Smith v. Commissioner of Social Security Adminstration

Filing 21

Memorandum Opinion and Order affirming Commissioner's decision denying benefits. Magistrate Judge James R. Knepp, II on 3/19/13. (A,P)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

JASON SMITH,

Case No. 5:11 CV 2104

Plaintiff,

Magistrate Judge James R. Knepp II

v.

MEMORANDUM OPINION AND
ORDER

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
INTRODUCTION
Plaintiff Jason Smith seeks judicial review of Defendant Commissioner of Social Security’s
decision to deny Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The
district court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3). The parties consented to
the undersigned’s exercise of jurisdiction in accordance with 28 U.S.C. § 636(c) and Civil Rule 73.
(Doc. 17). For the reasons given below, the Court affirms the Commissioner’s decision denying
benefits.
PROCEDURAL BACKGROUND
On February 23, 2010, Plaintiff filed applications for DIB and SSI claiming he was disabled
due to seizure disorder, asthma, attention deficit hyperactivity disorder (ADHD), psychotic disorder,
disc herniation, left foot drop, club foot, hypertension, obesity, and tenosynovitis at the left ankle.
(Tr. 13, 135, 138). He alleged a disability onset date of May 17, 2008. (Tr. 13). His claims were
denied initially (Tr. 83, 87) and on reconsideration (Tr. 92, 99). Plaintiff then requested a hearing
before an Administrative Law Judge (ALJ). (Tr. 106). Plaintiff (represented by counsel), his
girlfriend Tara Hill, and a vocational expert (VE) testified at the hearing, after which the ALJ found

Plaintiff not disabled. (Tr. 7, 30). The Appeals Council denied Plaintiff’s request for review, making
the hearing decision the final decision of the Commissioner. (Tr. 1); 20 C.F.R. §§ 404.955, 404.981,
416.1455, 416.1481. On October 5, 2011, Plaintiff filed the instant case. (Doc. 1).
Plaintiff challenges only the ALJ’s conclusions regarding his mental impairments (see Doc.
14), and therefore waives any claims about the determinations of his physical impairments. See, e.g.,
Swain v. Comm’r of Soc. Sec., 379 F. App’x 512, 517–18 (6th Cir. 2010) (noting failure to raise a
claim in merits brief constitutes waiver). Accordingly, the undersigned addresses only the record
evidence pertaining to Plaintiff’s mental health. Further, Plaintiff addresses medical records which
pre-date his alleged onset date. While medical evidence predating Plaintiff’s onset date is not
irrelevant, the Court may only consider evidence from those records in combination with evidence
after the onset date to determine disability. De Board v. Comm’r of Soc. Sec., 211 F. App’x 411, 414
(6th Cir. 2006).
FACTUAL BACKGROUND
Born March 18, 1984, Plaintiff was 27 years old when the ALJ hearing was held on August
4, 2011. (Tr. 33, 135). Plaintiff has a high school education and past relevant work as a kitchen
helper, fast-food worker, and cleaner. (Tr. 55, 156).
Medical Evidence
Treatment Records
In June 2003, Plaintiff was seen at Viola Startzman Free Clinic (Startzman) for a
neurological exam as a result of a seizure. (Tr. 253). It was noted “[h]e had no prior history for
epilepsy and the event was a surprise to him and his family.” (Tr. 253). The seizure was prompted
by an asthma attack. (Tr. 253). A CT scan of the brain was abnormal, revealing possible “agenesis

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of the corpus callosum” and the doctor ordered further testing. (Tr. 253-55). On November 22, 2004,
Dr. Michael Leslie evaluated Plaintiff and diagnosed epileptic seizure disorder. (Tr. 256-57). Dr.
Leslie noted Plaintiff was a poor historian regarding his “[e]pilepsy history.” (Tr. 256).
On May 16, 2008, Plaintiff was transported to Wooster Community Hospital (WCH)
emergency room because he had a seizure. (Tr. 335). His girlfriend’s grandfather died while they
were visiting him at hospice and “[a]fterwards [Plaintiff] had a seizure.” (Tr. 335). Plaintiff reported
he had not been taking his seizure medication, Depakote, for the last month. (Tr. 335). Plaintiff was
assessed as stable and discharged. (Tr. 335). The next day, Plaintiff experienced another seizure and
was transported to WCH. (Tr. 352). Upon arrival, Plaintiff was able to answer questions but was
postical. (Tr. 352). He was discharged and agreed to follow-up and continue to take his Depakote.
(Tr. 352).
On May 28, 2008, Plaintiff’s mother and girlfriend took Plaintiff to WCH for a possible
seizure. Upon arrival, Plaintiff became violent with hospital staff and had to be restrained. (Tr. 370).
Plaintiff was diagnosed with an acute seizure with a postical state and violent behavior. (Tr. 370).
He was discharged and instructed to follow-up with Startzman Clinic. (Tr. 370).
On May 30, 2008, Nurse Tickton from the Startzman Clinic phoned Plaintiff after reading
his May 28, 2008 WCH emergency report. (Tr. 434). She verbally warned Plaintiff if he remained
noncompliant with Depakote and failed to follow-up with a neurologist the clinic would dismiss
him. (Tr. 434).
On July 21, 2008, Plaintiff was ordered to WCH emergency by the Crisis Center because he
threatened to harm himself. (Tr. 386). Hospital notes indicated Plaintiff had a “history of anger
issues, possible personality disorder, seizures, asthma, and back problems.” (Tr. 386). Plaintiff had

