Courtney v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 4 Complaint filed by Lisa N. Courtney. IT IS RECOMMENDED THAT the decision of the Commissioner be AFFIRMED as supported by substantial evidence and that this case be CLOSED. Objections to R&R due by 8/16/2022. Signed by Magistrate Judge Stephanie K. Bowman on 8/2/2022. (km)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:21-cv-496
COMMISSIONER OF SOCIAL SECURITY,
REPORT AND RECOMMENDATION
Plaintiff Lisa C. filed this Social Security appeal in order to challenge the
Defendant’s finding that she is not disabled. See 42 U.S.C. § 405(g). Proceeding through
counsel, Plaintiff presents two claims of error for this Court’s review. The Commissioner’s
finding of non-disability should be AFFIRMED because it is supported by substantial
evidence in the record as a whole.
I. Summary of Administrative Record
This case represents Plaintiff’s second judicial appeal in this Court. On February
5, 2016, Plaintiff filed an application for Disability Insurance Benefits (“DIB”), alleging she
became disabled on July 28, 2015, based upon a combination of physical and mental
impairments. After her claim was denied initially and upon reconsideration, Plaintiff
requested an evidentiary hearing before an Administrative Law Judge (“ALJ”). On June
30, 2018, Plaintiff appeared with counsel and gave testimony before ALJ Cristen
Due to significant privacy concerns in social security cases, this Court refers to claimants only by their first
names and last initials. See General Order 22-01.
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Meadows; a vocational expert (“VE”) also testified. (Tr. 41-86). On July 30, 2018, ALJ
Meadows issued an adverse written decision, concluding that Plaintiff was not disabled.
(Tr. 23-36; 865-878).
The Appeals Council initially declined further review. However, after Plaintiff filed
an appeal in this Court, see Case No. 1:19-cv-1069, Plaintiff won remand pursuant to a
joint stipulation of the parties. (Tr. 891-893). Although no specific grounds were cited for
remand by the Court, a subsequent Order dated September 24, 2020 from the Appeals
Council directed the ALJ to re-evaluate the opinions provided by a consulting
On March 30, 2021, ALJ Meadows conducted a new telephonic hearing at which
Plaintiff and a vocational expert again testified. (Tr. 784-818). On April 30, 2021, the ALJ
issued a second adverse decision. After the Appeals Council again declined further
review, Plaintiff filed a second judicial appeal, alleging that the ALJ committed the same
error on remand with respect to the consulting psychologist’s opinions, and committed
further error by rejecting the opinion of her treating psychiatrist. In addition to those two
errors, Plaintiff argues that a fundamental constitutional defect in the statutory structure
of the Social Security Administration requires remand of this case to be decided by a new
ALJ and/or Appeals Council.
Plaintiff was 34 years old on her alleged disability onset date, and remained in the
same “younger individual” age category on the date of the ALJ’s most recent adverse
decision. She has a high school education, with some college, and previously worked as
an order filler at the medium exertional level, as well as a cashier, stocker, and retail
attendant, work which she performed at exertional levels ranging from light to heavy. (Tr.
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774). At the time of her most recent hearing, she testified that she was living with her
parents and her ten-year-old daughter. (Tr. 792).
The ALJ determined that Plaintiff had engaged in work activity after her alleged
onset date, in both 2016 and from 2019-2020, but that her earnings fell slightly below the
“substantial gainful activity” level. Specifically:
The claimant earned $10,229 in 2016 from Amazon, $828 in 2019 from
Rural King, $5,368 from Clossman Catering, $1,770 in 2019 from O’Reilly
Auto Enterprises, and $13,153 in 2020 from RK Administrative Services
(Rural King) (14D, pp. 3-4). The claimant testified to currently working
twenty hours a week, earning $11.00 an hour in the food department at
Rural King since December 2019. Prior to Rural King in 2019, the claimant
testified to working at Clossman Catering, putting away returns for three
months. She testified that she worked twenty to twenty-four hours a week
and earned $10.00 an hour.
In her most recent decision, the ALJ found that Plaintiff has severe impairments of
“diabetes mellitus, degenerative disc disease, tendinitis of the shoulders, carpal tunnel
syndrome, periodic limb movement disorder, depressive disorder, anxiety disorder, and
personality disorder.” (Tr. 763). In addition, the ALJ found non-severe impairments of
obesity, obstructive sleep apnea, hypertension and alcohol use disorder. (Id.) The ALJ
further determined that none of Plaintiff’s impairments, either alone or in combination, met
or equaled any listed impairment in 20 C.F.R. Part 404, Subpt P, Appx. 1, such that
Plaintiff would be entitled to a presumption of disability. (Tr. 764).
The ALJ next determined that Plaintiff could perform light work, subject to the
following limitations, throughout the disability period:
[S]he can frequently climb ramps and stairs, but can never climb ladders,
ropes, or scaffolds. The claimant can frequently stoop, kneel and crouch.
She can never crawl. She can frequently reach overhead, frequently
perform front/lateral reaching with the bilateral upper extremities. The
claimant can understand, remember, and carry out simple, routine tasks in
an environment without any fast-paced tasks or strict quotas, such as
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assembly line work. She should have no interaction with the general public
and occasional interaction with coworkers and supervisors. The claimant
should do no joint tasks and no over-the-shoulder supervision. She should
work in an environment with changes in the job setting or job duties
occur[ring] no more than once per month, where changes are explained in
Based upon her RFC and testimony from the vocational expert, the ALJ concluded
that Plaintiff could not perform her prior work but still could perform other jobs that exist
in significant numbers in the national economy, including hand sorter or grater,
housekeeper, and inspector tester. (Tr. 776). Therefore, the ALJ determined that Plaintiff
was not under a disability through the date of her decision. (Tr. 777).
In this judicial appeal, Plaintiff does not challenge the assessment of her physical
RFC limitations. However, Plaintiff argues that the ALJ erred in assessing mental RFC
limitations by improperly evaluating the opinions of a treating psychiatrist, Dr. Peter Boxer,
and of an examining psychological consultant, Andrea Johnson, Psy.D. In addition,
Plaintiff separately challenges the statutory structure of the Social Security agency as
violative of the separation of powers, such that the Commissioner’s delegation of authority
to the ALJ and the subsequent adverse decision in this case cannot be upheld.
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a “disability.” See 42 U.S.C.
