Humphrey v. Commissioner of Social Security
ORDER affirming the decision of the Commissioner and closing this case on the docket of the Court. Signed by Magistrate Judge Karen L. Litkovitz on 9/1/17. (sct)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WILLIAM O. HUMPHREY,
Case No. 1:16-cv-666
Plaintiff William O. Humphrey brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) for judicial review of the final decision of the Commissioner of Social Security
(“Commissioner”) denying plaintiff’s application for Supplemental Security Income (“SSI”).
This matter is before the Court on plaintiff’s statement of errors (Doc. 5), the Commissioner’s
response in opposition (Doc. 12), and plaintiff’s reply memorandum (Doc. 13).
I. Procedural Background
Plaintiff was granted SSI disability benefits in February 2000 following a hearing with
Administrative Law Judge (“ALJ”) Douglass Custis. (Tr. 163-172). ALJ Custis adopted the
opinion of the testifying medical expert, Dr. Hawkins, and determined that plaintiff met Section
12.08 of the Listing of Impairments for personality disorders. (Tr. 167-68). Plaintiff’s benefits
were terminated when he was incarcerated in November 2002. (Tr. 19). After his release from
prison, plaintiff filed an application for SSI in July 2007, alleging disability beginning July 27,
1998. (Tr. 173, 444-450). Plaintiff’s application was denied initially and upon reconsideration.
(Tr. 173-174, 231-234). Following a hearing in October 2009, ALJ Sarah Miller issued a
decision finding plaintiff was not disabled. (Tr. 136-162, 175-190). In March 2012, the Appeals
Council remanded plaintiff’s case to the ALJ. (Tr. 191-193). In September 2013, ALJ David
Redmond conducted a hearing and issued a decision in February 2014 finding plaintiff was not
disabled. (Tr. 107-135, 195-219). In July 2015, the Appeals Council again remanded plaintiff’s
case to the ALJ for further development of the record and reweighing of the medical opinion
evidence. (Tr. 220-224).
In December 2015, ALJ Gregory Kenyon conducted a third hearing. (Tr. 43-75). In
January 2016, ALJ Kenyon issued a decision finding that plaintiff was not disabled. (Tr. 16-42).
Plaintiff’s request for review by the Appeals Council was denied, making ALJ Kenyon’s January
2016 decision the final administrative decision of the Commissioner.
A. Legal Framework for Disability Determinations
To qualify for disability benefits, a claimant must suffer from a medically determinable
physical or mental impairment that can be expected to result in death or that has lasted or can be
expected to last for a continuous period of not less than 12 months. 42 U.S.C. § 423(d)(1)(A).
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. §
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
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
Rabbers v. Comm’r of Soc. 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. Id.; Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548
(6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to
perform the relevant previous employment, the burden shifts to the Commissioner to show that
the claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
B. The Administrative Law Judge’s Findings
The ALJ applied the sequential evaluation process and made the following findings of
fact and conclusions of law:
1. The [plaintiff] has not engaged in substantial gainful activity since July 16,
2007, the application date (20 CFR 416.971 et seq.).
2. The [plaintiff] has the following severe impairments: residuals of a lumbosacral
strain, depression, and an antisocial personality 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 undersigned finds that the
[plaintiff] has the residual functional capacity to perform medium work as defined
in 20 CFR 416.967(c) subject to the following limitations: (1) frequent crouching,
crawling, kneeling, stooping, and climbing of ramps and stairs; (2) no climbing of
ladders, ropes or scaffolds; (3) no work around hazards, such as unprotected
heights or dangerous machinery; (4) limited to performing unskilled, simple,
repetitive tasks; (5) occasional, superficial contact with coworkers and
supervisors; (6) no public contact; (7) no teamwork or tandem tasks; (8) no close
over the shoulder supervision; (9) no fast paced production work or jobs involving
strict production quotas; and (10) limited to performing jobs in a relatively static
work environment in which there is very little, if any, change in the job duties or
the work routine from one day to the next.
5. The [plaintiff] has no past relevant work (20 CFR 416.965).
6. The [plaintiff] was born [in] 1977 and was 30 years old, which is defined as a
younger individual age 18-49, on the date the application was filed (20 CFR
7. The [plaintiff] has a limited education and is able to communicate in English
(20 CFR 416.964).
8. Transferability of job skills is not at issue because the [plaintiff] does not have
past relevant work (20 CFR 416.968).
9. Considering the [plaintiff]’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the [plaintiff] can perform (20 CFR 416.969 and 416.969(a)). 1
10. The [plaintiff] has not been under a disability, as defined in the Social
Security Act, since July 16, 2007, the date the application was filed (20 CFR
C. Judicial Standard of Review
Judicial review of the Commissioner’s determination is limited in scope by 42 U.S.C. §
405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by
substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec.,
478 F.3d 742, 745-46 (6th Cir. 2007).
The ALJ relied on the VE’s testimony to find that plaintiff would be able to perform the jobs of laundry worker
(4,500 jobs regionally; 640,000 jobs nationally), hand packager (1,800 jobs regionally; 460,000 jobs nationally), and
warehouse worker (7,200 jobs regionally; 1,100,000 jobs nationally). (Tr. 33-34).
