Beckstedt v. Commissioner of Social Security et al

Filing 15

REPORT AND RECOMMENDATIONS signed by Magistrate Judge Karen L. Litkovitz on 1/16/15. IT IS RECOMMENDED THAT the decision of the Commissioner be REVERSED and REMANDED for further proceedings. Objections to R&R due by 2/2/2015. (eh1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

DEBORAH SUE BECKSTEDT,
Plaintiff,

Case No. 1:13-cv-261
Barrett, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

ORDER

Plaintiff brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial
review of the final decision of the Commissioner of Social Security (Commissioner) denying
plaintiff’s applications for disability insurance benefits (DIB) and Supplemental Security Income
(SSI). This matter is before the Court on plaintiff’s Statement of Errors (Doc. 6), the
Commissioner’s response in opposition (Doc. 13), and plaintiff’s reply memorandum (Doc. 14).
I. Procedural Background
Plaintiff filed applications for DIB and SSI in June 2009, alleging disability since
February 28, 2007, due to diabetes, depression and anxiety. These applications were denied
initially and upon reconsideration. Plaintiff requested and was granted a de novo hearing before
administrative law judge (ALJ) Larry Temin. Plaintiff appeared at the ALJ hearing with counsel,
and plaintiff, her case manager, and a vocational expert (VE) testified at the ALJ hearing. On
November 17, 2011, the ALJ issued a decision denying plaintiff’s DIB and SSI applications.
Plaintiff’s request for review by the Appeals Council was denied, making the decision of the ALJ
the final administrative decision of the Commissioner.

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. §§ 423(d)(1)(A)
(DIB), 1382c(a)(3)(A) (SSI). The impairment must render the claimant unable to engage in the
work previously performed or in any other substantial gainful employment that exists in the
national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation
process for disability determinations:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities – the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant’s impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant
is disabled.
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing §§ 404.1520(a)(4)
(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the
sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir.
2004). Once the claimant establishes a prima facie case by showing an inability to perform the
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relevant previous employment, the burden shifts to the Commissioner to show that the claimant
can perform other substantial gainful employment and that such employment exists in the
national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.
1999).
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] meets the insured status requirements of the Social Security Act
through September 30, 2013.
2. The [plaintiff] has not engaged in substantial gainful activity since February 28,
2007, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The [plaintiff] has the following severe impairments: diabetes mellitus; obesity;
major depressive disorder; post-traumatic stress disorder; personality disorder
(NOS); and borderline intellectual functioning (20 CFR 404.1520(c) and
416.920(c)).
4. The [plaintiff] does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).
5. The [plaintiff] has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b). Specifically, the [plaintiff] can
perform work activity except as follows: The [plaintiff] can lift, carry, push, or
pull up to 20 pounds occasionally and 10 pounds frequently. She can stand and/or
walk for 6 hours in an 8 hour workday. She can sit 6 hours in an 8 hour workday.
She can only occasionally stoop, kneel, crouch, and climb ramps or stairs. She
can never crawl, climb ladders, ropes, or scaffolds, or work at unprotected
heights. The [plaintiff] is able to perform only simple, routine, repetitive tasks.
She is able to remember and carry out only short and simple instructions. The
[plaintiff] cannot work at a rapid production-rate pace. The [plaintiff]’s job
should not require more than superficial interaction with the general public,
coworkers, and supervisors, or more than ordinary and routine changes in work
setting or duties.

3

6. The [plaintiff] is unable to perform any past relevant work (20 CFR 404.1565
and 416.965). 1
7. The [plaintiff] was born [in] . . . 1966 and was 40 years old (a “younger
individual age 18-49”) on the alleged disability onset date (20 CFR 404.1563 and
416.963).
8. The [plaintiff] has at least a high school education and is able to communicate
in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the [plaintiff] is “not disabled,” whether or not the [plaintiff] has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the [plaintiff]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 404.1569, 404.1569(a),
416.969, and 416.969(a)). 2
11. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, from February 28, 2007, through the date of this decision (20 CFR
404.1520(g) and 416.920(g)).
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007). The Commissioner’s findings must stand if they are
supported by “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citing Consolidated Edison Co.
v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of “more than a scintilla of
1

Plaintiff’s past relevant work was as a retail clerk, cashier, housekeeper, and assistant manager. (Tr. 23).
The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform light jobs such as light packer,
general factory worker, and light cleaner. (Tr. 24).

