Hirschbach v. Commissioner of Social Security

Filing 19

ORDER adopting Report and Recommendations re 16 Report and Recommendation affirming the decision by the Commissioner. Signed by Judge Michael R. Barrett on 3/26/14. (ba1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Sheila Hirschback,
Plaintiff,
v.

Case No. 1:12cv713

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

ORDER
This matter is before the Court upon the Magistrate Judge=s November 22, 2013
Report and Recommendation (AR&R@) which recommends that the decision of the
Commissioner be affirmed and this matter be closed on the docket of the Court. (Doc.
16.)
Notice was given to the parties under 28 U.S.C. '636(b)(1)(c).
objections to the Magistrate Judge=s R&R.

(Doc. 17.)

Plaintiff filed

The Commissioner filed a

Response to the Objections. (Doc. 18.)
I.

BACKGROUND
The Magistrate Judge completed a comprehensive review of the record and the

same will not be repeated here except to the extent necessary to address Plaintiff’s
objections. Plaintiff objects to the Magistrate Judge=s R&R on the following bases: (1)
the Magistrate Judge found that the ALJ properly weighed the opinions of consultative
examiners; (2) the Magistrate Judge found that the ALJ properly assessed Plaintiff’s
credibility; (3) the Magistrate Judge found that the ALJ properly considered the effect of all

the claimants impairments on her ability to perform other work.
II.

ANALYSIS
A.

Consultative examiners

Plaintiff argues that the ALJ failed to properly weigh the opinions of Dr. Stephen
Fritsch and Dr. Phillip Swedburg, who are consultative examiners.
The ALJ rejected Dr. Fritsch’s finding that Plaintiff had marked limitations in her
ability to withstand stress and pressures associated with day-to-day work activity.
Instead, the ALJ adopted the opinion of Dr. Leslie Rudy who reviewed Plaintiff’s records
and concluded that weight should not be given to Dr. Fritsch’s opinion of marked
limitations because Plaintiff had recently sought treatment for her psychological
symptoms.
Plaintiff argues that the only record accepted between the time when Dr. Fritsch
examined Plaintiff and Dr. Rudy evaluated her was exhibit 8F, which are treatment notes
from Plaintiff’s primary care physician. (Tr. 311-323.) Plaintiff points out that Dr. Rudy
states that these treatment notes are faint and difficult to decipher. Plaintiff argues that
Dr. Fritsch was in a better position to evaluate Plaintiff because he personally examined
Plaintiff and the only records available to Dr. Rudy were faint and difficult to decipher.
However, as the Magistrate Judge noted, the ALJ rejected Dr. Fritsch’s
assessment of marked limitations because it was “inconsistent with the medical evidence
of record as a whole, including findings on his examination.”

(Tr. 29.)

The ALJ

explained that Dr. Fritsch noted that Plaintiff was tense and anxious during the evaluation,
which indicates moderate limitations in social functioning, and that the marked limitations
appeared to be based on Plaintiff’s self reports. (Id.) As the Magistrate Judge also

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noted, there was a second consultative examiner, Dr. Meyer, who also stated that less
weight should be given to the opinion of Dr. Fritsch because Plaintiff had responded well
to prescription medication, and had little other mental health treatment.
The ALJ was free to reject the opinion of Dr. Fritsch to the extent it was
inconsistent with the record, and the ALJ did not need to provide “good reasons” for doing
so. As the Sixth Circuit has recently explained:
Although [the plaintiff] is correct that the opinions of nontreating sources are
generally accorded more weight than nonexamining sources, it is not a per
se error of law, as [the plaintiff] suggests, for the ALJ to credit a
nonexamining source over a nontreating source. Any record opinion, even
that of a treating source, may be rejected by the ALJ when the source's
opinion is not well supported by medical diagnostics or if it is inconsistent
with the record. See 20 C.F.R. §§ 404.1527, 416.927; Ealy, 594 F.3d at
514. Moreover, an ALJ need only explain its reasons for rejecting a
treating source because such an opinion carries “controlling weight” under
the SSA. See Smith, 482 F.3d at 876. Accordingly, a claimant is entitled
under the SSA only to reasons explaining the weight assigned to his
treating sources, independent of the success of his disability benefits claim.
Id. at 875.
Norris v. Comm'r of Soc. Sec., 461 F. App'x 433, 439 (6th Cir. 2012).
As to the opinion of Dr. Swedburg that Plaintiff would “do best” in a dust-free
environment, the ALJ found that the record did not support a limitation for a completely
dust-free environment. However, as the Magistrate Judge pointed out, the ALJ did
include a limitation that Plaintiff “must avoid concentrated exposure to extreme cold, [and]
even moderate exposure to environmental irritants such as fumes, odors, dusts, and
gases.”
Therefore, the Court concludes that there was no error in the Magistrate Judge’s
finding that the ALJ properly weighed the opinion evidence.

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B.

Credibility

Plaintiff argues that the ALJ erred in assessing her credibility.
As the Magistrate Judge explained: “[t]he ALJ's findings as to a claimant's
credibility are entitled to deference, because of the ALJ's unique opportunity to observe
the claimant and judge her subjective complaints.” Buxton v. Halter, 246 F.3d 762, 773
(6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d 98, 101 (6th Cir. 1987)). However, the
Sixth Circuit has explained:
the ALJ is not free to make credibility determinations based solely upon an
“intangible or intuitive notion about an individual's credibility.” Soc. Sec.
Rul. 96–7p, 1996 WL 374186, at * 4. Rather, such determinations must
find support in the record. Whenever a claimant's complaints regarding
symptoms, or their intensity and persistence, are not supported by objective
medical evidence, the ALJ must make a determination of the credibility of
the claimant in connection with his or her complaints “based on a
consideration of the entire case record.” The entire case record includes
any medical signs and lab findings, the claimant's own complaints of
symptoms, any information provided by the treating physicians and others,
as well as any other relevant evidence contained in the record.
Consistency of the various pieces of information contained in the record
should be scrutinized. Consistency between a claimant's symptom
complaints and the other evidence in the record tends to support the
credibility of the claimant, while inconsistency, although not necessarily
defeating, should have the opposite effect.
Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247-48 (6th Cir. 2007). As the Magistrate
Judge detailed in her R&R, the ALJ considered the entire record and there was
substantial evidence to support the ALJ’s decision to discount Plaintiff’s credibility as it
relates to her psychological symptoms.
C.

RFC determination

Plaintiff’s final argument is for the most part a restatement of her previous
arguments. Plaintiff argues that the ALJ erred in weighing the medical opinions and in
determining Plaintiff’s credibility, which resulted in an erroneous RFC determination.
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Because these arguments have been addressed, the Court will not restate them here.
III.

CONCLUSION
Based on the foregoing, the Court hereby ADOPTS the Magistrate Judge=s

November 22, 2013 R&R (Doc. 16) affirming the decision of the Commissioner. This
matter shall be CLOSED and TERMINATED from the docket of this Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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