Wigington v. Commissioner of Social Security

Filing 25

REPORT AND RECOMMENDATION that the decision of the Commissioner of Social Security be AFFIRMED, that Plaintiff's Motion for Summary Judgment be DENIED and that Defendant's Motion for Summary Judgment be GRANTED. Objections to R&R due by 3/7/2014. Signed by Magistrate Judge Mark R. Abel on 2/18/14. (sem1)

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

Julie Wigington on behalf of H.M.,
Plaintiff

Carolyn W. Colvin
Commissioner of Social Security,
Defendant

Civil Action 2:13-cv-00281

:

v.

:
:

Judge Smith

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Julie Wigington, on behalf of her minor daughter, H.M., 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 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. H.M.’s parents maintain that H.M. is disabled as a result of
severe attention deficit and hyperactivity disorder (“AD/HD”). H.M. has a significant
record of disciplinary issues at school based on her behavior.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge erred in his consideration of the opinion of
treating physician Sudheer Shirali, M.D.; and,
• The administrative law judge erred in his finding that plaintiff's prior
application was not eligible for reopening.

Procedural History. Plaintiff Julie Wigington initially filed an application on
behalf of H.M. for Supplemental Security Income on April 18, 2007, alleging that H.M.
became disabled on November 30, 2005, at age 6, by severe attention deficit and
hyperactivity disorder and conduct disorder. (R. 128-30.) Wigington filed a second
application on January 23, 2009 with a disability onset date of January 23, 2009. (R. 13133.) The applications were denied initially and upon reconsideration. Plaintiff sought a
de novo hearing before an administrative law judge. On July 26, 2010, an administrative
law judge held a hearing at which plaintiff, represented by counsel, appeared and
testified. (R. 43.) H.M.'s parents also testified. On September 24, 2010, the
administrative law judge issued a decision finding that H.M. was not disabled within
the meaning of the Act. (R. 22-37.) On July 23, 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. (R. 4-6.)
Age, Education, and School Experience. H.M. was born April 2, 1999.

(R. 131.)

At the time of the hearing, she was in the fifth grade and attended regular classes.
Plaintiff’s Testimony. The administrative law judge fairly summarized H.M.
and her parents' testimony as follows:
The claimant’s parents testified that she has significant behavioral
problems. (Testimony, Exhibits 9E, 13E, 17E, 24E). Her father
reported that while her grades had improved in the immediate past
school year, she had previous academic difficulties. (Testimony).
Both parents reported that when the claimant is on her medications,
she isolates herself and loses her appetite and when she is not on her
medications, she is fidgety and hyperactive. (Testimony, Exhibits 9E,
2

12E, 13E, 17E, 24E). Her aunt, Ann Persons, completed a form
reporting that the claimant needs help with each step of tasks, has
very poor social skills, has few friends, and often loses her temper.
(Exhibit 27E).
In contrast, the claimant testified that she likes school, enjoys art, has
a lot of friends, and played softball this past spring. (Testimony). She
also reported that she has friends in her neighborhood, likes to play
on the trampoline, will ride her bike, enjoys doing 3-D puzzles, likes
TV, and plays games on the computer. (Testimony).
(R. 29.) H.M.’s father, David McDonald, further testified that H.M. has violent
behavioral issues. Her medications heavily sedate her. If she spends the night at a
friend’s house, she always comes home early. She could sit still in school until her
medication took effect. Her medication caused her to fall asleep, and she fell asleep at
her own birthday party. The parents of other children also complained about H.M.’s
behavior in addition to reports from school. Mr. McDonald described H.M.’s behavior
as ferocious. She isolated herself when she was medicated. She used to disappear and
her parents have had to call the police to help locate her. (R. 58.)
Ms. Wigington, H.M.’s mother, testified that her daughter drove her “nuts.” (R.
61.) H.M. complained that she could not have fun or socialize when she took her
medication. Although her school performance had improved, her medication wore off
by 1 p.m. H.M. played softball, but she required frequent reminders to pay attention.
When taking tests, she lost interest as she progressed through the pages.

