Burns v. Commissioner of Social Security

Filing 21

REPORT AND RECOMMENDATIONS re 3 Complaint filed by Amanda L Burns. It is RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiffs motion for summary judgment be DENIED and that defendants motion for summary judgment be GRANTED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 11/06/2014. (sr1)

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

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

Civil Action 2:13-cv-1045

:

Plaintiff,

:
:

Judge Smith

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Amanda Burns 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 administrative record and the
parties’ merits briefs.
Summary of Issues. Plaintiff Burns maintains that she became disabled on January 1, 2011, at age 30, due to post traumatic stress disorder, depression, “childhood
trauma” and stomach problems. (PageID 250.)
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
•

The administrative law judge failed to craft a residual functional capacity
that fairly accounts for all of limitations resulting from plaintiff’s severe
impairments, particularly mental health disorders causing a “moderate”
limitation to concentration, persistence or pace; and

•

The administrative law judge’s consideration of the opinion evidence is
flawed and not supported by substantial evidence. The administrative law

judge erred by inappropriately discounting the opinion of two consulting
examiners, Dr. Miller and Dr. Vasilakis.
Procedural History. Plaintiff Burns protectively filed her application for supplemental security income on April 27, 2011, alleging that she became disabled on January
1, 2011, at age 30. (PageID 209-14.) The application was denied initially and upon
reconsideration. Plaintiff sought a de novo hearing before an administrative law judge.
On December 10, 2012, an administrative law judge held a video hearing at which
plaintiff, represented by counsel, appeared and testified. (PageID 88-102.) A vocational
expert also testified. (PageID 102-09.) On January 4, 2013, the administrative law judge
issued a decision finding that Burns was not disabled within the meaning of the Act.
(PageID 67-78.) On August 24, 2013, 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 53-57.)
Age, Education, and Work Experience. Burns was born on March 2, 1980.
(PageID 88, 209.) She has a GED. (PageID 98-99, 251.) Burns has past relevant work as a
baker, restaurant worker, cashier, machine operator and house cleaning. (PageID 104,
251.) She last worked in 2011 as a housekeeper. (PageID 100-01.)
Plaintiff’s Testimony. The administrative law judge fairly summarized Burns’s
testimony as follows:
The claimant testified that she has difficulty thinking around others. The
claimant testified that she has not received treatment for her mental conditions until recently. She stated that she has sought treatment in the past
and it has not gone well. She testified that she does not feel listened to or
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taken seriously. The claimant testified that counseling has been
recommended, and she knows it needs to be done, but does not want to
follow through. The claimant testified that she is on medication for her
mood and anxiety, but does not feel they are helping. The claimant testified that she does not leave the house or go anywhere.
The claimant testified that her drug use ended in May of 2009. She testified to using heroin, cocaine, marijuana and alcohol. She testified to
occasional marijuana and alcohol use.
(PageID 75.)
Medical Evidence of Record. The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize that evidence.
State of Ohio, Department of Rehabilitation and Corrections
Burns was incarcerated twice during the period from September 21, 1999
through August 12, 2002. At the age of 17, she was charged with obstruction of justice
and spent 18 months in jail. She spent another 11 months incarcerated in 2001 for
receiving stolen property. (PageID 296-498.) During her initial mental health screen, it
was determined that no mental health services were needed. (PageID 341.) Burns also
reported during her initial intake that she smoked 5-6 joints everyday and drank a
bottle of alcohol every day. (PageID 347.) On mental health/substance use screenings
during her incarceration, Burns reported self-injurious behaviors when she was age 12.
(PageID 328, 338.)

