Baehr v. Commissioner Social Security Administration

Filing 19

REPORT AND RECOMMENDATIONS: Commissioner of SSA decision be AFFIRMED; Dft's motion for summ judg be GRANTED; Objections to R&R due by 10/12/2012. Signed by Magistrate Judge Mark R. Abel on 9/24/12. (sh1)

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

Nicholas Baehr,

v.
Michael J. Astrue,
Commissioner of Social Security,
Defendant

Civil Action 2:11-cv-01076

:

Plaintiff

:
:

Judge Sargus

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Nicholas Baehr 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
his application for Disability Insurance Benefits 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 alleges that he is disabled due to depression and
anxiety. The administrative law judge concluded that plaintiff could perform his past
relevant work as a stocker and a landscaping grounds maintenance worker.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge failed to properly consider all medical source
opinions pursuant to SSR 96-2p, 20 C.F.R. §§ 404.1527(d) and 416.927(d); and,
• The administrative law judge failed to properly assess the plaintiff's credibility
in evaluating his symptoms and determining the functionally limiting effects
of his impairments.

Procedural History. Plaintiff Nicholas Baehr filed his application for disability
insurance benefits on May 18, 2009, alleging that he became disabled on May 15, 2008,
at age 25, by depression, severe anxiety, panic attacks, agoraphobia, and stunted
emotional development. (R. 116, 156.) The application was denied initially and upon
reconsideration. Plaintiff sought a de novo hearing before an administrative law judge.
On April 14, 2011, an administrative law judge held a hearing at which plaintiff,
represented by counsel, appeared and testified. (R. 22.) A vocational expert also
testified. On May 27, 2011, the administrative law judge issued a decision finding that
Baehr was not disabled within the meaning of the Act. (R. 17.) On October 31, 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. 13.)
Age, Education, and Work Experience. Nicholas Baehr was born January 16,
1983.

(R. 116.) He completed his GED in 2001. (R. 163.) He has worked as a crew

leader, a customer service representative, a damage prevention specialist, a laborer, a
maintenance worker, a package handler, and a stocker. He last worked April 25, 2009.
(R. 156-57.) His employment between 1996 and 2009 was sporadic. (R. 124 and 165.)
Plaintiff’s Testimony. Plaintiff testified that he saw his psychiatrist, Dr,
Williams, every two weeks. He was prescribed Subutex for opiate dependence,
Klonopin for anxiety, and Zoloft for depression.

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Baehr testified that he 6'1" and weighed around 200 pounds. His weight had
increased over the past two years due to laying around and not doing anything. He had
no motivation to do anything. Although he had a driver’s license, he did not drive
often. He received his GED and attended college, but he did not complete his degree.
He had no income and was supported by his father. His last attempt at working was in
April 2009. He only lasted a couple of days. His depression and anxiety prevented him
from working.
Baehr testified that he began using opiates when he was 18. He was incarcerated
for 11 months in 2004-2005. After he was released from prison, he was clean for a few
months before he starting using again. He has not used heroin since 2008.
He reported that he had difficulty sleeping. During a typical day he played
music, played video games, or watched television. He was a DJ and mixed records, but
it required a lot of concentration and could only do it for about 20 minutes. He played
an online roleplaying game with other people on their schedule. He typically played
from around 8-9:00 p.m. until 1-2:00 a.m. He did not do well in public, with face-to-face
interaction, but he enjoyed interacting with people on the computer.
He watched a little bit of everything on television, such as the Discovery
Channel, the History Channel, TNT, and sometimes Comedy Central if his dad was
around to watch with him.
He and his dad attempted to fix the car if it needed work. He also tried to
exercise with his brother. He could take care of his own hygiene, although he only took
3