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no specific plan to commit suicide but he did “have futuristic and realistic future thoughts” of
harming himself. (Tr. 386). WCH determined Plaintiff was not in an emergent state and instructed
him to follow up with a crisis worker. (Tr. 386).
On October 22, 2008, Plaintiff was taken to WCH emergency for a seizure. (Tr. 395). Upon
arrival, Plaintiff was postical and not able to answer questions. (Tr. 395). His girlfriend stated he had
a seizure which caused his left hand and right leg to shake. (Tr. 395). She said he had been taking
his medication but testing revealed his Depakote levels were subtherapeutic. (Tr. 395, 397, 726).
Plaintiff returned to WCH emergency when he experienced a generalized tonic-clonic seizure
during a counseling session. (Tr. 720). His seizure medication level was low and he was given
Dilantin after arrival. (Tr. 720). He was discharged with instructions to follow-up with Dr. Zewail.
(Tr. 720).
Plaintiff established care for epilepsy with Dr. Gwendolyn Lynch at Cleveland Clinic of
Wooster Neurology Department on March 4, 2009. (Tr. 566). Plaintiff said his seizures began when
he was an infant, occurred two to three times per month, and were mainly preceded by asthma
attacks. (Tr. 566). Plaintiff reported seeing neurologists in the distant past but said his epilepsy was
currently managed by the hospital and free clinics. (Tr. 566). Dr. Lynch found Plaintiff’s epilepsy
was dependant on his asthma, explaining if his asthma was controlled, he would not likely
experience a seizure. (Tr. 566). She instructed Plaintiff to see a pulmonary specialist, maintain his
current level of Depakote, and follow-up in three months. (Tr. 567). At Plaintiff’s follow-up on June
12, 2009, Dr. Lynch noted he had not seen the pulmonary specialist and he reported “‘mini seizures’
that no one else [wa]s able to recognize.” (Tr. 564).
Plaintiff was taken to WCH by ambulance for an asthma attack combined with a seizure on

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April 20, 2009. (Tr. 690). His father reported Plaintiff missed a dose of his medication and he had
been assaulted earlier that day, “where he got pushed and kicked in[] his head, chest, and legs.” (Tr.
690). On examination, Plaintiff’s vital signs were stable, he was alert, and was in no obvious
distress. (Tr. 690). Plaintiff was given seizure medication and discharged. (Tr. 690).
On July 9, 2009, Dr. Zewail noted Plaintiff’s seizures and asthma were controlled. (Tr. 577).
Plaintiff followed up with Dr. Zewail on August 12, 2009 and reported having auditory and visual
hallucinations. (Tr. 576). On examination, Plaintiff had no acute neurological symptoms and no
suicidal ideations. (Tr. 576). She prescribed Seroquel for hallucinations. (Tr. 576). On September
9, 2009, she diagnosed Plaintiff with schizophrenia, controlled on Seroquel. (Tr. 575).
On January 11, 2010, Plaintiff went to WCH for an asthma attack. (Tr. 625). He reported
feeling like he was going to have a seizure, “but [he] never actually seized.” (Tr. 625). Plaintiff had
not been taking his asthma or seizure medication and he was discharged with re-fills and
prescriptions for both. (Tr. 625).
Plaintiff returned to Dr. Lynch on July 21, 2010. (Tr. 900). Plaintiff requested clearance to
get his driver’s license so he could return to work. (Tr. 900). Dr. Lynch noted Plaintiff’s last seizure
had been in June 2009 and Depakote was controlling his seizures. (Tr. 900). On February 16, 2011,
Plaintiff had a six-month follow-up appointment with Dr. Lynch. (Tr. 893). She noted he had not
been seizing and his Depakote levels were therapeutic, and she cleared him to drive. (Tr. 893).
Throughout treatment with Dr. Lynch, Plaintiff never mentioned hallucinations or delusions.
Vocational Rehabilitation
Beginning in February 2008 through November 2008, Plaintiff received employment
assistance through the Bureau of Vocational Rehabilitation (BVR). (Tr. 161, 270-310, 493-501).

