Marotta v. Commissioner of Social Security Administration
Memorandum Opinion and Order affirming Commissioner's decision. Magistrate Judge James R. Knepp, II on 7/19/17. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
Case No. 1:16 CV 1169
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
MEMORANDUM OPINION AND ORDER
Plaintiff Carrie Marotta (“Plaintiff”) filed a Complaint against the Commissioner of Social
Security (“Commissioner”) seeking judicial review of the Commissioner’s decision to deny
disability insurance benefits (“DIB”) and supplemental security income (“SSI”). (Doc. 1). The
district court has jurisdiction under 42 U.S.C. §§ 1383(c) and 405(g). The parties consented to the
undersigned’s exercise of jurisdiction pursuant to 28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 14).
For the reasons stated below, the undersigned affirms the Commissioner’s decision.
Plaintiff filed for DIB and SSI in August 2012, alleging a disability onset date of June 3,
2008.1 (Tr. 219-26, 226-31). Her claims were denied initially and upon reconsideration. (Tr. 16263, 166-67, 175-77, 182-86). Plaintiff then requested a hearing before an administrative law judge
(“ALJ”). (Tr. 187-88). Plaintiff (represented by counsel) and a vocational expert (“VE”) testified
at a hearing before the ALJ on August 21, 2014. (Tr. 63-97). On September 23, 2014, the ALJ
found Plaintiff not disabled in a written decision. (Tr. 48-57). The Appeals Council denied
1. At the hearing, Plaintiff amended her alleged onset date to August 7, 2012. (Tr. 265)
Plaintiff’s request for review. (Tr. 1-3). Plaintiff then filed the instant action on May 17, 2016.
Personal Background and Testimony
Plaintiff was born in June 1971 and was 41 years old as of her alleged onset date. See Tr.
219. She had completed the twelfth grade, although through ninth grade, she was in classes for
students with learning disabilities. (Tr. 83). At the time of the hearing, Plaintiff lived with her
mother and stepfather. (Tr. 71). Her household chores included dishes and cleaning her room, but
her mother “pretty much [did] everything for [her]”. Id. She “[s]ometimes” helped with folding
laundry, and accompanied her mother grocery shopping. Id.
Plaintiff used to drive, but quit several years prior due to severe headaches. (Tr. 71-72).
She took the bus or her mother drove her places. (Tr. 72). Plaintiff used a cell phone, but not a
computer. Id. She testified to having no hobbies and belonging to no clubs or organizations. Id. In
response to a question about how Plaintiff spends a “normal day”, she replied: “I basically just
talk. You know, like I’ll call a friend or read a book, sit outside.” Id. Plaintiff saw her older sister
on occasion “when she stop[ped] over for her lunch break”, and had “[j]ust one” friend with whom
she kept in touch. (Tr. 72-73). Plaintiff previously walked for exercise, but stopped because she
“was passing out”. (Tr. 82).
2. The undersigned here summarizes only the relevant evidence. See Kennedy v. Comm’r of Soc.
Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (issues not raised in claimant’s brief waived). Plaintiff
challenges the ALJ’s treatment of her mental impairments (in relation to a consultative examiner’s
opinion). As such, the undersigned here summarizes only the medical records related to that claim.
The undersigned addresses the facts relating to Plaintiff’s sentence six remand claim within that
section of the opinion.
Plaintiff stated she thought her mental health problems were the most significant problem
preventing her from working, specifically, her “rage”. (Tr. 80-81). Plaintiff took Ritalin at age 19,
but was not taking any medication for mental health issues at the time of the hearing. Id. Plaintiff
testified she was fired from previous work for “[a]ttitude.” (Tr. 79). She described it as:
Like for instance, they would tell me what to do. I would just like blow up at them
for no reason. I’d just get like real - - I can’t explain it, like real quick, short fused,
and they didn’t - - you know, they won’t put up with that, so.
Id. She testified she “had probably two warnings” before being fired for this reason. Id. She also
testified to a “confrontation with the manager” at one job. (Tr. 80).
Plaintiff also testified to a 2006 argument with an ex-boyfriend that got physical (“I threw
something at him. He came back at me. It was back and forth and it just developed from there.”).
(Tr. 82). She was placed on probation for a year after the incident. Id.
Relevant Medical Evidence
In October 2012, Plaintiff underwent a psychological evaluation with Charles Misja, Ph.D.
