Steadman v. Commissioner of Social Security

Filing 18

ORDER adopting in part Report and Recommendation re 16 ; Defendant's objections to the R&R are sustained in part and overruled in part; The decision of the ALJ is reversed and this case is remanded to the ALJ. Signed by Judge Sandra S Beckwith on 12/21/11. (mb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Christopher Steadman,
Plaintiff,
vs.
Michael J. Astrue,
Commissioner of Social
Security,
Defendant.

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) Case No. 1:10-CV-801
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O R D E R

This matter is before the Court on Magistrate Judge
Litkovitz’s Report and Recommendation of November 14, 2011 (Doc.
No. 16) and the Commissioner of Social Security’s objections to
the Report and Recommendation (Doc. No. 27).

In her Report and

Recommendation, Magistrate Judge Litkovitz concluded that the
Administrative Law Judge’s (“ALJ’s”) determination that Plaintiff
is not disabled under the Social Security regulations, and
therefore is not entitled to receive disability insurance
benefits and supplemental security income, was not supported by
substantial evidence.

Specifically, Judge Litkovitz concluded

that the ALJ’s decision to afford little weight to the opinion of
Plaintiff’s treating psychiatrist was not supported by
substantial evidence for a number of reasons.

Judge Litkovitz

also determined that the physical residual functional capacity
(“RFC”) adopted by the ALJ was not supported by substantial
evidence because he failed to specify the evidence he relied on

in arriving at the RFC.

Therefore, Judge Litkovitz recommended

that the ALJ’s decision be reversed and remanded for further
proceedings pursuant to Sentence Four of 42 U.S.C. § 405(g).

The

Commissioner filed timely objections to the Report and
Recommendation.

For the reasons that follow, the Commissioner’s

objection to Judge Litkovitz’s determination that the physical
RFC adopted by the ALJ was not supported by substantial evidence
is well-taken and is SUSTAINED.

The Commissioner’s objections to

Judge Litkovitz’s determination that the ALJ’s decision to give
little weight to the opinion of Plaintiff’s treating psychiatrist
was not supported by substantial evidence is not well-taken and
is OVERRULED.

The Court, therefore, ADOPTS the Report and

Recommendation in part.

The decision of the ALJ finding that

Plaintiff is not disabled under the Social Security regulations
is REVERSED and this case is REMANDED for further proceedings
consistent with this order pursuant to Sentence Four of 42 U.S.C.
§ 405(g).
I. Background
Plaintiff Christopher Steadman filed a claim for
supplemental security income and disability insurance benefits
based on the impairments of chronic cysts, abdominal hernia, and
bipolar disorder.

Tr. 148.

During the administrative process,

however, the focus of Plaintiff’s alleged physical impairments
shifted from chronic cysts and an abdominal hernia to back pain
2

resulting lumbar facet arthropathy, i.e., arthritis.1
was age 38 at the alleged onset date of disability.

Plaintiff
Plaintiff’s

past relevant work was as a construction worker, a semi-skilled
position typically performed at the heavy level of exertion.
54.

Tr.

Magistrate Judge Litkovitz thoroughly reviewed the medical

evidence in her Report and Recommendation.

Inasmuch as the

Commissioner’s objections concern only the ALJ’s treatment of the
opinion of Dr. Carlos Cheng, Plaintiff’s treating psychiatrist,
and Plaintiff’s physical RFC, the Court will limit its discussion
of the medical evidence to these two issues.
A. Plaintiff’s Mental RFC
Plaintiff began receiving treatment for bipolar
disorder and panic attacks from Talbert House/Core Behavioral
Center in late February/early March 2007.

Plaintiff initially

appeared complaining of panic attacks, migraine headaches,
trouble remembering things, and difficulty concentrating and
staying focused.

Tr. 286.

Generally speaking, Plaintiff

indicated that he was losing control of himself.

He appeared

unkempt, with a worried expression, fragmented and impoverished
thoughts, and depressed mood and affect.

