Murphy v. Commissioner of Social Security

Filing 18

REPORT AND RECOMMENDATIONS that statement of errors be overruled and judgment be entered for defendant - objections due within fourteen (14) days. Signed by Magistrate Judge Terence P Kemp on 10/27/2014. (agm1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Aplonda R. Murphy,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No. 2:13-cv-730
JUDGE ALGENON L. MARBLEY
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Aplonda R. Murphy, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

May 18, 2009, and alleged that Plaintiff became disabled on March
21, 2007.
After initial administrative denials of her applications,
Plaintiff was given a videoconference hearing before an
Administrative Law Judge on January 17, 2012.

In a decision

dated January 23, 2012, the ALJ denied benefits.

That became the

Commissioner’s final decision on May 30, 2013, when the Appeals
Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on December 4, 2013.

Plaintiff filed her

statement of specific errors on January 21, 2014, to which the
Commissioner responded on March 21, 2014.

Plaintiff filed a

reply on April 10, 2014, and the case is now ready to decide.
II.

Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 45 years old at the time of the
administrative hearings and has a high school education,

testified as follows.

Her testimony appears at pages 41-66 of

the administrative record.
Plaintiff testified that she used a cane or a walker to get
around her house and also used the walker when she went out.

She

had a home health aide come to her house five days a week to
assist her with getting dressed, taking her medicine, and going
to medical appointments.

The aide and Plaintiff’s daughter

divided the cooking responsibilities and also assisted in paying
bills.
In terms of physical activity, Plaintiff testified that she
could stand for five minutes at a time and could sit for thirty
minutes before experiencing numbness in her leg.

She believed

that her psychological condition, which included hearing voices,
was the primary reason she could not work.
The last time Plaintiff had a job was when she worked as a
food service driver.

She injured her hip at that job when she

lifted a food warmer.

She has since had both hips replaced.

She

described a history of substance abuse, primarily marijuana, but
had been sober for four years at the time of the hearing.
Between her primary care doctor, her bone doctor, and others, she
attended six or seven medical appointments each month.
When asked to describe her pain, Plaintiff said it was a
throbbing, constant pain which worsens with bad weather or
stress.

In a typical day she takes medication, watches

television, and occasionally fixes a sandwich.

She had been

taking courses on line, but generally failed them and incurred
some student loan debt.

She also confirmed that she had worked a

number of different jobs in the past such as a child care giver,
a cashier, and an assistant teacher at a school for disabled
children.

She said she might be able to do a sedentary job in a

relaxed environment if she could get up and stretch once in a
while.
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III.

The Medical Records

The medical records in this case are found beginning on page
243 of the administrative record.

The pertinent records can be

summarized as follows.
Dr. Greer, a psychologist, completed a form on June 23,
2009, stating that Plaintiff had made two appointments to see him
that year but kept neither one.

When he last saw her, in 2005,

she was only slightly impaired from a psychological viewpoint,
and suffered from an adjustment disorder with depressed mood.
(Tr. 243-45).
Next, Plaintiff’s chiropractor, Elizabeth Schrickel,
reported on March 8, 2008, that Plaintiff slipped and fell while
chasing a child on a muddy hill.
physical therapy for a year.

She broke her ankle and had

When seen, she still had moderate

swelling and tenderness in the ankle with pain.
It appears that the injury occurred in 2000.

(Tr. 246-47).

See Tr. 256.

Plaintiff was seen at the OSU clinic on March 12, 2009, for
consultation about a hip replacement.
history of hip pain.
full-time student.
the right hip.

She reported a five-year

At that time, she described herself as a

X-rays showed severe degenerative changes in

She was scheduled for a total hip replacement

several months later.

(Tr. 264-65).

Dr. Weaver, a psychologist, performed a consultative
examination on August 12, 2009.

Plaintiff described a history of

physical ailments and pain as well as hearing voices.
appeared to be illiterate.

She

Her mood was tearful and she

described depression and loss of interest as well as feelings of
helplessness.

She avoided people.

Dr. Weaver diagnosed a pain

disorder, PTSD, dysthymia, and panic with agoraphobia, and rated
her GAF at 40.

He thought she was markedly impaired in all areas

of work-related functions.

(Tr. 293-97).

