Honaker v. Commissioner of Social Security
REPORT AND RECOMMENDATIONS re 1 Complaint filed by Teresa Honaker, 2 Complaint filed by Teresa Honaker. It is RECCOMENDED that the Court OVERRULE Plaintiffs Statement of Errors and AFFIRM the Commissioner of Social Securitys decision. Objections to R&R due by 8/17/2017. Signed by Magistrate Judge Elizabeth Preston Deavers on August 3, 2017. (jlk)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
TERESA K. HONAKER,
Civil Action 2:16-cv-230
Judge James L. Graham
Magistrate Judge Elizabeth P. Deavers
REPORT AND RECCOMENDATION
Plaintiff, Teresa Honaker, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying her application
for supplemental social security income (“SSI”) and disability insurance benefits (“DIB”). This
matter is before the United States Magistrate Judge for a Report and Recommendation on
Plaintiff’s Statement of Errors (ECF No. 12), the Commissioner’s Memorandum in Opposition
(ECF No. 18), and the administrative record. (ECF No. 8.) For the reasons that follow, the
Undersigned RECCOMENDS that the Court OVERRULE Plaintiff’s Statement of Errors and
AFFIRM the Commissioner’s decision.
Plaintiff, who was fifty-three years old at the relevant time period, filed her application
for benefits on September 18, 2012, alleging she has been disabled since June 29, 2012, due to
bipolar disorder, post-traumatic stress disorder, panic attacks, sleep problems, depression,
paranoia, loss of focus, and temper. (R. at 149, 165.) Plaintiff’s applications were denied
initially on January 22, 2013 and upon reconsideration on April 19, 2013. Plaintiff sought a de
novo hearing before an administrative law judge. Administrative Law Judge Ryan Glaze
(“ALJ”) held a hearing on May 30, 2014, at which Plaintiff, represented by counsel, appeared
and testified. Millie Droste, a vocational expert, also appeared and testified at the hearing. On
August 27, 2014, the ALJ issued a decision finding that Plaintiff was not disabled within the
meaning of the Social Security Act. On January 14, 2016, the Appeals Council denied Plaintiff’s
request for review and adopted the ALJ’s decision as the Commissioner’s final decision.
Plaintiff then timely commenced the instant action.
In her Statement of Errors, Plaintiff raises two issues. (Plaintiff’s Statement of Errors
(“SOE”) at 1, ECF No. 12.) Plaintiff first asserts that the ALJ’s treatment of various
psychological opinions failed to follow regulatory guidelines and is not supported by substantial
evidence; and second, the ALJ failed to assess Plaintiff’s credibility as required by the
In her Memorandum in Opposition, the Commissioner counters that the substantial
evidence supports the weight the ALJ gave to the medical opinions of record and substantial
evidence supports the ALJ’s credibility assessment of Plaintiff’s subjective complaints.
(Defendant’s Memorandum in Opposition (“Opp.”) at 1, ECF No. 18.)
Plaintiff testified that she lives with her husband, twenty-one year old daughter, and
twenty-one year old son. (R. at 47.) Her husband is a full time delivery truck driver. (Id.)
Plaintiff last worked In October 2012. She testified that she worked at Chemical Abstract
Service in the finance department, the accounts payable section for twenty-six years but that her
position was “eliminated” while she was out of work recovering from shoulder surgery. (R. at
49.) She said she had been off on FMLA leave for approximately 120 days in 2012, before her
job was eliminated. She testified that she took leave because she was uncomfortable with the
manager and coworkers, because of making mistakes at work, and worrying about work. (R. at
She testified that she suffers from anxiety and social phobia and that she had experienced
a panic attack while at work. She also testified that although it has been two years since she was
fired from Chemical Abstract Service, she still has nightmares about work. (R. at 51.) She has
never been hospitalized for her anxiety. (R. at 50.) She reported that since taking a new
medication her symptoms are not as severe. (R. at 52.)
