Francis v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION re 3 Complaint filed by Jason M. Francis. 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 10/2/2018. Signed by Magistrate Judge Chelsey M. Vascura on 9/18/2018. (daf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JASON M. FRANCIS,
Plaintiff,
Civil Action 2:17-cv-1022
Judge George C. Smith
Magistrate Judge Chelsey M. Vascura

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff, Jason M. Francis (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his
application for supplemental security income. This matter is before the undersigned for a
Report and Recommendation on Plaintiff’s Statement of Errors (ECF No. 8), the
Commissioner’s Response in Opposition (ECF No. 13), Plaintiff’s Reply (ECF No. 14), and the
administrative record (ECF No. 6). For the reasons that follow, it is RECOMMENDED that
Plaintiff’s Statement of Errors be OVERRULED and that the Commissioner’s decision be
AFFIRMED.
I.

BACKGROUND

Plaintiff protectively filed his application for supplemental security income on June 9,
2014. In his application, Plaintiff alleged a disability onset of January 6, 2014. Plaintiff’s
application was denied initially on October 9, 2014, and upon reconsideration on November 26,
2014. Plaintiff sought a hearing before an administrative law judge. Administrative Law

Judge Noceeba Southern (“ALJ”) held a hearing on November 9, 2016, at which Plaintiff,
represented by counsel, appeared and testified. Vocational expert Connie O’Brien-Heckler (the
“VE”) also appeared and testified at the hearing. On January 12, 2017, the ALJ issued a
decision finding that Plaintiff was not disabled within the meaning of the Social Security Act.
On September 29, 2017, 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 his Statement of Errors (ECF No. 8), Plaintiff advances two contentions of error.
First, Plaintiff contends that the ALJ’s mental RFC is not supported by substantial evidence
because the ALJ failed, without sufficient explanation, to incorporate the limitations opined by
the state agency psychologists whose opinions she assigned significant weight. Specifically,
Plaintiff asserts that the ALJ improperly omitted opined limitations relating to interaction with
others and fast-paced work. Second, Plaintiff challenges the ALJ’s consideration and weighing
of an opinion rendered by Dr. Robert Dominguez, M.D. More specifically, Plaintiff argues that
the ALJ improperly determined that Dr. Dominguez was not a treating physician and that the
opinion was merely a conclusory, checkbox form.
In her Response, the Commissioner maintains that the ALJ’s mental RFC is supported by
substantial evidence. The Commissioner argues that the ALJ’s decision as a whole
satisfactorily explains the omitted limitations and supports the RFC determination.
Additionally, the Commissioner contends that the ALJ’s failure to include the opined limitation
to limited, superficial interaction with supervisors is harmless because the jobs Plaintiff can
perform do not involve more than limited, superficial interaction with others. Finally, the

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Commissioner argues that the weight assigned to Dr. Dominguez’s opinion is supported by
substantial evidence and that the ALJ’s conclusion was properly within the permissible zone of
choice.
II.

RELEVANT OPINION EVIDENCE

The record contains five opinions relating to Plaintiff’s ability to perform work-related
activities due to his mental impairments: (1) March 2014 opinion from consultative examiner
Dr. Marc E. Miller, Ph.D.; (2) September 2014 opinion from consultative examiner Dr. Miller;
(3) October 2014 opinion from state agency reviewer Dr. Paul Tangeman, Ph.D. at the initial
level; (3) December 2014 opinion from state agency reviewer Dr. Karla Voyten, Ph.D. upon
reconsideration; and (4) October 2016 opinion from Dr. Robert Dominguez, M.D.
In March 2014, consultative examiner Dr. Miller opined that Plaintiff is “able to follow
one and two-step tasks at a time;” can “understand, remember and carry out [] simple, routine
job instructions;” has difficulty interacting with others; has “no significant impairment” with
attention and concentration; has “some difficulty” dealing with the stress and pressure of a work
environment; and has adequate abilities with respect to persistence and task completion. (R. at
565.)
In September 2014, consultative examiner Dr. Miller provided a second opinion, in
which he stated that Plaintiff has “some issues” understanding, remembering, and carrying out
instructions; “difficulty” interacting with others; “some difficulty” with attention span and
concentration; and “some issues” dealing with the stress and pressures of a work environment.
(R. at 354-55.)
In October 2014, state agency reviewing psychologist Dr. Tangeman opined that