Id.

The initial

diagnosis was bipolar disorder and anxiety disorder.

Tr. 291.

Plaintiff was assigned a Global Assessment of Functioning (“GAF”)

1

Sandoval v. Barnhart, 209 Fed. Appx. 820, 824 n.2 (10th
Cir. 2006).
3

score of 50, which indicates serious symptoms and serious
impairments in maintaining social, occupational, or school
functioning.2

Tr. 291.

In a follow-up visit on April 24, 2007, Plaintiff
reported feeling “almost immediately better” after starting on a
prescription for Symbyax, which is indicated for treatment of
depression associated with bipolar disorder.3

Tr. 316.

Plaintiff’s symptoms returned, however, as did disturbing
thoughts.

The progress note states, however, that Plaintiff

looked better overall, was more calm, and his thoughts were more
fluent and logical.

Id.

The assessment was partial improvement

and a plan to increase the dosage of Symbyax.

Tr. 317.

By the next appointment on May 8, 2007, the progress
notes state that Plaintiff was “better on higher dose of
Symbyax.”

Tr. 314.

Plaintiff reported being calmer, with better

sleep, fewer headaches, agitation, and anxiety.

Id.

Plaintiff

looked calmer and his thoughts were more logical and speech more
fluent.

Tr. 314.

He was reported as improving and becoming more

functional at home, such as doing housework and working on his
car.

Tr. 315.

2

DeBoard v. Commissioner of Social Sec., 211 Fed. Appx.
411, 415 (6th Cir. 2006).
3

Long v. Astrue, No. 3:10-0273, 2011 WL 1258407, at *1
n.3 (M.D.Tenn. March 07, 2011).
4

At the next follow-up, on May 28, 2007, Plaintiff
showed continued improvement but complained of worsening panic
attacks. Tr. 312.

He still appeared calmer and less depressed

nevertheless and his thoughts were more logical.

Id.

The main

problem at that point, the office note states, was panic attacks.
Tr. 313.

Plaintiff was started on a prescription for Clonazepam

to treat his panic attacks.4

Id.

On the next follow-up, on June 26, 2007, Plaintiff
reported improvement on many if not most symptoms, except for his
panic attacks, which Clonazepam did not help.

Tr. 310.

Plaintiff was started on Valium for panic attacks instead.

Tr.

311.
By the July 24, 2007 follow-up, Plaintiff had a relapse
of symptoms because he had been jailed for non-payment of child
support and was not able to take the Symbyax.

Tr. 308.

He was

disheveled and anxious, but had some improvement once he was able
to restart Symbyax.

Id.

In summary, this series of treatment notes indicates an
overall improvement in Plaintiff’s bipolar disorder on Symbyax,
although he was still experiencing panic attacks.

There is a gap

in the progress notes between July 2007 and September 2008, when

4

Dee v. Commissioner of Social Sec., No. 3:10-CV-1487,
2011 WL 4072299, at *6 (N.D. Ohio Sept. 7, 2011).
5

Plaintiff began treatment with Dr. Carlos Cheng at Centerpoint
Health/Talbert House.
In the initial assessment form with Dr. Cheng,
Plaintiff was still diagnosed with bipolar disorder and anxiety
disorder, but with a GAF of 60, indicating only moderate symptoms
and moderate impairments in social, occupational, or school
functioning.5

Tr. 389.

Plaintiff also stated that he wanted to

discontinue counseling because he had reached his desired goals,
but wanted to continue his medications.

Tr. 386.

In his October 15, 2008 follow-up, Dr. Cheng recorded
that Plaintiff reported “full remission for clinically
affective/hypermanic” symptoms and that he denied relapsing into
panicky feelings or episodes.

Tr. 421.

Plaintiff was to

continue with psychotherapy and his medication regimen.

Tr. 422.

In February 2009, Plaintiff presented in a “moderately
clinically depressive mood.”

Tr. 419.