She further testified that she socializes with her mother, daughter, and a friend in
Michigan. She reported that she is able to drive a car, shop in stores, that she does her own
laundry, prepares crockpot meals, cooks baked potatoes, unloads the dishwasher, performs
household chores with help from her husband, and manages her own personal hygiene with
reminders from her husband to bathe regularly. (R. at 55, 57, 59). Plaintiff also testified that she
uses a computer for research and email, goes to see movies in the theater, uses the ATM, and
goes out to eat with her family. (R. at 59.) She also sorts the mail and collects coupons. (R. at
Vocational Expert’s Testimony
Vocational Expert Millie Droste, Ph. D. (“VE”), testified at the administrative hearing
that Plaintiff’s past relevant employment was as an account payable bookkeeper, classified as a
sedentary exertional job. (R. at 62.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 62–63.) Based on Plaintiff’s age, education, work
experience, and the RFC ultimately determined by the ALJ, the VE testified that a similarly
situated hypothetical individual could not perform Plaintiff’s past work. The VE testified that
Plaintiff could perform three other jobs including: medium cleaner, with 80,000 jobs in the local
economy and 2,000,000 jobs in the national economy; laundry worker, with 2,000 jobs in the
local economy and 68,000 jobs in the national economy; and laborer, stores, with 21,000 jobs in
the local economy and 300,000 jobs in the national economy. (R. at 63.)
Dr. James Youngman, Plaintiff’s treating psychiatrist, performed an initial evaluation in
June 2010. At the initial evaluation, Plaintiff reported a history of panic attacks and mood
swings. She stated that she sometimes had difficulties at work. She stated that she had a panic
attack the previous week and had to take two hours out of the office to compose herself. (R. at
280.) She said that she had mania that sometimes lasted a month and depression which lasted for
several months. (Id.) When manic, she spent money, did not sleep, and started many projects.
She denied compulsions or agoraphobia. (Id.) Dr. Youngman observed that Plaintiff was
oriented with an intact memory and average general fund of knowledge. (R. at 281.) He also
found her insight and judgment were fair to moderate. (Id.) He diagnosed her with bipolar II
disorder and prescribed Topamax and Trazodone. (R. at 282.)
In an October 31, 2012 disability form completed by Dr. Youngman and submitted to
Social Security in November 2012, he indicated that Plaintiff was diagnosed with bipolar II
disorder, with labial moods, suspiciousness, racing thoughts, poor concentration, hopelessness,
decreased energy level, impulsivity, and poor judgment. (R. at 283.) He concluded that
Plaintiff’s ability to tolerate the stress of routine daily activity as well as work-place stress was
very limited. (R. at 284.)
In March 2013, Dr. Youngman completed a second assessment form where he indicated
that clinical examination revealed depressed mood, social withdrawal, decreased energy level,
poor concentration, anhedonia, appetite changes, and hopelessness. (R. at 302.) He also
indicated that Plaintiff had poor concentration and low self-esteem. (R. at 303.)
Plaintiff received treatment from Dr. Youngman from March 2013 through January 15,
2015. (R. at 335–38.) Dr. Youngman’s treatment notes reflect Plaintiff’s complaints of mood
swings, concentration problems, and other symptoms of her mood disorder as well as her denial
of any suicidal ideations. (Id.)
On January 7, 2013, Plaintiff underwent a consultative examination with psychologist
Mark Hammerly, Ph. D. (R. at 290–98.) Dr. Hammerly noted that Plaintiff drove herself to the
appointment and that she exhibited normal concentration, attention, persistence, and pace during
the exam. (R. at 290, 297–98.) At the appointment Plaintiff denied having problems with
authority figures and reported that she had no problems getting along with people at her prior
job. (R. at 292.) Plaintiff did, however, report problems with work speed, quality or
understanding toward the end of her tenure due to bipolar concentration issues. (Id.) She
reported that she shares most household duties with her husband, including dishes, laundry,
cooking, housecleaning, and grocery shopping. (R. at 293.)
During her exam, Plaintiff was generally cooperative with Dr. Hammerly and made
moderate eye contact throughout the appointment. (R. at 293.) He noted that Plaintiff’s mood
was demoralized at times, that she exhibited mild psychomotor agitation, and that she did not
display automatic signs of anxiety. (R. at 394.) He noted that Plaintiff “showed signs of
fidgeting, but there were no signs of jittering, shaking, rocking, trembling, or other motormanifestations of anxiety during the interview. She did not sweat, hyperventilate, or otherwise
display autonomic signs of anxiety. There was no hypervigilance and no outright fear displayed
by the claimant.” (R. at 294.) He further observed that Plaintiff’s thought processes were
coherent, goal-directed, and logical. (R. at 293.) Moreover, Dr. Hammerly found that Plaintiff
exhibited “some signs of social phobia” but no hallucination, paranoia, delusions, panic attacks,
or agoraphobia. (R. at 294.)
