Hickman v. Commissioner of Social Security
REPORT AND RECOMMENDATION: It is RECOMMENDED that the Court OVERRULE Plaintiff's Statement of Errors and AFFIRM the Commissioner of Social Security's decision. Objections to R&R due by 2/26/2018. Signed by Magistrate Judge Chelsey M. Vascura on 2/12/2018. (kpt)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
MICHAEL BRIAN HICKMAN,
Civil Action 2:16-cv-859
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura
COMMISSIONER OF SOCIAL SECURITY,
REPORT AND RECOMMENDATION
Plaintiff, Michael Brian Hickman, brings this action under 42 U.S.C. § 405(g) for a
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for Social Security Disability Insurance benefits and Supplemental Security Income
This matter is before the United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Statement of Errors (ECF No. 23-1), the Commissioner’s
Memorandum in Opposition (ECF No. 28), Plaintiff’s Reply (ECF No. 30), and the
administrative record (ECF Nos. 19 & 20).
For the reasons that follow, it is
RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the
Commissioner’s decision be AFFIRMED.
Although not in consideration in this matter, by way of background, Plaintiff filed an
application for Disability Insurance Benefits and Supplemental Security Income on September
Following initial administrative denials of his applications, Administrative Law
Judge Timothy Keller affirmed the denials of Plaintiff’s applications on September 16, 2009.
(See R. at 2109.)
On June 21, 2010, subsequent review by the Appeals Council found no basis
to review the decision (Id. at 193–95.)
Plaintiff filed another application for disability insurance benefits and supplemental
security income benefits in August 2010.
The state agency denied these applications initially
and upon reconsideration. On June 8, 2011, Administrative Law Judge Paul Yerian denied
Plaintiff’s request for a hearing as untimely.
(R. at 246–51.)
On July 12, 2011, Plaintiff filed the application at issue for disability insurance benefits
and supplemental security income benefits. (R. at 350.)
condition started on June 22, 2010.
(Id. at 360.)
Plaintiff alleges the disabling
Plaintiff contends he is disabled as a result of
a number of alleged impairments, including asthma, neck problems, symmetric arthritis,
depression, and anxiety.
(Id. at 371.)
The state agency denied his most recent application for
(Id. at 255–83.) Plaintiff then had a hearing before Administrative Law Judge
Thomas Wang ( the “ALJ”) on May 17, 2013.
(Id. at 45–85.)
The ALJ denied Plaintiff’s
application for benefits in a written opinion dated July 10, 2013. (Id. at 19–32.)
Council denied Plaintiff’s request for review, prompting Plaintiff to commence in action in this
On August 21, 2015, the parties agreed to remand the action to the Commissioner for
(Id. at 2247–48.)
The Appeals Council instructed the ALJ to give
further consideration to the non-treating source opinions of Drs. Marc Miller and Christopher
Ward. (Id. at 2250–53.)
The ALJ held another administrative hearing on January 20, 2016, and issued a written
opinion on February 25, 2016, denying Plaintiff’s claims for disability. (R. at 2109–28.) The
Appeals Council denied Plaintiff’s request for review, making the ALJ’s decision the final
decision of the Commissioner.
Plaintiff timely filed this action for judicial review.
In his Statement of Errors, Plaintiff raises a single issue.
Specifically, Plaintiff asserts
that the ALJ erred in his consideration and weighing of the opinion of consultative examiner Dr.
Marc Miller, Ph.D.
According to Plaintiff, the ALJ failed to sufficiently explain why he
assigned only little weight to Dr. Miller’s opinion yet credited the opinion of Dr. Christopher D.
In Plaintiff’s view, both opinions support his application for disability. Plaintiff
further posits that his treatment records support Dr. Miller’s findings. Finally, Plaintiff
emphasizes that Dr. Miller assigned him a Global Assessment of Functioning (“GAF”) score of
46 and that both Drs. Miller and Ward found him to be credible.1
In her Memorandum in Opposition, the Commissioner counters that the ALJ reasonably
considered weighed Dr. Miller’s opinion when determining Plaintiff’s RFC.
in Opp. 5, ECF No. 28.)
The Commissioner further posits that the ALJ offered good reasons
for discounting Dr. Miller’s opinion and that the RFC assessed reasonably accounted for
Plaintiff’s limitations and is supported by substantial evidence.