The plan was to continue

with psychotherapy and his medication regimen. Tr. 420.
In April 2009, Plaintiff reported that his medications
were working well. Tr. 451.
453.

His GAF was still 60, however.

Tr.

In May 2009, Plaintiff presented at his baseline “without

relapse [to] clinical affective debility/hypermanic/vegetative”
symptoms.

5

Tr. 449.

Again, the plan was to continue with

Kennedy v. Astrue, 247 Fed. Appx. 761, 766 (6th Cir.

2007).
6

psychotherapy and medications.

Tr. 450.

In July 2009, Plaintiff

again presented at his baseline and “denied experiencing clinical
affective debility or hypermanic/vegetative” episodes.”
The follow-up plan remained the same.

Tr. 485.

Tr. 486.

Dr. Cheng provided two mental RFC assessments.
In October 2008, Dr. Cheng indicated that Plaintiff is
not significantly limited in his abilities to understand and
remember very short and simple instructions, carry out very short
and simple instructions, interact appropriately with the general
public, ask simple questions or request assistance, maintain
socially acceptable behavior and adhere to basic standards of
neatness and cleanliness, and be aware of normal hazards and take
precautions.

Tr. 477.

Plaintiff is not significantly limited in

the abilities to remember locations and work-like procedures,
understand and remember detailed instructions, carry out detailed
instructions, maintain attention and concentration for extended
periods, sustain an ordinary routine without special supervision,
make simple work-related decisions, accept instructions and
respond appropriately to criticism from supervisors, get along
with coworkers and peers without distracting them or exhibiting
behavioral extremes, and travel in unfamiliar places or use
public transportation.

Id.

Finally, according to this RFC,

Plaintiff is markedly limited in the abilities to perform
activities within a schedule, maintain regular attendance, and be

7

punctual within customary tolerances, work in coordination with
or proximity to others without being distracted by them, complete
a normal workday and workweek without interruptions from
psychologically-based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods,
respond appropriately to changes in the work setting, and set
realistic goals and make plans independently of others.

Id.

Dr.

Cheng indicated that these limitations were likely to last from
30 days to 9 months.
unemployable.

Id.

He also indicated that Plaintiff is

Id.

In July 2009, Dr. Cheng completed another mental RFC
evaluation form.

Tr. 478-483.

This form has individual sections

to rate the claimant’s mental abilities to perform skilled,
semiskilled, and unskilled work.

It also has a section to rate

the claimant’s mental abilities to interact with others and a
section to rate the claimant’s functional limitations.

For

unskilled work, Dr. Cheng indicated that Plaintiff would have no
limitations in asking questions, accepting instructions and
responding appropriately to criticism from supervisors, and being
aware of normal hazards and taking precautions.

Dr. Cheng stated

that Plaintiff would be limited, but satisfactory, in the
abilities to remember work-like procedures, understanding and
remembering very short and simple instructions, carrying out very
short and simple instructions, working in coordination with or

8

proximity to others without becoming unduly distracted, making
simple work-related decisions, getting along with co-workers or
peers without unduly distracting them or exhibiting behavioral
extremes, and responding appropriately to changes in a routine
work setting.

Finally, Dr. Cheng indicated that Plaintiff would

be seriously limited, but not precluded, in the abilities to
maintain attention for a two hour segment, maintaining attendance
and being punctual within customary, usually strict tolerances,
sustaining an ordinary work routine without special supervision,
completing a normal workday and workweek without interruptions
from psychologically-based symptoms, performing at a consistent
pace without an unreasonable number and length of rest periods,
and dealing with work stress.

Tr. 480.

With regard to skilled

and semi-skilled work, Dr. Cheng added that Plaintiff would be
limited but satisfactory in the ability to set realistic goals
and make plans independently of others and that he would be
seriously limited but not precluded in the abilities to
understand and remember detailed instructions, carrying out
detailed instructions, and dealing with the stress of semiskilled and skilled work.

