Hill v. Commissioner Social Security

Filing 15

REPORT AND RECOMMENDATIONS that this case be REMANDED to the Comm of SSA; Objections to R&R due by 4/22/2013. Signed by Magistrate Judge Mark R. Abel on 4/5/13. (sh1)

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

:
Plaintiff,

Civil Action 2:12-cv-0268
:

v.

Judge Sargus
:

Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.

Magistrate Judge Abel
:
:

REPORT AND RECOMMENDATION
Plaintiff Cheryl Hill 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
her application for Social Security Disability Insurance 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 Cheryl Hill maintains that she became disabled on
February 15, 2007, at age 49, due to bipolar disorder. (PageID 204.) The administrative
law judge found that Hill had an unrestricted physical ability to work but needs a static
environment, with few changes in routine. She can perform repetitive tasks but cannot
have strict time/production standards. Her work cannot involve more than superficial
contact with others. Finally, she cannot maintain attention/concentration for more than
two hours at one time. Given these restrictions, the vocational expert testified that there
were more than 35,000 jobs in the local economy Hill could perform.
Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:
•

The administrative law judge gave improper weight to the medical
opinions.

•

The administrative law judge’s residual functional capacity is not
supported by substantial evidence because the question posed to the
vocational expert was improper.

Procedural History. Plaintiff Hill protectively filed her application for disability
insurance benefits on December 5, 2007, alleging that she been disabled since February
15, 2007. (PageID 185-87.) The application was denied initially and upon
reconsideration. (PageID 125-26, 128-29, 136-37.) Plaintiff sought a de novo hearing
before an administrative law judge. (PageID 140-41.) On June 11, 2010, an
administrative law judge held a hearing at which plaintiff, represented by counsel,
appeared and testified. (PageID 90-114, 117-18.) A vocational expert also testified.
(PageID 114-22.) On September 28, 2010, the administrative law judge issued a decision
finding that Hill was not disabled within the meaning of the Act. (PageID 49–60.) On
February 3, 2012, 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. (PageID 34-38.)
Age, Education, and Work Experience. Plaintiff Hill was born in 1957 and was
49 years old on the alleged disability onset date. (PageID 193.) She has a high school
education. (PageID 209.) She has past relevant work experience as a owner/sales

2

person in a gun store (retail store manager), jewelry sales person, waitress/bartender,
and an assembler of motor vehicles. (PageID 115-16, 205.)
Plaintiff’s Testimony. The administrative law judge summarized Hill’s
testimony as follows:
The claimant testified that she can perform various chores “if she feels up
to it.” She likes doing yard work although she will not go out [i]f her
neighbors are around. She goes shopping with her daughter, tries to read,
and reported going to the library on one occasion to use a computer.
(PageID 53.)
The claimant testified that she has had a lot of stress in her life. She
acknowledged overdosing on medications and smoking marijuana. She
stated that she has trouble with bipolar disorder, with symptoms
including deep depression. The claimant reported hiding in her room.
She likes to read but struggles with reading. She has trouble sleeping and
does not close her eyes. The claimant stated that she has gone three days
without sleeping. She has crying spells every week and hides in her bed.
The claimant further alleged that she is afraid to talk to people and has
been unable to do grocery shopping. Her daughter has to help her do the
grocery shopping. She will not go out when her neighbors are out
because she does not want to talk to them. The claimant also stated that
she has trouble concentrating and cannot get through things. She feels she
is unable to do any kind of work.
(PageID 55.)
Vocational Expert’s Testimony. The administrative law judge proposed a series
of hypotheticals regarding plaintiff’s residual functional capacity to the vocational
expert. The administrative law judge asked the vocational expert to consider an
individual with plaintiff’s vocational characteristics who had no physical or exertional
limitations, but was able to work in a static environment characterized by few changes
3

in routine, performing repetitive tasks, and work that did not require more that
superficial contact with others. (PageID 117.) The work cannot involve strict
time/production standards. Plaintiff also cannot maintain attention/concentration for
more than two hours at one time. (PageID 118.)
Based on the above hypotheticals, the vocational expert acknowledged that
plaintiff could not perform her past relevant work, but that such an individual
could perform work as a housekeeper/cleaner, with 7,448 jobs in the regional economy;
dishwasher, with 3,612 jobs in the regional economy; and stock and freight handler,
with 25,939 jobs in the regional economy. (PageID 118.)
When asked about the limitations addressed in Dr. Corner’s assessment, the
vocational expert testified that such an individual would not be able to engage in
competitive work. (PageID 119-20.)
When cross-examined by plaintiff’s counsel, the vocational expert was asked
about the limitations addressed in Ms. Davidson’s assessment; the vocational expert
testified her opinion does not allow for ability to sustain competitive work. (PageID
121.)
Medical Evidence of Record. The relevant medical evidence of record is
summarized as follows:
Licking Memorial Hospital. Plaintiff presented to the emergency room on
January 17, 1998 for an overdose. (PageID 276-96.) Upon arrival she was alert and
oriented and stated this was a suicide attempt. (PageID 279.) Plaintiff reported she was
4

