Lucas v. Commissioner of SSA

Filing 20

REPORT AND RECOMMENDATIONS re 2 Complaint filed by Thomas Lucas; it's recommended SSA decision be affirmed, SSA motion for summary judgment be granted. Objections to R&R due by 4/16/2012. Signed by Magistrate Judge Mark R. Abel on 3/30/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Thomas Lucas, on behalf of Ivy McCoy,
Plaintiff

Michael J. Astrue,
Commissioner of Social Security,
Defendant

Civil Action 2:11-cv-00429

:

v.

:
:

Judge Economus

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Thomas Lucas, on behalf of Ivy McCoy, brings this action under 42
U.S.C. §§405(g) for review of a final decision of the Commissioner of Social Security
denying Ms. McCoy's application for Social Security Disability and Supplemental
Security Income benefits. This matter is before the Magistrate Judge for a report and
recommendation on the parties’ cross-motions for summary judgment.
Summary of Issues. Plaintiff Ivy McCoy filed for Disability Insurance Benefits
and Supplemental Security Income (“SSI”). The administrative law judge issued a
decision and concluded that McCoy had the residual functional capacity to perform a
range of light work, including both her past work as a cashier and other jobs that
existed in significant numbers in the national economy. Ivy McCoy died in 2009 after
requesting that the Appeals Council review the decision of the administrative law
judge. (Doc. 788-89.) Defendant filed an unopposed motion to dismiss plaintiff’s claim
for Supplemental Security Income benefits on the basis that her son, Thomas Lucas, did

not have standing to pursue the Title XVI claim for SSI benefits. On March 7, 2012, the
Magistrate Judge recommended that defendant’s partial motion to dismiss be granted.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge failed to follow the treating physician rule; and,
• The administrative law judge failed to properly evaluate McCoy's credibility.
Procedural History. Plaintiff Ivy McCoy filed her application for disability
insurance benefits on March 30, 2006, alleging that she became disabled on January 31,
2004, at age 40, by lupus, lower back pain, degenerative disc disease, poor vision, heart
condition, "c3, 4, 5, 6, 7-squished", arthritis, bone spurs, high blood pressure, anxiety,
herniated discs at L3, 4, 5, S1. (R. 120, 211-12.) The application was denied initially and
upon reconsideration. Plaintiff sought a de novo hearing before an administrative law
judge. On July 3, 2008, an administrative law judge held a hearing at which plaintiff,
represented by counsel, appeared and testified. (R. 804.) On January 8, 2009, a second
hearing was held. A medical expert, a psychological expert and a vocational expert also
testified. (R. 837.) On February12, 2009, the administrative law judge issued a decision
finding that McCoy was not disabled within the meaning of the Act. (R. 19-36.) On
March 23, 2011, the Appeals Council denied plaintiff’s request for review and adopted
the administrative law judge’s decision as the final decision of the Commissioner of
Social Security. (R. 2-4.)

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Age, Education, and Work Experience. Ivy McCoy was born February 4, 1963.
(R. 120.) She has her GED. (R. 217.) She completed beauty school. (R. 809.) She has
worked as a billing clerk, gas station and convenience store clerk, collections
representative, an instructor at a beauty school, a manager, a hair stylist, and a sales
clerk. (R. 197.) She last worked March 19, 2006. (R. 212.)
Plaintiff’s Testimony. The administrative law judge fairly summarized McCoy's
testimony as follows:
The claimant testified that she has been unable to work due to constant
back and leg pain, diabetes mellitus, leg numbness two to three times a
week, being scared most of the time, having a depressed mood and feeling
helpless 70% of the time. The claimant testified that she stopped working
because she was terminated for being “sick.” The claimant testified that
her back pain feels “like a knife” and that her leg pain feels the same. The
claimant testified that “trigger shots” did not help her. The claimant that
she cries during the day at least once or [twice] a week because the pain
bothers her thinking. The claimant testified that she takes psychotropic
medication and that is has not changed her mood or the way that she does
things. The claimant testified that she does not suffer from any adverse
medication side effects.
The claimant testified that, as a result of pain, she cannot remain seated
for more than 30 minutes before she has to move around for 10 minutes.
She stated that when she stands the pain is more intense. The claimant
presented at the July 2008 hearing with a walker, but she testified at the
January 2009 hearing that she left the walker in her truck. The claimant
testified that she has been using a walker for two years and that Dr.
Tribuzio prescribed a walker because she kept falling. At the January 2009
hearing, the claimant testified that she was able to walk from the parking
lot into the hearing room without the walker. The claimant testified that
lifting and carrying “affects” her back, but that she can lift/carry up to 5
pounds. She stated that she has “problems” with bending and reaching
down and that she cannot kneel because she will “get stuck” and the pain
gets worse. She also allegedly experiences difficulty with bending over.

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Additionally, the claimant stated that she loses feeling in her hands and
will drop things.
The claimant testified that she does not go out with friends and that the
only places she goes are to doctor’s appointments, Sutton Place Behavioral
Health and to see one neighbor. She stated that during the day she reads,
watches television and draws. The claimant testified that she watches
about six hours of television per day and enjoys the History and
Discovery channels. She testified that she draws with charcoal and colored
pencils, but that she not done this in the past six months. The claimant
testified that she has problems with reading because she has to read the
same thing over and over again. The claimant testified that her boyfriend
works from six to midnight and gets home around 1:30 AM. The claimant
reported to the Social Security Administration that she enjoys watching
television, reading, working with beads and paint and working on her
computer (Exhibit 4E, p. 5).
The claimant testified that she prepares and eats grilled cheese
sandwiches and that she otherwise relies on her boyfriend to cook and
shop for groceries and to assist with household chores. She stated that she
is able to prepare microwave meals or make a sandwich. At the July 2008
hearing, the claimant testified to having a valid driver’s license. She
initially testified that she does not drive “at all,” but subsequently stated
that she last drove two months earlier. At the January 2009 hearing, the
claimant testified that she did not remember when she last drove. She then
stated that, after her falling episodes, she was told by her doctors that she
should not drive. The claimant told Dr. Lucas that she enjoys walking on
the beach (Exhibit 4F, p.2) but at the January 2009 hearing, the claimant
testified that she had not walked on the beach during the preceding year
and a half.
(R. 28-29.)
Medical Evidence of Record. The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize that evidence.