Id.

Dr. Cheng then indicated that Plaintiff would be
unlimited in the abilities to maintain socially appropriate
behavior and using public transportation.

He stated that

Plaintiff would be limited but satisfactory in the abilities to

9

interact with the public, adhere to basic standards of neatness
and cleanliness, and travel in unfamiliar places.

Tr. 480.

Finally, with regard to functional limitations, Dr.
Cheng indicated that Plaintiff has no or only mild restrictions
in activities of daily living and that he is moderately limited
in maintaining social functioning and maintaining concentration,
persistence, and pace.

Dr. Cheng stated that Plaintiff had three

episodes of decompensation in the previous 12 months, each
lasting at least two weeks in duration.

Tr. 481.

Dr. Cheng

opined that Plaintiff would miss four days of work per month due
to his mental impairments.

Tr. 483.

In June 2007, a state agency reviewing psychologist,
Dr. Vicki Casterline, provided a mental residual functional
capacity assessment form in which she indicated that Plaintiff
has no or only moderate limitations in all areas.

Tr. 326-328.

Dr. Casterline stated that Plaintiff would be able to tolerate
routine changes in work duties, but would have difficulty with
the stress of frequent changes in job duties.

She stated that

Plaintiff can relate adequately and follow instructions.

Tr.

328.
B. Plaintiff’s Physical RFC
Plaintiff received treatment for back pain from Dr.
Mitchell Simons from July 2008 to July 2009.

Dr. Simons

diagnosed Plaintiff with lumbar spondylolisthesis, lumbar facet

10

arthropathy, bipolar disorder, depression, and protruding discs
at L5 and S1.

Tr. 407.

Dr. Simons’s progress notes indicate

that Plaintiff typically complained of back pain rating anywhere
from 8 to 10 on a scale of 10 but that his medication - usually
Percocet - provided 70% to 90% relief.

Tr. 407, 408, 405, 406,

400, 401, 395, 396, 393, 394, 391, 392, 458, 472.

Plaintiff also

indicated to Dr. Simons that he did not have any side effects
with his medications.

Tr. 406, 401, 396, 394, 392.

In December 2008, Plaintiff had a left lumbar
transforaminal epidural injection which reduced his pain from 9
to 3.

Tr. 402.

A month later, Plaintiff reported that he felt

good initial results from this procedure.

Tr. 400.

Plaintiff

had a right lumbar transforaminal epidural injection in January
2009 which initially reduced his pain from 9 to 3.

Tr. 397.

In

the follow-up examination a couple of weeks later, however,
Plaintiff reported that he received no relief from this
procedure.

Tr. 395.

Plaintiff reported his pain at 10 with

medication providing only 40% relief.

Id.

In another follow-up

a week later, however, while Plaintiff reported his pain at 10,
he stated that medication was providing 80% relief.

Tr. 393.

Plaintiff also had a lumbar facet injection in May 2009 which
reduced his pain from 8 to 3.
In October 2008, Dr. Simons completed a form entitled
“Basic Medical” in which he indicated that Plaintiff has

11

diagnoses of lumbar spondylolisthesis, facet arthropathy, lumbar
pain, and bipolar affective disorder.

Tr. 475.

Dr. Simons,

however, declined to provide a functional capacity evaluation for
Plaintiff.

Tr. 476.
The ALJ did not otherwise obtain a functional capacity

evaluation from a state agency consultative examiner or a state
agency file reviewer.
C.

The ALJ’s Decision

Plaintiff’s application for benefits was denied
initially and upon reconsideration.

Plaintiff requested and

received an evidentiary hearing before an ALJ.
held on August 3, 2009.

The hearing was

Plaintiff testified during the hearing,

as did a vocational expert.

