Alexander v. Commissioner Social Security Administration et al

Filing 16

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Joseph A. Alexander should be DISMISSED; Objections to R&R due by 4/19/2012. Signed by Magistrate Judge Mark R. Abel on 4/2/12. (sh1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Joseph A. Alexander,

:

Plaintiff

Commissioner of Social Security,
Defendant

Civil Action 2:11-cv-762

:

v.

:

Judge Smith

:

Magistrate Judge Abel

:

Report and Recommendation
Plaintiff Joseph A. Alexander brings this action under 42 U.S.C. §§ 405(g)
and 1383(c)(3) for review of a final decision of the Commissioner of Social Security
denying him a period of disability, disability insurance benefits, and supplemental
security income. This case is now before the Magistrate Judge for a report and
recommendation on the disposition of this matter.
Summary of Issues. Plaintiff Alexander filed an application on March 14,
2008 for a period of disability, disability insurance benefits, and supplemental
security income, alleging that he had been disabled since August 1, 2003, at the age
of 28, by a learning disability, ADHD, anxiety, severe depression, carpal tunnel
syndrome in both feet, gout, degenerative disc disease, a back injury, and arthritis.
Alexander was 34 years old at the time of the administrative hearing. The administrative law judge (“ALJ”) found that Plaintiff retains the ability to perform a
limited range of light work involving simple, routine, repetitive tasks, without

production rate or pace work, and limited to no more than occasional interaction
with the public and co-workers. Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because the ALJ failed to give proper
weight to the opinion of Plaintiff’s treating therapist.
Procedural History. Plaintiff Joseph A. Alexander filed his application for a
period of disability and disability insurance benefits, as well as for supplemental
security income, on March 14, 2008, alleging that he had been disabled since August 3, 2003 by a learning disability, ADHD, anxiety, severe depression, carpal
tunnel syndrome in both feet, gout, degenerative disc disease, a back injury, and
arthritis. (R. 278) The application was denied initially and upon reconsideration.
Plaintiff sought a de novo hearing before an administrative law judge. On April 27,
2010, an administrative law judge held a hearing at which Plaintiff, represented by
counsel, appeared and testified. (R. 43.) A vocational expert and psychologist also
testified at the hearing. On May 28, 2010, the administrative law judge issued a
decision finding that Plaintiff was not disabled within the meaning of the Act. (R.
15-32.) On June 24, 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. 1.) He thereupon filed this appeal.
Age, Education, and Work Experience. Plaintiff was born on June 23, 1975.
(R. 30.) He graduated from high school, after being in special education, in 1994.
(R. 284.) He previously worked as an engine assembler in a factory, a deckhand on
a river barge, and a laborer at a grain elevator. (R. 51-52.) In 2003 he walked away

from his final job (as a cook) because he was being harassed by customers and did
not wish to become violent. (R. 53.)
Plaintiff’s Testimony. The administrative law judge summarized Plaintiff’s
relevant hearing testimony as follows:
The claimant became tearful at the start of the hearing. When asked
why he was upset he indicated that he was remembering “everything.”
He explained that he remembered seeing his “Pop” close his eyes when
he died, remembering the child that he never really saw and did not
have the chance to raise, and now realizing he “is not even fit to be a
father.” He stated he “just tries to make it from day to day.” The undersigned noted that after the claimant explained why he was tearful,
the claimant stopped crying and was able to proceed and participate
without any further episodes. [...]
The claimant stated he is currently prescribed an anti-anxiety medication, anti-depressant, breathing medication and ibuprofen for his
pain. The claimant explained that he is only prescribed ibuprofen because the doctors did not want to put anything too hard on his stomach. He indicated that some days he feels better than others. He
reportedly continues to receive mental health treatment at Tri-County
on a monthly basis. He noted his mother told him he was suicidal
when he was younger. [...]
On a good day he cooks, watches television and then crawls up in a
ball. He noted that people talk to him and “it is like I’m somewhere
else.” He stated he would not mind to go back to work and had
thought about going back to school. He described high school as “a
living hell” and indicated that he could not go back. He noted that
when he was in school he wanted to take some classes that would have
helped in college or in life, but his teachers would not let him take
them. When asked if he recalled telling Dr. Colburn that he wanted to
go back to school the claimant stated “I have told a lot of people I plan
to go back to school.” He indicated that he only feels like going to
school on good days, but the next day he is back in a “ball” just wanting to be left alone.
(R. 21-22.)