(Tr. 485-90). Dr. Misja stated Plaintiff reported mood swings, a bad temper, and that “she can’t
get along with anybody.” (Tr. 485). She had a previous charge for domestic violence, but was
uncertain about whether she had been convicted. (Tr. 486). As a result, she was required to attend
an anger management course, which she completed, “but stated it didn’t help much.” Id. She also
related information about her 1989 car accident which left her in a coma for three weeks.
Id. Plaintiff reported she had never received any mental health treatment. Id. Dr. Misja noted
Plaintiff had previously worked, but was fired or quit due to anger and attitude issues. (Tr. 487)
(“She stated that either she gets fired or just quits, but her jobs almost always have a bad ending.”);
(Tr. 489) (“She stated she’s lost almost every job because of her explosive temper and inability to
get along with people.”).
Plaintiff also reported her mother does most household chores and Plaintiff “stated she has
virtually no responsibilities around the house.” (Tr. 487). She has a driver’s license, but does not
own a car, so she depends on her mother, walks, or takes the bus. Id. She reported having “virtually
no friends that she socializes with”. Id. She had a boyfriend she saw once or twice per week.
Id. She walked outside “for exercise and relaxation” and watched television “a little bit.” Id.
Plaintiff showered two or three times a day and her mother described her as “germophobic”. Id.
Dr. Misja estimated that Plaintiff and her mother were “reliable reporters”. (Tr. 489).
Dr. Misja described Plaintiff as “friendly” and noted “rapport was easily established and
flow of conversation readily developed.” (Tr. 487). She also “made appropriate eye contact.”
Id. Additionally, her speech was “unremarkable and free from pathology such as loose
associations”, though she “spoke rapidly at times.” Id.
Dr. Misja noted Plaintiff’s affect was “broad” and her mood was “slightly depressed and
stable.” (Tr. 488). Plaintiff stated she knew she was depressed, and rated her depression “as a 10
on most days”. Id. She rated her anxiety as a 5 on most days. Id. She “swung her leg and
repositioned herself on the couch many times” during the interview, which Dr. Misja noted as
evidence of anxiety. Id. She reported that she “love[s] people but . . . want[s] to be by [her]self.”
Id. “She has feelings of hopelessness, despair, guilt, and worthlessness on a regular basis to a
moderate to severe range.” Id. Plaintiff had “anger episodes” about twice per week when she gets
“‘out of control’[,] meaning she slams the door and gets loud”. Id. Dr. Misja noted Plaintiff’s
“energy level is high but her motivation is low”. Id.
Dr. Misja estimated Plaintiff was in the low average range of intelligence, and noted her
insight was “poor to fair” and her judgment was “fair”. Id. He assessed intermittent explosive
disorder, major depression, and obsessive-compulsive disorder and assessed a GAF score of 45.
(Tr. 488-89).3 He noted Plaintiff “presented at the interview as high energy, pleasant and
cooperative and displayed none of the nastiness or meanness that both her and her mother
mentioned.”, though “[i]t appeared that her general emotional maturity was far below her
chronological age.” (Tr. 489). He explained that she “leads an unstructured life with virtually no
structure or demands on her” and explained that “[s]he may benefit from a referral to the BVR or
perhaps even job coaching.” Id.
In his functional assessment, Dr. Misja stated Plaintiff would have “no significant
problem” in understanding, remembering, and carrying out “ordinary instructions.” Id.
Additionally, he estimated her problems in the area of maintaining attention and concentration,
and in maintaining persistence and pace, and to perform simple or multi-step tasks would be
“minimal”. Id. (“She was able to persist and focus during the brief intellectual screening[.]”). Dr.
Misja, however, thought Plaintiff’s problems in the ability to respond appropriately to supervision
and to coworkers in a work setting would be “in the severe range”. (Tr. 490). This was so, he
explained, due to her intermittent explosive disorder which “manifested by episode of about twice
3. The Global Assessment of Functioning (“GAF”) scale represented a “clinician’s judgment” of
an individual’s symptom severity or level of functioning. Am. Psych. Ass’n, Diagnostic &
Statistical Manual of Mental Disorders, 32-33 (4th ed., Text Rev. 2000). “The most recent (5th)
edition of the Diagnostic and Statistical Manual of Mental Disorders does not include
the GAF scale.” Judy v. Colvin, 2014 WL 1599562, at *11 (S.D. Ohio); see also Am. Psych.
