French v. Commissioner Social Security Administration
Memorandum Opinion and Order that the decision of the Commissioner is affirmed (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 9/15/2014. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL
CASE NO. 5:13 CV 1655
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
Nature of the case and proceedings
Before me1 is an action by Lynne French under 42 U.S.C. § 405(g) for judicial review
of the final decision of the Commissioner of Social Security denying her applications for
disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
ECF # 17. The parties have consented to my exercise of jurisdiction.
ECF # 1.
ECF # 12.
ECF # 13.
ECF # 5.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10
Background facts and decision of the Administrative Law Judge (“ALJ”)
French, who was 59 years old at the time of the hearing,11 has a high school education,
lives alone with a pet, and worked previously as a home health aide.12
The ALJ, whose decision became the final decision of the Commissioner, found that
French had the following severe impairments: degenerative disc disease of the lumbar spine
with mild grade I retrolisthesis of L5 on S1, personality disorder not otherwise specified,
major depressive disorder, and generalized anxiety disorder.13
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding French’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as
defined in 20 CFR 404.1567(c) and 416.967(c) except that claimant can
ECF # 14.
ECF # 15 (French’s brief); ECF # 18 (Commissioner’s brief); ECF # 19 (French’s
ECF # 15-2 (French’s charts); ECF # 18-1 (Commissioner’s charts).
ECF # 15-1 (French’s fact sheet).
ECF # 21.
Transcript (“Tr.”) at 26, 28.
Id. at 25-26.
Id. at 17.
perform simple, routine tasks which can be learned in thirty days or less; the
claimant can perform low-stress tasks, meaning she is precluded from tasks
involving high production quotas such as piecework or assembly line work,
strict time requirements, arbitration, negotiation, confrontation direction of the
work of others or responsibility for the safety of others; the claimant is able to
make judgments on simple, work related decisions; the claimant is able to
respond to usual work situations and changes in a routine work setting.14
The ALJ decided that this residual functional capacity precluded French from performing her
past relevant work.15
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that French could
perform.16 The ALJ, therefore, found French not under a disability.17
Issues on judicial review and decision
French asks for reversal of the Commissioner’s decision on the ground that it does not
have the support of substantial evidence in the administrative record. Specifically, French
presents the following issues for judicial review:
The RFC finding is not supported by substantial evidence because the
ALJ failed to give controlling weight to the opinion of French’s treating
psychiatrist, Dr. Thakore; gave no weight to the opinions of two state
Id. at 20-21.
Id. at 26.
Id. at 27.
reviewing physicians; and little weight to the consultative examining
The RFC is not supported by substantial evidence because the evidence
cited by the ALJ is “cherry-picked” evidence.19
The finding at step five is not supported by substantial evidence
because the question to the VE, which was based on the RFC, did not
accurately portray French’s mental limitations.20
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.
Standards of review
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable
to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
ECF # 15 at 4.
Id. at 4-5.
Id. at 5.
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.21
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
Treating physician rule and good reasons requirement
The regulations of the Social Security Administration require the Commissioner to
give more weight to opinions of treating sources than to those of non-treating sources under
Generally, we give more weight to opinions from your treating sources, since
these sources are likely to be the medical professionals most able to provide
a detailed, longitudinal picture of your medical impairment(s) and may bring
a unique perspective to the medical evidence that cannot be obtained from
objective medical findings alone or from reports of individual examinations,
such as consultative examinations or brief hospitalizations.24
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
20 C.F.R. § 404.1527(d)(2).
If such opinions are “well-supported by medically acceptable clinical and laboratory
diagnostic techniques” and “not inconsistent with the other substantial evidence in [the] case
record,” then they must receive “controlling” weight.25
The ALJ has the ultimate responsibility for determining whether a claimant is
disabled.26 Conclusory statements by the treating source that the claimant is disabled are not
entitled to deference under the regulation.27
The regulation does cover treating source opinions as to a claimant’s exertional
limitations and work-related capacity in light of those limitations.28 Although the treating
source’s report need not contain all the supporting evidence to warrant the assignment of
controlling weight to it,29 nevertheless, it must be “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” to receive such weight.30 In deciding if such
supporting evidence exists, the Court will review the administrative record as a whole and
may rely on evidence not cited by the ALJ.31
Schuler v. Comm’r of Soc. Sec., 109 F. App’x 97, 101 (6th Cir. 2004).
