Price v. Commissioner of Social Security

Filing 15

ORDER adopting Report and Recommendations re 12 Report and Recommendations.. Signed by Judge James L. Graham on 1/31/2019. (ds) Modified name of judge on 1/31/2019 (er).

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Joseph A. Price,
Plaintiff,
v.

Case No. 2:18-cv-128

Commissioner of
Social Security,
Defendant.
ORDER
Plaintiff Joseph A. Price brings this action under 42 U.S.C.
§§ 405(g) for review of the final decision of the Commissioner of
Social Security (“Commissioner”) denying his application for a
period of disability and disability insurance benefits.

In a

decision rendered on January 30, 2017, the ALJ found that plaintiff
has severe impairments consisting of lumbar degenerative disc
disease, spondylosis, osteoarthritis, depressive disorder, anxiety
disorder and alcohol dependence.

PAGEID 992.

The ALJ concluded

that plaintiff has the residual functional capacity (“RFC”) to
perform a reduced range of sedentary work with specified physical
limitations and, addressing plaintiff’s mental impairments, that
“the claimant is limited to goal based production measured by end
result not pace work, will be off task for 5% of [the] workday, and
needs work in a low stress job, defined as only occasional changes
in the work setting.”

PAGEID 994.

Relying on the testimony of a

vocational expert, the ALJ concluded that there are jobs which
plaintiff can perform and that plaintiff is not disabled.

PAGEID

1003-05.
This

matter

is

before

the

court

for

consideration

of

plaintiff’s November 6, 2018, objections to the October 24, 2018,

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

to

which

objection

is

made.”

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

28

U.S.C.

Upon review, the

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

28

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

Ealy v. Comm’r of

Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also,
42 U.S.C. § 405(g) (“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial evidence,
shall be conclusive.”). Even if supported by substantial evidence,
however, “‘a decision of the Commissioner will not be upheld where
the [Commissioner] fails to follow its own regulations and where
that error prejudices a claimant on the merits or deprives the
claimant of a substantial right.’” Rabbers v. Comm’r of Soc. Sec.,
582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of Soc.
Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
II. Plaintiff’s Objections
A. Plaintiff’s Mental RFC - Dr. Lai’s Opinion
In her December 30, 2014, review of the medical records, Dr.

2

Jaime Lai, Ph.D., a state agency psychological consultant, stated
that plaintiff “would benefit from some flexibility in his break
and work schedule during periods of increased symptoms” and “would
benefit from access to supervisory support during times of change.”
PAGEID 66-67. Plaintiff argues that the ALJ erred by not including
these limitations in his RFC and by not adequately explaining his
failure to do so.
A claimant’s RFC is the most that a claimant can do despite
his or her limitations.
a

medical

expert,

20 U.S.C. §404.1545(a)(1).

ultimately

determines

the

The ALJ, not

claimant’s

RFC.

Coldiron v. Comm’r of Soc. Sec., 391 F.App’x 435, 439 (6th Cir.
2010); 20 C.F.R. §§404.1527(e)(2) and 404.1546(c).

An ALJ’s

decision to give weight to medical opinion evidence does not
require the ALJ to incorporate every restriction proposed by the
medical source.

Salisbury v. Comm’r of Soc. Sec., No. 5:11-CV-

2277, 2013 WL 427733, *7 (N.D. Ohio Feb. 1, 2013).

“Even where an

ALJ provides ‘great weight’ to an opinion, there is no requirement
that an ALJ adopt a state agency psychologist’s opinions verbatim;
nor is the ALJ required to adopt the state agency psychologist’s
limitations wholesale.”

Reeves v. Comm’r of Soc. Sec., 618 F.

App’x 267, 275 (6th Cir. 2015).
Although the ALJ was not obligated to give “good reasons” for
the weight he assigned to the opinion of Dr. Lai, a consultative
examiner, see Ealy, 594 F.3d at 514, the ALJ gave a sufficient
explanation for his decision to give her opinion partial weight.
In regard to the limitations noted by plaintiff, the ALJ stated
that Dr. Lai
found that the claimant would need assistance during
times of change and some ability to be off task and these
3

are generally consistent with the above residual
functional capacity which has been set forth in more
vocationally relevant terms.
PAGEID 1002 (emphasis supplied).
weight

to

superficial

Dr.

Lai’s

opinion

interaction

with

The ALJ also assigned little
that

plaintiff

others,

as

that

would

require

opinion

was

inconsistent with the evidence and with Dr. Lai’s findings of mild
social limitations.
As the magistrate judge correctly noted, PAGEID 1249, the ALJ
reasonably found that the limitations proposed by Dr. Lai and noted
by plaintiff were sufficiently addressed by the RFC.

