Wallace v. Commissioner of Social Security

Filing 17

REPORT AND RECOMMENDATION: It is RECOMMENDED that the Commissioner of Social Security's decision be AFFIRMED and Plaintiff's Statement of Errors be OVERRULED re 3 Complaint filed by David L. Wallace. Objections to R&R due by 2/20/2018. Signed by Magistrate Judge Elizabeth Preston Deavers on February 5, 2018. (jlk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DAVID L. WALLACE,
Plaintiff,
Civil Action 2:16-cv-971
Chief Judge Edmund A. Sargus, Jr.
Magistrate Judge Elizabeth P. Deavers

vs.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, David L. Wallace, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3)
for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying
his applications for social security disability insurance benefits and supplemental security
income. This matter is before the Chief United States Magistrate Judge for a Report and
Recommendation on Plaintiff’s Statement of Errors (ECF No. 10), the Commissioner’s
Memorandum in Opposition (ECF No. 15), Plaintiff’s Reply (ECF No. 16), and the
administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that the
Court OVERRULE Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
I.

BACKGROUND

Plaintiff applied for security disability insurance benefits and supplemental security
income in February 2010. An Administrative Law Judge (“ALJ”) denied Plaintiff’s application
on January July 19, 2012. (R. at 109-119.) Plaintiff did not appeal the ALJ’s ruling, and it
became the final judgment for the period up to July 19, 2012. Plaintiff filed a second application

for disability and supplemental security income on October 9, 2013, asserting disability from
insulin-dependent diabetes mellitus, panic disorder without agoraphobia, major depressive
disorder, and learning disability. (R. at 262.) Plaintiff’s claim was denied initially and upon
reconsideration. Upon request, a hearing was held on March 2, 2015, in which Plaintiff,
represented by counsel, appeared and testified. (R. at 30-89.) A vocational expert also appeared
and testified at the hearing. (R. at 77-88.) On August 20 2015, ALJ Henry Kramzyk issued a
decision finding that Plaintiff was not disabled at any time from March 15, 2005, the alleged
onset date, through December 31, 2013, the date last insured. (R. at 10-25.) On August 11,
2016, the Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision
as the Commissioner’s final decision. (R. at 1-3.)
II. HEARING TESTIMONY
A. Plaintiff’s Testimony
At the March 2015 administrative hearing, Plaintiff testified that he has lived with his
mother and step-father for the last six years, including the relevant time period. (R. at 36-37.)
Plaintiff stated that he completed 12th grade, but when asked if he could read and write he
replied, “Not that well.” (R. at 39.) Asked to clarify, Plaintiff reported that he could read a
simple message “[s]ometimes” and that he “was in special ed all my life.” (Id.) Plaintiff further
stated that, although he could not spell very well, he could write a simple message. (Id.)
Plaintiff testified that he has panic attacks two or three times weekly. (R. at 61.) Plaintiff
stated that he receives treatment from a psychiatrist every four months and receives medication.
(R. at 61-62.) Plaintiff also stated that he stopped non-pharmaceutical mental health therapy
approximately one year before the hearing. (R. at 62.) Plaintiff further stated that he received no
other mental health treatment. (R. at 63.) Plaintiff reported, however, that he attends group
2

“classes” at the local mental health services organization. (R. at 72.) Plaintiff testified that he
has gone to the emergency room because of panic attacks, but he has never been hospitalized
overnight for mental health reasons. (R. at 69.) Plaintiff also testified that he has never used
illegal drugs or alcohol or abused legal medications. (R. at 70.)
Plaintiff testified that he feeds the family dogs, does dishes and laundry, and bathes and
dresses without help. (R. at 65.) Plaintiff also testified that he watches movies and listens to
music. (R. at 66.) Plaintiff further testified that he drives, goes grocery shopping, and cuts the
grass. (R. at 67.) According to Plaintiff, he gets along well with his family and has non-familial
friends. (Id.) Plaintiff stated that he does not go to church or belong to any organizations. (R. at
68.) Plaintiff also stated that when he finds himself in a crowd, he leaves. (Id.)
B. Vocational Expert Testimony
The vocational expert (“VE”) testified at the administrative hearing that Plaintiff’s past
jobs include fast food worker, cleaner, loader and unloader, fry cook, dish washer, and order
picker. (R. at 75-76.)
The ALJ proposed a series of hypotheticals regarding Plaintiff’s residual functional
capacity (“RFC”) to the VE. (R. at 77-79.) Based on Plaintiff’s age, education, and work
experience and the RFC ultimately determined by the ALJ, the VE testified that Plaintiff could
perform his past jobs as fast food worker, cleaner, loader, and dishwasher. (R. at 78-79.)
The VE also testified that the hypothetical person could perform other jobs that exist in
the local and national economy, including linen room attendant, scrap sorter, and laundry
operator. (R. at 79-80.)