§1382c(a). Narrowed to its statutory meaning, a “disability” includes only physical or
mental impairments that are both “medically determinable” and severe enough to prevent
the applicant from (1) performing his or her past job and (2) engaging in “substantial
gainful activity” that is available in the regional or national economies. See Bowen v. City
of New York, 476 U.S. 467, 469-70 (1986).
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When a court is asked to review the Commissioner’s denial of benefits, the court’s
first inquiry is to determine whether the ALJ’s non-disability finding is supported by
42 U.S.C. § 405(g).
Substantial evidence is “such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971) (additional citation and internal quotation
omitted). In conducting this review, the court should consider the record as a whole.
Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports
the ALJ’s denial of benefits, then that finding must be affirmed, even if substantial
evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35
F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary’s findings are not subject to reversal merely because
substantial evidence exists in the record to support a different conclusion....
The substantial evidence standard presupposes that there is a ‘zone of
choice’ within which the Secretary may proceed without interference from
the courts. If the Secretary’s decision is supported by substantial evidence,
a reviewing court must affirm.
Id. (citations omitted); see also Biestek v. Berryhill, 139 S. Ct.1148, 1154 (2019) (holding
that substantial evidence is evidence a reasonable mind might accept as adequate to
support a conclusion and that the threshold “is not high”).
In considering an application for supplemental security income or for disability
benefits, the Social Security Agency is guided by the following sequential benefits
analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial
gainful activity; at Step 2, the Commissioner determines if one or more of the claimant’s
impairments are “severe;” at Step 3, the Commissioner analyzes whether the claimant’s
impairments, singly or in combination, meet or equal a Listing in the Listing of
Impairments; at Step 4, the Commissioner determines whether or not the claimant can
still perform his or her past relevant work; and finally, at Step 5, if it is established that
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claimant can no longer perform his or her past relevant work, the burden of proof shifts to
the agency to determine whether a significant number of other jobs which the claimant
can perform exist in the national economy. See Combs v. Com’r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that she is
entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must
present sufficient evidence to show that, during the relevant time period, she suffered an
impairment, or combination of impairments, expected to last at least twelve months, that
left her unable to perform any job. 42 U.S.C. § 423(d)(1)(A).
1. The Constitutional Challenge
For the convenience of the Court, the undersigned first addresses Plaintiff’s
constitutional challenge. Plaintiff brings this challenge on the basis of Seila Law LLC v.
Consumer Financial Protection Bureau, 140 S.Ct. 2183 (2020), a case in which the
Supreme Court held that an organizing statute that made the Consumer Financial
Protection Bureau Director removable only for cause amounted to an unconstitutional
restriction on the president’s authority to remove the head of an agency, and therefore
violated the separation of powers. See Seila Law, 140 S. Ct. at 2197. Plaintiff argues
that because the Commissioner of Social Security also is not subject to removal by the
President except for “neglect of duty or malfeasance in office,” see 42 U.S.C. § 902(a)(3),
the structure of the SSA also violates the separation of powers.
The Commissioner concedes that 42 U.S.C. § 902(a)(3) violates the separation of
powers “to the extent that it is construed as limiting the President’s authority to remove
the Commissioner without cause.” (Doc. 10 at 12, citing Office of Legal Counsel, U.S.
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Dept. of Justice Constitutionality of the Commissioner of Social Security’s Tenure
Protection, 2021 WL 2981541 (July 8 , 2021) (“OLC OP.”). However, relying upon a more
recent separation of powers case, Collins v. Yellen, ___ U.S. ___, 141 S. Ct. 1761 (2021),
the Commissioner maintains that Plaintiff is not entitled to reversal or remand of the nondisability decision because she was not harmed by the unconstitutional restriction on the
president's removal authority.
In Collins, a plaintiff alleged that the leadership structure of the Federal Housing
Finance Agency was unconstitutional because - as alleged here and in Seila Law - the
sole head of that agency was removable by the President only for cause. Despite the
unconstitutionality of the removal provision, the Supreme Court clarified in Collins that a
plaintiff cannot obtain retrospective relief without showing that the “unconstitutional
provision… inflict[ed] compensable harm.” Id., 141 S. Ct. at 1789. The Collins majority
reasoned that unlike an unlawful appointment of an agency head, “the unlawfulness of [a]
removal provision” “does not strip [an official] of the power to undertake the other
responsibilities of his office.” Id. at 1788 n. 23. “As a result…there is no reason to regard
any of the actions taken” by an agency during the period in which an unconstitutional
removal provision was in effect “as void” absent a specific showing of injury. Id. at 1787.
Since the publication of Seila Law and Collins, the arguments presented by the
parties in this case have been made in similar cases before many district courts within
the Sixth Circuit, as well as on a national level. In a persuasive published decision that
is directly on point, the Ninth Circuit rejected arguments that the constitutional infirmity of
§ 902(a)(3) supports remand in social security cases absent a non-speculative and
particularized showing of “actual injury” by the claimant in question. Kaufmann v. Kijakazi,
32 F.4th 843, 850 (9th Cir. 2022) (rejecting claim by plaintiff whose appeal to the Appeals
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Council was denied while Commissioner Saul served under an unconstitutional removal
provision). The Kaufmann court affirmed the denial of relief because the plaintiff did not
show, for example, that the President took an interest in her claim, or that the
Commissioner directed the Appeals Council to act in a certain way relative to her claim.
And the plaintiff’s contention that her claim might have been decided differently was too
speculative to show a particularized actual injury. Id.
The Sixth Circuit has not yet decided a similar case in the social security context,
but recently cited Kaufmann with approval when it rejected a similar claim by a plaintiff
who was challenging an action by the FDIC. See Calcutt v. Federal Deposit Insurance
Corporation, 37 F.4th 293 (6th Cir. 2022). Even more tellingly, every district judge and
magistrate judge within the Sixth Circuit who has been presented with Plaintiff’s argument
in scores of cases decided to date has rejected it. See, e.g., Heidi J. D. v. Com’r of Soc.
Sec., 2022 WL 1555108, at *6 (S.D. Ohio May 17, 2022), adopted at 2022 WL 2187238
(S.D. Ohio Jun 17, 2022); Sandra S. v. Com’r of Soc. Sec., 2022 WL 486311 (S.D. Ohio
Feb. 17, 2022), adopted at 2022 WL 2154921 (S.D. Ohio June 15, 2022); Alec F. v. Com’r
of Soc. Sec., 2022 WL 278307, at *5 (S.D. Ohio Jan. 31, 2022), adopted at 2022 WL
884022 (S.D. Ohio March 25, 2022); Crawford v. Com'r of Soc. Sec., 2021 WL 5917130,
at *8 (S.D. Ohio Dec. 14, 2021), adopted at 2022 WL 219864 (S.D. Ohio Jan. 25, 2022).