3

A referral request for counseling on November 8, 1999 showed a Dr. Harper was
concerned about Burns’s issues regarding domestic violence, she appeared depressed and
was adjusting poorly. Burns was diagnosed with an adjustment disorder. (PageID 317.)
Berger Hospital
In September 2008, Burns was brought to the emergency room by squad. (PageID
682-723.) It was the second anniversary of the death of her child and she had overdosed
on prescription medication. She was admitted to the intensive care unit. (PageID 684-90.)
Burns was to follow-up with Scioto Paint Valley following discharge. (PageID 696.)
The Recovery Center
Burns presented to the Recovery Center on May 15, 2009, on self referral after
overdosing on pills and alcohol. Burns was seeking services to address her addiction and
mental health problems. She felt “overwhelmed” with grief and experienced feelings of
depression, anxiety and irritability. She endorsed a history of violence, both self-inflicted
and inflicted on others, and described having numerous jobs in the previous five years
with an inability to maintain employment due to absenteeism, termination, and disciplinary actions for fighting with other employees. It was recommended that Burns attend
counseling every week for 9 months, and a 12-step program. (PageID 499-512.) Burns
was terminated from the program for nonparticipation. (PageID 586-88.)
Fairfield Medical Center
In November 2010, Burns was admitted to the hospital for intractable nausea and
vomiting, and left upper quadrant pain. (PageID 536-74.) Elaine Lewis, M.D., the hospital
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physician, noted Burns had a history of opiate and narcotic addiction. Upon admission,
Burns’s drug screen was positive for cannabis and benzodiazepines. Dr. Lewis opined it
was necessary to limit Burns’s use of controlled substances and noted this was her second
reported relapse. (PageID 539.)
Marc Miller, Ph.D.
Dr. Miller performed a consultative psychological examination at the request of
the Ohio Bureau of Disability Determination on August 16, 2011. (PageID 589-93.)
Burns’s chief complaint was “I’ve got a lot of psychological problems. I’ve been in and
out of counseling since age 10.” (PageID 589.) Dr. Miller noted a history of drug
problems for many years and history of incarceration. (PageID 590.) On mental status
examination, Dr. Miller noted Burns’s behavior indicated a depressed individual. She did
not demonstrate any obsessions or compulsions. She reported increased stress due to
lack of income to take care of her children. Dr. Miller assessed Burns’s depression as a 7-8
out of 10, and her anxiety was an 8 out of 10. (PageID 591.) Dr. Miller noted Burns’s
insight and judgment to be good, she reported difficulty making decisions and motivation was poor. (PageID 592.) He noted that Burns’s concentration was fair to poor, and
her abstract thinking was poor. Burns reported that she does not like to be around other
people. However, Dr. Miller found her social adaptation to be fair. Dr. Miller noted that
Burns understood the need for mental health treatment. (Id.)
As to her daily activities, Burns related that she goes to bed at all hours. She eats
one meal per day. She takes care of her children. She does not have a driver’s license. She
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stays in the home and has no community activities. She does not watch television. She
prepares the meals, laundry, cleaning, and dishes. She also grocery shops and takes care
of her own money management. (PageID 592.)
Dr. Miller opined that Burns had no difficulty understanding, remembering, and
carrying out one-to-two step job instructions; her ability to interact with others was impaired as well as her attention and concentration. Burns’s ability to deal with the stress
and pressures of work activity was significantly impaired.
He diagnosed a dysthymic disorder, moderate to severe; generalized anxiety
disorder, moderate; attention deficit disorder; and polysubstance abuse in remission.
Burns was assessed a Global Assessment of Functioning (GAF) score of 45, indicative of a
serious impairment. (PageID 593.)
Karla Voyten, Ph.D./Marianne Collins, Ph.D. After her review of the record on
August 19, 2011, state agency psychologist, Dr. Voyten, reported that medically determinable impairments of organic mental disorder, affective disorder, anxiety-related disorder, a personality disorder and substance-addiction disorder were present, but were not
severe. (PageID 118-19.) Dr. Voyten opined that Burns was mildly limited in her activities
of daily living, moderately limited in maintaining social functioning and in maintaining
concentration, persistence or pace, and no episodes of decompensation. (PageID 119.) Dr.
Voyten further determined that the evidence did not establish the presence of the “C”
criteria. (Id.) Dr. Voyten opined that Burns could complete simple, routine tasks in
environments where duties did not change frequently and could have superficial social
6