He diagnosed Plaintiff with bipolar disorder and social phobia. (R. at 295.) He also
determined that Plaintiffs “has sufficient information, judgment, and common sense reasoning
ability to live independently and to make important decisions concerning her future.” (Id.) Dr.
Hammerly further opined that Plaintiff would have difficulty sustaining employment dealing
with the public; would have some significant trouble relating to supervisors and coworkers; and
would be expected to respond in a less than appropriate manner to ordinary workplace pressures.
(R. at 297–98.)
State Agency Psychologists
On January 17, 2013, State agency reviewer Melanie Bergsten, Ph. D., reviewed
Plaintiff’s record and determined that her statements were generally consistent with the totality
of the evidence. (R. at 74.) Dr. Bergsten gave great weight to the 2012 conclusions of Dr.
Youngman and the January 2013 opinions of Dr. Hammerly. (R. at 75.) Among other findings,
Dr. Bergsten concluded that Plaintiff experienced significant limitations in the area of social
interactions, and that she would be able to “relate to a few familiar others on a superficial basis.”
Moreover, she also concluded that Plaintiff suffered from limitations in the area of adaptation but
that she would be able to perform work related tasks in situations where the duties are relatively
static and changes can be explained. (R. at 78.)
On April 5, 2013, in connection with Plaintiff’s request for reconsideration, a second
State agency reviewer, Dr. Deryck Richardson, Ph. D., considered the contents of Plaintiff’s
medical file. (R. at 88.) Dr. Richardson similarly found Plaintiff’s statements generally
consistent with the totality of the evidence. (Id.) Dr. Richardson noted that Plaintiff “exhibits
suspiciousness and depression and is noted to be asocial outside of family interactions. Claimant
is able to related to a few familiar others on a superficial and infrequent basis. Contacts with the
general public are precluded.” (R. at 92.) Identical to Dr. Bergsten, Dr. Richardson further
concluded that Plaintiff is able to perform work related tasks in situations where duties are
relatively static and changes can be explained. (Id.)
On August 27, 2014, the ALJ issued his decision. (R. at 22–36.) At step one of the
sequential evaluation process, 1 the ALJ found that Plaintiff had not engaged in substantially
Social Security Regulations require ALJs to resolve a disability claim through a five-step
sequential evaluation of the evidence. See 20 C.F.R. §416.920(a)(4). Although a dispositive
finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th
Cir. 2007), if fully considered, the sequential review considers and answers five questions:
Is the claimant engaged in substantial gainful activity?
Does the claimant suffer from one or more severe impairments?
Do the claimant’s severe impairments, alone or in combination, meet or
equal the criteria of an impairment set forth in the Commissioner’s Listing of
Impairments, 20 C.F.R. Subpart P, Appendix 1?
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
gainful activity since June 29, 2012, the alleged onset date of disability. (R. at 24.) The ALJ
found that Plaintiff had the severe impairments of obesity, bipolar disorder, and social phobia.
(Id.) He further found that Plaintiff did not have an impairment or combination of impairments
that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404,
Subpart P. Appendix 1. (R. at 25.)
At step four of the sequential process, the ALJ set forth Plaintiff’s RFC as follows:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform medium work as defined
in 20 CFR 404.1567(c) except that she can occasionally stoop, crouch, and climb
ladders, ropes, and scaffolds. She is able to work in a low stress environment,
defined as an environment without high production quotas such as piecework or
assembly line work, and with no strict time requirements, arbitration, negotiation
confrontation, directing the work of, or being responsible for safety of others. She
can perform work that involves no more than occasional interaction with
supervisors, coworkers, and the general public on trivial matters, defined as
dispensing and sharing factual information that is not likely to generate an
(R. at 28.) In reaching this determination, the ALJ gave Dr. Hammerly’s opinion “significant
weight” while giving Dr. Youngman’s opinion “partial weight.” The ALJ reasoned that Dr.