RELEVANT RECORD EVIDENCE2
Dr. Marc Miller
Consultative Examiner Marc Miller, Ph.D. conducted a psychological evaluation of
Plaintiff on October 28, 2010.
(R. at 1296–1300.)
Dr. Miller noted that Plaintiff “appeared to
The GAF scale is used to report a clinician’s judgment of an individual’s overall level of
functioning. Clinicians select a specific GAF score within the ten-point range by evaluating
whether the individual is functioning at the higher or lower end of the range. A GAF score of
50-41 is indicative of serious symptoms.
The Undersigned limits discussion to evidence bearing on the sole contention of error Plaintiff
raises in his Statement of Errors. (ECF No. 23-1.)
be a reliable, credible informant.”
(Id. at 1298.)
Plaintiff reported that “he had no friends.”
With regard to Plaintiff’s behavior, Dr. Miller observed as follows: “[Plaintiff] presented himself
as very depressed.
He was very sarcastic, agitated and frustrated throughout the interview.”
Dr. Miller observed a tremor in Plaintiff’s left hand and noted that Plaintiff talked fast and
in excess during the interview.
Dr. Miller also noted that Plaintiff had trouble focusing
during the interview, and that the “[c]onversation was intelligible, he spoke in 2 to 8 word
Plaintiff ranked his depression level at a 7 or 8 on scale of 1–10, and Dr.
Miller commented that he “would place it at an 8 without medication.” (Id.)
agreed with Plaintiff’s self-reported anxiety ranking of 7 out of 10.
Dr. Miller also
(Id.) Plaintiff reported
that he has anxiety attacks when around crowds or people and also noted “difficulty with
agitation, impatience, and irritability in regard to his pain.” (Id.)
Dr. Miller assessed Plaintiff’s intellect as in the “borderline range.”
He noted that
Plaintiff’s “concentration is poor” and opined that Plaintiff has “moderate problem solving and
poor organizational abilities.”
(Id.) He observed, however, that Plaintiff could “recall six
numbers forward, and four in reverse.”
Plaintiff told Dr. Miller that he could follow
one-step instructions but that he “used to be a multi-task” person.
(R. at 1299.)
noted that Plaintiff’s “coping skills are poor” and that he can “become overwhelmed quickly.”
With regard to his lack of income, Plaintiff placed his stress level at an 8 on a 1-10 scale.
With respect to his daily activities, Plaintiff reported he had a driver’s license but does not drive
and has no hobbies.
Plaintiff also reported he could “prepare his own meals, laundry,
cleaning and dishes and grocery shopping,” as well as manage his own money.
Dr. Miller offered the following opinions:
[Plaintiff’s] cognitive ability to understand, remember and carry out routine
instructions indicate no impairment.
Ability to interact with coworkers, supervisions and the public, indicate marked
impairment, due to his agitation, irritability, temper, depression, and avoidance of
The ability to maintain attention span and concentration indicates moderate
impairment, due to anxiety.
The ability to deal with stress and pressure in a work setting notes marked
Persistence in task completion, indicates marked impairment.
The GAF function level is approximately 50, in regard to his prior injury,
numerous health issues, pain, limited income.
(R. at 1299–1300.)
Dr. Miller diagnosed Plaintiff with a severe pain disorder with psychological factors; a
moderate to severe dysthymic disorder and generalized anxiety disorder; and described his
psychosocial stressor as “poor,” due to “limited income, years of medical care, pain clinics, [and]
psychiatric counseling.” (Id. at 1300.)
Dr. Christopher Ward
Plaintiff underwent another psychological evaluation on April 6, 2012, with psychologist
Christopher Ward, Ph.D. upon referral from the Ohio Division of Disability Determination
(R. at 1915.)
Plaintiff reported that he completed school through the ninth grade
and had problems engaging socially while at school.
(Id. at 1916.)
Plaintiff denied a history
of alcohol or drug abuse, but did report legal convictions of DUIs. (Id.)
With regard to his
medical history, Plaintiff indicated that he underwent a significant weight loss which he
attributed to less appetite and a nervous stomach.
Plaintiff described his medical
conditions as follows: “a stroke on his right side, fibromyalgia, arthritis, hypertension, GERD,
asthma, COPD, left sciatic nerve pain, and osteoarthritis.
Plaintiff described his
functional limitations in conjunction with his medical issues as “difficulty walking, standing,
sitting, lifting and bending.”