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Physical Impairments.
Daniel S. Rowe, M.D. On December 1, 1997, Dr. Rowe, a pain management
physician, examined plaintiff and diagnosed probable lumbar spondylosis with
degenerative disc and joint disease, lumbar facet and sacroiliac joint arthropathy,
chronic mechanical lumbosacral strain, and myofascial pain syndrome. (R. 529.) On
April 21, 1999, Dr. Rowe stated that a recent cervical MRI revealed mild degenerative
disc disease throughout the lower cervical spine with a mild right-sided disc protrusion
with bony spurring at C5-6 and minimal disc bulging at C4-5 and C6-7. Plaintiff
complained of severe and intractable neck pain with paresthesias in the right upper
extremity in a C-6 distribution. (R. 539.) On September 9, 1999, Dr. Rowe indicated that
plaintiff had undergone bilateral lumbar face rhizotomy by cryoablation as well as
sacroiliac joint denervation by cryoblation without any long term benefit. (R. 537.) On
November 24, 1999, Dr. Rowe stated that chronic narcotic therapy was indicated based
on the failure of more conservative measures. (R. 536.)
Russell D. Metz, M.D. On September 10, 2002, Dr. Metz evaluated plaintiff based
on her complaints of a two year history of a rash on her face, upper chest, upper back,
posterior neck and upper outer arms. Plaintiff met the diagnostic criteria for lupus. A
biopsy was recommended. (R. 525.) On September 17, 2002, Dr. Metz diagnosed chronic
lupus erythematosus. On examination, plaintiff had 1+ joint edema of the bilateral
ankles and knees. (R. 526.)

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James D. Popp, M.D. On October 15, 2002, Dr. Popp, a rheumatologist, examined
plaintiff. Plaintiff reported that five years ago, she developed a lesion on her left
forehead, which resolved. She developed another lesion on her forehead. In February or
March 2002, plaintiff developed a diffuse erythematous rash on her face and chest. A
biopsy was consistent with cutaneous lupus. Plaintiff also reported locking of her
fingers and pain in her knees, ankles, wrist, and elbows. She was forgetful and drifted
in and out of conversations. She had lower extremity swelling, probable
photosensitivity, dry eyes, dry mouth, purple discoloration of her fingers in cold
weather, intermittent cough and dyspnea. She also reported “massive” headaches.
On physical examination, her cervical spine was stiff. She had pain with lateral
rotation. Her shoulders, elbows, and wrists, had normal range of motion without pain
or swelling. Her right third PIP joint was mildly enlarged. She had no Raynaud’s
phenomenon or cyanosis. Her lower extremity joints revealed good range of motion
with no effusions. Her skin revealed erythema and areas of hyperpigmentation in a
malar distribution and on her forehead. She also had erythematous macular paular
lesions on her chest. Her motor strength was grossly normal. Her deep tendon reflexes
were 2+ and symmetrical. (R. 522-23.)
An October 23, 2002 x-ray of plaintiff’s left shoulder showed that skeletal
structures were intact with no sign of acute trauma. The joint spaces and surfaces were
well preserved. There was no effusion. The soft tissues showed no abnormal
calcifications or foreign body. (R. 248.)
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On March 23, 2006, plaintiff underwent an adenosine induced cardiolite
rest/stress study. Her results appeared normal with no evidence of reversible ischemia.
She had preserved left ventricular function with an ejection fraction of 60%. (R. 234-36.)
Farid Ullah, M.D., F.A.C.C. On June 8, 2006, Dr. Ullah examined plaintiff.
Plaintiff complained of low back pain with numbness and weakness of both legs, worse
on the right. In 1996, she was told that she had a bulging disc, which caused 30% loss of
sensation. She had been treated with radio-frequency ablation, cryosurgery, epidural
injections and physical therapy. She also reported problems with her C3, 4 and 5
vertebrae. She had weakness in both upper extremities. She dropped things and had
difficulty putting anything on the shelf above her head. Her neck was stiff and painful.
Plaintiff also had extremely poor oral hygiene. She had multiple carious teeth,
broken teeth, gum, hypertrophy with overgrowth.
During the physical examination, plaintiff was extremely distraught. She wept
throughout the visit. She mumbled and appeared significantly depressed. Her face had
a red rash consistent with lupus and multiple scars of ulcers and/or biopsies. She had
some mild paralumbar muscle spasm with tenderness. She had difficulty in forward
flexion; some limitation was due to obesity and some due to muscle spasm. Plaintiff
walked without any assistive device, but she had a slight to moderate limp.
Dr. Ullah diagnosed lumbar osteoarthritis with probable lumbar disk disease
with possible secondary neuropathy, severity to be determined; history of cervical disk
disease; migraine syndrome; smoker’s bronchitis; carious teeth with hypertrophy of the
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gums; memory loss probably secondary to multiple analgesics and sedative
medications; and severe anxiety and depression. (R. 271-74.)
Donald Morford, M.D. On July 28, 2005, Dr. Morford completed a physical
residual functional capacity assessment. Dr. Morford concluded that plaintiff could
frequently lift and/or carry 10 pounds. She could stand and/or walk at least 2 hours in
an 8-hour day. She could sit with normal breaks for about 6 hours in an 8-hour day. Her
ability to push and/or pull was unlimited. Dr. Morford noted that plaintiff was
diagnosed with discoid lupus, poorly controlled hypertension, headaches, smoker’s
bronchitis, and neck and back pain. On July 27, 2006, plaintiff noted that her cardiac
symptoms remained unchanged since the March 23, 2006 cardiolite stress test.
Dr. Morford opined that plaintiff could occasionally climb ramps or stairs,
balance, stoop, kneel, crouch, or crawl. She could never climb ladders, ropes, or
scaffolds. With respect to environmental limitations, plaintiff should avoid concentrated
exposure to fumes, odors, dusts, gases, poor ventilation and hazards. (R. 295-302.)
Edward D. Tribuzio, M.D. Dr. Tribuzio, plaintiff’s treating physician, provided
treatment notes for the time period November 2001 through June 2009. On December
20, 2001, plaintiff reported that her roommate had stolen her pain medications. (R. 535.)
On August 15, 2005, plaintiff complained of migraines and cervical pain. On
September 19, 2005, plaintiff was crying and complaining of pain all over. She had an
unsteady gait, and her right leg was giving out. She was not sleeping. She complained
of headaches. On September 19, 2005, plaintiff complained of increasing pain while
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working. Dr. Tribuzio suggested she start disability evaluation. On January 9, 2006, Dr.
Tribuzio noted that plaintiff had been doing fairly well and that there was no change in
her back examination. On February 6, 2006, plaintiff was described as stable. On April
20, 2006, plaintiff had increasing pain down her back. Her blood pressure was fairly
controlled. On July 6, 2006, Dr. Tribuzio noted that her back pain was under fair control.
On May 31, 2006, Dr. Tribuzio indicated that plaintiff could not work because of chronic
back pain. On September 21, 2006, plaintiff was tearful and reported that her roommate
had stolen her medications. Dr. Tribuzio was unwilling to prescribe new medications.
On December 18, 2006, plaintiff provided a police report indicating that her medications
had been stolen. On January 15, 2007, plaintiff was given a two month supply of her
medications. On February 16, 2007, plaintiff reported that she needed a refill of her
methadone. On March 7, 2007, plaintiff asked for her methadone refill one month early,
but Dr. Tribuzio refused to provide it to her. On March 30, 2007, a one month
prescription was given to her. On May 15, 2007, Dr. Tribuzio noted that plaintiff was
taking methadone to control her pain and there had been no history of any abuse. On
May 22, 2007, plaintiff required a refill for her pain medication for her headaches. On
May 24, 2007, plaintiff reported that her friend stole her Xanax, and Dr. Tribuzio
provided a prescription to her.
On June 6, 2007, plaintiff reported she had recently been hospitalized. She was
diagnosed with diabetes. On June 13, 2007, plaintiff was seen to evaluate her blood
sugars. On July 3, 2007, plaintiff was started on Lantus. On July 18, 2007, Dr. Tribuzio
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indicated that plaintiff had not been taking her insulin as prescribed. Dr. Tribuzio saw
plaintiff weekly in August 2007 in order to address her diabetes. Throughout September
and October, Dr. Tribuzio monitored plaintiff’s blood sugar. In October and November,
plaintiff’s diabetes was under fair control. (R. 362-79.)
On January 7, 2008, plaintiff was seen for follow up. She denied any particular
complaints. Her back pain and headaches had been controlled nicely. On January 23,
2008, plaintiff complained of a 3-day headache. On February 18, 2008, plaintiff fell in the
parking lot at home. (R. 409.) On April 28, 2008, Dr. Tribuzio reported that plaintiff had
had some recent falls probably related to weakness in her legs. (R. 408.)
On March 14, 2008, Dr. Tribuzio completed a form indicating that plaintiff had
L3 dysfunction, neuropathy of both legs and decreased strength of 2/5, and decreased
sensation. Her grip strength was 4/5 bilaterally. He described her gait as wide and
wide. She could not walk on her heels or toes. She could not squat. Her legs gave out
requiring the use of a walker. He indicated that plaintiff had neuropathy of the lower
extremities due to lumbar and cervical pathology. He opined that plaintiff was disabled.
(R. 398.)
On September 8, 2008, Dr. Tribuzio indicated that plaintiff had reduced her
methadone use and that he was attempting to decrease it further. On October 3, 2008,
Dr. Tribuzio indicated that plaintiff’s diabetes was poorly controlled. Plaintiff had
radiating back pain down her back. (R. 748.) On November 8, 2008, Dr. Tribuzio

