Griggs v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed. Objections to R&R due by 11/3/2016. Signed by Magistrate Judge Karen L. Litkovitz on 10/17/2016. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANITA L. GRIGGS,
Plaintiff,

Case No. l: 15-cv-619
Barrett, 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
plaintiffs application for supplemental security income (SSI). This matter is before the Court on
plaintiffs Statement of Errors (Doc. 13) and the Commissioner's response in opposition (Doc.
18).

I. Procedural Background
Plaintiff protectively filed her application for SSI in December 2011, alleging disability
since June 15, 2011, due to chronic obstructive pulmonary disease (COPD), asthma, anxiety and
bipolar disorder. (Tr. 252). Plaintiffs application was denied initially and upon reconsideration.
Plaintiff, through counsel, requested and was granted a de novo hearing before administrative
law judge (ALJ) Larry A Temin. Plaintiff and a vocational expert (VE) appeared and testified at
the ALJ hearing. On July 23, 2014, the ALJ issued a decision denying plaintiffs SSI
application. Plaintiffs request for review by the Appeals Council was denied, making the
decision of the ALJ the final administrative decision of the Commissioner.

I I. 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 disabi lity 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. §§
416.920(a)(4)(i)-(v), 416.920(b)-(g)). The claimant has the burden of proof at the first four steps
of the sequential evaluation process. Id. ; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 548 (6th
Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform

2

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:
I. The [plaintiff] has not engaged in substantial gainful activity since December
15, 2011, the application date (20 CFR 416.971 et seq.).
2. The [plaintiff] has the following severe impairments: chronic obstructive
pulmonary disease and asthma; coronary artery disease, status post non-ST
segment elevation myocardial infarction; obesity; a mood disorder; 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). Specifically, the [plaintiff] can perform work
activity except as follows: The [plaintiff] can lift, carry, push, pull up to ten
pounds occasionally and five pounds frequently. She can stand and/or walk for
up to two hours total in an eight-hour workday (for thirty minutes at a time, and
then she must be able to sit for five minutes). She can sit for up to six hours in an
eight-hour workday. The [plaintiff] can only occasionally stoop, kneel, crouch,
and climb ramps or stairs. She should never crawl, climb ladders/ropes/scaffolds,
or work at unprotected heights or around hazardous machinery. The [plaintiff]
must avoid concentrated exposure to heat, extreme cold, high humidity, fumes,
noxious odors, dusts, or gases. The [plaintiff] must also be able to use
supplemental oxygen during the workday. Mentally, the [plaintiff] is able to
perform only simple, routine, repetitive tasks. She is able to sustain concentration
and attention for two hours at a time and then requires a rest break of five
minutes. The [plaintiff] 's job should not require more than superficial interaction
with the general public, coworkers, or supervisors. The [plaintiff]'s job should
not require more than ordinary and routine changes in work setting or duties.

3

5. The [plaintiff] is unable to perform any past relevant work (20 CFR 416.965). 1
6. The [plaintiff] was born [in] ... 1970 and was 41 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 at least a high school 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 [plaintiffJ '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 perfonn (20 CFR 416.969 and 416.969(a)). 2
10. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, since December 15, 2011 , the date the application was filed (20
CFR 416.920(g)).
(Tr. 71-88).

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: (I) 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, 406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc. 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,

1

Plaintiff's past relevant work was as a fast food worker, a light, unskilled position which plaintiffperfonned up to the
medium exertion level. (Tr. 87).
2

The ALJ relied on the VE's testimony to find that plaintiff would be able to perform the requirements of representative
sedentary, unskilled occupations such as production worker (250 jobs in the region and 36,000 jobs in the nation), stock
material laborer (200 jobs in the region and 30,000 jobs in the nation), machine operator/tender/feeder (200 jobs in the
region and 26,000 jobs in the nation), inspector (I 00 jobs in the region and 13,500 jobs in the nation), and packer (200 jobs in
the region and 18,000 jobs in the nation). (Tr. 88).

4

402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. NL.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 ofSoc. 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
In her Statement of Errors, plaintiff argues that the ALJ erred by: (I) improperly
weighing the opinion of her treating physician, Dr. Oluwole Onadeko, M.D., which the ALJ gave
only "some weight;" (2) failing to analyze whether plaintiff's breathing impairment equaled
Listing 3.02; and (3) failing to properly weigh the opinion of the psychological consultative
examiner, Dr. Kevin L. Corbus, Psy.D., which the ALJ gave only "some weight." (Doc. 13). 3
1. The ALJ's Step Three analysis (Second assignment of error)

Plaintiff alleges that the ALJ erred at Step Three of the sequential evaluation process by

3

The Court will consider the assignments of error in a different order than plaintiff has presented them.

5

failing to di scuss "equaling [of the Listing] in any capacity." (Doc. 13 at 17, citing Tr. 72).
Plaintiff alleges that substantial evidence supports a finding that her respiratory impairment
equals Listing 3.02, 20 C.F.R. Pt. 404, Subpt. P, App. 1. (Doc. 13 at 17). To satisfy Listing 3.02
for COPD, the claimant must suffer from " [c]hronic obstructive pulmonary disease, due to any
4

cause, with the FEV 1 equal to or less than the values specified in table I corresponding to the
person's height without shoes." 20 C.F.R. Pt. 404, Subpt. P, App. l , § 3.02, App. 1, § 3.02A.5
Plaintiff alleges that the FEV 1 values generated on pulmonary testing show that her respiratory
impairment is "quite close" to meeting Listing 3.02. (Doc. 13 at 17). Plaintiff specifically
contends that her test results satisfied the listing value threshold of 1.25 based on her height
(64"-65") on several dates.6 (Id., citing Tr. 410, 4123112; 418, 6119112; Tr. 586, 2/26/13; Tr. 686,
1/29/ 14). She further contends that the FEV 1 value of 1.26 reported on June 4, 2014, slightly
exceeded the applicable listing level. (Id., citing Tr. 770). As further evidence that her
respiratory impairment equals the Listing, plaintiff alleges that the results of two 6-minute
walking tests demonstrate "severe breathing problems" (Tr. 553, 691 ); the record includes
numerous abnormal findings on pulmonary examination, including decreased breath sounds,