The ALJ’s evaluation of Plaintiff’s

credibility is not before the Court so his testimony need not be
summarized here.
The ALJ asked the vocational expert to assume the
following hypothetical person: right hand dominate with the
education and work experience of Plaintiff; he can lift and carry
up to 20 pounds occasionally and 10 pounds frequently; he can
stand and/or walk for 6 hours in an 8 hour day; he can only
occasionally stoop, kneel, crouch, and climb ramps or stairs; he
cannot crawl or climb ladders, ropes or scaffolds or work around
unprotected heights or around hazardous machinery; he can only
occasionally reach above shoulder level with the upper

12

extremities; he can perform only simple, routine, repetitive
tasks, and understand remember and carry out short and simple
instructions; he cannot interact with the general public; he can
only occasionally interact with coworkers and supervisors; he
cannot work in jobs with rapid production rates and can have no
more than routine changes in work setting or duties; he can only
make simple work-related decisions.

Tr. 54-55.

The vocational

expert testified that this hypothetical person could not perform
Plaintiff’s past relevant work, but he could perform a number of
light unskilled jobs that exist in significant numbers in the
national economy, such as machine tender and packager.

Tr. 55.

This person would also be able to perform sedentary jobs, such as
inspector, sorter, and weight tester.

Tr. 56.

If the

hypothetical person needed to miss three days of work per month,
the vocational expert testified that all jobs would be
eliminated.

Tr. 56-57.

On cross-examination by Plaintiff’s

attorney, the vocational expert testified that if the
hypothetical person can only maintain concentration for 2 hours
in an 8 hour day, all work would be eliminated.

Tr. 57.

The ALJ issued a decision denying Plaintiff’s
application for disability insurance benefits and supplemental
security income on August 21, 2009.

Tr. 15-26.

As is relevant

here, the ALJ gave “little weight” to the mental RFC assessments
provided by Dr. Cheng on several grounds.

13

With respect to the

first RFC, the ALJ commented that the form failed to define the
terms “markedly limited” and “moderately limited.”

Tr. 24.

The

ALJ also stated that Dr. Cheng indicated that Plaintiff’s
symptoms were likely to last no more than nine months.

Id.

The

ALJ stated that Dr. Cheng’s second mental RFC assessment was not
supported and that the limitations indicated in the form were not
supported by medical signs or findings upon examination as
indicated by his Centerpoint progress notes.

Id.

Instead, in

arriving at Plaintiff’s mental RFC, the ALJ relied on the Dr.
Casterline’s opinion indicating that Plaintiff has only moderate
impairments at worst.

Id.

With regard to Plaintiff’s physical RFC, the ALJ first
gave Plaintiff “the full benefit of the doubt” that his lumbar
facet arthropathy is a severe impairment.

Tr. 18.

The ALJ noted

later that Dr. Simons refused to provide a functional capacity
assessment.

Tr. 24.

The ALJ also rejected Plaintiff’s

subjective complaints concerning the limiting effects of his back
pain due to lack of supporting objective medical evidence and
because of inconsistencies in his testimony.

Tr. 21-23.

The ALJ

noted that Dr. Simons’s treatment notes indicate that Plaintiff
received 90% relief with pain medication and, further, that he
reported having an excellent quality of life.

Tr. 21-22.

The ALJ thus determined that Plaintiff has the mental
and physical RFC of the hypothetical person posited to the

14

vocational expert during the evidentiary hearing.

Tr. 20.

The

ALJ subsequently relied on the vocational expert’s testimony at
the fifth step of the sequential evaluation process and found
that Plaintiff is not disabled because he has the RFC to perform
a significant number of jobs available in the national economy.
Tr. 25-26.
D. District Court Proceedings
The Appeals Council denied Plaintiff’s request to
review the ALJ’s decision, making the ALJ’s decision the final
decision of the Commissioner of Social Security.

Tr. 1-3.

Plaintiff then filed a timely complaint with this Court to review
the ALJ’s decision.

Plaintiff raised two assignments of error in

his Statement of Specific Errors.

First, Plaintiff argued that

the ALJ erred by not giving sufficient weight to the opinions of
Dr. Cheng and Dr. Simons.