In addition to Kauffman and the growing body of unpublished case law within the Sixth
Circuit, the undersigned finds persuasive the reasoning of a published district court case
in this circuit that addresses this same issue, Rhouma v. Com’r of Soc. Sec., ___ F.
Supp.3d ___, 2021 WL 5882671, at *10-11 (N.D. Ohio Dec. 13, 2021).
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In Rhouma, the court held that the plaintiff lacked standing to challenge the
constitutionality of the SSA's structure based upon her inability to demonstrate any actual
Rhouma argues that she has standing because her administrative
proceedings were conducted pursuant to polices and regulations
implemented by [Commissioner] Saul. … But that's not enough. “[T]he
unlawfulness of the removal provision does not strip the [Commissioner] of
the power to undertake the other responsibilities of his office.” Collins, 141
S. Ct. at 1788 n.23. As Justice Thomas's concurring opinion clarifies,
Rhouma must do more than point to a conflict between 42 U.S.C. §
902(a)(3) and the Constitution; she must show some action on the part of
Saul that was unlawful and harmful to her. See id. at 1790-91 (Thomas, J.,
concurring). More to the point, Rhouma must show that the policy and
regulatory changes implemented by Saul adversely affected her. See Lujan
v. Defenders of Wildlife, 504 U.S. 555, 559 n.1, 112 S.Ct. 2130, 119 L.Ed.2d
351 (1992) (“[T]he injury must affect the plaintiff in a personal and individual
Id., 2021 WL 5882671, at *11. Like the plaintiff in Rhouma, Plaintiff here lacks standing
because she is unable to demonstrate any actual injury.3 Accord, Walker v. Com’r of Soc.
Sec., 2022 WL 1266135, at *5 (N.D. Ohio April 28, 2022) (holding that plaintiff lacked
standing, distinguishing unpublished caselaw outside the Sixth Circuit holding to the
contrary). Because Plaintiff is unable to demonstrate any particularized injury resulting
from the issuance of an adverse decision during the time in which Commissioner Saul
served, the undersigned finds no need to address the parties’ alternative arguments.
Rhouma noted that even though the Commissioner had not used the term “standing,” its argument that
the plaintiff had not established a “nexus” between the removal restriction and alleged harm to the plaintiff
had “effectively argued” that plaintiff could not meet “the traceability requirement for standing.” Id. at *10.
The Commissioner makes the same “nexus” argument in this case.
Citing to circumstantial evidence, Plaintiff asserts that President Biden “would have fired Commissioner
Saul immediately upon taking office had he believed it was legal,” (Doc. 12 at 6), and delayed firing him
only until the Department of Justice issued its opinion confirming that the removal restriction violated the
separation of powers. But Plaintiff’s argument that Commissioner Saul lacked any authority at all after
President Biden took office ignores the contrary holding of Collins that only an improper appointment can
have such effect. Plaintiff further hypothesizes that a different Commissioner might have implemented new
policies or directed Appeals Council judges to decide cases in a manner that could have impacted the
outcome of her claim. As discussed by the Ninth Circuit in Kauffman and by the district court in Rhouma,
such speculative musings are insufficient to demonstrate actual injury or standing.
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2. The ALJ’s Assessment of the Mental RFC Opinion Evidence4
In addition to her constitutional claim, Plaintiff argues that this Court should reverse
based upon errors made by the ALJ in the evaluation of two opinions concerning her
mental RFC limitations. Because Plaintiff filed her claim for DIB before new regulations
took effect on March 27, 2017, an earlier set of regulations applies to her case. The prior
regulations provide for an order of hierarchy in the evaluation of medical opinion
evidence, with the opinions of treating physicians to be given the most weight, and the
opinions of examining consultants to be given greater weight than the opinions of nonexamining consultants.
a. Dr. Boxer
Plaintiff argues first that the ALJ erred in evaluating the opinions of her treating
psychiatrist, Dr. Peter Boxer. The regulation that applies to this claim states: “If we find
that a treating source's opinion on the issue(s) of the nature and severity of your
impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case record,
we will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2); see also Warner v. Com'r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). The treating physician rule requires ALJs
to give “greater deference to the opinions of treating physicians than to the opinions of
non-treating physicians.” See Blakley v. Com'r of Social Security, 581 F.3d 399, 406 (6th
Cir. 2009). Notably, the rule is not without exceptions. Thus, controlling weight need not
The undersigned’s review of this claim was made more difficult by Plaintiff’s citation to PageID numbers
without citation to Transcript page numbers. Counsel is reminded that in social security cases, counsel is
required to cite to the Administrative Transcript. See Local Rule 8.1.A (d) “When citing to the administrative
record in Social Security cases, parties must provide pinpoint citations to the administrative record,
regardless of whether a party also chooses to provide PageID citations.”
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be given to a treating source's medical opinion that is not “well supported by medically
acceptable clinical and laboratory diagnostic techniques” or that is “inconsistent with the
other substantial evidence in the record.” However, a separate articulation requirement
requires ALJs to provide “good reasons” when less-than-controlling weight is given to the
opinion of a treating physician. See 20 C.F.R. § 404.1527(c)(2).
In the case at hand, Plaintiff argues that the ALJ “skipped the first step of the
treating source rule” by failing to first articulate whether Dr. Boxer’s opinions were entitled
to controlling weight before moving on to the “good reasons” analysis. (Doc. 12 at 2; see
also Doc. 8 at 10-11). It is true that the ALJ did not separately and explicitly first state
that she was declining to give “controlling weight” to Dr. Boxer before stating that she was
giving “little weight” to his opinions. But the undersigned does not read controlling Sixth
Circuit case law or the regulations to mandate a rigidly bifurcated articulation of
the controlling weight and non-controlling weight analyses.5 In fact, the Sixth Circuit has
never required any particular format or number of sentences to satisfy the “good reasons”
standard, so long as the explanation is sufficient for this Court to understand the basis for
the ALJ's decision. Accord Allen v. Com'r of Soc. Sec., 561 F.3d 646, 651 (6th Cir.