depressed and a recovering alcoholic, who had previously also been dependent on
drugs. She was seeing Dr. Linda Cole and has been on medication, including Prozac,
Effexor, Depakote, and Trazodone. She apparently ingested quite a bit of Depakote. In
the emergency room she was given charcoal. She was admitted for further treatment
and evaluation. (PageID 277.)
Linda Cole, M.D. Plaintiff treated with Dr. Cole from February 1997 until July
2003. (PageID 297-365.) Dr. Cole’s progress notes show a history of bipolar disorder
and alcohol dependence. Plaintiff’s mood cycled between depressed (PageID 300, 305,
307, 314, 318-20, 327, 331, 356, 359), normal (PageID 301-03, 308), and manic. (PageID
310, 321-22.) In July 2002, Dr. Cole noted that Hill’s affect was stable and she had
normal range and intensity. Plaintiff’s mood was euthymic with little in the way of
affective outbursts and her neurovegetative symptoms were lacking. Dr. Cole assessed
that the current combination of medication along with plaintiff’s nutritional
supplementation and diet/exercise sleep pattern was keeping her remarkably stable.
(PageID 309.)
Christopher J. Corner, M.D. Dr. Corner, a psychiatrist at Hocking Hills Family
Counseling and Psychiatry, began treating plaintiff for her bipolar disorder on August
2006. Plaintiff initially reported that she has had a mood disorder for the past 20 years.
(PageID 376 and 445.) Hill saw Dr. Corner 15 times between August 2006 and April
2008. (PageID 372-76 and 438-45.) Dr. Corner diagnosed plaintiff with bipolar I
disorder. (Id.) On October 31, 2006, Dr. Corner reported that plaintiff’s mood was
5

depressed. (PageID 444.) Between April 2007 and January 2008, treatment notes show
that plaintiff was doing well, tolerating her medication, and had no abnormalities.
(PageID 372-73.) Treatment notes from January, April, May, August and November
2007, all say that “the patient” was “doing OK.” (PageID 442-43.) On January 14, 2008,
the treatment notes again state that Hill was “doing OK.” On April 7, 2008, Dr. Corner
mentioned that Hill's use of alcohol had increased.1 (PageID 441.)
On November 6, 2007, Dr. Corner completed a Mental Functional Capacity
Assessment of plaintiff for the Ohio Department of Job and Family Services. (PageID
446-48.) He reported that Hill suffered from bipolar affective disorder. He said her
mood swings were severe and disabling. (PageID 446.) On the part of the form asking
for his mental status examination of Hill, Dr. Corner wrote that she was well-oriented.
Her mood and affect were stable and euthymic. There was no suicidal ideation. Her
thought content centered on loss. She demonstrated poor focus and concentration.
There was some irritability. (PageID 448.)
Dr. Corner concluded that plaintiff was moderately limited in her abilities to:
remember locations and work-like procedures; understand and remember very short
and simple instructions; understand and remember detailed instructions; carry out very
short and simple instructions; carry out detailed instructions; sustain an ordinary
routine without special supervision; make simple work-related decisions; maintain

1

She was hospitalized June 24, 2008 following a drug overdose suicide attempt.
(PageID 450-99.)
6

socially appropriate behavior and to adhere to basic standards of neatness and
cleanliness; respond appropriately to changes in the work setting; travel in unfamiliar
places or use public transportation; and set realistic goals or make plans independently
of others. (Id.) Dr. Corner found plaintiff was markedly limited in her abilities to:
maintain attention and concentration for extended periods; perform activities within a
schedule, maintain regular attendance, and be punctual within customary tolerances;
work in coordination with or proximity to others without being distracted by them;
complete a normal work-day and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; ask simple questions or request
assistance; and accept instructions and respond appropriately to criticism from
supervisors. (Id.) Dr. Corner concluded that plaintiff’s limitations would be expected
to last 12 months or more. (Id.)
Fairfield Medical Center. For three days in August 2007, Hill was hospitalized
for pneumonia. (PageID 415-32.) Dr. Raya recommended she quit smoking and started
her on IV antibiotics, nebulizers, and oxygen. (PageID 419.) Since Hill was an alcoholic,
she was placed on DT (delirium tremens) precautions. Her discharge diagnoses were
right upper lobe pneumonia, Hilar adenopathy, chest pain as a result of pneumonia,
and bipolar disorder. (PageID 415.)
Plaintiff was hospitalized on June 24, 2008 following a drug overdose in a suicide
attempt. (PageID 450-99.) It was suspected that she overdosed with Seroquel and
7

lithium, although marijuana and alcohol were also found in the room. (PageID 455.)
Plaintiff spent several days on a ventilator. She was discharged on July 2, 2008, at
which time she was told that she needed to stop marijuana and alcohol. (PageID 456.)
On January 22, 2009, Hill was admitted to the ICU after overdosing on
multiple antidepressant medications including Eskalith, Neurontin, Seroquel, and
Lexapro. (PageID 533-67.) Due to concerns about lethality, plaintiff was transferred to
the Psychiatric Unit. She was placed on medications and, as her hospitalization
progressed, she improved. (PageID 561.) Her discharge diagnoses included an
adjustment disorder, history of substance abuse, bipolar disorder, personality disorder
versus personality traits and , status post overdose. They also noted this suicide
attempt followed a period of family conflict including a relapse into alcohol use, stress
between herself and her daughter, financial stressors, and applying for disability. (Id.)
She was to follow up with Dr. Wood at Six County, Inc. (PageID 562.)
Neel Raya, M.D. Dr. Raya first saw plaintiff in his office on December 10, 2007.
(PageID 434.) That same day, Dr. Raya completed a Basic Medical form on behalf of the
Ohio Department of Job & Family Services. (PageID 435-36.) Dr. Raya listed Hill’s
diagnoses as depression and bipolar disorder. Dr. Raya noted that her health status
was deteriorating. (Id.) Based on his observations, Dr. Raya opined that plaintiff could
not keep her attention or work based on mental issues which were not well controlled
due to her inability to get medications. (Id.)