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Medical Evidence of Record.
Although the administrative law judge’s decision fairly sets forth the relevant
medical evidence of record, this Report and Recommendation will summarize that
evidence in some detail. Plaintiff does not raise, on appeal, any errors relating to
his physical condition.
Mental Impairments.
J. Thomas Muehlman, Ph.D. On June 17, 2004, in conjunction with a prior
application for benefits, Dr. Muehlman performed a consultative psychological
examination at the request of a state disability determination agency. (R. 392-396.)
Dr. Muehlman administered intelligence testing, noting that Plaintiff appeared to
have put forth his best effort despite a tendency towards impulsive responses. (R.
392.) An administration of the Beck Depression Inventory resulted in a score indicative of severe depression. (R. 394.) Plaintiff reported being on Effexor, although he said it did not help with depression. He stated that he watched TV or
played video games, and that he was able to get along well with virtually everyone,
but that he felt very stressed. (R. 395.)
Dr. Muehlman concluded that Plaintiff suffered from depressive disorder
NOS, as well as a personality disorder NOS with schizoid traits. He opined that
Plaintiff was moderately impaired in his ability to deal with work stress, to maintain his personal appearance, and to behave in an emotionally stable manner. He
opined further that Plaintiff was mildly impaired in his ability to relate to cowork-

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ers, deal with the public, use judgment, deal with supervisors, maintain concentration, and understand, remember, and carry out simple job instructions. Dr.
Muehlman also opined that Plaintiff was moderately to markedly impaired in his
ability to demonstrate reliability. (R. 395.)
Tri-County Mental Health. Plaintiff received care at Tri-County Mental
Health and Counseling Services from approximately January 2006 until September
2008. Except as otherwise noted, the names of providers are illegible in the record.
On January 25, 2006, Plaintiff received an intake diagnostic assessment at
Tri-County. (R. 551-558.) He reported a depressed mood since the age of eight,
with symptoms such as diminished energy, insomnia, memory disturbance, and
feelings of hopelessness and worthlessness, and stated that he tended to isolate
himself due to his depression. (R. 551-52.) Tri-County personnel noted a pattern of
major depression resolving into dysthymia, and recommended individual counseling. (R. 557.)
Treatment notes from an August 14, 2006 interview stated that Plaintiff
reported that he had suffered reduced concentration and motivation for the last six
months. He had suffered a chaotic childhood, with physical abuse by a stepfather,
and had a violent temper. Plaintiff reported that he engaged in tattooing as a form
of self-mutilation. (R. 592.) The examining psychiatrist noted that there was no
evidence of psychosis or suicidality, and that Plaintiff had demonstrated interest in
education and in securing a stable future. She prescribed Wellbutrin to target
mood, and Lunesta for improved sleep, with a follow-up in five weeks. (R. 590.)
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On September 19, 2006, Plaintiff returned to Tri-County for a follow-up
appointment. He reported that the Wellbutrin and Lunesta had not helped, and
that there had been no change in his mood and motivation. He reported feeling sad
and overwhelmed. His provider discontinued Wellbutrin and Lunesta, and started
Plaintiff on Cymbalta and Trazodone, recommending a follow-up in one month. (R.
588-89.)
On October 18, 2006, Plaintiff returned to Tri-County for a follow-up
appointment. His provider noted that Plaintiff reported a better mood and much
improved sleep. However, he was concerned about attention symptoms, reporting
distractability, fidgeting, daydreaming, impatience, and losing things frequently.
(R. 586.) The provider noted that his depression was in partial remission, and
recommended that he return in one month. (R. 587.)
On February 8, 2007, a provider at Tri-County completed an adult diagnostic
assessment form to note a change of diagnosis. Plaintiff was diagnosed with major
depressive disorder, recurrent, mild, and dysthemic disorder. (R. 545.)
On April 4, 2007, Plaintiff returned to Tri-County. The provider noted that
Plaintiff had a constricted affect but a brighter and more relaxed appearance. (R.
579.) However, Plaintiff reported continued significant insomnia. (R. 580.)
On May 3, 2007, at another follow-up appointment, Plaintiff reported that
with the addition of Klonopin to his medication he had been feeling better, with a
significant reduction in anxiety. (R. 578.) At a follow-up appointment on June 7,
2007, Plaintiff reported that he was continuing in counseling and that Klonopin had
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been helping with his anxiety. (R. 576.)
However, after a long break between visits, including running out of Klonopin and reducing his Cymbalta dose to stretch the supply, Plaintiff returned to TriCounty on October 1, 2007. He reported renewed sleeping problems and some
crying. A new treator, Dr. Colburn, diagnosed Plaintiff with dysthymia, major
depressive order, recurrent, and personality disorder, not otherwise specified, with
borderline traits. (R. 574.)
At a follow-up appointment on October 30, 2007, Plaintiff reported to Dr.
Colburn that he had multiple stressors, and that his depression was evident at least
half the time, but that his mood was better overall.