2009) (affirming after concluding that ALJ's one-sentence rejection of treating physician's
opinion satisfied the “good reasons” requirement); Smith v. Com'r of Soc. Sec., 482 F.3d
873, 877 (6th Cir. 2007) (approving ALJ's decision declining to give treating sources
The undersigned acknowledges that several unpublished cases cited by Plaintiff have held to the contrary.
See, e.g., Lutz v. Com’r of Soc. Sec., No. 3:16-CV-210, 2017 WL 3140878, at *3 (S.D. Ohio July 25, 2017),
adopted at 2017 WL 3432725 (S.D. Ohio Aug. 9, 2017) (holding that the failure to first articulate why a
treating physician’s opinions are not entitled to controlling weight prior to separate articulation of the “good
reasons” analysis constitutes reversible error. While a separate two-step articulation may be preferred, the
undersigned disagrees that formal two-step articulation is required in every case. The regulatory language
does not dictate the manner of articulation other than stating that it must constitute “good reasons” after
consideration of additional factors.
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controlling weight where ALJ's decision stated that sources' reports were “inconsistent
with the overall evidence of record” and sources formed their opinion solely from
claimant's subjective symptoms); Stiltner v. Com’r of Soc. Sec., 244 Fed. Appx. 685, 690,
2007 WL 2264414, at *5 (6th Cir. 2007) (holding that ALJ’s decision to give “little weight”
to treating physician was supported by a “lengthy and thorough discussion of all of the
relevant evidence” which is “all that we require.”).
When an ALJ does not give controlling weight to a treating physician, as occurred
in this case, the Sixth Circuit has explained that the “good reasons” requirement ensures
that the stated reasons are
supported by the evidence in the case record, and …. 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.”
Soc. Sec. Rul. No. 96–2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July
2, 1996). This procedural requirement “ensures that the ALJ applies
the treating physician rule and permits meaningful review of the ALJ's
application of the rule.
Gayheart v. Com'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (quoting Wilson v.
Com’r, 378 F.3d 541, 544 (6th Cir. 2004); accord Hargett v. Com’r of Soc. Sec., 964 F.3d
546, 552 (6th Cir. 2020) (“[A]n ALJ may not summarily discount a treating-source opinion
as not well-supported by objective findings or being inconsistent with the record without
identifying and explaining how the substantial evidence is purportedly inconsistent with
the treating-source opinion.”).
Considering the ALJ’s analysis of Dr. Boxer’s opinions and of the record as a whole
in this case, it is sufficiently clear to the undersigned that the ALJ: (1) recognized Dr.
Boxer as a treating provider; (2) declined to give Dr. Boxer’s opinions controlling weight
because she found his opinions to be not well-supported by medically acceptable clinical
techniques and also inconsistent with other substantial evidence; and (3) adequately
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articulated “good reasons” for giving his opinions “little weight,” including by discussing
the substantial evidence throughout the record (including many objective clinical records)
that stood in stark contrast to Dr. Boxer’s otherwise unsupported and extreme opinions.
The record includes six treatment records from Dr. Boxer close in time to when he
rendered the opinions on which Plaintiff relies, dating from March 2016 through June
2018. On March 10, 2016, Dr. Boxer saw Plaintiff for the first time. He noted she was
transferring care from her primary care physician, with a reported history of being
depressed “for much of her life” with “episodic suicidal thoughts since high school.” (Tr.
604). Despite “chronically low energy,” she was walking an hour daily for exercise. (Id.)
She had never engaged in self-injurious behavior or attempted suicide and denied
physical aggression toward others. (Id.) She reported longstanding conflicts with her
“hypercritical” mother with whom she was living, including over parenting of her daughter
(then 5). (Id.) She reported having gotten married the day before to a man she had
known since middle school, and that she had been working at the Amazon warehouse
but had quit her job recently due to her diabetes and had applied for disability. (Id.)
Objectively, Dr. Boxer noted she was on time, alert and fully oriented, with feelings
of mistrust “bordering on vague paranoid ideation, but no frank delusions.” (Tr. 605). He
diagnosed persistent depressive disorder and subsyndromal PTSD based upon her
presentation and reported history. He prescribed Effexor and Buspirone and stressed the
importance of psychotherapy, asking her to follow up for a medication check in 2 weeks.
(Id., see also Tr. 770).
At her follow-up visit on March 22, 2016, Plaintiff reported continuing to feel
anxious and that she was biting her nails, which she described as “a longstanding habit.”
(Tr. 601). Dr. Boxer noted that she was angry with her mother and that she was also
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angry that her ex-husband had been ordered to Talbert House for treatment of his drug
addiction. Dr. Boxer noted she had not been compliant with timing the medications he
had prescribed, but that she “rejects any suggestions” to improve her compliance. (Id.)
He added probable personality disorder to her list of diagnoses. (Id.)
On May 24, 2016, a social worker with whom Plaintiff apparently had begun
therapy,6 Ryan Lenz, completed a disability questionnaire stating that Plaintiff is “very
depressed” and “has flat affect.” The form invites the treating source to provide narrative
descriptions of functional “limitations” such as concentration/persistence/pace, memory,
confusion, frustration tolerance, etc.” (Tr. 299). Rather than offering any specific RFC
opinions, Mr. Lenz observes that Plaintiff “presents as very angry and easily frustrated,”
and that her depression, anger, frustration and anxiety “complicate virtually all activities”
in her life and “make self care more difficult.” (Id.) In response to a query asking for details
of “significant problems with social interactions…as it would relate to the general public
or coworkers/supervisors,” Mr. Lenz opines that Plaintiff “fails to interact respectfully and
appropriately due to [symptoms].” (Tr. 299).
Mr. Lenz concludes with a “disability”
statement: “I do not believe client could tolerate stress of employment due to symptoms.”
(Tr. 300). Although the record includes only the two March 2016 examinations by Dr.
Boxer, Dr. Boxer endorsed the social worker’s May 24, 2016 opinions by signing off that
he had reviewed them and “agree[d].” (Tr. 298).
There are no 2016 treatment notes or any records from Mr. Lenz prior to the date of his May 24, 2016
disability form, but he states on the form that Plaintiff began mental health treatment in February 2016.
Despite that notation, the earliest mental health record supplied to the ALJ was the March 10, 2016 initial
evaluation by Dr. Boxer. See generally, Doc. 6-7, Exh. 11F, Tr. 571-610 (identified as records from 3/1/16
through 6/13/18 from Community First Behavioral).
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Other than the concluding “disability” statement, the “opinions” expressed on the
March 2016 questionnaire are extremely vague, suggesting only that Plaintiff may not
interact appropriately with others.