8

Charles Loomis. Plaintiff Hill was evaluated by Mr. Loomis on March 12, 2008
on behalf of the Bureau of Disability Determination. (PageID 379-85.) Hill reported that
she had been divorced four times, and at the time of the evaluation she was in a
physically abusive relationship. She related generally getting along well with others
but stated that she had recent difficulty dealing with coworkers and supervisors. She
also reported drinking on the job. She gave a history of drinking daily, frequently
becoming intoxicated, and smoking cannabis on a daily basis. A large bottle of vodka
lasted her 4-5 days. She drank a bottle of wine that morning. (PageID 380-81.) She said
she was unable to work because she had difficulty getting along with people. (PageID
583.) Hill performed her own household chores, errands, lawn care, and gardening. She
drove an automobile and visited with her stepfather, daughter, and grandmother. She
liked to listen to music and read. She went out to eat frequently. (PageID 583.)
Mr. Loomis noted that Hill presented with moderate symptoms of depression.
She showed no motor signs of anxiety but did report that she often felt as if she were
out of control and reported a lifestyle that was suggestive to the examiner of selfdestructive behavior. Plaintiff evidenced no abnormalities of mental content. Her
functional intelligence appeared to be in the high average range. (PageID 383-84.)
Mr. Loomis diagnosed alcohol dependence, cannabis abuse, and bipolar
disorder. (PageID 384.) He assigned Hill a Global Assessment of Functioning (GAF)
score of 55. (Id.) He opined that her mental ability to relate to others was moderately
impaired. Her ability to understand, remember, and follow complex instructions was
9

not impaired. Her ability to maintain attention and concentration to task was well
above average. Her ability to cope with the ordinary stresses and pressures of
competitive work was moderately impaired. (PageID 384-85.)
Tonnie Hoyle, Ph. D. On April 30, 2008, Dr. Hoyle, a state agency psychologist,
completed a mental residual functional capacity assessment and a psychiatric review
technique. (PageID 387-404.) Dr. Hoyle stated that Hill’s medically determinable
impairment was bipolar disorder. (PageID 394.) She also suffered from substance
addiction disorders. (PageID 391.) She found plaintiff was moderately limited in
maintaining social functioning and maintaining concentration, persistence, and pace.
Plaintiff was mildly limited in her activities of daily living with no episodes of
decompensation. (PageID 401.)
Dr. Hoyle opined that plaintiff was moderately limited in her abilities to: work in
coordination with or proximity to others without being distracted by them; 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; interact appropriately with the general public; accept instructions
and respond appropriately to criticism from supervisors; get along with coworkers or
peers without distracting them or exhibiting behavioral extremes; maintain socially
appropriate behavior; and adhere basic standards of neatness and cleanliness. (PageID
387-88.)

10

Dr. Hoyle noted that her review of the record shows that plaintiff’s activities of
daily living were fairly intact and she was partially credible. (PageID 389.) Dr. Hoyle
gave weight to Mr. Loomis’ conclusions and she concluded that plaintiff was capable of
performing repetitive tasks in an environment that was relatively static and required
only brief and superficial contact with others. (Id.)
In making her assessment, Dr. Hoyle relied primarily on Dr. Loomis’s
examination. (PageID 389.) She said that the current treating source did not address
areas of function, that “[h]is notes from 1/4/07 to 4/17/07 simply say ‘doing OK.’” (Id.)
Relying on Dr. Loomis’s report, Dr. Hoyle states that Hill’s activities of daily living are
fairly intact because she can maintain house, drive, shop, cook, clean, frequently go out
to dinner, and visit her family regularly. She concluded that plaintiff was “capable of
performing repetitive tasks in an environment that is relatively static and requires only
brief superficial contact with others.” (Id.)
On October 23, 2008, Dr. Kristen Haskins, a psychologist, wrote: “I have
reviewed all the evidence in the file and the assessment of 4-30-2008 is affirmed as
written.” There was no further discussion. (PageID 405.)
Six County, Inc./Wheaton B. Wood, M.D./Kathleen Davidson, P-CC. Plaintiff
returned to treatment at Six County, Inc. following her suicide attempt in July 2008.
(PageID 569-80.)2 The intake assessment states that this was her third suicide attempt.