Dr. Williams, a state

agency reviewer, disagreed, finding that Plaintiff’s impairments
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were no more than moderate, noting that Plaintiff’s presentation
to the case adjudicator and to Dr. Weaver were very different and
that her activities of daily living were inconsistent with the
marked impairments described by Dr. Weaver.

Dr. Williams said

that Plaintiff retained “the capacity to perform simple
repetitive tasks in a non public setting without strict
production standards or quotas.”

(Tr. 329-46).

Plaintiff did

get some counseling in 2010, with her psychologist, Dr. Mason,
reporting in June of that year that Plaintiff had inconsistently
attended counseling sessions, was complaining of auditory
hallucinations, had a long history of substance abuse and
addiction, tested positively for confusion and disorientation,
had a “clear pattern of psychosis,” and could not ever be
gainfully employed.

(Tr. 375-77).

Subsequent counseling notes

showed improvement in her symptoms, however, with medication
being effective to control but not eliminate her symptoms.

Dr.

Lee, who signed a form directed to Dr. Basobas and Ms. Perry,
reported on September 23, 2011 that Plaintiff suffered from a
psychotic disorder not otherwise specified, that her GAF was 55,
that her prognosis was poor, and that she had marked limitations
in the areas of understanding, remembering, and carrying out
detailed instructions, in maintaining a schedule, and in dealing
with supervisors or responding to changes in the work setting,
and extreme limitations in maintaining attention and
concentration and completing a work day or week without
interruptions from psychologically-based symptoms.

She would

also miss five or more days per month due to psychological
symptoms.

(Tr. 615-20).

Plaintiff had hip replacement surgery in September, 2009.
At a follow-up visit in October of that year, the new hip was
stable.

(Tr. 307).

Dr. Cho, a state agency reviewer, concluded

from the records predating the hip replacement that Plaintiff
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could do sedentary work with some postural restrictions.
347-54).

(Tr.

Plaintiff had her other hip replaced in 2010 due to end

stage bone-on-bone osteoarthritis.
IV.

The Vocational Testimony

William J. Kiger, a vocational specialist, was the
vocational expert in this case.

His testimony appears at pages

66-71 of the administrative record.
Mr. Kiger testified that Plaintiff’s past jobs were
considered to be food deliverer, a medium, unskilled position,
and day care worker, which was light and semi-skilled.
Mr. Kiger was then asked some questions about a hypothetical
person who was a younger individual and had an advanced
education.

That person could do a wide range of sedentary work,

lifting ten pounds both occasionally and frequently, could sit
for six hours in a work day and stand or walk for two hours, and
was limited to the performance of simple, routine, repetitive
work in a low stress environment requiring only few decisions and
involving limited interaction with co-workers and supervisors.
Also, the person could have no contact with the general public.
The person could also occasionally crawl, crouch, stoop, kneel,
climb stairs or ramps, and balance.

He or she could not be

required to meet production quotas and could not push or pull at
all with the right leg, and only occasionally with the left.
Walking or standing was limited to 15-minute increments, and the
person could not work around dangerous machinery or unprotected
heights or be required to climb ladders, ropes or scaffolds.
According to Mr. Kiger, someone with those restrictions could not
perform any of Plaintiff’s past relevant work.
In response to additional questioning, Mr. Kiger testified
that such a person could perform unskilled sedentary jobs such as
carding machine operator, waxer, or inspector.

He also

identified the number of such jobs in the local and state

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economies.

If the person had to miss an average of four days of

work per month due to medical issues, he or she would not be
employable, and the same would be true for someone who would be
off task for twenty percent of the time.

A person frequently

unable to maintain attention for extended periods of time, to
respond appropriately to co-workers and supervisors, to work
around others, and to work without interruption from
psychological symptoms was similarly unemployable.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1029 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements for disability benefits
through June 30, 2012.

Next, Plaintiff had not engaged in

substantial gainful activity from March 21, 2007 forward.

As far

as Plaintiff’s impairments are concerned, the ALJ found that
Plaintiff had severe impairments including morbid obesity, status
post hip replacement with a generalized pain disorder, posttraumatic stress disorder, dysthymia, and panic disorder with
agoraphobia.

The ALJ also found that these impairments did not,

at any time, meet or equal the requirements of any section of the
Listing of Impairments (20 C.F.R. Part 404, Subpart P, Appendix
1).
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff had the residual functional
capacity to perform work at the sedentary exertional level except
she could only occasionally crawl, crouch, stoop, kneel, climb
stairs, climb ramps, and balance, and she could never push or
pull with the right lower extremity but could do so only
occasionally with the left lower extremity.

