Fisher v. Commissioner of Social Security Administration

Filing 18

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; this case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 2/28/17. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

KAREN FISHER,

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

CASE NO. 5:16CV708
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER

Plaintiff Karen Fisher (“Plaintiff”) requests judicial review of the final decision of the
Commissioner of Social Security Administration (“Defendant”) denying her seventh application for
Supplemental Security Income (“SSI”). ECF Dkt. #1. In her brief on the merits, Plaintiff asserts
that: (1) the administrative law judge (“ALJ”) failed to give appropriate weight to the opinions of
the examining psychologist; and (2) the ALJ erred in assessing Plaintiff’s credibility. ECF Dkt. #13.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed her most recent application for SSI on September 4, 2012. ECF Dkt. #8 (“Tr.”)

at 210-215.2 She alleged disability beginning August 17, 2012 due to depression, bipolar disorder,
anxiety attacks, and schizophrenia. Id. at 241, 197. The Social Security Administration (“SSA”)
denied her application initially and upon reconsideration. Id. at 153-156, 160-167. Plaintiff
requested a hearing before an ALJ, and the hearing was held on August 27, 2014. Id. at 54, 168.

1

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

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

On September 22, 2014, the ALJ issued a decision denying Plaintiff’s application for SSI.
Tr. at 37-49. On March 22, 2016, Plaintiff filed the instant suit seeking review of the ALJ’s
decision. ECF Dkt. #1. The parties thereafter consented to the undersigned’s jurisdiction. ECF Dkt.
#15. Plaintiff filed a brief on the merits on September 8, 2016 and Defendant filed her merits brief
on November 22, 2016. ECF Dkt. #s 13, 17.
II.

RELEVANT MEDICAL AND TESTIMONIAL EVIDENCE
A.

Relevant Medical Evidence

As both parties acknowledge, Plaintiff has a long history of treatment for bipolar disorder,
social anxiety disorder, and schizoaffective disorder. ECF Dkt. #13, at 3 and ECF Dkt. #17, both
citing Tr. at 15-29, 274-298, 305-341, 385-423, 426-444, 455-486, 507-521. Medical notes show
that Plaintiff’s primary mental health provider since December 7, 2010 was The Counseling Center
of Wayne and Holmes Counties. Id.
December 13, 2010 treatment notes show that Plaintiff presented for a medication check and
reported that she had not been doing well although she could not explain reasons for not doing well.
Tr. at 284, 340. She had increased paranoid ideation and depressed mood and decreased self-care.
Id. She feared someone coming to her door and spent most of her time in her nightclothes and had
not been bathing regularly. Id. Upon mental examination, Plaintiff was found to be appropriately
groomed and dressed, with good eye contact, clear speech, and fair memory and concentration. Id.
She acknowledged paranoid ideation but denied hallucinations. Id. Her insight and judgment were
in need of improvement. Id. She was diagnosed with bipolar disorder, depressed with psychotic
features, social anxiety disorder, and general anxiety disorder. Id. Her Celexa, Lamictal, and
Trazadone were continued, and Ability was replaced with Geodon. Id.
Treatment notes show that on January 10, 2011, Plaintiff presented for a medication check
and reported that she had not been compliant with Geodon because she had read about its side
effects and was scared, so she disposed of it. Tr. at 283. She reported auditory hallucinations in the
form of hearing her daughter speak and hearing someone knocking on her door. Id. Upon mental
examination, Plaintiff was found to be appropriately groomed and dressed, with good eye contact,
clear speech, and fair memory and concentration. Id. She acknowledged paranoid ideation and
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auditory hallucinations. Id. Her insight and judgment were in need of improvement. Id. She was
diagnosed with bipolar disorder, depressed with psychotic features, social anxiety disorder, and
general anxiety disorder. Id. Her Geodon was restarted, Lamictal was continued, and Celexa was
continued. Id.
January 25, 2011 treatment notes indicate that Plaintiff presented for evaluation and
treatment and reported that she becomes mean and has lost friends due to her irritability, talking
mean to others, calling them names and telling them to leave her alone. Tr. Ta 328. Plaintiff
indicated that she did not have periods where she will stay awake for days or have out of control
impulses, although she occasionally hears someone call her name. Id. She reported panic attacks
1-2 times per week and was concerned about her anxiety as she felt uncomfortable in crowds and
would send her daughters to the store rather than go herself. Id. Plaintiff believed that people were
judging her and staring at her. Id. Upon examination, Plaintiff was oriented, had good hygiene and
fair eye contact, clear speech, mildly anxious mood, intact concentration and memory, auditory
hallucinations, poor to fair judgment and insight, and normal psychomotor activity. Id. She was
diagnosed with recurrent bipolar disorder not otherwise specified and anxiety disorder not otherwise
specified. Id. Her Lamictal was increased and she was given prescriptions for Geodon, Cogentin,
Lexapro and Trazadone. Id.
Treatment notes show that on April 11, 2011, Plaintiff presented for a medication check after
not showing for her March 16, 2011 medication check due to illness. Tr. at 278, 335. Plaintiff
reported that she was unable to wash or shower without a close family member present in the house
and she had auditory hallucinations in the form of music when no music was playing and she
smelled an annoying odor of smoke which caused her to search her house repeatedly. Id. She
related that she lived near an arsonist before and her prior apartment was broken into which elevated
her anxiety. Id. She also reported leg cramps and muscle aches that could be related to one of the
medications that she was taking, Geodon. Id. Upon mental examination, Plaintiff was found to be
appropriately groomed and dressed, with good eye contact, clear speech, and fair memory and
concentration. Id. Her insight and judgment were in need of improvement. Id. She was diagnosed
with bipolar disorder, depressed with psychotic features, social anxiety disorder, and anxiety
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disorder not otherwise specified. Id. Her Geodon was increased, Lamictal was continued, Celexa
was discontinued and Lexapro was started, Trazadone was continued, and Cogentin was added. Id.