4

"'FEV 1 is the acronym for ' Forced Expiratory Volume in the First Second. ' FEY test results are expressed in
liters." Becker v. Astrue, No. l l-cv-438, 20 12 WL 2504050, at *9, n.4 (S.D. Ohio June 28, 20 12) (Report and
Recommendation) (citation omitted), adopted, 20 12 WL 3779326 (S.D. Ohio Aug. 3 1, 20 12).

5

The Listing specifies that the reported FEY 1 results should be the largest of at least three satisfactory forced
expiratory maneuvers and the test should be repeated after an administration of a bronchodilator. 20 C.F.R. Part 404,
Subpart P, Appendix 1, § 3 .OO(E). The Listing cautions that " Pulmonary function studies should not be performed
unless the clinical status is stable (e.g., the individual is not having an asthmatic attack or suffering from an acute
respiratory infec tion or other chronic illness)." Id.
6

Plaintiffs height was variously recorded as 62"-63", which corresponds to a listing level FEV 1 of1.15 (Tr. 41 8,
660, 661 , 681); 64", which corresponds to a listing level FEV 1 of1.25 (Tr. 602, 696); and 66" (Tr. 410, 662), which
corresponds to a listing level FEY 1 of 1.35. 20 C.F.R. Pt. 404, Subpt. P, App. I, § 3.0 I, Table I; see Tr. 656. Dr.
Farber noted the recorded height of 66" was not correct and "should be 64 or 63 [inches]." (Id.). Plaintiff testified at
the hearing that she is 5'4" (64"). (Tr. 99). The ALJ gave plaintiff the benefit of the doubt and applied the higher
FEV 1 value of 1.35 corresponding to a height of 66", the tallest height reported in the medical records. (Tr. 72).

6

wheezes and rhonchi; Dr. Onadeko opined that plaintiffs respiratory impairment imposes
debilitating limitations; and the ALJ found that she suffers from additional severe impairments
(myocardial infarction and obesity), which plaintiff alleges "could impact her breathing" (Tr.
71 ). (Doc. 13 at 17). Based on this evidence, plaintiff seeks a remand of her claim to the ALJ
for consideration of whether her breathing impairment equals Listing 3.02. (Id.).
In response, the Commissioner argues that plaintiff has not satisfied her burden to show
that her impairments medically equaled Listing 3.02. (Doc. 18 at 4-7). The Commissioner
contends that the ALJ discussed the opinion of the medical expert, Dr. Mark Farber, M.D., who
reviewed the medical record and completed medical interrogatories; the ALJ properly found that
pulmonary function results showing FEY 1 values that satisfied the Listing were not reliable for
reasons the ALJ explained in his written decision; and the ALJ reasonably concluded that
plaintiffs impairments did not medically equal a Listing. (Id. at 5-7).
The ALJ is required to "consider all evidence in [the claimant's] case record'. in making
the disability determination and to "consider the medical severity of [the claimant's]
impairments" at step three of the sequential evaluation process. Forrest v. Comm 'r ofSoc. Sec.,
591 F. App' x 359, 365 (6th Cir. 2014) (citing 20 C.F.R. §§ 404. 1520(a)(3), 404.1520(a)(4)(iii);

Bowie v. Commissioner ofSocial Sec., 539 F.3d 395, 400 (6th Cir. 2008)). Contrary to
plaintiffs allegation, the ALJ considered the severity of plaintiffs respiratory impairment at step
three of the sequential evaluation process and evaluated whether her impairment met or equaled
Listing 3.02. (Tr. 72-74). The ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the severity of a listed impairment.
(Tr. 72). In making this finding, the ALJ thoroughly considered the findings of the medical
expert, Dr. Farber, who reviewed the medical evidence of record, answered interrogatories, and

7

opined that plaintiffs COPD did not meet or equal Listing 3.02. (Id., citing Tr. 652-81). The
ALJ noted that Dr. Farber found that plaintiffs COPD did not meet Listing 3.02 and that Dr.
Farber reported "the record contains FEY 1 levels that do not meet or equal Listing 3.02." (Tr.
72; see Tr. 662, 4123112- 1.39; Tr. 658, 3/7/l 3- 1.53; Tr. 659, 3/8/ 13- 1.98; Tr. 578-79, 4/5/131.53). The ALJ relied on Dr. Farber's opinion that although a pulmonary function test performed
on June 18, 2012, yielded an FEY 1 below listing level (Tr. 419, FEY 1 of .94 after
bronchodilator), that FEY 1 value was not the baseline because later studies showed higher FEY 1
levels. (Tr. 72, citing Tr. 660). The ALJ noted that plaintiff reported on that date that she had
run out of the medication she regularly used (Albuterol) three days prior to the test (Tr. 417-18);
the test was thus performed during an exacerbation; and testing performed less than two months
earlier showed much higher values. (Tr. 410, FEY 1 of 1.39 after bronchodilator). (Tr. 72). The
ALJ also found that while plaintiff had FEV 1 values of 1.26 on January 29, 2014 (Tr. 686) and
June 4, 20 14, those results appeared to be transient because plaintiff was diagnosed with
bronchitis and pneumonia during those visits.7 (Tr. 72). The evidence cited by the ALJ
substantially supports his finding that plaintiffs COPD does not meet or equal the Listing.
Plaintiff has not shown that the ALJ' s finding was erroneous and that her impairments
met or equaled in severity Listing 3.02A during the time period in issue as is her burden. See