interaction. (PageID 120-22.) On December 9, 2011, state agency reviewing psychologist,
Melanie Bergsten, Ph.D. opined that Burns could have superficial interaction and could
perform work tasks that were relatively static with changes that were explained. (PageID
131-32.)
William Vasilakis, Ph.D.
Burns was evaluated by psychologist, Dr. Vasilakis on behalf of Job and Family
Services, in May 2012. (PageID 641-43.) Burns reported that that she was scheduled to see
a counselor soon but that she was dreading the upcoming appointment, relating that
during past experiences “the mental health field hasn’t helped me.” (PageID 642.) Burns
described panic attacks and episodes of passing out. Her fiancé had recently been killed in
Afghanistan. She was overwhelmed and angry. She explained that she had turned back
to heroin after losing her daughter several years before, but that she had been off drugs for
three years. Dr. Vasilakis diagnosed Burned with bipolar II, post traumatic stress disorder, attention deficit hyperactivity disorder, and panic disorder with agoraphobia. (Id.)
He opined that Burns was markedly impaired in most areas of understanding and memory, social interaction, and adaptation. He stated that these limitations would last between eight and eleven months. (PageID 641.)
New Horizons
Burns began receiving mental health treatment at New Horizons Youth and Family
Services on July 24, 2012. (PageID 649-52.) At the time of her initial evaluation, Burns
reported a “life long history of depression anxiety, panic attacks and mood swings. Has
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been in foster care for most of her life. Says she been feeling low and down most or the
time. Has been feeling nervous and anxious most of the time. Has been having panic
attacks almost every day. She is afraid of going out in public and stays mostly indoors.
Says she is feeling irritable and edgy with severe mood swings. She is sleeping 3-4 hours
per night. No mania or psychosis is noted. Denies suicidal or homicidal ideas or plans.
Denies drug or alcohol use.” (PageID 649.) On mental status examination, Burns was well
groomed, her demeanor was withdrawn, average eye contact, clear speech, racing
thoughts, irritable mood and full affect. (PageID 650.) Burns was diagnosed with bipolar
disorder, mixed; and an anxiety disorder, NOS. (PageID 651.) Burns received therapy and
was also treated with medication through at least November 27, 2012. (PageID 645-48,
746-50.)
Administrative Law Judge’s Findings. The administrative law judge found that:
1.

The claimant has not engaged in substantial gainful activity since
April 27, 2011, the application date (20 CFR 416.971 et seq.).

2.

The claimant has the following severe impairments: bipolar
disorder, anxiety disorder and polysubstance abuse (20 CFR
416.920(c)).

3.

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
416.920(d), 416.925 and 416.926).

4.

After careful consideration of the entire record, [the administrative
law judge] finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with
the following nonexertional limitations: the claimant can per-form
simple routine tasks in a relatively static environment with few
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changes that are explained; and can have occasional and superficial interaction with others.
5.

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

6.

The claimant has not been under a disability, as defined in the
Social Security Act, since April 27, 2011, the date the application
was filed (20 CFR 416.920(f)).

(PageID 72-78.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), “[t]he findings
of the Commissioner as to any fact, if supported by substantial evidence, shall be conclusive. . . .” Substantial evidence is “‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Richardson v. Perales, 402 U.S. 389,
401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is
“‘more than a mere scintilla.’” Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.
1976). The Commissioner’s findings of fact must be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366
(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining
whether the Commissioner’s decision is supported by substantial evidence, the Court
must “‘take into account whatever in the record fairly detracts from its weight.’” Beavers
v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting

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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. Burns argues that the decision of the Commissioner
denying benefits should be reversed because:
•

The administrative law judge failed to craft a residual functional capacity that
fairly accounts for all of limitations resulting from plaintiff’s severe impairments,
particularly mental health disorders causing a “moderate” limitation to concentration, persistence or pace. Plaintiff argues that pursuant to Ealy v. Comm’r of
Social Security, 594 F.3d 504 (6th Cir. 2010), the administrative law judge determined that Burns suffered from moderate limitations in concentration, persistence or pace, and then erroneously limited her to simple, routine work, without
fairly accounting for the additional disturbance to concentration, persistence and
pace. (See Doc. 11 at PageID 765.)

•

The administrative law judge erred by inappropriately discounting the opinion
of two consulting examiners, Dr. Miller and Dr. Vasilakis. According to plaintiff,
the administrative law judge afforded greater weight to the opinions of nonexamining state agency reviewers who had access to only a portion of the medical evidence and without good reason discounted the work-preclusive opinions
of two examining psychologists. (Id. at PageID 766-69.)
Analysis.
10