Ass’n, Diagnostic & Statistical Manual of Mental Disorders 16 (5th ed. 2013) (“DSM-V”) (noting
recommendations “that the GAF be dropped from [DSM–V] for several reasons, including its
conceptual lack of clarity . . . and questionable psychometrics in routine practice”). However, as
set forth in the DSM-IV, a GAF score of 41-50 indicated “serious symptoms (e.g., suicidal
ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social,
occupational, or school functioning (e.g., no friends, unable to keep a job).” DSM-IV-TR at 34.
a week at home” and that she “admitted that she gets angry and gets mean and nasty.” Id. Dr. Misja
noted Plaintiff had lost “almost every job she’s had because of her ability to get along with people
and “[s]he expressed little regret and no intention of changing her behavior or even addressing it.”
Id. Dr. Misja similarly noted Plaintiff’s abilities to respond appropriately to work pressures in a
work setting would be “in the severe range” due to her “history strongly suggest[ing] that she will
not be able to adequately cope with interpersonal tension and stress in the workplace environment.”
State Agency Reviewers
In November 2012, Bonnie Katz, Ph.D., reviewed Plaintiff’s records at the request of the
state agency. (Tr. 107-09). Dr. Katz concluded Plaintiff would be moderately limited in her ability
to: 1) understand and remember detailed instructions; 2) carry out detailed instructions; 3) maintain
attention and concentration for extended periods; 4) sustain an ordinary routine without special
supervision; 5) work in coordination with or in proximity to others without being distracted by
them; and 6) complete a normal workday and workweek without interruptions from
psychologically based symptoms. (Tr. 107-08). Dr. Katz also opined Plaintiff would be markedly
limited in her ability to interact appropriately with the general public, as well as moderately limited
in her ability to get along with coworkers or peers, and to maintain socially appropriate behaviors.
(Tr. 109). Dr. Katz noted Plaintiff was capable of performing without fast pace, no strict production
quotas, no interaction with the public, and minimal interaction with supervisors and coworkers. Id.
She could “adapt to occasional changes in routine that are introduced in advance and explained
fully”, and “make simple decisions but would rely on others to provide guidance and reassurance”.
In April 2013, Aracelis Rivera, Psy.D., reviewed Plaintiff’s records on reconsideration.
(Tr. 139-41). Dr. Rivera agreed with Dr. Katz’s conclusions. (Tr. 139-40).
Both state agency reviewing physicians recognized that Dr. Misja’s opinion was more
restrictive than their own, and stated that opinion was “an overstatement of the severity of
[Plaintiff]’s restrictions/limitations and based on only a snapshot of [Plaintiff]’s functioning.” (Tr.
VE Testimony, ALJ Decision & Appeals Council Denial of Review
A VE testified at the hearing before the ALJ. (Tr. 90-97). In her first hypothetical question,
the ALJ asked the VE to consider an individual with the same age, education, and past work as
is able to occasionally lift and carry 20 pounds and frequently lift and carry 10
pounds, is able to stand and walk six hours of an eight-hour workday, is able to sit
for six hours of an eight-hour workday, would have unlimited push and pull other
than shown for lift and/or carry, could never climb ladders, ropes or scaffolds, could
frequently stoop, crouch and crawl and must avoid all concentrated . . . exposure to
fumes, odors, dust, gases and poor ventilation[;] . . . can perform simple, routine
tasks consistent with unskilled work with no fast pace or high production quotas
and with no direct work or interaction with the general public and superficial
interactions with the supervisors and co-workers and by superficial [meaning] of a
short duration for a specific purpose[;] . . . can adapt to occasional changes in
routine that are introduced in advance and explained fully.
(Tr. 93-94). The VE testified such an individual could not perform Plaintiff’s past work, but could
perform work: in bench assembly inspection, such as inspector and hand packager; as an assembler
of plastic hospital products; or as an electrical equipment inspector. (Tr. 94-95).
For a second hypothetical question, the ALJ retained the same restrictions, but added a
limitation to “low stress work and by that I mean, no arbitration, negotiation, responsibility for the
safety of others or supervisory responsibility.” (Tr. 95). The VE testified that the same jobs
identified previously would still be available. Id.
For a third hypothetical question, the ALJ added a further restriction of “no overhead
reaching with the left upper extremity and frequent handling and fingering with the left upper
extremity only.” Id. The VE again testified that the same jobs would be available to such an
In her final hypothetical, the ALJ retained the same restrictions, and added a limitation that
the individual “might be absent from work two or more days per month due to symptoms from
asthma and/or migraine headaches.” (Tr. 96). The VE testified that no jobs would be available to
such an individual. Id.