The Commissioner’s findings must stand if they are supported by “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales,
402 U.S. 389, 401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229
(1938)). Substantial evidence consists of “more than a scintilla of evidence but less than a
preponderance. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In
deciding whether the Commissioner’s findings are supported by substantial evidence, the Court
considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the
disability determination. Even if substantial evidence supports the ALJ’s conclusion that the
plaintiff is not disabled, “a decision of the Commissioner will not be upheld where the SSA fails
to follow its own regulations and where that error prejudices a claimant on the merits or deprives
the claimant of a substantial right.” Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746).
See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ’s decision was
otherwise supported by substantial evidence where ALJ failed to give good reasons for not
giving weight to treating physician’s opinion, thereby violating the agency’s own regulations).
D. Specific Errors
On appeal, plaintiff alleges that in violation of the rule in Drummond v. Comm’r of Soc.
Sec., 126 F.3d 837 (6th Cir. 1997), ALJ Kenyon erred (1) by finding new and material evidence
documenting a significant change in plaintiff’s mental disorders since Judge Custis’s 2000
disability finding to justify not adopting ALJ Custis’s decision, and (2) by failing to explicitly
identify the “new and material evidence” he relied on so as to permit meaningful judicial review
of the Drummond issue. Plaintiff also contends ALJ Kenyon failed to properly weigh the
opinions of the medical sources of record; failed to properly assess plaintiff’s credibility; and
posed an unsupported hypothetical question to the VE to satisfy the Commissioner’s burden at
Step 5 of the sequential evaluation process.
1. ALJ Kenyon did not err in applying Drummond.
Plaintiff argues that the record does not contain new and material evidence as required by
Drummond to support ALJ Kenyon’s finding that plaintiff was no longer disabled under Listing
12.08. Plaintiff also argues that even if his impairments no longer meet Listing 12.08, his antisocial personality disorder “still markedly and extremely impaired him from sustaining work
around others for 40 hours a week on any job!” (Doc. 5 at 5). Plaintiff alleges the consultative
examinations performed by Dr. Fritsch and Dr. Corbus do not show any substantive change in
plaintiff’s condition, as both psychologists concluded he was markedly or extremely limited in
dealing with supervisors and co-workers. (Id.). Plaintiff also alleges that the testimony of Dr.
Buban, the medical expert who testified at plaintiff’s second ALJ hearing after remand by the
Appeals Council, does not show a substantive change in plaintiff’s condition such that he would
no longer be disabled. Finally, plaintiff contends ALJ Kenyon failed to identify the “new and
material” evidence he relied on in finding he was not bound by ALJ Custis’s prior decision and
therefore this Court cannot meaningfully review that evidence in relation to ALJ Custis’s 2000
The Commissioner responds that plaintiff has made no attempt to show how he meets all
of the specified medical criteria of Listing 12.08 because: (1) he has made no direct argument
regarding the “A” criteria of Listing 12.08, and (2) he does not raise arguments regarding the
severity of his limitations in activities of daily living; concentration, persistence, and pace; or his
episodes of decompensation for purposes of the “B” criteria of the listing. The Commissioner
also argues that to the extent plaintiff contends the ALJ’s weighing of the opinion evidence
impacted his findings of whether plaintiff met or equaled Listing 12.08, the record as a whole
supports the ALJ’s evaluation of the medical sources in this case.
In Drummond, the Sixth Circuit held that Social Security claimants and the
Commissioner are barred from re-litigating issues that have previously been determined at the
administrative level. 126 F.3d at 842. See also 42 U.S.C. § 405(h) (“The findings and decision
of the Commissioner of Social Security after a hearing shall be binding on all individuals who
were parties to such a hearing.”). Drummond mandates that “[a]bsent evidence of improvement
in a claimant’s condition,” the findings of an ALJ as part of a prior disability determination are
binding on a subsequent ALJ in later proceedings. 126 F.3d at 842. The Commissioner bears
the burden to prove changed circumstances so as to escape being bound by principles of res
judicata. Id. at 843.
Following the decision in Drummond, the Commissioner issued an Acquiescence Ruling
mandating that ALJs in Ohio (and other states within the Sixth Circuit) follow Drummond by
applying res judicata to a prior assessment of a claimant’s RFC. The Acquiescence Ruling
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law. . . .
AR 98-4(6), 1998 WL 283902, at *3 (June 1, 1998). In analyzing the question of changed
circumstances, “[n]either Drummond nor SSAR 98–4(6) require the ALJ to make specific
comparisons with the evidence supporting the prior final decision.” Rudd v. Comm’r of Soc.