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With the help of BVR, Plaintiff filled out employment applications, followed up with prospective
employers, and attended job fairs and work assessments at employment locations. (Tr. 271-72).
Plaintiff claimed he could not procure employment because he was “struggling with being able to
focus on [] job activities due to relationship and family issues” and said a lack of transportation kept
him from following up with prospective employers. (Tr. 276, 281). BVR provided Plaintiff with taxi
money to aid him in finding work beyond walking distance and picked him up for meetings. (Tr.
281, 283). Even so, Plaintiff often skipped or missed appointments with his counselors, even when
they showed up at his home to pick him up for appointments or job fairs. (Tr. 272-75, 283-85, 296,
302, 308).
BVR documented each visit with Plaintiff in the form of “Billable Service Progress Notes”.
(Tr. 270-77) On occasion, the notes included a “Level of Functioning and Participation Checklist.”
(See Tr. 276). Plaintiff was generally described as cooperative and able to follow instructions. (Tr.
279, 292, 294, 304). Mainly, caseworkers marked “not applicable” when asked about Plaintiff’s
anxiety, agitation, depression, judgment, hallucinations, delusions, and orientation. (See Tr. 280,
282, 285, 286, 295, 297, 303, 308). Occasionally, BVR case workers noted Plaintiff’s participation,
appearance and hygiene were good, further noting he had no problems with hallucinations,
delusions, anxiety, or agitation, but mild or moderate depression and judgment. (Tr. 276, 306, 307).
Throughout this time period, Plaintiff worked efficiently in a group setting and independently and
was generally described as having a positive mood. (See Tr. 279).
Counseling Center
Plaintiff also received counseling and employment assistance through the Counseling Center
of Wayne and Holmes Counties (Counseling Center) between April 2008 and March 2011. He was

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mainly treated by therapist Christine Cunningham and licensed social workers Jean Brugger and
Katherine Bennett. (Tr. 445-462, 582-97, 765-795, 795-827). Generally, Plaintiff’s main stressors
were ongoing issues with his girlfriend and living situation, and treatment goals aimed to decrease
his depression and anger. (Tr. 445-462, 585-97, 765-95, 795-827). In the beginning, Plaintiff did
not report hallucinations or delusions and his visits generally involved discussions on how to
eliminate life stressors and depression. (See Tr. 445-462, 795-827). In fact, Plaintiff never mentioned
or reported hallucinations or delusions in 2008 or the beginning of 2009. (Tr. 445-462, 795-827).
On April 17, 2009, Plaintiff expressed frustration about being denied social security
disability. (Tr. 822). He was “frustrated that a neighbor was recently awarded disability due to being
a recovering alcoholic and in [Plaintiff’s] eyes ha[d] wasted all of the money.” (Tr. 822). Plaintiff
felt “like social security [was] not recognizing the degree of impairment he deal[t] with on a daily
basis.” (Tr. 822). On June 19, 2009, Plaintiff discussed his social security disability appeal and his
frustration with his living situation. (Tr. 813).
Beginning in August 2009, Plaintiff began reporting hallucinations and hearing “command
voices” (Tr. 585-97, 765-95). For example, both Ms. Cunningham and Ms. Brugger checked a box
indicating Plaintiff’s hallucinations were either mild, moderate, or severe at Plaintiff’s visits even
if hallucinations were not discussed in the treatment notes. (Tr. 585-97, 765-95, 795-827). On one
occasion, Ms. Brugger reported Plaintiff was “visibly talking to his ‘voices’ at times during the
session.” (Tr. 594).
On August 20, 2009, Plaintiff saw Andrew Santora, Ed.D., CNS, APN at the Counseling
Center at Ms. Cunningham’s request. (Tr. 571-72). Plaintiff reported hearing voices, “noting []
these have been predominant for the past month but [] they have been intermittent since the age of

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13.” (Tr. 571). He said he “hear[d] a demonic voice, [and] a devil servant who want[ed] him to cause
destruction and [] play chicken (on his bicycle) [with] an 18 wheeler.” (Tr. 571). “He also hear[d]
voices of ‘good souls.’” (Tr. 571). While he did not have suicidal ideations at the time, he reported
three suicide attempts: the first at age eighteen by cutting; the second at age twenty “playing
chicken” and attempting to crash into another car; and the last in 2006 or 2007 where he jumped off
a bridge. (Tr. 571). Dr. Santora noted Plaintiff was slightly unkempt with a slightly dull affect, but
his thought process was logical and his demeanor cooperative. (Tr. 571). He noted Plaintiff
experienced anger outbursts, mood swings, aggressive behavior, and auditory, visual, olfactory, and
gustatory hallucinations. (Tr. 571). Dr. Santora diagnosed Plaintiff with psychotic and depressive
disorder and assigned a Global Assessment Functioning (GAF) score of 351. (Tr. 572). No treatment
plan was offered because Plaintiff claimed Dr. Zewail was treating him for his condition. (Tr. 572).
On September 28, 2009, Ms. Brugger marked that Plaintiff had mild anxiety and depression
and moderate judgment, with hallucinations. (Tr. 586). The same day, Plaintiff told Ms.
Cunningham he was stressed because of issues with his girlfriend but was talking with his family
about opening a business. (Tr. 587). The next day, Ms. Brugger marked that Plaintiff had no anxiety
or agitation, but mild hallucinations and moderate depression and judgment. (Tr. 585).
In a summary report dated October 23, 2009, Ms. Cunningham noted Plaintiff’s increased
symptoms including hallucinations with a focus on spiritual warfare. (Tr. 582).
On November 24, 2009, Plaintiff reported financial struggles were triggering stress –
1. The GAF scale represents a “clinician’s judgment” of an individual’s symptom severity or
level of functioning. American Psychiatric Association, Diagnostic & Statistical Manual of
Mental Disorders, 32–33 (4th ed., Text Rev. 2000) (DSM-IV-TR). A GAF score between 31 and
40 indicates “some impairment in reality testing or communication (e.g., speech is at times
illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school,
family relations, judgment, thinking, or mood”. Id. at 34.
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specifically “he, his [girlfriend], and her mother ha[d]to manage to meet basic needs with only one
[social security disability] income and three people’s worth of food stamps.” (Tr. 789). At this
session, “[Plaintiff] did not appear to be distracted by voices and held good focus and concentration”
other than occasional texting during the meeting. (Tr. 789).
At a meeting on December 1, 2009, Plaintiff “was verbally able to detail situations where
he was able to evict people who [had been living with him] but could not pay their way [living] in
his ap[artment].” (Tr. 788). He voiced a desire to buy a house and become a landlord. (Tr. 788). On
December 9, 2009, Ms. Brugger noted that “[Plaintiff] appears very focused on getting his disability
and at times appears to emphasize the drama of his symptoms more than being distressed over
them.” (Tr. 786).
On June 4, 2010, Plaintiff showed up with a two-year old child who was disruptive, and Ms.
Bennett noted not much could be accomplished during the meeting. (Tr. 765). Plaintiff had no
complaints of hallucinations at that time. (Tr. 765).
Between June 16, 2010 and November 5, 2010 Plaintiff mainly reported stress due to issues
with his girlfriend and his living situation. (Tr. 925-965). Notably, Plaintiff’s reports of
hallucinations stopped as abruptly as they started. (Tr. 925-65). In fact, by June 2010, each
caseworker began marking that Plaintiff had “no problem” with hallucinations or delusions at each
visit. (Tr. 925-65).
Around July 23, 2010, Plaintiff was arrested for “an incident at his home”, where he fought
with police and was tasered three times. (Tr. 962). After his arrest, Plaintiff generally discussed
being nervous about his court dates and whether or not he wanted to break up with his girlfriend.
(Tr. See Tr. 954). Again, he reported no hallucinations or delusions.