Arguably, the mental RFC as determined
accommodates that opinion insofar as the ALJ minimized the work stress and social
interactions with which Mr. Lenz (and by extension Dr. Boxer) expressed concern. Thus,
the ALJ limited Plaintiff to “simple, routine tasks in an environment without any fast-paced
tasks or strict quotas,” with minimal job changes, “no interaction with the general public
and occasional interaction with coworkers and supervisors,” and “no joint tasks and no
over-the-shoulder supervision.” (Tr. 766).
A week after signing off on Mr. Lenz’s disability form, on May 31, 2016, Dr. Boxer
saw Plaintiff a third time to evaluate the effectiveness of her medications. At that time
Plaintiff reported a high level of anxiety stemming from a “recent incident when boyfriend
threw things at her head, threatened to kill her.” (Tr. 577). She reported that he was now
in jail and that she had obtained a temporary protective order which she was planning to
go to court later in the week to extend. Plaintiff expressed concern that he would try to
harm her once he was released from jail.
Dr. Boxer wrote:
“Given her current
circumstances, she says that she ‘doesn’t know’ if the antidepressant is helping, which is
understandable.” (Id.) Dr. Boxer modified her medications.
The record contains an intervening psychotherapy note from Mr. Lentz, dated
January 24, 2017, following Plaintiff’s May 31, 2016 visit with Dr. Boxer and before her
next documented visit with that physician.7 Mr. Lentz’s January 24, 2017 note states that
Plaintiff was ‘quiet and calm” and had “nothing to talk about” but reported she had been
Plaintiff erroneously refers to this record as originating from Dr. Boxer. (Doc. 8 at 3, 12).
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spending time with her daughter at times. She also reported being “frustrated about not
getting disability yet.” (Tr. 581). Objectively, Mr. Lentz described her appearance as
casual and neat, with cooperative behavior, “clear and coherent” thought process and no
abnormalities in thought. (Id.) The only notable findings were a “constricted” affect and
“angry/irritable” mood, with “limited” insight and fair judgment. (Tr. 582). The record
reflects that Plaintiff was making progress toward her therapy goals. (Tr. 771).
On March 30, 2017, Plaintiff followed up with Dr. Boxer for a fourth visit. She
subjectively reported she remained depressed with “thoughts of ‘not wanting to be here’,
but no active SI [suicidal ideation].” (Tr. 575). She described ongoing conflict with her
mother over parenting issues with her six-year-old, and stated she feels “tired” despite
getting 8 hours of sleep. Dr. Boxer added a medication (Cytomel) to help improve
Plaintiff’s mood and directed her to follow up in 6 weeks. He noted she appeared tired
and dejected, but that she was calm, with normal speech, focused thought process and
no abnormalities in perception. (Id.) Although depressed, her affect was stable. (Tr.
On April 25, 2017, a second therapy note from Mr. Lentz8 states that Plaintiff was
“angry and frustrated.” Despite negative thinking, she had “no thoughts of self harm or
harming others.” (Tr. 585).
Objectively, Mr. Lenz again noted that Plaintiff was
cooperative, with clear and coherent thoughts, no perceptual disturbances and no
abnormalities of thought. (Id.) Her affect was “constricted” with an “elevated” mood and
with her insight improved to “adequate.” She was fully oriented with fair judgment, and
had made “some progress” toward her goals. (Tr. 585-86).
Plaintiff again erroneously attributes Mr. Lentz’s therapy note to Dr. Boxer. (Doc. 8 at 3, 12).
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On June 28, 2017, Plaintiff followed up with a fifth visit to Dr. Boxer. She reported
feeling more anxious and depressed since learning that her ex-husband was out of prison
and in a halfway house in Lebanon, and was concerned he would come to her house
even though she had a restraining order. (Tr. 598). She had not recently seen a therapist
but stated she had an upcoming appointment. She declined Dr. Boxer’s medication
recommendation to address her feelings of paranoia and stated she would like to try
buproprion instead. (Tr. 598). Dr. Boxer noted that Plaintiff frequently interrupted him
and had paranoid ideation “but [was] not delusional,” with a mood described as depressed
and irritable. (Tr. 598-99). He prescribed the buproprion she requested.
No further treatment records from Dr. Boxer appear before he completed an April
11, 2018 medical source statement in which he opined that Plaintiff has many “marked”
and “extreme” functional limitations, with those terms defined on the attorney-supplied
form in a manner that arguably would be work-preclusive.9 (Tr. 505-507). Dr. Boxer also
checked “yes” that Plaintiff is “likely to have partial or full day unscheduled absences from
work occurring 5 or more days per month due to the diagnosed conditions and/or side
effects of medication,” and that her condition “would likely deteriorate” if placed under the
stress of full time work. (Tr. 507). He further opined that her limitations had not changed
since July 28, 2015, despite the fact that he did not start treating her until 2016. (Id.)
One additional record from Dr. Boxer is dated June 6, 2018, shortly after his
medical source statement. That record notes that Plaintiff appeared on time with fair
grooming and no psychomotor agitation. As the ALJ pointed out, the same record reflects
For example, the form defines “marked” impairment as a complete inability to function “from 26% to 50%
of the work day or work week” and “extreme” impairment as a complete inability to function “more than
50%” of the work day or week.
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Dr. Boxer’s objective clinical observations that Plaintiff possessed “normal speech,
normal content of thoughts, normal abstract reasoning, and linear and logical associations
(Tr. 771, citing Tr. 593-594).
As discussed by the ALJ, Dr. Boxer’s April 2018 opinion form was a “check-thebox” form “with no citation to the objective findings relied upon in making these
determinations.” The ALJ’s full analysis of Dr. Boxer’s May 2016 and April 2018 opinions
reads as follows:
[L]ittle weight was given to Dr. Peter Boxer, who found some extreme
mental health limitations (2F, pp.2-4; 7F, pp.1-3). In May 2016, Dr. Boxer
completed a disability questionnaire in which he concluded that the claimant
could not tolerate the stress of employment due to symptoms (2F, p.4).