The RFC

limitations of “goal based production measured by end result not
pace work” and allowing plaintiff to be “off task for 5% of [the]
workday” addressed the proposed limitation that plaintiff might
need some flexibility in his break and work schedule during periods
of increased symptoms.

By its nature, goal based production would

permit more flexibility for break times than pace work on an
assembly line.

Dr. Lai’s suggestion that plaintiff would benefit

from access to supervisory support during times of change was
addressed by the RFC requirement that plaintiff have a low stress
job with only occasional changes in the work setting, which would
also reduce the need for supervisory support.
The magistrate judge also correctly determined that Stacey v.
Comm’r of Soc. Sec., 451 F. App’x 517, 518-20 (6th Cir. 2011),
relied on by plaintiff, is distinguishable.

In Stacey, the ALJ

completely failed to discuss what weight, if any, he assigned to
the opinion of a consultative examining physician who concluded
that the claimant was permanently limited to performing sedentary
work, providing the appellate court with no means of review.

4

In

contrast, the ALJ here addressed the recommendations of Dr. Lai
referenced by plaintiff and concluded that they were “generally
consistent with the above residual functional capacity which has
been set forth in more vocationally relevant terms.”

PAGEID 1002.

The ALJ adequately explained the weight he assigned to Dr. Lai’s
opinion and how he incorporated her recommendations in the RFC.
B. Treating and Nontreating Source Opinions
Plaintiff also objects to the magistrate judge’s rejection of
his argument that the ALJ unreasonably discounted the mental health
evidence favorable to plaintiff’s position in crafting plaintiff’s
RFC and inadequately explained the weight assigned to the treating
source and other opinions.

As to the first argument, the court

notes that a decision supported by substantial evidence is not
subject to reversal, even if the reviewing court might arrive at a
different conclusion. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986).

“Substantial evidence exists when ‘a reasonable mind could

accept the evidence as adequate to support a conclusion [and] ...
presupposes that there is a zone of choice within which the
decision-makers can go either way, without interference by the
courts.’”

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th

Cir. 2009)(internal citation omitted).

An ALJ’s failure to cite

specific evidence does not indicate that it was not considered.
Simons v. Barnhart, 114 F. App’x 727, 733 (6th Cir. 2004).
The court agrees with the magistrate judge’s conclusion that
the RFC is supported by substantial evidence despite plaintiff’s
identification of evidence supporting a more restrictive RFC.

As

the magistrate judge commented, PAGEID 1252-53 (citing evidence
supporting the RFC determination), the record is more mixed than

5

plaintiff acknowledges.

The ALJ considered the entire record in

formulating plaintiff’s RFC and did not engage in a one-sided
review.

PAGEID 994.

complaints

of

mental

For example, he discussed plaintiff’s
health

symptoms

documenting plaintiff’s depression.
discounted

the

weight

given

to

and

treatment

notes

See PAGEID 993; 998-1000.
the

opinions

of

He

consulting

psychologists James N. Spindler, M.S., and Karla Voyten, Ph.D.,
concluding that the medical evidence supported a level of mental
impairment above what those experts opined. PAGEID 1002. However,
the ALJ also discussed ample record evidence which indicated that
plaintiff’s mental symptoms are not disabling, including the fact
that plaintiff did not take medication for his depression, and that
his mental limitations, frequently described as mild or moderate,
did not restrict his activities of daily living.
1000.

PAGEID 993, 998-

The ALJ’s RFC determination is well within the permitted

zone of choice.
The court also agrees with the magistrate judge’s finding that
the ALJ adequately explained the weight he assigned to the treating
and nontreating sources.

Under SSR 96-2p, 1996 WL 374188 (July 2,

1996), treating-source opinions must be given “controlling weight”
if: (1) the opinion “is well-supported by medically acceptable
clinical and laboratory diagnostic techniques”; and (2) the opinion
“is not inconsistent with the other substantial evidence in [the]
case record.”

See 20 C.F.R. §404.1527(c)(2); SSR 96-2p, 1996 WL

374188 at *2-3.

The Commissioner is required to provide “good

reasons” for discounting the weight given to a treating-source
opinion. 20 C.F.R. §404.1527(c)(2)-(6); Gayheart v. Comm’r of Soc.
Sec., 710 F.3d 365, 376 (6th Cir. 2013).

6

However, a formulaic

recitation of factors is not required.