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By March 11, 2011, Plaintiff was attending group therapy and participated well within the
group. (Tr. 911). The caseworker noted Plaintiff still had no problems with hallucinations, delusions,
depression, anxiety, or judgment. (Tr. 911).
Opinion Evidence
Dr. James Sunbury, an independent psychological examiner, evaluated Plaintiff on April 8,
2009. (Tr. 529-32). On examination, Plaintiff was able to concentrate on questions, made fair eye
contact, and maintained his train of thought. (Tr. 531). Plaintiff reported being depressed and
recalled a suicide attempt in 2002 where he jumped off a bridge and hurt his leg. (Tr. 531). Plaintiff
also reported having panic attacks twice a week. (Tr. 531). Dr. Sunbury found Plaintiff’s insight and
judgement fair and assigned him a GAF score of 602. (Tr. 531-32). Plaintiff showed no sign of
thought disorder, he did not describe intrusive thoughts, and he revealed no delusional or paranoid
ideation. (Tr. 531). Dr. Sunbury opined Plaintiff was no more than mildly impaired in his functional
and psychological ability to work and diagnosed him with depressive disorder, not otherwise
specified. (Tr. 532).
On April 19, 2009, non-examining state consultant Dr. Caroline Lewin found Plaintiff’s
impairments did not meet or equal a listed impairment. (Tr. 533-47). Generally, she found Plaintiff
was moderately limited in understanding, memory, sustained concentration, and persistence, but
markedly limited in his ability to understand, remember, and carry out detailed instructions. (Tr.
548). Dr. Lewin noted Plaintiff had “a long history of problems with anger management.” (Tr. 550).
She discussed Plaintiff’s seizure history, cognitive difficulties, and reporting discrepancies about
2. A higher number represents a higher level of functioning. DSM-IV-TR, 32-33. A GAF score
between 51 and 60 indicates “moderate symptoms (e.g., flat affect or circumstantial speech,
occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g.,
few friends, conflicts with peers or co-workers).” Id. at 34.
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his mental history during consultive examinations. (Tr. 550). For example, Plaintiff denied
receiving vocational assistance even though notes indicated satisfactory reports and work
assessments from BVR and the Counseling Center. (Tr. 550). Dr. Lewin rejected Dr. Sunbury’s
assessment that Plaintiff was only mildly impaired in his ability to work and afforded his opinion
no weight. (Tr. 550). Instead, she opined Plaintiff’s long history of fighting would moderately
restrict relating, his suicide attempts suggested moderate stress intolerance, and he was moderately
limited in his ability to concentrate and recall. (Tr. 550). Regarding Plaintiff’s mental residual
functional capacity (RFC), she found:
The claimant remains able to handle most simple instructions in a low stress work
setting where concentration needed is short term and relating to others is kept
superficial. He has problems with fighting and complying with medical supervision
and directives. However he was cooperative at the [consultive examination]. He may
show some dependency on others at times and his tendency to avoid job searches due
to being “too busy at home” suggests that attendance and a normal work week may
sometimes be impacted.
(Tr. 550).
On September 16, 2009, state agency consultant Dr. Steven Meyer affirmed Dr. Lewin’s
assessment. (Tr. 581). He noted a summary report indicating returned hallucinations in the preceding
months, but also noted office visit notes were not consistent with the summary report. (Tr. 581). He
noted Plaintiff’s statement regarding memory loss was partially credible but the evidence did not
support new and material changes to Dr. Lewin’s initial decision. (Tr. 581).
On January 7, 2010, John Comley, Psy. D., evaluated Plaintiff and prepared a mental
functional capacity assessment at the request of the state disability office. (Tr. 608-13). Although
nothing in the record supported it, Plaintiff told Dr. Comley he was diagnosed with bipolar disorder
and schizophrenia at the Counseling Center ten years prior. (Tr. 609). During the exam, Dr. Comley

