Triplett v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed and this case be Closed on the docket of the Court. Objections to R&R due by 11/2/2015. Signed by Magistrate Judge Karen L. Litkovitz on 10/15/2015. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
TROY TRIPLETT,
Plaintiff,

Case No. 1:14-cv-729
Dlott, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMMENDATION

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 application for supplemental security income (SSI). This matter is before the Court
on plaintiff’s Statement of Errors (Doc. 10), the Commissioner’s response in opposition (Doc.
13), and plaintiff’s reply. (Doc. 16).
I.

Procedural Background
Plaintiff protectively filed an application for SSI in April 2011, alleging disability

beginning July 19, 2010, due to knee problems, limited intelligence, depression/mood disorder,
high cholesterol and pinched nerve in neck. 1 (Tr. 183). Plaintiff’s application was denied
initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de
novo hearing before administrative law judge (ALJ) Gregory Kenyon. Plaintiff and a vocational
expert (VE) appeared and testified at the ALJ hearing. On March 12, 2013, the ALJ issued a
decision denying plaintiff’s SSI application. (Tr. 12-25). Plaintiff’s request for review by the

1

Plaintiff had previously filed an application for SSI on January 24, 2008, which was denied at the administrative
level. (Tr. 69).

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. § 1382c(a)(3)(A).
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. §
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 20 C.F.R. §§
416.920(a)(4)(i)-(v), 416.920(b)-(g)). The claimant has the burden of proof at the first four steps
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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 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] has not engaged in substantial gainful activity since April 29,
2011, the application date (20 CFR 416.971 et seq.).
2. The [plaintiff] has the following severe impairments: degenerative joint disease
of the right knee and left shoulder, degenerative disc disease of the lumbar and
cervical spine, depression, and an anxiety disorder (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the [ALJ] finds that the
[plaintiff] has the residual functional capacity to perform sedentary work as
defined in 20 CFR 416.967(a) subject to the following limitations: (1) no
crouching, crawling, or kneeling; (2) occasional stooping, balancing, and climbing
of ramps and stairs; (3) no climbing of ladders, ropes, or scaffolds; (4) no work
around hazards such as unprotected heights or dangerous machinery; (5)
occasional overhead reaching with the left upper extremity; (6) standing or
walking for no more than 30 minutes at a time; (7) limited to jobs in which he
would be permitted to use a cane for assistance when ambulating; (8) limited to
performing unskilled, simple, and repetitive tasks; (9) occasional contact with
coworkers, supervisors, and the public; (10) no jobs involving rapid production
pace work or strict production quotas; and (11) limited to performing jobs in a
relatively static work environment in which there is very little, if any, change in
the job duties or the work setting from one day to the next.

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5. The [plaintiff] is unable to perform any past relevant work (20 CFR 416.965). 2
6. The [plaintiff] was born [in] . . . 1968 and was 43 years old, which is defined as
a younger individual age 18-44, on the date the application was filed (20 CFR
416.963).
7. The [plaintiff] has a marginal education and is able to communicate in English
(20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the [plaintiff]’s
past relevant work is unskilled (20 CFR 416.968).
9. 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 416.969 and 416.969(a)). 3
10. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, since April 29, 2011, the date the application was filed (20 CFR
416.920(g)).
(Tr. 14-25).
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,
2

Plaintiff’s past relevant work was as a dishwasher, an unskilled position typically performed at the medium level of
exertion which plaintiff performed at the light level. (Tr. 24).

3

The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the requirements of
representative unskilled sedentary occupations such as packer (350 jobs locally and 27,000 jobs nationally),
assembler (300 jobs locally and 39,000 jobs nationally), inspector (200 jobs locally and 15,000 jobs nationally), and
production helper (100 jobs locally and 36,000 jobs nationally). (Tr. 25).