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Plaintiff “requires SRTs in a stable, static work environment with limited, superficial interactions
with others, limited independent decision mak[ing] and limited fast paced production standards.”
(R. at 67.) Upon reconsideration in December 2014, state-agency reviewing psychologist Dr.
Voyten affirmed the assessment from Dr. Tangeman. (R. at 77-78.)
Finally, Dr. Dominguez, a physician at the Fairfield Community Health Center, provided an
opinion regarding Plaintiff’s ability to perform work-related activities. Dr. Dominguez opined
that Plaintiff’s mental health impairments cause significant limitations and prevent him from
maintaining competitive employment. (R. at 626-27.)
III.

THE ADMINISTRATIVE DECISION

On January 12, 2017, the ALJ issued her decision. (R. at 12-24.) At step one of the
sequential evaluation process,1 the ALJ found that Plaintiff had not engaged in substantial

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. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. 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);
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gainful activity since June 9, 2014, the alleged onset date. The ALJ found that Plaintiff had the
severe impairments of organic mental, anxiety disorder, social phobia, and borderline intellectual
functioning. She 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. 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 a full range of work at all
exertional levels but with the following nonexertional limitations: the claimant
requires goal based work, limited to simple routine tasks and few decision-making
requirements on the job. He requires few changes in the work setting. He should
not interact with the public, but could have superficial contact with coworkers and
only occasional interaction with supervisors. He would be off task less than 10
percent of the workday and would need a position where there is no money
management or tandem work required.
(R. at 17.)
In assessing Plaintiff’s RFC, the ALJ assigned consultative examiner Dr. Miller’s March
2014 opinion “significant weight,” reasoning that, “[w]hile Dr. Miller did not provide
vocationally relevant limits for all abilities, the undersigned has interpreted Dr. Miller’s
statements to be consistent with the residual functional capacity as assessed.” (R. at 21.) The
ALJ assigned Dr. Miller’s September 2014 opinion “significant weight,” reasoning that, “[w]hile
Dr. Miller did not provide vocationally relevant limits, the undersigned has interpreted Dr.
Miller’s statements to be consistent with the residual functional capacity as assessed.” (R. at
21.) The ALJ assigned “significant weight” to the opinions of state agency reviewing
psychologists Drs. Tangeman and Voyten, reasoning as follows:

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
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The undersigned considered the opinion[s] of the Bureau of Disability
Determination consultants expressed in the Mental Residual Functional Capcit[ies]
set forth in Exhibit[s] 1A and 3A. Although neither examining nor treating mental
health providers, these experts are licensed psychologists with knowledge of the
Social Security Administration’s program and requirements. Their opinion[s]
[are] consistent with the medical evidence of record. Therefore, the undersigned
gives the Bureau of Disability Determination opinion[s] significant weight.
(R. at 21.) Finally, the ALJ assigned “little weight” to Fairfield Community Health Center
physician Dr. Dominguez’s opinion, observing that, “although it appears Dr. Dominguez is a
treating source at the Fairfield Community Health Center, . . . there is no evidence in [the] file
that he actually treated the claimant or has a longstanding treating relationship with the
claimant.” (R. at 20.) Additionally, the ALJ explained that the opinion “is merely a check
box form, which does not offer a function-by-function analysis . . . , merely a conclusory
assertion.” (Id.) Finally, the ALJ noted that “Dr. Dominguez does not provide sufficient
clinical and laboratory data to support his conclusion,” and the record reflects that Plaintiff’s
symptoms were improving with medication and therapy. (Id.)
Relying on the VE’s testimony, the ALJ concluded that Plaintiff could perform jobs
existing in significant numbers in the national economy, including: car washer, Dictionary of
Occupational Titles (“DOT”) § 919.687-014; dry cleaner helper, DOT § 362.686-010; dryer
attendant, DOT 581.686-010; floor waxer, DOT § 381.687-034; night cleaner, DOT § 323.687014; and security system monitor, DOT § 379.367-010. (R. at 23.) The ALJ therefore
concluded that Plaintiff was not disabled under the Social Security Act. (R. at 23-24.)
IV.