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III. MEDICAL RECORDS
A. Brendan Carroll, M.D.
The 2012 ALJ opinion denying Plaintiff’s previous claim for Social Security disability
benefits contains a summary of Dr. Carroll’s pre-2013 treatment notes. On June 9, 2011, Dr.
Carroll conducted an initial psychiatric evaluation and noted slow mentation. (R. at 115-116.)
Dr. Carroll reported normal mental status findings including a euthymic mood, appropriate
affect, good insight and judgment, normal thought processes, intact memory, and focused
attention. (R. at 116.) On October 6, 2011, Dr. Carroll reported that Plaintiff had a depressed
mood, but recorded no other abnormal mental status findings. (Id.) Dr. Carroll’s other findings
through February 2012 record anxious mood, but otherwise normal mental status findings. (Id.)
Plaintiff provided no treatment records from Dr. Carrol for the period July 20, 2012
through December 31, 2013, the date last insured. On January 2, 2014, Dr. Carroll completed a
mental status questionnaire. (R. at 345-347.) Dr. Carroll reported that Plaintiff has a constricted
affect, poor memory, and major depression and panic disorder. (R. at 345-346.) Dr. Carroll also
reported that Plaintiff is “oriented x 3.” (R. at 345.) Dr. Carroll opined that Plaintiff is limited in
his ability to remember, understand and follow directions to simple directions. (Id.) Dr. Carroll
also opined that Plaintiff is limited in his ability to maintain attention to 20 minutes per day, is
unable to complete complicated tasks, is limited in social interactions to immediate family, and is
unable to adapt. (Id.) Dr. Carroll further opined that Plaintiff is unable to react appropriately to
the pressures in work settings involved in simple and routine or repetitive tasks. (Id.) Dr.
Carroll also completed a daily activities questionnaire and reported that Plaintiff needs assistance
shopping and driving.

4

On February 13, 2014, Dr. Carroll saw Plaintiff for medication management and recorded
that Plaintiff reported being sad over the loss of two dogs, upset over the denial of Social
Security benefits, depressed “some days,” and having trouble sleeping “some nights.” (R. at
520.) Dr. Carroll found Plaintiff oriented, focused, and coherent, with intact recent and remote
memory, good insight and judgment, constricted affect, and depressed mood. (R. at 521.)
On May 29, 2014, Dr. Carroll saw Plaintiff for another medication management
appointment and recorded that Plaintiff reported being arrested for theft and jailed for four days.
(R. at 507.) Dr. Carroll noted that Plaintiff “was doing ok with mood.” (Id.) Dr. Carroll found
Plaintiff oriented, focused, and coherent, with intact recent and remote memory, good insight and
judgment, appropriate affect, and anxious mood. (R. at 507.) Dr. Carroll characterized
Plaintiff’s progress as “moderate.” (R. at 508.)
On July 31, 2014, Dr. Carroll again saw Plaintiff for medication management but made
no observations other than referencing his May 29, 2014, notes. (R. at 485.) On September 4,
2014, Dr. Carroll saw Plaintiff for medication management and recorded that Plaintiff reported
being frustrated with his life situation. (R. at 470.)

Dr. Carroll found Plaintiff oriented,

focused, and coherent, with intact recent and remote memory, good insight and judgment,
appropriate affect, and euthymic mood. (R. at 471.) Dr. Carroll observed Plaintiff to be “a little
paranoid,” but characterized his progress as “moderate.” (Id.)
On November 13, 2014, Dr. Carroll saw Plaintiff once more for medication management
and reported that Plaintiff “has improved mood. [H]e is motivated to do some things. [H]e is
getting along with others.” (R. at 446.) Plaintiff also reported to Dr. Carroll that “he hears a
voice inside his head that tells him to steal things, which he is able to resist.” (Id.) Dr. Carroll
found Plaintiff oriented, focused, and coherent, with intact recent and remote memory, good
5