Plaintiff’s attorney asked the VE “if the hypothetical individual has an explosive episode
at work once a week, it might be of short duration, you know, 5 to 10 minutes, but it’s going to
happen once a week [and] [i]t’s going to take her off task, take her co-workers off task, is that
individual going to be able to sustain and retain employment?” (Tr. 96-97). The VE replied in the
negative. (Tr. 97).
In her written decision, the ALJ found Plaintiff’s date last insured was December 31, 2013,
and Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (Tr. 50).
She concluded Plaintiff had severe impairments of “degenerative disc disease (thoracic), disorder
of female genital organs, gastrointestinal disorder (gastric ulcer), asthma/chronic obstructive
pulmonary disease, left rotator cuff impingement, migraines, affective disorder (major depressive
disorder), anxiety disorder, personality disorder (intermittent explosive disorder) and obsessive
compulsive disorder.” Id. The ALJ found that none of these impairments met or equaled the
listings, Tr. 51-52, and Plaintiff retained the residual functional capacity (RFC) to:
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except she is
able to occasionally lift and carry 20 pounds and frequently lift and carry 10 pounds,
is able to stand and walk 6 hours of an 8-hour workday, is able to sit for 6 hours of
an 8-hour workday, and has unlimited push and pull other than shown for lift and/or
carry. She can never climb ladders, ropes and scaffolds; frequently stoop, crouch
and crawl; and must avoid concentrated exposure to fumes, odors, dusts, gases and
poor ventilation. She should have no overhead reaching with the left upper
extremity and no more than frequent handling and fingering with the left upper
extremity. She can perform simple routine tasks (unskilled work), with no fast pace
or high production quotas. She should have no direct work contact with the general
public and superficial (meaning of a short duration for a specific purpose)
interactions with supervisors and co-workers. She can adapt to occasional changes
in routine that are introduced in advance and explained fully. She can perform low
stress work meaning no arbitration, negotiation, responsibility for the safety of
others or supervisory responsibility.
(Tr. 53). Considering this RFC, and based on the testimony of the VE, the ALJ found jobs existed
in the national economy that such an individual could perform. (Tr. 56). Therefore, the ALJ found
Plaintiff not disabled from her alleged onset date through the date of the decision. (Tr. 57).
Plaintiff submitted additional evidence to the Appeals Council. (Tr. 5-6, 8-37). In declining
to exercise jurisdiction, the Appeals Council stated:
We also looked at medical records from Ikram Khan, M.D., dated October 27, 2014
through December 2, 2014, and Khaleel Deeb, M.D., dated January 15, 2015
through August 18, 2015. The Administrative Law Judge decided your case through
September 23, 2014. This new information is about a later time. Therefore it does
not affect the decision about whether you were disabled beginning on or before
September 23, 2014.
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the 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.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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). The Commissioner’s findings “as to any fact
if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r of Soc. Sec.,
474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial evidence or
indeed a preponderance of the evidence supports a claimant’s position, the court cannot overturn
“so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
STANDARD FOR DISABILITY
Eligibility for benefits is predicated on the existence of a disability. 42 U.S.C. §§ 423(a),
1382(a). “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.” 20 C.F.R. § 416.905(a); see also 42 U.S.C. § 1382c(a)(3)(A). The Commissioner
follows a five-step evaluation process—found at 20 C.F.R. § 404.1520—to determine if a claimant
Was claimant engaged in a substantial gainful activity?
Did claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?
Does the severe impairment meet one of the listed impairments?
What is claimant’s residual functional capacity and can claimant perform
past relevant work?
Can claimant do any other work considering her residual functional
capacity, age, education, and work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in Steps One
through Four. Walters, 127 F.3d at 529. The burden shifts to the Commissioner at Step Five to
establish whether the claimant has the residual functional capacity to perform available work in
the national economy. Id. The ALJ considers the claimant’s residual functional capacity, age,
education, and past work experience to determine if the claimant could perform other work. Id.
Only if a claimant satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements, is she determined to be disabled. 20 C.F.R. §§ 404.1520(b)-(f);
see also Walters, 127 F.3d at 529.
Plaintiff presents two arguments: 1) the ALJ failed to properly evaluate the opinion of
consultative psychologist, Dr. Misja; and 2) the Appeals Council erred in failing to remand the
matter based on new and material evidence (and such a remand is appropriate here).