Youngman’s opinion only merited partial weight even though he was Plaintiff’s treating
Dr. Youngman appears to be a treating source within the meaning of 20 CFR §
416.927. The opinion of a treating source is entitled to controlling weight where
it is well supported by and not inconsistent with objective clinical and laboratory
findings (Social security Ruling 96-2p). However, this assessment is not entitled
to that degree of probative consideration for multiple reasons. First, the doctor
does not provide sufficient clinical and laboratory data to support his conclusion.
He does not provide a detailed function-by-function analysis that demonstrates the
inability to perform any type of gainful activity. His opinion appears to be limited
to the claimant’s subjective report of her symptoms rather than to his own
See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009);
Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
observations and objective data. This report is given partial weight, although his
opinion that the claimant has reduced stress tolerance has been accommodated in
the above described residual functional capacity.
(R. at 31.)
The ALJ noted that at the hearing, Plaintiff’s “speech was clear, her tone normal, and her
thought processes appeared to be coherent, goal directed, and logical.” (R. at 32.) The ALJ
found that Plaintiff showed signs of mild psychomotor agitation in the form of fidgeting but that
there “were no other manifestations of anxiety.” (Id.) In fact, the ALJ points out that Plaintiff
“denied panic attacks or agoraphobia, but did report symptoms of social phobia.” (Id.)
The ALJ gave Dr. Hammerly’s opinion significant weight. Dr. Hammerly provided
diagnoses of bipolar disorder and social phobia. (R. at 32.) While giving Dr. Hammerly’s
opinion significant weight, he never-the-less found, “in considering the record as whole the
undersigned finds that the claimant would be able to perform low stress work requiring only
occasional contact with others on trivial matters . . . [a]lthough his opinion is the result of his
own observations, psychometric testing, a clinical interview, and a mental status evaluation it is
only based on one time examination and relief primarily on claimant’s subjective complaints
which I have found to be only generally credible . . . .” (Id.)
The ALJ noted that the limitations he assessed “generally adopt the opinions of the State
of Ohio Bureau of Disability Determination (“BDD”) physicians and psychologists”, whose
opinions he gave significant weight. He reasoned that those opinions were “based on objective
signs and findings, consistent with the credible portion of activities and daily living evidence,
and not contradicted by any treating source shown to be familiar with SSA and occupational
standards. They are consistent with and well supported by the evidence of the record as a
whole.” (Id.) The ALJ, however, did not accept all limitations suggested by the BDD physicians
and psychologists. For example, the ALJ determined that the limitation precluding Plaintiff from
interacting with the general public, identified by the BDD psychologists, was not supported by
the record. “In addition, the psychological experts identified a limitation precluding the claimant
from interacting with the general public, which is not supported by the claimant’s sparse
psychiatric evidence, her ability to shop in stores, her presentation at medical and psychiatric
appointments, and her reported ability to eat at restaurants with her family.” Moreover, the ALJ
noted that there was no evidence that Plaintiff had ever been treated for or diagnosed with
posttraumatic stress disorder, nor is there evidence of panic attacks of the frequency and severity
to which the Plaintiff testified. The ALJ left the record open for two weeks after Plaintiff’s
hearing in order to allow her to obtain and submit more recent psychiatric records. He noted in
his decision that no additional records were submitted. (R. at 33–34.)
STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court “must affirm the
Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to
proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009)
(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42
U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if
supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial
evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’”
Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286
(6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must
“take into account whatever in the record fairly detracts from [the] weight” of the
Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’” Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.
Finally, even if the ALJ’s decision meets the substantial evidence standard, “a decision of
the Commissioner will not be upheld where the SSA 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, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th
In her Statement of Errors, Plaintiff argues that the ALJ’s treatment of various
psychological opinions fails to follow regulatory guidelines and is not supported by substantial
evidence; and she also maintains that the ALJ failed to assess Plaintiff’s credibility as required
by the regulations. (see SOE.)