3

Medical Evidence of Record. Although the administrative law judge’s decision
fairly sets out the relevant medical evidence of record, this Report and
Recommendation will summarize that evidence in some detail.
William E. Mohler, M.A. On August 8, 2007, Mr. Mohler performed a
consultative examination at the request of the Bureau of Disability Determination.
Plaintiff was not medicated for the evaluation. On mental status evaluation,
concentration was problematic. She had a short attention span and was quite
distractible. Plaintiff had to be redirected to the task at hand on numerous occasions
during the evaluation.
Plaintiff’s mother reported that plaintiff exhibited oppositional defiant behaviors
at home and school. Plaintiff had painted on things and felt little remorse. Plaintiff got
along okay with some children but tended to be picked on and retaliated as a result. Mr.
Mohler noted that her mother’s behavior management skills appeared particularly
weak.
Mr. Mohler concluded that plaintiff had normal intellectual skills and was
generally on grade level in achievement skills. Her AD/HD was poorly controlled with
her current medication. Mr. Mohler diagnosed attention deficit/hyperactivity disorder,
combined type and oppositional defiant tendencies. He assigned a Global Assessment
of Functioning (“GAF”) score of 60, representing a moderate functional impairment. (R.
335-38.)

4

Marianne Collins, Ph.D. On August 24, 2007, Dr. Collins, a state agency
reviewing psychologist, completed a childhood disability evaluation form. Dr. Collins
found no limitations with respect to plaintiff’s ability to acquire and use information.
She had average IQ test results, was in the appropriate grade and in a regular education
classroom. Dr. Collins opined that plaintiff had less than marked limitations in
attending and completing tasks. H.M. required daily medication. Numerous
medications had been tried with some success. Her mother reported that she could not
pay attention without medication. During her consultative examination, plaintiff had
slightly elevated energy levels and was noticeably distractible. She gave good effort and
persistence. H.M.’s ability to interact and relate with others was less than marked. H.M.
had numerous infractions for her behavior at school and a few on the bus. She did not
require a special classroom placement based on her behavior. She had friends and could
get along with others for a few hours at a time. She tended to be a bully and to be
aggressive. She had significant problems with her siblings. Plaintiff had no limitation
with respect to moving about and manipulating objects. Her limitations with respect to
caring for herself were less than marked. She had no limitation with respect to her
health and physical well-being. (R. 341-46.)
Sudheer R. Shirali, M.D.

On April 20, 2009, Dr. Shirali, H.M.’s pediatrician,

completed a Diagnosis of Mental Impairments form. Dr. Shirali noted the presence of
marked inattention, marked impulsiveness, and marked hyperactivity. H.M had a

5

marked impairment in age-appropriate social functioning and marked difficulties in
maintaining concentration, persistence or pace. (R. 351-52.)
On April 22, 2009, Dr. Shirali completed a form for the Bureau of Disability
Determination. Dr. Shirali indicated that plaintiff had a behavior disorder. H.M. did not
listen, and she disturbed the class. She was easily frustrated. He noted that plaintiff had
a short attention span, was impulsive, and easily distracted. She had difficulty
following direction. Without medication, plaintiff exhibited impulsivity, emotional
lability, perceptual difficulties, irritability, and signs of tactile overloading. After taking
medication, plaintiff had slight improvement in her impulsivity and her perceptual
difficulties. She continued to show signs of tactile overloading. (R. 356.) H.M had poor
peer relationships. She was defiant and fought with her siblings. Her symptoms have
been present since age 4. Plaintiff was prescribed Focalin and Ritalin. He diagnosed
attention deficit and hyperactivity disorder and a behavioral disorder. (R. 355-57.)
Dr. Shirali indicated it was very difficult to control H.M.’s symptoms. (R. 370.)
On December 3, 2007, Dr. Shirali indicated that plaintiff did better with her medications,
but it wore off by 3 p.m. Plaintiff can be “too quiet.” (R. 382.) Notes from October 17,
2007 and February 22, 2008 indicated that plaintiff’s medication was not helping. (R.
384, 380.)
Alice Chambly, Psy.D. On June 29, 2009, Dr. Chambly, a state agency
psychologist, completed a Childhood Disability Evaluation Form. Dr. Chambly
concluded that plaintiff had attention deficit hyperactive disorder. Plaintiff’s
6

