Hubbard v. Commissioner of Social Security

Filing 12

REPORT AND RECOMMENDATION that the decision of the Commissioner be Reversed and Remanded for further proceedings consistent with this opinion. Objections to R&R due by 1/25/2016. Signed by Magistrate Judge Karen L. Litkovitz on 1/6/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHER N DISTRICT OF OHIO
WESTERN DIVISION

MARY E. HUBBARD,
Plaintiff,

Case No. I: I5-cv-I48
Beckwith, J.
Litkovitz, M.J.

vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

REPORT AND
RECOMM ENDATIO N

Plaintiff Mary E. Hubbard brings this action pursuant to 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security ("Commissioner") denying
plaintiffs application for disability insurance benefits ("DIB"). This matter is before the Court
on plaintiffs statement of errors (Doc. 6) and the Commissioner' s response in opposition (Doc.
II).

I. Procedural Background
Plaintiff protectively filed her application for DIB in November 20II, alleging disability
since January I5, 2008 due to psoriatic arthritis, fibromyalgia, osteoarthritis, bipolar disorder,
attention deficit hyperactivity disorder ("ADHD"), and Ehlers-Danlos syndrome. The
application was denied initially and upon reconsideration. Plaintiff, through counsel, requested
and was granted a de novo hearing before administrative law judge ("ALJ") Vincent Misenti.
Plaintiff and a vocational expert ("VE") appeared and testified at the ALJ hearing. On
September 25, 2013, the ALJ issued a decision denying plaintiffs DIB application. On January
23, 2015, the Appeals Council denied plaintiffs request for review and adopted the ALJ's
decision as the Commissioner's final decision.

II. Analysis
A. Legal Framework for Disability Determinations
To qualify for disabilit y benefits , a claiman t 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)(
l)(A).
The impairment must render the claimant unable to engage in the work previously perform
ed or
in any other substantial gainful employment that exists in the national economy. 42 U.S.C.
§
423(d)(2).
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 ofSoc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing 20 C.F.R. §§
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. !d.; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d
541 , 548

2

(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 Commissione
r 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
289,29 1 (6th
Cir. 1999).

B. The Administrative Law Judge's Findings
The ALJ applied the sequential evaluation process and made the following finding
s of
fact and conclusions of law:
1. The [plaintiff] last met the insured status requirements of the Social Securit
y
Act on June 30, 2009.
2. The [plaintiff] did not engage in substantial gainful activity during the period
from her alleged onset date of January 15, 2008 through her date last insured
[("DLI ")] of June 30, 2009 (20 CFR 404.1571 et seq.) (Exhibit 4D).
3. Through the date last insured , the [plaintiff] had the following severe
impairment: fibromyalgia (20 CFR 404.1520(c)).
4. Through the date last insured, the [plaintiff] did 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, and 404.1526).
5. After careful consideration of the entire record, the undersigned finds
that,
through the date last insured, the [plaintiff] had the residual functional capacit
y
(("RFC ")] to perform light work as defined in 20 CFR 404.1567(b) except
she
was limited to occasionally climbing ramps or stairs and never climbing ladders
and scaffolds; occasionally kneeling; never crawling; no working around
unprotected heights or around hazards such as moving mechanical parts; avoidin
g
concentrated exposure to extreme temperatures; and avoiding concentrated
exposure to fumes, odors, dusts, gases, unventilated areas, and chemicals.
6. Through the date last insured, the Vocational Expert credibly testified that
the
[plaintiff] was capable of performing past relevant work as a bank teller,
DOT
211.362-018, which is light in exertional demands and skilled (SVP-5), and
as a
customer service clerk, DOT 205.362-026, which is light in exertional demand
s
and skilled (SVP-6). This work did not require the performance of work related
3

activities precluded by the [plaintiff]'s residual functional capaci
ty (20 CFR
404.1565).
7. The [plaintiff] was not under a disability, as defined in the Social
Security Act,
at any time from Januar y 15, 2008, the alleged onset date, through
June 30, 2009,
the date last insured (20 CFR 404.1520(f)).
(Tr. 16-21 ).

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 ofSoc. Sec., 581 F.3d 399,4 06 (6th Cir. 2009); see also Bowen
v. Comm 'r ofSoc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The Comm issioner' 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. NL.R.
B., 305 U.S . 197,2 29
(1938)). Substantial eviden ce consists of "more than a scintilla of eviden
ce but less than a
preponderance.... " Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234,
241 (6th Cir. 2007). ln
deciding whether the Comm issioner' s findings are supported by substa
ntial evidence, the Court
considers the record as a whole. Hephn er v. Mathews, 574 F.2d 359
(6th Cir. 1978).
The Court must also determine wheth er the ALJ applied the correct
legal standards in the
disability determination . Even if substantial evidence supports the ALJ
' s conclusion that the
plaint iff is not disabled, "a decision of the Comm issioner will not be
upheld where the SSA fails
to follow its own regulations and where that error prejudices a claima
nt on the merits or deprives
the claima nt of a substantial right." Rabbers, 582 F.3d at 651 (quoti
ng Bowen, 478 F.3d at 746).

4

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 physicia n's opinion, thereby violating the agency' s own regulatio
ns).

D. Medical Evidence
Dr. Modrall

Psychologist Chris Modrall , Ph.D., first saw plaintiff in September 2005. (Tr. 248). At
that time, plaintiff worked as a bank teller for First Financial. (See Tr. 248-49) . Dr. Modrall
diagnosed plaintiff with bipolar disorder but indicated that she had been doing better on
mood
stabilizers. (Tr. 248). Plaintif f sought treatment from Dr. Modrall because of the followin
g
problems:
[D]ifficulty learning new tasks at work, making more mistakes than the average
teller, straining friendships because people got worn out with [her] high energy
style, having trouble paying bills on time, never getting around to balancing [her]
checkbook, losing things, having piles of things in the house and never being able
to put things back in their correct position, and having multiple speeding tickets.
(Tr. 249). Dr. Modrall asked plaintiff, plaintif fs husband , and plaintif fs mother to complet
e the
Conners ' Adult ADHD Rating Scale concerning plaintif fs behaviors. Their responses were
significant for inattention/memory problems, hyperactivity/restlessness, impulsivity/emot
ional
lability, and problems with self-concept. (!d.) .
Dr. Modrall also administered the Wechsle r Adult Intelligence Scale, Third Edition to
evaluate plaintif fs attention and concentration. (Tr. 250). While plaintif fs "overall scores
did
not demonstrate any particular difficulties with attention and concentration," in the thirteen
subtests she "did demonstrate some of the difficulties that are usually seen in people with
attention and concentration" deficits. (!d.) . For example, Dr. Modrall indicated that plaintiff
"tended to move quickly and give impulsive answers ," which "resulted in missing easy question
s

5

and getting more difficult questions correct." (!d.). Plaint iff frequently
needed to have questions
repeated, especially "on questions where [she was] asked to hold a signifi
cant amount of
information in memory. " (!d.). Dr. Modrall determined that " (i]t was
impossible for [her] to
both hold information in memory and use it for computation. The initial
computation was
distracting and by the time (she] had completed it [she] had forgotten
the rest of the
information." (ld.). Dr. Modrall also administered the Visual Search
and Attention Test, and
plaintiff performed at the second percentile, "significantly lower" than
expected. (Tr. 251 ). On
the Rapidly Recurring Target Figure Test, plaint iffs error rate was within
normal limits on one
section, but her time was one standard deviation longer than the mean.

On the other section, her

time was within normal limits, but her error rate was half a standard
deviation more than the
mean. On the Tower of Hanoi exercise, which measures executive functio
ning (i.e., "the ability
to direct and maintain the focus of attention, to inhibit behavior, to plan,
organize, and sequence
skills, and to develop initiative and drive"), plaint iff finished in 4 minute
s and 30 seconds and
used 65 moves. (ld.). The average person finishes in 1 minute and 30
seconds and uses 35
moves. Dr. Modrall indicated that plaint iff "had difficulty developing
the pattern

that one uses

to move the pieces. Even when [she] had developed the pattern, it was
difficult for [her] to hold
it in memory." (ld.).
Dr. Modrall diagnosed plaint iff with ADHD, Combined Type. (Id.).
Dr. Modrall
suggested "some written resources and a local support group. " (ld.).
Concerning medication,
Dr. Modrall commented: "I know we also talked about stimulant medic
ation. Unfortunately,
since you also have a Bipolar Disorder, medication may not be a good
choice for you. While the
medicine might be helpful, it might also exacerbate the symptoms of
the Bipolar Disorder."