On July 14, 2011, Dr. Smith, Psy.D., conducted a psychological disability assessment at the
request of the agency. Tr. at 300. Plaintiff presented, reporting that she had problems with
emotional maladjustment and periods of psychotic functioning. Id. She indicated that these
problems were identified in early adulthood and were stable and persistent. Id. Plaintiff explained
that she tended to be withdrawn, had lack of interest in jobs, conflicts with bosses, and had not had
real social involvement with people. Id. at 300-301. Plaintiff reported that medications have helped,
but her current problems related to work difficulties, social relationships and with Plaintiff herself.
Id. at 301.
Upon examination, Dr. Smith found that Plaintiff was alert, passive, dependent, indifferent,
withdrawn and nervous. Tr. at 301. At the beginning of the interview, Plaintiff was described as
timid, cautious, and emotionally distant. Id. Before the period began, Plaintiff reported that she had
schizophrenia, bipolar disorder, severe anxiety, and depression. Id. She described her hallucinations
and mood swings, and indicated that she never used drugs and alcohol and she last worked at
Rubbermaid as a customer service representative but had a problem with a supervisor when she was
asked to work on Mother’s Day and she felt that it was not right. Id.
Dr. Smith described Plaintiff’s motivation as good when work tasks were presented to her,
but Plaintiff was not efficient because she worked slowly and became disorganized and missed
details. Tr. at 302. Plaintiff’s stress level was elevated and produced tension, anxiety, and
insecurity, and her mood was described as somewhat anxious, sad, and pessimistic, with an
inappropriate affect. Id. The Millon Clinicial Multiaxial Inventory suggested the combination of
a mood disorder and personality problems, along with strong anxiety, a depressed mood and a
number of schizoid qualities. Id. Plaintiff’s personality was described as having a somewhat
primitive ego that is somewhat inflexible, with marginal reality testing with occasional
misperceptions or faulty assessment of reality and cognitive functioning showed inefficiency in the
form of disorganization and autistic thought content. Id.
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Dr. Smith described Plaintiff’s interpersonal level as Plaintiff having psychodynamic issues
relating to safety and security, believing that people would hurt her if they had the chance. Tr. at
302. She also found Plaintiff to be easily distracted, overfocused and easily disrupted, with apparent
deficits in immediate and remote memory. Id. at 303. On the Weschler Adult Intelligence Scale,
III, Plaintiff scored a verbal IQ of 75, placing her in the borderline range of intellectual functioning.
Id. Dr. Smith believed that this score was somewhat low as a measure of Plaintiff’s best current
functioning and a slight underestimate of her capacity because of interference from nonintellectual
factors, such as Plaintiff’s anxiety during testing, and her serious emotional problems. Id. Dr. Smith
estimated that Plaintiff could function within the borderline range as Plaintiff’s subtest scores
showed no relative strength or weakness on verbal tasks and her testing did not support her having
graduated high school in regular classes. Id.
As to Plaintiff’s motor functions, Dr. Smith noted some hypoactivity and motor retardation,
and she noted slow speech and slowed thinking. Tr. at 303. Dr. Smith reported that Plaintiff
displayed preoccupation with her mental health issues, as well as social and interpersonal deficits,
with ideas of reference, odd beliefs, unusual perceptual experiences, odd thinking and speech,
paranoid suspiciousness, peculiar behavior, a lack of close friends, and excessive social anxiety
based upon paranoid fears. Id.
Dr. Smith diagnosed Plaintiff with schizoaffective disorder, bipolar disorder and
schizophrenia by history, borderline intellectual functioning, and she indicated that Plaintiff was
experiencing a combination of a mood disorder and significant personality problems, with strong
anxiety, a depressed mood, and a number of schizoid traits. Tr. at 303. She rated Plaintiff’s global
assessment of functioning at 49, indicative of serious symptoms. Id. She recommended that
Plaintiff participate in outpatient psychological treatment and she should receive a psychiatric
evaluation of her condition.

Id. at 304.