However, Dr. Boxer indicated that the claimant just started treatment in
February 2016 (2F, p.3). In addition, the only clinical findings provided were
“very depressed” and “flat affect” (2F, p.3). Then, in April 2018, Dr. Boxer
completed a medical source statement, which noted multiple marked or
extreme limitations (7F, pp.1-3). For example, Dr. Boxer concluded that the
claimant had an extreme limitation in the ability to accept instruction or
respond appropriately to criticism from supervisors or superiors (7F, p.1). In
addition, Dr. Boxer opined that she had a marked limitation in the ability to
process subjective information accurately and to use appropriate judgment
(7F, p.2). Further, Dr. Boxer concluded that she had a marked limitation in
the ability to behave predictably, reliably and in an emotionally stable
manner (7F, p.2). However, this was a check-the-box form with no citation
to the objective findings relied upon in making these determinations (7F,
pp.1-3). In the comment section, Dr. Boxer stated that the claimant “has
chronic depression with frequent, episodic exacerbation. Her mood can be
quite labile. She has longstanding mistrust of others, and is prone to
misinterpret others’ actions, which can lead to her becoming verbally
aggressive” (7F, p.3). I gave little weight to Dr. Boxer’s opinions, which must
have relied heavily on the claimant’s subjective reports of functioning, as
his treatment records do not contain objective findings to support such
extreme limitations. In addition, Dr. Boxer’s opinions are inconsistent with
longitudinal treatment record and the claimant’s ability to work slightly below
substantial gainful activity during the pertinent time period of this decision
(18F, pp.67-69; 14D, pp.3-4, for example).
In addition to the above analysis explaining why she gave “little weight” to Dr.
Boxer’s opinions, the ALJ cited to a multitude of mental health records as well as
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employment records that provided substantial longitudinal evidence in direct conflict with
Dr. Boxer’s opinions. See Jones v. Com'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003)
(“If the treating physician's opinion is not supported by objective medical evidence, the
ALJ is entitled to discredit the opinion as long as [she] sets forth a reasoned basis for her
Here, the ALJ noted that Plaintiff’s mental health treatment had been
conservative, consisting solely of medication provided by her primary care provider prior
to starting formal mental health treatment in March 2016, which was “one month after
filing her application for disability.” (Tr. 772) Although Plaintiff initially engaged in therapy
as recommended by Dr. Boxer, she later discontinued therapy, stating that “she doesn’t
have time.” (Tr. 772; see also Tr. 1062 (5/28/19 report that her job at auto parts store
made it too difficult to schedule counseling)). Reviewing therapy notes, the ALJ noted
that “a lot of the [therapy] treatment focuses on her relationship and feelings towards her
ex-husband,” but that during that same time period, Plaintiff’s “mental status examinations
…repeatedly documented normal speech, normal thought processes, linear and logical
associations, and intact recent and remote memory.” (Tr. 772).
physicians “consistently noted that the claimant presented with normal mood and affect,
normal behavior, and normal judgment and thought content.”
(Id., citing multiple
Attempting to undermine this wealth of objective clinical evidence, Plaintiff points
to a brief narrative section of the April 2018 check-box form in which Dr. Boxer offered
the following explanation for the extreme limitations he endorsed:
She continues to have unpredictable episodes of depression which impair
her daily functioning. She responds with intense anger when under stress.
I do not know if this has occurred in a work situation.
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Patient has chronic depression with frequent, episodic exacerbations. Her
mood can be quite labile. She has longstanding mistrust of others and is
prone to misinterpret others’ actions, which can lead to her being verbally
aggressive. She is also impulsive and, in my opinion, would be quick to
respond to perceived criticism with anger & flight, at best, and possibly with
(Tr. 507) (emphasis added).
The ALJ explained why she considered Dr. Boxer’s narrative explanation to be
inadequate support for the limitations he endorsed, which were unsupported by any
medically acceptable clinical observations made by Dr. Boxer in his treatment records.
The ALJ further pointed out that Dr. Boxer’s mental RFC limitations were inconsistent with
other substantial evidence in the record, including but not limited to Plaintiff’s extensive
work history. While Dr. Boxer diagnosed chronic depression, many people with anxiety
and depression remain capable of full-time employment. The ALJ noted evidence that
Plaintiff had been able to maintain work activity only “slightly below” SGA since her
alleged onset date, and reported her work hours were reduced to 24 hours per week due
to cut-backs related to Coronavirus rather than any health conditions. (Tr. 765). Plaintiff’s
relatively long-term prior employment (seven years at Amazon with prior employment at
Walmart for nine years) also undercut subjective reports of severe work limitations since
2015 as Dr. Boxer suggested. (Tr. 770). In fact, despite reporting a “significant history
of interpersonal problems with supervisors and coworkers,” she also reported that she
had never been fired from a job. (Tr. 304). And she told Dr. Boxer that she quit her most
recent Amazon job due to diabetes - not mental health symptoms.10 See also Manning
Three months later in June 2016, Plaintiff gave a different report to the consulting psychologist. At that
time, she stated that she took a leave from Amazon in 2015 “because ‘my depression was getting bad and
I hurt my shoulder’” and later took a “buyout” in February 2016 for unspecified reasons. (Tr. 304). She also
more generally reported that she could not work because she could not “concentrate because my
depression is so bad.” (Id.)
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v. Com’r of Soc. Sec., 2018 WL 6011146, at *6 (S.D. Ohio Nov. 16, 2018) (treating
physician’s check-box opinions conflicted with plaintiff’s reported history of steady parttime work), adopted at 2019 WL 3975867 (S.D. Ohio Aug. 22, 2019).
The ALJ’s conclusion that Dr. Boxer’s opinions were inconsistent with other
substantial evidence in the record is strongly supported. For example, the ALJ noted
objective clinical observations throughout the record that “repeatedly documented that
the claimant presented with normal mood and affect, normal behavior, and normal
judgment and thought content (4F, p.14; 13F, pp.6-7, p.16; 20F, p.48, p.65, p.73)” and
treatment records that documented that Plaintiff “appeared alert and oriented, and
demonstrated intact attention and concentration. (Tr. 765). In addition to her discussion
of treatment records close in time to Dr. Boxer’s opinions, the ALJ provided an extensive
discussion of later mental health treatment records – an additional body of substantial
evidence that conflicts with Dr. Boxer’s 2016 and 2018 opinions.
In January 2019, the claimant attended individual counseling with Patricia
Habenicht, LSW, at Community Behavioral Health (15F, p.40). The claimant
presented with appropriate appearance, cooperative behavior, normal
thought content, euthymic mood, full affect, clear speech, good judgment,
adequate insight, and appropriate motor activity (15F, pp.40-41). Then, in
May 2019, the record indicated that the claimant stopped attending
counseling due to variations in her work scheduled (15F, p.10).