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noted Plaintiff was alert, but was defensive and guarded at some times and polite and open at other
times. (Tr. 609). Again, though the record did not support it, Plaintiff claimed he graduated from
South University, an online college. (Tr. 609). Contrary to his testimony that he could no longer
work because of seizures, Plaintiff insisted his last job was with Family Life Center, there was
misunderstanding, and he “called it quits.” (Tr. 609). Plaintiff reported hearing voices and having
hallucinations. (Tr. 609). Dr. Comley estimated Plaintiff’s basic intellectual abilities were average
but within the low average range for intellectual functioning. (Tr. 610-11). He saw Plaintiff’s
condition “basically as the combination of a mood disorder and a borderline psychotic condition,
with a depressed mood, a number of schizoid qualities, and low ego strength.” (Tr. 610).
With regard to his work situation, Dr. Comley concluded Plaintiff should be considered
“psychologically disabled.” (Tr. 612). Despite that conclusion, Dr. Comely found Plaintiff was not
significantly limited in his ability to understand, remember, and carry out detailed instructions and
he was not limited in his abilities to remember locations and work-like procedures and understand
and remember very short and simple instructions. (Tr. 613). Plaintiff was not limited in his abilities
to ask simple questions or request assistance, respond appropriately to changes in a work setting,
be aware of hazards and take precautions, travel to unfamiliar places, or use public transportation.
(Tr. 613). Plaintiff was also not significantly limited in his ability to sustain an ordinary routine
without special supervision. (Tr. 613). However, Plaintiff was moderately limited in his abilities
to maintain attention and concentration for extended periods, perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances, and act appropriately with
the public. (Tr. 613). Dr. Comley found Plaintiff was markedly limited in his abilities to work in
coordination with or proximity to others without being distracted, complete a normal workday and

12

workweek without interruptions from psychologically based symptoms, accept instruction and
respond to criticism appropriately, get along with co-workers, and maintain socially appropriate
behavior. (Tr. 613).
ALJ Hearing
Plaintiff, his attorney, and his girlfriend Tara Hill, appeared and testified before the ALJ on
April 19, 2011. (Tr. 30). Plaintiff’s attorney asserted Plaintiff was physically capable but not
mentally capable of performing sedentary work. (Tr. 36). He based this premise on Dr. Comley’s
assessment coupled with Dr. Lewin’s opinion that Plaintiff’s attendance during a normal workweek
would be affected by his psychological impairments. (Tr. 36).
Plaintiff testified he stopped working in May 2008 because he had back-to-back seizures.
(Tr. 39). He said he was trying to obtain employment but no one was hiring or “they’ve already
filled the position.” (Tr. 40). Concerning daily activity, Plaintiff stated he sometimes cleaned his
bedroom, bathroom, living room, stairs, but he mainly watched television and tried to cook at times.
(Tr. 39).
Plaintiff testified that for the past year and a half, he had about one seizure a month. (Tr. 43).
However, when the ALJ questioned him further based on Dr. Lynch’s notes, Plaintiff acknowledged
he had been seizure free for over two years. (Tr. 45). When questioned about his mental problems,
Plaintiff said he suffered from depression. (Tr. 48). When further pressed about his mental issues,
Plaintiff stated “off hand right now I cannot think of anything, my mind is starting to go blank.” (Tr.
49). He stated he had just graduated from anger management group as a result of getting into an
argument with police. (Tr. 49). The ALJ then asked Plaintiff if there were any other conditions he
had not asked about and Plaintiff responded “not that I know of.” (Tr. 49).

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Plaintiff later said he heard voices and had hallucinations. (Tr. 51). He reported when he
closed his eyes for a split second he saw “things that people wouldn’t normally see” or would hear
“voices or people calling [him] and they’re not even really there”. (Tr. 52). The ALJ asked
Plaintiff’s attorney if he had any questions for Plaintiff and he responded, “I think you addressed
everything I was going to ask. No, your Honor, I don’t think I need to ask any questions.” (Tr. 54).
The VE testified Plaintiff’s past work was categorized as kitchen helper, fast food worker,
and cleaner according to the Dictionary of Occupational Titles (DOT). (Tr. 55). The ALJ asked the
VE to assume a hypothetical person with the same age, education, and work experience as Plaintiff,
who could work at a medium level of exertion, but never climb ladders, ropes or scaffolds, avoid
concentrated exposure to environmental irritants, avoid moving machinery, and exposure to
unprotected heights. (Tr. 56) Work would be limited to simple, routine, and repetitive tasks
performed in an environment free of fast paced production requirements, involving only simple work
related decisions and routine work place changes. (Tr. 56). The VE found this hypothetical
individual could perform Plaintiff’s past jobs with the exception of fast food worker. (Tr. 56).
The ALJ’s second hypothetical mirrored the first, but the individual could only perform light
work. The VE found this person could only perform Plaintiff’s past work as a cleaner. (Tr. 56). The
ALJ’s third hypothetical mirrored the first but the individual could perform only sedentary work.
(Tr. 56). The VE found this person could not perform Plaintiff’s past work but could perform jobs
that existed in the national economy such as, table worker, sorter, or package handler. (Tr. 57).
The ALJ added additional restrictions – superficial and no direct interaction with the public
and only occasional interaction with co-workers – to the third “sedentary” hypothetical. The VE
responded this person would be able to perform work as a table worker, sorter, or package handler.