ALJ’s Treatment of Psychological Opinions is Supported by Substantial Evidence
In her first assignment of error, Plaintiff argues that the ALJ impermissibly evaluated and
weighed the opinions of Dr. Youngman and Dr. Hammerly, as well as those offered by the BDD
An ALJ is required to “evaluate every medical opinion” against a variety of factors,
including the nature of the treatment relationship, the supporting medical basis for the opinion,
and the overall consistency with the record as a whole. 20 C.F.R. §§ 404.1527(d) and 416.927;
Norris v. Comm’r of Soc. Sec., 461 Fed. App’x 433, 438-39 (6th Cir. 2012). An opinion from a
treating source is “’accorded the most deference by the SSA’ because of the ‘ongoing treatment
relationship’ between the patient and the opining physician.” Id. (quoting Smith v. Comm’r of
Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007)). Non-treating sources who physically examine a
claimant but who do not have or did not have an ongoing treatment relationship with the
claimant fall next along the continuum in terms of weight. Id. (citing Smith, 482 F.3d at 875).
Finally, a non-examining source who provides an opinion “based solely on the review of the
patient’s existing medical records  is afforded the least deference.” Id. (citing Smith, 482 F.3d
at 875); see also Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (“As a
general matter, an opinion from a medical source who has examined a claimant is given more
weight than that from a source who has not performed an examination.”).
To qualify as a treating source, a physician must have “examined the claimant . . . [and
have] an ‘ongoing treatment relationship’ with [the claimant] consistent with accepted medical
practice.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (quoting 20 C.F.R.
§ 404.1502). If the treating physician’s opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with other substantial
evidence in [the claimant’s] case record, [the ALJ] will give it controlling weight.” 20 C.F.R.
§§ 404.1527(d)(2), 416.927(d)(2).
Even if the ALJ does not afford controlling weight to a treating physician’s opinion, the
ALJ must still meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 544 (6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion
[A]n ALJ must apply certain factors—namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the opinion
with the record as a whole, and the specialization of the treating source—in
determining what weight to give the opinion.
Id. Furthermore, an ALJ must “always give good reasons in [the ALJ's] notice of determination
or decision for the weight [the ALJ] give[s] [the claimaint’s] treating source's opinion.” 20
C.F.R. §§ 404.1527(d)(2); 404.927(d)(2). The United States Court of Appeals for the Sixth
Circuit has stressed the importance of the good-reason requirement:
“The requirement of reason-giving exists, in part, to let claimants understand the
disposition of their cases,” particularly in situations where a claimant knows that
his physician has deemed him disabled and therefore “might be especially
bewildered when told by an administrative bureaucracy that she is not, unless
some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128,
134 (2d Cir. 1999). The requirement also ensures that the ALJ applies the treating
physician rule and permits meaningful review of the ALJ’s application of the rule.
See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004).
Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important
when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v.
Comm’r of Soc. Sec., 313 F. App’x 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
There is no requirement, however, that the ALJ “expressly” consider each of the Wilson factors
within the written decision. See Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir.
2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to
explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical
opinion evidence within the written decision).
Regardless of the source of a medical opinion, in weighing the opinion, the ALJ must
apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment
relationship, supportability of the opinion, consistency of the opinion with the record as a whole,
and the specialization of the source. In addition, the regulations provide that where, as here, the
ALJ does not assign controlling weight to the claimant’s treating physician, he or she must
explain the weight assigned to the opinions of the medical sources:
Unless a treating source’s opinion is given controlling weight, the administrative
law judge must explain in the decision the weight given to the opinions of a State
agency medical or psychological consultant or other program physician,
psychologist, or other medical specialist, as the administrative law judge must do
for any opinions from treating sources, nontreating sources, and other
nonexamining sources who do not work for us.
20 C.F.R. § 416.927(e)(2)(ii). Where an ALJ’s opinion satisfies the goal of § 416.927 and is
otherwise supported by substantial evidence, the failure to explicitly provide the weight assigned
is harmless. See, e.g., Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005)
(harmless error where the ALJ failed to mention or weigh the report of consultative neurologist
who only evaluated plaintiff once and was not a treating source); Dykes v. Barnhart, 112 F.