In April 2020, the claimant saw Ginger Justice, CNP, at Community
Behavioral Health for medication management (18F, p.6). She reported
having a modest reduction in anxiety since starting Clonazepam, and no
anxiety attacks in seven months (18F, pp.8-9). She indicated that she was
only getting twenty-four hours at work due to the Coronavirus (18F, p.9).
The evaluation noted anxious mood, otherwise, generally unremarkable
findings with normal speech, average vocabulary, normal thought
processes, linear and logical associations, intact recent and remote
memory, fair insight and judgment, and full orientation (18F, p.11-12).
Then, in July 2020, the claimant’s care was transferred to Erin Ackerman,
CNP, at Community Behavioral Health (18F, p.28). The evaluation
documented that the claimant was well groomed, engaged well with the
examiner, and often used humor (18F, p.28). The claimant described
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working full time at Rural King, even throughout the pandemic (18F, p.28).
The record noted that she had been switched to Topamax and Lamictal,
which was working well to control her mood (18F, p.28). The claimant
reported being pleased with the current dose, and denied any anxiety
attacks in eight months (18F, p.28).
Following, in December 2020, treatment records from Erin Ackerman, CNP,
noted that the claimant reported no anxiety attacks but increased
depression for a couple of weeks (18F, p.56). The claimant appeared
friendly, cooperative, and engaged well with the examiner (18F, p.56). Ms.
Ackerman encouraged the claimant to restart therapy, but she stated, “she
doesn’t have time” (18F, p.56). The claimant was assessed with persistent
depressive disorder, anxiety disorder, subsyndromal posttraumatic stress
disorder, and borderline personality disorder (18F, p.56).
Furthermore, the claimant returned to Erin Ackerman, CNP, in January
2021, which documented depressed mood and flat affect, otherwise
generally unremarkable findings with normal speech, normal thought
processes, normal thought content, fair judgment, fair insight, intact
memory, intact attention and concentration, intact fund of knowledge, and
intact ability to follow instruction (18F, pp.67-69). Ms. Ackerman made no
medication changes, but again advised to restart therapy (18F, p.68).
Overall, the evidence of record failed to show that the claimant was
precluded from the performance of all work. Conversely, the claimant has
worked as a cleaner and catering helper at the light exertional level since
the alleged onset (14D, pp.3-4; Testimony). Although, this work activity was
slightly under substantial gainful activity, it does suggest that her
impairments are not as limit[ing] as alleged.”
The handful of records on which Plaintiff relies do not undercut the substantial
evidence on which the ALJ relied to support the “little weight” she gave to Dr. Boxer’s
RFC opinions. For example, Plaintiff points to a single record from her primary care
physician dated September 28, 2015 in which she reported “delusional thoughts and
admitted to having homicidal thoughts.” (Doc. 8 at 3). However, the cited record indicates
only a subjective report of “delusional thoughts since she was 16” years old (long before
her alleged onset of disability), and “occasional” homicidal thoughts towards her exhusband “but no plan and reports she would never do it.” (Tr. 346 (emphasis added)).
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There is no other evidence in the record that Plaintiff was delusional at any point, and Dr.
Boxer’s records clearly refute that alleged symptom.
Plaintiff also cites to more recent mental health records that she contends provide
substantial evidence for Dr. Boxer’s opinions. Again, the undersigned’s close review of
the cited records finds no support to overcome the substantial evidence on which the ALJ
relied. In the interest of judicial economy, I will not detail every citation. However, by way
of one example, Plaintiff cites to a January 2019 record by Dr. Boxer that includes his
diagnoses of depression and anxiety. (Doc. 8 at 3, 13, citing PageID 1264). The cited
page also includes the narrative comment that Plaintiff suffers only from “mild
depression.” (Tr. 1230). And Dr. Boxer notes in the same record that “[t]oday pt does
not c/o [complain of] depressive symptoms but does report daily episodes of
palpitations/hear fluttering” for which she is scheduled to receive a heart monitor. (Tr.
1226 (emphasis added)). On examination, Dr. Boxer notes objective clinical observations
of normal speech, normal thought processes, linear and logical associations, with no
abnormal or psychotic thoughts, fair judgment and insight, intact recent and remote
memory, full orientation, and average fund of knowledge. (Tr. 1229-30).
For the reasons discussed above, the undersigned concludes that the ALJ
provided “good reasons” for giving “little weight” rather than “controlling weight” to Dr.
Boxer’s March 2016 and April 2018 opinions. However, the undersigned alternatively
concludes that any error was harmless because Dr. Boxer’s extreme “check-the-box”
opinions were “patently deficient” and unsupported by anything in his clinical records or
elsewhere in the record. Accord Holman v. Com’r of Soc. Sec., 2019 WL 696943, at **810 (S.D. Ohio Feb. 20, 2019) (affirming rejection of opinions by two treating physicians
provided on similar forms that redefined “marked” and “extreme” limitations in a manner
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that all-but-guaranteed work-preclusive limitations, collecting and discussing case law in
which similar check box forms have been held to be “patently deficient”), adopted at 2019
WL 2384870 (S.D. Ohio June 6, 2019); Phillips v. Com’r of Soc. Sec., 972 F.Supp.2d
1001, 1008 (N.D. Ohio 2013) (holding that ALJ’s failure to give controlling weight to the
opinions of a treating physician on similar grounds, despite being “very brief” in
articulation, “was clear and made specific reference to exhibits in the record by way of
support”); see also Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (even though
“medical opinions and diagnoses of treating physicians are entitled to great weight [,]”
“the ALJ ‘is not bound by conclusory statements of doctors, particularly where they are
unsupported by detailed objective criteria and documentation’”) (quoting King v.
Heckler, 742 F.2d 968, 973 (6th Cir.1984)).
b. Dr. Johnson
In a second part of her claim regarding the ALJ’s assessment of the opinion
evidence, Plaintiff asserts error in the ALJ’s evaluation of the opinions of the consulting
examiner, state agency psychologist Andrea Johnson, Psy.D.
Recall that after a
stipulated remand from this Court, the Appeals Council directed the ALJ to re-evaluate
Dr. Johnson’s opinions.11 The Appeals Council stated that “the record does not support
the Administrative Law Judge's conclusion that Dr. Johnson's opinion was based on the
claimant's subjective reports, as she evaluated the claimant in June 2016 and her mental
status examination revealed notable findings (see, Exhibit 3F).” (Tr. 897). The Appeals
Council also criticized the ALJ’s initial analysis as providing insufficient rationale to
Plaintiff incorrectly states that this Court remanded “because of the ALJ’s failure to properly evaluate Dr.