2

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evidence but less than a preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241
(6th Cir. 2007). In deciding whether the Commissioner’s findings are supported by substantial
evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th
Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).
D. Specific Errors
On appeal, plaintiff argues the ALJ erred in assessing: (1) plaintiff’s ability to sustain a
40-hour work week; (2) the testimony of plaintiff’s mental health case manager; (3) the weight to
afford the medical opinions of record; (4) plaintiff’s credibility; (5) the effect of plaintiff’s
diabetes on her ability to work; and (6) plaintiff’s ability to perform other work at Step 5 of the
sequential evaluation process. (Doc. 6).
1. Whether the ALJ erred in weighing the medical source and other opinions in
assessing plaintiff’s RFC.
Plaintiff argues the ALJ erred by giving the most weight to the one-time consultative and
non-examining state agency reviewing physicians and psychologists and less weight to plaintiff’s
treating physician. Plaintiff also argues the ALJ erred by not evaluating the opinions of
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plaintiff’s mental health case manager. Because the weight the ALJ gave to the various medical
and other opinions directly impacts the ALJ’s RFC finding, whether plaintiff is able to sustain a
40-hour work week, and the effect of plaintiff’s diabetes on her ability to work, the Court will
consider these assignments of error together.
“The Commissioner has elected to impose certain standards on the treatment of medical
source evidence.” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). “These standards, set forth
in administrative regulations, describe (1) the various types of evidence that the Commissioner
will consider, 20 C.F.R. § 404.1512; (2) who can provide evidence to establish an impairment,
20 C.F.R. § 404.1513; and (3) how that evidence will be evaluated, 20 C.F.R. § 404.1520b.
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013). This evidence may include
“medical opinions, which ‘are statements from physicians and psychologists . . . that reflect
judgments about the nature and severity of [a claimant’s] impairment(s), including [ ] symptoms,
diagnosis and prognosis,’ physical and mental restrictions, and what the claimant can still do
despite his or her impairments.” Id. (citing 20 C.F.R. 404.1527(a)(2)).
The applicable regulations set forth three types of acceptable medical sources upon which
an ALJ may rely: treating source, nontreating source, and nonexamining source. 20 C.F.R. §
416.902. When treating sources offer opinions, the Social Security Administration is to give
such opinions the most weight and is procedurally required to “give good reasons in [its] notice
of determination or decision for the weight [it gives the claimant’s] treating source’s opinion.”
Smith v. Comm’r of Soc. Sec., 482 F.3d at 875. This requirement only applies to treating sources.
Id. at 876. “With regard to nontreating, but examining, sources, the agency will simply generally
give more weight to the opinion of a source who has examined the claimant than to the opinion

6

of a source who has not examined him.” Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th
Cir. 2010) (citing 20 C.F.R. § 404.1527(d)(1)) (internal citations omitted).
The ALJ must consider all available evidence in an individual’s case record, including
evidence from medical sources. Social Security Ruling (SSR) 06-03p. 3 The term “medical
sources” refers to both “acceptable medical sources” and health care providers who are not
“acceptable medical sources.” Id. (citing 20 C.F.R. § 404.1502 and § 416.902). Licensed
physicians and licensed or certified psychologists are “acceptable medical sources.” Id. (citing
20 C.F.R. § 404.1513(d)(1) and § 416.913(d)(1)). Only “acceptable medical sources” as defined
under 20 C.F.R. §§ 404.1513(a), 416.913(a) can provide evidence establishing the existence of a
medically determinable impairment, give medical opinions, and be considered treating sources
whose medical opinions may be entitled to controlling weight. Id.
Mental health case managers are not “acceptable medical sources” and instead fall into
the category of “other sources.” 20 C.F.R. §§ 404.1513(d), 416.913(d)). Information from
“other sources” may be based on special knowledge of the individual and may provide insight
into the severity of an individual’s impairment and how it affects the individual’s ability to
function. SSR 06-03p. It may be appropriate to give more weight to the opinion of a medical
source who is not an “acceptable medical source” if he or she has seen the individual more often
than the treating source and has provided better supporting evidence and a better explanation for
his or her opinion. SSR 06-03p. Factors to be considered in evaluating opinions from “other
3

“Social Security Rulings do not have the force and effect of law, but are ‘binding on all components of the
Social Security Administration’ and represent ‘precedent final opinions and orders and statements of policy and
interpretations’ adopted by the Commissioner. 20 C.F.R. § 402.35(b)(1). In Wilson, 378 F.3d at 549, the court
refrained from ruling on whether Social Security Rulings are binding on the Commissioner in the same way as
Social Security Regulations, but assumed that they are. [The Court] makes the same assumption in this case.”
Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 272 n.1 (6th Cir. 2010) (emphasis in original).

7

sources” who have seen the claimant in a professional capacity include how long the source has
known the individual, how frequently the source has seen the individual, how consistent the
opinion of the source is with other evidence, how well the source explains the opinion, and
whether the source has a specialty or area of expertise related to the individual’s impairment. Id.
See also Cruse v. Comm’r of Social Sec., 502 F.3d 532, 541 (6th Cir. 2007). Not every factor
will apply in every case. SSR 06-03p. The ALJ “should explain the weight given to opinions
from these ‘other sources,’ or otherwise ensure that the discussion of the evidence in the
determination or decision allows a claimant or subsequent reviewer to follow the [ALJ’s]
reasoning, when such opinions may have an effect on the outcome of the case.” SSR 06-03p,
2006 WL 2329939, at *6 (emphasis added). With this framework in mind, the Court turns to
plaintiff’s arguments.
a. Weight to one-time consultative and non-examining state agency psychologists
With respect to plaintiff’s physical functional capacity, the ALJ gave “significant weight”
to the opinions of the state agency non-examining physicians that plaintiff could perform light
work. (Tr. 20). The ALJ also gave “significant weight” to the opinion of consultative examiner
Jennifer Wischer Bailey, M.D., who opined that plaintiff “appears capable of performing
activities commensurate with her age.” (Tr. 20).
With respect to plaintiff’s mental functional capacity, the ALJ gave “significant weight”
to the opinion of consulting psychologist Norman Berg, Ph.D., who opined that plaintiff
functioned cognitively in a moderately slow manner but that she had no difficulty understanding,
remembering, and following instructions during the exam. Dr. Berg concluded that plaintiff’s
ability to maintain attention, concentration, persistence and pace to perform simple tasks and

