Reed v. Commissioner of SSA

Filing 24

ORDER ADOPTING and AFFIRMING the REPORT AND RECOMMENDATION 21 in that the decision of the Commissioner is affirmed and this action is dismissed. Signed by Judge James L. Graham on 3/23/17. (sem)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Elizabeth Ann Reed,
Plaintiff,
v.

Case No. 2:16-cv-78

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Elizabeth Ann Reed brings this action under 42
U.S.C. §405(g) for review of the final decision of the Commissioner
of Social Security (“Commissioner”) denying her application for
social security disability insurance benefits.

In her August 18,

2014, decision, the administrative law judge (“ALJ”) found that
plaintiff had severe impairments consisting of degenerative disc
disease, lumber radiculopathy, cervical radiculopathy, depression,
general anxiety disorder, and panic disorder without agoraphobia.
PAGEID 60.

The ALJ concluded that plaintiff has the residual

functional capacity (“RFC”) to perform light work, except
she can frequently push and pull with the bilateral upper
extremities and lower extremities; frequently climb ramps
and stairs, stoop, kneel, crouch and crawl; never climb
ladders, ropes or scaffolds; and frequently reach
overhead with the bilateral upper extremities.
She
should avoid concentrated exposure to workplace hazards,
including operation of hazardous machinery. She retains
the ability to understand, remember and carry out simple,
routine, repetitive tasks consistent with unskilled work
in an environment without demand for fast pace with
infrequent superficial interaction with the general
public and appropriate interactions with supervisors and
coworkers in a setting where change is infrequent and
easily explained.
PAGEID 62-63.

The ALJ concluded that plaintiff was capable of

performing jobs existing in significant numbers in the national
economy, and that she is not disabled.

PAGEID 72.

This matter is

before the court for consideration of plaintiff’s March 7, 2017,
objections to the February 21, 2017, report and recommendation of
the

magistrate

judge,

recommending

that

the

decision

of

the

Commissioner be affirmed.
I. Standard of Review
If a party objects within the allotted time to a report and
recommendation, the court “shall make a de novo determination of
those portions of the report or specified proposed findings or
recommendations

to

which

objection

is

made.”

§ 636(b)(1); see also Fed. R. Civ. P. 72(b).

28

U.S.C.

Upon review, the

court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”

28

U.S.C. § 636(b)(1).
The court’s review “is limited to determining whether the
Commissioner’s decision ‘is supported by substantial evidence and
was made pursuant to proper legal standards.’”

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.

2

Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Plaintiff’s Objections
A. Physical RFC Not Supported
Plaintiff, a former health care worker, claims that she is
physically disabled as a result of a back injury she sustained in
2008 while lifting a patient.

In her objections, she contests the

magistrate judge’s finding that the ALJ did not err in giving
greater weight to the opinions of the state agency physicians than
to the opinions of examining physicians concerning plaintiff’s
physical limitations.
As a general matter, the opinions of a treating source, who
has an ongoing treatment relationship with the claimant, and of an
examining source, who examines the claimant but has no ongoing
treatment relationship with the claimant, are entitled to more
weight than the opinion of a non-examining source such as state
agency consultants. Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365,
375 (6th Cir. 2013).

However, this is not a per se rule.

See

Norris v. Comm’r of Soc. Sec.. 461 F.App’x 433, 438-40 (6th Cir.
2012)(upholding ALJ’s decision to credit state-agency physicians’
assessments over those of treating physicians); see also Soc. Sec.
Rul. 96-6p, 1996 WL 374180 at *3 (Soc. Sec. Admin. July 2,
1996)(“In appropriate circumstances, opinions from State agency
medical and psychological consultants and other program physicians
and psychologists may be entitled to greater weight than the
opinions of treating or examining sources.”).
The ALJ adequately explained why great weight was given to the
opinions of the state agency consultants, Leon D. Hughes, M.D., and
Olga V. Pylaeva, M.D., regarding plaintiff’s physical capabilities.

3

PAGEID 67.

The ALJ noted that their opinions were “generally

consistent with the medical evidence, which shows treatment for
back and neck injuries after an accident at work with improvement
of her injuries over time.”

PAGEID 68.

The ALJ further observed

that “these medical consultants are licensed physicians who are
familiar with the evidentiary requirements for making disability
determinations

under

the

Social

Security

Act.”

PAGEID

68.

Finally, the ALJ correctly stated that “the record does not contain
a medical opinion from a treating source that further limits the
claimant’s work-related activities.”

PAGEID 68.