Consultative Psychologist Opinion
Plaintiff contends the ALJ erred in her evaluation of Dr. Misja’s opinion, and, as a result,
the RFC lacks the support of substantial evidence. (Doc. 17, at 12-16). Specifically, she argues the
ALJ’s reasoning was vague and unsupported by the record. The Commissioner responds that the
ALJ reasonably weighed Dr. Misja’s opinion and her reasoning for giving that opinion limited
weight is supported.
In her decision, the ALJ summarized Dr. Misja’s opinion, and then explained the weight
assigned to it:
The psychological consultative examiner opined that ordinary instructions should
be of no significant problem for her. She was able to persist and focus during the
brief intellectual screening and it is estimated that problems in maintaining attention
and concentration and persistence and pace to perform simple tasks and to perform
multi-step tasks are likely to be minimal. Based on the report of her and her mother,
he noted severe problems with responding appropriately to supervision and
coworkers in a work setting and responding appropriately to work pressures in a
work setting. The examiner assigned a GAF of 45. [citing Tr. 485-90]. The
examiner’s opinion is given limited weight. The very low GAF is inconsistent with
the claimant’s presentation at the evaluation, as well as the other medical evidence
of record, which notes no significant mental health complaints or findings. Further,
it is inconsistent with the fact that the claimant has no mental health treatment. The
examiner’s findings are based almost entirely on the subjective complaints of the
claimant and her mother. The record does not support more than moderate
limitations in social functioning and concentration, persistence, and pace. She is
capable of simple, routine tasks with no fast pace or high production quotas and no
direct work contact with the general public and only superficial interactions with
supervisors and co-workers. She is also provided the accommodations of only
occasional changes in routine and only low stress work.
First, an ALJ is not required to provide the same “good reasons” for discounting a onetime examining physician as she is for a treating physician. See Smith v. Comm’r of Soc. Sec., 482
F.3d 873, 876 (6th Cir. 2007) (“the SSA requires ALJs to give reasons for only treating sources”).
Similarly, a consultative examiner’s opinion is not entitled to the same controlling weight
presumption as a treating physician. Id. The ALJ is, however, to weigh the opinion of agency
examining physicians under the same factors as treating physicians, including the supportability
and consistency of those opinions. See 20 C.F.R. § 404.1527(d). Although the explanatory
requirement “does not apply to opinions from physicians who . . . have examined but not treated a
claimant, the ALJ’s decision still must say enough to allow the appellate court to race the path of
his reasoning.” Stacey v. Comm’r of Soc. Sec., 451 F. App’x 517, 519 (6th Cir. 2011). Thus the
question is not one of “good reasons”, but rather whether the ALJ’s reasoning in this regard is
supported by substantial evidence. As discussed below, the undersigned concludes that it is.
Plaintiff contends it was error to give more weight to the state agency reviewing physicians
than to Dr. Misja because the former did not examine her. See 20 C.F.R. § 404.1527(c)(1)
(“Generally, we give more weight to the opinion of a source who has examined you than to the
opinion of a source who has not examined you.”). But whether a source conducted an examination
is only one of several factors that the ALJ considers when weighing medical opinions. See 20
C.F.R. § 404.1527(c). Here, the ALJ also discussed the supportability and consistency of the
The ALJ addressed the supportability of Dr. Misja’s opinions, noting that his conclusions
were inconsistent with his observations. (Tr. 55) (“The very low GAF is inconsistent with the
claimant’s presentation at the evaluation[.]”). This has support in the record. Dr. Misja noted
Plaintiff “was friendly and rapport was easily established”, “a flow of conversation readily
developed”, and she “made appropriate eye contact.” (Tr. 487). He also noted that Plaintiff’s
“speech was unremarkable”, though “rapid at times.” Id. Plaintiff’s “[a]ffect was broad” and her
mood was “slightly depressed and stable.” (Tr. 488). Moreover, Dr. Misja noted Plaintiff
“presented at the interview as high energy, pleasant and cooperative and displayed none of the
nastiness or meanness that both her and her mother mentioned.” (Tr. 489). These observations
were contrary to Dr. Misja’s opinion that Plaintiff’s GAF score was 45, indicative of “serious
symptoms”, “e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious
impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job).”
DSM-IV-TR at 34.
The ALJ also noted Dr. Misja’s conclusions were inconsistent with the record as a whole.