8

multi-step tasks was not impaired, but he suggested that her psychological concerns would
reduce her stress tolerance. (Tr. 20-21). The ALJ also gave “significant weight” to the opinions
of non-examining state agency psychologists Bonnie Katz, Ph.D., and Douglas Pawlarczyk,
Ph.D. (Tr. 21). Dr. Katz opined that plaintiff’s ability to understand and remember short and
simple instructions, carry out short and simple instructions, maintain attention and concentration
for extended periods, sustain an ordinary routine without special supervision, make simple workrelated decisions, and interact appropriately with others was not significantly limited. Dr. Katz
opined that plaintiff’s ability to perform activities within a schedule, maintain regular
and punctual attendance, complete a normal workday and work week without interruptions from
psychologically-based symptoms, perform at a consistent pace, and respond appropriately to
changes in the work setting was moderately limited. Dr. Pawlarczyk agreed with Dr. Katz’s
assessment.
In contrast to these opinions, the ALJ gave “little weight” to the opinions of plaintiff’s
treating family physician, Rasheed Ghani, M.D. (Tr. 22-23). Dr. Ghani opined that plaintiff
could lift only 2½ pounds occasionally and stand only 1 hour at a time or 5 hours total in an 8
hour workday due to weakness caused by diabetes, and he also suggested some postural and
environmental limitations and limits on pushing and pulling. Dr. Ghani also noted that plaintiff
was “unable to function” because she was suicidal after stopping her medications. (Tr. 22).
The opinion of a non-treating but examining source is entitled to less weight than the
opinion of a treating source, but is generally entitled to more weight than the opinion of a source
who has not examined the claimant. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir.
2010). See also Smith, 482 F.3d at 875. When deciding the weight to give a non-treating

9

source’s opinion, the ALJ should consider the medical specialty of the source, how wellsupported by evidence the opinion is, how consistent the opinion is with the record as a whole,
and other factors which tend to support or contradict the opinion. Ealy, 594 F.3d at 514 (citing
20 C.F.R. §§ 404.1527(c), 416.927(c)). Because a non-examining source has no examining or
treating relationship with the claimant, the weight to be afforded the opinion of a non-examining
source depends on the degree to which the source provides supporting explanations for his
opinions and the degree to which his opinion considers all of the pertinent evidence in the record,
including the opinions of treating and other examining sources. 20 C.F.R. §§ 404.927(c)(3),
416.927(c)(3).
Plaintiff argues the ALJ applied a more rigorous standard of review when weighing the
treating doctor’s opinions than when weighing the opinions of the consultative and nonexamining psychologists because the ALJ failed to note “material inconsistencies” among the
psychologists’ opinions. (Doc. 6 at 5-6). Plaintiff asserts the ALJ failed to note the material
differences between Dr. Katz’s January 2010 review of the file and Dr. Berg’s assessment of
plaintiff’s functioning. Plaintiff notes that Dr. Berg diagnosed depression in partial remission,
while Dr. Katz found additional diagnoses of PTSD and personality disorder. (Doc. 6 at 8). Dr.
Katz opined that plaintiff had moderate limitations in persistence and pace and in her ability to
deal with stress, while Dr. Berg assessed a mild impairment in these areas. (Doc. 6 at 5). Dr.
Berg estimated average intelligence, while IQ testing showed she functioned in the borderline
range of intelligence. (Compare Tr. 752 with Tr. 847). Dr. Katz also opined that plaintiff’s
statements about her limitations were credible, which if credited would establish plaintiff’s
inability to sustain a 40 hour work week. (Doc. 6 at 6).