Forrest, 591 F. App 'x at 366 (even if the ALJ's reasoning failed to support his step-three
findings, the error was harmless because the plaintiff did not show his impairments met or
equaled a listed impairment). Plaintiff alleges that the ALJ failed to consider her additional

7

The ALJ indicates these results can be found in the record at Exhs. 18F/3 and 29F/ I-6. (Tr. 72). However, Exh.
29F does not appear to be part of the record before the Court.

8

severe impairments of myocardial infarction and obesity "which could impact her breathing."
(Doc. 13 at 17) (emphasis added). However, the ALJ did consider whether plaintiffs obesity
8
impacted her functioning pursuant to Social Security Ruling 02-l p and found no evidence

documenting additional restrictions resulting from her obesity. (Tr. 73-74). Plaintiff has not
pointed to evidence to show that her obesity or heart condition imposes additional functional
restrictions as is her burden at step three. See Forrest, 591 F. App'x at 366.
Plaintiffs second assignment of error should be overruled.
2. Weight to the treating physician
Plaintiff alleges as her first assignment of error that the ALJ erred in weighing the
opinion of her treating pulmonologist, Dr. Onadeko. It is well-established that the findings and
opinions of treating physicians are entitled to substantial weight. " In general, the opinions of
treating physicians are accorded greater weight than those of physicians who examine claimants
only once." Walters v. Comm 'r 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 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
Jong 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. Shala/a, 40 F.3d 789, 794 (6th Cir. 1994).

8

SSR 02-1 p provides guidance on how adjudicators evaluate obesity under the sequential evaluation process. SSR
02- 1p, 2002 WL 3468628 1 (Sept. 12, 2002). SSR 02-1 p provides that the Commissioner will consider the effects of
obesity in determining whether an individual with obesity meets the requirements of a listing, either because the
individual has another impairment that by itself meets the requirements of a listing or because the individual has an
impairment that in combination with obesity meets the requirements of a listing. Id., at *5.

9

"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 ofSoc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)(2)). See also Cole v. Astrue, 661F.3d931, 937 (6th Cir. 2011). lfthe 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); Gay heart, 710 F.3d at 376; Wilson, 378 F.3d at 544.
" Importantly, the Commissioner imposes on its decision makers a clear duty to 'always
give good reasons in [the] notice of determination or decision for the weight [given a] treating
source's opinion."' Cole, 661 F.3d at 937 (citation omitted). See also 20 C.F.R. §
416.927(c)(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). This procedural requirement
"ensures that the ALJ applies the treating physician rule and permits meaningful review of the
ALJ ' s application of the rule. " Gayheart, 710 F.3d at 376 (quoting Wilson, 378 F.3d at 544).

IO

Generally, an opinion from a medical source who has examined a claimant is given more
weight than that of a source who has not performed an examination. Id. (citing 20 C.F.R. §§
404.1502 and 404. l 527(c)(l )). Opinions from nontreating and nonexamining sources are
weighed based on the examining relationship, specialization, consistency, and supportability as
well as other factors "which tend to support or contradict the opinion." 20 C.F.R. §
416.927(c)(6). However, "the opinions of State agency medical and psychological consultants
and other program physicians and psychologists can be given weight only insofar as they are
supported by evidence in the case record[.]" SSR 96-6p, 1996 WL 374180 at *2.
Dr. Onadeko first saw plaintiff in the emergency room on January 28, 20 13, where she
was admitted for an altered mental state and heroin overdose and treated for a non-ST segment
elevation myocardial infarction and acute respiratory failure. (Tr. 480-540; Tr. 590). Dr.
Onadeko saw plaintiff three times after her discharge between February 26, 20 13 and September
25, 2013, before he issued a medical assessment on November 11 , 2013. (Id.; Tr. 569-88). Dr.
Onadeko completed a Pulmonary Residual Functional Capacity Questionnaire on that date. (Tr.
589-95). Dr. Onadeko diagnosed plaintiff with acute respiratory failure, hypoxemia,
hypercapnia, tobacco use disorder, BiPAP (biphasic positive airway pressure) dependence, and
severe COPD. 9 (Tr. 590). Dr. Onadeko opined that plaintiff has COPD exacerbations
precipitated by upper respiratory infections, irritants, and cold air/changes in weather. (Tr. 591 ).
The exacerbations cause increased shortness of breath, pulmonary symptoms, and impairment.
(Id.). The supporting clinical findings were chest examination results showing coarse rhonchi

9

"Hypercapnia'· is "excessive carbon dioxide in the bloodstream, typically caused by inadequate respiration."
http://medical-dictionary.thefreedictionary.com/Hypercapnia. "Hypoxemia" is " [s]ubnormal oxygenation of arterial
blood.'" http://medical-dictionary.thefreedictionary.com/Hypoxaemia.