She opined that Plaintiff “should be considered

‘psychologically disabled.’” Id.
Plaintiff continued to receive medication treatment and follow-up for her psychological
conditions at The Counseling Center from 2011-2014. Tr. at 305-341. Treatment notes show that
in July of 2011, Plaintiff was managing to live on her own in the community with the support of her
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children. Id. at 315. Plaintiff continued to report ongoing paranoia and hallucinations at times in
2011. Id. at 314-319. Psychiatric treatment notes from February 17, 2012 indicated that Plaintiff
reported that she was doing “dumb” things and will be inconsiderate of others for no reason. Id. at
326. She described her mood as anxious and worrying about unimportant events. Id. She felt
nervous and had panic attacks where she “freaks out,” but she denied agoraphobia. Id. She also
reported that she heard her daughter’s voice or the phone ringing. Id. Plaintiff indicated that her
mood was mildly anxious, but it was overall improved and stabilized and her sleep and appetite were
adequate. Id. Upon examination, Plaintiff was oriented, had good hygiene and fair eye contact, clear
speech, anxious mood, fair judgment and insight, and normal psychomotor activity. Id. She was
diagnosed with recurrent bipolar disorder not otherwise specified and anxiety disorder not otherwise
specified. Id. Based upon Plaintiff’s report that the increased Lamictal had stabilized her mood and
her medications were effective and well-tolerated, the medications were continued. Id.
Psychiatric treatment notes from April 13, 2012, indicated that Plaintiff reported feeling good
and stable, with good family support and sleep. Id. at 324. Plaintiff indicated that her two sisters
have schizophrenia and have both been hospitalized several times. Id. Upon examination, Plaintiff
was oriented, had good hygiene and eye contact, clear speech, euthymic mood, auditory
hallucinations, good judgment and insight, and normal psychomotor activity. Id. She was
diagnosed with recurrent bipolar disorder not otherwise specified and anxiety disorder not otherwise
specified. Id. Her Lexapro, Lamictal, Geodon, Cogentin and Trazadone were continued. Id.
On July 13, 2012, a psychiatric treatment note indicated that Plaintiff reported increased
energy, but not staying awake for days, and she had adequate appetite and sleep, a depressed mood
with crying often as she had several stressors that were creating anxiety and depression. Id. at 322.
Upon examination, Plaintiff was oriented, had good hygiene and eye contact, clear speech, depressed
mood, no reported hallucinations, good judgment and insight, and normal psychomotor activity. Id.
She was diagnosed with recurrent bipolar disorder not otherwise specified and anxiety disorder not
otherwise specified. Id. Her Lexapro was increased and her Lamictal, Geodon, Cogentin and
Trazadone were continued. Id.

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On October 5, 2012, a psychiatric treatment note indicated that Plaintiff reported racing
thoughts, difficulties concentrating and focusing, and hearing voices like her daughter’s voice or a
stereo a couple times per week. Tr. at 392. She indicated that her symptoms started in 1998 and she
had been with the Counseling Center for 12 years.

Id.