Sec., 531 F. App’x 719, 725 (6th Cir. 2013). “The proper focus is on the evidence since the prior
ALJ’s decision.” Id. at 726 (citing Collier v. Comm’r of Soc. Sec., 108 F. App’x 358, 362-63
(6th Cir. 2004) (holding that new medical evidence supported the ALJ’s finding of a higher RFC
than a previous decision without comparison to evidence supporting prior decision)).
The record shows that on February 16, 2000, ALJ Custis found plaintiff met Listing
12.08 for personality disorders and was disabled:
Psychiatrist, James E. Hawkins, M.D., a medical expert, testified at the hearing
that charges involving trespassing and rape, a past history of drug and alcohol
abuse, an unwillingness to take on responsibilities, and the fact that the claimant
does not like to be around people are indicative of a severe impairment which
meets sections (sic) 12.08 of the Listing of Impairments. The undersigned adopts
the opinion of Dr. Hawkins, and concludes the claimant’s personality disorder
causes slight restriction in activities of daily living; marked limitation in social
functioning; frequent limitations in concentration, persistence and pace; and
results in repeated episodes of deterioration or decompensation. Thus, the
claimant is precluded from doing any work that exists in significant numbers in
(Tr. 167-68). 2 ALJ Custis gave “greater weight” to the opinion of Dr. Hawkins than to the
opinions of the state agency psychologists who opined that plaintiff was only moderately limited
in the relevant work-related abilities.
ALJ Kenyon acknowledged that plaintiff had previously been granted disability benefits
and addressed the Drummond issue as follows:
The undersigned notes that the claimant previously filed an application for
supplemental security income in July 1998, and Administrative Law Judge
Douglass L. Custis eventually issued a decision on February 16, 2000, finding
that the claimant was disabled (see Exhibit B1A). His benefits were ceased upon
his incarceration at Chillicothe Correctional in November 2002. The claimant
protectively filed his current application for a period of disability and
supplemental security income on July 16, 2007. Unless new and material
evidence or changed circumstances provide a basis for a different finding
concerning a claimant’s residual functional capacity, the Administration cannot
make a different finding in adjudicating a subsequent disability claim with an
unadjudicated period arising under the same title of the Act (Acquiescence Ruling
At the time of ALJ Custis’s decision, Listing 12.08 required “[d]eficiencies of concentration, persistence or pace
resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere).” 20 C.F.R. Pt.
404, Subpt. P, App. 1, 20 C.F.R. Pt. 404, Subpt. P, App. 1 (2000 ed.). The paragraph B criteria of the mental
disorder listings are now rated on a five-point rating scale: no limitation (or none), mild limitation, moderate
limitation, marked limitation, and extreme limitation. Listing 12.00F.2. The B criteria of Listing 12.08 currently
require “marked” difficulties in maintaining concentration, persistence, or pace.
98-4(6); Drummond v. Commissioner, 126 F.3d 837 (6th Cir. 1997)). In this case,
there is new and material evidence documenting a significant change in the
claimant’s condition. Thus, Judge Custis’s previous residual functional capacity
determination is not binding.
As an initial matter, the Court disagrees with plaintiff’s argument that ALJ Kenyon’s
decision precludes meaningful judicial review of the Drummond issue. While plaintiff is correct
that ALJ Kenyon did not explicitly identify the “new and material” evidence he relied on when
discussing Drummond (Tr. 19), there is undoubtedly “new” evidence in the record post-dating
ALJ Custis’s 2000 decision that ALJ Kenyon discussed and thoroughly reviewed throughout his
decision. This includes plaintiff’s lengthy prison records, the consultative examinations by Drs.
Fritsch and Corbus, Dr. Buban’s testimony at the second ALJ hearing, and plaintiff’s sporadic
mental health treatment between his prison incarcerations. ALJ Kenyon’s decision implicitly
shows that he considered this new evidence in the record and determined that it demonstrated a
significant change in plaintiff’s condition which warranted a departure from ALJ Custis’s listing
decision. Specifically, ALJ Kenyon found that plaintiff no longer met the requirements for
Listing 12.08 based on the paragraph B criteria of the listing. (Tr. 22-23). ALJ Kenyon’s
decision permits meaningful judicial review in this case.
Neither Drummond nor AR 98-4(6) contains any formalistic requirements. As long as
substantial evidence supports ALJ Kenyon’s conclusion that new and material evidence
warranted a departure from ALJ Custis’s listing decision, the Court should affirm ALJ Kenyon’s
decision on his application of Drummond. See Ballatore v. Comm’r of Soc. Sec., No. 11-cv15335, 2014 WL 2765269, at *5-6 (E.D. Mich. June 18, 2014) (in determining plaintiff’s current
disability status, ALJ had a reasonable basis in law for relying on new medical records that postdated prior ALJ’s decision even though current ALJ did not quote or explain the disability
finding of prior ALJ) (analyzing Rudd and Collier); Williams v. Astrue, 2010 WL 503140, at *35 (E.D. Tenn. Feb. 8, 2010) (failure to expressly point out which evidence was relied on was not
error where ALJ discussed evidence post-dating prior ALJ’s opinion). For the reasons that
follow, the Court finds ALJ Kenyon reasonably relied on new and material evidence in departing
from ALJ Custis’s listing decision.