11

and wheezes; office spirometry on February 26, 2013 showing FEY 1 0.65L(22%); Sp02 of 95%
on 2 liters of oxygen '

0

;

pulmonary function testing on March 7, 2013 showing an FEY 1 of 1.53

(51 % of predicted value), and plaintiffs six-minute walk test results showing a distance walked
ofless than predicted (1050 ft./1559 ft.) with no desaturation while on oxygen. (Tr. 590). Her
medications were Advair, Albuterol inhaler, Spiriva (which Dr. Onadeko indicated she was
unable to afford), 11 and 2L of oxygen a minute. (Tr. 592). Dr. Onadeko found that plaintiffs
symptoms - shortness of breath, chest tightness, wheezing, rhonchi, and coughing - were severe
enough to frequently interfere with her attention and concentration but she was capable of
tolerating the stress of low stress jobs. (Tr. 590-92). The basis for these conclusions were: ( 1)
the FEY 1 improved to 51 % of predicted on pulmonary function testing, and (2) no desaturation
while on oxygen occurred during the 6-minute walk test, but the total distance walked was less
than the predicted distance. (Tr. 592). Dr. Onadeko provided the following prognosis: "Patient
needs to quit smoking. Has mod[erately]-severe COPD with hypercapnia and hypoxaemia.
Further deterioration oflung function is expected if she continues to smoke." (Tr. 592). He
assessed plaintiffs functional capacity as follows: Plaintiff could occasionally lift 20 pounds and
frequently lift less than 10 pounds; walk less than one city block; sit for about 2 hours in an 8hour workday and for up to 45 minutes continuously; and stand/walk for less than 2 hours and
for 20 to 30 minutes continuously. (Id.). She would need to take three to four unscheduled
breaks during an 8-hour workday and she must sit an average of 15 to 30 minutes during her
breaks before returning to work. (Tr. 593-94). She could stoop for 10% of the day and crouch

10

" Sp02" is "[t]he saturation of arterial blood with oxygen as measured by pulse oximetry, expressed as a
percentage." http ://medical-dictionary.thefreedictionary .com/Sp02.
11

As discussed infra at p. 23-24, the ALJ reasonably questioned plaintiffs reported inability to afford medication
based on her admissions that she smoked one-half to three packs of cigarettes per day during the period of alleged
disability and in light of evidence showing she had obtained a medical card around mid-October 2012. (Tr. 84).

12

for 5% of the day. (Tr. 594). She should avoid all exposure to temperature extremes, high
humidity, fumes/odors/dusts/gases, and cigarette smoke; she should avoid even moderate
exposure to soldering fluxes; and she should avoid concentrated exposure to perfumes,
solvents/cleaners and chemicals. (Id.) . Dr. Onadeko opined that plaintiff was likely to be absent
from work approximately twice a month as a result of her impairments or treatment. (Tr. 595).
He concluded that plaintiff requires oxygen at least 15 hours a day for her COPD. (Id.).
The ALJ declined to give Dr. Onadeko's opinion "controlling weight." (Tr. 86). The
ALJ found that the opinion (1) was not well supported by medically-acceptable clinical and
laboratory diagnostic techniques, and (2) was not consistent with other substantial evidence in
the case record. (Id.). Instead, the ALJ gave Dr. Onadeko' s opinion "some weight." (Id.).
Plaintiff acknowledges that the ALJ balanced the regulatory factors set forth in 20 C.F.R. §
416.920(c)(2)-(6) by noting that the ALJ gave the following reasons for discounting Dr.
Onadeko' s opinion: (1) the opinion was not well-supported by medically acceptable clinical and
laboratory diagnostic techniques; (2) the opinion was not consistent with the other substantial
evidence in the case record; (3) the values yielded by pulmonary testing were not at listing level;
(4) the record did not document the need for supplemental oxygen; (5) Dr. Onadeko did not
provide support for the sitting/standing/walking limitations he assessed; (6) the limitations Dr.
Onadeko assessed were inconsistent with plaintiffs testimony; (7) the limitations assessed were
not consistent with plaintiffs activities of daily living; and (8) Dr. Onadeko had seen plaintiff
only three times since their initial hospital encounter. (Doc. 13 at 9). Plaintiff argues that none
of these reasons provided by the ALJ for discounting Dr. Onadeko' s opinion are supported by
the evidence. (Id. at 10-17).

13

Plaintiffs argument is not well-taken. To the contrary, the record demonstrates that
substantial evidence supports the ALJ ' s analysis of the regulatory factors under 20 C.F.R. §
416.927(c)(2)-(6) and his decision to afford Dr. Onadeko ' s opinion only " some weight." The
ALJ reasonably found that Dr. Onadeko's opinion of debilitating limitations was not wellsupported by the evidence in the record and was not consistent with other substantial evidence in
the case record. The ALJ relied on evidence that showed plaintiff continued to smoke, despite
being on oxygen and despite repeatedly being advised to quit; she was non-compliant with
treatment, which affected the reliability of her pulmonary function test results; and her condition
improved with treatment. (See Tr. 334, 350, 390, 417, 558-59, 637, 743 , 754, 767-72). The ALJ
also reasonably considered that plaintiffs pulmonary function study results were not at listing
level in discounting Dr. Onadeko ' s more extreme restrictions. As explained above, although
plaintiff tested below Listing level on occasion, the medical records showing FEY 1 values that
exceeded Listing level suggested that the low FEY 1 values were related to noncompliance with
medication, cigarette use, and exacerbation due to illness. The ALJ properly considered
plaintiffs fluctuating FEY 1 values as one factor in affording Dr. Onadeko ' s opinion only "some
weight. "
The ALJ further reasonably found that Dr. Onadeko did not provide objective support for
the standing, walking, or sitting .limitations he assessed.