Second, Plaintiff argued that the ALJ

erred by not adequately explaining his RFC findings.

Doc. No. 9.

In her Report and Recommendation, Magistrate Judge
Litkovitz concluded that the ALJ erred in the weight he gave to
Dr. Cheng’s opinions concerning Plaintiff’s mental RFC and that
he did not give good reasons for rejecting Dr. Cheng’s opinions.
Specifically, Judge Litkovitz noted that the ALJ accepted the
state agency psychologist’s RFC form even though it did not
define the terms “markedly limited” and “moderately limited.”

15

Therefore, the ALJ was without a basis for rejecting Dr. Cheng’s
first opinion for failing to define these terms.
Second, Judge Litkovitz noted that while Dr. Cheng’s
first RFC indicated that Plaintiff’s mental impairments were
expected to last only nine months, the ALJ ignored the second one
which stated that they were expected to last more than twelve
months.
Third, Judge Litkovitz concluded that the ALJ failed to
point out any inconsistencies between Dr. Cheng’s opinions and
his progress or treatment notes.
Fourth, Judge Litkovitz concluded that Dr. Cheng’s
opinions were supported by objective clinical findings.
Specifically, Judge Litkovitz noted the 2009 assessment, which
included findings such as feelings of guilt or worthlessness,
severe panic attacks and sleep disturbances, and the progress
notes which indicated disheveled appearance, worried expression,
impoverished stream of thought, depressed affect and panic
attacks.
Fifth, Judge Litkovitz conclude that the ALJ’s decision
failed to adequately address all of the regulatory factors in
assessing Dr. Cheng’s opinion and, thus, it was impossible for
the Court to meaningful review the decision.
With respect to Plaintiff’s physical RFC, Judge
Litkovitz determined that the ALJ did not err in assessing Dr.

16

Simons’s opinions, noting specifically that he refused to provide
a physical RFC evaluation and that the ALJ was not required to
give any weight to his conclusory opinion that Plaintiff is
unemployable.

Judge Litkovitz determined nevertheless that the

ALJ’s determination that Plaintiff can perform a limited range of
light work was not supported by substantial evidence.

Judge

Litkovitz noted that there are no medical source opinions on
Plaintiff’s physical RFC.

Judge Litkovitz determined that the

ALJ failed to link the medical evidence to his conclusion that
Plaintiff can perform a limited range of light work.

Judge

Litkovitz concluded that the ALJ did not sufficiently explain the
basis for the physical RFC he adopted such that the Court can
meaningfully review it.
Judge Litkovitz recommended, therefore, that the ALJ’s
decision be reversed and the case remanded to the ALJ to
reconsider Plaintiff’s RFC and the weight to be assigned to Dr.
Cheng’s opinions pursuant to Sentence Four of 42 U.S.C. § 405(g).
The Commissioner filed timely objections to Judge
Litkovitz’s Report and Recommendation which are now ready for
disposition.
II.

Standard of Review

The relevant statute provides the standard of review to
be applied by this Court in reviewing decisions by the ALJ.
42 U.S.C. § 405(g).

See

The Court is to determine only whether the

17

record as a whole contains substantial evidence to support the
ALJ’s decision.

“Substantial evidence means more than a mere

scintilla of evidence, such evidence as a reasonable mind might
accept as adequate to support a conclusion.”

LeMaster v. Sec’y

of Health & Human Serv., 802 F.2d 839, 840 (6th Cir. 1986)
(internal citation omitted).

The evidence must do more than

create a suspicion of the existence of the fact to be
established.

Id.

Rather, the evidence must be enough to

withstand, if it were a trial to a jury, a motion for a directed
verdict when the conclusion sought to be drawn from it is one of
fact for the jury.

Id.

If the ALJ’s decision is supported by

substantial evidence, the Court must affirm that decision even if
it would have arrived at a different conclusion based on the same
evidence.