She could perform

only simple, routine, repetitious work with 1 or 2 step

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instructions, was limited to a supervised, low stress environment
requiring few decisions, was limited to only occasional
interactions with co-workers and supervisors, could have no
contact with the general public, could stand or walk in only 15
minute increments for a total of 2 hours in an eight-hour
workday, and could not be exposed to hazards such as dangerous
machinery, unprotected heights, scaffolding, ropes, or ladders.
The ALJ found that, with these restrictions, Plaintiff could not
perform her past relevant work, but she could perform the jobs
identified by Mr. Kiger - specifically production worker/waxer,
inspector, and carding machine operator - and that such jobs
existed in significant numbers in the local and state economies
(850 and 65,000, respectively).

Consequently, the ALJ concluded

that Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In her statement of specific errors, Plaintiff raises these
issues: (1) the ALJ erred by not finding that Plaintiff suffered
from a severe psychotic disorder with paranoid features; (2) the
ALJ erred by not finding that Plaintiff’s mental impairments
satisfied the criteria of various sections of Section 12 of the
Listing of Impairments; (3) the ALJ erred by not finding that
Plaintiff’s physical impairments satisfied either Section 1.02A
or 1.03 of the Listing; and (4) the ALJ did not make a proper
credibility finding.

The Court analyzes these claims under the

following standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now 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.

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NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

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 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A. Severe Psychotic Disorder
Plaintiff first argues that, given the substantial evidence
in the record of the existence of a psychotic disorder (the
reports from Drs. Weaver, Mason, Lee, and North Community
Counseling), it was error for the ALJ not to find this to be a
severe impairment.

Especially given the low threshold for

determining “severity,” she contends that these opinions, which
were supported by diagnostic evidence and by the balance of the
records, should have been accorded great weight on this issue,
and the ALJ erred by finding otherwise.

The Commissioner

responds that even if some error was made at this step of the
process, the error was harmless because the ALJ went on to
consider the evidence of psychological impairments and their
resulting limitations at step four, when he determined
Plaintiff’s residual functional capacity.

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It is somewhat curious that despite the amount of evidence
in the record concerning a possible psychotic disorder, that was
not one of the impairments that the ALJ mentioned in his step two
findings, even though he devoted a substantial amount of
discussion to other non-severe impairments.

Nevertheless, the

Commissioner is correct that the failure to characterize a
particular impairment as “severe” is harmless if “the ALJ
consider[s] all of [the claimant’s] impairments in [the] residual
functional capacity assessment finding ....”

Pompa v. Comm’r of

Social Security, 73 Fed. Appx. 801, *1 (6th Cir. Aug. 11, 2003);
see also Taylor v. Astrue, 2012 WL 870770, *5 (S.D. Ohio March
14, 2012)(if the ALJ makes an error at step two, “the question
becomes whether the effect of these [nonsevere] conditions was
properly taken into account at step four of the process when the
ALJ determined plaintiff's ... residual functional capacity”),
adopted and affirmed 2012 WL 1268178 (S.D. Ohio April 13, 2012).
The ALJ did so here, and, as a result, the ALJ’s error (if there
was one) at step two does not provide grounds for reversal or
remand.
B.

The Listings for Mental Impairments

Next, Plaintiff argues that the ALJ erred by not finding
that her psychological impairments met or equaled the criteria
for disability set forth in various sections of the Listing of
Impairments.

She focuses particularly on Sections 12.03, 12.04,

and 12.06, noting that each shares the same “B criteria.”

The “B

criteria” specify that a claimant is disabled if the impairment
described in a section of the Listing to which those criteria
apply has at least two of the following: (1) a marked impairment
in activities of daily living, (2) a marked impairment in social
functioning, (3) marked difficulties in maintaining
concentration, persistence, or pace, and (4) repeated episodes of
decompensation, each of extended duration.

Plaintiff contends

that the evidence from Drs. Weaver, Lee, and Mason all support a
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finding of at least two marked limitations in the areas addressed
by the “B criteria,” and that the ALJ should have so found.