(Id.).
6

Dr. Miller

Psychiatrist Michael Miller, M.D., saw plainti ff every two to three months beginn
ing in
May 2006. (Tr. 432). However, the treatment notes in the record from Dr. Miller
begin in June
2009. (See Tr. 446). In his treatment note on June 22, 2009, Dr. Miller indicate
d that plainti ff
was stable but had chronic stressors in her life. (!d.). Dr. Miller treated plaintif
f with Trileptal
(an anticonvulsant that can be used as a mood stabilizer for the treatment of bipolar
disorder).

(!d.). The other treatment notes from Dr. Miller in the record are from after plaintif
f's DLI. (See
Tr. 436-446). In Novem ber 2011 , Dr. Miller opined that plaintif f "remains psycho
logically
disabled" due to her bipolar disorder and psoriatic arthritis. (Tr. 289). He further
opined that
plainti ff"is incapable of sustaining employment." (ld.).
Dr. Miller also completed a mental impairment questionnaire in August 2013.
(Tr.
432-35). Dr. Miller assigned plaintif f a GAF score of 60 1 and diagnosed plaintif
f with bipolar
disorder, mixed and mental complications from fibromyalgia and arthritis. (See
Tr. 432). Dr.
Miller indicated that he treated plainti ff with Trileptal and Lamictal (an anticon
vulsant used to
treat bipolar disorder). Further, Dr. Miller indicated that plaintif f "is vulnera
ble to agitation,
disorganization, and inability to stay level. She can handle only minimal stress."
(ld.). Dr.
Miller identified the following signs and symptoms of plaintif f's mental conditi
on: ( 1) feelings
of guilt; (2) difficulty concentrating; (3) "psychological or behavioral abnorm
alities associated
with a dysfunction of the brain with a specific organic factor judged to be etiolog
ically related to
1

A GAF score represents "the clinician 's judgmen t ofthe individual 's overall level
of functioning." American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorder
s ("DSM- IV") 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." !d. The GAF scale ranges from 100 (superio
r 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). !d. at 34. Individuals with GAF scores of 51 to 60
have "[m]oderate symptoms (e.g.,
flat affect and circumstantial speech, occasional panic attacks), or moderate difficult
y in social, occupational, or
school functioning (e.g., few friends, conflicts with peers or co-workers)." Jd.

7

the abnormal mental state and loss of previously acquired functional abilitie
s" ; (4) bipolar
syndrome; (5) hyperactivity; and (6) easy distractibility. (Tr. 433).
Dr. Miller indicated that plainti ff is unable to meet compet itive standards as
to the
following mental abilities needed to do unskill ed work: (1) sustain an ordinar
y routine withou t
special supervision; (2) comple te a nonnal workda y and workw eek without
interruption from
psychologically based sympto ms; (3) perform at a consistent pace withou t an
unreasonable
numbe r and length of rest periods ; (4) respond appropriately to changes in a
routine work setting;
and (5) deal with normal work stress. (Tr. 434). Further, Dr. Miller indicat
ed that plaintif f is
seriously limited, but not preclud ed from doing unskilled work as to the followi
ng mental
abilities: (1) remem ber work-like procedures; (2) understand and remem ber
very short and
simple instructions; (3) maintain attentio n for two hour segment; (4) work in
coordin ation with
or proxim ity to others withou t being unduly distracted; and (5) get along with
co-wor kers or
peers withou t unduly distrac ting them or exhibit ing behavioral extremes. Dr.
Miller indicated
that this assessm ent was medica lly supported because plaintif f is "pressu red
at times" and "truly
unable to balance multipl e stimuli ." (!d.). Additionally, Dr. Miller indicated
that plainti ff is
unable to meet competitive standards as to the following mental abilities needed
to do
semiskilled and skilled work: ( 1) understand and remem ber detailed instruc
tions; (2) carry out
detailed instructions; and (3) deal with stress of semiskilled and skilled work.
(!d.). Dr. Miller
opined that plaintif f has moderate restrictions in activities of daily living, modera
te difficulties in
maintaining social functioning, extrem e difficulties in maintaining concentration,
persistence, or
pace, and one or two episode s of decomp ensatio n within a twelve -month period.
(Tr. 435).
While Dr. Miller indicated he began treating plaintif f in 2006, his opinion did
not indicate
whethe r it applied to the period betwee n plainti ffs onset date and DLI. (See
Tr. 432).

8

Dr. Santhanam

Plaint iff began seeing internist Uma Santhanam, M.D. , in Febru

ary 2008. (Tr. 282). Dr.

Santhanam indicated that plaintiff had been seeing another docto
r for many years who diagnosed
her with fibromyalgia. (Tr. 283). In reviewing plain tiffs system
s, Dr. Santhanam noted fatigue,
chronic sleep problems, anxiety, joint pain, and a history of fibrom
yalgia. (!d.). On physical
examination, Dr. Santhanam indicated no abnormalities in plaint
iff's gait, joints, range of
motion, or upper/lower limbs. (Tr. 282). Dr. Santhanam concl
uded that plaintiff's fatigue was
likely due to fibromyalgia, but noted that plaint iff had a high lab
result for anti-nuclear antibody
("ANA"), which could be associated with lupus or other rheum
atic diseases. (See Tr. 241, 282).
Thus, Dr. Santhanam determined plaint iff needed to see a rheum
atologist for further evaluation.
(Tr. 282).
In March 2008, Dr. Santhanam noted that plaint iff's " fatigue level
seems worse lately
and her joints hurt as well ," but without joint swelling. (Tr. 281
). In reviewing plaint iff's
systems, Dr. Santhanam noted fatigue, depression, anxiety, joint
pain, and fibromyalgia. (/d.).
On physical examination, Dr. Santhanam noted plaint iff was anxio
us. (Tr. 280). Dr. Santhanam
indicated no abnormalities in plaintiff's gait, joints, range of motio
n, or upper/lower limbs. Dr.
Santhanam concluded she could refer plaint iff to a rheumatolog
ist to treat her chronic fatigue.
(!d.). In April 2008, Dr. Santhanam ' s physical examination showe
d plaintiff's gait was

normal.

(Tr. 279). Dr. Santhanam indicated plaintiff's chronic fatigue
could be due to a connective tissue
disorder. (!d.).
At another 2008 appointment Dr. Santhanam indicated that plaint
iffhad been taking
Naproxen (a nonsteroidal anti-inflammatory drug) daily for her
fibromyalgia. (Tr. 277). In
reviewing plaintiff's systems, Dr. Santhanam noted ankle/leg
swelling, chronic fatigue, and
9

bipolar disorder. (!d.). On physical examination, Dr. Santh
anam did not note any significant
musculoskeletal findings. (Tr. 276). Dr. Santhanam indic
ated plaintiff's rheumatologist had
prescribed Plaquenil (an antimalarial drug also used to reduc
e inflammation in the treatment of
rheumatic diseases) for plain tiffs fibromyalgia. (!d.). In
reviewing plain tiffs systems in June
2009, Dr. Santhanam noted fatigue as well as musculosk
eletal injuries, pain, and decreased range
of motion associated with a moto r vehicle accident. (Tr.
275). The other treatment notes from
Dr. Santhanam are from after plain tiffs DLI. (See Tr. 382-4
31).
In November 2011, Dr. Santhanam opined:
[Plaintiff] will be unable to hold a job of any kind due
to her multiple medical
problems including chronic pain from fibromyalgia, psori
atic arthropathy, right
hip osteoarthritis, bursitis, Ehlers-Danlos syndrome, psori
asis, bipolar disorder
and ADHD. She does [follow up] with a rheumatologist
and a psychiatrist for
most of these conditions.
(Tr. 288). Dr. Santhanam also completed an RFC questionna
ire in May 2012. (Tr. 291 -94). Dr.
Santhanam indicated she has been plain tiffs primary care
physician since September 2006. (Tr.
291 ). Plain tiffs symptoms include chronic fatigue, joint
pain,

and muscle pain. Pain from

fibromyalgia is present in most joint s, including hand joints
. Dr. Santhanam indicated plain tiff
receives medications for arthritis from her rheumatologist
and is also treated with Trileptal and
Lamictal. (!d.). Dr. Santhanam opined that plaintiff is not
a malingerer. (Tr. 292). She further
opined that psychological conditions including depression

and bipolar disorder contribute to the

severity of plain tiffs physical condition. (!d.).
Dr. Santhanam opined that plain tiffs pain and other symp
toms will frequently (i.e. ,
during 34-66% of an 8-hou r workday) interfere with the
attention and concentration needed to
perform simple tasks. (!d.). Dr. Santhanam indicated plain
tiff is capable of only low stress jobs.
Further, plain tiff can walk up to a block without rest or sever
e pain, can sit for 20 minutes at one
10