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indicated that plaintiff had been doing fairly well and denied any particular problems.
(R. 749.) On November 20, 2008, plaintiff was described as doing fairly well. (R. 764.)
On February 5, 2009, Dr. Tribuzio stated that plaintiff had a seizure which started
in the left leg, radiated into the big toe, and then became generalized. On February 19,
2009, plaintiff reported no further seizures. She was doing well. An MRI showed no
acute abnormalities, although she did have ill-defined, nonspecific H2 lesion that had
decreased since 2007. (R. 765.)
Nicolas Bancks, M.D. On October 24, 2006, Dr. Bancks reviewed the record for
the Commissioner and completed a physical residual functional capacity assessment.
Dr. Bancks opined that plaintiff could occasionally lift and/or carry 20 pounds and
frequently lift and/or carry 10 pounds. She could stand and/or walk about 6 hours in
an 8-hour day. She could sit with normal breaks for about 6 hours in an 8-hour day. She
was unlimited in her ability to push and/or pull. She could occasionally climb ladders,
ropes or scaffolds. She could occasionally stoop, kneel, and crawl. She should avoid
concentrated exposure to fumes, odors, dusts, gases, poor ventilation and hazards. (R.
303-10.)
Baptist Medical Center. On May 26, 2007, plaintiff was admitted to the hospital
for syncope or recurrent falls and an abnormal MRI scan. (R. 325-30.)
James J. Green, M.D. On March 20, 2008, Dr. Green completed a physical residual
functional capacity assessment. (R. 399-406.) Dr. Green opined that plaintiff could
occasionally lift and/or carry 10 pounds and frequently lift and/or carry less than 10
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pounds. She could stand and/or walk less than 2 hours in an 8-hour day. A medically
required hand-held assistive device was necessary for ambulation. Her ability to push
and/or pull was limited in her lower extremities. Dr. Green wrote:
This 45 year old female has a long history of pain of the back and legs,
with a history of DDD, DJD of the ankles, HTN, and discoid lupus.
Longitudinal records reveal decreased spinal ROM, swelling and
tenderness in the ankles with a limping gait. She has also developed
diabetes, and not has a marked peripheral neuropathy with inability for
ambulation without assistance, currently using a walker with marked LE
weakness and loss of sensation. I feel that she has less-than-sedentary
capability.
(R. 400.)
Psychological Impairments.
Lauren Lucas, Ph.D. On June 5, 2006, Dr. Lucas, a psychologist, performed an
personality assessment at the request of the Office of Disability Determinations.
Plaintiff’s presentation was described as histrionic. She reported that her boyfriend
visited her and completed her housework and laundry. She did not visit with other
friends or relatives. She watched television, but she did not read. She did not cook. She
enjoyed walking on the beach.
Plaintiff reported that she had no appetite and had difficulty sleeping. Her mood
was described as average. Dr. Lucas diagnosed an Axis II disorder, cluster B; pain
disorder with psychological and medical features; and dysthymic disorder. She had
poor insight and fair judgment. (R. 268-70.)