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The fact that the opinions of Drs. Berg and Katz are not identical does not make them
materially inconsistent for purposes of assessing plaintiff’s RFC. Dr. Katz’s opinion of greater
restrictions was rendered after Dr. Berg performed his examination and after Dr. Katz considered
not only Dr. Berg’s report, but also all of the other medical evidence in the record up to that
point. Dr. Katz acknowledged Dr. Berg’s opinion but determined that the treating doctor’s
opinions and other evidence suggested moderate rather than mild impairment of functioning.
(Tr. 851). Whether plaintiff has mild or moderate limitations of function is a question of degree
on which the medical sources may offer opinions, but the ultimate responsibility for determining
a claimant’s capacity to work lies with the Commissioner. Coldiron v. Comm’r of Soc. Sec., 391
F. App’x 435, 439 (6th Cir. 2010) (citing 42 U.S.C. § 423(d)(5)(B); Nejat v. Comm’r of Soc.
Sec., 359 F. App’x 574, 578 (6th Cir. 2009)). See also 20 C.F.R. §§ 404.1546(c), 416.946(c)
(the responsibility for assessing a claimant’s RFC lies with the ALJ). An ALJ is not required to
adopt precise limitations offered by a single medical source in assessing a claimant’s RFC. The
ALJ here was entitled to adopt the more restrictive functional limitations assessed by Dr. Katz
over the less restrictive limitations imposed by Dr. Berg, and plaintiff does not explain how she
was harmed by the ALJ’s decision to incorporate the more restrictive mental limitations into the
RFC. The Court finds no merit to this argument.
Nevertheless, the Court agrees with plaintiff’s arguments that the ALJ erred by not
crediting or weighing the opinions of plaintiff’s case manager and by giving “significant weight”
to the opinions of the state agency psychologists when their reviews did not include any of the
medical or other evidence submitted after June 2010.
Records show that plaintiff’s functioning deteriorated between the time she saw Dr. Berg

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in December 2009 and the dates the state agency reviewers rendered their opinions. These
include plaintiff’s six-day hospital admission in September 2010 for severe depression with
suicidal ideation (Tr. 894-944); the Central Community Health Board records from August 2010
to December 2010 showing plaintiff lost her externship 4 due to her suicide attempt, lost the
ability to care for her son who was now living with plaintiff’s mother, and was homeless (Tr.
946-953); and the records from the Greater Cincinnati Behavioral Health Services (GCB) from
March 2011 through August 2011 (Tr. 978-1057). The GCB records show that after six months
of homelessness, plaintiff moved to Tender Mercies, a residence for homeless adults with mental
illness. 5 (Tr. 1016). Mr. Hitzeroth, a qualified mental health specialist (QMHS) 6 who was
employed by GCB and maintained his office at Tender Mercies, was plaintiff’s case manager. 7
Mr. Hitzeroth testified he saw plaintiff nearly every day and specifically interacted with her at
least two to four times per week over the six months plaintiff had been living at Tender Mercies.
He testified that plaintiff had poor motivation and memory problems and had to be reminded to
go to appointments. He also testified that she consistently experienced serious bouts of
depression for one to two weeks every one to two months during which she would isolate in her
room and he would “have to literally go up to her room and prompt her to . . . get up and come

4

Plaintiff had been going to school to become a medical assistant. (Tr. 896).
See http://www.tendermerciesinc.org/about-our-mission.
6
The Ohio Administrative Code defines “Qualified mental health specialist” (QMHS) as “an individual
who has received training for or education in mental health competencies and who has demonstrated, prior to or
within ninety days of hire, competencies in basic mental health skills along with competencies established by the
agency, and who is not otherwise designated as a provider or supervisor, and who is not required to perform duties
covered under the scope of practice according to Ohio professional licensure. . . .” See Ohio Admin. Code 5122-2401 (Sept. 7, 2011).
7
Mr. Hitzeroth testified that “care manager” was the new title for “case manager.” The Sixth Circuit has
recognized that “many unemployed disability applicants receive treatment at clinics that render care to low income
patients by providing mental health treatment through such counselors. The practical realities of treatment for those
seeking disability benefits underscores the importance of addressing the opinion of a mental health counselor as a
valid ‘other source’ providing ongoing care.” Cole v. Astrue, 661 F.3d 931, 939 n.4 (6th Cir. 2011).
5

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out and interact with people.” (Tr. 69). Mr. Hitzeroth testified that he observed these bouts of
depression four or five times during the six months that plaintiff had been living at Tender
Mercies. Id. He also testified that plaintiff had a lot of conflict with other residents and staff.
(Tr. 71). He opined that she was “pretty compliant” with taking her medications. (Tr. 72). He
did not believe that plaintiff was capable of functioning independently in the community at that
time. (Tr. 72-73). His case management notes consistently reflect that plaintiff was very
disorganized and confused, had trouble maintaining a schedule and following directions, and had
memory problems and poor follow through with appointments. (Tr. 979, 980, 981, 982, 983,
984, 985, 989, 991, 992, 993, 994, 995, 996. 997, 998, 999, 1000, 1001, 1002, 1003, 1004, 1005,
1006, 1007, 1008, 1009, 1010, 1011, 1013, 1014, 1015). In conjunction with the case
management services plaintiff received at Tender Mercies, she also was treated by Dr. Scales, a
GCB psychiatrist. When plaintiff was initially assessed in March 2011, she was diagnosed with
a major depressive disorder, recurrent, and PTSD, chronic, with a GAF of 25. 8 On mental status