2

On June 7, 2005, Plaintiff attended a diagnostic assessment at Six County, Inc.
but never returned for treatment. (PageID 366-68.)
11

(PageID 596.) Initially, she was assessed by a therapist, Ms. Davidson, who diagnosed
Hill with bipolar disorder - depressed and poly-substance dependence. (PageID 578.)
Hill had used marijuana since age 15, alcohol since age 17, and narcotic pain pills since
age 18. (PageID 573.) She had an 18-year history of poly-substance dependence. Hill had
in-patient drug aftercare treatment at Shepherd Hill in 1997. (Id.) She reported a 20 year
history of bipolar disorder. Her functioning had been declining for a year and a half.
She had increasing difficulty caring for herself and keeping a job. (PageID 577.) She did
not want to attempt suicide again. Her goal was to be fear free and happy. (PageID 576.)
Treatment goals were to improve mood stability and manage symptoms, connect with
community resources, and improve activities of daily living and functioning for
employment. (PageID 578.)
Hill attended bi-weekly individual counseling sessions with Ms. Davidson.
(PageID 583-621.) Dr. Wood also examined plaintiff and managed her medications.
(PageID 581-82, 622-47.) Plaintiff also received services through a community support
specialists. (PageID 649-54.)
Dr. Wood’s July 25, 2008 office notes state that at age 30 Hill had the onset of
significant depression following childbirth. Her first mania was at age 31. Her
depression has been fairly unremitting, with bouts of mania about every two years. The
bipolar disease was complicated by poly-substance abuse (primarily alcohol, marijuana,
and many different kinds of pills) and alcohol abuse. She had been in several drug
treatment programs. Although she had attended AA in the past, she was not then

12

attending “for somewhat spurious reasons.” (PageID 607.) At that time, Hill had been
sober for 30 days. (Id.)
Dr. Wood's office notes for February 6, 2009 state Hill had been hospitalized for a
suicide attempt. The plan was to dispense no more than seven days of medications at a
time. Two pistols were to be taken by her father for safe keeping. Dr. Wood was to see
Hill every four weeks, and a therapist would also see her. Hill was instructed to make
appointments as seemed advisable to her. (PageID 636.)
On examination, Hill's mood was angry and her affect was congruent and
somewhat labile. Her mentation was logical on the surface, but also illogical. Her
mentation had a "gamey quality . . . [of the] classic borderline bipolar substance abuser
which is so lethal when the alcohol is added in." (Id.) This was her second suicide
attempt since beginning treatment at Six County. She was "also a little bit manic with
some pressured speech but just a little bit . . . ." (Id.) She was separating from her
abusive boyfriend which was very painful. (Id.)
Hill was not interested in taking any medicine that would stop her from
drinking and was resistant to attending AA meetings. Dr. Wood believed Hill had "to
come to grips with the fact that she is very ill whether it is mostly bipolar or mostly
borderline and mostly alcohol doesn't matter." (PageID 637.) She has "a potentially very
fatal illness," but Dr. Wood told her they were going to do everything they could to
prevent her from dying. (Id.)

13

On examination, Hill’s mood and affect were depressed. Dr. Wood said she had
“thoughts of wishing she is dead but is passive and does not have active suicidal
orientation at this time.” (PageID 607-08.) Her attention and concentration were
excellent when performing serial sevens forward and backward. (PageID 608.)
Dr. Wood's office notes for March 6, 2009 state that the diagnoses were
"[b]orderline with bipolar, currently euthymic and tendency toward polysubstance
dependence especially with alcohol." (PageID 634.) She said she had no suicidal
ideation. She had a "wonderful time in Texas with her mother." (Id.) She took her three
year old grandson with her on the trip. She was concerned that she would lose her
house because she could not pay the mortgage. Hill said her boyfriend was stalking her.
(Id.)
On examination, Hill was euthymic. Her affect was congruent and pleasant. She
reported frightening nightmares. She was not suicidal. (Id.)
On March 13, 2009, Dr. Wood reported that plaintiff suffers from Bipolar
disorder superimposed on Borderline Personality disorder with poly-substance
dependence, including alcohol. At that time, he felt plaintiff’s poly-substance
dependence was under control and had been for more than a year. He also reported
that in the last two months plaintiff has been disabled from work because of a
significant worsening of her bipolar disorder. He concluded that she “probably has
been disabled from work for about three years.” (PageID 412.)

14

Dr. Wood’s office notes form April 8, 2009 state that Hill suffered from severe
bipolar depression superimposed on an unspecified personality disorder. She was
“really miserable” and had been crying a lot. Her sleep was not restful and was
insufficient. She reported difficulty reading a simple magazine article. Dr. Wood told
her to write a 50 word or less summary of one magazine article every week to see if she
would benefit from cognitive enhancement therapy. Dr. Wood believe it was critical to
get her into ECT but she did not have insurance. (PageID 632.)
On May 4, 2009, Dr. Wood's office notes state that Hill suffered from severe
bipolar depression "which has been disabling and cognitively disabling as well as
underlying Alcohol Dependence, active and Personality Disorder (NOS)." (PageID 630.)
She was a severe suicide risk. Guns had been removed from the home. She got a
medications box every two weeks. She saw Dr. Wood once every four weeks and the
therapist frequently. (Id.)
On examination, Hill's mood was moderately depressed, which was "an
enormous step forward." (Id.) Her affect was congruent and reactive. Naltrexone was
prescribed to help reduce drinking. (Id.)
On May 29, 2009, Hill was "pleasant and positive, cooperative with her" case
worker. She felt good about herself and the relationship she was in. She "looked great,
and [had a] great/good mood." (PageID 653.)
Dr. Wood's notes from the May 29 visit state that Hill had "devastating Bipolar
Depression in a formerly high functioning woman, and Alcohol Dependence in early