See Friend v. Comm’r of

Soc. Sec., 375 F.App’x 543, 551 (6th Cir. 2010).
The ALJ assigned little weight to the opinions of William
Froilan, Ph.D., a treating psychologist, because: 1) the opinions
were inconsistent with the evidence as a whole (citing extensively
to exhibits in the record which indicated that plaintiff was mildly
depressed

and

concentration,

had

mild

insight,

or

normal

memory

and

findings

judgment);

2)

relating
the

to

limited

medical evaluations from Dr. Froilan were inconsistent with reports
of plaintiff’s daily activities and failed to set forth specific
functional limitations due to plaintiff’s mental impairments; and
3)

Dr.

Froilan’s

opinions

related

to

plaintiff’s

workers’

compensation claim, and the decisions of other agencies are not
binding on the Commissioner.

PAGEID 1000-1001.

The ALJ also gave little weight to the 2014 and 2015 opinions
of Lee Roach, Ph.D., a treating psychologist, noting that these
opinions: 1) were inconsistent with the medical evidence, which
indicated that plaintiff had mostly normal or mild findings on
mental

status

evaluations

and

was

not

taking

psychotropic

medication; and 2) were inconsistent with his own treatment notes,
which documented no more than moderate impairments and which
indicated, for example, that plaintiff had reconnected with friends
and family, had begun a new relationship, and had improved with
treatment.

PAGEID 1001.

The ALJ gave partial weight to Dr.

Roach’s January 25, 2016, letter opinion on whether plaintiff had
reached maximum medical improvement with respect to his workers’
compensation claim.
plaintiff

had

The ALJ agreed with Dr. Roach’s opinion that

moderate

limitations

and

was

improving

with

treatment, but rejected his opinion that plaintiff was unable to
7

return to work, as this was a determination reserved to the
Commissioner.

See Bass v. McMahon, 499 F.3d 506, 511 (6th Cir.

2007); 20 C.F.R. §404.1527(e).

The ALJ also rejected the workers’

compensation work ability forms prepared by Dr. Roach in 2016 as
they were inconsistent with the evidence and based on the rules
applicable to workers’ compensation disability.

PAGEID 1001-02.

The ALJ considered the workers’ compensation forms completed
by Holly Conant, LISW, a treating licensed social worker.

He

correctly noted that Ms. Conant was not an “acceptable medical
source” who could provide a medical opinion.
§§404.1527(a)(2) 416.927(a)(2).

See 20 C.F.R.

He also gave her opinions little

weight because they were inconsistent with the medical evidence of
record.

PAGEID 1002.

Although

the

“good

reasons”

requirement

only

applies

to

treating sources, see Ealy, 594 F.33 at 514, the ALJ also discussed
the weight he gave to the opinions of nontreating sources. He gave
little weight to the August 24, 2013, mental health evaluation of
workers’ compensation consultative examiner Marian Chatterjee,
Ph.D. and her opinion that plaintiff was unable to work.

The ALJ

noted that the determination of disability was a matter reserved to
the

Commissioner,

and

that

Dr.

Chatterjee’s

conclusion

that

plaintiff was unable to work was inconsistent with her own findings
on examination that plaintiff was mildly depressed and had fair
short-term concentration and attention and intact memory.

PAGEID

1002.
The ALJ gave partial weight to the September 9, 2014, mental
health evaluation of consultative examiner James N. Spindler, M.S.
Although

Mr.

Spindler

found

that

8

plaintiff

had

few

mental

limitations, the ALJ assessed some greater mental limitations in
the RFC because plaintiff used alcohol in greater quantities than
he admitted to Mr. Spindler. As discussed above, the ALJ discussed
why he gave partial weight to the opinion of Dr. Lai. a state
agency consultant.

He gave little weight to the September 2014

records review by Karla Voyten, Ph.D., a state agency psychological
consultant, because the medical evidence did not support her
findings that plaintiff had no severe mental impairment.
1002.

PAGEID

The ALJ also thoroughly discussed why he gave little weight

to the medical sources who assigned GAF (global assessment of
functioning) ratings to plaintiff.

PAGEID 1002-03.

The ALJ

adequately explained his reasons for the weight he assigned to the
various expert opinions.
III. Conclusion
For the reasons stated above, the court concludes that the ALJ
gave good reasons, supported by substantial evidence, for the
weight he assigned to the expert opinions and for his formulation
of plaintiff’s RFC.

The RFC determination and the Commissioner’s

non-disability finding are supported by substantial evidence.

The

court overrules the plaintiff’s objections (Doc. 13), and adopts
and affirms the magistrate judge’s report and recommendation (Doc.
12). The decision of the Commissioner is affirmed, and this action
is dismissed.

The clerk is directed to enter final judgment in

this case.
It is so ordered.

Date: January 31, 2019

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

9