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The “GAF is a clinician’s subjective rating, on a scale of zero to 100, of an individual’s overall
psychological functioning.” Kornecky v. Comm’r of Soc. Sec., 167 F. App’x 496, 503 n.7 (6th Cir. 2006). A GAF
score represents “the clinician’s judgment of the individual’s overall level of functioning.” American Psychiatric
Association, Diagnostic and Statistical Manual of Mental Disorders, p. 32 (4th ed., text rev. 2000). The GAF score
is taken from the GAF scale, which “is to be rated with respect only to psychological, social, and occupational
functioning.” Id. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of severely hurting
self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with clear
expectation of death). Id. at 34. The DSM–IV categorizes individuals with GAF scores of 21 to 30 as having
behavior that is “considerably influenced by delusions or hallucinations or serious impairment, in communication or
judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function
in almost all areas (e.g., stays in bed all day, no job, home, or friends)” and scores of 31 to 40 as having “some
impairment in reality testing, or impairment in speech and communication, or serious impairment in several of the
following: occupational or school functioning, interpersonal relationships, judgment, thinking or mood. Id. at 32. A
score of 41 to 50 is indicative of “serious symptoms or serious impairment in social, occupational, or school
functioning (e.g., no friends, unable to keep a job).” Diagnostic and Statistical Manual of Mental Disorders, p. 34
(4th ed. 2000). A GAF score of 51-60 is indicative of “[m]oderate symptoms (e.g., flat affect and circumstantial
speech, occasional panic attacks)” or “moderate difficulty in social, occupational, or school functioning (e.g., few
friends, conflicts with peers or co-workers).” Id. A GAF score of 61 to 70 indicates “[s]ome mild symptoms (e.g.,
depressed mood and mild insomnia)” or “some difficulty in social, occupational, or school functioning . . . but
generally functioning pretty well.” Id.

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examination, she presented with a depressed mood and congruent affect with ongoing crying.
She was positive for suicidal ideation without any concrete plan. (Tr. 1047-1056). Dr. Scales’
treatment records document the fluctuating nature of the severity of plaintiff’s major depression,
with GAF scores of 45, 52, and 47. (Tr. 1018-1029).
While the ALJ’s decision acknowledges Mr. Hitzeroth’s testimony that plaintiff had poor
motivation and memory, that she needed to be reminded about appointments, that she
consistently gets depressed for one or two weeks every month or two, and that she was fairly
compliant with treatment, the ALJ never specified whether he credited these observations or
granted them any weight. (Tr.21). Mr. Hitzeroth’s observations and opinions on plaintiff’s
functioning conflict with the opinions of the one-time consultative examiner and the nonexamining state agency physicians which the ALJ gave “significant weight.” Mr. Hitzeroth’s
testimony and progress notes, along with the records of plaintiff’s September 2010
hospitalization for suicidal ideation, the Central Community Health Board records, and Dr.
Scales’ treatment records, suggest greater limitations in functioning than those found by the onetime and non-examining psychologists and indicate that plaintiff may not be able to sustain a 40hour workweek. See SSR 96-8p. Contrary to SSR 96-8p, the ALJ did not consider the length of
time Mr. Hitzeroth has known plaintiff or the frequency of his observations and interactions with
plaintiff at Tender Mercies, which provide insight into the severity of plaintiff’s mental
impairment and how it affects her ability to function. Nor did the ALJ assess how consistent Mr.
Hitzeroth’s opinion was with the other evidence, particularly the evidence submitted after June
2010 which showed a decline in plaintiff’s mental functioning since the time she was examined
by Dr. Berg. SSR 06-03p; see also Cruse, 502 F.3d at 541. The ALJ’s failure to weigh and

14

assess the credibility of Mr. Hitzeroth’s testimony and to evaluate his progress notes in the
written decision does not comply with the applicable Social Security Rulings and regulations and
deprives this Court of a meaningful basis for judicial review. SSR 06-03p provides that ALJs
“should explain the weight given to opinions from these ‘other sources,’ or otherwise ensure that
the discussion of the evidence in the determination or decision allows a claimant or subsequent
reviewer to follow the [ALJ’s] reasoning, when such opinions may have an effect on the
outcome of the case.” SSR 06-03p (emphasis added). Without this analysis, the Court is unable
to meaningfully review the ALJ’s decision giving “significant weight” to the opinions of the onetime and non-examining psychologists in this case. See Hurst v. Sec’y of H.H.S., 753 F.2d 517,
519 (6th Cir. 1985) (the ALJ’s articulation of reasons “for crediting or rejecting particular
sources of evidence . . . is absolutely essential for meaningful appellate review.”).
In addition, the ALJ erred by giving the most weight to the opinions of the nonexamining state agency psychologists without acknowledging that they did not have a significant
portion of the medical and other records in this case when they rendered their opinions. One of
the factors the ALJ must consider in weighing medical opinions is “the extent to which an
acceptable medical source is familiar with the other information in [the] case record.” 20 C.F.R.
§§ 404.1527(c)(6), 416.927(c)(6). A state agency reviewing doctor’s opinion may be entitled to
greater weight than that of a treating or examining doctor in certain circumstances, such as when
the “State agency medical . . . consultant’s opinion is based on a review of a complete case
record that . . . provides more detailed and comprehensive information than what was available
to the individual’s treating source.” Blakley, 581 F.3d at 409 (quoting SSR 96-6p, 1996 WL
374180, at *3 (July 2, 1996)). However, where a non-examining source has not reviewed a