(Id.) Plaintiff indicated that he was taking the following
medications: “Combivent, Pravastatin, Propranolol, Cymbalta and Lyrica” at the time of the
Plaintiff also reported “a history of medical problems related to mood and anxiety
(R. at 1916.)
Dr. Ward observed that Plaintiff conversed at a normal speed and
that his “language skills were adequate.”
due to his focus problems.
(Id.) He also noted that Plaintiff repeated questions
Citing Plaintiff’s “phraseology, grammatical structure, and
vocabulary[,]” Dr. Ward assessed Plaintiff to be in the low-average range of intellectual
Dr. Ward stated that Plaintiff “presented as depressed and agitated during
the evaluation. His affect was tearful at points.”
Plaintiff described symptoms of
depression, difficulties sleeping, loss of appetite, and problems with boredom and anger, as well
as symptoms of anxiety such as chest pains, hot flashes, and breathing problems.
(Id. at 1918.)
Dr. Ward assessed Plaintiff’s remote recall as adequate and his short term memory as below
average, noting that Plaintiff was only able to recall four digits forward and three digits
Dr. Ward concluded that Plaintiff “did not appear to exaggerate or minimize
his difficulties,” explaining that Plaintiff “did not report unusual or unlikely combinations of
symptoms. [Plaintiff] reported areas of intact function in addition to reporting symptoms.” (Id.
Dr. Ward offered the following functional assessment of Plaintiff’s ability to understand,
remember, and carry out instructions: “[t]he claimant’s abstract reasoning skills are below
average which may lead to difficulty understanding instructions[;] [t]he claimant’s short term
memory skills are below average which may lead to difficulty remembering instructions[;] [and]
[t]he claimant was able to converse effectively to complete the evaluation[.]”
(Id. at 1919.)
With regard to Plaintiff’s attention and concentration limits, Dr. Ward determined, “[t]he
claimant had difficulty completing serial 7s but effectively completed a serious 3s task which
suggest some difficulty with attention and focus[;] [t]he claimant displayed effective task
persistence when answering questions[;] [and] [t]he claimant displayed indications of distraction
during the evaluation including requests to repeat questions[.]” (Id. at 1920.)
further opined as follows: “[t]he claimant presented as depressed during the evaluation which
may affect level of engagement with co-workers and supervisors[;] [t]he claimant has no friends
and limited contact with family with whom generally negative relationships were described
including periodic conflicts[;] [and] [t]he claimant described problems with authority figures[.]”
(Id.) Dr. Ward’s offered the following discussion regarding Plaintiff’s ability to respond to
The claimant presented with emotional instability when discussing past and
current pressures[;] [t]he claimant described depressive symptoms that may
compromise ability to respond to work pressures and lead to increased emotional
instability and withdrawal[;] [t]he claimant described anxious symptoms that may
compromise ability to respond to work pressures and lead to increased likelihood
of agitation and conflicts with others[.]
(R. at 1920.)
State Agency Evaluations
On November 10, 2010, state agency psychologist Todd Finnerty Psy.D., adopted the
mental RFC assessed in the 2009 decision.3 and opined that Plaintiff’s restrictions ranged from
mild to moderate.
(R. at 196–201.)
Dr. Finnerty considered Dr. Miller’s opinion, and
concluded that it was inconsistent with the record.
(Id. at 202–03.)
Upon review in March 2011, Kristen Haskins, Psy.D. likewise adopted the mental RFC
assessed in the 2009 decision, again finding Dr. Miller’s opinion to be inconsistent with the
record. (Id. at 227–28.)
Dr. Haskins opined that Plaintiff was able to “understand, remember,
and carry out simple tasks and instructions.” (Id. at 230.)
She also determined that Plaintiff’s
attention span would last for two-hour segments during an eight-hour workday and that he would
be able to appropriately respond to supervisors and coworkers. (Id.)
Also in March 2011, state agency reviewing physician Leon D. Hughes, M.D. adopted
the RFC assessed in the 2009 decision, reasoning in relevant part as follows: “although you may
have some emotional problems, you are able to think, communicate and act in your own interest.
While we recognize your conditions are serious, they are not so severe that you can be
considered totally disabled.”
(Id. at 232.)
In September 2011, Dr. Finnerty again reviewed the record and also reached the same
conclusion. (R. at 104–114.)