(R. 572.) At a November 28,

2007 appointment, Plaintiff reported that he “has been feeling more focused”, and
that his home situation was stable. (R. 570.)
On January 8, 2008, Plaintiff returned to Tri County. Dr. Colburn noted that
Plaintiff reported “some sadness around the holidays”, but that “his medications
seem to be working well.” Plaintiff stated that he was planning to return to school,
and that he had no suicidal or homicidal ideation. He continued to struggle with
insomnia. (R. 568.) Plaintiff did not see Dr. Colburn again until April 22, 2008,
when he reported his overall mood as “fair”. He stated that he often isolated
himself from others, but that he preferred doing so. (R. 564.) Dr. Colburn noted
that Plaintiff’s affect was worried, but that his mood was possibly euthymic. (R.
563.) Plaintiff reported at a June 17, 2008 follow-up that his panic attacks were
diminished by the Klonopin, and that his mood was usually “mellowed out”, but
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that he had suffered some reduction in interests and hobbies. (R. 562.) Dr. Colburn
rated Plaintiff’s mood euthymic and his affect calm, and recommended a follow-up
appointment in three months. (R. 561.) At a September 9, 2008 follow-up appointment, Plaintiff reported to Dr. Colburn that “overall he seems to be doing well”, and
that, although he still tended to isolate himself, his home situation was stable. (R.
560.)
R. Kevin Goeke, Ph.D. On September 26, 2006, Dr. Goeke, a state agency
psychologist, completed a psychiatric review form. (R. 431-38.) He found Plaintiff
to exhibit recurrent major depression and dysthymia. (R. 431.) Dr. Goeke opined
that Plaintiff had moderate difficulties in maintaining social functioning and
concentration, but only mild restriction on activities of daily living. (R. 431.) As to
vocational tasks, Dr. Goeke found that Plaintiff was moderately limited in his
ability to understand, remember, and carry out detailed instructions, to maintain
attention and concentration for extended periods, to complete a normal workday
and -week without interruptions from psychologically based symptoms, to interact
appropriately with the general public, to get along with coworkers without distracting them, and to respond appropriately to changes in the work setting. (R. 435-36.)
Dr. Goeke concluded:
Clmt is a 31 yr old male alleging anxiety, depression, learning, and
physical issues. Psych allegations are credible in nature but not
severity. Clt has 12th grade special education and has worked on a
barge and as a cook. No hx of IP psych tx but has been treated with
psychotropics.
The medical evidence shows that clmt has had a low mood, poor sleep,
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decreased memory, decreased energy, libido, and decreased motivation.
There is no mania, no psychosis, and no evidence of suicidality. His
tattooing is a form of self mutilation. Has a history of substance abuse
until his recent diagnosis of gout. Now he has rare use. His stressors
are numerous losses in the past five years: financial, distance from
family, and a relationship. Dx of depression; no Axis II dx given.
In third party ADL’s she says, clmt has an average ability to follow
instructions. Report says he has no trouble getting along with others.
He doesn’t handle stress well, it causes him to shift himself away from
others. She occasionally has to remind him to take his medication.
Third party is felt credible.
MRFC limited to simple and routine tasks in a low social demand
setting w/o strict time pressures or production quotas.
(R. 437.) On April 20, 2007, Dr. Vicki Casterline, Ph.D., a state agency physician,
reviewed and affirmed Dr. Goeke’s opinion. (R. 447.)
Gary S. Sarver, Ph.D. On May 27, 2008, Dr. Sarver performed a psychological evaluation on Plaintiff at the request of a state disability determination
agency. (R. 476.) Dr. Sarver noted that Plaintiff’s appearance was unremarkable,
and that his speech and language were within normal limits with no indications of
thought disorders or flight of ideas. Plaintiff’s affect was constricted but otherwise
within normal limits in terms of range and appropriateness, and his mood was
subdued with no emotional lability. He reported hopelessness and helplessness,
with poor energy and frequent crying. Dr. Sarver noted no motoric indications of
depression or anxiety. Plaintiff reported only low lethality suicidal ideation, and
denied any homicidal ideation. (R. 478.)
Dr. Sarver evaluated Plaintiff’s cognitive functioning, finding intact orientation to person, place, time, and situation, and intact memory registration. (R.
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479-80.) He noted specifically that Plaintiff had no difficulty in filling out the
release of information form. (R. 479.) Dr. Sarver concluded that Plaintiff’s ability
to relate to others and to manage daily work stresses appeared to be moderately
impaired by dysthymia, but that his ability to understand and follow simple job
instructions, and to perform simple, repetitive tasks appeared not to be impaired.
He assessed Plaintiff with a GAF of 51. (R. 481.)
Alice Chambly, Psy.D. On June 12, 2008, Dr. Chambly, a state agency
psychologist, performed a mental residual functional capacity assessment based
upon Plaintiff’s medical record. (R. 518-536.) She determined that Plaintiff had
moderate limitations in his ability to understand, remember, and carry out detailed
instructions, as well as his ability to work in coordination with or in proximity to
others without distraction, to complete a normal workday and -week without
interruptions from psychologically based symptoms, to interact appropriately with