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significant portion of the record and the ALJ fails to indicate that he has “at least considered
[that] fact before giving greater weight” to the reviewing doctor’s opinion, the ALJ’s decision
cannot stand. Blakley, 581 F.3d at 409 (internal quotation omitted). In this case, the latergenerated treatment notes and Mr. Hitzeroth’s observations and opinions contain a more detailed
picture of plaintiff’s functionality than any other record evidence and indicate a deterioration in
plaintiff’s functioning that was not considered by the non-examining psychologists.
More importantly, these records indicate that plaintiff still had significant limitations in
her mental functioning despite compliance with her medication regimen. The ALJ noted several
instances of plaintiff’s noncompliance with medication in 2008 and 2009 and concluded that she
“only experienced more severe psychological symptoms when she failed to comply with
treatment and that her symptoms improved dramatically when she resumed taking her
medications.” (Tr. 22). There is some evidence to support the ALJ’s finding for the 2008 to
2009 period. 9 However, there is no evidence that plaintiff’s September 2010 hospitalization for
suicidal ideation resulted from noncompliance with medication or that she was noncompliant
when treated by Dr. Scales and Mr. Hitzeroth through GCB. The state agency psychologists did
not review this evidence prior to proffering their opinions, making their opinions incomplete.
For these reasons, the ALJ erred in giving “significant weight” to the opinions of Drs. Katz and

9

The ALJ’s decision notes that plaintiff was hospitalized once in 2008 and once in 2009 for suicidal ideation. (Tr.
22). The records show that on each occasion, plaintiff had not been taking her psychiatric medications prior to her
admission. (Tr. 830, 785). The ALJ also cites to a note from Dr. Bort, plaintiff’s family physician prior to Dr.
Ghani, who “noted noncompliance with medical treatment ‘is the reason for most of her issues’ (Exhibit 1F/222).”
(Tr. 22). This note does not support the ALJ’s conclusion that plaintiff experienced more severe psychological
symptoms when she failed to comply with treatment. (Tr. 22). This note is taken out of context by the ALJ. Dr.
Bort’s note actually references plaintiff’s lack of control over her weight and diet, and stresses that plaintiff should
“NOT drink soda pop.” (Tr. 513). The note concerns plaintiff’s need to gain better control over her blood sugar
levels given her diabetes and does not imply that plaintiff was noncompliant with her psychiatric medications at that
time. To the contrary, the progress note from that date states plaintiff “[s]eems to be doing a bit better” with her
depression disorder and says nothing about noncompliance with medication. Id.

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Pawlarczyk because of the significant amount of evidence discussed above that was not in the
record at the time of their reviews.
b. Weight to the opinions of treating physician Dr. Ghani
It is well-established that the findings and opinions of treating physicians are entitled to
substantial weight. “In general, the opinions of treating physicians are accorded greater weight
than those of physicians who examine claimants only once.” Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 530-31 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir.
1985) (“The medical opinions and diagnoses of treating physicians are generally accorded
substantial deference, and if the opinions are uncontradicted, complete deference.”). “The
treating physician doctrine is based on the assumption that a medical professional who has dealt
with a claimant and his maladies over a long period of time will have a deeper insight into the
medical condition of the claimant than will a person who has examined a claimant but once, or
who has only seen the claimant’s medical records.” Barker v. Shalala, 40 F.3d 789, 794 (6th
Cir. 1994).
“Treating-source opinions must be given ‘controlling weight’ if two conditions are met:
(1) the opinion ‘is well-supported by medically acceptable clinical and laboratory diagnostic
techniques’; and (2) the opinion ‘is not inconsistent with the other substantial evidence in [the]
case record.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011). If the ALJ
declines to give a treating source’s opinion controlling weight, the ALJ must balance the factors
set forth in 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6) in determining what weight to
give the opinion. See Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. These factors include

17

the length, nature and extent of the treatment relationship and the frequency of examination. 20
C.F.R. §§ 404.1527(c)(2)(i)(ii), 416.927(c)(2)(i)(ii); Wilson, 378 F.3d at 544. In addition, the
ALJ must consider the medical specialty of the source, how well-supported by evidence the
opinion is, how consistent the opinion is with the record as a whole, and other factors which tend
to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(3)-(6), 416.927(c)(3)-(6);
Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
“Importantly, the Commissioner imposes on its decision makers a clear duty to ‘always
give good reasons in [the] notice of determination or decision for the weight [given a] treating
source’s opinion.’” Cole, 661 F.3d at 937 (citation omitted). See also Wilson, 378 F.3d at 544
(ALJ must give “good reasons” for the ultimate weight afforded the treating physician opinion).
Those reasons must be “supported by the evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for that weight.” Cole, 661 F.3d at 937 (citing SSR 962p, 1996 WL 374188 (1996)). This procedural requirement “ensures that the ALJ applies the
treating physician rule and permits meaningful review of the ALJ’s application of the rule.”
Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).
Plaintiff’s treating family physician, Dr. Ghani, submitted Questionnaires dated August
25, 2009 (Tr. 684-686) and May 5, 2010 (Tr. 711-713), and a Medical Assessment of Ability to
do Work-Related Activities (Physical) dated June 8, 2011. (Tr. 955-57). In August 2009, Dr.
Ghani reported plaintiff’s diagnoses as major depression, suicidal, personality disorder, and
uncontrolled diabetes. He opined that plaintiff was depressed, could not sleep, and had suicidal
thoughts. He reported that plaintiff “cannot concentrate” and that she “fails to show at work and