(Tr. 55) (“The very low GAF is inconsistent with . . . the other medical evidence of record, which
notes no significant mental health complaints or findings. Further, it is inconsistent with the fact
that the claimant has no mental health treatment.”). The ALJ was correct, and Plaintiff has pointed
to no evidence of mental health complaints or findings in the record.4 Plaintiff correctly points out
that the Sixth Circuit has cautioned that “ALJs must be careful not to assume that a patient’s failure
to receive mental-health [sic] treatment evidences a tranquil mental state.” White v. Comm’r of
Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009). This is so because “[f]or some mental disorders, the
very failure to seek treatment is simply another symptom of the disorder itself.” Id. Here, however,
Plaintiff has suggested no evidence to show her failure to seek treatment is a result of her mental
disorder. See, e.g., Smith v. Colvin, 2017 WL 427359, at *11 (S.D. Ohio) (“However, here, there
is no indication that she did not seek treatment as a result of her impairments.”), report and
recommendation adopted, Smith v. Berryhill, 2017 WL 929163 (S.D. Ohio). In White itself, the
case Plaintiff cites, the Sixth Circuit further stated: “But in this case there is no evidence in the
record explaining White’s failure to seek treatment during this half year gap. A ‘reasonable mind’
might therefore find that the lack of treatment during [this] time frame indicated an alleviation of
White’s symptoms.” 572 F.3d at 283-84. Moreover, although “before drawing a negative inference
from an individual’s failure to seek or pursue regular medical treatment, the ALJ must consider
any explanations that the individual may provide, or other information in the case record, that may
explain infrequent or irregular medical visits or failure to seek medical treatment”, Dooley v.
Comm’r of Soc. Sec., 656 F. App’x 113, 119 (6th Cir. 2016) (internal quotation and citation
omitted), Plaintiff points to no such evidence or explanation here. As such “that bar [does] not
apply here.” Todd v. Comm’r of Soc. Sec., 2017 WL 715752, at *10 (S.D. Ohio) report and
recommendation adopted, 2017 WL 978590 (S.D. Ohio). Finally, the record reflects Plaintiff was
4. Contrary to the cases cited in Plaintiff’s brief, this is not a case where Plaintiff failed to follow
prescribed treatment, but is rather a case where Plaintiff had no mental health treatment.
willing and able to seek treatment for other impairments. Compare, e.g. Mullendore v. Comm’r of
Soc. Sec., 2017 WL 1196367, at *7 (E.D. Mich.) (“However in this case, the 500-plus page medical
transcript shows that Plaintiff sought treatment for a plethora of conditions on a frequent basis.
None of the records show that her ability to obtain proper treatment was compromised by mental
health problems.”); Brooks v. Comm’r of Soc. Sec., 2016 WL 6987096, at *7 (E.D. Mich.)
(“Whereas Blankenship [the Plaintiff in Blankenship v. Bowen, 874 F.2d 1116, 1124 (6th Cir.
1989)], suffering from schizophrenia, did not seek regular treatment for either the physical or
psychiatric problems, id. at 1121-1124, current Plaintiff sought and received treatment on a regular
basis for a plethora of other conditions. Indeed, the treating records . . . total a staggering 800
pages, supporting the conclusion that Plaintiff was disinclined (rather than psychologically
incapable) to submit to long-term mental health treatment.”) (emphasis in original). The
undersigned therefore finds the ALJ did not err in considering the lack of mental health findings
and treatment in the record as a reason for partially discounting Dr. Misja’s opinion.
Finally, the ALJ properly discounted Dr. Misja’s opinion in part because it was based on
the subjective statements of Plaintiff and her mother. (Tr. 55) (“The examiner’s findings are based
almost entirely on the subjective complaints of the claimant and her mother.”); see 20 C.F.R. §
404.1527(c)(3) (“The more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give that opinion.”).
Objective evidence in the psychiatric/psychological context includes “medical signs,” 20 C.F.R. §
404.1512(b)(1), which are defined as “psychological abnormalities which can be observed, apart
from your statements (symptoms).... Psychiatric signs are medically demonstrable phenomena that
indicate specific psychological abnormalities, e.g., abnormalities of behavior, mood, thought,
memory, orientation, development, or perception. They must also be shown by observable facts
that can be medically described and evaluated.” 20 C.F.R. § 404.1528(b) (emphasis added)5. Dr.
Misja’s opinion that Plaintiff would have “severe” problems in responding appropriately to
supervisors and co-workers was based on Plaintiff and her mother’s report that Plaintiff has anger
episodes and that she had lost “almost every job she’s had because of her inability to get along
with people.” (Tr. 490). Similarly, Dr. Misja cited Plaintiff’s self-reported “history” to support his
conclusion that she would have “severe” problems in responding appropriately to work pressures.
