is manic she is “over the top, all over the place,” cannot focus, and is very
irritable. Tr. 33-34. It was “a task to get to school, and then try to ... keep up with the class and
the professors.” Tr. 34. As a result, she failed all but one class, in which she got a “C.” Tr. 34.
She attempted to go back for the spring semester but “it just didn’t happen.” Tr. 34.
Killebrew listed the medications that she takes: lithium, Klonopin as-needed, Doxapram
for sleep, and Celexa for depression. Tr. 35. She smokes about a pack of cigarettes a day and
does not use alcohol regularly, although she had a couple of drinks for the recent Christmas and
New Year holidays. Tr. 36. She stopped drinking in May 2013 after having what she felt like
was a mental breakdown in April 2013 when she was drinking and smoking marijuana “really
heavily.” Tr. 36. She has not used marijuana since that time. Tr. 36. She stated that, contrary to
a treatment note from September 2014 wherein she stated that she had been using both marijuana
and alcohol at that time, she had not been using marijuana “in 2014 at all.” Tr. 37.
When asked why she was unable to work, Killebrew explained that her attempts to work
in the past had not been “really successful.” Tr. 38. She had not been able to hold a job or
interview well. Tr. 38. The previous jobs that she had were through temporary agencies or a
friend or family member. Tr. 38. She has moods that cause her to not handle confrontation well
and she also forgets a lot of things. Tr. 38. It is hard for her to be task-oriented. Tr. 38. She
does not do well “in a subordinate situation”; “reprimands, criticism often trigger me into a
defensive mode.” Tr. 38. If she is manic, she does not sleep, so lack of sleep is not an issue for
her during those times, but when she comes down off a manic episode and has not slept and has
to handle something, she is not able to do so. Tr. 38. She gets dates, days and times mixed up,
causing her to miss appointments, and she overeats, causing her weight issues. Tr. 38. She also
has problems losing or gaining weight because she has been on medication for about four or five
years and it has caused her thyroid to get “out of whack.” Tr. 38. She has back issues and can
only stand for about 15-20 minutes. Tr. 39, 40. Walking “hurts period,” even small distances.
Tr. 39. Currently, sitting at the hearing, her pain was 0 out of 10. Tr. 39. When she walks, it is
about an 8-9/10. Tr. 39. She also has migraines that cause her to not be able to function “at all,
like I can’t be around sound. I can’t be around light. I can’t be around silence.” Tr. 39.
Everything hurts and is magnified. Tr. 39. Her migraines have subsided as the years have
passed; currently, she experiences them about 2-3 times a week. Tr. 40. Sometimes they last all
night, but, generally, they last an hour or two. Tr. 42.
When asked how long she could stand in a day, Killebrew stated that she could stand for
more than two hours a day, with breaks in between. Tr. 41. She does not believe that she could
stand for more than four hours, because when she is in pain, she has to walk. Tr. 41. When she
was not managing herself well, she would go on walks and end up on the other side of town;
during her walks she would have to sit down and rest periodically because her back hurt. Tr. 42.
Killebrew testified that her medication helps with her manic phases. Tr. 43. She still has
them, but does not have them as often or for as long. Tr. 43. She has a manic phase at least
twice a month. Tr. 43. She becomes very erratic and feels unstoppable and highly agitated. Tr.
43. She thinks she annoys people because they are always asking her if she is on her
medications. Tr. 43. “I’m forever on the phone calling people, talking fastly, making impulsive
decisions that most times get me in trouble.” Tr. 43. She does not sleep at all when she has a
manic phase. Tr. 43. If she does sleep, she sleeps for about three hours. Tr. 43. With her
prescribed lithium, these phases last from two to five days. Tr. 43. During this time she is not
able to keep appointments. Tr. 44. Her case manager will call her to facilitate a doctor’s
appointment but she does not know that she called because she does not check her messages until
days later. Tr. 44. When her manic phase ends, she crashes and gets sad and depressed. Tr. 45.
She can’t get out of bed and she feels sad, hopeless and shameful for some things she may have
done. Tr. 45. These episodes last for about two weeks. Tr. 45. Her medication does not help
her with her depressive episodes. Tr. 45.