time before needing to get up, and can stand for 15 minutes at one time before needing to
sit
down or walk around. (/d.). Dr. Santhanam opined that plaintif f can sit and stand/walk
for less
than two hours total during a workday and must walk for five minutes after every twenty
minute
period during a workday. (Tr. 293). Dr. Santhanam indicated that plaintiff needs a job where
she can shift position at will from sitting, standing, or walking and will need to take two
unscheduled breaks often to fifteen minutes each workday . Dr. Santhanam opined that
plaintiff
can never lift more than ten pounds and can lift less than ten pounds only occasionally (i.e.,
6-33% of an 8-hour workday) . Plaintif f can frequently hold her head in static position, can
occasionally look up or tum her head right or left, and can only rarely (i.e., I-5% of an 8-hour
workday) look down. (!d.). Further, Dr. Santhanam opined that plaintiff can occasionally
twist
or climb stairs, can rarely stoop/bend, and can never crouch/squat or climb ladders. (Tr.
294).
Dr. Santhanam indicated that plaintiff can use her hands to grasp/tum/twist objects only
25% of
the workday, can use her fingers for fine manipulation only I 0% of the workday, and can
use her
arms for reaching only 25 % of the workday. Dr. Santhanam opined that plaintiff would
miss
work more than four days a month as a result of her impairments and treatment. Dr. Santhan
am
indicated that her opinion concerning plaintiff's symptoms and limitations applied as of
September 2006. (!d.) .
Dr. Mousa
Upon referral from Dr. Santhanam, plaintiff began seeing rheumatologist Soha Mousa,
M.D., on March 6, 2008. (Tr. 258). Dr. Mousa assessed plaintiff with history of a positive
ANA, bilateral cheek flushing, arthralgias, increasing fatigue, symptomatic fibromyalgia,
and
symptomatic degenerative disk disease. (!d.). In describing plaintif fs history, Dr. Mousa
indicated that plaintiff was diagnosed with fibromyalgia in 2000. (Tr. 259). Additionally,
II

plaintiff reported occasional swelling ofher hands, knees, and ankles, as well as occasion
al
morning stiffness lasting more than an hour. Plaintif f also reported increasing fatigue. Dr.
Mousa began plaintiff on clobetasol propionate (a corticosteroid used to treat psoriasis and
some
autoimmune diseases) and Naproxen. (ld.). In reviewing plaintif fs systems, Dr. Mousa
noted
fatigue and bipolar disorder. (Tr. 260). On physical examination, Dr. Mousa noted normal
gait
and posture, no evidence of muscular wasting, and no evidence of any synovitis, swelling
,
warmth, tenderness, or limitation of motion of any upper or lower peripheral joints. (Tr.
260-61 ). Dr. Mousa indicated plaintif f was positive for 18 out of 18 tender fibromyalgia
points.
(Tr. 261 ).
On March 25, 2008, Dr. Mousa noted no improvement of plaintif fs symptoms after
starting Naproxen. (Tr. 256). Dr. Mousa noted that plaintiff continued to have a facial rash,
arthralgias, and photosensitivity with positive ANA. Dr. Mousa diagnosed plaintif f with
systemic lupus erythematosus and started treating her with Plaquenil. (!d.) . In reviewin
g
plaintif fs systems, Dr. Mousa noted fatigue and rosacea. (Tr. 257). Dr. Mousa did not
perform
a physical examination. (See id.).
In June 2008, Dr. Mousa indicated plaintif fs lupus was mild and currently stable on her
current medications. (Tr. 254). Plaintif fs fibromyalgia was symptomatic. Dr. Mousa indicate
d
plaintiff had been exercising to improve her fibromyalgia and her " [f]atigue is somewhat
improved however that seems to be her lingering symptom at this point in time." (!d.). Dr.
Mousa started plaintiff on 25 milligrams of Lyrica (a central nervous system depressant
used to
treat fibromyalgia) and expected her to slowly increase her dosage to 100 milligrams by
her next
visit. (!d. ). In reviewing plaintif fs systems , Dr. Mousa noted rosacea and ongoing fatigue.
(Tr.
255). On physical examination, Dr. Mousa noted there was no evidence of synovitis, swelling
,
12

warmth, tenderness, or limitation of motion, but indicated plaintiff was positive for 18 out
of 18
fibromyalgia tender points. (!d.).
In July 2008, Dr. Mousa indicated plaintiff was only able to tolerate 25 milligrams of
Lyrica at night and "had too much fatigue and grogginess during the day and when she tried
to
increase it to twice at night." (Tr. 252). Dr. Mousa indicated that "[s]ince last being seen
in
general she continues to do well. She has just been under a lot of stress." (!d.). In reviewin
g
plaintiff 's systems, Dr. Mousa noted rosacea and fatigue that was ongoing but improved.
(Tr.
253). On physical examination, Dr. Mousa noted there was no evidence of synovitis, swelling
,
warmth, tenderness, or limitation of motion, but indicated plaintiff was positive for 18 out
of 18
fibromyalgia tender points. (Id.).
In October 2008, Dr. Mousa indicated that plaintiff had been noticing improvement on
Plaquenil and Lyrica "until two weeks ago when she had the sudden onset of severe fatigue,
stiffness and discomfort." (Tr. 376). Plaintif f denied having any swollen joints but Dr.
Mousa
noted plaintiff was "having difficulty with ambulation stating that her gait is off." (Id.).
Dr.
Mousa ordered an MRI of the brain to evaluate for the possibility of multiple sclerosis.
Dr.
Mousa noted that plaintiff was "[u]nable to increase [L]yrica secondary to severe groggine
ss."

(!d.). In reviewing plaintif fs systems, Dr. Mousa noted recurrent fatigue, rosacea, visual
difficulty, and an unsteady gait. (Tr. 380). On physical examination, Dr. Mousa noted
normal
gait and posture, no evidence of synovitis, swelling, warmth, tenderness, or limitation of
motion,
and full range of motion ofthe axial spine. (Tr. 381). However, Dr. Mousa indicated plaintiff
was positive for 18 out of 18 fibromyalgia tender points. (!d.) .
In December 2008, Dr. Mousa noted:
Since last being seen (plaintif f has] noticed much improvement since starting 25
mg of [L]yrica at bedtime. However she ' s had a lot of weight gain and she's
13

concerned about this. The Lyrica does help her sleep and her generali zed diffuse
pain. Otherwi se she 's tolerating the [Plaquenil] well without side effects [or]
difficulties.
(Tr. 368). In reviewing plaintif fs systems , Dr. Mousa noted rosacea and ongoing fatigue.
(Tr.
374). On physical examination, Dr. Mousa noted normal gait and posture, no evidence of
synovitis, swelling, warmth, tenderness, or limitation of motion, and full range of motion
of the
axial spine. (Tr. 374-75) . However, Dr. Mousa indicated plaintiff was positive for 18 out
of 18
fibromyalgia tender points. (Tr. 375).
In March 2009, Dr. Mousa noted:
Since last being seen, [plaintiff] states that over the last couple of weeks she's
been getting worse. She' s had a lot of stress and that has been impacting her
sleep as well. She continues to [have] major complaints. Has some ongoing
stiffness worse in the morning mainly involving her hands, low back and hips.
Otherwise she is tolerating her medications well without side effects or
difficulties.
(Tr. 362). Dr. Mousa discontinued Lyrica and began plaintiff on Flexeril (a muscle relaxer
used
to treat fibromyalgia). (!d.) . Jn reviewing plaintif fs systems , Dr. Mousa noted bipolar disorder
,
rosacea, ongoing fatigue, and recurrent fevers at night. (Tr. 366-67). On physical examina
tion,
Dr. Mousa noted normal gait and posture, and no evidence of synovitis, swelling, warmth
,
tenderness, or limitation of motion in the peripheral joints. (Tr. 367). However, Dr. Mousa
noted that plaintiff was overweight, had tenderness in the paraspinal muscle area, and was
positive for 18 out of 18 fibromyalgia tender points. (!d.) . The other treatment notes from
Dr.
Mousa are from after plaintif fs DLI. (See Tr. 300-61).
In November 2011 , Dr. Mousa opined:
[Plaintiff] has been a patient of mine since March of 2008 having had a chronic
history of fibromyalgia, psoriasis, and now with an inflammatory arthritis. Given
her chronic illnesses , she has a significant amount of fatigue associated with it.
Because of her arthritis, fatigue, and her other comorbid illnesses , [plaintiff] is
unable to work outside of the house.
14

(Tr. 290).