Johnson’s expert opinions.” (Doc. 8 at 13). The joint stipulation entered as an order of remand did not
state a basis for the parties’ agreement that the case should be remanded.
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discredit Dr. Johnson’s opinions that “the claimant is likely to have significant difficulties
with job related tasks due to mental health problems, and is unlikely to respond
appropriately to coworkers in a work setting.” (Id.)
Plaintiff asserts that the ALJ committed the same errors identified by the Appeals
Council on remand by referencing Dr. Johnson’s reliance on Plaintiff’s subjective reports.
However, the undersigned finds no reversible error. In her first (remanded) opinion, the
ALJ’s analysis of Dr. Johnson’s opinion was very brief:
[Dr. Johnson] opined that the claimant was likely to show a pattern of
periods of time away from work for mental health reasons, but demonstrated
no difficulties with comprehension of simple material. …Dr. Johnson saw
the claimant only one time, and her opinion is based on the claimant’s
subjective reports, therefore, little weight is given.
On her more recent decision, the ALJ appropriately expanded her analysis:
[I]n June 2016, …, Andrea Johnson, Psy.D., performed a consultative
examination and opined that the claimant presented with intellectual
capacities consistent with functioning in the low average range (3F, p.6).
Dr. Johnson indicated that the claimant performed below average on
memory and recall tasks but demonstrated no difficulties with
comprehension of simple material (3F, p.6). Dr. Johnson stated that the
claimant was able to concentrate on questions and tasks throughout the
evaluation (3F, p.6). In addition, Dr. Johnson opined that the claimant was
likely to show a pattern of periods of time away from work for mental health
reasons (3F, p.6). Dr. Johnson indicated that the claimant’s interaction with
the examiner was adequate, and she maintained distant relationships with
family and friends (3F, p.6). However, Dr. Johnson added that the claimant
had a history of significant interpersonal problems with supervisors and
coworkers and was unlikely to respond appropriately to coworkers in a work
setting (3F, p.7). Dr. Johnson stated that the claimant reported no mental
health treatment history, but was prescribed psychiatric medication to help
manage her symptoms (3F, p.7). Finally, Dr. Johnson stated that based on
the claimant’s self reported history, she was able to respond appropriately
to work stressors and situations (3F, p.7).
I found Dr. Johnson’s opinion largely inconsistent with longitudinal medical
record. For example, treatment records have repeatedly documented that
the claimant presented with normal speech, normal thought processes,
normal thought content, fair judgment, fair insight, intact memory, intact
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attention and concentration, and intact fund of knowledge (18F, pp.11-12,
pp.67- 69). Additionally, Dr. Johnson based large portions of her opinion on
the claimant’s subjective reports, such as the claimant’s report of having
significant interpersonal problems with supervisors and coworkers (3F, p.6).
However, the claimant’s self-reported history of difficulties with supervisors
and coworkers seems inconsistent with her ability to maintain employment
at Amazon for seven years, Wal-Mart for nine years, and Rural King since
December 2019 (3F, p.4). Further, Dr. Johnson found that the overall
interaction with the claimant was adequate (3F, p.7). The claimant’s
treatment providers have also documented that she presented as friendly,
cooperative, and engaged well (15F, pp.40-41; 18F, p.28, p.56).
Consequently, I gave little weight to this opinion.
Plaintiff argues that the above analysis is still too “superficial and cursory” because
Dr. Johnson’s report “documented various mental health symptoms and signs that
supported her diagnoses and opinions.” (Doc. 8 at 14). But Plaintiff points to no specific
evidence that would support any greater limitations. For the reasons discussed, and
based upon the substantial evidence in the record that strongly supports the ALJ’s mental
RFC as determined, the undersigned finds no error in the ALJ’s expanded reasons for
giving “little weight” to Dr. Johnson’s opinions.
In addition, the undersigned notes that Dr. Johnson’s relatively vague 2016
opinions arguably are consistent with most of the mental RFC limitations as determined.
Dr. Johnson opined that Plaintiff is “likely to have significant difficulties with job related
tasks due to mental health problems,” but did not translate that into any specific functional
limitation. (Tr. 306). In the same section containing that opinion, Dr. Johnson opined that
Plaintiff was able to understand and follow directions, had “no difficulties with
comprehension of simple material,” had no difficulties in concentration or pace during the
exam, and would likely have a work pace “similar to that of her work peers.” (Id.,
emphasis added; see also Tr. 307). Noting Plaintiff’s subjective report of difficulty in
maintaining pace at past jobs, Dr. Johnson concluded she is “likely to show a pattern of
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time away from work for mental health reasons.” (Tr. 307). But Dr. Johnson
simultaneously opined that Plaintiff “is able to respond appropriately to work stressors
and situations,” and has “adequate social supports in place to effectively cope with
additional stressors.” (Tr. 308). Apart from Dr. Johnson’s undefined reference to possible
“time away from work,” the ALJ’s limitation to simple unskilled work with only “routine
tasks in an environment without any fast-paced tasks or strict quotas,” and with minimal
job changes, accommodates the limitations that Dr. Johnson suggested.
Noting Plaintiff’s report of difficulties with supervisors and coworkers in the past,
Dr. Johnson also opined Plaintiff “is unlikely to respond appropriately to coworkers in a
work setting.” (Tr. 307). However, Plaintiff stated that she had never been fired from any
job and had taken a buy-out from her most recent long-term job at Amazon. (Tr. 304).
Again, the limitation to “no interaction with the general public and occasional interaction
with coworkers and supervisors,” with “no joint tasks and no over-the-shoulder
supervision” arguably accommodates Dr. Johnson’s opinion by greatly restricting
III. Conclusion and Recommendation
For the reasons stated, IT IS RECOMMENDED THAT the decision of the
Commissioner be AFFIRMED as supported by substantial evidence and that this case be
s/Stephanie K. Bowman _____
Stephanie K. Bowman
United States Magistrate Judge
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
Case No. 1:21-cv-496
COMMISSIONER OF SOCIAL SECURITY,
Pursuant to Fed. R. Civ. P 72(b), any party may serve and file specific, written
objections to this Report and Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s) of
the R&R objected to, and shall be accompanied by a memorandum of law in support of
the objections. A party shall respond to an opponent’s objections within FOURTEEN (14)
DAYS after being served with a copy of those objections. Failure to make objections in
accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S.
140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
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