insight and judgment, appropriate affect, and depressed mood. (R. at 446-447.) Dr. Carroll
again characterized Plaintiff’s progress as “moderate.” (Id.)
B. George O. Schulz, Ph.D.
On January 14, 2014, Dr. Schulz evaluated Plaintiff at the request of the state agency.
Plaintiff reported to Dr. Schulz that he maintains his medical appointments and usually arrives
on time. (R. at 426.) Plaintiff reported a history of anger issues at different places of
employment through 2007 and stated that he had good attendance but was “slow” in performing
his responsibilities. (R. at 427-428.) Plaintiff also reported that he normally drives himself to
his appointments, does his own laundry, prepares his own meals, can make his own purchases
and make change, and does the grocery shopping with his aunt. (R. at 429.) Plaintiff further
reported that he socialized with friends twice a week, but also reported that people “make me
very nervous.” (Id.)
Dr. Schulz observed that Plaintiff has appropriate hygiene and dress, coherent and wellorganized speech, appropriate affect, euthymic mood, and self-reported feelings of depression
and anxiety. (R. at 429-430.) According to Plaintiff, without medication he has, on average, one
panic attack daily; while medicated, they occur only once or twice weekly. (R. at 430.) Dr.
Schulz reported normal short- and long-term memory, borderline ability to abstract, and normal
insight, judgment, and orientation. (R. at 430-431.) Dr. Schulz diagnosed Plaintiff with panic
disorder and unspecified depressive disorder. (R. at 431.)
Dr. Schulz opined that Plaintiff can manage funds and access basic resources, as well as
make his own choices regarding mental health treatment and medical care. (R. at 432.) Dr.
Schulz also opined that Plaintiff “is expected to be able to understand and apply instructions in
the work setting within the borderline range of intellectual functioning.” (Id.) Dr. Schulz further
6

opined that Plaintiff is “capable of completing routine or repetitive ADL tasks . . . on a job
setting. However, . . . he is likely to experience some objective performance concerns by
employers.” (Id.) Dr. Schulz also opined that Plaintiff is “able to respond appropriately to
coworkers and supervisors in a work setting,” but is “likely to have some difficulty responding
appropriately to work stress.” (R. at 433.)
C. State Agency Review
On January 21, 2014, Roseann Umana, Ph.D., reviewed Plaintiff’s record for the state
agency pursuant to his application for benefits. (R. at 137-140.) Dr. Umana, noting that Plaintiff
was able to work on multiple occasions for a significant time and is able to drive and shop,
opined that no evidence supports Dr. Carroll’s opined limitations. (R. at 140.) Dr. Umana also
opined that Dr. Schulz’s opinions are consistent with the evidence of record. (Id.) Dr. Umana
adopted the previous ALJ’s mental residual functional capacity limiting Plaintiff to “simple tasks
with no reading or writing, no more than occasional personal contacts, and no production
quotas.” (R. at 140.)
On April 29, 2014, Carl Tishler, Ph.D., reviewed Plaintiff’s records for the state agency
and agreed with Dr. Umana’s assessment of Dr. Carroll’s opined limitations. (R. at 153.) Dr.
Tishler gave great weight to Dr. Schulz’s opinions because they are consistent with the evidence
of record. (Id.) Dr. Tishler also adopted the previous ALJ’s mental residual functional capacity
determination. (R. at 154.)
IV. THE ADMINISTRATIVE DECISION
On August 20, 2015, the ALJ issued his decision. (R. at 10-25.) Plaintiff met the insured
status requirements through December 31, 2013. At step one of the sequential evaluation

7

process,1 the ALJ found that Plaintiff had not engaged in substantially gainful activity since July
20, 2012, the day after the prior ALJ decision. (R. at 13.) The ALJ found that from July 20,
2012, through his date last insured of December 31, 2013, Plaintiff had the following severe
impairments: major depressive disorder, anxiety, learning disorder, and borderline intellectual
functioning. (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 15.) At step four of the sequential process, the ALJ set
forth Plaintiff’s RFC as follows:
[T]hrough the date last insured, the claimant had the residual functional capacity
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: never climb ladders, ropes or scaffolds; able to
understand, remember and carry out short, simple, repetitive instructions; able to
sustain attention/concentration for 2-hour periods at a time and for 8 hours in the
workday on short, simple, repetitive instructions; can use judgment in making
work decisions related to short, simple, repetitive instructions; requires an
occupation with only occasional co-worker contact and supervision; requires an
occupation with set routine and procedures, and few changes during the workday;
requires an occupation with no contact with the public; no fast paced production
work; can maintain regular attendance and be punctual within customary

1

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:
1.
2.
3.