a shower every few days due to a lack of motivation. He has never lived
independently. Prior to living with his father, he lived with his mother. (R. 26-42.)
Medical Evidence of Record.
Sudhir Dubey, PsyD. On July 20, 2009, Dr. Dubey performed a disability
assessment at the request of Bureau of Disability Determination. For the past three
years, he had been receiving psychiatric treatment from his primary care doctor. When
he was 15 years old, he was treated for depression and for “acting out.” He was
currently prescribed Zoloft, Subutex, and Vistaril. He abused heroin for four years, but
he quit three years ago. He was incarcerated for 11 months for drug possession. Baehr
last worked in April 2009 doing construction, but he only lasted three days.
On mental status examination, his affect was appropriate and his emotional
reactions were within normal limits. He reported that he was feeling okay and that his
mood in general was okay. He denied mood swings. He denied crying or symptoms of
depression. He reported no appetite or weight changes. He had difficulty falling asleep.
He slept a total of eight to twelve hours on a daily basis. He denied feelings of guilt,
hopelessness, or helplessness. His energy level had decreased over the past two years.
He denied anhedonia. He denied suicidal or homicidal ideation.
Baehr was oriented in all four spheres. He was alert and responsive. He reported
difficulty concentrating. He denied difficulty with his memory. He was able to recall six
digits forward and four numbers backwards. He was able to recall three objects after a

4

five minute delay. Serial sevens were within normal limits. His ability to perform
simple calculations was average.
Baehr reported that his daily activities included cooking, cleaning, doing
laundry, and watching television. He reported socially interacting with people on a
regular basis. He did not have any recreational activities or hobbies.
Dr. Dubey diagnosed depressive disorder, not otherwise specified, and
hallucinogenic abuse in remission. (R. 256-62.)
Marva Dawkins, Ph.D. On August 20, 2009, Dr. Dawkins, a psychologist,
reviewed the evidence of record and completed a psychiatric review technique and
mental residual functional capacity assessment. She noted diagnoses of depressive
disorder, not otherwise specified, and hallucinogenic abuse in remission. Dr. Dawkins
opined that Baehr had mild restriction of activities of daily living, moderate difficulties
in maintaining social functioning, and moderate difficulties in maintaining
concentration, persistence or pace. He had no episodes of decompensation.
With respect to understanding and memory, plaintiff was not significantly
limited. With respect to sustained concentration and persistence, plaintiff was
moderately limited in his ability 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. With respect to social
interaction, Baehr was moderately limited in his ability to get along with coworkers or

5

peers without distracting them or exhibiting behavioral extremes. Plaintiff had no
significant limitations with respect to adaptation. (R. 263-80.)
Robert Polite, D.O. On December 8, 2009, Dr. Polite, a general practitioner,
reported Bureau of Disability Determination that he began treating plaintiff Baehr in
October 2007. (R. 282-84.) He said that Baehr experienced decreased heart rate,
shortness of breath, chest discomfort, excessive sweating, feelings of worthlessness,
sadness and forgetfulness. Baehr exhibited lack of motivation, decreased concentration,
impaired long-term memory and periods of confusion. He was not able to concentrate
or focus without becoming frustrated. He experienced difficulty breathing when he was
in a large crowd. Approximately, three to four days per week, plaintiff did not shower,
get out of bed or complete self-care. With increased social interaction, plaintiff suffered
a loss in concentration and increased anxiety. Baehr experienced anxiety on a daily basis
and required medication to control his symptoms. Stress resulted in increased anxiety.
(R. 283.)
Plaintiff’s anxiety has continued to worsen since the age of 15. His medications
would not allow for increased anti-anxiety medications. Plaintiff tended to become
overly stressed, and he could not tolerate routine stress or workplace stress. Plaintiff
was diagnosed with depression, anxiety, and opiate dependence. (R. 284.)
Dr. Polite’s treatment notes for October 19, 2007 state that Baehr had full affect
and a euthymic mood. His memory and concentration were good. He had logical
thought processes. His thought content was clear. He had good insight and judgment.
6