Id. These conclusions were therefore based on Plaintiff’s subjective symptom reports and it was
not error for the ALJ to give less weight to them as a result. Notably, Dr. Misja mentioned that
Plaintiff “presented at the interview as high energy, pleasant and cooperative and displayed none
of the nastiness or meanness that both her and her mother mentioned.” (Tr. 489).
Plaintiff further argues that the ALJ is unclear about her decision to Dr. Misja’s opinion
“limited weight”. Specifically, she argues:
Clearly, the Judge gave the opinion weight insofar as the specific diagnoses Dr.
Misja finds, since the ALJ specifically finds intermittent explosive disorder,
depression and obsessive compulsive disorder all to constitute severe impairments.
Beyond that, however, it is not clear what portions, if any, of Dr. Misja’s report are
credited by the Judge.
(Doc. 17, at 14). The undersigned disagrees that it is unclear. The ALJ’s opinion aligns with Dr.
Misja’s opinion that Plaintiff would not have problems understanding, remembering, and carrying
out instructions or maintaining attention and concentration. Compare Tr. 489-90 (Dr. Misja’s
opinion that Plaintiff would have “no significant problem” or “minimal” problems in these areas)
with Tr. 53 (ALJ’s RFC stating Plaintiff “can perform simple routine tasks”). Notably, the ALJ’s
ultimate RFC also shows she did give some weight to Dr. Misja’s opinion. Taking into account
5. Both 20 C.F.R. § 404.1512 and 20 C.F.R. § 404.1528 were amended effective March 27, 2017.
The undersigned references the prior version of the regulations in effect at the time of the ALJ’s
Plaintiff’s social limitations, the ALJ limited Plaintiff to “no direct work contact with the general
public and superficial (meaning of a short duration for a specific purpose) interactions with
supervisors and co-workers.” (Tr. 55). The ALJ simply found such restrictions not as severe as Dr.
Misja opined. She also took into account Plaintiff’s limited ability to respond to work pressures,
limiting her to only “occasional changes in routine that are introduced in advance and explained
fully” and to “low stress work meaning no arbitration, negotiation, responsibility for the safety of
others or supervisory responsibility.” Id. Additionally, earlier in her opinion at Step Three, the ALJ
explained her finding that Plaintiff had “moderate difficulties” in social functioning:
She reported to the consultative examiner that she does not socialize with friends,
but she has a boyfriend she sees once or twice a week. However, she testified that
her activities of daily living include calling a friend or seeing her older sister who
stops by on her lunch. While she reported difficulty getting along with others, she
presented at her consultative examination as friendly, with appropriate eye contact.
Rapport was easily established and the flow of conversation readily developed. She
reported that she loves people but wants to be by herself. The examiner noted that
she presented as high energy, pleasant, and cooperative and displayed none of the
nastiness or meanness she and her mother had mentioned. He noted that her general
emotional maturity was far below her chronological age. The State Agency
psychological consultants who reviewed the claimant’s case file determined that
the claimant has moderate difficulty in social functioning which is consistent with
(Tr. 52) (record citations omitted). This provides additional support to the ALJ’s decision to rely
on the state agency physicians over Dr. Misja in finding Plaintiff’s social and work pressure
restrictions less extreme. As noted above, the ALJ gave great weight to the state agency reviewing
physicians. See Tr. 55. With the benefit of Dr. Misja’s opinions and all the other evidence in the
record, the state agency physicians—and the ALJ—simply reached different conclusions about
Plaintiff’s functional limitations than Dr. Misja did. And, for the reasons described above, those
conclusions were reasonable.
Taken as a whole, the ALJ’s discussion of Dr. Misja’s opinion complies with the mandate
that an ALJ must “say enough to allow the appellate court to trace the path of [her] reasoning.”
Stacey, 451 F. App’x at 519 (internal quotation marks omitted). The undersigned finds the ALJ’s
reasoning in this regard supported by substantial evidence.
Sentence Six Remand
Second, Plaintiff argues the Appeals Council erred in not remanding her case upon being
presented with new evidence regarding the cause of Plaintiff’s dizziness. (Doc. 17, at 16-17). The
Commissioner responds that a sentence six remand is not appropriate. (Doc. 20, at 10-13).
Under the relevant agency regulations:
(b) If new and material evidence is submitted, the Appeals Council shall consider
the additional evidence only where it relates to the period on or before the date of
the administrative law judge hearing decision. The Appeals Council shall evaluate
the entire record including the new and material evidence submitted if it relates to
the period on or before the date of the administrative law judge hearing decision. It
will then review the case if it finds that the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently of record.