ALJ Kenyon determined, and plaintiff does not dispute, that the evidence post-dating
ALJ Custis’s decision showed plaintiff was only moderately limited in his ability to maintain
concentration, persistence or pace. (Tr. 23). While both Drs. Fritsch and Corbus significantly
limited plaintiff’s ability to deal with the public, supervisors, and co-workers, neither imposed
limitations in concentration, persistence or pace as restrictive as those imposed by Dr.
Humphreys and adopted by ALJ Custis in 2000. Rather, Dr. Fritsch opined that plaintiff was
able to understand and remember short, simple instructions and should have no difficulty
carrying out such instructions. Dr. Corbus opined that plaintiff was “fleetingly able” to
concentrate and would “likely have difficulty with attention and concentration.” He also found
that on tasks requiring rapid timed performance plaintiff “may show work pace similar to that of
his work peers.” (Tr. 695). Dr. Corbus did not, however, opine that plaintiff would be markedly
impaired in his ability to maintain attention and concentration, persistence and pace to perform
simple tasks (Tr. 695, 698) and plaintiff has not raised an argument or cited any evidence to the
contrary. Plaintiff has not shown he satisfies the B criteria of Listing 12.08 requiring marked
limitation in at least two areas of functioning. 3 Therefore, ALJ Kenyon did not err under
Drummond by declining to adopt ALJ Custis’s Listing 12.08 decision.
Plaintiff’s argument that Dr. Buban’s testimony does not show a significant change in plaintiff’s mental condition
is based on his belief that Dr. Buban’s testimony was flawed. This will be addressed in connection with plaintiff’s
second assignment of error.
2. ALJ Kenyon’s weighing of the medical opinion evidence is supported by
Plaintiff alleges ALJ Kenyon erred by giving more weight to state agency reviewing
psychologist Dr. Marlow and medical expert Dr. Buban than to the consultative examiners, Drs.
Fritsch and Corbus. Plaintiff contends that the ALJ was required to give more weight to the
examining sources than to the nonexamining sources and to apply a more rigorous standard of
review to a nonexamining source versus an examining one. (Doc. 5 at 6, citing Gayheart, 710
F.3d at 379-80). 4
In weighing the opinions of medical sources, there is a hierarchy of medical opinions.
An ALJ must give “controlling” weight to the opinion of a claimant’s treating physician if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the claimant’s] case record . . . .” 20 C.F.R §
416.927(c)(2). 5 Unless the opinion of the treating source is entitled to controlling weight, an
ALJ must “evaluate all medical opinions” with regard to the factors set forth in 20 C.F.R. §
416.927(c). The opinion of a non-treating but examining medical source is weighed based on 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). The opinion of a non-treating but examining source
is generally entitled to more weight than the opinion of a nonexamining source. Ealy v. Comm’r
of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010); Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875
(6th Cir. 2007); 20 C.F.R. § 416.927(c)(1). Under the Social Security regulations, “a written
“By including the existence of an examining and treating relationship in the factors determining the weight to be
accorded to different medical opinions, ‘[t]he regulations provide progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the individual become weaker.’” Keeton v. Comm’r of
Soc. Sec., 583 F. App’x 515, 525 (6th Cir. 2014) (quoting Gayheart, 710 F.3d at 375-76).
For claims filed on or after March 27, 2017, the rules in § 416.920c apply to weighing the opinion evidence. 20
C.F.R. § 416.927.
report by a licensed physician who has examined the claimant and who sets forth in his report his
medical findings in his area of competence . . . may constitute substantial evidence . . . adverse to
the claimant” in a disability proceeding. Lee v. Comm’r of Soc. Sec., 529 F. App’x 706, 713 (6th
Cir. 2013) (quoting Richardson v. Perales, 402 U.S. 389, 402 (1971)). In addition, the opinions
of state agency medical and psychological consultants may be entitled to significant weight
where they are supported by record evidence. Id. (citing 20 C.F.R. § 404.1527(e)(2)(i)).
Because a nonexamining source has no examining or treating relationship with the claimant, the
weight to be afforded the opinion of a nonexamining source depends on the degree to which the
source provides supporting explanations for his opinion and the degree to which his opinion
considers all of the pertinent evidence in the record, including the opinions of treating and other
examining sources. 20 C.F.R. § 416.927(c)(3).