impairment was severe but it did not meet or equal any Listing. She noted that plaintiff
had an average IQ and was placed in regular classes. She earned average grades.
Plaintiff’s pediatrician indicated that medication provided plaintiff with a slight
improvement. Since beginning medication, H.M. had not had any school suspensions
for an entire academic year. Her report card indicated that H.M. accepted and respected
authority, although she continued to have problems with self-control and following
rules. Dr. Chambly also noted that despite reports that plaintiff had difficulty with
relationships, no objective evidence supported this assertion. (R. 395-400.)
Hope Pediatrics. On August 28, 2009, plaintiff underwent a well child
examination at Hope Pediatrics. Vyvanse worked really well. She had gained weight.
Art and computers were hobbies. She liked gymnastics. When seh was taking Vyvanse,
H.M. listened and helped. A one month drug holiday over the summer did not work
well. (R. 401.) Focus was noted to be a problem for H.M. (R. 402.)
An ADHD/ADD Follow Up and Med Check form noted that plaintiff often
made mistakes, failed to finish tasks, avoided tasks requiring sustained attention and
was easily distracted. She was often forgetful. She always had difficulty sustaining
attention and organizing. She did not seem to listen. She always lost things and was
easily distracted. H.M. often had an inability to stay seated and moved excessively. She
always fidgeted, had difficulty playing quietly, was always on the go, and talked
excessively. She rarely blurted out answers before a question was completed. She often
had difficulty waiting her turn, and she always interrupted or intruded on others. Rare
7

side effects included headaches and trouble sleeping. She often was excitable,
impulsive, worried and anxious. She always experienced appetite loss. (R. 404.)
On December 22, 2009, H.M.’s father called and stated that her medication was
not lasting and that evenings were bad. One of her medications was causing migraines,
and she was having a rough time. She needed something to get through the holidays.
(R. 409.) H.M.’s mother requested Ritalin for her daughter because it was the only thing
that had helped thus far. The Vivaynse started to wear off mid-afternoon, and her
behavior became worse. (R. 410.) During the evenings, H.M. became irritable and
fidgety. Her mother thought someone was taking H.M.’s pills and now had a lock box.
(R. 411.) On February 22, 2010, H.M.’s mother called and said she had a meeting at
school that day about plaintiff hurting someone and showing no remorse. Her grades
were good, but her behavior was bad. Her mother could not get her to do anything. At
times, she did not care about anything. She shaved the cat. (R. 413.)
James M. Lyall, Ph.D. On August 30, 2010, Dr. Lyall, a neuropsychologist,
completed an evaluation of H.M. She was 11 years old, quiet and a bit withdrawn. H.M.
was neat and clean in appearance. She was quite thin. H.M. took her medication prior to
the evaluation. H.M. stated that her medication is quite helpful in keeping her calm. (R.
416.)
H.M.’s medication caused her to lose her appetite. She had great difficulty with
focus and concentration and could become quite aggressive when she was not on her
medication. She exercised poor judgment when she did not take her medication. When
8

she played on a summer baseball team without taking her medication, she tried to hit
another player with a bat. (R. 417.)
H.M. enjoyed spending time on the computer and putting puzzles together. H.M.
reported that she had a number of friends and that she generally got along well with
them. Her grandmother reported that when she did not take her medication, she often
got into arguments and fights. H.M. bathed and brushed her teeth adequately. (R. 418.)
Dr. Lyall’s functional assessment was that her cognition skills were three-fourths
that of an age appropriate child. Her communication skills were age appropriate. Her
fine and gross motor skills were possibly age appropriate based upon her
grandmother’s report that H.M. was an average athlete and could put puzzles together
well. Her social and emotional skills appeared to be one-half that of an age appropriate
child. She had great social difficulties when not taking her medication. Personal and
behavioral patterns appeared to be one-half that of an age appropriate child, although it
appeared that when she was taking her medication her behavior was better controlled.
Her concentration, persistence, and pace in task completion were possibly two-thirds
that of an age appropriate child. (R. 418.)
On examination, H.M. could remember three of three objects, both immediately
and after five minutes. She repeated four numbers forward, but only three backward.
Her grandmother reported that she could read adequately. Without her medication, she
had great difficulty with focus and concentration. (R. 417.)

9

Dr. Lyall diagnosed attention deficit/hyperactivity disorder, combined type, and
conduct disorder, childhood onset type. He assigned a current Global Assessment of
Functioning (“GAF”) score of 55. (R. 419.)
School Records. On May 15, 2007, Joan Arnold, H.M.’s second grade teacher
wrote a letter to H.M.’s pediatrician regarding concerns about her behavior. H.M. was
very aggressive with other students, wrote alarming notes, and used inappropriate
language. She was described as a very needy child who was not afraid to bully others.
Ms. Arnold also submitted a School Behavior Rating Scale that indicated plaintiff was
severely overactive, inattentive, distractible and aggressive. She had severe attention
getting behaviors and was unable to participate in a group. Plaintiff also exhibited
bizarre behavior. (R. 161-62.)
School records documented that plaintiff had been disciplined for the following:
•
•
•
•
•
•
•
•
•
•

biting another student at recess;
hitting a student at recess on two occasions;
spitting spit balls in art class;
trying to pressure two girls to kiss one another at recess;
not following directions;
playing around in class;
talking in class;
spitting on a student;
disturbing class;
telling students that she was going to get a BB gun and kill the teachers and
take their candy;
• throwing things; and,
• biting a student at the bus stop.
(R. 163.)