App’x 463, 467–69 (6th Cir. 2004) (failure to discuss or weigh opinion of consultative examiner
was harmless error); cf. Friend, 375 F. App’x at 551 (explaining that the treating physician rule
“is not a procrustean bed, requiring an arbitrary conformity at all times. If the ALJ’s opinion
permits the claimant and a reviewing court a clear understanding of the reasons for the weight
given a treating physician’s opinion, strict compliance with the rule may sometimes be
Finally, the Commissioner reserves the power to decide certain issues, such as a
claimant’s residual functional capacity. 20 C.F.R. § 404.1527(d). Although the ALJ will
consider opinions of treating physicians “on the nature and severity of your impairment(s),”
opinions on issues reserved to the Commissioner are generally not entitled to special
significance. 20 C.F.R. § 404.1527(d); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
1. Dr. Youngman’s Opinion
Applied here, the Undersigned finds that the ALJ did not err in his consideration and
weighing of the medical sources’ opinions. To begin, the ALJ recognized Dr. Youngman as
Plaintiff’s treating psychiatrist, but assigned his opinions “partial weight” based on
inconsistencies in the record and Dr. Youngman’s own treatment notes, as well as a lack of
objective medical evidence to support his opinion. (R. at 31.)
The Undersigned finds that the ALJ’s determination to assign only partial weight to Dr.
Youngman’s opinion is supported by substantial evidence. For instance, as the ALJ recognized,
there are inconsistencies between the opinion and his treatment records. Dr. Youngman
identified extreme limitations in his April 2014 questionnaire, stating that he considered Plaintiff
to be permanently disabled, but that she could manage benefits for her own interest. Gaskin v.
Comm’r of Soc. Sec., 280 F. App’x 472, 475 (6th Cir. 2008) (finding that when the combination
of treating sources’ own notes, findings by a neurologist, and other examining physicians
contradict those of the treating source, the treating source opinion is inconsistent with substantial
evidence in the case record and not entitled to controlling weight). Further, Dr. Youngman’s
report of Plaintiff’s medication revealed no changes from the previous year, which was
inconsistent with his report of significantly worsened symptoms. These inconsistencies provide
good reasons to allocate less than controlling weight to the treating physician’s opinion. See
Gault v. Comm’r of Soc. Sec., 535 F. App’x 495, 496 (6th Cir. 2013) (holding that the ALJ
properly evaluated the physician’s opinion where the degree of the opined limitations was
inconsistent with the claimant’s benign clinical examinations, conservative course of treatment,
and daily activities).
2. Dr. Hammerly
Plaintiff also contends that the ALJ improperly weighed Dr. Hammerly’s opinions
reasoning that “the ALJ’s apparent rejection of those work-preclusive portions of Dr.
Hammerly’s opinion was the result of his own observations, psychometric testing, a clinical
interview, and a mental status evaluation. (Pl.’s Statement of Errors at 11.)
The ALJ gave Dr. Hammerly’s opinion significant weight, but did not accept all of the
limitations Dr. Hammerly suggested, including his opinion that Plaintiff would have significantly
decreased success in withstanding the daily stress of work and relating to coworkers and
supervisors. (R. at 32.) The determination is supported by substantial evidence. Consistency
with the record is a relevant factor in evaluating a medical opinion. See 20 C.F.R. §
404.1527(c)(4) (“Generally, the more consistent an opinion is with the record as a whole, the
more weight we will give that opinion.”). Such limitations are inconsistent with Plaintiff’s
statements to Dr. Hammerly, including her reports that she had no problems getting along with
others at her last job and denied problems with authority figures. (R. at 32, 292.) The ALJ
properly factored in Dr. Hammerly’s treating relationship with Plaintiff, including the fact that
Dr. Hammerly only examined Plaintiff one time, was not a treating physician, and in large part
relied on Plaintiff’s subjective statements. (R. at 32.) Wilson, 378 F.3d at 544 (in determining
what weight to give a treating source opinion, the ALJ must weigh certain factors including the
length of the treating relationship and frequency of examination).
Plaintiff cites Keeton v. Comm’r of Soc. Sec., 583 F. App’x 515, 526 (6th Cir. 2014), to
support her contention that the ALJ improperly rejected Dr. Hammerly’s opinions because he
purportedly relied on her subjective complaints. (Pl.’s Statement of Errors at 11–12.) Keeton
however, is clearly distinguishable here. In Keeton, the court reasoned that the ALJ could not
reject the doctor’s reliance on the claimant’s subjective claims where the claims where not
observable by the doctor. Id. (“it would be impossible for a doctor to observe the contents of
Plaintiff’s dreams, the intensity of his hallucinations, or his flashbacks to the Vietnam War.”)