The ALJ also gave sufficient explanation for the weight
accorded

to

the

opinions

of

the

plaintiff’s physical limitations.

examining

sources

regarding

The ALJ stated that little

weight was given to the opinion of Howard Pinsky, D.O., who
conducted an independent medical examination for the Ohio Bureau of
Workers’ Compensation (“BWC”) in October of 2011.

PAGEID 68.

The

ALJ noted Dr. Pinsky’s opinion that plaintiff had not reached
maximum

medical

improvement

of

a

herniated

lumbar

disc

(for

purposes of her eligibility for workers’ compensation coverage),
and that the restrictions he identified were temporary. PAGEID 68.
The ALJ also gave little weight to the opinion of Babatundi
Onamusi, M.D., who conducted an independent medical examination at
the request of the BWC in June of 2012.

The ALJ concluded that Dr.

Onamusi’s opinion regarding plaintiff’s functional limitations was
not supported by the medical evidence, which showed improvement of
plaintiff’s impairments (citing to various exhibits in the record).
PAGEID 68-69. The ALJ accorded some weight to the opinion of Janet
Brockwell, M.D., who performed a single consultative examination at
the request of the Ohio Department of Job and Family Services in
4

January, 2013.

The ALJ correctly noted that Dr. Brockwell’s

opinion that plaintiff was unemployable concerned an issue reserved
for the Commissioner. See 20 C.F.R. §404.1527(d); Bass v. McMahon,
499 F.3d 506, 511 (6th Cir. 2007)(conclusion of disability is
reserved

to

Brockwell’s

the

Secretary).

opinion

“is

The

not

ALJ

also

supported

by

stated
the

that

Dr.

claimant’s

longitudinal medical records” and cited multiple exhibit numbers in
support of this statement.

PAGEID 69.

As the magistrate judge

noted, these experts were consulted for the purposes of determining
whether plaintiff had reached maximum medical improvement so as to
entitle

plaintiff

to

additional

treatment

under

her

workers’

compensation claim, not for the purpose of determining whether
plaintiff was disabled.

Doc. 21, p. 25.

Plaintiff also argues that the ALJ did not consider all of the
evidence, but rather “cherry-picked” the record.

The ALJ need not

discuss every piece of evidence in the record for his decision to
stand.

Thacker v. Comm’r of Soc. Sec., 99 F.App’x 661, 665 (6th

Cir. 2004).
While it might be ideal for an ALJ to articulate his
reasons for crediting or discrediting each medical
opinion, it is well settled that: “[a]n ALJ can consider
all the evidence without directly addressing in his
written decision every piece of evidence submitted by a
party.”
Kornecky v. Comm’r of Soc. Sec., 167 F.App’x 496, 508 (6th Cir.
2006)(quoting Loral Defense Systems–Akron v. N.L.R.B., 200 F.3d
436, 453 (6th Cir. 1999)(citations and internal quotation marks
omitted)).

An ALJ’s failure to cite specific evidence does not

indicate that it was not considered.
F.App’x 727, 733 (6th Cir. 2004).

5

Simons v. Barnhart, 114

The

ALJ’s

decision

contains

a

thorough

discussion

of

plaintiff’s medical and treatment records, including references to
plaintiff’s physical impairments and complaints of pain, her 2010
neck surgery, and diagnostic tests such as MRI’s .

PAGEID 63-66.

After this description of the records, the ALJ stated:
Thus, while the medical evidence indicates that the
claimant has the above severe impairments, it does not
indicate that these impairments are so severe as to
prevent the claimant from performing basic work
activities. The claimant’s back and neck impairments and
associated symptoms have been accommodated by limiting
her to work at the light exertional level with additional
limitations on pushing, pulling, climbing, stooping,
kneeling, crouching, crawling and reaching and by
limiting her exposure to hazards. The medical evidence
does not support any further limitations to the
claimant’s
work-related
abilities
due
to
these
impairments. Rather, the medical evidence indicates that
the claimant is capable of performing work within the
limitations set forth herein.
PAGEID 66.
The

ALJ

impairments,

did
but

not

ignore

instead

plaintiff’s

considered

impairments in formulating the RFC.

and

severe

physical

accommodated

those

The court agrees with the

conclusion of the magistrate judge, Doc. 21, p. 21, that the ALJ’s
assessment of plaintiff’s RFC is supported by substantial evidence,
and that the ALJ did not err in evaluating the opinion evidence
concerning plaintiff’s physical restrictions.
B. Mental RFC Not Supported
In her second objection, plaintiff makes similar arguments
concerning the ALJ’s consideration of her mental limitations.

The

ALJ gave sufficient explanation for accepting the opinions of the
state agency consultants, Bruce Goldsmith, Ph.D. and Tonnie Hoyle,
Psy.D.