The 2009 decision included the following mental RFC assessment:
Mentally, the claimant is able to understand, remember and carry out simple tasks
and instructions. The claimant can maintain concentration and attention for
two-hour segments over an eight-hour work period.
He can respond
appropriately to supervisors and co-workers, and he can adapt to simple changes
and avoid hazards.
(R. at 97.)
On May 8, 2012, Katherine Fernandez, Psy.D. reviewed the record at the reconsideration
level and affirmed the prior assessments, specifically noting that she had considered Plaintiff’s
allegations of worsening psychological symptoms, as well as Dr. Ward’s consultative examiner’s
report. (Id. at 128–46.)
Treatment Records from Six County4
On July 5, 2011, Plaintiff was seen by Six County, Inc. Behavioral Health Counseling
and Therapy Service (“Six County”) after a gap in treatment. Plaintiff reported having more
depression since his February 2010 car accident and said that he was there to receive counseling.
(R. at 1621.)
Plaintiff said that he was in a lot of pain and identified the following limitations:
“can’t bend, very little lifting, can’t walk very far.”
(Id. at 1621.) He also said that he last
worked in February of 2006 as security for General Electric.
(Id.) Plaintiff indicated that he
had previously been diagnosed with anxiety, extreme depression and anger, and Bipolar
Disorder. (Id. at 1622.)
Plaintiff said that he smokes about half a pack of cigarettes per day,
but that he does not take illegal drugs or drink alcohol.
(Id. at 1623.) He reported a history of
domestic abuse with his parents and in other relationships.
Plaintiff represented that he
worries constantly and suffers from three-to-four panic attacks a day.
He also said that
he is prone to yelling and that “the best thing [sic] for [him] is not to be around a lot of people.”
Treating psychologist Peggy Roth, LPCC noted that Plaintiff did not exhibit any
antisocial traits. (Id.) She diagnosed him with posttraumatic stress disorder, generalized
anxiety disorder, and bipolar I disorder.
(Id. at 1626.)
She made note of his other diagnoses,
The Undersigned limits discussion to evidence pertaining to Plaintiff’s most recent alleged
onset date of June 22, 2010.
including: fibromyalgia, osteoarthritis, asthma, COPD, Bronchitis, Degenerative Disk Disease,
Central Pain Syndrome, and bulging neck disk. (Id.)
She opined that Plaintiff exhibited
moderate symptoms and moderate difficulty in social, occupational, or school functioning.
Plaintiff next visited Six County on February 6, 2012. (R. at 1932.) Plaintiff brought
his two-year-old granddaughter to the counseling session with him and indicated he was taking
care of her, although he questioned how much longer he could manage that.
rated his depression as a level 10/10 during this meeting.
Plaintiff next visited on May 3, 2012.
ranked his depression as an 8/10.
(Id. at 1935.) During this session, Plaintiff
He described his granddaughter as “the one positive in
his life.” (Id.) Psychologist Roth opined that Plaintiff had made progress.
specifically, she noted that “even though [Plaintiff] started out negative, he looks better (less
depressed) than he did and he is not complaining as much.
and he is not having [suicidal ideation].”
He did not seem as helpless today
(Id.) At his next appointment on June 5, 2012, she
observed that Plaintiff did not show any progress and seemed “less hopeful and his depression
[was] still high.”
(Id. at 1936.)
In connection with his August 10, 2012 appointment, Roth observed that Plaintiff
appeared to have more hope notwithstanding his self-reports of pain.
told Roth that taking care of his granddaughter gave him purpose.
(Id. at 1994.) Plaintiff
At his September 5,
2012 appointment, Plaintiff reported that he was anxious, but Roth observed that he did not
present as being so.
(Id. at 1995.)
Treatment Records from Coshocton County Memorial Hospital
Plaintiff was treated at Coshocton County Memorial Hospital on February 6, 2014, for
chronic pain. (R. at 2234.) Plaintiff also complained of psychiatric symptoms including:
“mood changes, memory loss, depression, and difficulty concentrating and sleep problems.”
He reported that he had full custody of his granddaughter.
In 2015, Dr. Pratik
Vaishnav at Coshocton County described Plaintiff’s psychiatric presentment as follows: “normal
affect, normal mood. Absent: depressed.”
(Id. at 2396.)