Dr. Fritsch found plaintiff was markedly impaired in his ability to deal with the public
and coworkers and extremely impaired in his ability to deal with supervisors. (Tr. 650). The
ALJ gave little weight to Dr. Fritsch’s opinion that plaintiff was markedly to extremely impaired
in his social functioning and markedly impaired in his ability to respond to the basic commands
and pressures of employment. (Tr. 31). The ALJ determined that Dr. Fritsch’s examination
findings were relatively benign; there was no evidence in his report of acute mental illness or any
loss of contact with reality; and Dr. Fritsch appeared to base his conclusion that plaintiff could
not interact with others on plaintiff’s subjective complaints. (Id.).
Dr. Corbus opined that plaintiff was markedly impaired in his ability to interact
appropriately with supervisors, co-workers, and the public, and to respond to changes in the
routine work setting. (Tr. 699). The ALJ gave moderate weight to Dr. Corbus’s opinion (Tr.
32), noting that Dr. Corbus’s mental status exam was essentially normal, with no evidence of
psychosis or loss of contact with reality. The ALJ determined that Dr. Corbus “simply accepted
[plaintiff’s] complaints that he was pathologically unable to get along with others as fact without
any inquiry into whether these allegations are objectively supported.” (Tr. 32).
The ALJ gave great weight to the opinions of Dr. Buban, the medical expert who testified
at the second ALJ hearing, reasoning as follows:
Dr. Buban testified at the previous hearing that the claimant had been diagnosed
at various times with depression, substance induced mood disorder, history of
poly substance abuse, and anti-social personality disorder. Dr. Buban also noted
that the claimant’s GAF 6 scores from his most recent incarceration ranged
between 65 and 80, indicating only mild symptoms. Dr. Buban discussed the
claimant’s history of medication noncompliance and the lack of indication of
physical altercations during prison. Dr. Buban also noted that while he primarily
reported problems relating with others, his most recent progress notes indicate
that he was applying for jobs, working at flea markets, attending school,
completing projects, and feeling more productive. Dr. Buban opined that the
claimant’s impairments did not meet or equal the criteria of any listing section.
Dr. Buban’s testimony is consistent with the objective medical evidence and the
opinions of Dr. Corbus, as well as the claimant’s own reports in later records.
Therefore, the undersigned gives great weight to the opinions of this impartial
The ALJ also gave great weight to the opinion of Robelyn Marlow, Ph.D., a state agency
psychologist who reviewed the record in November 2007. (Tr. 31). Dr. Marlow opined that
plaintiff was moderately limited in his ability to maintain social functioning and in concentration,
persistence or pace. The ALJ found that Dr. Marlow’s opinion was supported by the objective
evidence and the opinions of Dr. Buban and Dr. Corbus. (Id.).
Plaintiff contends ALJ Kenyon erred by giving great weight to Dr. Marlow’s opinion
because he failed to apply a more rigorous standard of review to Dr. Marlow’s opinion, which
A Global Assessment of Functioning (“GAF”) score represents “the clinician’s judgment of the individual’s
overall level of functioning.” American Psychiatric Association, Diagnostic and Statistical Manual of Mental
Disorders 32 (4th ed., text rev. 2000). The GAF score is taken from the GAF scale, which “is to be rated with
respect only to psychological, social, and occupational functioning.” Id. The GAF scale ranges from 100 (superior
functioning) to 1 (persistent danger of severely hurting self or others, persistent inability to maintain minimal
personal hygiene, or serious suicidal act with clear expectation of death).” Id. at 34.
was premised on factual inaccuracies and an incomplete record. Plaintiff alleges that Dr.
Marlow last reviewed the file in 2007; relied on the mistaken belief that ALJ Custis was not
aware of plaintiff’s drug and alcohol use; and relied, in part, on an inaccurate history of factory
work. (Doc. 5 at 8, citing Tr. 678, 31). Plaintiff contends that had the ALJ noted these errors,
he would not have given Dr. Marlow’s opinions great weight.
First, Dr. Marlow’s statement that plaintiff had an employment history that included
factory work was accurate. Plaintiff reported to Dr. Fritsch that he “worked in entry-level
positions such as factory labor” when describing his work history (Tr. 648), which Dr. Marlow
Plaintiff is correct that contrary to Dr. Marlow’s statement that ALJ Custis failed to
account for plaintiff’s drug use (Tr. 678), ALJ Custis’s 2000 decision noted plaintiff had “a past
history of drug and alcohol abuse.” (Tr. 167). However, Dr. Marlow’s mistaken belief that ALJ
Custis was not aware of such abuse was only one of many reasons Dr. Marlow gave for her
opinion on plaintiff’s functional capacity. Dr. Marlow accurately noted that at the time she gave
her opinion, plaintiff was not receiving mental health treatment or medications. (Tr. 678). He
was on the mental health caseload while in prison for only a brief time and he was noted to be
non-compliant with his medications. (Id.). Dr. Marlow stated that plaintiff was able to get along
with others while in the prison system. She also pointed out that Dr. Fritsch’s conclusions were
based on plaintiff’s self-reports and there was no medical evidence suggesting he could not get
along with others on a superficial basis. (Id.). These reasons are substantially supported by the
evidence of record as explained below, and any mistake in relation to plaintiff’s drug and alcohol
use was at most harmless error.