12

Martha Putney, Ph.D. On June 15, 2006, Dr, Putney completed a psychiatric
review technique. She concluded that plaintiff had an adjustment disorder with
dysthymic mood and anxiety. Plaintiff had mild restriction of activities of daily living,
mild difficulties in maintaining social function. She had also had mild difficulties in
maintaining concentration, persistence or pace and no episodes of decompensation. Dr.
Putney indicated that plaintiff’s anxiety was due to her physical condition. She quit
working based on her physical symptoms. With respect to her activities of daily living,
plaintiff was able to prepare meals, shop, perform self-care, complete household chores,
manage money and drive as permitted by her physical limitations. She was able to get
along with the public and authorities, and she had never been fired. Dr. Putney also
noted that plaintiff had not had mental health treatment. (R. 275-88.)
Val Bee, Psy.D. On November 7, 2006, Dr. Bee completed a psychiatric review
technique. Dr. Bee opined that plaintiff satisfied the diagnostic criteria for dysthymia.
Dr. Bee also opined that plaintiff had a pain disorder and cluster B features of a
personality disorder. Dr. Bee opined that plaintiff had mild restriction of daily activities,
mild difficulties in maintaining social functioning, mild difficulties in maintaining
concentration, persistence or pace, and no episodes of decompensation. (R. 311-24.)
Sutton Behavioral Health. On January 2, 2007, plaintiff was evaluated for
services. Plaintiff reported symptoms of thought blocking, feelings of detachment,
anhedonia, difficulty sleeping, and difficulty concentrating. Plaintiff was diagnosed
with post-traumatic stress disorder. (R. 353-61.)
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On June 27, 2007, Heather Rohrer, M.D. began treating plaintiff. On mental status
examination, plaintiff showed some psychomotor retardation. She was alert and
oriented. Her thoughts were logical and goal-directed. Speech was whiny and slightly
delayed. Plaintiff could perform simple calculations but refused to try serial
calculations without a paper and pen. She had adequate concentration. Her memory
had some impairment. She cried throughout the appointment. She denied hearing
voices but she reported hearing noises that scared her. Dr. Rohrer found her quite
paranoid about her family. (R. 346-48.) On August 1, 2007, plaintiff exhibited some
psychomotor retardation. She spoke slowly and tended to slur her speech. She reported
that she saw shadows at night. (R. 343.)
On August 6, 2007, Dr. Rohrer completed a psychiatric impairment questionnaire
concerning plaintiff’s treatment from June 27 through August 1, 2007. Dr. Rohrer saw
plaintiff on a monthly basis. She diagnosed post-traumatic stress disorder; generalized
anxiety disorder; dysthymia; and a rule out diagnosis of dependent personality
disorder. She assigned a Global Assessment of Functioning (“GAF”) score of 50. She
noted the following clinical findings: poor memory, appetite disturbance with weight
change, sleep disturbance, mood disturbance, substance dependence, psychomotor
retardation, paranoia or inappropriate suspiciousness, feelings of guilt/worthlessness,
difficulty thinking or concentrating, perceptual disturbances, decreased energy,
generalized persistent anxiety and pathological dependence or passivity. She noted that
plaintiff heard noises and saw shadows at night. Dr. Rohrer noted that plaintiff was
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mildly limited in her ability to remember locations and work-like procedures and
moderately limited in her ability to understand and remember one or two step
instructions. She was moderately limited in her ability to carry out simple one or twostep instructions and to maintain attention and concentration for extended periods. She
was also moderately limited in her ability to make simple work related decisions. Her
ability to complete a normal workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without an unreasonable number
and length of rest periods was markedly limited. Plaintiff was markedly limited in her
ability to interact appropriately with the general public. Her ability ask simple
questions or request assistance was mildly limited. Her ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes was
markedly limited. Her ability to maintain socially appropriate behavior and to adhere to
basic standards of neatness and cleanliness was mildly limited. Dr. Rohrer noted that
plaintiff kept a small bat with her at all times and a knife when she was alone. Dr.
Rohrer also believed that plaintiff was limited by her physical problems and that her
high dose of methadone adversely affected her mobility and cognitive function.
Plaintiff’s anxiety and depression exacerbated her physical pain and vice versa. Dr.
Rohrer opined that plaintiff was incapable of even low stress work.
On September 5, 2007, plaintiff reported that she was doing okay. She had racing
thoughts, but she believed that the Seroquel calmed her down. Her appetite and sleep
were poor. Plaintiff’s mood was anxious with appropriate affect. Her motor activity was
15

normal, and her cognitive function was fair. (R. 341.) On September 27, 2007, plaintiff’s
mood was euthymic. (R. 340.) On November 1, 2007, plaintiff was described as
euthymic.
On January 16, 2008, plaintiff’s affect was dysphoric. Her sleep was poor. She
reported seeing things in passing. She complained that the Seroquel was not working.
Her appetite was normal. She stated she had short-term dementia. She reported that she
had had a panic attack the week before. Dr. Rohrer noted that her PTSD and anxiety
disorder had deteriorated and that her GAF score was 52.
On May 8, 2008, plaintiff reported that her mood was “getting lower” because of
Mother’s day. Her affect was dysphoric, and when she talked about Mother’s day, she
became tearful. She reported that she had been talking to an imaginary friend. She had
difficulty falling and staying asleep. Her appetite was poor. Dr. Rohrer indicated that
her PTSD and generalized anxiety disorder were in fair control and assigned a GAF
score of 55. (R. 410.)
On September 8, 2008, plaintiff reported feeling depressed and worthless. Her
affect was anxious and dysphoric. She appeared fairly paranoid. Her current GAF score
was 55. (R. 736.)
On November 21, 2008, Dr. Rohrer completed a psychiatric impairment
questionnaire. She diagnosed post-traumatic stress disorder and a generalized anxiety
disorder. She assigned a current GAF score of 55 and indicated that her lowest GAF
score in the past year was 52. She noted the presence of the following clinical findings:
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appetite disturbance with weight change, sleep disturbance, mood disturbance,
substance dependence, psychomotor retardation, blunt affect, and generalized
persistent anxiety. Plaintiff complained of poor sleep and racing thoughts. Plaintiff was
moderately limited in her abilities to remember locations and work-like procedures and
to understand and remember detailed instructions. She was mildly limited in her ability
to carry out simple one and two-step instructions. She was moderately limited in her
abilities to carry out detailed instructions and to maintain attention and concentration
for extended periods. She was markedly limited in her ability to complete a normal
workweek without interruptions from psychologically based symptoms and to perform
at a consistent pace without an unreasonable number and length of rest periods.
Plaintiff was also moderately limited in her abilities to interact appropriately with the
public, to get along with co-workers or peers without distracting them or exhibiting
behavioral extremes, and to maintain socially appropriate behavior and to adhere to
basic standards of neatness and cleanliness. She was mildly limited in her ability to set
realistic goals or make plans independently. (R. 739-46.)
On December 30, 2008, Dr. Rohrer assigned a GAF score of 55. Plaintiff
complained of not being able to sleep. She reported hearing things that were not there.
She described her brain as going in circles. (R. 769.) On May 5, 2009, plaintiff reported
she was angry because she was tired of everything. She appeared paranoid. (R. 776.)
Richard K. Lyon, Ph.D. On January 28, 2008, Dr. Lyon completed a psychiatric
review technique and mental residual functional capacity assessment. Plaintiff met the
17

diagnostic criteria for dysthymia, post-traumatic stress disorder, and generalized
anxiety disorder. Plaintiff had a rule out diagnosis of cluster B personality traits.
Plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining
social functioning, and moderate difficulties in maintaining concentration, persistence
or pace. She had no episodes of decompensation.
Dr. Lyon opined that plaintiff had no significant limitations with respect to
understanding and memory. Plaintiff was moderately limited in her abilities to carry
out detailed instructions, to maintain attention and concentration for extended periods,
to work in coordination with or proximity to others without being distracted by them
and to complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. Plaintiff was moderately limited in her
ability to get along with co-workers or peers without distracting them or exhibiting
behavioral extremes. She was also moderately limited in her ability to respond
appropriately to changes in the work setting. (R. 380-97.)
Medical Expert Testimony. Javier Barquet, M.D., testified as a medical expert. He
testified that he could not correlate the level of plaintiff’s pain with the MRI results. He
acknowledged that an underlying psychological condition could contribute to her level
of pain. Dr. Barquet testified that plaintiff could sit, stand or walk for 6 hours in an 8hour day, lift 10 pounds frequently and 20 pounds occasionally. Dr. Barquet maintained