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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 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
Plaintiff alleges that the ALJ erred by: (1) finding that plaintiff did not meet or equal the
Listing of Impairments without considering plaintiff’s need to use a hand-held assistive device;
(2) failing to give controlling weight to the opinion of plaintiff’s treating psychiatrist, Dr. Irfan
Dahar, M.D.; and (3) failing to find that plaintiff’s left knee condition is a severe impairment. 4
(Docs. 10, 16).
1. The ALJ’s severe impairment finding (Third assignment of error)
Plaintiff alleges as his third assignment of error that the ALJ erred by failing to find his

4

The Court will consider plaintiff’s assignments of error in a different order than they are presented in the Statement
of Errors.

5

left knee impairment is a “severe” impairment. (Doc. 10 at 4-5). Plaintiff alleges that he had
“significant orthopedic disease in his left knee throughout the relevant time period.” (Id. at 5).
Plaintiff contends the ALJ erred by not considering his left knee impairment beyond step two of
the sequential evaluation. (Id.).
In response, the Commissioner alleges that the ALJ did not commit reversible error by
failing to include plaintiff’s left knee impairment among plaintiff’s severe impairments. The
Commissioner alleges that the ALJ considered all of the evidence and reasonably evaluated the
combined impact of all of plaintiff’s impairments, both severe and non-severe, on his ability to
work. (Doc. 13 at 2-3). The Commissioner further alleges there is little evidence that
plaintiff’s left knee impairment qualifies as a “severe” impairment as defined under the
regulations. (Id. at 3). The Commissioner alleges that in any event, plaintiff has not carried his
burden to show how his left knee impairment impacted his functioning during the period of
alleged disability or that his left knee impairment imposes limitations that are inconsistent with
the ALJ’s RFC finding. (Id.).
The regulations define a severe impairment or combination of impairments as one that
significantly limits the claimant’s physical or mental ability to perform basic work activities. 20
C.F.R. § 416.920(c). In the physical context, this means a significant limitation on a claimant’s
ability to walk, stand, sit, lift, push, pull, reach, carry or handle. 20 C.F.R. § 416.921(b)(1).
The severity requirement is a “de minimis hurdle” in the sequential evaluation process. Higgs v.
Bowen, 880 F.2d 860, 862 (6th Cir. 1988). See also Rogers, 486 F.3d at 243 n.2. The claimant
is not required to establish total disability at this level of the sequential evaluation. Rather, the
severe impairment requirement is a threshold element which the claimant must prove in order to
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establish disability within the meaning of the Act. Gist v. Sec’y of H.H.S., 736 F.2d 352, 357
(6th Cir. 1984).
An impairment will be considered non-severe only if it is a “slight abnormality which has
such a minimal effect on the individual that it would not be expected to interfere with the
individual’s ability to work, irrespective of age, education, and work experience.” Farris v.
Sec’y of H.H.S., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920
(11th Cir. 1984)). An ALJ’s failure to find an impairment to be severe does not constitute
reversible error where the ALJ determined that a claimant has at least one other severe
impairment and properly considered all of the claimant’s impairments, both severe and
non-severe, in determining whether the claimant retained sufficient residual functional capacity
to allow him to perform substantial gainful activity. Maziarz v. Sec’y of Health & Human
Servs., 837 F.2d 240, 244 (6th Cir. 1987).
Here, the ALJ considered plaintiff’s left knee impairment at step two of the sequential
evaluation process. (Tr. 15). The ALJ noted plaintiff’s complaints of post-surgical left knee
swelling, popping, cracking, and pain which plaintiff alleged reached the level of “5” on a
standard analog pain scale. (Id.). However, the ALJ found that there was no current diagnosis
in the available medical records to support plaintiff’s claims and that recent physical
examinations had disclosed largely normal left knee findings, with the exception of some minor
swelling and crepitus. (Id., citing Tr. 423-25- 10/6/11 report by treating physician Dr. Gary Ray,
M.D., included left knee findings of mild crepitation, 5/5 strength, and no tenderness; Tr. 58310/29/12 treatment note reported findings of normal motion in the left lower extremity, no
atrophy or pain to palpation, and negative McMurray’s test). Plaintiff has not pointed to any
7