PAGEID 68.

The ALJ gave great weight to these opinions,
6

noting that they were “consistent with the medical evidence or
record, which shows treatment for depression and anxiety and
improvement of her symptoms with treatment” and that these experts
were familiar with the evidentiary requirements for making social
security disability determinations. PAGEID 68.
The ALJ gave partial weight to the opinion of Regina McKinney,
Psy.D., who examined plaintiff at the request of the Ohio Division
of Disability Determinations, noting that her opinion was not
supported by the longitudinal mental health records, and that
plaintiff’s psychiatric symptoms improved with treatment (citing to
exhibits in the record).

PAGEID 69.

The ALJ gave some weight to

the opinion of Kathryn Bobbitt, Ph.D., who performed a consultative
examination of plaintiff at the request of the Ohio Department of
Job and Family Services.

PAGEID 69.

The ALJ stated that Dr.

Bobbitt opined that plaintiff is employable but needs mental health
intervention to be successful.

PAGEID 70, citing Ex. 12F, p. 1.

The ALJ concluded that Dr. Bobbitt’s opinion concerning plaintiff’s
marked limitations was not supported by plaintiff’s mental health
treatment records, which were cited in the decision.

PAGEID 70.

The ALJ also explained why some weight was given to the opinion of
treating psychiatrist Maura Andronic, M.D., noting that her opinion
regarding plaintiff’s marked limitations was not supported by
plaintiff’s treatment records, which were cited, and that her
opinion that plaintiff was likely to deteriorate if placed under
stress was based on plaintiff’s statement to that effect.

PAGEID

70.
Plaintiff argued before the magistrate judge that the ALJ
erred in failing to recognize Lee Roach, Ph.D., as a treating
psychologist.

As the ALJ noted, Dr. Roach evaluated plaintiff in
7

September of 2013 and March of 2014 at the request of the BWC.
PAGEID 66, 70.

There are no records indicating that Dr. Roach saw

plaintiff for treatment purposes.

See Smith v. Comm’r of Soc.

Sec., 482 F.3d 873, 876 (6th Cir. 2007)(doctor who saw claimant
once and prepared a physical capacity evaluation form was not a
treating physician); Doyal v. Barnhart, 331 F.3d 758, 764 (10th
Cir. 2003)(ALJ not required to give doctor’s opinion controlling
weight or give reasons for not doing so where doctor saw claimant
twice in seven years and completed a report solely to support
claimant’s disability). Plaintiff did attend therapy sessions with
John Heilmeier, MSW, LISW-S, a licensed independent social worker
employed with Weinstein & Associates, the group with which Dr.
Roach was associated. However, there is no evidence that Dr. Roach
ever

supervised

Mr.

Heilmeier’s

treatment

of

plaintiff.

In

addition, the ALJ adequately explained why the opinions of Dr.
Roach and Mr. Heilmeier were accorded only some weight, and noted
that their opinions regarding marked impairments were not supported
by plaintiff’s medical records (citing to exhibits).

PAGEID 70.

The ALJ’s decision discusses plaintiff’s mental health records
at length, both in determining whether plaintiff’s impairments
qualified

as

listed

impairments,

see

PAGEID

summarizing those records, see PAGEID 66-67.

61-62,

and

in

The ALJ recognized

that plaintiff had severe impairments, but that those impairments
were not so severe as to prevent her from performing basic work
activities.

PAGEID 67.

The ALJ noted that plaintiff’s mental

impairments had been accommodated in plaintiff’s RFC by limiting
her to simple, routine, repetitive tasks in an environment without
demand for fast pace, limited social interaction and infrequent

8

change.

PAGEID 67.

The court agrees with the conclusion of the

magistrate judge that the ALJ adequately considered the record
evidence and explained the weight being assigned to the opinions of
the mental health experts.

Doc. 21, pp. 29-30.

The ALJ’s

formulation of plaintiff’s mental RFC is supported by sufficient
evidence.
C. Sentence Six Remand
Plaintiff also argues that a remand under 42 U.S.C. §405(g),
sentence six, is warranted to permit the ALJ to consider the
psychological evaluation report of Nicolaas P. Dubbeling, Ph.D.
Dr. Dubbeling’s evaluation occurred on August 22, 2014, four days
after the ALJ’s decision was rendered.

Plaintiff was referred to

Dr. Dubbeling by the BWC to determine whether she had reached
maximum medical improvement for her condition of dysthymic disorder
(depression).

As

part

of

his

consultative

examination,

Dr.

Dubbeling reviewed mental health records and interviewed plaintiff
for one hour. Dr. Dubbeling’s report was part of the record before
the

Appeals

Counsel.