Non-examining State Consultative Physicians
In March 2012, Carl Tishler, Ph.D., and Teresita Cruz, M.D., examined medica
l records
from Dr. Santha nam and Dr. Mousa. (Tr. 66, 68, 71 ). They found that plainti
ff suffered from
the severe impairments offibro myalgi a and an affective disorder. (Tr. 67).
However, they
determined there was insufficient medical evidence to evaluate plainti ffs psycho
logical
sympto ms and her credibility concerning them. (Tr. 69). Dr. Cruz opined that
plainti ffs RFC
was limited in the following ways as of her DLI: (l) occasionally lift 20 pounds
; (2) frequently
lift 10 pounds; (3) stand and/or walk for 6 hours in an 8-hour workda y; (4) sit
for 6 hours in an
8-hour workda y; (5) occasionally climb ladders/ropes/scaffolds; and (6) avoid
concentrated
exposure to fumes, odors, dusts, gases, poor ventilation, etc. (Tr. 69-70). To
justify her RFC
assessment, Dr. Cruz cited Dr. Santha nam's diagnoses of plainti ffs conditions.
(See Tr. 70-71).
On reconsideration in June 2012, Aracelis Rivera, Psy.D., and Lynne Torello
, M.D., examined
the same medical records. (Tr. 75-77, 80). They reached the same conclusions
as Dr. Tishler
and Dr. Cruz and again cited Dr. Santhanam' s diagnoses in support. (See Tr.
77-80).

E. Specific Errors
On appeal, plaintif f argues the ALI failed to give proper weight to the medica
l opinions
of her treating physicians. Plainti ff next argues the ALI erred in failing to find
that her mental
impairments, psoriasis, and obesity were "severe." Plainti ff also contends the
ALJ erred in
failing to note plainti ffs extrem e fatigue from her fibromyalgia in assessing
her RFC. Plainti ff
further argues the ALJ erred in assessing plainti ffs credibility, subjective compla
ints, and pain.

15

Finally, plaintiff contends the ALl failed to pose a hypothetical to the VE that accurately
accounted for the limitations from her mental conditions and fibromya lgia. (Doc. 6).
1. Substant ial evidence does not support the ALJ's finding that plaintiff's
mental impairm ents were non-seve re.

Plaintiff argues the ALJ erred in not finding plaintiffs mental conditions to be "severe"
impairments at step two of the sequential evaluation process. (Doc. 6 at 7). She notes the
non-examining sources to whom the ALl gave significant weight found her affective disorder to
be a severe impairment. (!d. at 8). Plaintiff contends that in not finding her mental impairments,
psoriasis, and obesity to be severe impairments, the ALJ failed to properly assess her
work-related limitations. (!d. at 8-9).
The Commiss ioner responds that given the "scant" evidence about plaintiffs mental
condition prior to her DLI, the ALl reasonably concluded that her mental impairments were not
severe during the relevant time period. (Doc. 11 at 6). The Commiss ioner contends the ALl
properly assessed Dr. Modrall 's opinion in finding plaintiff was not prescribed medication for
her ADHD and had no " particular difficulties with attention and concentration." (!d.). The
Commiss ioner argues the ALJ "rightly noted that at the hearing, [plaintiff] testified that she
stopped working because offibrom yalgia, and did not mention her mental impairments." (!d. at

7).
" [A]n impairment is considered ' severe' unless ' the [claimant 's] impairment(s) has no
more than a minimal effect on his or her physical or mental ability(ies) to perform basic work
activities." Winn v. Comm 'rofSoc. Sec., 615 F. App'x 315,324 (6th Cir. 2015) (quoting Soc.
Sec. Ruling 85-28, 1985 WL 56856, at *3 (1985)). The Sixth Circuit has "observed that the
claimant' s burden of establishing a 'severe' impairment during the second step ofthe disability

16

determination process is a 'de minimis hurdle. "' !d. at 324-25 (quoti
ng Higgs v. Bowen , 880
F.2d 860, 862 (6th Cir. 1988)). "Under [this] prevailing de minimis view,
an impairment can be
considered not severe only if it is a slight abnormality that minimally
affects work ability
regardless of age, education, and experience." !d. at 325 (quoting Higgs,
880 F.2d at 862).
The ALJ determined that only plaint iffs fibromyalgia was a severe impair
ment. (Tr. 16).
The ALJ found there "is no treatment evidence to suggest that [plain
tiffs] obesity has severely
exacerbated any of[her ] fibromyalgia symptoms." (!d.). The ALJ noted
that Dr. Mousa
"diagnosed psoriasis and reported [plaintiff] was doing well. " (Tr. 17).
As to plaint iffs mental
impairments, the ALJ stated:
The evidence does not support that [plaintiff] was limited by affective
and organic
mental disorders prior to her date last insured. [Plaintiff] was diagno
sed with
ADHD in March 2008 . . . and at that time she reported a history
of bipolar
disorder. [Plaintiff] did not seek mental health treatment until June
22, 2009, and
was assessed stable at that time. . . . [Plaintiff] testified that she stoppe
d working
due to fibromyalgia symptoms.
(!d.). In assessing plaint iffs RFC, the ALJ did not include any work-r
elated limitations
associated with plaint iffs mental impairments. (See id.). In declining
to include such
limitations, the ALJ gave no weight to Dr. Miller 's Novem ber 2011 opinio
n, finding that "[t]his
assessment is after [plaintiff's] date last insured of June 30, 2009, and
there are no treatment
records to support a severe impairment prior to that date. Further, the
determination of disability
is reserved to the Commissioner." (Tr. 19). The ALJ gave little weigh
t to Dr. Miller 's August
2013 questionnaire , finding that "there are no treatment records from
Dr. Miller in evidence prior
to 2011 ." (!d.). The ALJ concluded that Dr. Miller 's questionnaire was
inconsistent with Dr.
Modrall 's evaluation, finding that plaint iffs "overall evaluation scores
did not demonstrate any
particular difficulties with attention and concentration but did reveal
some difficulties with

17

memory. " (!d.). The ALJ noted that Dr. Modrall did not recommend medication to treat
plaintiff's ADHD and commented "that the claimant was doing better since [being] on mood
stabilizers for her bipolar disorder." (Id.) . The ALJ noted that plaintiff was never hospitalized
for her psychiatric conditions and had never been diagnosed with more than moderate mental
impairments, as evidenced by Dr. Miller's assigning a OAF of 60 in his August 2013
questionnaire. (!d.).
Here, substantial evidence does not support the ALl' s finding that plaintiff's mental
impairments were not severe. The record as a whole, including the evidence from plaintiff's
treating physicians and psychological providers, supports the conclusion that plaintiff's bipolar
disorder and ADHD were more than a "slight abnormality" having more than a "minimal effect"
on her work abilities. See Winn, 615 F. App'x at 324-25. Contrary to the ALJ's finding that
plaintiff did not seek mental health treatment until June 22, 2009, the record shows that plaintiff
received mental health treatment throughout the relevant period. (See Tr. 17). For example, Dr.
Modrall ' s March 2008 assessment indicated that plaintiff first sought treatment from Dr. Modrall
in September 2005. (Tr. 248). Dr. Modrall confirmed the diagnosis of bipolar disorder and
noted that plaintiff was being treated with mood stabilizers. (!d.). In his August 2013
questionnaire, Dr. Miller indicated that he had been seeing plaintiff every two to three months
since May 2006 and treating her bipolar disorder with Trileptal. (Tr. 432). While the first
treatment note from Dr. Miller included in the record is from June 2009, treatment notes from
Dr. Mousa and Dr. Santhanam show that plaintiff was taking Trileptal in June, July, October, and
December 2008 and in March 2009, which supports Dr. Miller's statement that he was treating
plaintiff prior to June 2009. (See Tr. 252, 254, 277, 366, 374, 380, 432). Thus, contrary to the
ALJ's finding, all of plaintiff's treating physicians have supplied evidence showing that she was
18

being treated for her mental impairments throughout the relevant period. While
the Sixth Circuit
has explained that the failure to find a particular severe impairment at step two
of the sequential
evaluation process does not constitute reversible error if an AU finds at least
one severe
impairment and considers a plainti ffs other impairments in assessing the RFC,
in this case the
AU failed to assess any RFC limitations associated with plainti ffs mental impairm
ents. See