medical evidence of record that counters the ALJ’s findings and indicates that his left knee
condition is a severe impairment in that it interferes with his ability to perform basic work
activity. Plaintiff notes only two reports of abnormal left knee findings during the period of
alleged disability: (1) a finding of mild crepitation made by Dr. Ray in October 2011, and (2) Dr.
Ray’s April 2012 physical examination findings, which again disclosed mild crepitation. 5
(Doc. 10 at 4, citing Tr. 423-25, 479). Plaintiff has not shown how these findings demonstrate
more than a slight abnormality that would impact his ability to perform basic work functions to
any extent. Plaintiff therefore has not carried his burden to demonstrate that his left knee
impairment is a severe impairment. See Rabbers, 582 F.3d at 652 (plaintiff bears the burden of
proof at the first four steps of the sequential evaluation). The ALJ did not err by failing to find
plaintiff’s left knee impairment to be a severe impairment.
Assuming, arguendo, the ALJ did err in this regard, the error was harmless. The ALJ
thoroughly reviewed the medical evidence of record in determining the functional limitations
imposed by plaintiff’s physical impairments, which included severe degenerative joint disease of
the right knee and left shoulder and severe degenerative disc disease of the lumbar and cervical
spines. (Tr. 14). In finding that plaintiff could perform a restricted range of sedentary work,
the ALJ considered plaintiff’s right knee impairment and physical examination findings related
to plaintiff’s ability to ambulate. The ALJ noted that throughout 2011 treating physicians
reported negative straight leg raising test results, moderate swelling of the right knee, and

5

Plaintiff alleges that Dr. Ray’s April 2012 physical examination disclosed “a mildly stiff gait pattern, mild to
moderate tenderness of the left knee, mild swelling of the left knee, and mild crepitation with motion.” (Doc. 10 at
4, citing Tr. 479). In fact, the only finding Dr. Ray made with respect to the left knee at this time was “mild
crepitation with motion of the left knee.” (Tr. 479). Dr. Ray found that plaintiff “ambulated with a mild to
moderate right antalgic gait pattern with a cane” and made no findings of left knee tenderness or swelling. (Id.)
(emphasis added).

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moderate crepitus. (Tr. 20, citing Tr. 267, 4/5/11 office visit for right knee pain- moderate
crepitus and pain on medial compression of right knee noted, osteoarthritis diagnosed; Tr. 424,
10/6/11 evaluation- moderate crepitation with motion of the right knee, tenderness, and mild
swelling noted; Tr. 433, 8/2/11 emergency room visit for wrist injury- negative bilateral sitting
straight leg test, able to stand on heels and toes). The ALJ also considered subsequent physical
examination findings which showed that plaintiff walked with a “steady gait” or a “mild stiff gait
pattern” without the use of an assistive hand-held device, and he displayed normal strength,
sensation and stability of the lower extremities. (Tr. 20, citing Tr. 471, 474, 476). The ALJ
stated that treatment notes for a knee arthroscopy follow-up dated December 2012 reflected that
plaintiff was “doing well,” he had a “little swelling” which was normal, and his “pain [was] gone
and [he had] returned to normal activities.” (Tr. 20, citing Tr. 583). The ALJ accounted for the
functional limitations imposed by plaintiff’s severe physical impairments and his diminished
ability to ambulate by including the following restrictions in the RFC finding:
(1) no crouching, crawling, or kneeling; (2) occasional stooping, balancing, and
climbing of ramps and stairs; (3) no climbing of ladders, ropes, or scaffolds; (4)
no work around hazards such as unprotected heights or dangerous machinery; (5)
occasional overhead reaching with the left upper extremity; (6) standing or
walking for no more than 30 minutes at a time; (7) limited to jobs in which he
would be permitted to use a cane for assistance when ambulating[.]
(Tr. 17).
Plaintiff has not shown that his left knee impairment imposed functional limitations in
addition to those assessed by the ALJ nor indicated how inclusion of his left knee impairment as
a severe impairment would have changed the ALJ’s assessment of his functional limitations.
Thus, any error committed by the ALJ in failing to find plaintiff’s left knee impairment to be a