12

Although Dr. Onadeko cited ample

objective findings to support his diagnosis of a severe respiratory impairment, those findings do
not explain why plaintiffs respiratory impairment imposed extreme restrictions on her ability to

12

The ALJ also found Dr. Onadeko's opinion that plaintiff would need to sit for 15 to 30 minutes three to four
times during an 8-hour workday to be inconsistent with the sitting limitations he imposed. (Tr. 86). The ALJ did
not explain how the limitations are inconsistent, and the Court does not perceive any inherent inconsistencies in the
sitting limitations assessed by Dr. Onadeko.

14

sit and precluded her from performing even a restricted range of sedentary work. 13
In addition, substantial evidence supports the ALJ's finding that the restrictions Dr.
Onadeko assessed were inconsistent with plaintiffs testimony that she can lift up to 25 pounds
and with her daily activities. (Tr. 86). The ALJ relied on testimony and evidence that plaintiff
spent four to five hours during the day on the computer, made her own meals, washed her own
dishes, did her own laundry, tended to her self-care, vacuumed a little, and reportedly rode a
bicycle to her friend's house in February 2012. (Id., citing Tr. 382-88). The ALJ reasonably
found this evidence of plaintiffs ability to perform "a somewhat normal level of daily activity"
and to engage in physical activities that involved lifting and bending to be inconsistent with the
debilitating limitations assessed by Dr. Onadeko. (Tr. 84). See 20 C.F.R. § 416.929(c)(3)(i)
(authorizing an ALJ to consider daily activities when evaluating symptoms); Warner v. Comm 'r
ofSoc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (permitting an ALJ to consider daily activities
such as housework in evaluating complaints of disabling pain). Plaintiff argues that additional
testimony she provided concerning her symptoms, her functioning, and restrictions on her daily
activities "place the evidence cited by the ALJ into context" and show that her activities of daily
living are not inconsistent with Dr. Onadeko's opinion. (Doc. 13 at 15). However, the ALJ
discounted plaintiffs credibility and testimony as to her debilitating symptoms for reasons he
13

Sedentary work generally requires the following functional abi lities:
The ability to perform the full range of sedentary work requires the ab ility to lift no more than 10
pounds at a time and occasionally to lift or carry articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one that involves sitting, a certain amount of walking and
standing is often necessary in can-ying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met. 'Occasionally' means occurring
from very little up to one-third of the time, and would generally total no more than about 2 hours
of an 8-hour workday. Sitting would generally total about 6 hours of an 8-hour workday.
Unskilled sedentary work also involves other act ivities, classified as ' nonexertional,' such as
capacities for seeing, manipulation, and understanding, remembering, and carrying out simple
instructions.
SSR 96-9p, 1996 WL 374185, at *3 (July 02, 1996)

15

thoroughly discussed in his written decision (Tr. 74-87), and plaintiff has not challenged the
ALJ's credibility finding on appeal. (Doc. 13). The ALJ's finding that plaintiffs activities of
daily living were inconsistent with the level oflimitation found by Dr. Onadeko is wellsupported by the evidence the ALJ credited, and the ALJ did not err in this regard.
The ALJ also took into consideration Dr. Onadeko's area of specialization and his
treatment relationship with plaintiff in accordance with 20 C.F.R. § 416.927(c)(2), (5). The ALJ
acknowledged that Dr. Onadeko is a treating source and a pulmonary specialist; however, the
ALJ noted that Dr. Onadeko had seen plaintiff a total of only three times after his initial
encounter with her following her emergency room admission for a drug overdose. (Tr. 86).
Plaintiff argues this is "not insignificant treatment" and that the amount of contact Dr. Onadeko
had with plaintiff puts him in "an optimal position" to render an opinion on plaintiffs functional
limitations, or at least in "a much better position" than the examining and reviewing physicians
of record. (Doc. 13 at 16). While the opinions of treating physicians are generally accorded
greater weight than one-time examining or non-examining physicians' opinions, Walters, 127
F.3d at 529-530, the ALJ is not required to credit a treating physician's opinion based solely on
the nature of the treatment relationship; instead, the ALJ must balance several factors in
determining whether to defer to the treating physician's opinion. See 20 C.F.R. § 416.927(c)(2)(6). The ALJ fulfilled his duty here by considering Dr. Onadeko ' s status as a treating physician
and his area of specialization, while also acknowledging the Dr. Onadeko had seen plaintiff only
a handful of times and balancing the remaining factors outlined in§ 416.927(c)(2)-(6).
Moreover, under the particular circumstances of this case, the ALJ was not required to give the
opinion of Dr. Onakedo more weight than the opinion of the medical expert, Dr. Farber, based on
the treating physician's area of specialization given that Dr. Farber likewise specialized in the

16

area of pulmonary disease. (Tr. 86). Cf 20 C.F.R. § 416.927(c)(5) ("We generally give more
weight to the opinion of a specialist about medical issues related to his or her area of specialty
than to the opinion of a source who is not a specialist."). Plaintiff has shown no error in this
regard.
Finally, plaintiff challenges the ALJ's reliance on Dr. Farber' s opinion that the record did
not document a need for supplemental oxygen as a basis for discounting Dr. Onadeko ' s opinion.
(See Tr. 86, citing Tr. 668- Dr. Farber noted on Dr. Onadeko 's report: "no documentation for