Maziarz v. Sec 'y of HHS, 837 F.2d 240, 244 (6th Cir. 1987); Winn, 615 F. App'x
at 326 (holding
that AU 's failure to find particular severe mental impairments at step two of
the sequential
evaluation process was reversible error because AU "did not consider [plaint
iffs] mental
impairments in a meaningful way" when assessing plainti ffs RFC).
Substantial evidence does not support the AU 's decision to not include any RFC
limitations associated with plainti ffs mental impairments. For example, Dr.
Modrall ' s
assessment shows that plaintiff sought treatment because of, inter alia, having
"difficulty
learning new tasks at work, making more mistakes than the average teller, strainin
g friendships
because people got worn out with [her] high energy style, having trouble paying
bills on time,
never getting around to balancing [her] checkbook, [and] losing things[.]" (Tr.
248-49). Further,
to support his finding that no RFC limitations were associated with plainti ffs
mental
impairments, the AU mischaracterized Dr. Modra ll's assessment by focusing
only on Dr.
Modra ll's comment that plaintiff's "overall [IQ] scores did not demonstrate any
particular
difficulties with attention and concentration." (Tr. 19, 250); see Robinson v.
Barnhart, 366 F.3d
I 078, I 083 (1Oth Cir. 2004) ("The ALJ is not entitled to pick and choose from
a medical
opinion, using only those parts that are favorable to a finding ofnondisability.").
However, the
AU did not consider the much more nuanced assessment that follows that initial
comment.
Specifically, Dr. Modrall went on to explain that plaintiff "did demonstrate some
of the
19

difficulties that are usually seen in people with attention and concentration" deficits in her
performance on the 13 IQ subtests. (Tr. 250). For example, Dr. Modrall indicated that plaintiff
"tended to move quickly and give impulsive answers" and frequently needed to have questions
repeated. (!d.). Dr. Modrall also determined that "[i]t was impossible for [her] to both hold
information in memory and use it for computation." (!d.). Further, in addition to the IQ test, Dr.
Modrall administered the Visual Search and Attention Test on which plaintiff performed at the
second percentile and the Rapidly Recurring Target Figure Test on which plaintiffs performance
was also consistent with deficits in attention and concentration. (Tr. 251 ). Plaintiff also
performed poorly on the Tower of Hanoi exercise, which measures "the ability to direct and
maintain the focus of attention, to inhibit behavior, to plan, organize, and sequence skills, and to
develop initiative and drive." (!d.). The ALJ further mischaracterized Dr. Modrall's
" recommendation for no medication" as evidence that plaintiffs ADHD was not seriously
limiting. (See Tr. 19). What Dr. Modrall actually said was that "since [plaintiff] also ha[s] a
Bipolar Disorder, [stimulant] medication may not be a good choice for [her]. While the
medicine might be helpful, it might also exacerbate the symptoms of the Bipolar Disorder. " (Tr.
251). Thus, Dr. Modrall's recommendation against medication to treat plaintiff s ADHD is not
evidence that her ADHD is not serious, and the ALJ should have considered plaintiff s
limitations in attention, concentration, and memory in assessing her RFC.
Further, the Commissioner argues that plaintiffs testimony at her hearing constitutes
substantial evidence to support the AU ' s determination that her mental impairments were not
severe. (Doc. 11 at 6-7). When asked what prevented her from working during the relevant
period, plaintiff mentioned fatigue and fibromyalgia. (Tr. 37). However, later in the hearing,
plaintiff testified that she had bipolar disorder, ADHD, and anxiety. (Tr. 52). She testified that
20

during the relevant period, she was depressed, she cried, she had "consistent" suicidal thoughts
,
and she wished she were dead. (Tr. 53). As to ADHD, she testified that it resulted in her
having
"(b]ad focus and concentration" and a severe Jack of organizational skills. (!d.). She had
anxiety
about "the stress of an every day life" and experienced "rages" when people were not
cooperating or things were not going the way she expected them to. (See Tr. 54). She also
testified that she thought people were watching her and talking about her. (!d.). Further,
in her
application, plaintiff included bipolar disorder and ADHD in the list of conditions that limited
her ability to work. (See Tr. 187). Plaintif fs emphasis on her fatigue and fibromyalgia
in
response to a single question during her hearing does not negate her other testimony concern
ing
her mental symptoms and the other evidence discussed above that those symptoms were
severe
and limited her ability to work. See Vorhis-Deaton v. Comm 'r ofSoc. Sec., 34 F. Supp.3d
809,
818 n.8 (S.D. Ohio 2014) (quoting Young v. Comm 'r ofSoc. Sec., 351 F. Supp.2d 644, 649
(E.D.
Mich. 2004)) (" An ALJ cannot simply 'pick and choose ' evidence in the record ' relying
on some
and ignoring others, without offering some rationale for his decision ."'). See also Carroll
v.
Astrue, No.1 :09-cv-1232, 2010 WL 2643420 , at *9 (N.D. Ohio Jul. 1, 2010) (citingL oza
v.
Apfel, 219 F.3d 378, 393 (5th Cir. 2000); Switzer v. Heckler, 742 F.2d 382,385-86 (7th Cir.
1984); Rothgeb v. Astrue, 626 F. Supp.2d 797, 808 (S.D. Ohio 2009)) ("(A)n ALJ cannot
pick
and choose which evidence to rely upon."). Further, in not assessing the limitations associat
ed
with plaintif fs mental impairments, "the ALJ violated the agency' s promise to ' consider
the
combined effect of all of (plaintiff's] impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity. '" Gentry v. Comm
'r of
Soc. Sec., 741 F.3d 708, 726 (6th Cir. 2014) (quoting 20 C.P.R.§ 404.1523).

21

Thus, plainti ffs assignment of error should be sustained and this matter should
be
reversed and remanded for further proceedings. On remand, the ALJ should be
instructed to
re-weigh the evidence of plainti ffs mental impairments noted above, provide
a clear and
consistent rationale to support his findings, and reassess plainti ffs RFC to accoun
t for the work
limitations associated with plainti ffs mental impairments. 2
2. Substantial evidence does not support the ALJ's decision to give no weight
to
the opinions of Dr. Mousa and Dr. Santhanam, such that the ALJ failed to
properly assess the RFC limitations attributable to plainti frs fibromyalgia.
Plainti ff argues the ALJ failed to apply the "more rigorous" standard of review
required
under Social Security regulations for assessing the opinions of non-examining
sources. (Doc. 6
at 4). Plainti ff contends the non-examining sources did not review many of her
medical records ,
including all of Dr. Miller' s records and Dr. Mousa 's records from October 2008
onward. (!d. at
4-5). Plainti ff argues that because the non-examining sources did not examin
e these records,
substantial evidence does not support the ALJ ' s decision to give their opinion
s significant
weight. (!d. at 5). Plainti ff contends that Dr. Mousa ' s records show she was
prescribed a
number of different medications for her fibromyalgia, but they were not effectiv

e in relieving her

fatigue. Plainti ff argues that in assessing Dr. Miller' s opinion, the ALJ erred
by not considering
Dr. Miller's treatment of plaintiff since 2006 and Dr. Modrall 's objective testing
of plainti ffs
ADHD. (!d.). Plainti ff contends that under Social Security regulations, the treating
opinions of
Drs. Miller, Mousa, and Santhanam are entitled to more weight than the opinion
s of the
non-examining sources based on the length and nature of the treatment relation
ship,
2

The undersigned finds that plaintiff has waived her argument that the ALJ failed
to consider her obesity and
psoriasis in assessing her RFC. Plaintiff has failed to cite any evidence or make
any argument concerning the
severity of these conditions, and it is not the Court' s obligation to flesh out her
argument for her. See Rice v.
Comm 'r ofSoc. Sec., 169 F. App'x 452, 454 (6th Cir. 2006) (quoting United
States v. Layne, 192 F.3d 556, 566 (6th
Cir. 1999)) ("It is well-established that 'issues adverted to in a perfunctory manner,
unaccompanied by some effort
at developed argumentation, are deemed waived. "'). See also Brindley v. McCulle
n, 61 F.3d 507, 509 (6th Cir.
1995) ("We consider issues not fully developed and argued to be waived." ).

22

specialization, supportability, and consistency. (!d. at 6). Plaintiff argues the ALJ failed to give
"good reasons" as required under the regulations for discounting the disabling limitations found
by her treating physicians. (/d.). Plaintiff contends her activities of daily living did not
constitute "good reasons" for discounti ng those opinions. (!d. at 6-7). Plaintiff argues that the
ALJ erred in failing to assess functional limitations associated with her extreme fatigue, which
was noted in the medical records of her treating physicians. (!d. at 9).
The Commiss ioner responds that the ALJ reasonably weighed the evidence and opinions
of plaintiffs treating physicians. (Doc. 11 at 3-7). The Commiss ioner contends the
non-examining sources were not required to base their opinions on a complete or more detailed
record . (!d. at 4). The Commiss ioner argues plaintiff has failed "to point to any later-submitted
evidence that likely would have compelled these doctors to render more limiting assessments."