The

Commissioner responds that Plaintiff did not prove that she met
the “A criteria” for Listings 12.03, 12.04, and 12.06, and that
even if she did, the ALJ reasonably found that she did not
satisfy the “B criteria.”
As to both the “A” and “B” criteria, Plaintiff had the
burden to show that her conditions were of Listing severity that is, “[t]he burden of proof for establishing that an
impairment meets or equals the requirements of a listed
impairment rests with the claimant.”

Miller v. Comm’r of Social

Security, 848 F.Supp.2d 694, 708 (E.D. Mich. 2011), citing Foster
v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

Consequently, the

issue here is not whether the record contained evidence from
which it could be inferred that Plaintiff’s impairments met or
equaled some section of the Listing, but whether the evidence was
so compelling on that issue that no reasonable person could have
found otherwise.
Plaintiff addresses the “A” criteria in her statement of
errors simply by citing to evidence that would support a finding
of their existence.

She does not refer to any countervailing

evidence, nor does she discuss why that evidence would not have
reasonably supported the ALJ’s decision.

She advances much the

same type of argument with respect to the “B” criteria, stating
that there is evidence from both treating and examining sources
that she is markedly limited in at least two of the functional
areas addressed by those criteria.
The ALJ discussed only the “B” criteria in his decision,
finding that Plaintiff did not have more than mild restrictions
in her activities of daily living, and had only moderate
restrictions in her social functioning and ability to maintain
concentration, persistence, and pace.

The ALJ also found, and

Plaintiff does not appear to dispute, that there is no evidence
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in the record of any prolonged episodes of decompensation.

Thus,

the key issue is whether the ALJ had a reasonable basis for those
findings.
Dr. Weaver specifically found marked impairments in the
first three “B” criteria.

Dr. Mason did not couch his opinion in

those terms, but he did say that Plaintiff was “ill equipped to
deal with her social environment ....”

(Tr. 376).

Dr. Lee noted

extreme limitations in the area of maintaining concentration, but
only one marked restriction in the area of social interaction
(responding appropriately to supervisors), and he did not
directly address activities of daily living other than to state
that Plaintiff’s symptoms (hallucinations, mood swings, and
negative reaction to stress) “can impede [her] ability to
function in the community....”

(Tr. 620).

It is not at all

clear that these reports, if considered in isolation, demonstrate
a marked impairment in at least two of the categories addressed
by the “B” criteria - but, of course, they cannot be considered
in isolation.
As the ALJ noted, Plaintiff’s testimony indicated that she
could shop for groceries, go out to eat, relate to family members
and her home health aide (who was assisting her when she had her
hip replaced), and do some household chores (although she was
limited by her physical pain).

Her sister-in-law completed a

“Function Report - Adult Third Party” stating that she and
Plaintiff were able, together, to do shopping, pay bills, and go
to doctors’ appointments and outings, that Plaintiff could bathe
and feed herself, and that she did not need to be reminded to
take medication.

She could also put away dishes, fold clothes,

run the vacuum, sing in a choir, and sew.

She could talk with

her mother on the phone and do school work online.

Although that

report mentions some psychologically-based symptoms as well, it
is clear that the primary factor which was causing Plaintiff
difficulty was pain.

Dr. Williams, the state agency reviewer,
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considered this and other evidence and concluded that any
difficulties in activities of daily living were mild, and any
difficulties in social functioning were moderate.

While it could

be debated whether this evidence showed only mild difficulties in
activities of daily living due to psychological symptoms, the
record does support a finding that such difficulties were, at
most, moderate rather than marked.

The record also contains

substantial support for finding only moderate restrictions in
social functioning.

Consequently, the ALJ did not err in

concluding that Plaintiff did not satisfy the “B” criteria.
C.

Listings 1.02A and 1.03

Similar to her arguments about the mental impairment section
of the Listing, Plaintiff contends that the ALJ was required to
find that she met either Section 1.02A or Section 1.03 due to her
bilateral hip replacements.

Those sections presume disability

when a claimant has a major dysfunction of a joint characterized
by gross anatomical deformity which, among other things, prevents
the claimant from “ambulat[ing] effectively,” (Section 1.02A) or
when a claimant does not or cannot return to “effective
ambulation” within twelve months of reconstructive surgery or
surgical arthrodesis of a major weight-bearing joint (Section
1.03).