9

severe impairment was harmless. Marziarz, 837 F.2d at 244.
For these reasons, plaintiff’s third assignment of error should be overruled.
2. The ALJ’s Listing finding (First assignment of error)
Plaintiff alleges as his second assignment of error that the ALJ failed to properly evaluate
his impairments under Listing 1.02, “Major dysfunction of a joint[],” 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.02. (Doc. 10 at 2-3). Plaintiff alleges that the ALJ summarily found he did not
meet or equal Listing 1.02 without considering plaintiff’s need to use a hand-held assistive
device. (Id.).
Listing 1.02A is at issue here. An impairment meets Listing 1.02A if it satisfies the
following criteria:
Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion
or other abnormal motion of the affected joint(s), and findings on appropriate
medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b. . . .
Section 1.00B2b of the Listings defines the “inability to ambulate effectively” as follows:
(1) Definition. Inability to ambulate effectively means an extreme limitation of the
ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual’s ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.
(Listing 1.05C is an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
Section 1.00B2b also explains the meaning of “to ambulate effectively” as follows:
(2) To ambulate effectively, individuals must be capable of sustaining a
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reasonable walking pace over a sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel without companion
assistance to and from a place of employment or school. Therefore, examples of
ineffective ambulation include, but are not limited to, the inability to walk without
the use of a walker, two crutches or two canes, the inability to walk a block at a
reasonable pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one’s
home without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
To meet Listing 1.02A, the plaintiff must also show that his inability to ambulate lasted or can be
expected to last for at least twelve months. § 1.00B2a.
An impairment is medically equivalent to Listing 1.02A if it is “at least equal in severity
and duration to the criteria” of the listed impairment. See 20 C.F.R. § 416.926(a). Medical
equivalence can be found in a number of ways as set forth in the regulations. 20 C.F.R. §
416.926(b). The ALJ must consider medical equivalence based on all evidence in the record
about the claimant’s impairments and their effects that is relevant to the equivalency findings.
20 C.F.R. §§ 416.926(b)(4), 416.929(d)(3). The ALJ will consider whether the claimant’s
“symptoms, signs and laboratory findings are at least equal in severity to the listed criteria [but]
will not substitute [the claimant’s] allegations of pain or other symptoms for a missing or
deficient sign or laboratory finding to raise the severity of [the] impairment(s) to that of a listed
impairment. . . .” 20 C.F.R. § 416.929(d)(3). If the symptoms, signs and laboratory findings of
the claimant’s impairments are equivalent in severity to a listed impairment, the claimant will be
found disabled. Id. Otherwise, the impact of the claimant’s symptoms on the RFC will be
considered. Id.
Here, the ALJ determined that plaintiff’s knee impairments did not meet or medically
11