Upon examination, Plaintiff had

nonpressured speech, fair affect, up and down mood, no flight of ideas, no overt delusions and
occasional auditory hallucinations. Id. She was diagnosed with bipolar affective disorder, currently
mixed, and anxiety disorder not otherwise specified. Id. Her Lexapro was decreased, Geodon was
increased, and Lamictal, Cogentin and Trazadone were continued. Id.
Progress notes from November 2, 2012 indicated that Plaintiff reported doing better and
having a more stable mood. Tr. at 391. She stated that she still occasionally heard sounds, like
knocking on a door, her cell phone ringing when it was not, or music playing, but she felt leveled
out and was tolerating her medications well. Id. Examination showed that Plaintiff was well
groomed, had nonpressured speech, fair affect, euthymic mood, and occasional auditory
hallucinations. Id. She was diagnosed with bipolar affective disorder, currently euthymic, and
anxiety disorder not otherwise specified. Id. Her Lexapro, Lamictal, Geodon, Cogentin and
Trazadone were continued. Id.
On December 3, 2012, psychiatric treatment notes indicated that Plaintiff reported having
problems with her memory, like forgetting to shower off her soap and forgetting what she was
looking for when she went into a room. Tr. at 389, 396, 421. She indicated that she had increased
energy and some racing thoughts, but she was sleeping fine. Id. Upon examination, Plaintiff was
oriented, had good hygiene and non-pressured speech, fair affect, fairly decent mood, and no thought
disorder or perceptual disturbances. Id. She was diagnosed with bipolar affective disorder,
currently perhaps mildly hypomanic, and anxiety disorder not otherwise specified. Id. Her Lexapro
was decreased and her Lamictal, Geodon, Cogentin and Trazadone were continued. Id.
On January 21, 2013, psychiatric treatment notes indicated that Plaintiff reported that her
mood was up and down, she was not bathing as she should, and she was feeling depressed with low
energy, racing thoughts and inability to concentrate. Tr. at 417. Upon examination, Plaintiff was
appropriately groomed, calm and cooperative, had normal behavior and speech, she had reactive and
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mood congruent affect, depressed mood, and fair judgment and insight. Id. at 417-418. She was
diagnosed with bipolar affective disorder, depressed mood, and anxiety disorder not otherwise
specified. Id. at 418. Her GAF was rated at 50, indicative of serious symptoms, and her Lexapro
was increased and her other medications were continued. Id. at 419.
On March 9, 2013, psychiatric treatment notes indicated that Plaintiff reported occasional
mood swings and racing thoughts, and losing her train of thought. Tr. at 411. She had nearly
normal energy and was better maintaining her daily living activities. Id. She still heard voices when
no one was speaking and smelled perfume. Id. Upon examination, Plaintiff was appropriately
groomed, calm and cooperative, had normal behavior and speech, normal affect, euthymic mood,
and fair judgment and insight. Id. at 410-412. She was diagnosed with schizoaffective disorder,
bipolar disorder and anxiety disorder not otherwise specified. Id. at 412. Her GAF was rated at 50,
indicative of serious symptoms, and her medications were continued. Id. at 413.
May 7, 2013 progress notes from the Counseling Center indicate that Plaintiff reported that
her hallucinations were reduced, but she was depressed and crying on occasion, and had mood
swings and racing thoughts. Tr. at 408. She rated her depression as 8 out of 10. Id. She indicated
that her energy was poor and she could not clean her house. Id. She had no sleeping or eating
problems. Id. Upon examination, Plaintiff was appropriately dressed and groomed, was calm and
cooperative, had normal behavior and speech, normal affect, depressed mood, and fair insight and
judgment. Id. at 408-409. She was diagnosed with schizoaffective disorder, bipolar disorder, and
anxiety disorder not otherwise specified. Id. at 409. Her GAF was rated at 45, indicative of serious
symptoms. Id. at 410. Her medications were continued. Id.
July 11, 2013 psychiatric treatment notes indicated that Plaintiff reported doing okay, but
she was depressed. Tr. at 422. She denied hallucinations, but then stated that she still heard a phone
ringing, knocking and music playing. Id. She liked her medication combination, but she was having
problems with her memory. Id. Upon examination, Plaintiff was appropriately groomed, calm and
cooperative, had normal behavior and speech, reactive and mood congruent affect, euthymic mood,
and good judgment and insight. Id. at 422-423. She was diagnosed with schizoaffective disorder,

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bipolar disorder and anxiety disorder not otherwise specified. Id. at 423. Her GAF was rated at 51,
indicative of moderate symptoms, and her medications were continued. Id.
September 12, 2013 psychiatric treatment notes indicated that Plaintiff was not doing well
due to the death of her neighbor/friend, and she was feeling paranoid and nervous and afraid to talk
to people. Tr. at 432. She said she only wanted to talk to her mother and to the current Certified
Nurse Practitioner (“CNP”) authoring the note, although the CNP thought it strange since she just
met Plaintiff. Id. Plaintiff felt that her medications needed adjusted and she reported sleep problems
and weight gain and feeling like she was having a nervous breakdown. Id. Upon examination,
Plaintiff was appropriately groomed, had an elevated attitude, loud, pressured speech, a labile affect,
euthymic and anxious mood, distractible/inattentive memory and concentration, and fair judgment
and insight. Id. at 432-433. She was diagnosed with bipolar disorder and anxiety disorder not
otherwise specified. Id. at 433. Her GAF was rated at 45, indicative of serious symptoms, and it
was noted that Plaintiff had stressors relating to not getting social security benefits. Id. Her Geodon
and Lamictal were decreased, Cogentin was continued and Tegretol, Restoril and Clonazepam were
added. Id. at 433. It was noted that Plaintiff refused counseling, indicating that she just likes to see
the psychiatrist for medication management. Id.
October 25, 2013 treatment notes indicated that Plaintiff reported her aunt passed away and
she was feeling overanxious since she was put on different medications. Tr. at 430. She indicated
that she did not feel like doing anything and she stayed in bed a lot. Id. She heard knocks on the
door and someone saying “mom.” Id. She was worried about being home alone and having to
interact with someone if they came to her home. Id. She reported sleeping problems and eating
problems. Id. Upon examination, Plaintiff was appropriately groomed, calm and cooperative, had
normal behavior and speech, reactive and mood congruent affect, euthymic mood, and good
judgment and insight. Id. at 430-431. She was diagnosed with schizoaffective disorder, bipolar
disorder and anxiety disorder not otherwise specified. Id. at 412. Her GAF was rated at 51,
indicative of moderate symptoms, and her medications were continued, although Restoril was
discontinued and Ambien and Cymbalta were started. Id. at 431.