15

full remission." (PageID 628.) Her chief complaint was anxiety about decreasing the
Seroquel. She had not had a drink for 28 days and was not really craving alcohol. Dr.
Wood reassured Hill that 80% of patients with her illness regain function. (Id.)
On examination, Hill's mood was euthymic and her affect was congruent,
pleasant, and full. She had only peripheral thoughts of suicide. Her craving for alcohol
was suppressed. "Her attention and concentration are excellent and cognition is back
intact. Her full cognitive function appears to be reassembled." (Id.)
On June 5, 2009, Hill reported that having the "correct medications" was a big
step forward, but she felt that she needed to work very hard with her therapist if she
was to continue to make progress. Hill was excited about a trip to Texas by airplane but
worried about riding back by automobile with her mother and aunt. (PageID 652.)
Dr. Wood’s office notes from June 5 state that Hill was drinking a gallon of
vodka a week. Dr. Wood said Hill suffered from severe bipolar depression that was
cognitively disabling. She was a severe suicide risk. Dr. Wood was seeing her every
four weeks, and she was seeing a therapist frequently. She got a medication box every
two weeks. Her boyfriend was less abusive but “quite difficult and also rather
dramatic.” (PageID 91.)
On examination, Hill’s mood was moderately depressed. Her affect was
congruent and reactive. She continued to have suicidal ideation but no plan, “which is
also an enormous step forward.” (Id.) Dr. Wood prescribed Naltrexone to help reduce
alcohol consumption. (Id.)

16

On July 23, 2009, Davidson counseled Hill about her relationship problems with
her boyfriend. Her mood was irritable and dysphoric, but she was cooperative. (PageID
595.)
Dr. Wood's office notes for July 23 state that Hill said she had been sober since
April 28. She was not suicidal. She felt a lot better because her mother and her aunt had
helped her keep her house. But she was back with her boyfriend, who continued to
drink.
On examination, Hill's mood was euthymic and her affect intact. She was
sleeping alright. She was "a little hypersomnolent during the day and slowed up in
terms of mentation." (PageID 626.) Dr. Wood thought it likely that Seroquel was
sedating her a little during the morning. (Id.)
Dr. Wood's impression was "complete loss of function over the last four or five
months," due to bipolar disease combined with a new onset of alcohol dependence. He
believed that her "bipolar loss of function occurred then the drinking accelerated and
the dependence occurred slightly after that so one followed the other." Hill was to
return in eight weeks. (Id.)
On August 3, 2009, Kathleen Davidson’s notes indicate Hill was euthymic.
Davidson counseled Hill regarding her relationships with her daughter and boyfriend
and suggested strategies for improving the relationships. (PageID 555.)
An "Exit/Termination Summary" report was prepared on August 17, 2009,
noting that plaintiff’s last contact was June 6, 2009 but stating that she was remaining in

17

the counseling and medication programs. Under comments, plaintiff’s boyfriend had
moved in to help with finances. They were attending couples counseling. She drove
herself to appointments. Hill was making extra money to pay bills by babysitting and
housecleaning. (PageID 648.)
On August 19, 2010, Six County notes state that Hill returned after having failed
to return phone calls or respond to the exit letter. She no longer had a home phone or a
cell phone. The case worker suggested Hill leave a message at the front desk every two
weeks. She was in danger of losing her house, but recently her mother and aunt made
her house payment and helped her catch up on bills. During the contact, Hill was very
nervous and said that things in her life were back to being depressing and sad. Her
boyfriend was back with her, but they had trust issues. (PageID 650.)
Dr. Wood’s notes from September 18, 2009 state that Hill was then moderately
depressed. Her family history included mental illness and alcoholism. In the last eight
weeks, she had been reducing her drinking. Her mentation was “hopeless and helpless
and that is a bad thing for this patient.” (PageID 624.) Dr. Wood wanted to prescribe
Lamictal, but it was hard to get Hill started on the medication because she had no
insurance and was not receiving Medicaid. (PageID 625.)
On October 9, 2010, Six County notes state that Hill was worried that working to
work off food stamps would have a negative affect on her Social Security disability case.
Her anger about being required to work made it difficult for her to maintain attention
and concentrate on her conversation with the case worker. She remained in couples

18

counseling but was having difficulty forgetting or letting go of the past to move on in
the relationship. (PageID 649.)
Dr. Wood's office notes from a November 13, 2009 examination state that Hill's
mood was euthymic. Her affect was congruent and full. She did not have thoughts of
suicide. Her speech was mildly pressured. The plan was to increase her Lamictal dosage
from the current 75 mg. to 200-300 mg. He indicated that although her current condition
was good, "she could relapse very quickly." Hill was said to be suffering from a
"devastating Bipolar illness." (PageID 623.)
Dr. Wood's office notes for November 30, 2009 state that a nurse reported that
Hill's thinking is excessively slowed with the increased dosage of Lamictal to 25 mg.
three times a day. Dr. Wood wanted to see if the Lithium level in her blood was too
high. On examination, her concentration and memory were intact. There appeared to be
a little sedation. She was euthymic. (PageID 608.)
On May 5, 2010, Ms. Davidson completed a Mental Residual Functional Capacity
assessment on plaintiff’s behalf. (PageID 719-21.) According to Ms. Davidson, Hill was
markedly limited in her of ability to maintain attention and concentration for more than
brief periods of time. (PageID 720.) Ms. Davidson opined that Hill would be
moderately limited in her abilities to: accept instruction from or respond appropriately
to criticism from supervisors or superiors; perform and complete work tasks in a
normal work day or week at a consistent pace; process subjective information
accurately and to use appropriate judgment; carry through instructions and complete