18

that Dr. Tribuzio simply recorded plaintiff’s complaints. He also testified that
methadone is not prescribed for pain.
Olin Hamrick, Ph.D. testified that plaintiff had mild limitations in activities of
daily living, social functioning, and in maintaining concentration, persistence, or pace.
Plaintiff was mildly limited in her ability to understand, remember and carry out simple
instructions and moderately limited in her ability to interact with the general public, coworkers, and supervisors. Plaintiff was moderately limited in her ability to make
changes in work or work-like settings. Dr. Hamrick testified that a GAF score of 40 to 50
indicated that she had a severe mental impairment, but he did not give much weight to
such scores because they were not reliable.
Administrative Law Judge’s Findings.
1.

The claimant meets the insured status requirements of the Social
Security Act through March 31, 2009.

2.

The claimant has not engaged in substantial gainful activity since
February 2, 2006, the amended alleged onset date (20 CFR 404.1571
et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairments: a history of
degenerative disc disease of the cervical spine; obesity; diabetes
mellitus; post-traumatic stress disorder; generalized anxiety
disorder; narcotic dependence/substance abuse disorder (20 CFR
404.1521 et seq. and 416.921 et seq.).

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR
404.1525, 404.1526, 416.925 and 416. 926).

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5.

After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) and 416.967(b)
except with only occasional bending, stooping, crouching,
crawling; no work at heights based on the claimant’s reports of
syncope; “mild” limitations in her ability to understand, remember
and carry out simple instructions and make judgments on simple
decisions; “moderate” limitations in her ability to understand
remember, and carry out complex, but not detailed instructions,
interact appropriately with the public, supervisors, and co-workers,
respond appropriately to usual work situations and to changes in a
routine work setting. “Mild” is defined as a slight limitation, but
the individual can generally function well; “moderate” is defined
as more than a slight limitation, but the individual is still able to
function satisfactorily.

6.

The claimant is able to perform past relevant work (20 CFR
404.1565 and 416.965).

7.

The claimant was born on February 4, 1963 and was 43 years old,
which is defined as a younger individual age 18-49, on the alleged
disability onset date (20 CFR 404.1563 and 416.963). She is currently
46 years old.

8.

The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 404. 1569, 404.1569a, 416.969, and 416.969a).

11.

The claimant has not been under a disability, as defined in the
Social Security Act, from February 2, 2006 through the date of this
decision (20 CFR 404.1520(f) & (g) and 416.920(f) & (g)).
20

(R. 21-35.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings
of the Commissioner as to any fact, if supported by substantial evidence, shall be
conclusive. . . ." 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)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is
"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.
1976). The Commissioner's findings of fact must be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366
(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining
whether the Commissioner's decision is supported by substantial evidence, the Court
must "'take into account whatever in the record fairly detracts from its weight.'" Beavers
v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and
Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner
denying benefits should be reversed because:
• The administrative law judge failed to follow the treating physician rule. The
administrative law judge failed to given any significant weight to the opinion
of Dr. Rohrer, plaintiff’s treating psychiatrist. The administrative law judge

21

noted that Dr. Rohrer did not define what she meant by “marked” and
“moderate” limitations or what evidence supported these limitations. Plaintiff
argues that these limitations were defined and that Dr. Rohrer specified the
clinical findings on which her opinion was based. Rather than adopting the
opinion of Dr. Rohrer, the administrative law judge adopted the opinion of Dr.
Hamrick, a non-examining psychologist. Plaintiff maintains that Dr. Rohrer
performed a mental status evaluation at each appointment. Plaintiff argues
that because Dr. Rohrer’s opinion was based upon appropriate clinical and
diagnostic psychiatric evidence and not otherwise contradicted by substantial
evidence, her opinion should have been afforded controlling weight. Plaintiff
also argues that the administrative law judge failed to consider any of the
factors outlined in 20 C.F.R. § 404.1527 before rejecting her opinion. Plaintiff
maintains that Dr. Rohrer examined her for a period of at least 17 months. She
provided specific psychiatrist findings to support her medical opinions, and
her findings were consistent with the record as a whole. Furthermore, Dr.
Rohrer is a Board-certified psychiatrist. Plaintiff also argues that the
administrative law judge erred in rejecting the opinion of Dr. Tribuzio. Dr.
Tribuzio noted that plaintiff had a lower back dysfunction with neuropathy in
the legs, decreased leg strength, reduced grip strength, and a need for a
walker. Plaintiff maintains that the administrative law judge should not be
permitted to disregard the findings of plaintiff’s long term treating physician
22

without making any effort to clarify perceived inconsistencies in the record.
The administrative law judge should have requested that the treating doctor
give an opinion on plaintiff’s functional limitations.
• The administrative law judge failed to properly evaluate McCoy's credibility.
Plaintiff argues that the administrative law judge is not permitted to make
credibility determinations based upon an intangible or intuitive notion about
an individual’s credibility. Rather, determinations must be based on
consideration of the entire record. Plaintiff argues that the administrative law
judge’ findings were insufficient to discredit her testimony regarding her
physical and mental limitations. The evidence demonstrated plaintiff had
degenerative changes in her spine with medically determinable findings of
tenderness, muscle spasms, weakness, disturbed sensation, and limited
motion. There was evidence that she had difficulty using her hands for
grasping due to weakness in grip strength. Plaintiff had increased complaints
of back and leg pain. There was also evidence that plaintiff had lower
extremity pain, weakness, and disturbed sensation that would reasonably
require the use of an assistive device. A single reference to using marijuana is
not relevant, according to plaintiff.
Analysis.
Treating Doctors’ Opinions. Plaintiff argues that the Administrative Law Judge
erred in rejecting the opinions of Drs. Rohrer and Tribuzio.
23

Treating Doctor: Legal Standard. A treating doctor's opinion1 on the issue of
disability is entitled to greater weight than that of a physician who has examined
plaintiff on only one occasion or who has merely conducted a paper review of the medical evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d 53, 55 (6th
Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048, 1054 (6th Cir.
1983). The Commissioner’s regulations explain that Social Security generally gives
more weight to a treating doctors’ opinions because treators are usually “most able to
provide a detailed, longitudinal picture” of the claimant’s medical impairments. 20
C.F.R. § 404.1527(d)(2). When the treating doctor’s opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record” the Commissioner
“will give it controlling weight. “ Id.