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 991 (N.D. Ohio 2003), citing
Green-Younger v. Barnhart, 335 F.3d 99, 106-07 (2nd Cir. 2003).
Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984).
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001).
Id. at 535.
In Wilson v. Commissioner of Social Security,32 the Sixth Circuit discussed the treating
source rule in the regulations with particular emphasis on the requirement that the agency
“give good reasons” for not affording controlling weight to a treating physician’s opinion in
the context of a disability determination.33 The court noted that the regulation expressly
contains a “good reasons” requirement.34 The court stated that to meet this obligation to give
good reasons for discounting a treating source’s opinion, the ALJ must do the following:
State that the opinion is not supported by medically acceptable clinical
and laboratory techniques or is inconsistent with other evidence in the
Identify evidence supporting such finding.
Explain the application of the factors listed in 20 C.F.R.
§ 404.1527(d)(2) to determine the weight that should be given to the
treating source’s opinion.35
The court went on to hold that the failure to articulate good reasons for discounting
the treating source’s opinion is not harmless error.36 It drew a distinction between a
regulation that bestows procedural benefits upon a party and one promulgated for the orderly
transaction of the agency’s business.37 The former confers a substantial, procedural right on
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541 (6th Cir. 2004).
Id. at 544.
Id., citing and quoting 20 C.F.R. § 404.1527(d)(2).
Id. at 546.
the party invoking it that cannot be set aside for harmless error.38 It concluded that the
requirement in § 1527(d)(2) for articulation of good reasons for not giving controlling weight
to a treating physician’s opinion created a substantial right exempt from the harmless error
The Sixth Circuit in Gayheart v. Commissioner of Social Security40 recently
emphasized that the regulations require two distinct analyses, applying two separate
standards, in assessing the opinions of treating sources.41 This does not represent a new
interpretation of the treating physician rule. Rather it reinforces and underscores what that
court had previously said in cases such as Rogers v. Commissioner of Social Security,42
Blakley v. Commissioner of Social Security,43 and Hensley v. Astrue.44
As explained in Gayheart, the ALJ must first consider if the treating source’s opinion
should receive controlling weight.45 The opinion must receive controlling weight if
(1) well-supported by clinical and laboratory diagnostic techniques and (2) not inconsistent
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365 (6th Cir. 2013).
Id. at 375-76.
Rogers, 486 F.3d at 242 (6th Cir. 2007).
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009).
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
Gayheart, 710 F.3d at 376.
with other substantial evidence in the administrative record.46 These factors are expressly set
out in 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Only if the ALJ decides not to give
the treating source’s opinion controlling weight will the analysis proceed to what weight the
opinion should receive based on the factors set forth in 20 C.F.R. §§ 404.1527(d)(2)(i)-(ii),
(3)-(6) and §§ 416.927(d)(2)(i)-(ii), (3)-(6).47 The treating source’s non-controlling status
notwithstanding, “there remains a presumption, albeit a rebuttable one, that the treating
physician is entitled to great deference.”48
The court in Gayheart cautioned against collapsing these two distinct analyses into
one.49 The ALJ in Gayheart made no finding as to controlling weight and did not apply the
standards for controlling weight set out in the regulation.50 Rather, the ALJ merely assigned
the opinion of the treating physician little weight and explained that finding by the secondary
criteria set out in §§ 1527(d)(i)-(ii), (3)-(6) of the regulations,51 specifically the frequency of
the psychiatrist’s treatment of the claimant and internal inconsistencies between the opinions
Rogers, 486 F.3d at 242.
Gayheart, 710 F.3d at 376.
and the treatment reports.52 The court concluded that the ALJ failed to provide “good
reasons” for not giving the treating source’s opinion controlling weight.53
But the ALJ did not provide “good reasons” for why Dr. Onady’s opinions fail
to meet either prong of this test.