19

tasks independently; respond appropriately to changes in work setting; behave
predictably, reliably and in an emotionally stable manner; and tolerate customary work
pressures. (PageID 719-21.) Ms. Davidson found that plaintiff was only mildly
impaired in her abilities to: work in coordination with or in proximity to others without
distracting them or exhibiting behavioral extremes; respond appropriately to
co-workers or peers; relate to the general public and maintain socially appropriate
behavior; work in cooperation with or in proximity to others without being
distracted by them; perform at production levels expected by most employers;
remember locations, workday procedures and instructions; and be aware of normal
hazards and take necessary precautions. (Id.) Ms. Davidson concluded that historically,
plaintiff demonstrated increased depression and mood swings in response to stress.
(PageID 721.)
Administrative Law Judge’s Findings. The administrative law judge found
that:
1.

The claimant met the special earnings requirements of the Act on
February 15, 2007, the date she says she became unable to work, and
continues to meet those requirements through the date of this decision.

2.

The claimant has not engaged in substantial gainful activity since
February 15, 2007 (20 CFR 404.1571 et seq.).

3.

The claimant has the following severe impairments: bipolar affective
disorder and a history of substance abuse in remission (20 CFR
404.1520(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
20

part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).
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 non-exertional limitations: she
needs to work in a static environment, with few changes in routine. She
can perform repetitive tasks. The work cannot involve more than
superficial contact with others. The work cannot involve strict
time/production standards. The claimant cannot maintain
attention/concentration for more than two hours at one time.

6.

The claimant cannot perform her past relevant work (20 CFR 404.1565).

7.

The claimant was born on July 21, 1957 and was 49 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563).

8.

The claimant has at least a high school education and can communicate in
English (20 CFR 404.1564).

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 82-41 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 and
404.1569(a)).

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from February 15, 2007, through the date of this decision (20
CFR 404.1520(g)).

(Page ID 51-60.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings

21

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 contends that the administrative law judge
erred by discounting the weight assigned to plaintiff’s treating psychiatrists, Dr. Corner
and Dr. Wood, and giving great weight to the state agency reviewer, Dr. Hoyle, who
reviewed only part of the record. Plaintiff also argues that the administrative law judge
further failed to consider or analyze the opinion of plaintiff’s therapist, Ms. Davidson,
under SSR 06-3p. Plaintiff also contends that the administrative law judge based his
residual functional capacity on an improper hypothetical unsupported by substantial
evidence.
22

Analysis.
Treating Doctor: Legal Standard. A treating doctor's opinion3 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

3

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. See, Gayheart v.
F.3d
,
, 2013 WL 896255, *14 (6th Cir.
Commissioner of Social Security,
March 12, 2013).
23

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. Commissioner
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)4.
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
4

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.
24

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).
When the treating source’s opinion is well-supported by objective medical
evidence and is not inconsistent with other substantial evidence, that ends the analysis.
20 C.F.R. § 404.1527(c)(2); Social Security Ruling 96-2p5. Gayheart v. Commissioner of
Social Security,

F.3d

,

, 2013 WL 896255, *9 and *10 (6th Cir. March 12,

2013). The Commissioner’s regulations require decision-makers “to provide ‘good
reasons’ for discounting the weight given to a treating-source opinion. [20 C.F.R.] §
404.1527(c)(2).”6 Gayheart, above,

F.3d at

, 2013 WL 896255, *9.

The Commissioner has issued a policy statement, Social Security Ruling 92-6p, to
guide decision-makers’ assessment of treating-source opinion. 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.

5

Social Security Ruling 96-2p provides, in relevant part:
...
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.
6

Section 404.1527(c)(2) provides, in relevant part: "We will always give good
reasons in our notice of determination or decision for the weight we give your treating
source's opinion."
25

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 wellsupported, 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
well-supported 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.

The focus at this step is solely on whether the treating-source opinion is well-supported
by objective medical evidence and not inconsistent with other substantial evidence. In
making this determination the factors for assessing the weight to give to the medical
opinions of any medical source, 20 C.F.R. § 404.1527(c), are not used. These come into
play only when there are good reasons not to give the treating-source opinion

26

controlling weight. 20 C.F.R. § 404.1527(c)(2)7; Gayheart, above,

F.3d at

, 2013

WL 896255, *10.
If there are good reasons to find that the treating-source opinion is not controlling, then the decision-maker turns to evaluating all the medical source evidence and
determining what weight to assign to each source, including the treating sources8. The
Commissioner’s regulations require the decision-maker to considers the length of the
relationship and frequency of examination; nature and extent of the treatment

7

Section 404.1527(c)(2) provides, in relevant part:
If we find that a treating source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will give it
controlling weight. When we do not give the treating source's opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and
(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through
(c)(6) of this section in determining the weight to give the opinion
(Emphasis added.)
8

Even when the treating source-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.
27