During the sequential analysis, the administrative law judge determined Burns’s
residual functional capacity. 20 C.F.R. §§ 416.920(a)(4), 416.945. Residual functional
capacity is a measure of what an individual can do despite the limitations imposed by
her impairments. 20 C.F.R. § 416.945. Here, the administrative law judge found Burns
could perform a range of work that accommodated a variety of mental limits. (PageID
74.) According to the administrative law judge, Burns can perform simple routine tasks
in a relatively static environment with few changes that are explained; and can have
occasional and superficial interaction with others. (Id.) As explained in his decision, in
formulating Burns’s functional capacity assessment, the administrative law judge considered the opinions and findings of the examining and reviewing medical sources, as
well as other evidence of Burns’s activities and treatment. (PageID 74-77.)
The Social Security regulations, rulings, and Sixth Circuit precedent provide that
the administrative law judge is charged with the final responsibility in determining a
claimant’s residual functional capacity. See e.g., 20 C.F.R. § 416.927(d)(2) (the final
responsibility for deciding the residual functional capacity “is reserved to the Commissioner.”). Moreover, the Social Security Act and agency regulations require an administrative law judge to determine a claimant’s residual functional capacity based on the
evidence as a whole. 42 U.S.C. § 423(d)(5)(B), 1382c(a)(3)(H)(i)(incorporating § 423(d)
for Title XVI); 20 C.F.R. § 416.945(a) (“the administrative law judge . . . is responsible for
assessing your residual functional capacity”). As the court recognized in Henderson v.
Comm’r of Soc. Sec., 2010 WL 750222, No. 1:08-cv-2080 (N.D. Ohio March 2, 2010), pur11

suant to the regulations, the administrative law judge is charged with evaluating several factors in determining the residual functional capacity, including the medical evidence (not limited to medical opinion testimony), and the claimant’s testimony. Id. at *2,
citing Webb v. Comm’r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004); Social Security Ruling
96-5p; Social Security Ruling 96-8p.
An administrative law judge’s residual functional capacity assessment is based
upon consideration of all relevant evidence in the case record, including medical evidence and relevant non-medical evidence regarding what work a claimant is capable of
performing. Social Security Ruling 96-5p. Social Security Ruling 96-8p instructs that
the administrative law judge’s residual functional capacity assessment must be based
on all of the relevant evidence in the case record, including factors such as medical
history, medical signs and laboratory findings, the effects of treatment, daily activities,
lay evidence, recorded observations, medical source statements, effects of symptoms,
and evidence from attempts to work. Social Security Ruling 96-8p.
20 C.F.R. § 416.927(d)(2) also explains that “[a]lthough we consider opinions
from medical sources on issues such as your residual functional capacity, . . . the final
responsibility for deciding these issues is reserved to the Commissioner.” The regulations do not require an administrative law judge to rely solely upon medical opinions
when formulating a residual functional capacity, but instead explicitly require an administrative law judge to evaluate medical opinions based on their consistency with
and support from “medically acceptable clinical and laboratory diagnostic techniques.”
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20 C.F.R. § 416.927(c)(2), (3), (4). Indeed, as the Sixth Circuit has held, physician opinions “are only accorded great weight when they are supported by sufficient clinical
findings and are consistent with the evidence.” Cutlip v. Sec’y of Health & Human Servs.,
25 F.3d 284, 287 (6th Cir. 1994).
The administrative law judge here gave considerable weight to medical opinion
evidence from Drs. Voyten and Bergsten, state agency reviewing psychologists, who
completed mental residual functional capacity assessments in August and December
2011. (PageID 118-22, 131-32.) The administrative law judge accepted Dr. Voyten’s
opinion that Burns can complete simple routine tasks in environments where duties do
not change frequently and that Burns was capable of superficial social interaction.
(PageID 76.) The administrative law judge further noted that Dr. Voyten determined
that Burns exhibited poor credibility, reporting no drug use when the medical record
showed otherwise. (Id.) The administrative law judge accommodated this opinion with
his general restriction for “simple routine tasks in a relatively static environment with
few changes that are explained; and can have occasional and superficial interaction with
others.” (PageID 74.) The Social Security regulations and rulings expressly recognize
that state agency psychologists are “highly qualified psychologists who are also experts
in Social Security disability evaluation.” See 20 C.F.R. § 416.927(e)(2)(i); Social Security
Ruling 96-6p; see Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 651 (6th Cir. 2006) (en banc)
(affirming administrative law judge’s decision adopting reviewing physician’s opinion
over treating physician’s opinion).
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The administrative law judge also considered Burns’s subjective complaints in
evaluating her residual functional capacity, but found they were not entirely credible.
(PageID 75.) The Sixth Circuit has held that it accords great deference to an administrative law judge’s credibility assessment, particularly because the administrative law
judge has the opportunity to observe the demeanor of a witness while testifying. Jones
v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003). It is not the province of the
reviewing court to “try the case de novo, nor resolve conflicts in the evidence, nor
decide questions of credibility.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir.
1997). The administrative law judge expressly stated that he had considered Burns’s
subjective complaints in accordance with the requirements of Social Security Ruling 964p, 96-7p, and 20 C.F.R. § 416.929 (PageID 74), and set forth the various factors that he
had considered in his credibility assessment, including specific citations to medical
records and medical source opinions, objective clinical findings, treatment regimen,
medication use, Burns’ drug and alcohol use, observations at the hearing and activities.
(PageID 75-77.)
Relying on Ealy v. Comm’r of Soc. Sec., 594 F.3d 504 (6th Cir. 2010), plaintiff argues
that the administrative law judge determined that Burns suffered from moderate limitations in concentration, persistence or pace, and then erronously limited her to simple,
routine work, without fairly accounting for the additional disturbance to concentration,
persistence and pace. (See Doc. 11 at PageID 765.) Dr. Voyten did determine that Burns