the general public, to accept instructions and criticism from supervisors, and to
respond appropriately to changes in the work setting. (R. 518-19.) Dr. Chambly
found for purposes of the listings that Plaintiff had moderate difficulties in social
functioning and in maintaining concentration, persistence, or pace, and mild
restrictions on activities of daily living. (R. 533.)
Dr. Chambly concluded that Plaintiff’s social interaction and ability to handle
stress were poor, but that Plaintiff “would have no problem performing simple,
routine tasks on a daily basis”. She also opined that Plaintiff’s treating source
opinions were given “limited weight as they are not consistent with claimant’s level
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of functioning”. (R. 520.) On October 5, 2008, Dr. Mel Zwissler, Ph.D. reviewed and
affirmed Dr. Chambly’s opinion. (R. 594.)
Bonnie de Lange, PCC. Ms. de Lange supplied a letter dated December 31,
2009, which stated that she had been working in a counseling relationship with
Plaintiff since February 7, 2006, spanning approximately thirty-eight counseling
sessions. She opined:
Joseph has worked consistently in counseling and has delineated goals
that, if achieved, would enable him to become more independent,
increase self-confidence and self-esteem and to attempt to return to
work. Although he has been compliant and has made a long-term
commitment to treatment, it appears as though he is unable to make
and maintain progress in developing the skills needed to obtain gainful
employment. He has consistently requested case management help
with completion of paperwork, resolving unhealthy housing issues and
resolving conflict with landlord and neighbors. It appears as though
he attempts to resolve issues on his own, but his case history indicates
that he is often unable to do this. There have been brief periods when
he verbalizes a desire to make progress and move forward, however,
these periods have generally been short-lived and, in my opinion, he
has not demonstrated that he has that ability.
Based on my work with the above individual, it is my opinion that he is
disabled.
(R. 668.)
Jeffery Freemont, Ph.D. Dr. Freemont, a psychologist, testified by telephone
at Plaintiff’s hearing before the administrative law judge. He reviewed Plaintiff’s
record, and asked questions of Plaintiff at the hearing concerning his medications.
(R. 57-58.) Dr. Freemont opined that Plaintiff did suffer from dysthymia, but that it
was situational and he did not meet the criteria for a listed impairment. When
asked by the ALJ, Dr. Freemont stated that he did not believe Bonnie de Lange’s
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assessment, noting that he gave little credibility to her statements that Plaintiff
had difficulty managing paperwork based upon his record. (R. 59-60.)
Administrative Law Judge’s Findings. The administrative law judge found
that Plaintiff had the severe impairments of dysthymia, degenerative disc disease
and degenerative joint disease of the lumbar spine, learning disability, hiatal
hernia, gout in the right first toe, and status post tarsal tunnel surgery. (R. 18.) He
concluded, with respect to Plaintiff’s mental impairments, that they did not satisfy
the listing criteria.
In making his decision, the ALJ found that Alexander was not entirely
credible:
[A] record show[ed] that the claimant reportedly was receiving Social
Security benefits. The undersigned asked the claimant if he had ever
been on Social Security, to which the claimant replied "no sir." He
reportedly receives food stamps and his girlfriend receives Social
Security. . . .
...
The objective findings do not support the extreme limitations alleged
by the claimant and reveal that he is not entirely credible.
...
[T]he record showed history of alcohol abuse that reportedly resolved
when the claimant was diagnosed with gout. The claimant was noted
to be interested in education and securing a stable future. He was
diagnosed with major depressive disorder, recurrent and moderate and
dysthymic disorder (Exhibit 20F). The undersigned noted the evalutator's signature and credential were illegible. The undersigned also
noted the numerous inconsistent statements regarding substance
abuse. At times the claimant denied alcohol and street drug use and/or
abuse; however, at other times the claimant reported alcohol abuse
and marijuana use. The undersigned finds the inconsistent statements
reflect poorly on the claimant’s credibility.
(R. 22 and 26.)
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The ALJ gave “significant weight” to the opinions of examining psychologist
Dr. Gary Sarver, “weight” to the opinions of non-examining psychologists Drs.
Goeke and Casterline, and “great weight” to the opinions of non-examining psychologists Drs. Chambly and Zwissler, finding all of these consistent with the record
as a whole. (R. 29.) The ALJ concluded that Plaintiff had mild restriction in
activities of daily living, moderate difficulties in social functioning, moderate
difficulties with regard to concentration, persistence, or pace, and no episodes of
decompensation. (R. 19.)
The ALJ determined that Plaintiff retained the capacity to perform light
work involving simple, routine, repetitive tasks, without production rate or pace
work, and limited to no more than occasional interaction with the public and coworkers. (R. 20.) Based upon these stated limitations, the testifying vocational
expert concluded that Plaintiff was unable to perform any past relevant work, but
that a significant number of jobs existed in the national economy which he could
still perform. The ALJ adopted this opinion and found that Plaintiff was not
disabled. (R. 32.)
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,