Here, however, the same reasoning does not apply as Dr. Hammerly specifically observed that
Plaintiff’s mental control, concentration, and memory are “grossly intact.” (R. at 294.) He
further personally observed that while Plaintiff showed signs of social phobia, examination did
not reveal evidence of panic attacks or agoraphobia. (R. at 297.)
3. State Agency Physicians
Finally, the Undersigned similarly finds that the ALJ adequately weighed the State
agency non-examining psychologists’ opinions. Plaintiff contends that the ALJ mischaracterized
the evidence when he “generally adopted the opinions of state agency psychologist, but rejected
the opinion of Dr. Richardson that plaintiff was precluded from interacting with the general
public. . .” (SOE at 15.) The Undersigned finds that substantial evidence supports the weight
the ALJ gave to these opinions. The ALJ correctly determined that the evidence, including
Plaintiff’s ability to shop in stores, her presentation at appointments, her ability to eat at
restaurants, and attend movies does not support the preclusion of contact with the general public.
The inconsistency between precluding Plaintiff from interacting with the general public and her
daily activities provide sufficient reason for the ALJ’s decision. See Hensley v. Comm’r Soc.
Sec., Case No. 1:15-cv-11, 2017 WL 1055152, at *5 (S.D. Ohio March 21, 2017) (finding the
ALJ properly evaluated plaintiff’s daily activities in determining the weight to afford a medical
Plaintiff similarly contends that the ALJ also erred because “both state agency
psychological reviewers indicated that plaintiff was limited to work that was relatively static and
where changes could be explained,” and the ALJ did not include those limitations in the RFC.
(SOE at 16.) Contrary to Plaintiff’s contentions, the ALJ did generally account for those
limitations in the assessed RFC. The ALJ limited Plaintiff to a low stress work environment
with no need for skills involved in managing shifting circumstances, such as arbitration,
negotiations, confrontation, and directing others. (R. at 28.) These are the limitations he found
credible and adopted into the RFC.
Because the Undersigned finds that the ALJ properly weighed all medical source
evidence and thus the RFC is supported by substantial evidence, it is RECCOMENDED that
Plaintiff’s first contention of error be OVERRULED.
Substantial Evidence Supports the ALJ’s Assessment of Plaintiff’s Subjective
In her second assignment of error, Plaintiff argues that the ALJ failed to asses her
credibility as required by the regulations.
“The ALJ’s assessment of credibility is entitled to great weight and deference, since he
[or she] had the opportunity to observe the witness’s demeanor.” Infantado v. Astrue, 263 F.
App’x 469, 475 (6th Cir. 2008) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997)); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 995 (6th Cir. 2007) (declining
to disturb the ALJ’s credibility determination, stating that: “[w]e will not try the case anew,
resolve conflicts in the evidence, or decide questions of credibility” (citation omitted)). This
deference extends to an ALJ’s credibility determinations “with respect to [a claimant’s]
subjective complaints.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 652 (6th Cir. 2009)
(quoting Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987)). Despite
this deference, “an ALJ’s assessment of a claimant’s credibility must be supported by substantial
evidence.” Walters, 127 F.3d at 531. Furthermore, the ALJ’s decision on credibility must be
“based on a consideration of the entire record.” Rogers, 486 F.3d at 247 (internal quotation
omitted). An ALJ’s explanation of his or her credibility decision “must be sufficiently specific
to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave
to the individual’s statements and the reasons for that weight.” Id. at 248.
“Discounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531. In addition, the Regulations list a variety of factors an ALJ must consider in
evaluating the severity of symptoms, including a claimant’s daily activities; the effectiveness of
medication; and treatment other than medication. 20 C.F.R. § 404.1529(c)(3); SSR 96–7p, 1996
WL 374186 (July 2, 1996) 2; but see Storey v. Comm’r of Soc. Sec., No. 98-1628, 1999 WL
282700, at *3 (6th Cir. Apr. 27, 1999) (“[T]he fact that [the ALJ] did not include a factor-byfactor discussion [in his credibility assessment] does not render his analysis invalid.”).