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?
4.
Considering the claimant's residual functional capacity, can the claimant
perform his or her past relevant work?
5.
Considering the claimant's age, education, past work experience, and residual
functional capacity, can the claimant perform other work available in the national
economy?
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).
8

tolerances; can perform activities within a schedule; and avoid concentrated
exposure to hazards, such as unprotected heights and dangerous machinery.

(R. at 18.) In determining Plaintiff’s MRFC, the ALJ gave weight to Dr. Carroll’s opinion only
with respect to his opined limitation regarding work involving short, simple, repetitive
instructions. (R . at 22.) The ALJ gave weight to Dr. Schulz’s opinion regarding the opined
“limitations to work involving short, simple, repetitive instructions, fast paced production work,
and an occupation with set routine and procedures and few changes during the workday, as well
as the abilities to maintain regular attendance and be punctual within customary tolerances, and
to perform activities within a schedule.” (R. at 23.) The ALJ also determined, however, that
Plaintiff has additional limitations regarding coworker contact and supervision, public contact,
and set routines not specified by Dr. Schulz. (Id.) The ALJ gave significant partial weight to the
state agency consultants, but gave little weight to their opined limitation regarding reading and
writing because Plaintiff testified that he could read and write simple messages and because
evidence in the record suggests he could read and write during group therapy. (Id.)
The ALJ also determined that Plaintiff’s allegations regarding his symptoms and
limitations are partially credible. The ALJ noted that Plaintiff consistently reports symptoms of
depression, but concluded that “the objective medical evidence does not fully substantiate the
intensity, persistence, and functional limitations alleged.” (R. at 21.) The ALJ also noted that
Plaintiff did not seek counseling during the entire relevant period. (Id.) The ALJ further noted
that although Plaintiff provided “very little evidence of treatment prior to January 2014,” the
evidence he did provide from 2014 “shows improvement . . . with medication and counseling.”
(R. at 22.)

9

The ALJ concluded that, through the date last insured, Plaintiff was unable to perform
any past relevant work. (R. at 24.) Relying on the VE’s testimony, the ALJ determined that
Plaintiff could have performed at least three jobs that exist in the local and national economy:
linen room attendant, scrap sorter, and laundry operator. (R. at 25.) He therefore concluded that
Plaintiff was not disabled under the Social Security Act during the relevant period. (Id.)
VI. 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) (“[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

10

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (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)).
VI. ANALYSIS
Plaintiff puts forward two assignments of error. Plaintiff first contends that the ALJ
failed to properly evaluate Dr. Carroll’s treating physician opinion. (ECF No. 10 at 10.) Second,
Plaintiff argues that the ALJ failed to account for all of Plaintiff’s concentration, persistence and
pace limitations in formulating his RFC. (Id. at 5.)
A. Res Judicata Effect
At the outset, the time frames within which Plaintiff must establish his disability should
be noted. Plaintiff’s previous application for benefits was denied on July 19, 2012, and Plaintiff
did not appeal. Thus, as the Commissioner correctly observes, the previous denial must be given
a res judicata effect by this Court. Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230,
1232 (6th Cir. 1993). The practical consequence of this determination is that the ALJ, and this
Court upon review, can only consider evidence in the record after July 19, 2012.
The Commissioner is bound by prior ALJ findings with regard to a claimant’s disability
application unless new evidence or changed circumstances require a different finding. AR 98–
4(6), 1998 WL 283902, at *2–3. Social Security Acquiescence Ruling 98–4(6) mandates that:
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
11