13

229 (1938)). It means “‘more than a scintilla.’” 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, Educa-

tion 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 ALJ unreasonably gave little
weight to the opinion of his treating therapist, Ms. de Lang.
Analysis. The sole matter at issue in this appeal is whether the ALJ erred in
giving little weight to the opinion of Ms. de Lang, Plaintiff’s treating therapist.
Counselors such as Ms. de Lang are not “acceptable medical sources” for purposes of
20 C.F.R. 404.1513(a). Nevertheless, 404.1513(d) mandates that “[i]n addition to
evidence from [acceptable medical sources]... we may also use evidence from other
sources to show the severity of your impairments and how it affects your ability to
work.” Under SSR 06-3p, only “acceptable medical sources” can give medical
opinions or provide evidence to establish the existence of a medically determinable
impairment. However, counselors qualify as “other sources”, and “information from
14

such ‘other sources’ may be based on special knowledge of the individual and may
provide insight into the severity of the impairment(s) and how it affects the individual’s ability to function.”
Here, the ALJ reviewed and properly evaluated Ms. de Lange’s letter in his
opinion. He noted at the outset that she was not an acceptable treating source
under 404.1513, but “further considered Ms. de Lange’s opinion in light of SSR 0603.” (R. 29.) However, he gave her opinion little weight for three reasons: (1)
although Ms. de Lange represented that she had seen Plaintiff approximately once
a month for two years, the record reflected only one such appointment; (2) Ms. de
Lange purported to conclude that Plaintiff was disabled, a determination reserved
to the Commissioner under 20 C.F.R. 404.1527(e) and 416.927(e); and (3) Ms. de
Lange’s opinion as to Plaintiff’s long-standing, ongoing struggle with his depression
was inconsistent with the Tri-County treatment records that showed improvement
in symptoms and overall satisfactory functioning. (R. 29-30.) Although counsel
requested a supplemental hearing to give Ms. de Lange the opportunity to offer a
detailed explanation for her opinion, the ALJ denied the request in light of the
reasons he cited for discounting her opinion.
Plaintiff cites the “treating physician rule”, which holds generally that the
opinion of a treating physician must be given controlling weight if it is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and
is not inconsistent with the other substantial evidence in the case record. See