In evaluating Plaintiff’s credibility with respect to his subjective claims, the ALJ must
determine whether there is an underlying medically determinable physical impairment that could
reasonably be expected to produce the claimant’s symptoms. Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 247 (6th Cir. 2007). Second, if the ALJ finds that such impairment exists, then he
must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual’s
SSR 16-3p, which became effective March 28, 2016, superceded and rescinded SSR 96-7p. See
SSR 16-3p, 2016 WL 1119029, at *1. Because SSR 16-3p, does not include explicit language to
the contrary, it is not to be applied retroactively. See Bowen v. Georgetown Univ. Hosp., 488
U.S. 204, 208, 109 S. Ct. 468, 102 L. Ed. 2d 493 (1988) (“Retroactivity is not favored in the law.
Thus congressional enactments and administrative rules will not be construed to have retroactive
effect unless their language requires this result.”); Combs v. Comm'r of Soc. Sec., 459 F.3d 640,
642 (6th Cir. 2006) (“The Act does not generally give the SSA the power to promulgate
retroactive regulations.”); Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541–42 (6th Cir. 2007)
(declining to retroactively apply a newly effective Social Security Ruling in the absence of
language reflecting the Administration's intent to apply it retroactively).
ability to do basic work activities. Kalmbach v. Comm’r or Soc. Sec., 409 F. App’x 852, 863
(6th Cir. 2011).
SSR 96–7p tasks the ALJ with explaining his credibility determination with sufficient
specificity as “to make clear to the individual and to any subsequent reviewers the weight the
adjudicator gave to the individual’s statements and the reasons for that weight.” Rogers, 486
F.3d at 248.
In the instant case, the ALJ properly followed the two-step process for analyzing
Plaintiff’s credibility. (R. at 24–28.) First, the ALJ identified Plaintiff’s bipolar disorder and
social phobia as medically determinable and severe impairments. (R. at 24.) Second, The ALJ
found that Plaintiff’s medically determinable impairments could reasonably be expected to cause
the alleged symptoms, but her statements concerning the intensity, persistence, and limiting
effects of these symptoms were not entirely credible. (R. at 30.)
Substantial evidence supports the ALJ’s assessment of Plaintiff’s subjective complaints.
As the ALJ noted, Plaintiff complained of disabling anxiety and panic attacks, but the only
manifestation of anxiety that Dr. Hammerly observed was mild psychomotor agitation, in the
form of fidgeting. Plaintiff further complained of suffering from PTSD symptoms, but the
record contains no diagnosis of or treatment for PTSD. (R. at 33.) Other objective medical
evidence shows that Plaintiff’s psychiatric treatment appeared sparse, given the severity of her
allegations. (R. at 33.) See 20 C.F.R. § 404.1529(c)(3)(v) (“Factors relevant to your symptoms,
such as pain, which we will consider include . . .[t]reatment, other than medication, you receive
or have received for relief of your pain or other symptoms.”). Moreover, in considering
Plaintiff’s daily activities, the ALJ determined that Plaintiff’s “limitations of activities of daily
living due to mental impairment are considered mild.” (R. at 26); see Hensley, 2017 WL
1055152, at *5. The record supports the ALJ’s finding in this regard. For instance, Plaintiff
reported she was able to drive, shop in stores, prepare meals, manage her personal hygiene with
reminders from her husband, that Plaintiff traveled to her son’s college uses a computer for
research and email, goes to the movies, goes out to eat with her family, and maintains a good
relationship with her husband and other members of her family. (R. 26–27, 32.) Because the
ALJ made a reasoned and reasonable decision supported by substantial evidence in evaluating
Plaintiff’s subjective complaints, the ALJ’s assessment of credibility is entitled to “great weight
and deference.” Infantado, 263 F. App’x at 475. Accordingly, the Undersigned finds that the
ALJ offered good reasons for finding the Plaintiff not entirely credible and that substantial
evidence supports those reasons.
In sum, from a review of the record as a whole, the Undersigned concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, it is
RECCOMENDED that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM
the Commissioner of Social Security’s decision.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, he or
she may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the 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. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
IT IS SO ORDERED.
Date: August 3, 2017
/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE
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