To be sure, the ALJ discusses the frequency and nature of Dr. Onady’s
treatment relationship with Gayheart, as well as alleged internal
inconsistencies between the doctor’s opinions and portions of her reports. But
these factors are properly applied only after the ALJ has determined that a
treating-source opinion will not be given controlling weight.54
In a nutshell, the Wilson/Gayheart line of cases interpreting the Commissioner’s
regulations recognizes a rebuttable presumption that a treating source’s opinion should
receive controlling weight.55 The ALJ must assign specific weight to the opinion of each
treating source and, if the weight assigned is not controlling, then give good reasons for not
giving those opinions controlling weight.56 In articulating good reasons for assigning weight
other than controlling, the ALJ must do more than state that the opinion of the treating
physician disagrees with the opinion of a non-treating physician57 or that objective medical
evidence does not support that opinion.58
Rogers, 486 F.3d 234 at 242.
Blakley, 581 F.3d at 406-07.
Hensley, 573 F.3d at 266-67.
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551-52 (6th Cir. 2010).
The failure of an ALJ to follow the procedural rules for assigning weight to the
opinions of treating sources and the giving of good reason for the weight assigned denotes
a lack of substantial evidence even if the decision of the ALJ may be justified based on the
record.59 The Commissioner’s post hoc arguments on judicial review are immaterial.60
Given the significant implications of a failure to properly articulate (i.e., remand)
mandated by the Wilson decision, an ALJ should structure the decision to remove any doubt
as to the weight given the treating source’s opinion and the reasons for assigning such
weight. In a single paragraph the ALJ should state what weight he or she assigns to the
treating source’s opinion and then discuss the evidence of record supporting that assignment.
Where the treating source’s opinion does not receive controlling weight, the decision must
justify the assignment given in light of the factors set out in §§ 1527(d)(1)-(6).
The Sixth Circuit has identified certain breaches of the Wilson rules as grounds for
reversal and remand:
the failure to mention and consider the opinion of a treating source,61
the rejection or discounting of the weight of a treating source without
Blakley, 581 F.3d at 407.
Wooten v. Astrue, No. 1:09-cv-981, 2010 WL 184147, at *8 (N.D. Ohio Jan. 14,
Blakley, 581 F.3d at 407-08.
Id. at 408.
the failure to explain how the opinion of a source properly considered
as a treating source is weighed (i.e., treating v. examining),63
the elevation of the opinion of a nonexamining source over that of a
treating source if the nonexamining source has not reviewed the
opinion of the treating source,64
the rejection of the opinion of a treating source because it conflicts with
the opinion of another medical source without an explanation of the
reason therefor,65 and
the rejection of the opinion of a treating source for inconsistency with
other evidence in the record without an explanation of why “the treating
physician’s conclusion gets the short end of the stick.”66
The Sixth Circuit in Blakley67 expressed skepticism as to the Commissioner’s
argument that the error should be viewed as harmless since substantial evidence exists to
support the ultimate finding.68 Specifically, Blakley concluded that “even if we were to agree
that substantial evidence supports the ALJ’s weighing of each of these doctors’ opinions,
substantial evidence alone does not excuse non-compliance with 20 C.F.R. § 404.1527(d)(2)
as harmless error.”69
Id. at 409.
Hensley, 573 F.3d at 266-67.
Friend, 375 F. App’x at 551-52.
Blakley, 581 F.3d 399.
Id. at 409-10.
Id. at 410.
In Cole v. Astrue,70 the Sixth Circuit reemphasized that harmless error sufficient to
excuse the breach of the treating source rule only exists if the opinion it issues is so patently
deficient as to make it incredible, if the Commissioner implicitly adopts the source’s opinion
or makes findings consistent with it, or if the goal of the treating source regulation is satisfied
Application of standards
As noted above, this case centers on the ALJ’s treatment of the functional limitations
opinion of French’s treating psychiatrist, Dr. Yuan Thakore.72
There is no dispute that the ALJ did not perform the separate, two-step analysis of
Dr. Thakore’s opinion that is required by Gayheart. However, the Commissioner argues, as
is frequently the case, that a holistic reading of the ALJ’s decision will show that the ALJ
substantially met the requirements of Gayheart, thus providing substantial evidence to
support the finding.
The ALJ’s decision addresses Dr. Thakore’s opinion in two lengthy paragraphs.