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

6

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.
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 (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)).

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V.

ANALYSIS

As set forth above, Plaintiff maintains that the ALJ erred in her consideration of the
medical source opinions in the record because she (1) failed to explain why she omitted
limitations opined by Drs. Tangeman and Voyten, whose opinions she assigned significant
weight, and (2) failed to give good reasons for discrediting the opinion from treating source Dr.
Dominguez. The undersigned finds these contentions of error to be unpersuasive.
A.

Omission of Limitations from Credited Opinions in the RFC
Plaintiff first contends that the ALJ, without explanation, omitted RFC limitations

endorsed in opinions to which she assigned significant weight, thereby depriving the RFC of
support by substantial evidence. The undersigned finds any such error to be harmless.
A plaintiff’s RFC “is defined as the most a [plaintiff] can still do despite the physical and
mental limitations resulting from her impairments.” Poe v. Comm’r of Soc. Sec., 342 F. App’x
149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of
RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).
Nevertheless, substantial evidence must support the Commissioner’s RFC finding. Berry v.
Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). In
calculating a claimant’s RFC, an ALJ is not required to mirror or parrot medical opinions
verbatim. Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 (6th Cir. 2009). But where, as
here, the ALJ assigns a particular opinion “significant” weight and states it is consistent with the
record, she must incorporate all of the opined limitations or provide an explanation for declining
to do so. See, e.g., Queen v. Comm’r of Soc. Sec., No. 2:16-cv-1082, 2017 WL 6523296, at *910 (S.D. Ohio Dec. 21, 2017) (remanding where the ALJ “failed to include at least one

8

limitation” from an opinion he had assigned great weight without explaining the omission).
At issue in this contention of error are two limitations the state-agency reviewing
psychologists opined. As set forth above, the ALJ assigned “significant weight” to the opinions
of reviewing psychologists Drs. Tangeman and Voyten, concluding that their opinions were
“consistent with the medical evidence of record.” (R. at 21.) As relevant here, the reviewing
psychologists opined that Plaintiff required a work environment with “limited fast paced
production standards” and “limited, superficial interaction with others.” (R. at 67 and 78.) The
ALJ’s RFC did not copy the these limitations verbatim, but instead restricted Plaintiff to a
limited range of “goal based work,” adding that “[h]e would be off task less than 10 percent of
the workday,” and also the following limitation relating to social interaction: “He should not
interact with the public, but could have superficial contact with coworkers and only occasional
interaction with supervisors.” (R. at 17.) Thus, at issue is whether the ALJ erred in not
incorporating these limitations in her RFC assessment.
With respect to the first of these limitations—limited fast paced production standards—the
undersigned concludes that the RFC the ALJ assessed accounts for this limitation and is, in fact,
more restrictive than opined. Significantly, neither reviewing psychologist opined that Plaintiff
could not perform fast-paced work, only that the amount of fast-paced production work be
“limited.” (R. at 67 and 78.) Regardless, the ALJ limited Plaintiff to a significantly reduced
range of “goal based work,” which is commonly understood to mean work measured by the end
result as contrasted with pace work.2 To the extent Plaintiff’s counsel did not understand how

2. See, e.g., Chapman v. Comm’r of Soc. Sec., No. 2:18-cv-258, 2018 WL 4292154, at *4 (S.D.
Ohio Sept. 10, 2018) (RFC included limitation to “a work environment that is not fast-paced or
does not have unusual production demands, defined as goal-based production or work measured
9

the ALJ and the VE defined “goal-based production,” he was free to seek clarification during the
hearing, but failed to do so. (See R. at 53-57 (seeking clarification about the social limitations
only).) Moreover, the ALJ included an additional limitation that Plaintiff would be off task less
than ten percent of the workday. Finally, even if the ALJ erred in not specifically including the
language “limited fast paced production standards” in the RFC, such error would be harmless
given that five of the six the jobs identified by the ALJ do not require fast-paced production
standards. See DOT §§ 919.687-014, available at 1991 WL 687897; 581.686-010, available at
1991 WL 684213; 381.687-034, available at 1991 WL 673262; 323.687-014, available at 1991
WL 672783; 362.686-010, available at 1991 WL 673006; cf. Burnett v. Berryhill, No. 2:161637-MGL-MBG, 2017 WL 3835843, at *9 (D.S.C. Aug. 3, 2017) (noting VE testimony that an
individual limited to no production or fast-paced work could work as a cleaner, DOT § 919.687014, and dryer attendant, DOT § 581.686-010); Scott v. Comm’r of Soc. Sec., No. 2:15-cv-3085,
2016 WL 6405899, at *3 (S.D. Ohio Oct. 31, 2016) (recommending that the Court affirm the