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Treatment notes from November 22, 2013 indicated that Plaintiff was grieving from the
passing away of her father’s cousin. Tr. at 428, 436. She denied hallucinations and reported no side
effects from her medications. Id. Upon examination, Plaintiff was appropriately groomed, calm and
cooperative, had normal behavior and speech, reactive and mood congruent affect, euthymic mood,
and fair judgment and insight. Id. at 428-429. She was diagnosed with schizoaffective disorder,
bipolar disorder and anxiety disorder not otherwise specified. Id. at 412. Her GAF was rated at 51,
indicative of moderate symptoms, and her medications were continued. Id. at 413.
On February 14, 2014, psychiatric treatment notes indicated that Plaintiff reported that
everything was stable and she was not hearing as many voices or knocks on the door. Tr. at 443.
She had no sleeping or eating problems and no medication side effects. Id. Upon examination,
Plaintiff was appropriately groomed, calm and cooperative, had normal behavior and speech,
reactive and congruent affect, euthymic mood, and good judgment and insight. Id. at 443-444. She
was diagnosed with schizoaffective disorder, bipolar disorder and anxiety disorder not otherwise
specified. Id. at 444. Her GAF was rated at 51, indicative of moderate symptoms, and her
medications were continued. Id.
August 7, 2014 progress notes indicated that Plaintiff reported really high anxiety and trouble
sleeping as her daughter moved out and her 2 sisters were worrying because of her health as one
sister was in and out of mental hospitals. Tr. at 508. She was keeping busy with her mother
cleaning, reading, and going shopping and she missed her daughter. Id. She was nervous about her
upcoming social security hearing. Id. She indicated that her depression was stable and everything
was stable except for her anxiety and sleep. Id. Upon examination, Plaintiff was appropriately
groomed, calm and cooperative, had normal behavior and speech, reactive and mood congruent
affect, euthymic mood, and good judgment and insight. Id. at 508-509. She was diagnosed with
schizoaffective disorder, bipolar disorder and anxiety disorder not otherwise specified. Id. at 509.
Her GAF was rated at 51, indicative of moderate symptoms, and her medications were continued,
except Ambien was discontinued and Restoril was started. Id.
September 17, 2014 progress notes indicated that Plaintiff reported doing terrible and did not
make it to her last appointment and ended up taking some old Ambien and 2 Restoril caplets at
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night.Tr. at 520. She indicated that her social security hearing went “perfect.” Id. She was not
sleeping well. Id. Upon examination, Plaintiff was appropriately groomed, calm and cooperative,
had normal behavior and speech, reactive and mood congruent affect, euthymic mood, and good
judgment and insight. Id. at 520-521. She was diagnosed with schizoaffective disorder, bipolar
disorder and anxiety disorder not otherwise specified. Id. at 521. Her GAF was rated at 58,
indicative of moderate symptoms, and her medications were continued, except Restoril was
increased. Id.
B.

Relevant Testimonial Evidence

At the ALJ hearing, Plaintiff testified that she was 54 years old and last worked on May 5,
1999 as a customer service desk representative at Everything Rubbermaid. Tr. at 60. She reported
that she worked there from 1995-1999 and left because she was asked to work on Mother’s Day and
she refused. Id. at 60-61. She indicated that she had not applied for any jobs since that time. Id.
at 61. Plaintiff indicated that she lived alone since April of 2014 and she did not drive. Id. at 61-62.
Plaintiff reported that she does her housework during the day or sleeps most of the day. Tr.
at 62. She said that she had no hobbies and never had hobbies and she visited with her daughter and
her mother once a week. Id. at 63. She goes to her doctor appointments and to the grocery store
with her mother twice a month. Id.
When asked why she could not work, Plaintiff responded that she gets overanxious, she hears
voices and music, smells smoke and perfume or cologne and she feels like she cannot be in public
because she is scared to be around people. Tr. at 64-65. She explained that she had to be by her
mother at all times when she went to the store ever since she got divorced and prior to her divorce,
she had to be with her husband at the store. Id. at 65. She explained that everyday she hears her
daughter calling out her name when her daughter is not around and she hears knocks on the door
when no one is there. Id. She also hears music and has nothing in her house that plays music, like
a television or computer. Id. at 66. She said that the last time that this happened was the day before
the hearing when she heard a knock at the door. Id.
Plaintiff reported that she also has mood swings from her bipolar disorder, where sometimes
she will yell at her mother and tell her to leave, and then later she will apologize. Tr. at 66. When
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asked when this last happened or when she had a mood swing, Plaintiff could not remember. Id. at
66-67. She also reported problems with depression and cried a lot and she recalled that the last time
she cried was a few days ago when she found out that her sister had a broken hip and had to go to
the hospital. Id. at 67. Plaintiff could not remember the last time that she had anxiety. Id. at 68.
Plaintiff indicated that her medications helped her symptoms. Id.
Upon questioning from her attorney, Plaintiff testified that she gets really nervous and scared
around people, but she had no physical symptoms from the anxiety. Tr. at 69. She explained that
even when her mother or sister is with her around other people, she still feels scared. Id. at 70.
Plaintiff also reported that she was forgetting to take her medications when they came in
bottles, but now they are bubble packed and labeled when they should be taken, so she is not
forgetting. Tr. at 71. ,Plaintiff described her mood swings, hallucinations and her memory. Id. at
71-73.
The ALJ then questioned the vocational expert (“VE”). Tr. at 75. He asked the VE to
consider whether a hypothetical person could perform jobs with the same age and education as
Plaintiff with an ability to perform work at all exertional levels, with an ability to perform simple,
unskilled tasks, no more than incidental public contact and occasional co-worker contact. Tr. at 7576. The VE testified that such a hypothetical individual could perform the jobs of final assembler,
street cleaner, and laundry workers, which were jobs existing in significant numbers in the national
economy. Id. at 76.
The ALJ modified his hypothetical individual to include the ability to work at all exertional
levels, with performing only simple, routine, repetitive tasks, free of fast-paced production
requirements, only routine workplace changes, and only occasional superficial interaction with the
public and co-workers. Tr. at 77. The VE testified that the same three jobs that he identified would
be available for such a person. Id.
The ALJ asked the extent to which a hypothetical individual could be off task and the VE
responded that an individual could be off task no more than 10 percent of the workday. Tr. at 78.
Plaintiff’s counsel asked the VE what employers tolerated concerning missing work in an unskilled