(!d.). The Commiss ioner contends the ALJ gave good reasons for discounting the opinions of
Dr. Mousa and Dr. Santhanam, i.e., that their opinions are unsupported by their own treatment
notes and are inconsistent with other record evidence, including plaintiffs activities of daily
living. (!d. at 5). The Commiss ioner argues the ALJ gave good reasons for discounting Dr.
Miller' s opinions, i.e., that his opinions were generated years after plaintiff s DLI, there were no
treatment records to support a severe impairment prior to plaintiffs DLI, and his opinions were
inconsistent with the "scant" mental health evidence that does exist for the relevant time period.

(!d. at 5-6). The Commiss ioner contends the ALJ properly assessed Dr. Modrall ' s opinion in
finding plaintiff was not prescribed medication for her ADHD and had no "particular difficulties
with attention and concentration." (!d. at 6). The Commiss ioner argues the ALJ "rightly noted
that at the hearing, (plaintiff] testified that she stopped working because of fibromyalgia, and did
not mention her mental impairments." (!d. at 7).
23

The applicable regulation sets forth three types of acceptable medical sources
upon which
an ALJ may rely: treating source, non-treating source, and non-examining source.
20 C.F.R. §
404.1527. A treating source opinion on the nature and severity of a claima nt's
impairments is
generally entitled to the most weight, and the Social Security Administration
must 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 873, 875 (6th
Cir. 2007).
" With regard to nontreating, but examining, sources , the agency will simply general
ly give more
weight to the opinion of a source who has examined the claimant than to the opinion
of a source
who has not examined him." Ealy v. Comm 'r ofSoc. Sec., 594 F.3d 504, 514
(6th Cir. 201 0)
(internal citations omitted).
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 accorde
d greater weight
than those of physicians who examine claimants only once." Walters v. Comm
'r ofSoc. 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 general
ly accorded
substantial deference, and if the opinions are uncontradicted, complete deferen
ce."). "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 oftime will have a deeper
insight into the
medical condition of the claimant than will a person who has examined a claiman
t but once, or
who has only seen the claima nt'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 laborat
ory diagnostic
24

techniques ' ; and (2) the opinion ' is not inconsistent with the other substantial evidence in [the]
case record. "' Gayheart v. Comm 'r ofSoc. Sec., 7 10 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). Ifthe 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) 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. §
404.1527(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) ; Gayheart , 7 10 F.3d at 376; Wilson, 378 F.3d at 544.
"Importantly, the Commiss ioner 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
96-2p, 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 ofthe rule."

Gayheart , 710 F.3d at 544 (quoting Wilson, 378 F.3d at 544).
The ALJ gave no weight to the Novembe r 2011 opinion of Dr. Mousa, finding that it "is
not supported by his treatment records ... or consistent with [plaintiff s] significant activities of
25

daily living during that period that she testified to at the hearing." (Tr. 19). The ALJ also
gave
no weight to Dr. Santhan am's November 2011 opinion and May 2012 RFC questionnaire,
finding that Dr. Santhanam' s opinions are "not supported by the medical evidence, diagnos
tic
testing, or clinical evidence during the relevant period prior to June 30, 2009. Specifically,
her
response is not consistent with her own treatment records beginning February 2008 or Dr.
Mousa's treatment records beginning October 2008." (!d.).
Here, the ALJ's rejection of the opinions of Dr. Mousa and Dr. Santhanam "stems from
his fundamental misunderstanding of the nature of fibromyalgia." Kalmbach v. Comm 'r
ofSoc.
Sec., 409 F. App'x 852, 861 (6th Cir. 2011) (citing Rogers, 486 F.3d at 243). Specifically,
in
finding that their opinions were not supported by their treatment records and the "medica
l
evidence, diagnostic testing, or clinical evidence," the ALJ focused on objective evidenc
e, noting
that plaintiff "exhibited full ranges of motion, her tests were only borderline positive for
ANA,
her joints were only minimally positive for swelling, and all other serologi es and complem
ent
levels were normal." (Tr. 18-19). The ALJ further noted: "Upon examination, she had
5/5
strength , normal gait and posture, no evidence of overt muscular wasting, her hygiene appeare
d
normal, and there was no evidence of any synovitis, swelling, warmth, tenderness or limitatio
n of
motion of the upper or lower peripheral joints." (Tr. 19). However, none of these objectiv
e
indicators would be expected in the typical case of fibromyalgia. Instead, "unlike medical
conditions that can be confirmed by objective testing, fibromyalgia patients present no
objectively alarming signs." Rogers, 486 F.3d at 243 (citing Preston v. Sec y ofHealth &
Human Servs., 854 F.2d 815, 820 (6th Cir. 1988) (noting that objective tests are oflittle
relevance in determining the existence or severity of fibromyalgia)). "Rather, fibromyalgia
patients ' manifest normal muscle strength and neurological reactions and have a full range
of
26

motion ." !d. at 244 (quoting Preston , 854 F.2d at 820). See also Kalmbach , 409
F. App'x at
861-62. Thus, the lack of objective evidence in the record does not constitute
substantial
evidence to support the ALl's rejection of the opinions of Dr. Mousa and Dr.
Santhanam as to
the limitations attributable to plainti ffs fibromyalgia.
Instead , the Sixth Circuit has instructed that " [t]he process of diagnosing fibrom
yalgia
includes (I) the testing of a series of focal points for tenderness and (2) the ruling
out of other
possible conditions through objective medical and clinical trials." Rogers, 486
F.3d at 244
(citing Preston , 854 F.2d at 820; Swain v. Comm 'r of Soc. Sec. , 297 F. Supp.2
d 986, 990 (N.D.
Ohio 2003)). Under this process , Dr. Mousa and Dr. Santhanam properly diagno
sed plainti ffs
fibromyalgia. Dr. Mousa noted that plainti ff was positive for 18 out of 18 focal
points for
tenderness in March, June, July, October, and December 2008 and in March 2009.
(Tr. 253, 255,
261, 367, 375, 381). Furthermore, Dr. Santhanam ordered numerous blood tests
and Dr. Mousa
ordered an MRI of the brain to rule out other possible conditions. (See Tr. 241,
282, 3 76). Thus,
there is no support in the record for the ALJ 's rejection of Dr. Mousa ' s and Dr.
Santhanam 's
opinions based on a lack of objective evidence.
Further, plainti ffs treatment records support the opinions of these treating physici
ans.
As already noted, plainti ff was positive for 18 out of 18 focal points for tendern
ess at 6
appointments with Dr. Mousa during the relevant period. (Tr. 253,25 5, 261,36
7, 375, 381). Dr.
Santhanam noted fatigue , chronic sleep problems, anxiety, and joint pain in Februa
ry 2008,
increased fatigue and joint pain in March 2008, chronic fatigue in April 2008,
chronic fatigue
and ankle/leg swellin g later in 2008, and fatigue in June 2009. (Tr. 275, 277,27
9,281, 283).
Unable to effectively stabilize plainti ffs condition, Dr. Santhanam referred plaintif
f to Dr.
Mousa, a rheumatologist. (See Tr. 258, 282). Dr. Mousa noted arthralgias, increas
ing fatigue,
27

symptomatic fibromyalgia, symptomatic degenerative disk disease, occasional swelling,
and
occasional morning stiffness in March 2008, ongoing "lingering" fatigue and symptomatic
fibromyalgia in June 2008, ongoing but improved fatigue in July 2008, severe fatigue, stiffness
,
discomfort, and unsteady gait in October 2008, ongoing fatigue and weight gain in Decemb
er
2008, and ongoing fatigue, stiffuess, sleep problems that were "getting worse," weight gain,
recurrent fevers at night, and tenderness in the paraspinal muscle area in March 2009. (Tr.
253 -59, 362, 366-68, 374, 376, 380). Plaintif f was prescribed clobetasol propionate and
Naproxen, but experienced no improvement in her symptoms. (Tr. 256, 259). Plaquenil
stabilized her lupus but not her fibromyalgia. (See Tr. 254, 256). Plaintif f was prescribed
Lyrica, but was able to tolerate only a low dose. (Tr. 252, 254). While plaintiff initially
noticed
improvement of her symptoms on Lyrica, she experienced a "sudden onset of severe fatigue,
stiffness and discomfort" in October 2008 accompanied by an unsteady gait. (Tr. 376).
In
December 2008, Dr. Mousa noted that Lyrica "does help her sleep and her generalized diffuse
pain" but still noted ongoing fatigue, and by March 2009 plaintiff again had increased symptom
s
of sleep problems, ongoing fatigue, ongoing stiffness , and recurrent fevers at night. (Tr.
362,
366-68, 374). In March 2009, Dr. Mousa discontinued Lyrica and prescribed Flexeril. (Tr.
362).
These treatment notes do not support the ALI' s conclusion that plaintif fs fibromyalgia
"appeared to be stable, under control with medications, ... and still in its early stages."
(Tr. 18).
Instead, these treatment notes show that plaintif fhad some improvement for a brief period
on
Lyrica, but this improvement did not last, and her symptoms worsened throughout the relevant
period. See Lawson v. Astrue, 695 F. Supp.2d 729, 737 (S.D. Ohio 2010) ("Fibromyalgia,
like
other chronic conditions, is likely to cause different magnitudes of symptoms over time,
especially in view of the fact that its clinical causes are simply unknown."). The ALI 's reliance
28

on a brief period of improve ment in plaintiff 's symptom s to reject the opinion s of Dr.
Mousa and
Dr. Santhan am is imprope r for a chronic, episodic condition like fibromyalgia. See Wilcox
v.