Elkins v. Sec’y of Health & Human Serv., 658 F.2d 437,

439 (6th Cir. 1981).

The district court reviews de novo a

magistrate judge’s report and recommendation regarding social
security benefits claims.

Ivy v. Sec’y of Health &

Human Serv.,

976 F.2d 288, 289-90 (6th Cir. 1992).
III. Analysis
A. The Treating Physician Rule
The first aspect of Plaintiff’s assignments of error
and the Report and Recommendation concern the treating physician
rule.

Under the treating physician rule, opinions of physicians

who have treated the claimant receive controlling weight if they

18

are “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with the
other substantial evidence in [the] case record.”
404.1527(d)(2).

20 C.F.R. §

If the ALJ finds that either of these criteria

have not been satisfied, he is required to apply the following
factors in determining how much weight to give a treating
physician’s opinion: “the length of the treatment relationship
and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion,
consistency of the opinion with the record as a whole, and the
specialization of the treating source.”

Wilson v. Commissioner

of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004).

The ALJ must

give “good reasons” for rejecting the opinion of a treating
physician.

The ALJ’s failure to comply with the “good reasons”

rule is a procedural error which generally requires reversal even
if the record otherwise supports the ALJ’s determination.

Rogers

v. Commissioner of Social Sec., 486 F.3d 234, 242-43 (6th Cir.
2007); see also Rabbers v. Commissioner Social Sec. Admin., 582
F.3d. 647, 656 (6th Cir. 2009) (noting that the Wilson opinion
left open the possibility that a de minimis violation of the
“good reasons” rule can be a harmless error).

The ALJ, however,

is not required to give any weight to the conclusory opinions of
treating physicians that the claimant is unable to work, since
that determination is reserved for the Commissioner.

19

Vance v.

Commissioner of Social Sec., 260 Fed. Appx. 801, 804 (6th Cir.
2008).
In his objections, the Commissioner argues that in
concluding that the ALJ gave insufficient weight to Dr. Cheng’s
opinions, the Magistrate Judge failed to note that the ALJ
accommodated Plaintiff’s mental impairments by restricting him to
short and simple instructions, routine and repetitive tasks, no
interaction with the public and only limited interaction with
coworkers and the public.

The Commissioner argues that these

limitations are not undermined by Dr. Cheng’s opinion that
Plaintiff has no limitations in activities of daily living and
only moderate limitations in social functioning and
concentration, persistence, and pace.

The Commissioner also

argues that the ALJ’s determination that Dr. Cheng’s opinions
were not supported by the record was supported by substantial
evidence.

The Commissioner notes that there is no evidence that

Plaintiff had three or more episodes of decompensation.

The

Commissioner also observes that Dr. Cheng’s assignment of a GAF
score of 60 indicates only moderate mental limitations and is
borderline to having only mild mental limitations.
The Court agrees with the Commissioner that there are
inconsistencies between Dr. Cheng’s opinions and his treatment
notes.

The Court’s review of Dr. Cheng’s progress notes indicate

that overall, Plaintiff’s bipolar disorder showed substantial

20

improvement.

By April 2009, Plaintiff reported that his

medications were working well.
453.

Tr. 451.

His GAF was 60.

Tr.

In May 2009, Dr. Cheng recorded that Plaintiff presented at

his baseline “without relapse [to] clinical affective
debility/hypermanic/vegetative” symptoms.

Tr. 485.

These

findings seem to be inconsistent with Dr. Cheng’s findings just
two months later that Plaintiff is seriously limited in his
abilities to maintain attendance and sustain an ordinary work
routine.

There are also internal inconsistencies in Dr. Cheng’s

July 2009 opinion.

For instance, on page 3 Dr. Cheng indicated

that Plaintiff is seriously limited in his abilities to maintain
attention for a two hour period and to perform at a consistent
pace, but on page 4 Dr. Cheng indicated that Plaintiff only has
moderate limitations in concentration, persistence, and pace.
Tr. 480-81.