14

has moderate difficulties in concentration, persistence or pace (PageID 119), however
when she explained in “narrative form,” Dr. Voyten found

Clmt has extensive hx of drug use. No periods of extended decompensation. She currently reports sobriety since 2009 but there are tox screens
from 2010 indicating positive for opiates. She is a frequent person in the
ER requesting addictive medications. Clmt has been [through] rehab but
there is indication of lack of participation. Clmt denies current [treatment].
Clmt can complete SRT in environments where duties do not change
frequently.
(PageID 121.) Other courts that have addressed this issue have concluded that Section I
of the form is merely a worksheet for the evaluator and does not constitute the evaluator’s residual functional capacity assessment. See Velez v. Comm’r of Soc. Sec., 2010 WL
1487599, *6, (N.D. Ohio Mar. 26, 2010) (“In general, . . .the administrative law judge is
not required to include the findings in Section I in formulating residual functional
capacity.”); Kachik v. Astrue, 2010 WL 3852367, *6 (W.D. Pa. Sept. 27, 2010) (citing Liggett
v. Astrue, 2009 WL 189934,*8 (E.D. Pa. 2009)); Berry v. Astrue, 2009 WL 50072, *15 (W.D.
Va. Jan. 7, 2009); Norris v. Astrue, 2008 WL 4911794, *16 (E.D. N.C. Nov. 14, 2008); Malueg v. Astrue, 2007 WL 5480523, **6-7 (W.D. Wis. May 30, 2007). The form itself makes
clear that it is the narrative of the form that embodies the actual assessment and this
Court agrees with those other courts that have held that an administrative law judge is
not required to expressly include the Section I notations in formulating a claimant’s

15

residual functional capacity. The administrative law judge did not, therefore, err in
crafting Burns’s mental residual functional capacity.
The Court will next address Burns’s arguments concerning the weight assigned
to the medical source opinions. Burns contends that the administrative law judge erred
by inappropriately discounting the opinion of two consulting examiners, Dr. Miller and
Dr. Vasilakis. (Doc. 11 at PageID 766-69.) In order to determine whether the administrative law judge acted properly in disagreeing with a medical source, the Court must
first determine the medical source’s classification. Of the three types of medical
sources-nonexamining sources, nontreating (but examining) sources, and treating
sources - Dr. Miller and Dr. Vasilakis were the second. See 20 C.F.R. § 416.902; Smith v.
Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) ( “A ‘nontreating source’ (but
examining source) has examined the claimant ‘but does not have, or did not have, an
ongoing treatment relationship with’ [her].”). In contrast, Dr. Voyten and Dr. Bergsten
were “nonexamining sources.” See Smith, 482 F.3d at 875 (“A ‘nonexamining source’ is
‘a physician, psychologist, or other acceptable medical source who has not examined
[the claimant] but provides a medical or other opinion in [the claimant’s] case.’ ”).
The Social Security Administration gives the most weight to opinions from a
claimant’s treating source; accordingly, an administrative law judge is procedurally
required to “give good reasons in [its] notice of determination or decision for the weight
[it gives the claimant's] treating source’s opinion.” (Id.) However, this requirement
only applies to treating sources. (Id. at 876.) With regard to nontreating, but examining,
16