Killebrew stated, “I’m not really good with people.” Tr. 45. She is always on guard and
she does not handle criticism well; she gets defensive because she feels like a person is trying to
start something with her or engage her. Tr. 45. She previously had difficulty working with a
supervisor or a boss. Tr. 46. “People were stealing out of my drawer and my manage[r] was
coming at me crazy. So I [physically] fought my manager.” Tr. 46. She still gets into physical
altercations but not as frequently. Tr. 46. She has a problem focusing on things; for example,
when she was in college she would find herself reading the same page about four times. Tr. 47.
It takes her days to complete household chores. Tr. 47-48.
2. Vocational Expert’s Testimony
Vocational Expert Gene Burkammer (“VE”) testified at the administrative hearing. Tr.
48-51. The ALJ asked the VE to determine whether a hypothetical individual of Killebrew’s age
and education could perform jobs in the national economy if the individual had the following
characteristics: can lift and carry 50 pounds occasionally and 25 pounds frequently; can stand,
walk and sit for six hours in an eight-hour workday; can frequently use a ramp or stairs and
occasionally use ladders, ropes or scaffolds; can frequently stoop, kneel, crouch and crawl; must
avoid high concentrations of smoke, fumes, dust and pollutants; can occasionally be around
dangerous machinery and unprotected heights; can do simple, routine tasks that are low stress,
i.e., no high-production quotas or piece rate work; must avoid work involving arbitration,
confrontation, negotiation, supervision or commercial driving; can have only superficial
interpersonal interactions with the public and coworkers; and can be around many people during
the day, but the time spent with each one should be only occasional and of short duration (no
more than five minutes). Tr. 48-49. The VE answered that such an individual could perform the
following jobs at the medium level of exertion: laundry laborer (150,000 national jobs, 6,000
Ohio jobs, 500 local jobs); order puller (180,000 national jobs, 8,000 Ohio jobs, 700 local jobs);
and, at the light level of exertion, housekeeping cleaner (500,000 national jobs, 30,000 Ohio
jobs, 2,000 local jobs). Tr. 50.
The ALJ asked the VE if his answer would change if the hypothetical individual could
stand and walk four out of eight hours. Tr. 50. The VE stated that the medium jobs identified
above would be excluded and that such an individual could perform the following, sedentary
work: addresser (100,000 national jobs, 4,000 Ohio jobs, 400 local jobs); charge account clerk
(100,000 national jobs, 4,000 Ohio jobs, 400 local jobs); and food and beverage order clerk
(120,000 national jobs, 5,000 Ohio jobs, 500 local jobs). Tr. 50-51.
Killebrew’s attorney asked the VE whether his answer would change if the individual
would have no interaction with the public. Tr. 51. The VE answered that such a restriction
would exclude all sedentary jobs. Tr. 51. Killebrew’s attorney asked the VE what his answer
would be if the hypothetical individual would be off-task 20-25% of the workday, and the VE
replied that such a limitation would preclude all work. Tr. 51. Killebrew’s attorney asked if the
VE’s answer would change if she added to the ALJ’s hypothetical a limitation that there would
be no interaction with the public or coworkers. Tr. 51. The VE stated it would be difficult to
find jobs for such an individual. Tr. 51.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. §§ 404.1520, 416.920;4 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his March 23, 2015, decision, the ALJ made the following findings:
Born on April 4, 1980, the claimant attained the age of 18 on April 3,
1998 and attained age 22 on April 3, 2002. Tr. 15.
The claimant has not engaged in substantial gainful activity since April 3,
1998, the date she attained the age of 18. Tr. 15.
The claimant has the following severe impairments: bipolar disorder,
obesity, post-traumatic stress disorder (PTSD), asthma and polysubstance
dependency disorder. Tr. 16.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 16.