such a finding from the final decision by an ALJ or the Appeals Council on the
prior claim in determining whether the claimant is disabled with respect to the
unadjudicated period unless there is new and material evidence relating to such a
finding or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.
Id. at *3.
It is the claimant’s burden to present evidence showing that his symptoms have changed
since the time of the ALJ’s prior determination. Casey, 987 F.2d at 1232–33. The Sixth Circuit
has held that “when a plaintiff previously has been adjudicated not disabled, [he or] she must
show that [his or] her condition so worsened in comparison to [his or] her earlier condition that
[he or] she was unable to perform substantial gainful activity.” Id. at 1232; see McCracken v.
Comm’r of Soc. Sec., No. 1:08–CV–327, 2009 WL 2983049, at *10 (S.D. Ohio Sept. 14, 2009)
(“new and material evidence must document a significant change in the claimant's condition”)
(emphasis in original).
While July 20, 2012 is the earliest date from which Plaintiff can receive benefits, he must
demonstrate his disability began no later than December 31, 2013. Plaintiff seeks Disability
Insurance Benefits under 42 U.S.C. § 423, which requires that an applicant establish that he or
she became disabled while insured under § 423(c)(1). A “period of disability can commence
only while an applicant is fully insured.” 42 U.S.C. § 416(i)(2)(c). To be entitled to Disability
Insurance Benefits, Plaintiff has to establish that he was disabled prior to his date last insured
(“DLI”), which was December 31, 2013. See 20 C.F.R. §§ 404.315(a)(1), 404.320(b)(2); see
also Moon v. Sullivan, 923 F.2d 1175, 1182 (6th Cir. 1990) (claimant must show that he became
disabled on or before his date last insured). Accordingly, Plaintiff must establish that he became
disabled during the period between July 20, 2012 and December 31, 2013.

12

B. Dr. Carroll’s Treating Source Opinion
Plaintiff contends that the ALJ failed to properly evaluate Dr. Carroll’s treating physician
opinion. (Id. at 10.) Specifically, Plaintiff argues that the ALJ erred in declining to give Dr.
Carroll’s opinion controlling weight; failed to apply the appropriate factors as required by the
regulations; and failed to give good reasons for giving Dr. Carroll’s opinion only partial weight.
(Id. at 11-13.) Plaintiff further argues that substantial evidence does not support the ALJ’s
decision not to include Dr. Carroll’s opined concentration, persistence, and pace limitations in
his RFC. (Id. at 5.)
The ALJ must consider all medical opinions that he or she receives in evaluating a
claimant’s case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as
“statements from physicians and psychologists or other acceptable medical sources that reflect
judgments about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your physical or
mental restrictions.” 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source “since these
sources are likely to be the medical professionals most able to provide a detailed, longitudinal
picture of [a patient’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical filings alone . . .” 20 C.F.R. §
416.927(c)(2); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 408 (6th Cir. 2009). If the treating
physician’s opinion is “well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in [the claimant's] case
record, [the ALJ] will give it controlling weight.” 20 C.F.R. § 404.1527(c)(2).

13

If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ
must 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 controlling
weight:
[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] your treating source's opinion.” 20 C.F.R. §
416.927(c)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make clear to
any subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 550
(6th Cir. 2010) (internal quotation omitted). 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 he 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. Tilley v. Comm’r of Soc. Sec., 394 F. App’x 216, 222 (6th Cir. 2010)
14

(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).
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).
In his opinion, the ALJ listed several Wilson factors that influenced his decision not to
give Dr. Carroll’s treating source opinion controlling weight. The ALJ noted the infrequency of
examination and treatment during the relevant period, including the complete lack of treatment
notes from the only treatment during 2013. (R. at 22.) The ALJ also noted that Dr. Carroll’s
opinion is not supported by other evidence in the record and that Dr. Carroll’s own treatment
notes conflict with his opined limitations. (Id.) The ALJ further noted that Dr. Carroll made
factual misstatements about Plaintiff’s actual living conditions that may have led him to make
conclusions otherwise unwarranted by the record. (Id.)
In determining what weight to give Dr. Carroll’s opinion evidence, the ALJ noted that
“Dr. Carroll’s opinion seems reliant on the claimant’s subjective reports, as it does not seem
consistent with the infrequent treatment in 2013, the findings on consultative examination, or
with Dr. Carroll’s good, mild or moderate findings at the claimant’s psychiatry appointments in
2011 and 2014.” (R. at 22.)
The ALJ’s conclusions are supported by substantial evidence. A review of the record
confirms a complete lack of mental health treatment notes from 2013. In fact, Plaintiff has
15