20 C.F.R. § 404.970(b).6 The Appeals Council addressed the additional records submitted by
We also looked at medical records from Ikram Khan, M.D., dated October 27, 2014
through December 2, 2014, and Khaleel Deeb, M.D., dated January 15, 2015
through August 18, 2015. The Administrative Law Judge decided your case through
September 23, 2014. This new information is about a later time. Therefore it does
not affect the decision about whether you were disabled beginning on or before
September 23, 2014.
(Tr. 2). The Appeals Council then noted Plaintiff would need to file a new application if she alleged
disability after the ALJ’s decision. Id. The Appeals Council thus determined the evidence
submitted was not time-relevant to the ALJ’s decision.
6. 20 C.F.R. § 404.970(b) was amended effective January 17, 2017. This is the prior version of the
regulation in effect at the time of the Appeals Council decision.
When the Appeals Council declines to review the ALJ’s decision, the ALJ’s decision
becomes the Commissioner’s final decision. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).
While new and material evidence may be submitted for consideration to the Appeals Council, “we
still review the ALJ’s decision, not the denial of review by the appeals council.” Casey v. Sec’y,
987 F.2d 1230, 1233 (6th Cir. 1993).
Notwithstanding the foregoing jurisdictional limitations, the Court has independent
jurisdiction under “sentence six” of Section 405(g) to remand for consideration of additional
evidence. A remand pursuant to sentence six is appropriate “only if the evidence is ‘new’ and
‘material’ and ‘good cause’ is shown for the failure to present the evidence to the ALJ.” Ferguson
v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010). Evidence is “new” if it did not exist at
the time of the administrative proceeding and “material” if there is a reasonable probability that a
different result would have been reached if introduced during the original proceeding. Id. “Good
cause” is demonstrated by “a reasonable justification for the failure to acquire and present the
evidence for inclusion in the hearing before the ALJ.” Foster v. Halter, 279 F.3d 348, 357 (6th
Plaintiff does not meet this standard. The relevant time period under consideration before
the ALJ was Plaintiff’s onset date—August 7, 2012—through the date of the ALJ’s decision—
September 23, 2014. Plaintiff contends that Dr. Khan’s November 2014 review of a 2001 MRI
“provides a basis to understand why [Plaintiff] has symptoms of dizziness and syncope[.]” (Doc.
17, at 17); see Tr. 32 (November 2014 reference to “MRI head 2001” showing “[t]wo areas of
encephalomalacia – one in the left frontal lobe and one in the right temporal lobe – consistent with
the history of remote trauma.”). However, the 2001 MRI referenced was performed eleven years
prior to Plaintiff’s alleged onset date, and the additional records submitted post-date the ALJ’s
decision. See Tr. 8-37 (records dated October 2014 through August 2015). Plaintiff has failed to
show a reasonable probability that a different result would have been reached if the ALJ had been
presented with this additional evidence. Notably, during the time period under consideration by
the ALJ, the only complaints of dizziness and syncope were two visits in September 2013. See Tr.
691-93 (September 26, 2013 visit with Marry Ellen Behmer, M.D., where Plaintiff reported three
weeks of dizziness, worse with activity); Tr. 700 (September 28, 2013 emergency room visit
reported increased dizziness with syncope, worse when standing). Plaintiff fails to show how, if
the ALJ had a “basis to understand” her dizziness, she would have reached a different conclusion
regarding Plaintiff’s limitations during the relevant time period.
Although Plaintiff also points to evidence in these additional records that shows staring
spells (possible “absence seizures”), Tr. 769 (October 2014); Tr. 29 (November 2014), and
increased episodes of dizziness, Tr. 15 (March 2015), these worsening complaints all post-date the
ALJ’s decision, and as such, are not material. See Wyatt v. Sec’y of Health & Human Servs., 974
F.2d 680, 685 (6th Cir. 1992) (“Evidence of a subsequent deterioration or change in condition after
the administrative hearing is deemed immaterial.”). Plaintiff may, however, submit a new claim
for benefits based on this subsequent time period not considered by the ALJ.
Plaintiff has therefore failed to show the new evidence if presented, would lead the ALJ to
a different disposition. Thus, she has not shown the evidence to be material as is necessary to
obtain remand. As such, her request for a sentence six remand is denied.
Following review of the arguments presented, the record, and the applicable law, the
undersigned finds the Commissioner’s decision supported by substantial evidence and affirms that
s/James R. Knepp II
United States Magistrate Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?