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work environment, and the VE responded that such employers would tolerate no more than one day
per month for absences. Id.
III.

SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
In his September 22, 2014 decision, the ALJ cited to Drummond v. Commissioner of Social

Security, 126 F.3d 837 (6th Cir. 1997) and Acquiescence Ruling 98-4(6) and found that new and
material evidence existed concerning Plaintiff’s RFC such that he was not bound to adopt the prior
ALJ’s RFC for her. Tr. at 37. He also cited to Dennard v. Secretary of Health and Human Services,
907 F.2d 598 (6th Cir. 1990) and found that he was not bound by the prior ALJ’s finding that
Plaintiff had past relevant work as the current ALJ’s review of the record found that the prior work
was not performed at substantial gainful activity levels. Id.
Accordingly, the current ALJ found that Plaintiff had not engaged in substantial gainful
activity on November 17, 2010, the application date, and he found that since that date, Plaintiff had
the following severe impairments: bipolar disorder, borderline intellectual functioning disorder, and
schizoaffective disorder. Tr. at 39-40. The ALJ determined that Plaintiff did not have an
impairment or combination of impairments that met or medically equaled the severity of one of the
listed impairments in 20 C.F.R. Subpart P, Appendix 1. Id. at 40-42. After considering the record,
the ALJ found that Plaintiff had the RFC to perform a full range of work at all exertional levels but
with the nonexertional limitations of: simple, routine and repetitive tasks; work environment free
of fast-paced production requirements and routine workplace changes; occasional interaction with
the public and co-workers; and only superficial contact, defined as no negotiation or confrontation
with others. Id. at 42. Finding no past relevant work, and considering Plaintiff’s age, education,
work experience, the RFC and the VE’s testimony, the ALJ determined that there were jobs that
existed in significant numbers in the national economy that Plaintiff could perform. Id. at 48. In
conclusion, the ALJ found that Plaintiff had not been under a disability, as defined in the Social
Security Act, and she was not entitled to SSI. Id.
IV.

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

social security benefits. These steps are:
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1.

An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20 C.F.R.
§§ 404.1520(b) and 416.920(b) (1992));

2.

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

3.

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

4.

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

5.

If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. §§
404.1520(f) and 416.920(f) (1992)).

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

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

makes a determination of disability. This Court’s review of such a determination is limited in scope
by §205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted). Substantial evidence is defined as “more than a scintilla
of evidence but less than a preponderance.” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir.
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2007). Accordingly, when substantial evidence supports the ALJ’s denial of benefits, that finding
must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ
could have found plaintiff disabled. The substantial evidence standard creates a “‘zone of choice’
within which [an ALJ] can act without the fear of court interference.” Buxton v. Halter, 246 F.3d
762, 773 (6th Cir.2001). However, an ALJ’s failure to follow agency rules and regulations “denotes
a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon
the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009)
(internal citations omitted).
VI.

LAW AND ANALYSIS
A.

Nontreating Opinion of Dr. Smith, Psy.D.

Plaintiff asserts that the ALJ erred in failing to accept the opinions of Dr. Smith, the agency
examining psychologist, and in attributing more weight to the opinions of agency reviewing
psychologists over those of Dr. Smith. ECF Dkt. #13 at 7-11. Plaintiff contends that the ALJ failed
to cite to any findings that undermined Dr. Smith’s opinions and the record consistently showed that
Plaintiff had mental health issues, including auditory hallucinations and paranoia. Id. at 10.
Plaintiff is correct that generally, more weight is attributed to the opinions of examining
medical sources than to the opinions of non-examining medical sources. See 20 C.F.R. §
416.927(d)(1). However, an ALJ can attribute significant weight to the opinions of a nonexamining
state agency medical expert in some circumstances because nonexamining sources are viewed “as
highly qualified physicians and psychologists who are experts in the evaluation of the medical issues
in disability claims under the [Social Security] Act.” SSR 96–6p, 1996 WL 374180.