Treatment Records from Family Care
Plaintiff visited Family Care Behavior Health (“Family Care”) on November 16, 2015.
(R. at 2412.)
The therapist ranked both his anxiety and depression as severe and diagnosed
Major Depressive Disorder and Bipolar Disorder. (Id. at 2409–13.)
was living with a friend.
Plaintiff reported that he
(Id. at 2406.)
Vocational Expert Testimony
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past
jobs included work as a security guard.
(R. at 2126.)
The ALJ proposed a series of hypotheticals regarding an individual of Plaintiff’s age,
education, and work experience and with the RFC he ultimately assessed. The VE testified that
such an individual would be able to perform approximately 210,000 light exertion, unskilled jobs
in the national economy such as a hand packager, garment folder, or sorter.
(R. at 2128.)
THE ADMINISTRATIVE DECISION
On February 25, 2016, the ALJ issued his decision. (R. at 2109–28.) At step one of
the sequential evaluation process,5 the ALJ determined that Plaintiff had not engaged in
substantially gainful activity since June 22, 2010, his alleged onset date of disability. (Id. at
The ALJ found that Plaintiff had the following severe impairments: “left arm/shoulder
tendinosis, degenerative disease of the cervical spine, fibromyalgia, degenerative joint disease,
chronic obstructive pulmonary disease (COPD), pain disorder, and affective and anxiety-related
Since the September 16, 2009 decision, the ALJ determined that the record
supported the additional diagnoses of fibromyalgia, degenerative joint disease, COPD, and pain
(Id. at 2113.)
The ALJ further found that Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Id. at 2114.)
At step four of the
sequential process, the ALJ set forth Plaintiff’s RFC as follows:
The claimant has the residual functional capacity to perform light work as defined
in 20 C.F.R. 404.1567(b) and 416.967(b), except he can occasionally balance,
stoop, crouch, and climb ramps and stairs, but never climb ladders, ropes, or
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
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).
scaffolds. He can frequently reach in all directions except for only occasional
overhead reaching. He can occasionally be exposed to respiratory irritants. He can
perform goal-based production/work measured by end-result, not pace work. He
can perform simple, routine, and repetitive tasks. He can perform low stress work
defined as requiring only occasional decision making and only occasional changes
in the work setting. He can occasionally interact with coworkers and supervisors,
but he must avoid interacting with the public. He would be off task up to five
percent of the workday.
(R. at 2117.)
In reaching this determination, the ALJ found that there was evidence that
Plaintiff’s mental symptomology was aggravated with stress.
(Id. at 2124.)
The ALJ assigned
“great weight” to Dr. Ward’s opinion, noting that he accounted for Dr. Ward’s assessment of
Plaintiff’s “abilities to deal with stress and interact with others” in his RFC determination.
at 2125.) The ALJ explained that he limited Plaintiff to goal-based rather than pace-based
production, as well as “simple, routine, and repetitive tasks,” because he required a low-stress
The ALJ assigned “little weight” to Dr. Miller’s assessment, reasoning
that his assessment was inconsistent with the record as a whole and further explaining that
Plaintiff’s “presentation during Dr. Miller’s assessment was inconsistent with the majority of
treatment records . . . which generally indicated, at most, rather mild or moderate mental
Relying on the VE’s testimony, the ALJ concluded that Plaintiff “is capable of making a
successful adjustment to other work that exists in significant numbers in the national economy.”
(R. at 2128.)
He therefore concluded that Plaintiff has not been under a disability, as defined in
the Social Security Act, since his alleged onset date through the date of the decision.
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. 2009)
(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 . . . .”). 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.
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
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 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d
270, 273 (6th Cir. 1997)).
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 Cir. 2007)).
As set forth above, in his sole contention of error, Plaintiff’s challenges the ALJ’s
consideration and weighing of Dr. Miller’s opinion.6
The undersigned finds Plaintiff’s sole
contention of error to be without merit.
The ALJ must consider all medical opinions that he or she receives in evaluating a
20 C.F.R. § 416.927(c); see also SSR 96–8p 1996 WL 374184, at *7 (July 2,
1996) (“The RFC assessment must always consider and address medical source opinions.”).
applicable regulations define medical opinions as “statements from acceptable medical sources that
reflect judgments about the nature and severity of your impairment(s), including [Plaintiff’s]
symptoms, diagnosis and prognosis, what [Plaintiff] can still do despite impairment(s), and
[Plaintiff’s] physical or mental restrictions.” 20 C.F.R. § 416.927(a)(1).