He was described as doing well on Suboxone and Klonopin. The diagnosis was opiate
addiction. (R. 286.) Baehr continued to have unremarkable findings on mental status
examination from December 2009 through September 2010. (R. 292-301, 305-33.) The
diagnosis throughout was opiate dependence. On two visits, there was the additional
diagnosis of anxiety (R. 288 and 331) and one time depression. (R. 315.) On October 5,
2010, plaintiff was described as doing well for the most part. (R. 291.) On November 2,
2010, plaintiff had full affect and euthymic mood. He was described as doing well. (R.
290.) On November 30, 2010, plaintiff’s mental status examination was unremarkable.
He was doing well with no complaints of side effects. (R. 288.) On December 22, 2010,
plaintiff’s affect was full with euthymic mood. He was described as “doing well for
most part.” (R. 287.) On January 25, 2011, plaintiff was described as having full affect
and euthymic mood. His speech was coherent. His memory and concentration were
good. (R. 286.) From February through March 2011, plaintiff continued to have full
affect with euthymic mood. His was doing well and did not complain of any side
effects. (R. 345-46.)
Kristen Haskins, Psy.D. On February 27, 2010, Dr. Haskins reviewed additional
evidence filed on reconsideration. Dr. Haskins concluded that the clinical evidence did
not support a material change to the initial decision. The initial mental residual
functional capacity assessment was affirmed as written. (R. 285.)
Gary A. Williams, Ph.D., L.P.C.C. On February 8, 2011, Dr. Williams, a
psychologist who worked in Dr. Polite’s office, evaluated plaintiff. Plaintiff was
7

unemployed and reported a long history of sporadic unemployment due to anxiety
related to people, social situations, and general fears of being judged. He adopted
avoidant behaviors and isolated himself. He reported worrying and panic attacks, but
these symptoms did not meet criteria for generalized anxiety disorder or panic disorder.
He had no desire to improve or increase his social interaction. He had a history of a
mood disorder with sadness, irritability, poor sleep, isolation, and fatigue. He had no
long term plans for employment, school, or planning a family. His anxiety appeared to
be resistant to treatment, which might be indicative of a personality disorder with
avoidant and antisocial traits. Dr. Wilson also indicated that malingering for personal
gain should be ruled out. (R. 336-38.)
Dr. Wilson also completed a biopsychosocial evaluation. Dr. Wilson indicated
that plaintiff had a degree from Columbus State in auto mechanics. Plaintiff began
using marijuana at age 14. At age 16, he was selling club drugs. He began using heroin
at age 18. Plaintiff reported sadness and depression. He did not have difficulty
concentrating. He had problems with his sleep and his appetite. He had difficulty with
his anger and his nerves. Dr. Wilson diagnosed opioid dependence; major depression
disorder, recurrent, moderate; anxiety disorder, not otherwise specified with a history
of panic attacks; personality disorder not otherwise specified with antisocial and
avoidant traits. He assigned Baehr a Global Assessment of Functioning (“GAF”) score
of 65 (R. 339-43), that is he had mild symptoms. DSM-IV.

8

On March 22, 2011, plaintiff reported that he followed through on finding an
exercise program. He had no problems with his medications. He had no cravings and
was staying clean. He still was not motivated to work. On April 12, 2011, plaintiff’s
mood seemed improved. He still was not participating in an exercise program. (R. 348.)
Administrative Law Judge’s Findings.
1.

The claimant meets the insured status requirements of the Social
Security Act through December 31, 2011.

2.

The claimant has not engaged in substantial gainful activity since
May 15, 2008, the alleged onset date (20 CFR 404.1571 et seq., and
416.971 et seq.).

3.

The claimant has the following severe impairments : Major
Depressive Disorder; Opioid Dependence (20 CFR 404.1520(c) and
416.920(c)).

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
404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926.

5.

After careful consideration of the entire record , I find that the
claimant has the residual functional capacity to perform a full range
of work at all exertional levels but with the following nonexertional
limitations: He is limited to simple, routine, and repetitive tasks,
with brief and superficial, coworkers, and the general public.

6.

The claimant is capable of performing past relevant work as a
stocker and landscaping grounds maintenance worker. This work
does not require the performance of work-related activities
precluded by the claimant's residual functional capacity (20 CFR
404.1565 and 416.965).

7.

The claimant has not been under a disability, as defined in the
Social Security Act, from May 15, 2008, through the date of this
decision (20 CFR 404.1520(f) and 416.920(f)).
9

(R. 12-17.)
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 properly consider all medical source
opinions pursuant to SSR 96-2p, 20 C.F.R. §§ 404.1527(d) and 416.927(d).