Sullivan , 9 17 F.2d 272, 277 (6th Cir. 1990) (" [I]n evaluating multiple sclerosis , or any other
episodic disease, consideration should be given to the frequency and duration of the
exacerbations, the length of the remissions, and the evidenc e of any permane nt disabilit
ies.");

Parish v. Califano , 642 F.2d 188, 193 (6th Cir. 1981) ("In conditions which are episodic
in
character .. . consideration should be given to frequency and duration of exacerbations,
length of
remissions, and permane nt residuals."). See also Robinson, 366 F.3d at 1083 ("The ALJ
is not
entitled to pick and choose from a medical opinion, using only those parts that are favorabl
e to a
finding of nondisabil ity. ").
Additionally, the ALJ failed to give "good reasons" for rejecting the treating physicians'
opinions. See Cole, 661 F.3d at 937; Wilson, 378 F.3d at 544. In addition to the imprope
r focus
on the lack of objectiv e evidence to support their opinion s, the ALJ also cited to plaintiff
's
"signific ant activities of daily living." (Tr. 19). Specifically, the ALJ indicated that plaintiff
"testifie d that she would get the kids up for school, give them a bowl of cereal, talk on
the
telephone, use the compute r, do some cleaning around the house and cook but need to
sit down
intermittently. She also reported that she grocery shopped and drove and that she continue
s to
drive." (Tr. 18). Contrar y to the ALJ ' s characterization ofthese activities as "signific
ant,"
plaintiff actually testified that " [c]leaning is almost an impossibility for [her]." (Tr. 41
). Further,
she testified that she "could not stand in one spot for any length of time," could walk a
block at
most, and could lift five pounds at most. (See Tr. 41-43). She testified that "[s]tand ing
in front
ofthe stove to cook somethi ng .. . was too long of a period for [her] to do." (Tr. 44).
She might
be able to start cooking , but then she would have to sit down and her husband or one of
her
29

children would finish. (!d.). She could wash a couple of dishes at a time but would need
to sit
frequently, such that "(d]ishes would be a three hour[] activity. " (!d.). She could vacuum
and
mop "not very well" and "not as often as needed." (ld.). Her ability to do household cleaning
was "very limited. " (ld.). Her husband did the laundry because "stairs were involved."
(!d.).
She did "some" grocery shopping and was able to bathe, dress, and groom herself. (Tr. 45).
She
woke her children up for school in the morning and then sat on the couch while they got
ready.
(Tr. 46-47). During the day, she sat on the couch, was on the computer "for a little bit,"
and
talked on the phone with a friend. (Tr. 47). If she took her children out to the park, she
sat while
they played. (Tr. 48). She was unable to play sports or walk on a trail. She occasionally
went to
the movies, visited her parents, and watched her children 's sporting activities. (!d.). The
undersigned finds that "these somewhat minimal daily functions are not comparable to typical
work activities." Rogers, 486 F.3d at 248. See also Lawson, 695 F. Supp.2d at 737. Further,
"the AU's description not only mischaracterizes [plaintif fs] testimony regarding the scope
of
her daily activities, but also fails to examine the physical effects coextensive with their
performance." Rogers, 486 F.3d at 248-49. Likewise, the ALJ " failed to note or commen
t upon
the fact that (plaintiff] receives assistance for many everyday activities," such as cooking
and
doing laundry. !d. at 249. Thus, plaintif fs activities of daily living do not constitute substant
ial
evidence for rejecting the opinions of Dr. Mousa and Dr. Santhanam.
Moreover, the ALJ failed to properly assess the regulatory factors in assessing the weight
to give the treating physicians' opinions. See 20 C.F.R. § 404.1527(c)(2)-(6). Under these
factors, their opinions are deserving of significant, if not controlling, weight. Unlike the
non-examining physicians who only reviewed a portion of plaintif fs records, Dr. Santhan
am and
Dr. Mousa had longstanding treating relationships with plaintiff and examined her frequent
ly.
30

See 20 C.F.R. § 404.1527(c)(2)(i)-(ii); Rogers, 486 F.3d at 244; Wilson
, 378 F.3d at 544. Dr.
Santhanam is a specialist in internal medicine, and Dr. Mousa is a specia
list in rheumatology.

See 20 C.F.R. § 404.1527(c)(5); Rogers, 486 F.3d at 245 ("Dr. Stein is
a rheumatologist, and
thus a specialist in the particular types of conditions [plaintiff] claims
to suffer from."). Further,
as already explained above, the opinions of Dr. Santhanam and Dr. Mousa
are consistent with the
record as a whole and well-supported by the medical evidence. See 20
C.F.R. § 404.1527(c)(3)(4); Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544. Because the
ALJ failed to conduct this
evaluation or "provide sufficient justification for the weight given to
the opinions of [plaintiff's]
treating physicians, his decision in this regard did not meet the requir
ements of20 C.F.R. §
[404.1527], and therefore cannot serve as substantial evidence." Roger
s, 486 F.3d at 246 (citing

Wilson, 378 F.3d at 544).
Rather than relying on the opinions of plaintiff's treating physic ians,
the ALJ gave
significant weight to the opinions of the non-examining state agency
physicians, Dr. Cruz and
Dr. Torello, who opined that plaint iff was capable ofligh t work prior
to her DLI. (Tr. 20). Yet,
neither Dr. Cruz nor Dr. Torello "are treating physicians, a fact of specia
l significance given the
unique nature offibromyalgia." Rogers, 486 F.3d at 245. Neither ofthem
performed a physical
exam, while treating physicians Dr. Santhanam and Dr. Mousa , who
frequently examined
plaint iff during the relevant period , opined that she "would be unable
to maintain full-time
employment." /d. Further, there is no indication that either Dr. Cruz
or Dr. Torello are
rheumatologists or have treated patients diagnosed with fibromyalgia
. See id. More importantly,
the state agency physicians offered their opinions without the benefit

of all the records from the

relevant period , including Dr. Mousa ' s treatment notes from October
2008, December 2008, and
March 2009. (See Tr. 66, 75-76, 362-81). See also Rogers, 486 F.3d
at 245 & n.4 (noting the
31

"importance of a non-examining source having a complete medical snapshot
when reviewing a
claima nt's file"). One factor the ALJ must consider in weighing medical opinion
s is "the extent
to which an acceptable medical source is familiar with the other information in
[the] case
record." 20 C.F.R. § 404.l527(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 circum
stances, such as
when the "State agency medical ... consul tant'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
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
AU's decision
carmot stand. Blakley, 581 F.3d at 409 (internal quotation omitted). Dr. Mousa
's treatment
notes from October 2008, December 2008, and March 2009, which the state agency
physicians
did not review, show that despite plainti ffs initial improvement with medication
in June and
July of2008 , she became increasingly symptomatic from her fibromyalgia. These
later records
give a more detailed picture of plainti ffs functionality than the evidence before
the state agency
reviewing physicians and indicate a deterioration in plainti ffs functioning that
was not
considered by those physicians. 3 Thus, substantial evidence does not support
the ALJ's decision
to give significant weight to the opinions of the non-examining sources.