equal Listing 1.02. (Tr. 15). The ALJ found that objective physical testing showed that
plaintiff retained the ability to “ambulate effectively” as defined in the Listing. (Id.). The ALJ
specifically noted that plaintiff displayed only “minor gait-related defects” when not using a
walker or cane (Id., citing Tr. 413, 471), and that he discontinued use of his cane for at least
some period of time during the alleged period of disability. (Id., citing Tr. 474, 4/9/12 treatment
note- “On physical examination, he ambulated with a mild stiff gait pattern. He is no longer
using his cane.”).
Plaintiff argues that the ALJ erred when performing the step three analysis because
although the ALJ included a restriction in the RFC limiting him to “jobs in which he would be
permitted to use a cane for assistance when ambulating” (Tr. 17), the ALJ found that plaintiff
retained the ability to ambulate effectively and did “not consider the effects of the use of an
ambulatory aid[.]” (Doc. 10 at 2-3). Plaintiff appears to argue that the ALJ’s RFC finding
limiting him to jobs in which he would be permitted to use a cane is inconsistent with the ALJ’s
finding that plaintiff retained the ability to “ambulate effectively” as that term is defined in the
Listing.
The ALJ did not err in conducting the step three analysis. There is no evidence that
plaintiff has “an extreme limitation of the ability to walk” as he does not require the use “of a
hand-held assistive device(s) that limits the functioning of both upper extremities.” §
1.00B2b(1) (emphasis added). Plaintiff has not pointed to any other medical evidence in the
record to show that he did not retain the ability to “ambulate effectively” throughout the period of
alleged disability, including evidence of the inability to walk without the use of a walker or two
crutches or two canes; the inability to walk a block at a reasonable pace on rough or uneven
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surfaces; the inability to carry out routine ambulatory activities, like shopping and banking; or the
inability to climb a few steps at a reasonable pace with the use of a single handrail. §
1.00B2b(2). Although the ALJ limited plaintiff to jobs in which he could use a cane, this
functional limitation is not inconsistent with the ALJ’s finding that plaintiff retained the ability to
“ambulate effectively” as that term is defined under the Listing. The ALJ’s finding is
substantially supported by evidence showing that plaintiff used at most one cane, he did not
require the use of a cane during the entire period of alleged disability, and he was otherwise able
to ambulate effectively throughout the relevant period. 6
For these reasons, plaintiff has not shown that his impairments met or medically equaled
in severity Listing 1.02 during the period of alleged disability. Plaintiff’s first assignment of
error should be overruled.
3. Weight to the treating psychiatrist (Second assignment of error)
Plaintiff alleges as his second assignment of error that the ALJ erred by failing to give
controlling weight to the opinion of his treating psychiatrist, Dr. Irfan Dahar, M.D., and instead
crediting the opinions of the non-examining state agency psychologists, Drs. Irma Johnston,
Psy.D., and Kristen Haskins, Psy.D. (Doc. 10 at 3-4).
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

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Plaintiff also notes that the need to use a hand-held assistive device may impact activities such as lifting, carrying,
pushing, and pulling. (Doc. 10 at 3, citing Listing 1.00(J)(4)). Plaintiff has not developed this argument to any
extent and has therefore waived it. See Rice v. Comm’r of Soc. Sec., 169 F. App’x 452, 454 (6th Cir. 2006) (a
plaintiff’s failure to develop an argument in a Statement of Errors challenging an ALJ’s non-disability determination
amounts to a waiver of that argument). See also McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)
(“Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are
deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the
court to put flesh on its bones.”).

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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. § 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 the length,
nature and extent of the treatment relationship and the frequency of examination. 20 C.F.R. §
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. § 416.927(c)(3)-(6); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
14

“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 (citing former 20 C.F.R. § 404.1527(d)(2)). 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 96-2p).
Here, the ALJ gave “little weight” to an assessment completed by plaintiff’s treating
mental health providers at Forensic and Mental Health Services, where plaintiff was treated
between October 2008 and December 2012. (Tr. 23, citing Tr. 508-12). Plaintiff’s therapist
David Rivers, M.S., L.P.C., prepared and signed the assessment on October 30, 2012, and Dr.
Dahar co-signed the assessment on November 10, 2012. (Tr. 512). Dr. Dahar and Mr. Rivers
assessed plaintiff as having “poor” (defined in the assessment as “seriously limited, but not
precluded”) ability to relate to co-workers, deal with the public, interact with supervisors,
maintain concentration/attention, understand, remember and carry out detailed but not complex
job instructions, relate predictably in social situations, and demonstrate reliability. (Tr. 509-11).
They assessed plaintiff as having “fair” (“limited but satisfactory”) ability to follow work rules,
use judgment, function independently and understand, remember, and carry out simple job
instructions. (Tr. 509-11). They assessed plaintiff as having no ability to perform complex
tasks or deal with work stress. (Tr. 510-11).