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). He also notes 20
15

C.F.R. 404.1527(d), which provides that more weight should be granted to the
opinions of a treating source than to the opinion of a source who has not examined a
claimant, and caselaw providing that when the Commissioner has not provided
good reasons for the weight given to a treating physician’s opinion, remand is
proper. Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009).
Any application of the treating physician rule here, however, is incorrect, as
Ms. de Lange is plainly not an “acceptable medical source”. Even under SSR 0603p, “only ‘acceptable medical sources’ can be considered treating sources... whose
medical opinions may be entitled to controlling weight.” The ALJ, in his opinion,
gave great significant weight to the opinion of Dr. Sarver, who performed an
examination of Plaintiff and concluded that Plaintiff retained the ability to perform
simple work, and weight to the opinions of Drs. Goeke and Chambly, the nonexamining state agency psychologists. He found that their opinions were consistent
with the record as a whole. Plaintiff’s entire argument appears to be based upon
the mistaken premise that Ms. de Lange’s letter qualified as, or should be considered equivalent to, a treating medical opinion conflicting with those of Drs.
Sarver, Goeke, and Chambly. Under the regulations, however, it was not, and could
supply only information to “provide insight into the severity of the impairment(s)
and how it affects the individual’s ability to function.” SSR 06-03p. The ALJ not
merely did not, but could not, err in failing to give proper weight to Ms. de Lange as
a treating medical source.
Plaintiff argues also that the ALJ erred in not seeking additional evidence or
16

clarification regarding the extent to which Plaintiff had actually received counseling
from Ms. de Lange on his numerous visits to Tri-County. He cites 20 C.F.R.
§404.1512(e), which provides that the ALJ must seek “additional evidence or
clarification from your medical source when the report from your medical source
contains a conflict or ambiguity that must be resolved, the report does not contain
all the necessary information, or does not appear to be based on medically acceptable clinical and laboratory diagnostic techniques.” This regulation, however, states
that it applies to a “treating physician or psychologist or other medical source”,
which includes only treating sources. See Ferguson v. Comm’r of Soc. Sec., 628 F.3d
269, 272-73 (6th Cir. 2010), citing SSR 96-5p. A counselor is not a “treating source”,
as “only ‘acceptable medical sources’ can be considered treating sources”. SSR 0603p.
The ALJ accordingly did not err in failing to give controlling weight to the
opinion of Ms. de Lange. It was not error for him to give significant weight to Dr.
Sarver, the examining psychologist, or to the four state agency reviewing psychologists.1 It was not error for him to give greater weight to the opinions of these five
psychologists than to the opinion of Ms. de Lange, or for him to conclude that Ms. de
Lange’s opinion that Plaintiff suffered from continued and disabling symptoms was

Plaintiff offers no support for his argument that Dr. Sarver’s opinion “is in
indirect conflict with the treatment notes and opinion letter from his treating physicians at Tri County Mental Health”, and again implicitly asks the Court to consider Ms. de Lange – presumably the source of the “opinion letter” to which he
refers – as a “treating physician”. (Doc. 9 at 5.)
1

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not supported by the treatment records demonstrating gradual improvement. Finally, it was not error for him to fail to seek additional evidence from Ms. de Lange
as to her counseling records, as she was not a treating source subject to 20 C.F.R.
§404.1512(e).
Conclusions. For the reasons set forth above, I find that there is no basis to
overturn the decision of the Administrative Law Judge. Accordingly, I RECOMMEND that Plaintiff’s objections be OVERRULED, and that this case be DISMISSED.
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
party 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 judgement 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.3d 15, 16 (2d Cir. 1989).
s/Mark R. Abel
United States Magistrate Judge

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