She points out that she had both hips replaced, one in

2009 and one in 2010, and that various treatment notes showed
that she was having difficulties with walking and balancing.
Again, Plaintiff’s argument is focused solely on the
evidence that might support a finding that she satisfied these
sections of the Listing, and not on the more nuanced question of
whether the evidence as a whole - including any evidence that she
did not meet the Listing - is so compelling as to permit only one
reasonable conclusion to be drawn.

The ALJ cited to additional

evidence bearing on this issue, and the question is whether that
evidence, when considered along with the favorable evidence
relied on by Plaintiff, reasonably permits the opposite inference
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to be drawn.

As the Court of Appeals has often noted, “[t]he

findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to
support a different conclusion.”

See Buxton v. Halter, 246 F.3d

762, 772 (6th Cir. 2001).
Here, the ALJ specifically analyzed only Section 1.02, and
only that part of the section which contains the requirement that
the claimant have gross anatomical deformities such as joint
space narrowing, bony destruction, or ankylosis of the affected
joint.

The ALJ found no such evidence in the record, and

concluded for that reason that Plaintiff did not meet that
section of the Listing.

(Tr. 16).

The only evidence cited by

Plaintiff which would appear to contradict that finding is an
image of her left hip, read on February 2, 2010, which showed
severe osteoarthritic changes in the hip with complete loss of
normal joint height on the superior surface of bone on bone
contact.

(Tr. 603).

That could be interpreted as evidence of

joint space narrowing.

However, that image was taken before

Plaintiff’s left hip was replaced, so its significance in terms
of the criteria listed in Section 1.02 is questionable.
Further, the ALJ engaged in an extensive analysis of
Plaintiff’s ability to walk after her hip replacements when he
discussed her residual functional capacity.

There, he noted that

when she waw Dr. LeMay on January 7, 2010, she was “doing great”
with respect to her prior hip replacement.

(Tr. 556).

A follow-

up image with respect to her left hip showed no gross
complications from surgery.

(Tr. 460).

A note from the Ohio

Heart Group dated July 19, 2010, said that she was “doing fairly
well” after the surgery, was exercising, walking regularly, and
attempting to get involved in an exercise program at the YMCA.
(Tr. 576).

The only evidence which Plaintiff cites from this

same time period (post-left hip replacement) is a single note
from her home health aide dated September 9, 2011, which sets
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forth, as an “[a]dditional diagnosis(es) and/or problems”: “Falls
risk, Difficult mobility.”

(Tr. 730).

Clearly, the evidence

falls far short of being so one-sided on the issue of either
joint deformation or inability to ambulate effectively that it
compels only one conclusion.

The ALJ had a substantial basis for

his findings on this issue.
D.

Credibility

Finally, Plaintiff takes issue with the ALJ’s finding that
her testimony and reports of disabling symptoms was not entirely
credible.

She faults the ALJ for relying “solely upon

Plaintiff’s daily activities” as a reason for discounting her
testimony, asserting that such an approach contravenes the
principle that a claimant who can perform some modicum of
activities of daily living may still be disabled.

See, e.g.

Walston v. Gardner, 381 F.2d 580 (6th Cir. 1967).
It is true that a social security ALJ is not permitted to
reject allegations of disabling symptoms, including pain, solely
because objective medical evidence is lacking.

Rather, the ALJ

must consider other evidence, including the claimant's daily
activities, the duration, frequency, and intensity of the
symptoms, precipitating and aggravating factors, medication
(including side effects), treatment or therapy, and any other
pertinent factors.

20 C.F.R. §404.1529(c)(3).

Although the ALJ

is given wide latitude to make determinations about a claimant’s
credibility, the ALJ is still required to provide an explanation
of the reasons why a claimant is not considered to be entirely
credible, and the Court may overturn the ALJ’s credibility
determination if the reasons given do not have substantial
support in the record.

See, e.g. Felisky v. Bowen, 35 F.3d 1027

(6th Cir. 1994).
As this statement of the law suggests, an ALJ may take
activities of daily living into account in making a credibility
determination, especially if those activities appear inconsistent
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with the Plaintiff’s own reports of what she can and cannot do.
Further, this is not a case where the ALJ relied solely on the
fact that Plaintiff could do some household chores in order to
deny her benefits.

Rather, the ALJ engaged in an extensive

analysis of various credibility factors, including Plaintiff’s
past criminal record, the fact that she appeared to have
misappropriated her children’s benefit checks, that her reports
about when she was taking classes were inconsistent, that she had
a history of missing appointments and not complying with
treatment recommendations, and that she had both a lengthy
history of substance abuse and made contradictory statements
about it.