The

Appeals

Counsel

considered

this

additional evidence and found that it did not provide a basis for
changing the ALJ’s decision.

PAGEID 46, 50.

A sentence-six remand at the request of a claimant is only
appropriate where (1) there is new evidence which is material, and
(2) there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding. §405(g). Evidence
is “new” only if it was not in existence or available to the
claimant at the time of the administrative proceeding. Ferguson v.
Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010).

Evidence

is “material” only if there is a reasonable probability that the
Secretary

would

have

reached

a
9

different

disposition

of

the

disability claim if presented with the new evidence.
Halter, 279 F.3d 348, 357 (6th Cir. 2001).

Foster v.

The party seeking a

remand bears the burden of showing that these two requirements are
met.

Hollon ex rel. Hollon v. Comm’r of Soc. Sec., 447 F.3d 477,

483 (6th Cir. 2006).

The Sixth Circuit has held that a subsequent

favorable determination or finding of disability, in itself, does
not constitute new and material evidence justifying remand; rather,
the party seeking remand must show that the later favorable
decision is supported by evidence that is new and material.

Allen

v. Comm’r of Soc. Sec., 561 F.3d 646, 652-53 (6th Cir. 2009).
In this case, the magistrate judge noted that the parties
agreed that Dr. Dubbeling’s report is “new”—at least in the sense
that it was not available prior to the date of the ALJ’s decision.
However, the magistrate judge concluded that the report was not
material.

The

magistrate

judge

commented

that

it

actually

bolstered the ALJ’s determination that plaintiff had improved with
treatment

and

medication,

noting

that

although

plaintiff

had

previously complained of daily panic attacks, she reported only two
panic attacks to Dr. Dubbeling, one in 2007 and one in 2013.
21, p. 31.
noting

Doc.

Plaintiff objects to the magistrate judge’s analysis,

the

Dr.

Dubbeling’s

evaluation

addressed

plaintiff’s

diagnosed dysthymic disorder, not her panic attacks, and that Dr.
Dubbeling

concluded

that

plaintiff’s

“psychological

precludes her from any competitive employment.”

condition

PAGEID 734.

The court is not convinced that Dr. Dubbeling’s report is
supported by new and material evidence. Dr. Dubbeling reviewed the
reports of Dr. Roach and Mr. Heilmeier, which were before the ALJ.
The report indicates that Dr. Dubbeling also reviewed two documents

10

which the court cannot locate in the administrative record: an
independent medical examination (no date given) by David A. Garcia,
D.O., which was referred to by Dr. Dubbeling as documenting
plaintiff’s weight, and a 2013 psychological evaluation by Cheryl
Benson-Blankenship, Ph.D.

However, there is no evidence of the

contents of these reports, or that there was good cause for failing
to present them to the ALJ.

Dr. Dubbeling also interviewed

plaintiff, but the information provided by plaintiff was cumulative
of the statements she made during other mental evaluations which
were the subject of reports considered by the ALJ.
628

F.3d

at

277

(cumulative

evidence

confirming

See Ferguson,
pre-existing

evidence that claimant was paranoid, withdraw, and subject to panic
attacks was not material).
Plaintiff points to Dr. Dubbeling’s opinion that the therapy
notes of Mr. Heilmeier “do not indicate significant improvement of
her Dysthymic Disorder.”

PAGEID 733.

However, this opinion

conflicts with the actual treatment notes.

On the November 2,

2013, report, Mr. Heilmeier indicated in the section for functional
status information that plaintiff’s activities of daily living had
improved, and her persistence, concentration, and pace had improved
to

the

moderate

range,

and

that

there

was

a

reduction

in

agoraphobic symptoms. PAGEID 599. On the reports for November 16,
2013, January 13, 2014, and March 10, 2014, Mr. Heilmeier checked
the “improved” box.

PAGEID 601, 604, 606.

The court concludes that plaintiff has failed to show that Dr.
Dubbeling’s report constitutes new and material evidence, or that
there is a reasonable probability that the ALJ would have reached
a different disposition upon considering Dr. Dubbeling’s report.
The magistrate judge correctly recommended that a sentence-six
11

remand is not warranted.

III. Conclusion
For the reasons stated above, the court concludes that the
Commissioner’s non-disability finding is supported by substantial
evidence.

The court overrules the plaintiff’s objections (Doc.

22), and adopts and affirms the magistrate judge’s report and
recommendation (Doc. 21).

The decision of the Commissioner is

affirmed, and this action is dismissed.

The clerk is directed to

enter final judgment in this case.

Date: March 23, 2017

s/James L. Graham
James L. Graham
United States District Judge

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