by end result, not pace work”); Maxwell v. Comm’r of Soc. Sec., No. 2:17-cv-835, 2018 WL
2173591, at *6 (S.D. Ohio May 11, 2018) (RFC included limitation to “goal-based production
where the work is measured by end result, not pace work”); Drews v. Comm’r of Soc. Sec., No.
2:16-cv-191, 2017 WL 782985, at *3 (S.D. Ohio Feb. 13, 2017) (same); Blanton v. Comm’r of
Soc. Sec., No. 3:15-cv-1864, 2016 WL 4272126, at *5 (N.D. Ohio Aug. 15, 2016) (same); Rider
v. Comm’r of Soc. Sec., No. No. 2:17-cv-41, 2018 WL 12500029, at *3 (S.D. Ohio Mar. 12,
2018) (RFC included limitation of “goal-based production/work measured by end result, not
pace work”); Bruce v. Comm’r of Soc. Sec., No. 3:16-cv-1329, 2017 WL 3238049, at *2 (N.D.
Ohio July 29, 2017) (same); Morris v. Comm’r of Soc. Sec., No. 2:16-cv-132, 2017 WL
1287146, at *5 (S.D. Ohio Apr. 6, 2017) (same); Sims v. Comm’r of Soc. Sec., No. 2:16-cv-342,
2017 WL 4236578, at *5 (S.D. Ohio Sept. 25, 2017) (RFC included limitation to “goal-based
production where the work is measured by the end result, without pace-work”); Dorst v. Colvin,
No. 3:15-cv-1687, 2016 WL 4625010, at *1 (RFC included limitation to “goal based production
(work measured by the end result, not pace work)”); Hickman v. Comm’r of Soc. Sec., No. 2:16cv-859, 2018 WL 817876, at *6 (S.D. Ohio Feb. 12, 2018) (“The ALJ explained that he limited
[the plaintiff] to goal-based rather than pace-based production . . . because he required a lowstress environment.”).
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Commissioner’s non-disability finding where a plaintiff limited to no strict production quotas or
fast-paced work was found to be able to work as a floor waxer, DOT § 381.687-034), R&R
adopted, 2017 WL 1187907 (S.D. Ohio Mar. 30, 2017); Blevins v. Colvin, No. 2:14-1572, 2015
WL 930195, at *14 (S.D.W. Va. Mar. 3, 2015) (noting VE testimony that a plaintiff limited to no
fast-paced production standards could work as a night cleaner, DOT § 323.687-014); Blanken v.
Colvin, No. 2:13cv00050, 2015 WL 627945, at *1 (W.D. Va. Feb. 12, 2015) (noting VE
testimony that a plaintiff limited to no fast-paced production requirements could work as a drycleaner helper, DOT § 362.686-010).
The undersigned likewise concludes that the ALJ’s failure to limit Plaintiff to superficial
interactions with supervisors (as she did with co-workers) is likewise harmless. As the
Commissioner points out, five of the six jobs the ALJ identified as jobs Plaintiff can perform
require only limited relationships with people. Specifically, the Dictionary of Occupational
Titles’ descriptions reflect that the level of interaction with others is limited to “taking
instructions/helping,” at a “not significant” level. See DOT § 919.687-014, available at 1991
WL 687897; DOT § 362.686-010, available at 1991 WL 673006; DOT § 581.686-010, available
at 1991 WL 684213; DOT § 323.687-014, available at 1991 WL 672783; DOT § 381.687-034,
available at 1991 WL 673262.3 As defined in Appendix B of the Dictionary of Occupational
Titles, “taking instructions/helping” means “[a]ttending to the work assignment instructions or
orders of supervisor. (No immediate response required unless clarification of instructions or
orders is needed.) Helping applies to ‘non-learning’ helpers.” DOT App. B–Explanation of
Data, People, & Things, available at 1991 WL 688701.