The

regulations require that “[u]nless the treating physician's opinion is given controlling weight, the
administrative law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician or psychologist as the
administrative law judge must do for any opinions from treating sources, nontreating sources, and
other nonexamining sources who do work for us.” 20 C.F.R. § 416.927(f)(2)(ii). Moreover, an ALJ
is not required to explain why he favored one examining opinion over another as the “good reasons”

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rule requiring an ALJ to explain the weight afforded a treating physician’s opinion does not apply.
See Kornecky v. Comm'r of Soc. Sec., 167 Fed.Appx. 496, 508 (6th Cir. 2006).
Here, the ALJ articulated the weight that he gave to Dr. Smith’s opinions and he sufficiently
explained why he attributed little weight to those opinions. Tr. at 46. He first addressed Dr. Smith’s
opinion that Plaintiff should be considered “psychologically disabled.” Id. He found that this
statement was a conclusory statement and provided little probative value concerning Plaintiff’s RFC.
Id. The ALJ is correct. The statement that Plaintiff should be considered psychologically disabled
is of little value and no special significance as 20 C.F.R. § 416.927(d) provides that a medical
source’s opinion as to a claimant’s ability to work is an issue reserved for the Commissioner, such
an opinion does not mean that a claimant will be determined unable to work, and no special
significance is given to such an opinion. Id. Moreover, the ALJ correctly found that Dr. Smith’s
statement that Plaintiff should be considered “psychologically disabled” with regard to “her work
situation,” is conclusory as the statement is unaccompanied by any detail or explanation in Dr.
Smith’s report. Id. at 304.
Neverthless, the ALJ also determined that Dr. Smith’s opinions were not consistent with the
mental status examinations of Plaintiff during her treatment. Tr. at 46. In his review of the medical
evidence, the majority of which occurred subsequent to Dr. Smith’s opinions, the ALJ noted many
mental status examinations at the Counseling Center which showed a waxing and waning of
symptoms, but clinical findings of normal range of affect, good insight and judgment, good hygiene
and eye contact, logical speech, and a calm and cooperative attitude. Id. at 44-46, citing Tr. at 389,
398-399, 408-409, 428-429, 443-444, 508-509. The ALJ also noted improvements in Plaintiff’s
hallucinations, as well as increases in her energy levels and feelings of mood stability with
medication adjustments and compliance. Id. at 44-45, citing Tr. at 322, 391, 411-412, 443. The ALJ
also acknowledged the GAF scores reported between 45 and 51, indicative of severe to moderate
symptoms. Tr. at 47. He noted that while the scores were evidence of Plaintiff’s presentation during
various examinations, they provided only a snapshot of functioning during that time, although he
did attribute some weight to them. Id. The ALJ also noted periods of increased symptoms, but he
indicated that Plaintiff was not always compliant with medications. Id., citing Tr. at 44, 278, 283.
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As also noted by the ALJ, Plaintiff reported an increased ability to recognize her symptoms and an
intention to follow-up for treatment when symptoms arose. Id. at 44, citing Tr. at 322.
Plaintiff contends that deference should be given to the opinions of an examining physician
over an ALJ. ECF Dkt. #13 at 10. However, the social security regulations give the ALJ the
authority to make the ultimate determination of disability and RFC, not a treating, examining or
reviewing physician. 20 C.F.R. § 416.927(d)(1)-(3). Plaintiff also asserts that the ALJ did not cite
to a specific finding that undermined Dr. Smith’s opinions. ECF Dkt. #13 at 10. However, the ALJ
cited to numerous examination findings indicating Plaintiff’s stable mental status, normal speech
and eye contact, and her good insight and judgment. Tr. at 44-47, citing Tr. at 322, 324, 326, 389,
417-418, 443-444, 508-509. Finally, Plaintiff asserts error with the ALJ’s finding that Dr. Smith’s
statement that she is “psychologically disabled” was conclusory. ECF Dkt. #13 at 11. She posits
that a treating physician’s opinion that a patient is disabled must not be disregarded. Id. (citation
omitted.). However, Dr. Smith is not a treating physician and her opinion as to whether Plaintiff was
psychologically disabled was specifically considered by the ALJ, who found that the statement was
conclusory and the medical evidence of record was inconsistent with such a finding. Tr. at 46. As
to the opinions of the agency reviewing sources, the ALJ afforded them some weight and actually
restricted Plaintiff’s functional limitations more than those opined by the agency reviewing sources,
which is within the ALJ’s purview to do. See 20 C.F.R. § 416.927(e)(2)(i) (ALJ is not bound by any
findings of State agency psychological consultants or any other program psychologists).
Based upon a review of the merits briefs, the law, the record, and the ALJ’s decision, the
Court finds that the ALJ adequately explained his reasons for attributing little weight to the opinions
of Dr. Smith and substantial evidence supports that determination. While substantial evidence may
exist to the contrary, the standard of review is whether the ALJ applied the proper legal standards
and whether substantial evidence supports the ALJ’s determination. The ALJ did properly apply
the legal standards and substantial evidence supports his treatment of Dr. Smith’s opinions.
B.