18

doctor’s office appointments.” (Tr. 685). He reported she was withdrawn and “totally unable to
tolerate stress.” (Tr. 686). He also reported she had no resources to buy medications. (Tr. 686).
In May 2010, Dr. Ghani reported plaintiff had severe depression and was suicidal. He also
reported that she had no money to buy medications so her diabetes was usually uncontrolled and
her depression was severe. He stated that “when she has money she buys medications otherwise
diabetes and depression uncontrolled.” (Tr. 713). In June 2011, he reported that plaintiff had
weakness due to diabetes and could lift only 2½ pounds occasionally and stand only 1 hour at a
time or 5 hours total in an 8 hour workday. He also opined that plaintiff was “unable to function
suicidal.” (Tr. 956). The ALJ gave “little weight” to the opinions of Dr. Ghani. (Tr. 22-23).
Plaintiff argues the ALJ erred in weighing Dr. Ghani’s opinions. First, plaintiff states
“the ALJ mentioned that some of [Dr. Ghani’s] records were illegible” (Doc. 6 at 8, citing Tr.
20) and suggests that if the ALJ could not read Dr. Ghani’s treatment notes he did not have a
basis to discount his opinion. Contrary to plaintiff’s argument, the ALJ did not discount Dr.
Ghani’s opinion on this basis. Rather, the ALJ gave reduced weight to Dr. Ghani’s opinions
because “his treatment notes are not particularly informative, contain no thorough physical or
mental examination, and contain no objective support for his opinion.” (Tr. 22). Notably, even
if the ALJ had discounted Dr. Ghani’s opinion on the basis of illegibility, it is plaintiff’s burden
to put forth evidence establishing disability. See Rabbers, 582 F.3d at 652; Wilson, 378 F.3d at
548. The fact that a treating physician’s notes may be largely illegible does not relieve plaintiff
of this burden, nor does it require the Commissioner to accept plaintiff’s word in lieu of
objective, clinical, or opinion evidence. Where the ALJ provides an otherwise substantially
supported basis for discounting opinion evidence, such as lack of support, the illegibility of

19

portions of treatment records does not warrant reversal. See Anderson v. Astrue, No. 11-cv15636, 2012 WL 4867703, at *13 (E.D. Mich. Sept. 18, 2012). See also Amer v. Comm’r of Soc.
Sec., No. 1:13-cv-282, 2014 WL 1338115, at *8 (S.D. Ohio Apr. 2, 2014) (report and
recommendation), adopted, 2014 WL 1670082 (S.D. Ohio Apr. 24, 2014). In any event, the
ALJ’s finding is supported by Dr. Ghani’s subsequent progress notes, which do not contain
objective or clinical findings to support his opinions. (Tr. 966-977). Plaintiff’s argument is
therefore not well-taken.
Plaintiff also alleges the ALJ failed to apply the factors set forth in § 404.1527(c) in
weighing Dr. Ghani’s opinions. (Doc. 6 at 8). Plaintiff contends that although Dr. Ghani is not a
psychiatrist or endocrinologist, he “is trained in mental health issues and diabetes,” he prescribes
medications for these conditions, and he is qualified to report his observations of plaintiff. (Doc.
6 at 9). Plaintiff’s argument is without merit. The ALJ recognized that Dr. Ghani was a treating
source who had treated plaintiff since February 2008 (Tr. 22), see 20 C.F.R. §§
404.1527(c)(2)(i), 416.927(c)(2)(i), and properly considered that Dr. Ghani was not a specialist,
but a general practitioner (Tr. 23), see 20 C.F.R. §§ 404.1527(c)(5), 416.927(c)(5). The ALJ
properly considered these regulatory factors in assessing Dr. Ghani’s opinions.
Plaintiff also argues the ALJ failed to give good reasons for discounting the treating
physician’s opinion when the ALJ stated that Dr. Ghani did not address plaintiff’s failure to
comply with treatment. (Doc. 6 at 9). Plaintiff alleges that Dr. Ghani was familiar with
plaintiff’s noncompliance with treatment, but noted in his report that she had “no resources to
buy medications.” (Tr. 686, 713). However, plaintiff testified that she had possessed a medical
card since 2006, implying that she had medical insurance to cover the cost of medications. (Tr.