Plaintiff is also correct that Dr. Marlow’s review covers the record evidence only up to
November 2007. However, plaintiff fails to explain how the medical evidence subsequent to Dr.
Marlow’s opinion renders her opinion unreliable, particularly given the relatively benign
findings in plaintiff’s prison records that do not substantiate a history of fighting with other
inmates or other conflicts with inmates and staff.
The crux of this case is the opinion of Dr. Buban, who testified as a medical expert at
plaintiff’s second ALJ hearing. Dr. Buban was able to review all of the medical evidence of
record, including the consultative examinations of Drs. Fritsch and Corbus, plaintiff’s prison
records, and plaintiff’s more recent mental health records. As Dr. Buban noted, the consultative
examiners’ most extreme limitations on plaintiff’s social functioning were based on his selfreported history of poor emotional/behavioral control and inability to get along with others. (Tr.
117, 118, 120). Dr. Buban opined that the extreme restrictions were not borne out by the prison
records, which spanned a number of years and provided a more thorough insight into the extent
of plaintiff’s social limitations than the single exams by the consultative examiners. (Tr. 120).
Dr. Buban testified that the prison records do not support plaintiff’s claims of constant fights
with other inmates and conflicts with others. Dr. Buban also testified that plaintiff’s GAF scores
in prison indicated only a mild impairment, the prison records showed a history of medication
noncompliance, and recent progress notes showed that after plaintiff was released from prison
he applied for jobs, worked at flea markets, attended school, completed projects, and felt more
productive. (Tr. 115-118). Dr. Buban concluded based on this evidence that plaintiff did not
have the marked limitation in social functioning required by the listings, and ALJ Kenyon
reasonably relied on Dr. Buban’s testimony.
Plaintiff takes issue with Dr. Buban’s testimony because she was mistaken that plaintiff
had no physical outbursts in prison and she did not review any medical records after 2013. (Doc.
5 at 6). However, the evidence plaintiff cites in support of this argument does not support his
allegation that he fought “hundreds of times” when in prison (Tr. 120) or a finding that he had
conflicts with others such that he was markedly limited in social functioning.
Plaintiff cites to the record in support of the proposition that he was fighting every day in
2011. (Doc. 5 at 7, citing Tr. 706). This is not accurate. The note plaintiff cites actually states
that while in prison he lived in an open dorm with 240 people and there were “fights every day,”
not that plaintiff was fighting every day. (Tr. 706). Plaintiff self-reported only that he “was
fighting a lot because I stand up for myself.” (Id.). Plaintiff also cites to records showing he had
placements in segregation. Plaintiff cites to two Mental Health Segregation Self-Report
Admission Screenings in which plaintiff reported this was not his first time in segregation (Tr.
737-10/5/06; Tr. 740-6/24/06) and two progress notes showing segregation placements in July
and October 2006. (Tr. 1027, 1031). Those records do not reflect the reasons for plaintiff’s
placement in segregation, but they specifically note that plaintiff was not brought to segregation
due to a serious infraction such as assault/battery or drugs/contraband. (Tr. 737, 740). Plaintiff
also cites to a prison note from June 2005 reflecting he had “fighting behavior 2 years ago” (Doc.
5 at 7, citing Tr. 742), which is consistent with plaintiff’s citation to a note from June 2003
indicating plaintiff had a fight a few months earlier (Tr. 759). Plaintiff also notes that in
December 2008, he was examined by the medical department “for a fight check.” (Doc. 5 at 7,
citing Tr. 968).
While plaintiff’s incarcerations spanned more than eight years, plaintiff has cited to only
two notes indicating fighting behavior and three apparent placements in segregation for unknown
reasons. These limited notes belie plaintiff’s claim that he was fighting “every day” or that
plaintiff had a significant history of fighting or conflicts with inmates or prison staff. Dr.
Buban’s testimony that she did not see evidence of “significant difficulties [in] getting along
with others” in plaintiff’s prison records is supported by the evidence and ALJ Kenyon
reasonably relied on this testimony in assessing the weight to give the consultative examiners’
Plaintiff also cites to a single record from the Butler County Jail in December 2014 where
he reported that “he often becomes agitated with others in which he will stay in his cell” and he
has impulse control problems. (Tr. 1114, 1117). Plaintiff contends Dr. Buban did not see this
later record because she testified in 2013. However, plaintiff fails to allege how this single
record, which does not indicate a persistent history of interpersonal conflict or fighting behavior,
is inconsistent with or would change Dr. Buban’s opinion.