10

On November 2, 2007, Lorraine Elavsky completed a teacher questionnaire from
the Bureau of Disability Determination. Ms. Elavsky indicated that plaintiff was on
grade level for reading and math. Plaintiff had no problems acquiring and using
information. Plaintiff had slight problems playing cooperatively with other children and
following rules. She stated that plaintiff was fine when she has had her medications.
Ms. Elavsky indicated that plaintiff did not have any problems caring for herself. She
described plaintiff as calm, focused, and in control of herself after taking her
medication. (R. 179-86.)
A November 13, 2009 Vanderbilt ADHD Diagnostic Parent Rating Scale reported
H.M. very often did not pay attention to details or made careless mistakes; had
difficulty attending; did not seem to listen when spoken directly to; did not follow
directions; loses things; was easily distracted; fidgeted; ran about when she should be
seated; was “on the go”; talked to much; blurted out answer before question was asked;
interrupted others; argued with adults; lost her temper; actively disobeyed; bothered
others on purpose; blamed others for her mistakes; touchy and easily annoyed others;
angry and bitter; hateful and wanted to get even; and bullied and threatened. She often
avoided tasks she did not like; was forgetful of daily activities; had difficulty
starting/playing quiet games; and had difficulty waiting her turn. She occasionally
started physical fights. (R. 406.)
A January 22, 2010 Vanderbilt ADHD Diagnostic Parent Rating Scale reported
H.M. very often did not pay attention to details or made careless mistakes; did not listen
11

when spoken directly to; did not follow through when given directs and failed to finish
things; had difficulty organizing tasks and activities; avoided tasks that required
ongoing mental effort; was easily distracted by noises or other things; ran about when
she was supposed to stay seated; had difficulty playing or starting quiet games; was “on
the go”; talked too much; interrupted or bothered others when they were talking or
playing games; argued with adults; lost her temper; actively disobeyed or refused to
follow an adult’s requests or rules; and blamed others for her mistakes or misbehavior.
(R. 408.)
In January 2010, K. Bresenthan, a fifth grade teacher, faxed a completed
Vanderbilt ADHD Diagnostic Teacher Rating Scale to Hope Pediatrics. Plaintiff often
failed to give attention to details and made careless mistakes in schoolwork; had
difficulty organizing tasks and activities; had difficulty playing or engaging in leisure
activities quietly; and talked excessively. She was very often forgetful in daily activities.
(R. 289-90.) At the same time, Mrs. Woods faxed a completed Vanderbilt ADHD
Diagnostic Teacher Rating Scale to Hope Pediatrics. Mrs. Woods indicated that plaintiff
very often failed to give attention to details or made careless mistakes in schoolwork;
did not listen when spoken to directly; had difficulty organizing tasks and activities;
and talked excessively. She often lost things necessary for tasks or activities; was
forgetful in daily activities; left her seat when remaining seated was expected; had
difficulty playing or engaging in leisure activities quietly; and had difficulty waiting in
line. (R. 291-92.)
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Administrative Law Judge’s Findings.
1.

I decline to reopen the claimant's Title XVI application of April 18,
2007 for the reasons discussed above.

2.

The claimant was born on April 2, 1999, therefore she was a schoolage child on January 23, 2009, the date application was filed, and is
currently a school-age child (20 CFR 416.926a(g)(2)).

3.

The claimant has not engaged in substantial gainful activity since
January 23, 2009, the application date (20 CFR 416.924(b) and
416.971 et seq.).

4.

The claimant has the following severe impairments: attention
deficit hyperactivity disorder and conduct disorder. (20 CFR
426.924(c)).

5.

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
416.924, 416.925 and 416.926).

6.

The claimant does not have an impairment or combination of
impairments that functionally equals the listings (20 CFR 416.924(d)
and 416.926a).

7.

The claimant has not been disabled, as defined in the Social
Security Act, since January 23, 2009, the date the application was
filed (20 CFR 416.924(a)).