10

Plaintiff argues that the administrative law judge failed to articulate any basis
for rejecting the opinion of Dr. Polite.
• The administrative law judge failed to properly assess the plaintiff's credibility
in evaluating his symptoms and determining the functionally limiting effects
of his impairments. The administrative law judge failed to explain the weight
given to plaintiff’s testimony.
Analysis.
Treating Doctors’ Opinions. Plaintiff argues that the administrative law judge
erred in rejecting the opinion of Dr. Polite outlined in the December 8, 2009
questionnaire. See 282-84.
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 medi-

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 minimus. 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

11

cal 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.
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.

12

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
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

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

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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
[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.

14

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:
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.

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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
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).
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Treating Doctor: Discussion. The administrative law judge summarized Dr.
Polite’s treatment records as follows:
In terms of claimant’s alleged mental impairments, he was treated for
opiate dependence from as early as October 19, 2007. (Exhibit 6F/48) He
took Suboxone and Klonopin, and later switched to Methadone for the
condition as of June 2008. (Exhibit 6F/40, 42, 48)
He was still being followed for opiate dependence as late as January 2011,
and a February 2011 evaluation concluded that he still met the DSM-VI
criteria for opioid dependence. (Exhibit 6F/6; 7F/2) There were also
statements in the record concerning the claimant’s affective disorder, as he
took Zoloft for the condition as early as January 2008. (Exhibit 6F/45)
However, subsequent mental status examinations were consistently
normal. (Exhibits 6F; 7F/8)
(R. 15.) The administrative law judge explained her rationale for adopting the opinions
of Drs. Dubey, Dawkins, and Haskins:
As for the opinion evidence, I gave great weight to the opinions of the
State agency psychological consultants and psychological consultative
examiner. They were accompanied by detailed explanations, after a full
review of the entirety of the medical evidence. Additionally, the medical
evidence of record substantiates the agency examiner’s findings, and, as
medical consultants with the Administration, the examiners are certainly
well versed in the assessment of functionality as it pertains to the
disability provision of the Social Security Act, as amended.
(R. 15.)
Dr. Polite’s treatment notes consistently stated that plaintiff was doing well.
There were no significant findings on mental status examination. Dr. Polite’s opinion
was inconsistent with his own treatment notes and the medical evidence of record. As a
result, remand would be “an idle and useless formality.” Wilson v. Commissioner of Social
Security, 378 F.3d 541, 547 (6th Cir. 2004) (“[I]f a treating source's opinion is so patently
17

deficient that the Commissioner could not possibly credit it, a failure to observe §
1527(d)(2) may not warrant reversal.”).
Credibility Determinations: Controlling Law. Pain is an elusive phenomena.
Ultimately, no one can say with absolute certainty whether another person's
subjectively disabling pain and other symptoms preclude all substantial gainful
employment. The Social Security Act requires that the claimant establish that he is
disabled. Under the Act, a "disability" is 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), subjective symptoms alone
cannot prove disability. There must be objective medical evidence of an impairment
that could reasonably be expected to produce disabling pain or other symptoms :
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
18