The Commissioner’s regulations define “medical opinions” as “statements from
physicians and psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often
express more than one medical opinion, including “at least one diagnosis, a prognosis
and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at
*2. When an administrative law judge fails to give a good reason for rejecting a treator’s
medical opinion, remand is required unless the failure does not ultimately affect the
decision, i.e., the error is de minimis. Wilson, 378 F.3d at 547. So reversible error is not
committed where the treator’s opinion “is patently deficient that the Commissioner
could not possibly credit it;” the administrative law judge’s findings credit the treator’s
opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.
§ 1527(d)(2) but does not technically meet all its requirements. Id.
1

24

Even though a claimant's treating physician may be expected to have a greater
insight into his patient's condition than a one-time examining physician or a medical
adviser, Congress specifically amended the Social Security Act in 1967 to provide that to
be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A).
Consequently, a treating doctor's opinion does not bind the Commissioner when it is
not supported by detailed clinical and diagnostic test evidence.

Warner v. Commission-

er of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and
Human Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973
(6th Cir. 1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v.
Califano, 558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d),
404.1526(b), and 404.1527(a)(1)2.
The Commissioner's regulations provide that she will generally "give more
weight to the opinion of a source who has examined you than to the opinion of a source
who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a treating source's
opinion "is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
Section 404.157(a)(1) provides:
You can only be found disabled if you are unable to do any substantial
gainful activity by reason of any medically determinable physical or
mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than 12
months. See §404.1505. Your impairment must result from anatomical,
physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques. See
§404.1508.
2

25

record, we will give it controlling weight." 20 C.F.R. § 404.1527(d)(2). In determining
the weight to assign a treating source's opinion, the Commissioner considers the length
of the relationship and frequency of examination; nature and extent of the treatment
relationship; how well-supported the opinion is by medical signs and laboratory
findings; its consistency with the record as a whole; the treating source's specialization;
the source's familiarity with the Social Security program and understanding of its
evidentiary requirements; and the extent to which the source is familiar with other
information in the case record relevant to decision. Id. Subject to these guidelines, the
Commissioner is the one responsible for determining whether a claimant is disabled. 20
C.F.R. § 404.1527(e)(1).
Social Security Ruling 96-2p provides that "[c]ontrolling weight cannot be given
to a treating source's medical opinion unless the opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques." Consequently, the decisionmaker must have “an understanding of the clinical signs and laboratory findings and
what they signify." Id. When the treating source's opinion “is well-supported and not
inconsistent with the other substantial evidence in the case record, it must be given
controlling weight . . . .” The Commissioner’s regulations further provide that the
longer a doctor has treated the claimant, the greater weight the Commissioner will give
his or her medical opinion. When the doctor has treated the claimant long enough “to
have obtained a longitudinal picture of your impairment, we will give the source’s

26

[opinion] more weight than we would give it if it were from a non-treating source.” 20
C.F.R. §404.1527(d)(2)(I).
The Commissioner has issued a policy statement about how to assess treating
sources’ medical opinions. Social Security Ruling 96-2p. It emphasizes:
1. A case cannot be decided in reliance on a medical opinion without
some reasonable support for the opinion.
2. Controlling weight may be given only in appropriate circumstances
to medical opinions, i.e., opinions on the issue(s) of the nature and
severity of an individual’s impairment(s), from treating sources.
3. Controlling weight may not be given to a treating source’s medical
opinion unless the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques.
4. Even if a treating source’s medical opinion is well-supported,
controlling weight may not be given to the opinion unless it also is
“not inconsistent” with the other substantial evidence in the case
record.
5. The judgment whether a treating source’s medical opinion is wellsupported and not inconsistent with the other substantial evidence in
the case record requires an understanding of the clinical signs and
laboratory findings and what they signify.
6. If a treating source’s medical opinion is well-supported and not
inconsistent with the other substantial evidence in the case record, it
must be given controlling weight; i.e., it must be adopted.
7. A finding that a treating source’s medical opinion is not entitled to
controlling weight does not mean that the opinion is rejected. It may
still be entitled to deference and be adopted by the adjudicator.
Even when the treating source’s opinion is not controlling, it may carry sufficient
weight to be adopted by the Commissioner:

27

Adjudicators must remember that a finding that a treating source medical
opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to
"controlling weight," not that the opinion should be rejected. Treating
source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In
many cases, a treating source's medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test for
controlling weight.
SSR 96-2p.
The case law is consistent with the principals set out in Social Security Ruling 962p. A broad conclusory statement of a treating physician that his patient is disabled is
not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating
physician's opinion to have controlling weight it must have "sufficient data to support
the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th
Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may
reject the treating doctor's opinions when "good reasons are identified for not accepting
them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); 20 C.F.R. § 404.1527(d)(2)("We
will always give good reasons in our notice of determination or decision for the weight
we give your treating source's opinion"); Wilson v. Commissioner of Social Security, 378
F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to give a
treator’s opinion controlling weight, the decision-maker must evaluate the treator’s
opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable

28

presumption that the treating physician's opinion "is entitled to great deference." Rogers
v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Hensley, above. The
Commissioner makes the final decision on the ultimate issue of disability. Warner v.
Commissioner of Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human
Services, 980 F.2d 1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human
Services, 801 F.2d 847, 855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v.
Schweiker, 667 F.2d 954, 958 n.1 (11th Cir. 1982).
Treating Doctor: Discussion. With respect to Dr. Rohrer, the administrative law
judge stated:
In deciding the claimant’s mental residual functional capacity, the
Administrative Law Judge did not attach any significant weight to the
reports completed by Dr. Rohrer (Exhibits 12F, 34F). Dr. Rohrer initially
reported that the claimant was moderately limited in her ability to
understand, remember and carryout simple instructions and to maintain
attention and concentration, but did not describe the nature of the
limitations or otherwise explain what she meant by “moderate” (Exhibit
12F, p. 4). Likewise, Dr. Rohrer reported that the claimant had “marked”
limitations in a number of work-related areas, but did not provide any
cogent medical rationale as to how she reached these conclusions or
explain what she meant by “marked” (Exhibit 12F). Furthermore, Dr.
Rohrer reported that the claimant’s “physical illnesses have major impact
on her emotional status” and she further indicated that claimant reported
that “physical pain [is her] major problem (Exhibit 12F, p. 8; Exhibit 13F,
p. 15). Because there is no evidence documenting that Dr. Rohrer
performed a physical examination of the claimant and the other evidence
as detailed above casts considerable doubt on any such underlying
physical complaints, the Administrative Law Judge has concluded that the
claimant is not a reliable source of factual information. Therefore, the
Administrative Law Judge finds that any such reliance was misplaced. As
noted above, even Dr. Rohrer’s associates questioned the claimant’s
reliability.