3. These are the same five positions that also do not require fast-paced production standards.
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In sum, the undersigned finds Plaintiff’s assertion that the ALJ failed to include a
limitation with respect to pace work to be without merit. In addition, to the extent the ALJ erred
in omitting credited limitations from the RFC, such error is harmless because five of the six
positions identified by the VE are consistent with the at-issue limitations. See, e.g., Wills v.
Colvin, No. 14-C-960, 2016 WL 1060254, at *9 (E.D. Wis. Mar. 15, 2016) (finding harmless
error where limitations were omitted, but the representative jobs the VE identified were
unskilled, explaining “[s]ince unskilled jobs are by definition ‘simple, routine, and repetitive,’
the omission from the hypothetical of these limitations is harmless” (citation omitted)); Riley v.
Comm’r of Soc. Sec., No. 3:11-cv-194, 2012 WL 553123, at *8 (S.D. Ohio Feb. 21, 2012)
(ALJ’s failure to include certain RFC limitations is harmless error where the claimant could still
perform her past relevant work despite these limitations); see also Kobetic v. Comm’r, 114 F.
App’x 171, 173 (6th Cir. 2004) (“When remand would be an idle and useless formality, courts
are not required to convert judicial review of agency action into a ping-pong game.” (internal
quotation marks and citation omitted)). Accordingly, it is RECOMMENDED that Plaintiff’s
first contention of error be OVERRULED.
B.

Weighing and Consideration of Dr. Dominguez’s Opinion
Plaintiff next argues that the ALJ erred in discrediting the opinion from treating physician

Dr. Dominguez. The undersigned disagrees.
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 acceptable medical sources that reflect judgments about the nature and
severity of your impairment(s), including your symptoms, diagnosis and prognosis.” 20 C.F.R.

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§ 416.927(a)(1).
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).
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

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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).
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).
As discussed above, the ALJ assigned “little weight” to the October 2016 opinion from
Dr. Dominguez. Although Plaintiff maintains that the ALJ failed to give good reasons for the
weight assigned, the ALJ provided the following lengthy discussion of how she arrived at her
determination:
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Robert Dominguez, MD, provided a checkbox form dated October 11, 2016,
indicating that the claimant was significant limited by his mental impairments (Ex.
36F). First, although it appears Dr. Dominguez is a treating source at the Fairfield
Community Health Center, as that is where the form was sent, there is no evidence
in that file that he actually treated the claimant or has a longstanding treating
relationship with the claimant allowing him to provide a valid opinion on the
claimant’s functioning. The record from Fairfield Community Health Center only
document care from two certified nurse practitioners and a therapist (see e.g.,
Exhibits 34F; 35F). Moreover, this opinion is merely a check box form, which
does not offer a function-by-function analysis of what the claimant can do despite
his impairments, merely a conclusory assertion. Further, Dr. Dominguez does not
provide sufficient clinical and laboratory date to support his conclusion, as it
appears at the last actual therapy session, the claimant’s symptoms and functioning
were improving with medication management and therapy (Ex. 34F/31).
Therefore, the undersigned gives this checkbox form, insofar as it is considered an
opinion, little weight.
(R. at 20.)
The undersigned finds no error with the ALJ’s consideration and weighing of Dr.
Dominguez’s opinion. The ALJ articulated the weight she afforded the opinion and properly
declined to afford it controlling weight on the grounds it was unsupported and conclusory. See
20 C.F.R. § 404.1527(c)(2) (identifying “supportability” as a relevant consideration).
First, the ALJ reasonably discounted Dr. Dominguez’s opinion due to the apparent lack
of a treating relationship between Dr. Dominguez and Plaintiff. The length and the nature and
extent of a treating relationship are proper considerations when weighing an opinion from a
treating source. See 20 C.F.R § 404.1527(c)(2)(i)-(ii). To qualify as a treating source, the
physician must have an “ongoing treatment relationship” with the claimant. 20 C.F.R.
§ 404.1502. A Court must determine whether or not an ongoing treatment relationship exists at
the time the physician’s opinion is rendered. Kornecky v. Comm’r of Soc. Sec., No. 04-2171,
167 F. App’x 496, 506 (6th Cir. Feb. 9, 2006) (“[T]he relevant inquiry is . . . whether [claimant]
had the ongoing relationship with [the physician] at the time he rendered his opinion. [V]isits to
15