Finally, plaintiff takes issue with Dr. Buban’s testimony concerning his GAF scores in
prison, which “were all 65 to 80, which would indicate mild symptoms.” (Tr. 115). Plaintiff
contends these scores were obtained “in the controlled environment of a State prison” where he
“was isolated for much of the time.” (Doc. 5 at 5, citing Tr. 1114). The note plaintiff cites is not
from a state prison, but from the Butler County Jail. Plaintiff reported that while he was in
prison, he lived in an open dorm with 240 other inmates. (Tr. 706). Plaintiff has not cited to any
other evidence showing he was “isolated for much of the time” so as to suggest the GAF scores
he obtained in prison were not accurate.
Plaintiff argues that because Drs. Fritsch and Corbus “interviewed [plaintiff], listened to
the tone of his voice, and observed his facial and body expressions” their opinions are entitled to
more weight than those of Drs. Marlow and Buban, the nonexamining psychologists. (Doc. 5 at
8-9). Plaintiff essentially argues that the ALJ erred by not following the general rule that more
weight is given to examining sources over nonexamining sources. While “the opinions of
nontreating [examining] sources are generally accorded more weight than nonexamining sources,
it is not a per se error of law, as [plaintiff] suggests, for the ALJ to credit a nonexamining source
over a nontreating source. Any record opinion, even that of a treating source, may be rejected by
the ALJ when the source’s opinion is not well supported by medical diagnostics or if it is
inconsistent with the record.” Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439 (6th Cir.
2012) (citing 20 C.F.R. §§ 404.1527, 416.927; Ealy, 594 F.3d at 514). The ALJ’s decision to
credit the opinions of Dr. Buban and Dr. Marlow over those of Drs. Fritsch and Corbus is
substantially supported by the longitudinal record as set forth in plaintiff’s prison records as well
as the mental health records subsequent to plaintiff’s release from prison, which showed he was
trying not to be angry all the time, had learned a lot of patience, was becoming significantly less
impulsive, was no longer acting out oppositional feelings, was feeling anxious but more focused,
was making ends meet with flea market work, and was going to school. (Tr. 27, 701, 711). The
opinions of Drs. Buban and Marlow were more consistent with this record evidence, and the ALJ
adequately explained his decision in weighing the opinions of the examining and nonexamining
sources. Norris, 461 F. App’x at 440 (“While perhaps the ALJ could have provided greater
detail, particularly as to why the nonexamining opinions were more consistent with the overall
record, the ALJ was under no special obligation to do so insofar as he was weighing the
respective opinions of nontreating versus nonexamining sources.”) (citing Smith v. Comm’r of
Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007)). Plaintiff’s second assignment of error is overruled.
3. Plaintiff has failed to establish any error with the ALJ’s credibility finding.
It is the province of the ALJ, and not the reviewing court, to evaluate the credibility of
witnesses, including that of the claimant. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007) (citations omitted). In light of the Commissioner’s opportunity to observe the
individual’s demeanor, the Commissioner’s credibility finding is entitled to deference and should
not be discarded lightly. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). See also Walters
v. Comm’r. of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (“[A]n ALJ’s findings based on the
credibility of the applicant are to be accorded great weight and deference, particularly since an
ALJ is charged with the duty of observing a witness’s demeanor and credibility.”). Nevertheless,
an ALJ’s assessment of a claimant’s credibility must be supported by substantial evidence.” Id.
Upon review of the ALJ’s complete credibility determination, the Court finds the ALJ’s
credibility finding is substantially supported by the evidence of record and is entitled to
deference. The ALJ cited seven primary reasons for finding plaintiff’s subjective allegations and
complaints were not fully credible to the extent they would preclude a restricted range of
medium work: (1) plaintiff’s inconsistent treatment history; (2) plaintiff’s sporadic treatment in
prison and noncompliance with treatment; (3) plaintiff’s voluntary cessation of treatment in
prison based on his reports of stable symptoms; (4) plaintiff’s relatively positive outlook
following his release from prison, including his commitment to managing his symptoms and
trying to improve his condition; (5) progress notes showing plaintiff continued to look for work
and that he worked odd jobs to make money; (6) plaintiff’s daily activities showing his pain and
depression do not seriously interfere with his ability to maintain attention and concentration,
perform routine tasks, understand and follow simple instructions, and interact with others; and
(7) plaintiff’s inconsistent statements regarding his polysubstance abuse. (Tr. 28, 30). Plaintiff
takes issue with several of these reasons.