The claimant has the residual functional capacity to perform a range of
medium work as defined in 20 CFR 404.1567(a) and 416.967(c). More
specifically, the claimant can lift and/or carry 50 pounds occasionally and
25 pounds frequently. The claimant can stand or walk for a total of
approximately 6 hours in an 8-hour workday and sit 6 hours in an 8-hour
workday. She can constantly push and pull, as well as operate foot
pedals. She can frequently climb ramps or stairs, occasionally climb
ladders, ropes or scaffolds and constantly balance. She can frequently
stoop, kneel, crouch and crawl. She has no manipulative, visual or
communication deficits. She should avoid high concentrations of smoke,
fumes, dust and pollutants. She should only occasionally be around
dangerous machinery and unprotected heights. She should be limited to
simple, routine tasks. The tasks should be low-stress, meaning there
should be no high rate production quotas, no piece rate work, no
confrontation, no arbitration, no negotiation, no supervision and no
commercial driving. She should only have superficial interpersonal
interaction with the public and co-workers. She may spend time around
many people during the day, but the time spent should be only
occasionally, last no longer than 5 minutes and should be for a definite
purpose. Tr. 18.
The claimant has no past relevant work. Tr. 23.
The claimant was born on April 4, 1980 and attained the age of 18 on
April 3, 1998. Tr. 23.
The claimant has at least a high school education and is able to
communicate in English. Tr. 23.
Transferability of job skills is not an issue because the claimant does not
have past relevant work. Tr. 23.
Considering the claimant’s age, education, work experience and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform. Tr. 23.
The claimant has not been under a disability, as defined in the Social
Security Act, from April 3, 1998, the date she attained the age of 18,
through the date of this decision. Tr. 24.
V. Parties’ Arguments
Killebrew objects to the ALJ’s decision on one ground: substantial evidence does not
support the ALJ’s decision to give “little” weight to the opinions of her treating source, Dr.
Goldenberg, and the consultative examiner, Dr. Assaf. Doc. 15, pp. 10-15. In response, the
Commissioner submits that the ALJ properly considered the opinions of Drs. Goldenberg and
Assaf and that his findings are supported by substantial evidence. Doc. 19, pp. 7-13.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “Substantial evidence is more than a scintilla of evidence but less
than a preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
A. The ALJ did not err when he assigned “little” weight to Dr. Goldenberg’s
Killebrew argues that the ALJ erred when he assigned “little” weight to the opinion of
Dr. Goldenberg, her treating source. Doc. 15, p. 10. Under the treating physician rule, “[a]n
ALJ must give the opinion of a treating source controlling weight if he finds the opinion well
supported by medically acceptable clinical and laboratory diagnostic techniques and not
inconsistent with the other substantial evidence in the case record.” Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2). If an ALJ decides to give a
treating source’s opinion less than controlling weight, he must give “good reasons” for doing so
that are sufficiently specific to make clear to any subsequent reviewers the weight given to the
treating physician’s opinion and the reasons for that weight. Wilson, 378 F.3d at 544. In
deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of
the treatment relationship; specialization of the physician; the supportability of the opinion; and
the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(a)-(d);
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
The ALJ considered Dr. Goldenberg’s opinion dated November 20, 2014:
[Dr. Goldenberg] noted the claimant was diagnosed with PTSD, unspecified mood
disorder, alcohol and marijuana use disorder and asthma. He further opined the claimant
would be off-task for 20-25% of an eight-hour workday and that she would be unable to
sustain an 8-hour workday, 5 days a week  because she becomes overwhelmed and
flooded with emotions easily, is highly irritable and has difficulty with interpersonal
relationships. He also noted the claimant would likely miss several days due to her
depression and anxiety, but that since she had never held down a job, this was just an
estimate. Overall, he found the claimant had marked mental limitations in her capacity to
sustain activity over a normal workday/workweek (Exhibit 9F). I assign little weight to
the opinion of Dr. Goldenberg as it is not supported by the medical evidence of record.
More specifically, the claimant showed improvement with mental health treatment and
medication. Additionally, Dr. Goldenberg noted that his opinion regarding the claimant’s
need to miss work was only an estimate and his opinion is not supported by the evidence
Killebrew contends that the record does not demonstrate that her mental health improved
with treatment, as the ALJ found. Doc. 15, p. 12. She argues that, earlier in his decision, the
ALJ cited to two documents in the record—“Exhibit 8F” and “Exhibit 4F, p. 70”—in support of
his statement that Killebrew’s symptoms improve with medication and treatment, but that these
records do not support his conclusion. Doc. 15, pp. 12-13 (citing Tr. 21). As an initial matter,
the Court notes that “Exhibit 8F” contains treatment notes from Mental Health Services and Dr.