3

The Commis sioner's citation to Seider v. Astrue, No. I : 11-cv-153, 2012 WL
641942 (S.D. Ohio Feb. 28, 20 12), in
support of the AU 's decision to give the non-examining sources significant
weight is not persuasive. Unlike Seider,
in this case there is no examining source that supports the non-examining sources
' opinions. See Seider, 2012 WL
64 1942, at *4. Further, unlike Seider, Dr. Mousa's additional treatment notes
might have altered the non-examining
sources' opinions because they show that the initial improve ment noted in Dr.
Mousa's records from June and July
2008 that the non-examining sources did review had given way to more severe
symptom s in October 2008 and
March 2009. See id.

32

Accordingly, plaintiff's assignments of error should be sustained as to
the opinions of
Drs. Mousa and Santhanam and this matter should be reversed and reman
ded for further
proceedings. On remand, the ALJ should be instructed to reassess plainti
ff's RFC, giving
appropriate weight to the opinions of Drs. Mousa and Santhanam concer
ning the work
limitations associated with plaintiff's fibromyalgia.

3. Substantial evidence does not support the ALJ's decision to give
little to no
weight to the opinions of Dr. Miller and Dr. Modrall
The ALJ gave no weight to Dr. Miller 's Novem ber 2011 opinion, finding
that "[t]his
assessment is after (plaintiff's] date last insured of June 30, 2009, and
there are no treatment
records to support a severe impairment prior to that date. Further, the
determination of disability
is reserved to the Commissioner." (!d.). The ALJ gave little weight
to Dr. Miller ' s August 2013
questionnaire, finding that "there are no treatment records from Dr. Miller
in evidence prior to
20 II." (!d.). The ALJ concluded that Dr. Miller' s questionnaire was
inconsistent with Dr.
Modrall ' s evaluation, finding that plaintiff's "overall evaluation scores
did not demonstrate any
particular difficulties with attention and concentration but did reveal
some difficulties with
memory. " (!d.). The ALJ noted that Dr. Modrall did not recommend
medication to treat
plaintiff's ADHD and commented "that the claimant was doing better
since [being] on mood
stabili zers for her bipolar disorder." (!d.). The ALJ noted that plainti
ff was never hospitalized
for her psychiatric conditions and had never been diagnosed with more
than moderate mental
impairments, as evidenced by Dr. Miller 's assigning a GAF of 60 in
his August 2013
questionnaire. (!d.).
Here, Dr. Miller gave no indication in his opinions from November 2011
and August
2013 that they related back to the period before plaintiff's DLI. (See
Tr. 289, 432-35).

33

However, as noted above in the discussion of the severity of plaint iffs
mental impairments , the
record shows that Dr. Miller was treating plaint iffs bipolar disorder during
2008 and 2009 and
may have seen her as early as 2006. (See Tr. 252, 254, 277, 366, 374,
380, 432). Further, as
noted above, substantial evidence does not support the ALJ's conclusions
concerning Dr.
Modrall 's assessment in determining what weight to give to Dr. Miller
's opinions. The ALJ's
mischaracterization of Dr. Modrall 's opinion and the other evidence of
plaint iffs mental health
impairments does not constitute substantial evidence to support the ALJ's
rejection of Dr.
Miller 's opinions.
Further, the ALJ again failed to consider the regulatory factors in assess
ing the weight to
give Dr. Miller 's opinions. See 20 C.F.R. § 404.1527(c)(2)-(6). Under
these factors , his
opinions may be deserving of significant, if not controlling, weight. Unlike
the non-examining
psychologists who only reviewed a portion of plaint iffs records- and
did so without seeing any
records from Dr. Miller and Dr. Modrall- Dr. Miller had a longstanding
treating relationship
with plaintiff and examined her frequently. (See Tr. 252, 254, 277, 366,
374, 380, 432); 20
C.F.R. § 404.1527(c)(2)(i)-(ii); Rogers, 486 F.3d at 244; Wilson, 378
F.3d at 544. Dr. Miller is a
specialist in psychiatry. See 20 C.F.R. § 404.1527(c)(5). Further, as
explained above, Dr.
Miller 's opinions, especially those stemming from plaint iffs difficulty
concentrating,
hyperactivity, and easy distractibility, are consistent with the record as

a whole and

well-supported by Dr. Modrall 's objective psychological testing. See
20 C.F.R. §
404.1527(c)(3)-(4) ; Gayheart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
Because the ALJ failed
to properly assess the regulatory factors or "provide sufficient justification

for the weight given

to the opinions of [plain tiffs) treating physicians, his decision in this
regard did not meet the

34

requirements of 20 C.F .R. § [404.1527], and therefore cannot serve as substan
tial evidence."

Rogers, 486 F.3d at 246 (citing Wilson, 378 F.3d at 544).
Thus, plainti ffs assignment of error should be sustained as to the opinions of
Dr. Miller.
On remand, the ALJ should clarify whether Dr. Miller' s post DLI opinions apply
to the period
between plainti ffs onset date and her DLI. If Dr. Miller indicates that his opinion
s do apply to
the relevant period, the ALJ must conduct an appropriate assessment of those
opinions under the
regulatory factors. In any event, the ALJ must properly assess and consider Dr.
Modrall ' s
opinion in re-formulating plaintiff's RFC to account for the work limitations
associated with
plaintiff's mental impairments.

4. Whether the ALJ presented improper hypotheticals to the VE.
As discussed above, substantial evidence does not support the ALI's rejection
of the
opinions of plaintiff's treating physicians or the ALJ ' s RFC assessment. Conseq
uently, the
hypothetical questions presented to the VE do not properly reflect plaintif f's impairm
ents and/or
limitations. Accordingly, the ALJ erred by relying on this vocational testimo
ny to carry his
burden at step five ofthe sequential evaluation process. See White v. Comm 'r
ofSoc. Sec., 312
F. App'x 779, 789 (6th Cir. 2009) (ALJ erred in relying on answer to hypothetical
question
because it simply restated RFC that did not accurately portray claimant's impairm
ents). Because
the ALI's hypothetical questions failed to accurately portray plaintiff's impairm
ents, the VE' s
testimony in response to those hypotheticals does not constitute substantial evidenc
e that plainti ff
could perform the work identified by the VE. Therefore, plaintiff's assignment
of error should
be sustained and this matter should be reversed and remanded with instructions
to the ALJ to
provide a hypothetical question to the VE that accurately portrays plaintiff's fibromy
algia and

35

mental impainnents as detennined by the ALJ after giving proper weight to the opinion
evidence
and fonnulating a consistent RFC.

5. The Court need not reach plaintiff's assignment of error concerning the
ALJ's assessment of her credibility, subjective complaints, and pain.
It is not necessary to address plaintif fs final argument that the ALJ improperly assessed

her credibility, subjective complaints, and pain because the ALl' s reconsideration of this
matter
on remand may impact the remainder of the ALJ's sequential analysis, including his assessm
ent
of plaintif fs credibility. See Trent v. Astrue, No. 1:09-cv-2680, 20 II WL 84I538, at *7
(N.D.
Ohio Mar. 8, 20 II). In any event, even if this assignment of error had merit, the result would
be
the same, i.e., remand for further proceedings and not outright reversal for benefits. Mays
v.
Comm 'r ofSoc. Sec. , No. 1:I4-cv-647, 20I5 WL 4755203 , at *13 (S.D. Ohio Aug. I I, 2015)

(Report and Recommendation) (Litkovitz, M.J.), adopted, 2015 WL 5162479 (S.D. Ohio
Sept. 3,
20I5) (Dlott, J.).

III. This matter should be reversed and remanded for further proceedings.
In detennin ing whether this matter should be reversed outright for an award of benefits or
remanded for further proceedings, the undersigned notes that all essential factual issues have
not
been resolved in this matter. Faucher v. Sec'yo fHHS. , I7 F.3d 171, 176 (6th Cir. 1994).
On
remand, the ALJ should (1) reassess plaintif fs RFC, giving appropriate weight to the opinions
of
her treating physicians conceming her fibromyaigia and mental impainnents; (2) reassess
plaintif fs credibility, subjective complaints, and pain in light of the nature of fibromyalgia,
the
opinions of plaintif fs treating physicians, and plaintif fs minimal activities of daily living;
and
(3) pose an appropriate hypothetical or hypotheticals to aVE once the ALJ has completed
a

36

proper assessment of plaintiffs RFC that accounts for all of plaintiffs limitations during the
relevant period.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be REVERSED and REMANDED for further
proceedings consistent with this opinion.

Date:

I~~ /;4;,

--~+-=~.~~--------,

Karen L. Litkovitz
United States Magistrate Judge

37

UNITED STATES DISTRICT COURT
SOUTHE RN DISTRICT OF OHIO
WESTERN DIVISION
MARY E. HUBBARD,
Plaintiff,

CaseNo.l: lS-cv-148
Beckwith, 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 oflaw 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).

38