Therefore, there is support in the record for the

ALJ’s determination that Dr. Cheng’s opinions are not supported
by the record evidence.
Despite the support for not giving Dr. Cheng’s opinions
controlling weight, the Court agrees with Magistrate Judge
Litkovitz that the ALJ failed to take the next step and discuss
the factors discussed in Wilson for weighing Dr. Cheng’s opinion.
Dr. Cheng’s opinions as a treating physician were entitled to
great deference even if they were not entitled to controlling
weight.

Rogers, 486 F.3d at 242.

21

The ALJ’s decision to give Dr.

Cheng’s opinions little weight without discussing the factors set
forth in Wilson means that his decision was not supported by
substantial evidence.

Judge Litkovitz also was correct in

concluding that the ALJ’s decision fails to satisfy the
requirement to give “good reasons” for rejecting Dr. Cheng’s
opinions for more or less the same reasons.

Therefore, the

weight the ALJ gave to Dr. Cheng’s opinion is not supported by
substantial evidence.
Accordingly, this objection is not well-taken and is
OVERRULED.
B. Plaintiff’s Physical RFC
As indicated, the ALJ determined that Plaintiff has the
physical RFC to perform a limited range of light work.

Judge

Litkovitz’s Report and Recommendation seems to indicate that the
ALJ was required to obtain a medical source opinion in developing
Plaintiff’s physical RFC.

It is well-established, however, that

the claimant bears the burden of proving his RFC.

Her v.

Commissioner of Social Sec., 203 F.3d 388, 391 (6th Cir. 1999).
If the claimant fails to obtain an official RFC, and relies on
other evidence to prove his impairments, the Commissioner is not
required to prove his RFC at the fifth step.

Id.

In this case, Plaintiff failed to obtain a physical RFC
assessment from any of his treating physicians.

He, therefore,

had to rely on other evidence in the record to establish his RFC.

22

The ALJ rejected Plaintiff’s subjective complaints of pain and
the limitations he claimed they imposed on his ability to work, a
determination not before the Court.

As the ALJ indicated in his

opinion, Dr. Simons’s progress notes reflect that pain medication
gives Plaintiff nearly complete relief without any side effects.
Thus, there was little or no evidence that Plaintiff’s lumbar
arthropathy limits his ability to work.

Rather than fashioning

Plaintiff’s physical RFC out of whole cloth, as Judge Litkovitz
argued the ALJ did, the Commissioner more accurately argues that
the ALJ gave Plaintiff the benefit of the doubt in finding that
his lumbar arthropathy is a severe impairment.

Given the lack of

evidence supporting a claim of disabling back pain, the ALJ
arguably would have been justified in concluding that Plaintiff
has no exertional limitations.

The ALJ nevertheless

reasonably

restricted Plaintiff to a limited range of light work, a decision
which is fully supported by the record.
Accordingly, this objection is well-taken and is
SUSTAINED.
Conclusion
In conclusion, the Commissioner’s objections to Judge
Litkovitz’s Report and Recommendation are SUSTAINED IN PART AND
OVERRULED IN PART.

The Commissioner’s objections to Judge

Litkovitz’s determination that the physical RFC adopted by the
ALJ was not supported by substantial evidence is well-taken and
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is SUSTAINED.

The Commissioner’s objections to Judge Litkovitz’s

determination that the ALJ’s decision to give little weight to
the opinion of Plaintiff’s treating psychiatrist was not
supported by substantial evidence is not well-taken and is
OVERRULED.

The Court, therefore, ADOPTS the Report and

Recommendation in part.

The decision of the ALJ finding that

Plaintiff is not disabled under the Social Security regulations
is REVERSED and this case is REMANDED to the ALJ pursuant to
Sentence Four of 42 U.S.C. § 405(g) to reconsider the weight to
be given to Dr. Cheng’s opinion.

IT IS SO ORDERED
Date December 21, 2011

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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