Credibility

Plaintiff also challenges the ALJ’s credibility determination, asserting that the ALJ failed
to make a proper credibility analysis. ECF Dkt. #13 at 11-14. She asserts that the ALJ merely used
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boilerplate language in assessing her credibility and failed to provide specific reasons for
discounting her credibility. Id.
The social security regulations establish a two-step process for evaluating pain. See 20
C.F.R. § 404.1529, SSR 96–7p. In order for pain or other subjective complaints to be considered
disabling, there must be (1) objective medical evidence of an underlying medical condition, and (2)
objective medical evidence that confirms the severity of the alleged disabling pain arising from that
condition, or objectively, the medical condition is of such severity that it can reasonably be expected
to produce such disabling pain. See id.; Stanley v. Sec’y of Health & Human Servs., 39 F.3d 115, 117
(6th Cir.1994); Felisky v. Bowen, 35 F.3d 1027, 1038–1039 (6th Cir.1994); Duncan v. Sec’y of
Health & Human Servs., 801 F.2d 847, 853 (6th Cir.1986). Therefore, the ALJ must first consider
whether an underlying medically determinable physical or mental impairment exists that could
reasonably be expected to produce the individual's pain or other symptoms. See id. Secondly, after
an underlying physical or mental impairment is found to exist that could reasonably be expected to
produce the claimant's pain or symptoms, the ALJ then determines the intensity, persistence, and
limiting effects of the claimant's symptoms to determine the extent to which the symptoms limit the
claimant's ability to do basic work activities. See id.
When a disability determination that would be fully favorable to the plaintiff cannot be made
solely on the basis of the objective medical evidence, an ALJ must analyze the credibility of the
plaintiff, considering the plaintiff's statements about pain or other symptoms with the rest of the
relevant evidence in the record and factors outlined in Social Security Ruling 96–7p. See SSR
96–7p, 61 Fed.Reg. 34483, 34484–34485 (1990). These factors include: the claimant's daily
activities; the location, duration, frequency and intensity of the pain; precipitating and aggravating
factors; the type, dosage, effectiveness and side effects of any pain medication; any treatment, other
than medication, that the claimant receives or has received to relieve the pain; and the opinions and
statements of the claimant's doctors. Felisky, 35 F.3d at 1039–40. Since the ALJ has the opportunity
to observe the claimant in person, a court reviewing the ALJ's conclusion about the claimant's
credibility should accord great deference to that determination. See Casey, 987 F.2d at 1234.

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Nevertheless, an ALJ's assessment of a claimant's credibility must be supported by substantial
evidence. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997).
Upon review of the ALJ’s decision in the instant case, the Court finds that the ALJ properly
conducted a credibility analysis that contained much more than a boilerplate rendition of the steps
for evaluating credibility and reliance only upon Plaintiff’s daily activities. In his decision, the ALJ
cited to the proper two-step process in evaluating Plaintiff’s credibility. Tr. at 42. He determined
that while Plaintiff’s medically determinable impairments could reasonably be expected to cause
some of her alleged symptoms, her statements concerning the intensity, persistence, and limiting
effects of her symptoms were not fully credible. Id. at 43. He thereafter summarized Plaintiff’s
statements in her disability reports and her testimony at the hearing concerning her impairments and
resulting limitations. Id. at 42-47. He reviewed Plaintiff’s daily living activities, which he found
were inconsistent with her reports that she feared and had difficulties with others as she indicated
that she grocery shopped at Walmart, babysat her three grandchildren, whose ages spanned from
nine months to four years old, she expressed excitement at attending a wedding, and she expressed
excitement when her friend was released from rehabilitation. Id. at 47, citing Tr. at 444. The ALJ
also considered that Plaintiff was not always consistent with her medications and her symptoms
increased as a result. Id. He further considered possible benefits-seeking behavior as Plaintiff stated
at her psychiatric follow-up assessment that the ALJ hearing would be the last time she could file
“since there’ll be no more evidence in the future. She thinks they’ll go for schizoaffective.” Id. at
47, citing Tr. at 508.
While Plaintiff asserts that the ALJ relied solely upon these minimal activities, the ALJ’s
decision specifically contradicts this assertion. The ALJ specifically acknowledged that these
instances were not dispositive, stating that “[w]hile not dispositive, these inconsistencies call into
question the claimant’s statements regarding the nature of her symptoms and impairments.”

Tr.

at 47. The ALJ had also reviewed the medical evidence concerning Plaintiff’s impairments,
including the opinions of Dr. Smith and the agency reviewing psychologists, and the numerous
treatment notes from the Counseling Center. Id. at 43-47. He also addressed the aggravating factor
of Plaintiff’s noncompliance with medications, mitigating factors such as when Plaintiff’s
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medications were adjusted properly, and he described the medications that Plaintiff was taking and
their effectiveness and adjusted dosages. Id. at 43-47. The ALJ thus went beyond mere boilerplate
language by considering nearly every factor outlined in SSR 96–7p and substantial evidence
supports his credibility determination.
VII.

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

instant case in its entirety with prejudice.

Date: February 28, 2017

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

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