Initially, she summarizes Dr. Thakore’s medical source statement of January 23, 2012.
In that statement, Dr. Thakore opined that French had marked or extreme limitations in:
(1) maintaining attention for extended periods, (2) performing activities on a schedule,
Cole v. Astrue, 661 F.3d 931 (6th Cir. 2011).
Id. at 940.
Tr. at 24. Dr. Thakore is identified here by the ALJ as “the claimant’s treating
(3) maintaining regular attendance and being punctual, (4) completing a normal workday and
workweek without interruptions from psychologically based symptoms, (5) performing at a
consistent pace without an unreasonable number of rest periods, (6) accepting instructions
from and responding appropriately to criticism from supervisors, and (7) responding
appropriately to changes in the work setting.73 As the ALJ observed, Dr. Thakore based these
limitations to French’s functional capacities by relating his view that “when depressed she
isolates and does not communicate with professionals like the BVR and just doesn’t show
up for work.”74
In the next paragraph, the ALJ assigned these opinions “less than full weight,”
because “they are inconsistent with his [Dr. Thakore’s] clinical observations and those of the
claimant’s other mental health treatment providers.”75 In that regard, the ALJ stated that
Dr. Thakore’s own treatment notes found French to be “cognitively intact” at an examination
in 2009.76 Moreover, the ALJ observed that “no mental health professional, including
Dr. Thakore, noted deficits in [French’s] memory, concentration or attention during her
ongoing treatment.”77 Further, the ALJ stated that “while [French] sporadically reported
depression associated with her lack of employment,” the actual observations of Dr. Thakore
Id. at 24-25.
Id. at 25.
and other professionals was that French had “a euthymic mood and a full affective range.”78
Finally, the ALJ’s decision was that Dr. Thakore’s opinion as to French’s limitations in the
areas of concentration, persistence, and pace, and ability to sustain her efforts for an entire
workday or workweek “are not supported by the observations of the claimant he and other
treatment providers made during the claimant’s treatment.”79
French argues that the ALJ’s opinion is flawed in respect of its treatment of
Dr. Thakore on four grounds:
the ALJ never assigned a specific weight to Dr. Thakore’s opinion thus
leaving the reviewing court without a basis for meaningful judicial
the ALJ “cherry-picked” entries from treating notes to convey an
inaccurate picture of French’s condition as seen by her physicians, such
as in claiming that her doctors found her mood to be mostly positive or
“euthymic,” when the treatment notes actually contain many notations
of anxiety, depression and even suicide;81
the ALJ “grossly mischaracterized” the reasons French twice was
unable to return to work, suggesting that “factors other than her medical
impairments” were why she was unsuccessful in returning to work, and
so ignoring the fact that she was terminated from both jobs quickly
after being hired for not showing up for work, which was linked by her
job coach to her depression;82 and
ECF # 15 at 12-13.
Id. at 13.
the ALJ neglected to consider the findings of non-medical sources, and
instead compared Dr. Thakore’s opinion to only the findings of other
“mental health treatment providers.”83
In the end, French maintains, the ALJ was forced to “independently craft” an RFC
based on selected evidence that essentially amounted to the ALJ “playing doctor.”84 In
particular, she contends, none of the activities highlighted by the ALJ as contradicting the
opinion of Dr. Thakore establish that “French has the ability to sustain work activity.”85
As to French’s argument that the ALJ did not assign a specific weight to
Dr. Thakore’s opinion, and did not analyze each element of the regulations in arriving at the
decision concerning Dr. Thakore,86 an ALJ is under no obligation to conduct an “exhaustive
factor-by-factor analysis” of each element of the treating physician rule before arriving at a
determination of weight.87 Further, while perhaps the ALJ here could have been more precise
in describing the weight assigned, there is no particular terminology for describing weight
required in the regulations, and the term used here, along with the reasons given, are
sufficient to permit meaningful judicial review.
French’s contention that the ALJ “cherry-picked” opposing evidence to reduce the
weight given to portions of Dr. Thakore’s opinion is also not fully persuasive. First, it is clear
ECF # 19 at 4-6.
Id. at 9.
See, ECF # 15 at 15.
Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804-05 (6th Cir. 2011).
that an ALJ is permitted to treat different portions of a medical source statement differently,
so long as good reasons for doing so are provided.88 Further, this Court must defer to the
Commissioner’s findings if they are supported by substantial evidence, “even if there is
substantial evidence in the record that would have supported an opposite conclusion.”89
Here, Dr. Thakore’s opinion that French has marked or extreme limitations in several
areas of work-related functioning is not consistent with the following facts expressly noted
in the ALJ’s decision:
A “history of conservative treatment for claimant’s psychological
conditions and the apparent effectiveness of that treatment.” In her
opinion the ALJ made specific mention of the complaints by French
that were in Dr. Thakore’s treatment notes, such as for “diminished
motivation and energy,” as well as of “feelings of guilt, hopelessness
and worthlessness and past suicidal ideation.”90 But the ALJ found that
French herself had reported that her “depression, anxiety and insomnia
had improved since beginning the medications Prozac and Vistaril over
one month before.”91 In that regard, the ALJ noted that French has been
on the same dosage of Prozac, Buspar and Vistaril since 2010 and that
she had reported the medications were helpful and produced no side
The treatment notes from the mental health professionals involved in
French’s care at Portage Path were found by the ALJ not to reflect
“their regular observation of clinical signs consistent with the
Rogers, 486 F.3d at 242.
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal
Tr. at 22.
claimant’s allegations of the severity of her impairments.”93 Unlike
French’s characterization that the ALJ here “cherry-picked” a few
favorable notes concerning French’s condition while ignoring other
notes documenting greater impairments, the ALJ actually specifically
cited four instances where the Portage Path treatment notes contained
observations of French having “a slightly anxious or dysthymic mood,”
while then specifically citing to 11 places in the treatment notes where
French was described as “having a euthymic or pleasant mood and full
or appropriate affective range.”94 Far from being either a willful
misrepresentation of the facts, or an attempt to selectively cherry-pick
only supportive facts from an otherwise non-supportive record, the ALJ
here clearly attempted to state the complete nature of the observations
by Portage Path staff, and then to understand and document which
observations represented “sporadic” findings as opposed to which were
the more general or consistent findings.
As to the most severe reported symptom, the thought of suicide, the
ALJ again was careful to document that while French did report that
ideation, she was never hospitalized for that condition, and there is no
evidence that this symptom was more severe than was noted by
Dr. Thakore in August 2009.95
The ALJ also noted that the records showed that when French did not
take her medications as prescribed, which at times was “frequently” and
for “as long as a month,”only “mild dysphoria was observed on
In addition to these findings that are inconsistent with Dr. Thakore’s functional
limitations opinion, the ALJ also cited elements of French’s own Function Reports of 2009
Id. (citations omitted).
Id. at 23.
and 2010 that were inconsistent.97 Moreover, the ALJ also took specific note of French’s own
testimony at the February 2012 hearing where she testified to a full range of daily activities
involved with living alone and independently. Those activities, under the conditions
described, are, the ALJ found, “inconsistent with her allegations as to the severity of her
In the end, rather than creating the RFC out of nothing but tissues of misinformation,
as French asserts, the ALJ, on the record, stated:
Given all the factors analyzed in this case, including but not limited to the
claimant’s work history, her sporadic symptomatic claims to treatment
providers, the conservative treatments offered to the claimant, and the relative
lack of strongly positive clinical signs documented in treatment notes, the
preponderance of the evidence supports a finding that she can perform a range
of medium exertion work activities with the mental limitations set forth
Accordingly, while there may be evidence that could support a more restricting RFC
or even a finding of disability, a review of the record and the ALJ’s decision shows that the
ALJ here presented good reasons, stated clearly in the opinion itself, for not assigning
Dr. Thakore’s functional limitation opinion controlling weight and further grounded the RFC
that was ultimately fashioned on substantial evidence.
Id. at 25-26.
Id. at 26.
Thus, for the reasons stated, substantial evidence supports the finding of the
Commissioner that French had no disability. The denial of French’s applications is affirmed.
IT IS SO ORDERED.
Dated: September 15, 2014
s/ William H. Baughman, Jr.
United States Magistrate Judge
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