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Plaintiff’s counsel asked the VE if the third hypothetical person would be able to perform
work if he was markedly limited in his ability to complete a workweek (pursuant to Dr. Comley’s
restrictions). The VE responded that a person with that added restriction would not be able to work.
(Tr. 59).
After the VE testimony, the ALJ requested Plaintiff’s girlfriend Tara Hill testify. (Tr. 59-64).
Ms. Hill had not been present for Plaintiff’s testimony. She testified she had lived with Plaintiff for
four years. (Tr. 60). Concerning Plaintiff’s mental health, she stated Plaintiff had a seizure disorder
and “I guess he’s got depression [] that was diagnosed not too long ago.” (Tr. 63). Ms. Hill never
indicated Plaintiff suffered from auditory or visual hallucinations.
ALJ Decision
In a decision dated April 27, 2011, the ALJ found Plaintiff could perform limited sedentary
work existing in the national economy. (Tr. 7-23).
Although he found they did not meet a listed impairment, the ALJ found Plaintiff had the
following severe impairments: seizure disorder, asthma, ADHD, psychotic disorder not otherwise
specified, depressive disorder not otherwise specified, disc herniation at L4-5, left foot drop, history
of club feet, hypertension, obesity, and tenosynovitis of the left ankle. (Tr. 12-13).
The ALJ found Plaintiff’s seizure disorder was under control when he was compliant with
his medications. (Tr. 16). He discussed Plaintiff’s reports of hallucinations at the Counseling Center
in August 2009 and noted Plaintiff was diagnosed with psychotic and depressive disorder. (Tr. 20).
The ALJ also noted Plaintiff did not mention hallucinations to Dr. Sunbury during his consultive
examination. (Tr. 20).
The ALJ discussed Dr. Comley’s assessment and assigned his “psychologically disabled”

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opinion little weight because it was an issue reserved to the Commissioner. Further, the ALJ found
Dr. Comley’s conclusions were based on a one-time examination and were not consistent with
treatment notes or Plaintiff’s activities of daily living. (Tr. 20-21).
The ALJ gave significant weight to Drs. Lewin and Meyer, noting they were consistent with
Plaintiff’s course of psychological treatment. (Tr. 21).
The ALJ found Plaintiff’s RFC was as follows:
I find that [Plaintiff] [can perform] . . . sedentary work as defined in 20 C.F.R.
404.1567(a) and 416.967(a) except he cannot climb ladders, ropes or scaffolds. He
must avoid concentrated exposure to environmental irritants. [Plaintiff] must avoid
all use of moving machinery and exposure to unprotected heights. He is limited to
work that is simple, routine, and repetitive, performed in a work environment free
of fast-paces production requirements, involving only simple work related decisions
and routine work place changes. [Plaintiff] can have superficial, but no direct,
interaction with the public, and only occasional interaction with co-workers.
(Tr. 15).
Based on VE testimony, the ALJ found Plaintiff could not perform past work, but could
perform jobs that existed in the national economy. (Tr. 22-23).
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 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
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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 SSI and DIB is predicated on the existence of a disability. 42 U.S.C. § 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 and 416.920 – to determine if a claimant is
disabled:
1.

Was claimant engaged in a substantial gainful activity?

2.

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?

3.

Does the severe impairment meet one of the listed
impairments?

4.

What is claimant’s residual functional capacity and can
claimant perform past relevant work?

5.