[oxygen] requirement but even if she requires, still can perform sedentary work"). Plaintiff
characterizes Dr. Farber's opinion as "confusing" in light of plaintiffs severe COPD, various
test results, and Dr. Farber's indication in his RFC assessment that plaintiff may require a
workplace accommodation for an oxygen tank (Tr. 654). (Doc. 13 at 12-13). However, the
Court need not address whether the ALJ 's reliance on this aspect of Dr. Farber's opinion was
justified. Even if Dr. Farber's finding that plaintiff did not require supplemental oxygen is not
supported by the evidence, the remaining reasons the ALJ gave for discounting Dr. Onadeko's
opinion provide substantial support for the ALJ's decision.
Thus, the ALJ thoroughly evaluated the medical and other evidence of record and gave
"good reasons" that are substantially supported by the record for discounting Dr. Onadeko ' s
opinion. Instead of crediting Dr. Onadeko's assessment, the ALJ gave "significant weight" to
the opinion of the medical expert, Dr. Farber, a physician with a specialization in pulmonary
disorders. (Tr. 84). The ALJ found that Dr. Farber had an opportunity to review a majority of
the medical evidence of record and that his opinions were well-supported by the explanations he
provided and the objective evidence he cited. (Tr. 84-85). As discussed earlier, Dr. Farber
reviewed the medical evidence of record and answered medical interrogatories on April 28,

17

2014. (Tr. 652-81 ). Dr. Farber opined that plaintiffs COPD did not meet Listing 3.02.

14

(Tr.

85). Although a pulmonary function test performed on June 18, 2012, yielded an FEY 1 below
listing level (Tr. 419), Dr. Farber opined that the value yielded by testing on this date was not the
baseline because later studies showed higher FEY 1 levels that did not meet or equal Listing 3.02.
See Tr. 658, 317ll 3- 1.53; Tr. 659, 3/8/13- 1.98; Tr. 578-79, 415113- 1.53). Dr. Farber opined that

plaintiff may need an accommodation for oxygen supplementation at the workplace; she can
lift/can-y I 0 pounds occasionally and less than 10 pounds frequently, sit for up to six hours in an
8-hour workday, and stand/walk for up to two hours in an 8-hour workday; she can occasionally
climb stairs/ladders, crawl and kneel; she must avoid concentrated exposure to respiratory
irritants/fumes/dusts/gases; and she should require no more than usual breaks during the
workday. (Tr. 654). Dr. Farber opined that plaintiff would miss less than one day of work each
month due to illness. (Id.). Dr. Farber reported that smoking cessation would improve plaintiffs
lung function and symptoms and might obviate the need for supplemental oxygen, and avoiding
alcohol and other drugs would minimize the occurrence of acute illnesses. (Tr. 655).
The ALJ was entitled to rely on Dr. Farber's assessment for the reasons the ALJ stated.
See Atterberry v. Secy ofHealth & Human Servs., 871 F.2d 567, 570 (6th Cir. 1989) (medical

expert testimony consistent with the evidence of record can constitute substantial evidence to
support the Commissioner' s decision). The ALJ considered the degree to which Dr. Farber
provided supporting explanations for his opinions and the degree to which his opinion
considered all of the pertinent evidence in the record, including the opinions of treating and other
examining sources, as required under the governing regulations. See 20 C.F.R. § 416.927(c)(3)

14

The ALJ stated that Dr. Farber indicated in hi s interrogatory responses that plaintiffs COPD did not meet Listing
3.02 because the evidence did not reflect "FEY values equal to or less than 1.65." (Tr. 72, citing Tr. 652-81 ). This
is an apparent typographical error in the ALJ opinion as Dr. Farber indicated that he considered the listing level
FEV 1 value to be no greater than 1.35 , which corresponds to a height of 66-67" without shoes. (Tr. 656).

18

(a non-treating source's opinion is weighed based on how well-supported by evidence the
opinion is). The ALJ's decision to afford Dr. Farber's '·significant weight" is supported by
substantial evidence.
Thus, for the reasons discussed above, the ALJ did not err in evaluating the medical
opinion evidence related to plaintiffs physical impairments. The ALJ ' s decision to give Dr.
Onadeko's opinion "some weight" and to rely instead on the opinions of the medical expert, Dr.
Farber, is substantially supported by the record. Plaintiffs first assignment of error should be
overruled.

3. Weight to the consultative examining psychologist
Plaintiff alleges that the ALJ erred by assigning only "some weight" to the report of the
consultative examining psychologist, Dr. Kevin L. Corbus, Psy.D. (Doc. 13 at 18-19). Plaintiff
alleges that the ALJ's reasons for giving reduced weight to Dr. Corbus' report are not supported
by the record. The Commissioner argues in response that the ALJ's reasons are substantially
supported by the record. (Doc. 18 at 17-20)
Dr. Corbus evaluated plaintiff at the request of the state agency in April 2012. (Tr. 40106). Plaintiff reported to Dr. Corbus that she maintained good relationships with family but did
not socialize with anyone. (Tr. 401-02). She reported that she had a history of extensive mental
health treatment but was not currently participating in such treatment. (Tr. 402). She reported
she had been prescribed anxiety medication but could not afford it at the time of the evaluation.
(Tr. 402). She had never been hospitalized for psychiatric issues. (Id.). At the time of the
evaluation, plaintiff had been working at Burger King for 3 years and currently worked 15-25
hours every two weeks but felt she could not work more hours due to anxiety and COPD. (Tr.
403). Plaintiff reported that she had never been fired and had no history of interpersonal