(R. 27-37.)
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
13

"'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 erred in his consideration of the opinion of
treating physician Sudheer Shirali, M.D. Plaintiff argues that the
administrative law judge improperly concluded that Dr. Shirali’s opinion was
not supported by his treatment notes. Dr. Shirali opined that H.M. suffers
from marked inattention, impulsiveness, and hyperactivity and had marked
deficiencies in age appropriate social functioning, and concentration,
persistence and pace. Dr. Shirali’s notes indicate that H.M.’s medications
frequently did not work, and even when they were working, they wore off too
quickly. Dr. Shirali monitored H.M.’s personal and academic progress. He
noted that it was difficult to control her symptoms. The administrative law
14

judge rejected Dr. Shirali’s opinion because he found his notes to be illegible.
Plaintiff maintains that the administrative law judge apparently did not
attempt to read those portions of his notes that were legible and supported his
opinion. Plaintiff maintains it is error to characterize a provider’s notes as
illegible when many of the notes can be read. Plaintiff also objections to the
administrative law judge’s rejection of Dr. Shirali’s opinion on the basis that it
was not consistent with the opinion of a one time consultative examiner who
had no treatment relationship with H.M.
• The administrative law judge erred in his finding that plaintiff's prior
application was not eligible for reopening. The administrative law judge erred
when he concluded that the report of Dr. Shirali was duplicative. Rather,
plaintiff maintains that the evidence submitted was new and material

15

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

The Commissioner’s regulations define “medical opinions” as “statements from
physicians and psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often
express more than one medical opinion, including “at least one diagnosis, a prognosis
and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at
*2. When an administrative law judge fails to give a good reason for rejecting a treator’s
medical opinion, remand is required unless the failure does not ultimately affect the
decision, i.e., the error is de minimis. Wilson, 378 F.3d at 547. So reversible error is not
committed where the treator’s opinion “is patently deficient that the Commissioner
could not possibly credit it;” the administrative law judge’s findings credit the treator’s
opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.
§ 1527(d)(2) but does not technically meet all its requirements. Id. See, Gayheart v.
Commissioner of Social Security, 710 F.3d 365, 38o (6th Cir. 2013).
1

16

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)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

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

17

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 96-2p3. Gayheart v. Commissioner of
Social Security, 710 F.3d 365, 375 (6th Cir. 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).”4 Gayheart, 710 F.3d at 375.
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.
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.

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.
3

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."
4

18

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.
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

19

controlling weight. 20 C.F.R. § 404.1527(c)(2)5; Gayheart, above,710 F.3d at 376, 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 sources6.
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

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

5

(Emphasis added.)
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.
6

SSR 96-2p.
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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). These reasons must be “supported by the
evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5;
Rogers v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007). This
procedural requirement “ensures that the ALJ applies the treating physician rule and
permits meaningful review of the ALJ’s application of the rule.” Wilson v. Comm’r of Soc.

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Sec., 378 F.3d 541, 544 (6th Cir. 2004).Moreover, the conflicting substantial evidence
“must consist of more than the medical opinions of nontreating and nonexamining
doctors.” Gayheart, 710 at 377. 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 at 242; Hensley, above. The Commissioner
makes the final decision on the ultimate issue of disability. Warner v. Commissioner of
Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human Services, 980 F.2d
1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human Services, 801 F.2d 847,
855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954,
958 n.1 (11th Cir. 1982).
Treating Doctor: Discussion. When evaluating Dr. Shirali’s opinion, the
administrative law judge stated:
As for the opinion evidence, the report of Dr. Sudheer Shirali from April
2009 is given little weight. (Exhibit 6F). Dr. Shirali indicated that the
claimant suffers from marked inattention, marked impulsiveness, and
marked hyperactivity. (Exhibit 6F). He also opined that the claimant had
impairment in age-appropriate social functioning, and marked
impairment in concentration, persistence, or pace. (Exhibit 6F). Generally,
Dr. Shirali’s records do not include specific findings that would support
the severity of symptoms reported in this opinion. This is also
contradicted by the claimant’s academic performance in school, the
records from Hope Pediatrics indicating that the claimant’s Vyvanse was
working, and the report and opinion of Dr. Lyall indicating that the
claimant, overall, was experiencing only moderate symptoms.