Plaintiff contends the ALJ erred “in talking about non-compliance, as there is no
evidence that any prescribed treatment would restore the ability to work, required for noncompliance under 20 C.F.R. § 416.930 and [Social Security] Ruling 82-59 (1982).” (Doc. 5 at
9). The ALJ considered plaintiff’s noncompliance with medication only insofar as it bore on
plaintiff’s credibility, not as a basis for denying disability benefits under the regulations or Social
Security Rulings. Medication compliance is a relevant factor for an ALJ to consider in assessing
an individual’s credibility. See Social Security Ruling 96-7p, 1996 WL 374186 (“[T]he
individual’s statements may be less credible if the level or frequency of treatment is inconsistent
with the level of complaints, or if the medical reports or records show that the individual is not
following the treatment as prescribed and there are no good reasons for this failure.”). ALJ
Kenyon committed no error in this regard.
Plaintiff also contends that the activities of daily living cited by the ALJ do not support
the ALJ’s credibility finding. Plaintiff alleges he “stays to himself at home (wisely so). If he
hunts and fishes, he does these activities alone!” (Doc. 5 at 10). However, plaintiff has not cited
to any evidence or testimony in the record to support these allegations. Moreover, the progress
notes that indicate plaintiff was applying for jobs, working at flea markets and swap meets, and
attending school belie his allegations of performing activities in isolation. (Tr. 701).
Plaintiff additionally makes fleeting references to substance use not being “material”
under 20 C.F.R. § 416.935 and his limited work history in connection with his credibility
assignment of error. Plaintiff has not developed his perfunctory arguments that the ALJ erred in
evaluating his credibility in these respects. Plaintiff has therefore waived these arguments. See
Kuhn v. Washtenaw County, 709 F.3d 612, 624 (6th Cir. 2013) (the Sixth Circuit “has
consistently held that arguments not raised in a party’s opening brief, as well as arguments
adverted to in only a perfunctory manner, are waived”) (citing Caudill v. Hollan, 431 F.3d 900,
915 n. 13 (6th Cir. 2005) (citing recent decisions that stand for these two related propositions)).
Finally, plaintiff contends the ALJ erred in assessing his credibility because there is
objective evidence to support plaintiff’s limitations. This includes evidence he was lethargic on
examination, he had a long history of impulse control problems, he was found to be honest and a
reliable historian during his psychological examinations, he was hyperactive during an interview,
and he had a shifting mood, racing thoughts, and PTSD symptoms. (Doc. 5 at 9, citing Tr. 648,
649, 690, 693). However, even where substantial evidence would support a different conclusion
or where a reviewing court would have decided the matter differently, the ALJ’s decision must
be affirmed if it is supported by substantial evidence. See Her v. Commissioner, 203 F.3d 388,
389 (6th Cir. 1999). Though there is some medical evidence supporting plaintiff’s testimony, the
ALJ’s credibility determination is substantially supported by the reasons identified by ALJ
Kenyon and should not be disturbed by this Court. Kinsella v. Schweiker, 708 F.2d 1058, 1059
(6th Cir. 1983).
The ALJ cited ample reasons for discounting plaintiff’s credibility. Because the ALJ’s
credibility determination is supported by substantial evidence, this Court must defer to it. See
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Plaintiff’s third assignment of error is
4. The ALJ did not err by posing an improper hypothetical question to the VE.
Plaintiff contends, without citing legal authority, that the ALJ erred by failing to
accommodate plaintiff’s moderate limitations in concentration, persistence, or pace in the
hypothetical questions posed to the VE.
ALJ Kenyon limited plaintiff to unskilled, simple, repetitive tasks with no fast paced
production work or jobs involving strict production quotas. (Tr. 24). Because the record does
not reflect any concrete functional limitations on plaintiff’s ability to maintain concentration,
persistence, or pace when performing simple, repetitive, or routine tasks, the ALJ’s hypothetical
question to the VE was sufficient to convey plaintiff’s moderate limitations. See Kepke v.
Comm’r of Soc. Sec., 636 F. App’x 625, 635 (6th Cir. 2016) (“Case law in this Circuit does not
support a rule that a hypothetical providing for simple, unskilled work is per se insufficient to
convey moderate limitations in concentration, persistence and pace.”); Smith-Johnson v. Comm’r
of Soc. Sec., 579 F. App’x 426, 436-37 (6th Cir. 2014) (claimant’s moderate limitations in
concentration, persistence and pace were conveyed by ALJ’s hypothetical limitation to “simple,
routine, and repetitive tasks” because psychologist “did not place any concrete functional
limitations on [plaintiff’s] abilities to maintain attention, concentration, or pace when performing
simple, repetitive, or routine tasks”).
Plaintiff has not shown he suffers from additional mental work-related restrictions that
are supported by the evidence of record which the ALJ credited but erroneously omitted from the
RFC and from the hypothetical to the VE. Accordingly, plaintiff’s fourth assignment of error is
IT IS THEREFORE ORDERED THAT:
The decision of the Commissioner is AFFIRMED and this case is closed on the docket
of the Court.
s/Karen L. Litkovitz
Karen L. Litkovitz
United States Magistrate Judge
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