“[T]he Commissioner’s regulations establish a hierarchy of acceptable medical source
Snell v. Comm’r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio
Jan. 30, 2013).
Treating physicians and psychologists are generally afforded the most weight.
“Next in the hierarchy are examining physicians and psychologists, who often see and
examine claimant only once.” Id. “[N]on-examining physicians’ opinions are on the lowest rung
Plaintiff mentions but does not challenge the ALJ’s consideration of treating podiatrist Jon
Smilo’s opinion. The undersigned therefore considers any challenge to the ALJ’s evaluation of
Dr. Smilo’s opinion waived. See McPherson v. Kelsey, 125 F.3d 989, 996-96 (6th Cir. 1997)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a party to mention a possible
argument in the most skeletal way, leaving the court to . . . put flesh on its bones.” (internal
quotation marks and citations omitted)); Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 490-91
(6th Cir. 2006) (“This challenge warrants little discussion, as [Plaintiff] has made little effort to
develop this argument in her brief on appeal, or to identify any specific aspects of the
Commissioner’s determination that lack support in the record.”).
of the hierarchy of medical source opinions.” Id.
“When determining how much weight to
assign the opinion of a non-treating source . . . ‘the ALJ should consider factors including the length
and nature of the treatment relationship, the evidence that the physician offered in support of [his]
opinion, how consistent the opinion is with the record as a whole, and whether the physician was
practicing in [his] specialty.’” Miller v. Commissioner of Soc. Sec., 811 F.3d 825, 836 (6th Cir.
2016) (quoting Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010)).
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.
Id.; Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007).
In this case, the ALJ offered a detailed discussion of consultative examiner Dr. Miller’s
(See R. at 2115-16, 2123-25.) The ALJ assigned Dr. Miller’s assessment “little
weight” and offered the following explanation:
I give little weight to the assessment of Dr. Miller, who evaluated the claimant on
just one occasion and did not have an opportunity to treat him. The claimant’s
presentation during Dr. Miller’s assessment was inconsistent with the majority of
treatment records, as summarized above, which generally indicated, at most,
rather mild or moderate mental symptomatology. Accordingly, Dr. Miller’s
conclusions were inconsistent with the longitudinal treatment record.
(R. at 2124–25 (internal citations to the record omitted).)
The ALJ also offered a thorough
discussion detailing Plaintiff’s hearing testimony, Plaintiff’s girlfriend’s hearing testimony,
Plaintiff’s activities of daily living, Plaintiff’s treatment history, and the opinions from other
He explained that he accorded the opinion of consultative examiner Dr. Ward
“great weight” and stated that the RFC accommodated the concerns Dr. Ward identified.
The ALJ also noted that all of the state agency reviewing psychologists, including Dr.
Fernandez, who had reviewed the record in May 2012, agreed with the 2009 decision’s mental
The ALJ observed, however, that the record reflected periods of “increased
mental symptomatology, which is attributable to stress” and that Plaintiff had reported that he
has “difficulty interacting with others.”
(R. at 2124.)
The ALJ therefore concluded that
Plaintiff was more limited than all of the state agency reviewing psychologists had opined and
included numerous additional limitations in the mental RFC assessment to accommodate these
The undersigned finds no error in the ALJ’s consideration and weighing of the
assessment of one-time, examining psychologist Dr. Miller. As a threshold matter, the opinions
of one-time examining psychologists are not entitled to any special deference. See Barker v.
Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
Thus, the ALJ was not even required to give good
reasons for the rejection of such an opinion. See Smith v. Commissioner, 482 F.3d 873, 876
(6th Cir. 2007); cf. Pasco v. Comm’r of Soc. Sec., 137 F. App’x 828, 839 (6th Cir. 2005) (no
error where the ALJ failed to mention 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 opinion of consultative examiner was harmless error). And
notably, the ALJ ultimately concluded that Plaintiff was more limited than Dr. Miller opined in
(Compare R. at 1299 (Dr. Miller opined that Plaintiff’s “cognitive ability to
understand, remember and carry out routine instructions indicate no impairment.”) with R. at
2117 (ALJ’s mental RFC limits Plaintiff to “simple, routine, and repetitive tasks”).)