19

problems with supervisors, coworkers or customers. (Tr. 403). She reported " some history" of
difficulty maintaining an adequate pace at past jobs. (Id.). Plaintiff described her daily routine
as waking and going to bed at variable times, watching TV, sleeping, and helping around the
house by doing the dishes and vacuuming '·a little at a time because of the COPD." (Id.). Dr.
Corbus reported that plaintiffs grooming and hygiene were adequate, she was cooperative and
volunteered information and details readily, and she maintained good eye contact. (Id.). He
observed that plaintiff was extremely shaky and tearful and constantly tapped her feet during the
evaluation. (Id.) . Flow of conversation and thought were normal except that plaintiffs rate of
speech was "slowed." (Id.). Her mood appeared anxious with congruent affect. (Tr. 404). She
reported symptoms of mania and two to three manic phases each week lasting from a couple of
hours to a couple of days. (Id.). Plaintiff reported being currently depressed with symptoms of
low self-esteem, concerns about the future, sadness, tearfulness, lack of energy, and poor
appetite. (Id.). She demonstrated symptoms of anxiety during the examination as she was shaky
and fidgety, and she reported having panic attacks 4 to 5 times each week during which she is
unable to catch her breath and does not want to be around anyone. Her mental content was
nonnal. She was oriented in all spheres. Her cognitive functioning was in the average range.
Her attention and concentration were poor, her ability to abstract was fair, and she demonstrated
some difficulties with memory during the evaluation. (Id.). She could understand and follow
directions during the evaluation and her performance on memory/recall tasks was average. (Id.).
Dr. Corbus diagnosed plaintiff with mood disorder NOS, anxiety disorder NOS, and
cocaine dependence (in sustained full remission). (Tr. 405). He assigned her a GAF score of

20

50. 15 (Id.). Dr. Corbus opined that plaintiff was ·'likely to have significant difficulties with job
related tasks due to physical and mental health problems"; plaintiffs anxiety appeared to be
significant and would likely distract her often at work and in other settings; she was likely to
respond appropriately to coworkers in a work setting; and she was somewhat able to respond
appropriately to work stressors and situations. (Tr. 405-06).
The ALJ discounted Dr. Corbus' assessment on three grounds. First, the ALJ found the
assessment was based heavily upon plaintiffs self-reports, which the ALJ found were " less than
fully credible." (Tr. 79). Second, the ALJ discounted the assessment based on plaintiffs lack of
significant mental health treatment, which the ALJ found indicated her mental health symptoms
were not as debilitating as she presented to Dr. Corbus. (Id.). Third, the ALJ discounted the
assessment based on the "consistent normal psychiatric findings on other examinations," which
the ALJ found likewise cast doubt on the debilitating nature of the symptoms presented by
plaintiff. (Id.). Plaintiff acknowledges that the ALJ discounted Dr. Corbus' assessment on these
grounds but alleges the ALJ ' s reasons are not supported. (Doc. 13 at 18-19). The Court
disagrees and finds that the ALJ properly weighed Dr. Corbus' opinion and gave valid reasons
for declining to credit his assessment.
First, the ALJ properly considered the extent to which Dr. Corbus' opinion was supported
by the objective and clinical evidence, as opposed to plaintiffs subjective allegations alone. See
20 C.F.R. § 416.927(c)(3) ("The more a medical source presents relevant evidence to support an
opinion, particularly medical signs and laboratory findings, the more weight we will give that
opinion.") Objective evidence in the psychiatric/psychological context includes "medical signs,"
15

"GAF is a clinician's subjective rating, on a scale of zero to 100, of an individual 's overall psychological
functioning." Kornecky v. Comm 'r ofSoc. Sec., 167 F. App'x 496, 503 n. 7 (6th Cir. 2006). A GAF score of 41 to
50 indicates "serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any
serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."
Diagnostic and Statistical Manual of Mental Disorders 34 (4th ed. 2000).

21

20 C.F.R. § 4 l 6.912(b)(1 ), which are defined as "psychological abnormalities which can be

observed, apart from your statements (symptoms) .. . . Psychiatric signs are medically
demonstrable phenomena that indicate specific psychological abnormalities, e.g. , abnormalities
of behavior, mood, thought, memory, orientation, development, or perception. They must also
be shown by observable facts that can be medically described and evaluated." 20 C.F.R. §
416.928(b) . Here, it appears that Dr. Corbus relied heavily on plaintiffs subjective allegations in
rendering his assessment. For instance, in assessing plaintiffs ability to understand, remember
and carry out instructions, Dr. Corbus found that plaintiff was able to follow instructions in the
evaluation and that her performance on memory/recall tasks was average. (Tr. 405). However,
he appears to have relied on plaintiffs self-report that she will not fully complete tasks at times
because she will need to remove herself from anxiety-producing situations. (Id.). In assessing
plaintiffs ability to maintain attention, concentration, persistence and pace to perform simple
and multi-step tasks, Dr. Corbus relied on plaintiffs reports that she had a history of difficulty in
maintaining adequate pace at past jobs, even though she was currently working, and that her
depression and anxiety "will [] cause her to be inconsistent at work, and have poor pace and
persistence." (Tr. 406). In addition, Dr. Corbus noted that plaintiff had no history of
interpersonal difficulties in a work setting, she was likely to respond appropriately to coworkers
in a work setting, and she did not have a significant history of violent or aggressive outbursts;
however, he noted plaintiffs subjective report that she will sometimes be short-tempered and
verbally aggressive when she is anxious. (Id.). Finally, Dr. Corbus appears to have relied
exclusively on plaintiffs self-reported difficulty in responding appropriately to work pressure
when assessing her ability in this area. (Id.). Dr. Corbus assessed plaintiffs abilities and
limitations in this area of functioning as follows:

22

The claimant reported extensive mental health treatment history and is not
currently participating in mental health treatment. Ms. Griggs does not take
psychiatric prescription medication to help manage symptoms and continues to
experience difficulties. Based on her self-reported history, the claimant is
somewhat able to respond appropriately to work stressors and situations. The
claimant is currently experiencing significant stressors, and does not appear to
have adequate social supports in place to effectively cope with additional
stressors. The claimant stated she experiences some success at her part time job,
but prior to the worsening of her anxiety and physical condition she was able to
work full time. She stated her ability to respond appropriately at work is
dependent upon her mood at that time, but that generally she has difficulty.