[the physician] after his RFC assessment could not retroactively render him a treating physician
at the time of the assessment.”); see also Yamin v. Comm’r of Soc. Sec., 67 F. App’x 883, 885
(6th Cir. 2003) (“These two examinations did not give [the physician] a long term overview of
[the claimaint’s] condition.”). Here, the record reflects that Plaintiff received treatment at the
Fairfield Community Health Center since at least January 2016. (See R. at 574-625.) But the
records reflect only that Plaintiff was treated by Marie Jones, CNP (R. at 574-77, 608-11, 61621); Molly Thomas, LISW (R. at 578-95, 604-07); and Melanie Perkins Graham, CNP (R. at
596-603, 612-15, 622-25). To the extent other records exist that would establish a treating
relationship, it was Plaintiff’s burden to supply those records. See 20 C.F.R. § 404.1512(a)(1)
(“You must inform us about or submit all evidence known to you that relates to whether or not
you are blind or disabled.”) Thus, the ALJ did not err in discounting Dr. Dominguez’s opinion
given the absence of record evidence establishing a treatment relationship.
Second, the ALJ reasonably discredited Dr. Dominguez’s opinion on the basis that it was
a conclusory, checkbox form without “sufficient clinical or laboratory data to support his
conclusion.” (R. at 20.) As the Sixth Circuit has held, an ALJ may properly assign little
weight to checkbox form opinions from treating sources “where the physician provided no
explanation for the restrictions entered on the form and cited no supporting objective medical
evidence.” Ellars v. Comm’r of Soc. Sec., 647 F. App’x 563, 567 (6th Cir. 2016). In this case,
the opinion form from Dr. Dominguez comprised a series of checkboxes related to Plaintiff’s
mental abilities to work, as well as a comment section where Dr. Dominguez explained:
[A]nxiety [and a] desire to completely avoid people prevent Jason from maintaining
employment. Patient reports feeling angry when he has to talk to people. Patient
has had three jobs[,] one which lasted two days and two lasting only two hours.
Moderate impaired ability to make good judgment. Thought content: obsessional,
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paranoid, fear & avoidance of people.
(R. at 626-27.) Significantly, in his remarks, Dr. Dominguez did not cite any supporting
objective medical evidence or reference treatment notes that would support his conclusions.
Additionally, the opinion form included sections for Dr. Dominguez to “[e]xplain limitations
falling in the three the most limited categories . . . and include the medical/clinical findings that
support this assessment,” (R. at 627), yet Dr. Dominguez failed to complete this section of the
form. At best, it appears that Dr. Dominguez relied on Plaintiff’s subjective reports and
complaints. Cf. Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 156 (6th Cir. 2009)
(“[S]ubstantial evidence supports the ALJ’s determination that the opinion of Dr. Boyd, [the
claimant’s] treating physician, was not entitled to deference because it was based on [the
claimant’s] subjective complaints, rather than objective medical data.”).
Finally, as the ALJ points out, recent progress notes from the Fairfield Community
Health Center contradict Dr. Dominguez’s restrictive opinion and reflect that Plaintiff’s
symptoms were improving with treatment. (See R. at 604 (March 2016 process notes indicating
“[s]ome progress,” including decreased anxiety and increased social interactions).) The
undersigned is therefore persuaded that the ALJ gave good reasons for discrediting Dr.
Dominguez’s opinion and that those reasons are supported by substantial evidence.
In sum, the undersigned concludes that the ALJ did not violate the treating physician rule
or otherwise err in her consideration and weighing of Dr. Dominguez’s opinion. It is therefore
RECOMMENDED that Plaintiff’s second contention of error be OVERRULED.

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VI.

DISPOSITION

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.
VII.

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).

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/s/ Chelsey M. Vascura
CHELSEY M. VASCURA
UNITED STATES MAGISTRATE JUDGE

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