Under these circumstances, the ALJ provided a

satisfactory and reasonably supported analysis of the credibility
issue, and this Court is therefore not free to disturb his
findings.

See, e.g., Jones v. Comm’r of Social Security, 336

F.3d 469, 476 (“Upon review, we are to accord the ALJ's
determinations of credibility great weight and deference
particularly since the ALJ has the opportunity, which we do not,
of observing a witness's demeanor while testifying”).
E.

Other Issues

Although not identified as a specific error, at the end of
the discussion about credibility, Plaintiff includes a single
paragraph raising a question about the ALJ’s rationale for giving
no weight to Dr. Lee’s opinion.

The ALJ provided various reasons

for preferring Dr. Williams’ views over those of any treating or
examining source; one was his conclusion that the handwriting on
Dr. Lee’s report was similar to Plaintiff’s, and that “this form
was completed not by Dr. Lee, but by the claimant herself.

As

such, I gave the opinion rendered in this form no weight as I do
not believe it was completed by the claimant’s doctor.”
26).

(Tr.

As an exhibit to her statement of errors, Plaintiff

attached a letter from Dr. Lee indicating that his assistant
filled out the form and that he concurred in the opinions stated
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there.

She amplifies this argument in her reply, contending for

the first time that the ALJ did not have valid reasons for
rejecting this opinion even if it were considered to have been
rendered by Dr. Lee.
Perhaps because this claim was not stated or designated as a
separate assignment of error, and because Plaintiff made no
argument in her statement of errors (as opposed to the reply)
about the ALJ’s evaluation of treating source opinions other than
her effort to validate the form completed on Dr. Lee’s behalf,
the Commissioner’s memorandum makes almost no mention of this
issue.

It is briefly discussed in connection with Plaintiff’s

argument about the Mental Impairment Listings, but the
Commissioner does not address the application of the treating
source rule as it relates to the ALJ’s specific rejection of Dr.
Lee’s opinion.
The Court does not believe that any part of this issue other
than the authenticity of Dr. Lee’s report has been properly
raised.

Ordinarily, issues presented for the first time in a

reply brief will not be considered by the Court.

“This Court has

explained time and again that ‘a reply brief is not the proper
place to raise an issue for the first time.’”

Tonguette v. Sun

Life and Health Ins. Co. (U.S.), 2013 WL 1818620, *4 (S.D. Ohio
April 29, 2013).

However, the Court has concern about the ALJ’s

use of his own non-expert handwriting analysis as a basis for
disregarding evidence in a case, especially evidence from a
treating source.

If that were the only reason evident in the

record why the ALJ gave no weight to Dr. Lee’s opinion, the Court
might well find that the ALJ’s decision on that precise point was
not reasonably supported, and that the ALJ should have developed
the record further by asking for some verification about the
report before declaring it to be a forgery.
Here, however, any error in that regard is harmless.

The

ALJ also had before him similar reports of extreme limitations
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(perhaps even more extreme than those noted by Dr. Lee) from Dr.
Weaver and Dr. Mason.

He rejected them in favor of Dr. Williams’

opinion for various reasons, including the fact that Plaintiff
engaged in a wide range of activities inconsistent with these
assessments, including taking college classes online and going to
church, dining out with her family, and going to exercise classes
at the Y.

Additionally, he noted that she had applied for jobs

and had disregarded medical treatment advice.

Had the ALJ

considered Dr. Lee’s opinion to be authentic, he would, as he
stated at Tr. 25, have discounted it substantially as
“inconsistent with the evidence as a whole....”

The Court is

therefore persuaded that the error the ALJ committed in deeming
the form to have been completed by Plaintiff and not by or on
behalf of Dr. Lee did not affect his decision.

Because Plaintiff

did not properly raise any other issues about the ALJ’s treatment
of that evidence, the Court will not analyze the questions (which
are the usual ones raised when a treating source opinion is not
given controlling or significant weight) of whether the ALJ both
had and articulated valid reasons for his rejection of the
treating source opinion.

See Wilson v. Comm’r of Social

Security, 378 F.3d 541, 544 (6th Cir. 2004).
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the defendant Commissioner of Social
Security.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
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portions

of the report or specified proposed findings or

recommendations to which objection is made.

Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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