(Id.) (emphasis added). Thus, the ALJ reasonably detennined that Dr. Corbus relied heavily on
plaintiffs self-reported symptoms rather than objective evidence in reaching his conclusions as
to her mental functional limitations. (Tr. 79). Jn light of the ALJ 's finding that plaintiff was not
fully credible, which plaintiff has not challenged, the ALJ was justified in discounting Dr.
Corbus' opinion on the ground he relied largely on plaintiffs self-reported symptoms.
Second, the ALJ reasonably discounted Dr. Corbus' assessment in light of plaintiffs
history of a lack of significant mental health treatment. (Id.). Plaintiff simply notes in response
to this finding that she did not have health insurance until recently and that she had begun mental
health treatment in March 2014, long after abnormal psychiatric findings were first noted on her
examinations and approximately two years after Dr. Corbus issued his assessment. (Doc. 13 at
19, citing Tr. 101-02, 627-51). However, plaintiff has not pointed to any evidence in the record
to show that her lack of insurance precluded her from obtaining mental health treatment
throughout the period of alleged disability. In fact, the ALJ noted that the evidence showed that
plaintiff had obtained a medical card around October 15, 2012 (Tr. 458-59) and that she admitted
smoking one-half to three packs of cigarettes per day during the applicable period with her
family members often paying for her cigarettes. (Tr. 84). The ALJ reasonably concluded based
on this evidence that plaintiff could have afforded some treatment or medication. See Moore v.

23

Commissioner ofSocial Sec., 573 F. App 'x 540, 542-43 (6th Cir. 2014) (ALJ reasonably
concluded that plaintiff's failure to pursue treatment greatly eroded her credibility where she
testified she could not afford treatment but she continued to purchase up to three packs of
cigarettes a day and the evidence showed she had obtained medical insurance long before the
alleged onset date) (citing Blacha v. Secy of Health & Human Servs., 927 F.2d 228, 231 (6th
Cir. 1990) ("concluding that the claimant's failure to seek treatment undercut his complaints of
disabling symptoms"). The ALJ therefore was entitled to discount Dr. Corbus' assessment of
debilitating mental functional limitations based on plaintiffs failure to pursue treatment during
the alleged period of disability.
Finally, plaintiff alleges that the record does not support the ALJ 's decision to discount
Dr. Corbus' assessment on the ground there were consistently normal psychiatric findings on
examination. (Doc. 13 at 19; see Tr. 79). Plaintiff contends the ALJ ' s finding is unsupported
because there were four dates on which abnormal mental status findings were made: Dr. Corbus'
April 2012 assessment (Tr. 401-06), and four treatment sessions at St. Aloysius on March 4,
2014 (Tr. 647), March 24, 2014 (Tr. 628), and May 20, 2014 (Tr. 713-15). (Doc. 13 at 19).
Plaintiff alleges that Dr. Corbus observed numerous abnormalities, and on some or all of the
above dates her treating providers noted that she appeared nervous, restless, fidgety, anxious and
mistrustful; her affect and facial expressions were blunted; her mood and affect were anxious,
depressed and constricted; she had a mild impairment of attention and concentration; and her
insight and judgment were limited to fair. (Id.). However, as the Commissioner notes, the
record also documents normal mental status findings made during the course of many more
medical appointments. (Doc. 18 at 20). The ALJ noted in his written decision that several
examination reports noted that plaintiff was alert and oriented x3 and had a normal mood and

24

affect. (Tr. 77, citing Tr. 335- plaintiff alert and oriented x3, normal affect reported in June
2011 emergency room report; Tr. 349-50- normal mood and affect report in September 2011
emergency room report; Tr. 390-98- plaintiff alert and oriented x3, normal mood and affect and
behavior reported in January 2012 emergency room report; Tr. 435-52- normal mood and affect
and behavior reported in October 2012 emergency room report; Tr. 458-59- normal mood and
affect, behavior, judgment, and thought content reported in October 2012 emergency room
report; Tr. 621-22, plaintiff was alert and oriented x3, affect, conversation and mood were
normal, and no abnormal thinking was noted in September 2013 emergency room report) . Given
that these normal mental status findings were made during several emergency room visits that
spanned more than two years, the ALJ's decision to give reduced weight to Dr. Corbus'
assessment in light of consistently normal psychiatric findings is substantially supported.
The ALJ provided valid reasons which are substantially supported by the evidence for
giving only "some weight" to Dr. Corbus' assessment of plaintiff's mental functional limitations.
The ALJ reasonably discounted Dr. Corbus' assessment on the grounds it was based in large part
on plaintiff's subjective reports and was inconsistent with plaintiff's lack of mental health
treatment history and with the consistent reports of normal psychiatric findings found in other
examination reports throughout the record. Cf Sims v. Comm 'r ofSoc. Sec., 406 F. App'x 977,
979-80 (6th Cir. 2011) (finding the ALJ appropriately discounted treating physician's opinion
which was "based largely on plaintiffs subjective complaints and was not supported by other
medical evidence in the record"). Accordingly, plaintiff's third assignment of error should be
overruled.

25

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED.

Date:

~L~

IO /;7 /;~
j

Karen L. Litkovitz
United States Magistrate Judge

26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANITA L. GRIGGS,
Plaintiff,

Case No. I: I 5-cv-619
Barrett, J.
Litkovitz, M.J.

vs.

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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

27