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. 20 C.F.R. § 404.1527(c)(1) through
(6). Subject to these guidelines, the Commissioner is the one responsible for determining
whether a claimant is disabled. 20 C.F.R. § 404.1527(e).
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); Wilson v. Commissioner of Social
Security, 378 F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not
to give a treartor’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
28

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.
The administrative law judge believed that many of Hill’s problems were related
to her drug abuse:
The claimant has received treatment for multiple complaints, including
emotional problems and substance use; however, the record indicates that
such treatment has largely been conservative and non-aggressive. Indeed,
the record suggests that many of her problems are secondary to her
substance use. There is no reference to appropriate treatment for her
substance abuse, as the only reference to AA meetings was in the past. She
reported using medications, but denied any side effects other than weight
gain, mental slowing, and losing her hair. However, it does not appear
that any of these are work-preclusive. She testified that the medications
are helpful.
...
[Hill] was less than diligent about working on her substance abuse, which
now does appear to be in possible remission. However, for at least part of
this time the claimant was not receptive to going to AA meetings and was
not interested in taking any medication that would stop her from drinking
(Exhibit 21F). As recently as May 4, 2009, the claimant witnesses drinking
a gallon of vodka a week (Exhibit 21F/63).
“In alcoholism disability cases, an important question is whether to
claimant has lost the voluntary ability to control his use of alcohol.” Gerst
v. Secretary of HHS, 709 F.2d 1075, 1078 (6th Cir. 1983). Where medical
evidence demonstrates that the claimant’s alcoholism is not so deepseated as to be irremediable, and that the only bar to his recovery is lack of
motivation, the claimant will not be considered disabled. . . . Disability
benefits thus are not appropriate where an alcoholic is not functionally
29

impaired or can voluntarily control his abuse to the extent that he is not
impaired. Here, the record fails to show that the claimant has maintained
a wide range of daily functioning notwithstanding her substance use. See
Exhibit 5F.
(PageID 56-57.) In any event, the administrative law judge found that plaintiff’s “level of
daily functioning is greater than what she reported,” which “indicates that she can
understand and follow instructions, perform routine tasks, interact with others on at
least a superficial basis, and maintain attention and concentration for simple tasks.”
(PageID 57.)
The administrative law judge gave great weight to the opinions of the nonexamining agency reviewers and little to the opinions of Drs. Corner and Wood:
. . . I assign great weight to the state agency evaluation. Those sources
found the claimant capable of performing repetitive tasks in an environment that is relatively static and requires only brief and superficial contact
with others (Exhibit 7F/3). Social Security Ruling 96-6p provides that state
agency source statements must be considered, as those sources are experts
in the disability program. Great weight is given here, as these assessments
are consistent with and well supported by the evidence as a whole.
...
In contrast, Dr. Wood opined that the claimant is disabled from work
(Exhibit 11F). I find this statement imprecise and that it addresses an area
reserved to the Commissioner of Social Security (Social Security Ruling
96-5p). It is not accompanied by a function-by-function analysis. While Dr.
Wood treats the claimant at the local mental health center, and is considered as a treating source within the meaning of 20 C.F.R. § 404.1527 and
Social Security Ruling 96-2p, I find that his report is not well supported by
and consistent with the evidence as a whole. In particular, I note this
conclusion is inconsistent with the state agency assessments (Exhibits 7F
and 8F), the intake assessment at Six County (Exhibit 3F), the consultative
examination by Mr. Loomis (Exhibit 5F), and the functional assessment
from the counselor (Exhibit 25F).

30

I give some weight to the assessment from six County, Inc., concerning the
claimant’s mental limitations, which is generally in accord with the residual functional capacity finding (Exhibit 25F). . . .
Finally, I assign very little weight to the assessment from Dr. Corner at
Exhibit 14F. That assessment, completed for the Ohio Department of Jobs
and Family Services, identified multiple “marked” limitations. However,
the report is not associated with corroborating mental status examination
findings. Indeed, this source also noted that the claimant’s use of alcohol
had increased (Id. p. 5). The report is not consistent with the preponderance of the medical evidence.
(PageID 5758.)
The administrative law judge did not err in his consideration of Dr. Corner’s
opinions. Dr. Corner did not explain his opinions in any meaningful detail. His office
notes do not corroborate the limitations stated in his opinion. For the most part they
state that Hill was “doing OK.” Further, the administrative law judge had Dr. Hoyle’s
residual functional capacity assessment that was based on the medical records from Dr.
Corner and the one-time consultative evaluation by Mr. Loomis, which support his
decision to discount Dr. Corner’s opinion.
Plaintiff also argues that the administrative law judge failed to provide an adequate rationale for rejecting Dr. Wood’s opinion. Although the administrative law
judge cited Dr. Hoyle’s residual functional capacity assessment as a basis for rejecting
Dr. Wood’s opinion, Dr. Hoyle, who made the assessment in April 2008, did not have
the Six County treatment records because Hill did not start going there until July 2008.
Similarly, Mr. Loomis’s one-time disability evaluation examination and report sheds no
light on Hill’s psychiatric limitations during the period she was treated at Six County.
31