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 framework for evaluating a claimant’s
symptoms consistent with the commands of the statute:
(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,
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
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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). A claimant’s symptoms will not be found to affect his ability to
work unless there is a medically determinable impairment that could reasonably be
expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then
evaluates the intensity and persistence of the claimant’s pain and other symptoms and
determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In
making the determination, the Commissioner considers
all of the available evidence, including your history, the signs and
laboratory findings, and statements from you, your treating or nontreating
source, or other persons about how your symptoms affect you. We also
consider the medical opinions of your treating source and other medical
opinions . . . .
Id.
In this evaluation of a claimant’s symptoms, the Commissioner considers both
objective medical evidence and “any other information you may submit about your
symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:
Because symptoms, such as pain, are subjective and difficult to quantify,
any symptom-related functional limitations and restrictions which you,
your treating or nontreating source, or other persons report, which can
reasonably be accepted as consistent with the objective medical evidence
and other evidence, will be taken into account as explained in paragraph
(c)(4) of this section in reaching a conclusion as to whether you are
disabled. We will consider all of the evidence presented, including
information about your prior work record, your statements about your
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symptoms, evidence submitted by your treating or nontreating source,
and observations by our employees and other persons. Section 404.1527
explains in detail how we consider and weigh treating source and other
medical opinions about the nature and severity of your impairment(s) and
any related symptoms, such as pain. Factors relevant to your symptoms,
such as pain, which we will consider include:
(I) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s
symptoms limit his ability to work, the Commissioner considers whether the claimant’s
statements about the symptoms is supported by or inconsistent with other evidence of
record:
In determining the extent to which your symptoms, such as pain, affect
your capacity to perform basic work activities, we consider all of the
available evidence described in paragraphs (c)(1) through (c)(3) of this
section. We will consider your statements about the intensity, persistence,
and limiting effects of your symptoms, and we will evaluate your
statements in relation to the objective medical evidence and other
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evidence, in reaching a conclusion as to whether you are disabled. We will
consider whether there are any inconsistencies in the evidence and the
extent to which there are any conflicts between your statements and the
rest of the evidence, including your history, the signs and laboratory
findings, and statements by your treating or nontreating source or other
persons about how your symptoms affect you. Your symptoms, including
pain, will be determined to diminish your capacity for basic work
activities to the extent that your alleged functional limitations and
restrictions due to symptoms, such as pain, can reasonably be accepted as
consistent with the objective medical evidence and other evidence.
20 C.F.R. § 404.1529(c)(4).
SSR 96-7p explains the two-step process established by the Commissioner’s regulations
for evaluating a claimant’s symptoms and their effects:
First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s)--i.e., an impairment(s)
that can be shown by medically acceptable clinical
and laboratory diagnostic techniques--that could reasonably be
expected to produce the individual’s pain or other symptoms. The
finding that an individual’s impairment(s) could reasonably be
expected to produce the individual’s pain or other symptoms does
not involve a determination as to the intensity, persistence, or
functionally limiting effects of the individual’s symptoms. . . .
Second, once an underlying physical or mental impairment(s) that
could reasonably be expected to produce the individual’s pain or
other symptoms has been shown, the adjudicator must evaluate
the intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit
the individual’s ability to do basic work activities. For this
purpose, whenever the individual’s statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence,
the adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
When additional information is needed to assess the credibility of
the individual’s statements about symptoms and their effects, the
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adjudicator must make every reasonable effort to obtain available
information that could shed light on the credibility of the
individual’s statements. In recognition of the fact that an
individual’s symptoms can sometimes suggest a greater level of
severity of impairment than can be shown by the objective
medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)
describe the kinds of evidence, including the factors below, that
the adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an
individual’s statements:
1. The individual’s daily activities;
2. The location, duration, frequency, and intensity of the
individual’s pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any
medication the individual takes or has taken to alleviate
pain or other symptoms;
5. Treatment, other than medication, the individual receives
or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses
or has used to relieve pain or other symptoms (e.g. lying
flat on his or her back, standing for 15 to 20 minutes every
hour, or sleeping on a board); and
7. Any other factors concerning the individual’s functional
limitations and restrictions due to pain or other symptoms.
Case law interpreting the statute and regulations. At the outset, it is important to
keep in mind that symptoms are the claimant’s “description of [his/her] physical or
mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves
making credibility determinations about the reliability of the claimant’s self-report of

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his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed. Appx. 57, 62 (10th Cir. December.
5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”)
“Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling pain.”
Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186
(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human
Services, 801 F.2d 847, 853 (6th Cir. 1986). 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 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); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);
Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is
required to explain her credibility determination in her decision, which “‘must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that
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weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249.
Discussion of ALJ’s credibility determination. The administrative law judge
stated:
As for credibility, I find that the claimant’s alleged symptoms are not
consistent with the objective medical findings of record as a whole under
SSR 96-7p. Generally, the claimant’s testimony was forthright but not
credible to the extent that he claims to be unable to perform any work, and
because he proven to be far less restricted that he claims.
The claimant testified that he plays role-playing computer games that can
last as long as 6 hours at a time, which is contrary to his assertion that he
cannot concentrate, complete tasks, or pay attention. He also interacts
with other participants who play the computer games while online, and
lives with his father, which is also inconsistent with his assertion that he
does not get along with others.
(R. 16.)
The administrative law judge’s credibility determination is supported by
substantial evidence. Plaintiff’s allegations that he is unable to concentration or
complete tasks is contradicted by his ability to play computer games for significant
lengths of time. Additionally, plaintiff is able to interact and coordinate with other
players online, contradicting his allegations that he cannot get along with others.
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

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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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