29

The Administrative Law Judge further finds that Dr. Rohrer’s
recommended course of treatment does not support a conclusion that the
claimant has been limited to the extent that her assessment suggests. Dr.
Rohrer reported that the claimant required only one 30 minute session per
month medication management visit, and one 15 minute per month clinic
visit (Exhibit 13F, p. 7). As noted above, the record establishes treatment
on a less frequent basis. In fact, Dr. Rohrer saw the claimant in May 2008,
after not seeing her for seven months and reported that she did not need
to be seen until two months later (Exhibit 20F, p. 1).
The only “marked” limitation identified by Dr. Rohrer in the November
2008 assessment was with the claimant’s ability to complete a normal
workweek without interruptions from psychologically based symptoms
and to perform at a consistent pace without an unreasonable number and
length of rest breaks (Exhibit 34F, p. 5). Again, Dr. Rohrer did not explain
what she meant by “marked” or otherwise explain how she reached this
conclusion. Dr. Rohrer reported that the claimant’s primary “symptom”
was “poor sleep.” Indeed, this was the claimant’s primary complaint in
September 2008 (Exhibit 33F, p.1). Nevertheless, the claimant denied being
tired during the day and said that she did not take naps (Exhibit 33F, p. 1).
This suggests that any “poor sleep” would not interfere with her ability to
function during the day or to perform at a consistent pace without an
unreasonable number and length of rest breaks. Therefore, the
Administrative Law Judge finds that Dr. Rohrer’s report that the claimant
would need an unreasonable number and length of rest breaks is
inconsistent with her treatment records and therefore not entitled to
controlling weight.
(R. 32-33.) Here, the administrative law judge gave sufficient reasons to reject the
opinion of Dr. Rohrer. Despite the administrative law judge’s statement that Dr. Rohrer
failed to define the terms “moderate” and “marked”, the form defines these terms. See
R. 333-34. Nevertheless, the administrative law judge gave sufficient reasons for not
adopting the opinion of Dr. Rohrer. The administrative law judge found that Dr.
Rohrer’s recommended course of treatment was inconsistent with her assessment of
plaintiff’s impairment. Despite her recommendation of monthly visits, plaintiff’s
30

treatment was less frequent. Dr. Rohrer concluded that plaintiff’s physical illness
contributed significantly to mental impairment, yet Dr. Rohrer did not have the
expertise to evaluate her physical impairments. The administrative law judge
concluded that plaintiff’s allegations concerning her symptoms were not entirely
credible and that Dr. Rohrer’s opinion was, in large part, based on those allegations. As
a result, the administrative law judge concluded that Dr. Rohrer’s opinion was not
entitled to deference. The administrative law judge also concluded that Dr. Rohrer’s
opinion was not supported by other substantial evidence in the record including the
opinions of Dr. Lucas and Dr. Hamrick.
The administrative law judge rejected the opinion of Dr. Tribuzio:
In deciding that the claimant has been able to perform the activities
described in Dr. Barquet’s testimony, the administrative law judge also
considered Dr. Tribuzio’s progress notes which contain statements
indicating that the claimant cannot work or seek employment due to pain.
(See e.g., Exhibit 14F, pp. 2, 9, 11, 12, 13,; Exhibit 19F, p. 1; Exhibit 30F, p.
2). The administrative has not attached any weight to these reports as
these reports are not medical opinions under the Social Security
regulations, but rather, are legal conclusions left to the Administrative
Law Judge (20 C.F.R. § 404.1527(e)(1) and Social Security Ruling 96-5p).
Even if Dr. Tribuzio identified function-by-function limitations, the
Administrative Law Judge would have concluded that they were not
supported by his own progress notes and were inconsistent with the other
normal physical examination findings in the record. The 11th Circuit has
ruled that the opinion of a treating physician “must be given substantial
or considerable weight unless ‘good cause’ is shown to the contrary” and
that “good cause” exists when the: (1) treating physician’s opinion was not
bolstered by the evidence; (2) evidence supported a contrary finding; or
(3) treating physician’s opinion was conclusory or inconsistent with the
doctor’s own medical records. Lewis V. Callahan, 125 F.3d 1426, 1440
(11th Cir. 1997). Phillips v. Barnhart, 357 F.3d 1232, 1241 (11th Cir. Ga.
31

2004). There is no evidence which “bolsters” Dr. Tribuzio’s reports.
Indeed, his reports are contradicted by the essentially normal physical
examinations from Baptist Medical Center. Furthermore, the
Administrative Law Judge questions whether Dr. Tribuzio is familiar with
the claimant’s medical history, as he indicated that the claimant “has
chronic back pain, has had surgery in the past” (Exhibit 32F, p. 1) while
the claimant reported that her only surgeries were for a breast reduction
and an appendectomy (Exhibit 5F, p. 2; Exhibit 22F, p. 6).
(R. 31-32.) The administrative law judge also gave good reasons for rejecting the
opinion of Dr. Tribuzio. The administrative law judge reviewed Dr. Tribuzio’s
treatment notes and concluded that his opinion that plaintiff was disabled was without
support in the record. Dr. Tribuzio’s treatment notes failed to document any clinical
findings consistent with his opinion. Plaintiff argues that if the administrative law judge
had believed that Dr. Tribuzio’s findings could not be given sufficient weight because of
a lack of objective findings in the treatment notes, he had an affirmative duty to develop
the record. It is the claimant, however, who bears the burden of providing medical
evidence demonstrating impairments and their severity. 20 C.F.R. §404.1512(c). The
administrative law judge was not required to seek additional information from Dr.
Tribuzio when his treatment notes failed to provide any support for his opinion that
plaintiff’s impairment was disabling.
Credibility Determinations: Controlling Law. Pain is an elusive phenomena.
Ultimately, no one can say with certainty whether another person's subjectively
disabling pain precludes all substantial gainful employment. The Social Security Act
requires that the claimant establish that he is disabled. Under the Act, a "disability" is