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(R. 31.) He described Dr. Shirali’s treatment notes from February 9, 2006 through
August 20, 2007 as follows:
While a majority of these records are illegible, it is clear that most relate to
common ailments that were unrelated to the claimant’s ADHD including
one-time ailments such as stomach ache, sore throat, wart removal,
diarrhea, and earache. (Exhibit 8F). There were references to a diagnosis of
ADHD and treatment with medication, including Ritalin. (Exhibit 8F).
One record noted that the claimant was fidgety. (Exhibit 8F). . . . Dr.
Shirali essentially summarized his records in the report noting the same
period of treatment found in the aforementioned records and reporting
that the claimant had ADHD, was “fidgety”, and treated with
medications, including Ritalin. (Exhibit 2F).
(R. 24-25.)
Here, the administrative law judge concluded that Dr. Shirali’s opinion was not
supported by objective medical evidence and was inconsistent with other substantial
evidence. Dr. Shirali’s treatment notes do not provide results from a mental status
examination, nor do they document that he observed any specific symptoms. Thus, it
appears that the basis for his opinion was solely the symptoms reported by H.M.’s
mother. He did not administer any standardized tests to assess H.M.’s functional
limitations regarding cognitive abilities, memory, and ability to sustain attention and
concentration, nor did he refer her to such testing. The administrative law judge did
refer to H.M.’s school records, statements she and family members made, Dr. Lyall’s
clinical findings and RFC assessment, Hope Pediatric treatment records and the State
agency psychologists’ review of the record in making his fact findings and RFC
findings. It is not the Court’s role to sift through the facts and make a de novo
determination of whether a claimant is disabled. The administrative law judge, not the
Court, is the finder of fact. Siterlet v. Secretary of Health & Human Services, 823 F.2d 918,
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920 (6th Cir. 1987). So long as the Commissioner’s decision is supported by substantial
evidence, it must be affirmed. 42 U.S.C. §405(g). Richardson v. Perales, 402 U.S. 389, 401
(1971).
In a close case, where there is substantial evidence supporting the administrative
law judge’s resolution of the disputed facts, the Court must affirm even if it would
likely have resolved the disputed facts in plaintiff’s favor had it been a trier of fact.
Nunn v. Bowen, 828 F.2d 1140, 1144 (6th Cir. 1987); Kinsella v. Schweiker, 708 F.2d 1058,
1059 (6th Cir. 1983). There is a large zone of choice where the Commissioner’s decision
to deny benefits is supported by substantial evidence, and, had the Commissioner
granted benefits, that decision also would have been supported by substantial evidence.
Mullen v. Secretary of Health & Human Services, 800 F.2d 535, 548 (6th Cir. 1986)(en banc).
In close cases, the Commissioner’s decision must be affirmed so long as there is
substantial evidence supporting the Commissioner’s fact determinations “because there
is a ‘zone of choice’ within which the Commissioner can act, without fear of court
interference.” Mullen, 800 F.2d at 545(citing Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir.
1984)).” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001).
Plaintiff’s argument that the administrative law judge ignored those portions of
Dr. Shirali’s notes that are legible is not supported by the record. First, the
administrative law judge did refer to portions of those notes that he could read. (R. 2425.) Second, while Dr. Shirali’s notes are very difficult to read, plaintiff has pointed to
no specific portions of those notes that he did not refer to but that are substantial
evidence supporting Dr. Shirali’s opinion on the issue of disability. Consequently, it

24

cannot be said that the administrative law judge’s finding that Dr. Shirali’s notes do not
support his opinion was error.
Reopening. Plaintiff argues that the administrative law judge erred in his finding
that plaintiff's prior application was not eligible for reopening. Plaintiff’s argument is
without merit:
Although a claimant may seek to have a determination of the Secretary
reopened, it is within the Secretary's discretion whether or not to reopen
the case. In the present case, the ALJ did not choose to reopen plaintiff's
first application for disability benefits filed in November 1981. Under
Califano v. Sanders, 430 U.S. 99, 107–08, 97 S. Ct. 980, 985, 51 L.Ed. 2d 192
(1977), when a prior decision is not reopened, this court has no jurisdiction
to review the actions of the Secretary on the earlier claim in the absence of
a colorable constitutional claim.
Bogle v. Sullivan, 998 F.2d 342, 346 (6th Cir. 1993).
From a review of the record as a whole, I conclude that there is substantial
evidence supporting the administrative law judge's decision denying benefits.
Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social
Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for
summary judgment be DENIED and that defendant’s motion for summary judgment
be GRANTED.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.

25

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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