sources, the agency will simply “[g]enerally [ ] give more weight to the opinion of a
source who has examined [the claimant] than to the opinion of a source who has not
examined” her. 20 C.F.R. § 416.927(c)(1); see also Smith, 482 F.3d at 875. Because Dr.
Miller and Dr. Vasilakis should not have been afforded controlling weight, in order to
determine how much weight to give Dr. Miller’s and Dr. Vasilakis’s opinions, the
Regulations require administrative law judges to weigh their opinions with the factors supportability, consistency, specialization, etc. -described in 20 C.F.R. §416.927(c).
The administrative law judge gave little weight to Dr. Vasilakis’s opinion
because he failed to address or cite the reasons behind his specified limitations; the
treatment records related to Burns’s counseling did not indicate signs or symptoms that
supported marked limitations; Burns’s mental status examinations generally showed
Burns to have full affect as well as fair insight and judgment; and Dr. Vasilakis opined
that Burns’s mental limitations were expected to last between eight and 11 months.
(PageID 77.)
Likewise, the administrative law judge afforded “less than full weight” to the
opinion of Dr. Miller because he relied upon Burns’s subjective complaints in rendering
his opinion and Burns has demonstrated repeated indications of poor credibility; and
Burns’s reported level of activity showed a higher level of functioning than assessed by
Dr. Miller. (Id.) The administrative law judge cited the absence in the record of other
evidence that Burns lacked the mental ability to perform any work activity. The administrative law judge noted that Burns had not received any mental health treatment, nor
17

had she been on any medication. (Id.) The record shows that the administrative law
judge considered relevant factors in its determination to credit Dr. Voyten and Dr.
Bergsten’s assessments over Dr. Miller and Dr. Vasilakis. The administrative law judge
agreed with Dr. Voyten who found Burns exhibits poor credibility as she reported to
Dr. Miller that she has not used drugs since 2009 and the emergency room reports show
positive opiate test in 2010. (PageID 76 citing to PageID 119.) Dr. Voyten also gave
weight to Dr. Millers “somewhat [vague] opinions.” (PageID 120.)
Plaintiff argues that the administrative law judge’s decision to accept the opinions of the state psychologists over those of the consulting psychologists runs afoul to
the opinion issued by the Sixth Circuit in Gayheart v. Commissioner of Social Sec., 710 F.3d
365 (6th Cir. 2013). The Court held in relevant part that in evaluating medical source
evidence and opinions, the administrative law judge commits reversible error by subjecting the opinions of the claimant’s treating physicians to closer scrutiny than the opinions of the state agency physicians. Gayheart, 710 F.3d at 375-76. The Court observed,
the administrative law judge rejected the opinions of the plaintiff’s treating physicians
for alleged internal inconsistencies and for being inconsistent with the record as a whole
while at the same time accepting the opinions of the state agency physicians that suffered from the same flaws. (Id.)
The Court concludes, however, that Gayheart does not apply in this case because
the record does not reflect that the administrative law judge scrutinized the opinions of
the consulting psychologists more closely than the opinions of the state agency con18

sultants or applied double standards in his evaluation of the medical evidence. First,
the record indicates, Burns arguably had no treating psychologist. Second, some of the
limitations indicated by Dr. Miller were incorporated into the administrative law
judge’s mental residual functional capacity, such as limiting Burns to jobs with simple
routine tasks in a relatively static environment with few changes that are explained and
can have occasional and superficial interaction with others based on her reported difficulties handling stress and being around others as reported to Dr. Miller during his
consultive evaluation. See PageID 77, 592-93. The fact of the matter is that because there
was no medical source with a longitudinal picture of Burns’s mental health, each psychological medical source opinion was necessarily based on a limited amount of evidence.
Consequently, the Court does not find that the administrative law judge’s evaluation of
the medical evidence is contrary to Gayheart. The administrative law judge’s decision to
place more weight on the conclusions of Dr. Voyten and Dr. Bergsten than those of Dr.
Miller and Dr. Vasilakis is supported by substantial evidence.
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

19

fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).

s/Mark R. Abel
United States Magistrate Judge

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