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
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national economy. Id. The court 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) &
416.920(b)-(f); see also Walters, 127 F.3d at 529.
DISCUSSION
Plaintiff asserts the ALJ erred in devising Plaintiff’s mental RFC because he failed to
incorporate all the mental limitations imposed by Drs. Lewin and Meyer, relied on Dr. Meyer’s
affirming opinion, rejected Dr. Comley’s opinion, and failed to obtain an updated medical expert
opinion. (Doc. 14, at 17-22).
A claimant’s RFC is an assessment of “the most [he] can still do despite [his] limitations.”
20 C.F.R. § 416.945(a)(1). An ALJ must consider all symptoms and the extent to which those
symptoms are consistent with the objective medical evidence Id. § 416.929. While an ALJ must
consider and weigh medical opinions, the RFC determination is expressly reserved to the
Commissioner. Ford v. Comm’r of Soc. Sec., 114 F. App’x 194, 198 (6th Cir. 2004); 20 C.F.R.§§
404.1527(e)(2), 404.1546, 416.927, and 416.945(a)(1).
ALJ’s Evaluation of Opinion Evidence
“Under the regulations, ALJs ‘must consider findings of [s]tate agency medical and
psychological consultants,’ but ALJs ‘are not bound by any findings made by [s]tate agency medical
or psychological consultants.’” Renfro v. Barnhart, 30 F. App’x 431, 436 (6th Cir. 2002) (quoting
20 C.F.R. § 404 .1527(f)(2)(i)). However, “the opinions of non-examining state agency medical
consultants have some value and can, under some circumstances, be given significant weight.”
Douglas v. Comm’r of Soc. Sec., 832 F.Supp. 2d 813, 823-24 (S.D. Ohio 2011). This occurs because
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the Commissioner views such medical sources “as highly qualified physicians and psychologists
who are experts in the evaluation of the medical issues in disability claims under the [Social
Security] Act.” Id.; § 416.927(d),(f); SSR 96–6p at *2–3. “Consequently, opinions of one-time
examining physicians and record-reviewing physicians are weighed under the same factors as
treating physicians including supportability, consistency, and specialization.” Douglas, 832 F.Supp.
2d at 823-24.
Dr. Lewin
First, Plaintiff argues the ALJ erred in giving the opinion of non–examining state agency
psychologist Dr. Lewin “significant weight” but then failing to adopt her actual RFC opinion in its
entirety without explaining the divergence. (Doc. 14, at 18-19; Doc. 20, at 1). The ALJ’s opinion
regarding Plaintiff’s functional limitations for interacting with others differed from those set forth
by Dr. Lewin – namely, the ALJ restricted Plaintiff to superficial interaction with only the public
and occasional interaction with co-workers, while Dr. Lewin’s opinion restricted him to superficial
interaction with supervisors, co-workers, and the public. The ALJ also did not include any limitation
with respect to Plaintiff’s alleged inability to complete a normal workweek.
Simply put, there is no legal requirement for an ALJ to explain each limitation or restriction
he adopts or, conversely, does not adopt from a non-examining physician’s opinion, even when it
is given significant weight. While an ALJ must consider and weigh medical opinions, the RFC
determination is expressly reserved to the Commissioner. Ford, 114 F. App’x at 198.
The ALJ gave Dr. Lewin’s opinion significant weight and adopted the majority of her
functional limitations. He explained Dr. Lewin’s opinion was consistent with Plaintiff’s course of
psychological treatment, and considered his social problems and difficulty concentrating. (Tr. 21).
This explanation sufficiently described the weight he assigned Dr. Lewin’s opinion according to the
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factors outlined in 20 C.F.R. § 404.1527(f)(2), and the ALJ was not legally required to explain
limitations Dr. Lewin imposed that were not incorporated into his RFC.
Indeed, medical evidence substantially supports the ALJ’s RFC without those limitations.
Plaintiff received employment assistance from BVR, consistently attended job fairs, met with or
spoke to prospective employers, and attended job assessments. (Tr. 270-77, 283-308). He worked
efficiently in a group setting or individually and was generally described as having a positive mood.
(See Tr. 279). He also attended group therapy at the Counseling Center and participated well within
the group. (Tr. 911). While there is evidence Plaintiff had anger issues, he testified he recently
graduated from an anger management group. (Tr. 49). Moreover, some of anger behavior was related
to his epilepsy (Tr. 370), but Plaintiff’s epilepsy was controlled with medication and he had not
experienced a seizure in over two years.
Plaintiff contends his mental state – namely his auditory hallucinations and delusions,
depression, and anger issues – prevent him from being able to work a full work week. However, as
the ALJ pointed out, while Plaintiff did report hallucinations for a short period of time, the majority
of his sessions at the Counseling Center focused on frustrations regarding his living situation, his
girlfriend, and his denial of social security benefits. (Tr. 20). Ms. Brugger did note Plaintiff was
“visibly talking to his ‘voices’” on one occasion, but she later noted he “appear[ed] to be very
focused on getting his disability and at times appear[ed] to emphasize the drama of his symptoms”.
(See Tr. 594, 786). While Dr. Zewail diagnosed Plaintiff with schizophrenia, she noted it was
controlled with Seroquel. (Tr. 575-76). Further, the ALJ reasonably noted that when Ms. Hill
testified, she did not spend much time discussing Plaintiff’s mental problems. (See Tr. 21, 60-63).
She had lived with Plaintiff for four years but stated he had only recently been diagnosed with
depression and never mentioned hallucinations, delusions, or suicide attempts. The foregoing
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constitutes substantial evidence no additional restrictions were required other than those already
imposed by the ALJ.
Dr. Meyer
Plaintiff additionally argues the ALJ erred by relying on the opinion of state agency reviewer