The administrative law judge’s criticism that Dr. Wood’s assessment “is not
accompanied by a function-by-function analysis is not consistent with the Commissioner’s regulations. An administrative law judge must give good reasons for rejecting
the opinion of a treating psychiatrist. Initially, that analysis is limited to whether the
opinion is supported by objective evidence and whether it is consistent with other
credible evidence. The only evidence from the Six County treatment period is from Dr.
Wood and Ms. Davidson. Dr. Wood’s treatment notes demonstrate that he was concerned about Hill’s suicide risk and that he documented the effects of her psychiatric
illness on her ability to function. A perceived deficiency in the way he reported his
residual functional capacity assessment is not, standing alone, a good reason to reject
his opinion. If the Commissioner wanted additional information from Dr. Wood, the
administrative law judge should have asked the doctor to fill out a residual functional
capacity assessment form and provide the wanted information. O’Donnell v. Barnhard,
318 F.3d 811, 818 (6th Cir. 2003). See, 20 C.F.R. § 404.1519h (a treating source is ordinarily the preferred source for additional information about a medical condition).
The administrative law judge also conflated his analysis of whether plaintiff was
disabled with whether alcohol played a role in the disability. The first task is determine
whether the claimant is disabled. Only then should the administrative law judge proceed to consider what role alcoholism plays in the disability. Gayheart v. Commissioner of
Social Security, above at *15.

32

For these reasons, I conclude that this case should be remanded to the Commissioner for further proceedings to evaluate Dr. Wood’s opinion on the limitations caused
by plaintiff’s psychiatric impairments consistent with the regulations for evaluating a
treator’s opinion as explained in Gayheart, above.
Treating source opinion from a therapist who is not an “acceptable medical
source.” Plaintiff next argues that the administrative law judge “completely neglected
the requirement to consider SSR 06-3p while examining the opinion of Ms. Davidson,
plaintiff’s treating therapist.
Although the administrative law judge said he gave some weight to Ms. Davidson’s assessment, he went on to state:
. . . I note, however, that this assessment was not completed by an acceptable medical source. Therapist opinions are not entitled to controlling
weight under Social Security Ruling 96-2p, nor are they treated as “medical opinions.” . . . .
Therapist opinions are not “opinions” of a “medical source,” as defined in
29 C.F.R. § 404.1501, 404.1527.(a)(2), 416.902 and 416.927(a)(2), nor are they
those of an “acceptable medical source,” as defined in 20 C.F.R. § 404.1513
and 416.913. Because a therapist does not qualify under either of these
definitions, their opinions are, pursuant to 20 C.F.R. § 404.1527 and
416.927, not “medical opinions.” Given this, a therapist’s opinion is considered only to the extent that it helps understand how an impairment
affects the ability to work. See 20 C.F.R. § 404.1514(e) and 416.913(e). As a
result, such an opinion is viewed in the same manner as “information
from other sources”, including observations of non-medical sources,
naturopaths, and social welfare agencies.
Here, the therapist’s analysis is generally consistent with the record as a
whole, except for the “marked” limitation noted on maintaining attention
and concentration for more than brief periods (Exhibit 25F). Such conclusion is specifically belied by the claimant’s performance on mental status
33

examination by Mr. Loomis, who noted that this ability witnesses well
above average (Exhibit 5F).
(PageID 58.)
Therapists such as Ms. Davidson 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, therapists qualify as “other sources”, and “information from
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.”
A therapist working for a mental health care provider is not an acceptable
medical source. 20 C.F.R. § 404.1513(a). Nonetheless, the Commissioner will consider
evidence from other sources “to show the severity of your impairment(s) and how it
affects your ability to work.” 20 C.F.R. § 404.1513(d). Social Security Ruling 06-03p,
2006 WL 2329939, provides that the same factors used to evaluate the opinions of
“acceptable medical sources,” see 20 C.F.R. §§ 404.1427(d) and 416.927(d), “can be
applied to opinion evidence from ‘other sources.’” See, Gayheart v. Commissioner of Social

34

Security,

F.3d

,

, 2013 WL 896255, *14 (6th Cir. March 12, 2013). Those

factors include:
• How long the source has known and how frequently the source has
seen the individual;
• How consistent the opinion is with other evidence;
• The degree to which the source presents relevant evidence to support
an opinion;
• How well the source explains the opinion;
• Whether the source has a specialty or area of expertise related to the
individual's impairment(s), and
• Any other factors that tend to support or refute the opinion.
SSR 06-03p. These factors “represent basic principles that apply to the consideration of
all opinions from medical sources . . . who have seen the individual in their professional
capacity.” Id.
On remand, the administrative law judge should evaluate Ms. Davidson’s treatment notes and her residual functional capacity assessment in the manner set out above.
Having found grounds for remand related to the administrative law judge’s
residual functional capacity findings, I will not address the alleged error regarding the
hypothetical the administrative law judge addressed to the vocational expert.
From a review of the record as a whole, I conclude that there is not substantial
evidence supporting the administrative law judge’s decision rejecting the opinion of Dr.
Wood that plaintiff is disabled. Accordingly, it is RECOMMENDED that this case be
REMANDED to the Commissioner of Social Security for further consideration of the
evidence from Six County and Dr. Wood’s opinion that plaintiff is disabled. It is
FURTHER RECOMMENDED that plaintiff’s motion for summary judgment be
35

GRANTED to the extent that it may seek remand, and that defendant’s motion for
summary judgment be DENIED.
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
Magistrate Judge, 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

36