The ALJ nevertheless did offer a thorough discussion of Dr. Miller’s assessment and
offered good reasons for why he afforded it only little weight.
supports the reasons the ALJ offered.
Moreover, substantial evidence
For example, the ALJ asserted that Plaintiff’s
presentation to Dr. Miller was “inconsistent with a majority of the treatment records . . . which
generally indicated, at most, rather mild or moderate mental symptomatology.”
(R. at 2124–
Consistent with the ALJ’s determination that Plaintiff’s presentment was different during
Dr. Miller’s assessment than during other evaluations, the ALJ cited to numerous treatments
records from 2011–2015 where providers observed that Plaintiff displayed an intact mood, good
eye contact, and an alert and oriented demeanor.
(See R. at 2123–24.)
The ALJ also pointed
out that although Plaintiff said he was anxious at his September 5, 2012 appointment at Six
County, his provider observed that Plaintiff did not appear “wound up or anxious.”
1995; see also R. at 2055 (In 2014, Dr. Velasquez described Plaintiff’s “judgment and cognition
[as] intact [and his] mood normal.”); R. at 2396 (In 2015, Dr. Pratik Vaishnav at Coshocton
County noted that Plaintiff’s psychiatric presentment was normal and absent depression.).)
Plaintiff’s contention that the ALJ unfairly “used the fact that [Plaintiff was evaluated on
only one occasion] to discredit only one examiner but not the other,” (Pl.’s Statement of Errors,
ECF No. 23-1 at PAGEID# 2674), fails to persuade.
Rather, the ALJ properly considered that
Dr. Miller had evaluated Plaintiff on only one occasion in 2010. See 20 C.F.R. 404.1527(c)(ii)
(citing length of treatment relationship as a factor for evaluating a medical source opinion).
And contrary to Plaintiff’s assertion, review of the ALJ’s decision makes clear that this is just
one of many factors he considered and that his primary basis for discounting Dr. Miller’s opinion
was that Plaintiff’s presentation to Dr. Miller was inconsistent with the record as a whole.
Finally, the undersigned finds Plaintiff’s challenges to the ALJ’s evaluation of the GAF
scores to be without merit.
The ALJ acknowledged the GAF scores reflected in the record, but
assigned them “little weight.”
(R. at 2125-26.) The ALJ correctly pointed out that a GAF
score represents a “snapshot” of a person’s “overall psychological functioning” at or near the
time of the evaluation. (R. at 2125-26); See Martin v. Commissioner, 61 F. App’x 191, 194 n. 2
(6th Cir. 2003); see also DSM-IV-TR at 32–34.
“As such, a GAF assessment is isolated to a
relatively brief period of time, rather than being significantly probative of a person’s ability to
perform mental work activities on a full-time basis.” Arnold v. Astrue, No. 10-cv-13, 2010 WL
5812957, at *8 (S.D. Ohio Oct. 7, 2010); see also Kennedy v. Astrue, 247 F. App’x 761, 766 (6th
Cir. 2007) (“[T]he Commissioner has declined to endorse the GAF score for use in the Social
Security and SSI disability programs, and has indicated that GAF scores have no direct
correlation to the severity requirements of the mental disorders listings.” (internal quotation
marks and citations omitted)).
Thus, in light of the ALJ’s thorough discussion of the record and
explanation for the bases for the mental RFC he assessed, the undersigned finds that he did not
err in declining to credit the GAF scores referenced in the record.
In summary, the undersigned finds no error with the ALJ’s consideration and weighing of
Dr. Miller’s opinion.
Further, the undersigned finds that substantial evidence supports the
ALJ’s mental RFC assessment.
It is therefore RECOMMENDED that the Court
OVERRULE Plaintiff’s sole contention of error.
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 RECOMMENDED
that the Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner of
Social Security’s decision.
PROCEDURE ON OBJECTIONS
If any party objects to this Report and Recommendation, that party may, within fourteen
(14) days of the date of this Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection is made, together with
supporting authority for the objection(s). A Judge of this Court shall make a de novo
determination of those portions of the Report or specified proposed findings or recommendations
to which objection is made.
Upon proper objections, a Judge of this Court may accept, reject,
or modify, in whole or in part, the findings or recommendations made herein, may receive
further evidence or may recommit this matter to the Magistrate Judge with instructions. 28
U.S.C. § 636(b)(1).
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to have the District Judge review the Report
and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of
the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE
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