Dr. Meyer, who affirmed Dr. Lewin’s April 2009 opinion in September 2009. (Doc. 14, at 18-19;
Tr. 581). Plaintiff contends Dr. Meyer’s assessment was inaccurate because he either lacked
sufficient evidence of Plaintiff’s hallucinations or did not take them into account.
Dr. Meyer did consider the “return of hallucinations” but concluded the evidence did not
support new and material changes to Dr. Lewin’s opinion and chose to affirm it. (Tr. 581). Plaintiff
is correct to note Dr. Meyer did not review all the evidence relating to Plaintiff’s hallucinations
because all the evidence did not exist when he affirmed Dr. Lewin’s opinion. Plaintiff reported
hallucinations between August 2009 and June 2010, Dr. Meyer affirmed Dr. Lewin’s opinion
September 2009. However, the ALJ had all of the evidence pertaining to Plaintiff’s hallucinations,
which he reviewed and discussed in his decision. In the end, the ALJ utilized his discretion and
chose to afford “significant weight” to both state agency reviewers opinions, which he was legally
permitted to do. § 416.927(d); Douglas, 832 F.Supp. 2d at 823-24; SSR 96–6p at *2–3.
Relatedly, Plaintiff argues the ALJ improperly relied on VE testimony given in response to
a flawed hypothetical, which failed to account for all the mental limitations set forth by Dr. Lewin.
(Doc. 14, at 19). However, an ALJ is only required to incorporate those limitations into his RFC or
hypothetical question to the VE that he finds credible. Casey v. Sec’y of Health & Human Servs.,
987 F.2d 1230, 1235 (6th Cir. 1993).The ALJ was permitted to devise an RFC posed as a
hypothetical based on his consideration of medical opinions in the record. As noted above, his RFC
is supported by substantial evidence.
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Dr. Comley
Dr. Comley concluded Plaintiff was markedly limited in his abilities to work with others or
complete a normal workweek without interruption, opining he should be considered
“psychologically disabled”. (Tr. 612).
Plaintiff argues the ALJ erred because he did not weigh Dr. Comley’s opinion according to
the factors in 20 C.F.R. 404.1527 – examining relationship, treatment relationship, supportability,
consistency, and specialization. (Doc. 14, at 20-21). This is not so.
The ALJ explicitly rejected Dr. Comley’s opinion that Plaintiff is “psychologically disabled”
because it was an issue reserved to the Commissioner. §§ 404.1503, 404.1527(e), 416.903, and
416.927(e); (Tr. 21). He further afforded Dr. Comley’s opinion little weight because “his
conclusions [were] based on a onetime examination, and [were] not consistent with the treatment
notes [or] [Plaintiff’s] activities of daily living.” (Tr. 21). This statement, while brief, touched
several of the factors an ALJ is required to consider in § 404.1527 – treatment relationship,
supportability, and consistency – which is all that is required. Allen v. Comm’r of Soc. Sec., 561 F.3d
646, 651 (6th Cir. 2009) (While the stated reason for discounting a physician was brief, it was
sufficient because it accounted for several factors in § 404.1527).
Medical Expert
Last, Plaintiff alleges the ALJ erred by failing to employ a medical expert, given the
resurgence of Plaintiff’s psychotic symptoms subsequent to the state reviewing consulting opinions
coupled with his decision to afford little weight to Dr. Comley’s opinion. (Doc. 20, at 8).
Under Social Security law, “[t]he burden of providing a . . . record . . . complete and detailed
enough to enable the Secretary to make a disability determination [] rests with the claimant.”
Landsaw, 803 F.3d at 214. The ALJ has the “discretion to determine whether further evidence, such
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as additional testing or expert testimony, is necessary.” Foster v. Halter, 279 F.3d 348, 355 (6th Cir.
2001) (citing 20 C.F.R. § 416.917 (“If your medical sources cannot or will not give us sufficient
evidence about your impairment for us to determine whether you are disabled or blind, we may ask
you to have one or more physical or mental examinations or tests.” (emphasis added)). Additionally,
the regulations give an ALJ discretion to determine whether to consult a medical expert. 20 C.F.R.
§ 416.927(f)(2)(iii) (ALJ “may . . . ask for and consider opinions from medical experts on the nature
and severity of [a claimant’s] impairment” (emphasis added)). “The primary function of a medical
expert is to explain medical terms and the findings in medical reports in more complex cases in
terms that the [ALJ], who is not a medical professional, may understand.” Fullen v. Comm’r of Soc.
Sec., 2010 WL 2789581, *12 (S.D. Ohio) (citing Richardson v. Perales, 402 U.S. 389, 408 (1972)).
Plaintiff primarily argues that after discounting Dr. Comley’s opinion, the ALJ was left in
a position to make medical judgments about Plaintiff’s mental health condition, because no medical
expert reviewed Plaintiff’s psychosis. This is simply not true.
First, although the ALJ gave Dr. Comley little weight, he did not completely reject his
opinion. In addition, the record included over three years of mental health treatment notes from the
Counseling Center, including notes regarding the “resurgence of hallucinations”. These treatment
notes mainly reflected Plaintiff’s anxiety over his living situation, his girlfriend, and his denial of
social security benefits. Further, Dr. Zewail’s diagnosed Plaintiff with schizophrenia but noted it
was controlled with Seroquel. (Tr.575-76). And by June 2010, Plaintiff abruptly ceased reporting
hallucinations. There was clear, sufficient evidence in the record for the ALJ to make a
determination. And since the regulations give an ALJ discretion to determine whether to consult a
medical expert, he did not err. 20 C.F.R. § 416.927(f)(2)(iii)

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CONCLUSION
Following review of the arguments presented, the record, and applicable law, the Court finds
substantial evidence supports the ALJ’s decision. Therefore, the Court affirms the Commissioner’s
decision denying benefits.
IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge

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