20

39, 53-54). The ALJ reasonably resolved this conflict in the evidence and considered this factor
in assessing the weight to afford Dr. Ghani’s opinions. Plaintiff has put forth no compelling
reasons for disturbing the ALJ’s findings in this regard.
2. Whether the ALJ erred at Step 5 of the sequential evaluation process.
At Step 5 of the sequential evaluation process – the availability of suitable work for a
claimant – the ALJ may rely upon the testimony of a vocational expert. Such testimony can
constitute substantial evidence, but it “must be given in response to a hypothetical question that
accurately describes the plaintiff in all significant, relevant respects.” Felisky v. Bowen, 35 F.3d
1027, 1036 (6th Cir. 1994). Where the hypothetical question posed by the ALJ fails to
accurately portray the plaintiff’s limitations and RFC, the ALJ errs by relying on the VE’s
answer to the hypothetical. White v. Comm’r of Soc. Sec., 312 F. App’x 779, 789 (6th Cir.
2009).
Plaintiff argues the ALJ erred by finding plaintiff had moderate limitations in persistence
and pace but failing to include these in his mental RFC or in his hypothetical question to the
vocational expert. (Doc. 6 at 6). Contrary to plaintiff’s argument, both the ALJ’s RFC and
hypothetical question accommodated these limitations by precluding work at a rapid productionrate pace. (Tr. 20, 81). See Starr v. Comm’r of Soc. Sec., No. 2:12-cv-290, 2013 WL 653280, at
*3 (S.D. Ohio Feb. 21, 2013) (limiting claimant to performing tasks in an environment without
fast-paced production demands accounted for limits in persistence and pace); Black v. Comm’r of
Soc. Sec., No. 5:11-cv-2770, 2012 WL 4506018, at *14 (N.D. Ohio Sept. 28, 2010) (hypothetical
question accounts for moderate limitations in concentration, persistence, or pace when it limits
claimant to “simple, routine, and repetitive tasks performed in a work environment free of fast

21

paced production requirements, involving only simple, work-related decisions, and routine
workplace changes”).
Plaintiff also argues the ALJ erred when he omitted from his hypothetical question to the
VE several additional limitations, including the number of days plaintiff would miss from work,
her problems with focus and concentration, her serious bouts of depression lasting one to two
weeks, and her reliability issues. (Doc. 6 at 14). Whether the ALJ erred by not accounting for
these specific limitations cited by plaintiff depends on the extent to which they are supported by
the medical and other record evidence. As this matter should be remanded for further
proceedings based on the ALJ’s weighing of the opinion evidence and for a new RFC finding,
the VE’s testimony based on the ALJ’s hypothetical is insufficient to carry the Commissioner’s
burden at Step 5. This is an issue that should be re-addressed on remand.
3. The Court need not address plaintiff’s credibility argument.
Plaintiff alleges as her fourth assignment of error that the ALJ erred in assessing her
credibility. (Doc. 6 at 10). It is not necessary to address plaintiff’s credibility argument because
on remand the ALJ’s reconsideration of the medical and opinion evidence in this matter and
plaintiff’s RFC may impact the remainder of the sequential evaluation process, including the
ALJ’s assessment of plaintiff’s credibility. See Trent v. Astrue, No. 1:09cv2680, 2011 WL
841538, at *7 (N.D. Ohio Mar. 8, 2011). In any event, even if plaintiff’s fourth assignment of
error had merit, the result would be the same, i.e., a remand for further proceedings and not an
outright reversal for benefits. The Court therefore declines to address plaintiff’s fourth
assignment of error.

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III. This matter should be reversed and remanded for further proceedings.
In determining whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the Court notes that all essential factual issues have not been
resolved in this matter, nor does the current record adequately establish plaintiff’s entitlement to
benefits as of her alleged onset date. Faucher v. Sec’y of H.H.S., 17 F.3d 171, 176 (6th Cir.
1994). This matter is reversed and remanded for further proceedings with instructions to the ALJ
to re-weigh the medical and other opinion evidence in accordance with this decision; to
reconsider plaintiff’s credibility and RFC; and for further medical and vocational development as
warranted.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for further proceedings
pursuant to Sentence Four of 42 U.S.C. § 405(g).

Date:

1/16/2015

s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DEBORAH SUE BECKSTEDT,
Plaintiff,

Case No. 1:13-cv-261
Barrett, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE TO THE PARTIES REGARDING THE FILING OF OBJECTIONS TO R&R
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy of
the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court on
timely motion for an extension. Such objections shall specify the portions of the Report objected
to and shall be accompanied by a memorandum of law in support of the objections. If the Report
and Recommendation is based in whole or in part upon matters occurring on the record at an oral
hearing, the objecting party shall promptly arrange for the transcription of the record, or such
portions of it as all parties may agree upon, or the Magistrate Judge deems sufficient, unless the
assigned District Judge otherwise directs. A party may respond to another party's objections
WITHIN 14 DAYS after being served with a copy thereof. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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