15

The ALJ provided a number of reasons for giving “little” weight to the treating
psychiatrist and therapist’s opinion. First, the ALJ found that the progress notes from Forensic
and Mental Health Services were not consistent with the assessment in that they did not show
plaintiff to be as severely limited as the assessment indicated. (Tr. 23). In addition, the ALJ
found that the progress notes “reflect a level of sympathy towards the claimant’s efforts to obtain
disability benefits that may have colored” the treating sources’ findings. (Id.). Further, the ALJ
found that although plaintiff was reported to have some “social phobia,” he nonetheless retained
the ability to relate to others on an occasional basis. (Id.). Finally, the ALJ found that Dr.
Dahar’s progress notes indicated that as of December 2012, plaintiff displayed no evidence of
psychosis and his mood was sufficiently stable to allow appropriate personal interaction. (Id.).
Plaintiff alleges that the ALJ did not give “good reasons” for giving Dr. Dahar’s
assessment “little weight.” (Doc. 10 at 3). Plaintiff asserts that the ALJ’s finding that the
mental health treatment records reflect a sympathetic bias toward plaintiff’s attempts to obtain
disability benefits that may have skewed the findings in the assessment lacks any evidentiary
basis and is pure conjecture. (Id. at 3-4). Plaintiff acknowledges that many of both Dr. Dahar
and Mr. Rivers’ treatment notes mention his efforts to obtain disability benefits, but plaintiff
alleges these references are made in a manner that shows the ongoing disability process is
difficult and a “major stressor” for him. (Id.). Plaintiff further alleges that the ALJ’s
characterization of the psychological treatment notes as showing only “moderate” mental health
symptoms is a “serious mischaracterization.” (Doc. 16).
The ALJ gave “good reasons” for discounting the opinion of plaintiff's treating
psychiatrist, Dr. Dahar, and his treating therapist, Mr. Rivers. The ALJ reasonably determined
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that the severe mental functional limitations assessed in October 2012 were not consistent with
the mental health providers’ own treatment notes, which showed that plaintiff remained capable
of relating to others on an occasional basis. The ALJ found that the progress notes documented
only a moderate level of psychological symptoms and did not portray plaintiff as “seriously
agoraphobic or otherwise incapable of working.” (Tr. 21). The ALJ noted that Dr. Dahar’s
recent treatment notes supported plaintiff’s testimony that his mental health counseling had
“helped a lot” with his depression. (Tr. 22; see Tr. 50). The ALJ specifically relied on Dr.
Dahar’s treatment note dated December 22, 2012, which reads in its entirety as follows:
Patient seen on follow up. He reports to be in a stable condition. Mood and
affect is bright[,] calm and pleasant. No complains [sic] are offered. Interacts
appropriately. Attending and participating in his daily activities. Sleeping well
with fair appetite. Taking [medications] with no side effects. No mania or
psychosis is noted. No suicidal or homicidal ideas or plans are reported. Patient
was engaged in therapy focused on improving quality of life symptoms
management and coping skills. Patient participated in therapy and agreed to
work on his goals.
(Tr. 570). The ALJ reasonably relied on this evidence to find that Dr. Dahar and Mr. Rivers’
assessment of severe mental functional limitations is inconsistent with their own treatment notes
showing a moderate degree of impairment.
Plaintiff relies on two treatment notes to show that the ALJ improperly characterized the
severity of his symptoms. (Doc. 16, citing Tr. 516-17, 514-15). The first is a treatment note
dated October 30, 2012, which described plaintiff’s mood and affect as “[s]ad, depressed” and
“[r]estricted.” (Tr. 516). The note reports that plaintiff’s “significant medical issues” and
steady physical decline had “exacerbated his depressed mood.” (Id.). Plaintiff reported that he
was “withdrawn and stays in his room and isolates himself. He has thought about death