Goldenberg, which, as detailed below, support the ALJ’s decision. And Killebrew ignores the
previous page in the ALJ’s decision, with citations to the record, wherein he details her treatment
history beginning in January 2011 and ending in September 2014, just prior to Dr. Goldenberg’s
decision. Tr. 20. He observes that this evidence shows that, twice, Killebrew herself reported
that her medications helped her; that she did not always take her medications; and that she had,
throughout this time, only presented intermittently for treatment. Tr. 20. The ALJ also
explained that, prior to 2011, Killebrew refused mental health treatment while incarcerated and
routinely failed to take her medication. Tr. 21. Indeed, all but one of Killebrew’s visits to Dr.
Goldenberg show her having been off her medication for some time. See, e.g., Tr. 560 (October
2013, out of medication “for awhile”); “Tr. 558 (February 2014, out of medication for one
month); Tr. 551 (June 2014, out of medication); Tr. 557 (July 2014, out of medication for one
month); Tr. 556 (September 2014, out of medication for one month). The ALJ commented that
Dr. Goldenberg remarked in September 2014 that Killebrew’s symptoms (increased irritability
and insomnia and her beating up her boyfriend) were caused by her stressors (chaotic living
situation) and her “med withdrawal”; even Dr. Goldenberg opined that Killebrew’s physical
violence was caused, in part, by her not having taken her medication. Tr. 20, 556. Finally, the
ALJ noted that Killebrew reported, in June 2014 when she ran out of her medication, that she
had had no major treatment episodes since her prior appointment months before. Tr. 20. In
other words, the record supports the ALJ’s conclusion that Dr. Goldenberg’s opinion be given
little weight because it is unsupported by the record, i.e., Killebrew improved with treatment and
medication. Dr. Goldenberg principally saw Killebrew when she had been off her medication;
he opined that Killebrew’s symptoms were exacerbated when off medication; and Killebrew
herself, repeatedly, reported that her medication improved her symptoms. This is substantial
evidence that supports the ALJ’s decision and his decision, therefore, must be affirmed. See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (A court “defer[s] to an
agency’s decision ‘even if there is substantial evidence in the record that would have supported
an opposite conclusion, so long as substantial evidence supports the conclusion reached by the
B. The ALJ did not err when he assigned “little” weight to Dr. Assaf’s opinion
Killebrew argues that the ALJ erred when he gave “little” weight to the opinion of Dr.
Assaf, the consultative examiner who assessed Killebrew’s physical functioning. Doc. 15, p. 14.
She concedes that the ALJ’s reasons for giving little weight to Dr. Assaf’s opinion—the record
showed normal examination findings, lack of objective evidence of a back impairment, and lack
of medication for back pain—are “correct,” but submits that ALJ “ignores the fact that Dr. Assaf
gave multiple diagnoses and may have based his limitations upon Ms. Killebrew’s obesity.”
Doc. 15, pp. 14-15. She then goes on to identify a treatment note in the record wherein
Killebrew’s BMI was calculated. Doc. 15, p. 15. She concludes, “Given Ms. Killebrew’s level
of obesity, Dr. Assaf reasonably limited [her] standing, walking and bending capabilities.” Doc.
15, p. 15.
The ALJ did not err when he did not consider that Dr. Assaf “may have based his
limitations” on Killebrew’s obesity. Killebrew cites no legal authority stating that an ALJ must
consider possible, unmentioned reasons why a consultative examiner assessed certain limitations.
The ALJ considered Killebrew’s obesity and the effect it had on her alleged back pain (Tr. 21);
Killebrew does not object to this portion of the ALJ’s decision. Her argument that the ALJ erred
when he considered Dr. Assaf’s opinion is without merit.
For the reasons stated above, the decision of the Commissioner is AFFIRMED.
Dated: February 21, 2017
Kathleen B. Burke
United States Magistrate Judge
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