provided no evidence that he even sought mental health treatment—other than the lone,
undocumented August 2013 appointment—during the relevant period. Furthermore, Dr.
Carroll’s notes from 2014, even were they applicable to the relevant period, do not support his
opined limitations. At each of the five brief encounters with Plaintiff in 2014, Dr. Carroll found
Plaintiff oriented, focused, and coherent, with intact recent and remote memory and good insight
and judgment. (R. at 446-447, 471, 485, 507, & 521.) On three of those occasions, Dr. Carroll
found that Plaintiff had an appropriate affect. ( R. at 447, 471, & 507.) On one occasion, Dr.
Carroll found Plaintiff to have an euthymic mood. (R. at 471.) Again, even if they were
applicable to the relevant period, Dr. Carroll’s pre-2013 treatment notes indicate almost entirely
normal mental status findings, including euthymic mood. (R. at 115-116.) Plaintiff himself
reports being able to read and write simple messages, drive, go grocery shopping, and maintain
non-familial friendships. (R. at 67.) Plaintiff reported to Dr. Schulz that he drives himself to his
appointments, can do his own shopping and make change, and socializes with friends twice a
week. (R. at 429.) Despite these records, and the lengthy gap in treatment between 2012 and
2014, Dr. Carroll opined that Plaintiff has a poor memory, is limited in social interactions to
immediate family, and needs help driving and shopping. (R. at 345.)
The Undersigned is mindful that the ALJ, in determining whether to give a treating
source opinion controlling weight, is not required to discuss each of the Wilson factors explicitly,
so long as it is clear from the opinion that he considered them appropriately. Tilley, 394 F.
App’x at 222. In light of the large gap in Plaintiff’s mental health treatment and the
inconsistencies between Dr. Carroll’s opined limitations and the factual record, the Undersigned
finds that the ALJ appropriately considered the Wilson factors and that substantial evidence
supports his decision not to give Dr. Carroll’s treating source opinion controlling weight.
16

Further, the same substantial evidence supports the ALJ’s reasons for crediting and giving
limited weight to Dr. Carroll’s opinion, including his opinions as to Plaintiff’s concentration,
persistence, and pace limitations.
C. Dr. Schulz’s Concentration, Persistence, and Pace Medical Opinion Evidence
Likewise, the Undersigned finds that the ALJ properly considered Dr. Schulz’s opined
limitations regarding concentration, persistence, and pace. The ALJ fully incorporated Dr.
Schulz’s opined limitations with respect to “limitations to work involving short, simple,
repetitive instructions, fast paced production work, and an occupation with set routine and
procedures and few changes during the workday, as well as the abilities to maintain regular
attendance and be punctual within customary tolerances, and to perform activities within a
schedule.” (R. at 23.) The ALJ also applied additional limitations regarding coworker contact
and supervision, public contact, and set routines not specified by Dr. Schulz. (Id.) Plaintiff
appears to argue that the ALJ should have incorporated even more limitations to address Dr.
Schulz’s opinion that Plaintiff would have “some” objective performance concerns from
employers. (R. at 432.) The Undersigned finds the ALJ’s RFC incorporates this portion of Dr.
Schulz’s opinion by placing limitations on Plaintiff’s ability to perform fast paced production
work and by limiting him to short, simple, repetitive instructions, as well as a largely static work
environment. (R. at 23.) Further, the ALJ cannot be expected to do more when presented with
vague statements forecasting, but not defining, “some” objective performance concerns.
Last, to the extent that Plaintiff contends the ALJ’s “limitations for ‘short, simple,
repetitive instructions’” fail to limit Plaintiff to simple, repetitive tasks, his argument is not well
taken. (ECF No. 10 at 9 (emphasis in original).) It is clear from the ALJ’s opinion that he limits
Plaintiff to “unskilled work” similar to the “simple tasks” prescribed in Plaintiff’s first denial for
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benefits. (R. at 25, 114, 118-119.) The Undersigned finds that substantial evidence in the record
supports this determination and the ALJ’s decision not to incorporate in the RFC greater
concentration, persistence, and pace limitations.
VII. CONCLUSION
In conclusion, from a review of the record as a whole, the Court concludes that
substantial evidence supports the ALJ’s decision denying benefits. Accordingly, the
Undersigned RECOMMENDS that the Commissioner of Social Security’s decision be
AFFIRMED and Plaintiff’s Statement of Errors be OVERRULED.
IX.

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that
party 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

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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 omitted)).

Date: February 5, 2018

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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