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‘because this is not the way I want to keep living my life.’” (Id.). Plaintiff expressed feelings
of hopelessness that were apparently related to rejection of his application for disability benefits.
(Tr. 517). The treatment note dated December 20, 2012, described plaintiff’s mood and affect
as “[v]ery worried, nervous.” (Tr. 514). The report states that aside from “a disappointing knee
surgery, client is probably most stressed about the outside possibility that he will still not get his
disability benefits awarded at his [January] 16th hearing.” (Tr. 514). The treatment note
further reports that plaintiff is “[f]eeling hopeless. Doesn’t have any idea what his next move
would be if he is denied again.” (Tr. 515).
Contrary to plaintiff’s argument, these treatment notes provide no indication that plaintiff
suffered from severe or debilitating mental health symptoms at any time during the period of
alleged disability. The treatment notes include few objective or clinical findings. Further, they
attribute plaintiff’s psychological symptoms exclusively to his physical ailments and his failure
to secure disability benefits. These treatment notes therefore support the ALJ’s finding that the
treating mental health providers’ progress notes were not consistent with the severe functional
limitations they assessed, particularly when considered in conjunction with Dr. Dahar’s treatment
note dated December 22, 2012, reporting that plaintiff had no mental health complaints and his
mood and affect were stable. (Tr. 570).
The treatment notes cited by plaintiff further support the ALJ’s finding that sympathy for
plaintiff’s efforts to obtain disability benefits may have colored the findings in Dr. Dahar and Mr.
Rivers’ assessment. (Tr. 23). The notes extensively reference plaintiff’s physical ailments and
his efforts to secure disability benefits. Mr. Rivers noted in October 2012 that plaintiff “strived
to be as accurate as possible to demonstrate to others how bad things are as he, again, tries to
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secure SS benefits.” (Tr. 516). Mr. Rivers stated that plaintiff was stressed due to his physical
ailments and his attempts to obtain disability benefits. (Id.). Mr. Rivers reported that the
therapeutic interventions provided to plaintiff included assuring him “that his reports will be
passed on to the right person at his attorney’s office.” (Tr. 517). After noting in December
2012 that plaintiff was likely most stressed about not being awarded disability benefits at his
upcoming hearing and recounting plaintiff’s frustrations with the process and his current
attorney, Mr. Rivers stated that plaintiff was “leaning heavy on this therapist and agency.
Feeling hopeless. Doesn’t have any idea what his next move will be if he is denied again.” (Tr.
514-15). These statements substantiate the ALJ’s finding that the treating mental health
providers’ assessment may have been impacted by their sympathy toward plaintiff’s efforts to
obtain disability benefits. The ALJ was entitled to discount the severe mental limitations
assessed by Dr. Dahar and Mr. Rivers on this basis.
Instead of crediting the assessment of Dr. Dahar and Mr. Rivers, the ALJ gave
“significant weight” to the opinions of nonexamining state agency psychologists Drs. Johnston
and Haskins. (Tr. 23, citing Tr. 97-101, 114). In her assessment dated June 10, 2011, Dr.
Johnston opined that plaintiff had moderate restrictions in his activities of daily living; mild
difficulties in maintaining social functioning; moderate difficulties in maintaining concentration,
persistence or pace; and no episodes of decompensation of extended duration. (Tr. 98). Dr.
Johnston assessed the following functional limitations: plaintiff is capable of simple tasks in a
static environment characterized by a few changes in routine; he is limited to no more than
superficial contact with others; and he is restricted from a rapid work pace. (Tr. 101). Dr.
Haskins affirmed Dr. Johnston’s assessment as written upon reconsideration in October 2011.
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(Tr. 111-12, 114). These medical opinions provide substantial support for the ALJ’s RFC
finding limiting plaintiff “to performing unskilled, simple, and repetitive tasks; [] occasional
contact with coworkers, supervisors, and the public; [] no jobs involving rapid production pace
work or strict production quotas; and . . . performing jobs in a relatively static work environment
in which there is very little, if any, change in the job duties or the work setting from one day to
the next.” (Tr. 17). See Hoskins v. Comm’r of Soc. Sec., 106 F. App’x 412, 415 (6th Cir. 2004)
(“State agency medical consultants are considered experts and their opinions may be entitled to
greater weight if their opinions are supported by the evidence.”). See also 20 C.F.R. §
416.927(e)(2)(i).
Accordingly, the ALJ gave “good reasons” for giving less “little weight” to Dr. Dahar and
Mr. Rivers’ assessment and instead adopting the opinions of the state agency reviewing
psychologists, Drs. Johnston and Haskins. Those reasons are substantially supported by the
record. Plaintiff’s second assignment of error should be overruled.
IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED and this case be CLOSED on the
docket of the Court.

Date:

10/15/15

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
TROY TRIPLETT,
Plaintiff,

Case No. 1:14-cv-729
Dlott, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

NOTICE
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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