32

defined as "inability to engage in any substantial gainful activity by reason of any
medically determinable or mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis
added).
Under the provisions of 42 U.S.C. §423(d)(5)(A):
An individual's statement as to pain or other symptoms shall not
alone be conclusive evidence of disability as defined in this section;
there must be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques, which show
the existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to be
furnished under this paragraph (including statements of the
individual or his physician as to the intensity and persistence of such
pain or other symptoms which may reasonably be accepted as
consistent with the medical signs and findings), would lead to a
conclusion that the individual is under a disability. Objective
medical evidence of pain or other symptoms established by
medically acceptable clinical or other laboratory techniques (for
example, deteriorating nerve or muscle tissue) must be considered in
reaching a conclusion as to whether the individual is under a disability.
The Commissioner’s regulations provide:
(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence. By objective medical
evidence, we mean medical signs and laboratory findings as defined
in §404.1528(b) and (c). By other evidence, we mean the kinds of
evidence described in §§404.1512(b)(2) through (6) and
404.1513(b)(1), (4), and (5) and (e). These include statements or
reports from you, your treating or examining physician or
psychologist, and others about your medical history, diagnosis,
33

prescribed treatment, daily activities, efforts to work and any other
evidence showing how your impairment(s) and any related
symptoms affect your ability to work. We will consider all of your
statements about your symptoms, such as pain, and any description
you, your physician, your psychologist, or other persons may
provide about how the symptoms affect your activities of daily living
and your ability to work. However, statements about your pain or
other symptoms will not alone establish that you are disabled; there
must be medical signs and laboratory findings which show that you
have a medical impairment(s) which could reasonably be expected to
produce the pain or other symptoms alleged and which, when
considered with all of the other evidence (including statements about
the intensity and persistence of your pain or other symptoms which
may reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that you are
disabled. In evaluating the intensity and persistence of your
symptoms, including pain, we will consider all of the available
evidence, including your medical history, the medical signs and
laboratory findings and statements about how your symptoms affect
you. (Section 404.1527 explains how we consider opinions of your
treating source and other medical opinions on the existence and
severity of your symptoms, such as pain.) We will then determine
the extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be
accepted as consistent with the medical signs and laboratory findings
and other evidence to decide how your symptoms affect your ability
to work.
20 C.F.R. §404.1529(a).
In Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir.
1986) the Sixth Circuit established the following test for evaluating complaints of
disabling pain. First, the Court must determine "whether there is objective medical
evidence of an underlying medical condition." If so, the Court must then
examine: (1) whether objective medical evidence confirms the
severity of the alleged pain arising from the condition; or (2) whether

34

the objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling pain.
Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective
complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,
823 F.2d 918, 920 (6th Cir. 1987).
Credibility Determination: Discussion. The administrative law judge concluded
that plaintiff’s allegations concerning the severity of symptoms were not credible:
After careful consideration of the evidence, the undersigned finds that the
claimant’s medically determinable impairments could reasonably be
expected to cause some of her alleged symptoms; however the claimant’s
statements concerning the intensity, persistence and limiting effects of
these symptoms are not credible to the extent they are inconsistent with
the above residual functional capacity assessment.
In terms if the claimant’s alleged inability to work due to “constant” back
pain, for the reasons described above, the Administrative Law Judge has
concluded that the record does not establish any medically determinable
physiological basis for her back impairment. The Administrative Law
Judge has, however, considered the possibility that the claimant could be
suffering from some back pain as a result of her obesity. The claimant’s
testimony of dropping things is inconsistent with Dr. Ullah’s report that
the claimant’s grip strength was normal and equal bilaterally and that her
finger dexterity was preserved (Exhibit 5F, p. 3) . Her testimony of leg
numbness two to three times a week is not corroborated by complaints to
treating sources and abnormal clinical findings. Her testimony of “being
scared most of the time” and feeling helpless 70% of the time is not
corroborated by evidence of intensive mental health treatment or
complaints to treating mental health sources. Her testimony of disabling
depression is not corroborated by reports from Dr. Rohrer, her treating
psychiatrist, as the claimant does not carry a diagnosis of depression.
The claimant’s credibility, in general, is brought into question as a result
of her inconsistent statements about her living situation and her marijuana
usage. When the claimant filed her application for supplemental security
income, she reported to the Social Security Administration that she was
35

living alone (Exhibit SSI-1, p. 2; Exhibit 4E, p. 1) and she told Dr. Lucas
that her boyfriend “visits” (Exhibit 4F, p. 2). In January 2007, the claimant
reported that she has been living with her boyfriend for the past five years
and that he delivers pizza for Domino’s (Exhibit 13F, pp. 9, 16). On March
2, 2007, Donna Mitchell reported that the claimant “rents from me” and
owed past-due rent of $2,625.00 (Exhibit 9E, p. 1). Additionally, Ms.
Mitchell reported that the claimant owed a remaining balance of $1,000.00
on her vehicle which she stated would be repossessed (Exhibit 9E, p. 1).
The claimant, however, told the Social Security Administration that she
did not own a car (Exhibit SSI-1).
The claimant’s credibility is further brought into question as Dr. Lucas
noted that the claimant had a histrionic presentation. Dr. Hamrick testified
that this suggests than an individual has a tendency to be overly dramatic
or to exaggerate. As noted above, multiple medical sources of record have
questioned the claimant’s allegations. Additionally, the claimant told
sources at Sutton Behavioral that she has been suffering from a number of
conditions that are not corroborated by the medical record such as
multiple sclerosis and leg degeneration (Exhibit 13F, p. 11). Indeed, even
Dr. Rohrer’s co-workers questioned the claimant’s reliability as the
Evaluation for Adult Services documents that the Mental Health Intern
and the Reviewer were “Not sure about client as reliable historian”
(Exhibit 13F, p. 23). Furthermore, the claimant has made much of an
alleged “poor appetite” (see Exhibit 13F, pp. 1, 2, 3, 8; Exhibit 12F, p. 3;
exhibit 20F, p. 1) yet the claimant has nevertheless managed to maintain a
weight in the 200 pound range.
Overall, the claimant has not offered any reasonable explanation as to why
she stopped working. Her testimony that she was fired for being “sick” is
not corroborated by evidence of illness in her treatment records which is
contemporaneous with her alleged disability onset date. The claimant
admitted that she has not participated in vocational rehabilitation or any
other employment services that would help her go to work (Exhibit 7E, p.
6; Exhibit 8E, p. 6; Exhibit 12E, p. 4; Exhibit 15E, p. 7). Rather, the claimant
told Dr. Tribuzio that her plan was to go on disability (Exhibit 14F, p. 14).
(R. 29-30.) Here, the administrative law judge properly considered whether objective
medical evidence supported plaintiff’s allegations of disabling pain. Furthermore, the
administrative law judge considered inconsistent statements made by plaintiff in
36

addition to statements made by treatment providers that she exaggerated her
symptoms. As a result, the administrative law judge’s credibility determination is
supported by substantial evidence.
From a review of the record as a whole, I conclude that there is substantial
evidence supporting the administrative law judge's decision denying benefits.
Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social
Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for
summary judgment be DENIED and that defendant’s motion for summary judgment
be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge
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