McManis v. Commissioner of Social Security
Filing
11
REPORT AND RECOMMENDATION re 3 Complaint filed by Saundra Kay McManis in that it is RECOMMENDED that the Court OVERRULE Plaintiffs Statement of Errors and AFFIRM the Commissioner's decision. Objections to R&R due by 11/27/2018. Signed by Magistrate Judge Kimberly A. Jolson on 11/13/18. (sem)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SAUNDRA KAY MCMANIS,
Plaintiff,
v.
Civil Action 2:18-cv-491
Judge Michael H. Watson
Magistrate Judge Jolson
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
Plaintiff, Saundra Kay McManis, brings this action under 42 U.S.C. § 405(g) seeking
review of a final decision of the Commissioner of Social Security (“Commissioner”) denying her
Disability Insurance Benefits. 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
A.
Prior Proceedings
Plaintiff applied for Disability Insurance Benefits (“DIB”) in October 2014, alleging
disability due to a number of physical and mental impairments. (Tr. 174, PAGEID #: 226).
Plaintiff alleged an onset date of January 1, 2013. (Id.).
After initial administrative denials of Plaintiff’s claims, Administrative Law Judge
Catherine Ma (“the ALJ”) heard the case on May 12, 2017. (Tr. 38–85, PAGEID #: 87–134). On
September 26, 2017, the ALJ issued a decision, finding that Plaintiff was not disabled within the
meaning of the Social Security Act. (Tr. 10–25, PAGEID #: 59–74). Plaintiff requested a review
of the Hearing and the Appeals Council denied review, making the ALJ’s decision the final
decision of the Commissioner. (Tr. 1–6, PAGEID #: 50–55).
Plaintiff filed this case on May 17, 2018, and the Commissioner filed the administrative
record on July 23, 2018. (Doc. 7). Plaintiff filed a Statement of Specific Errors on September 9,
2018 (Doc. 8) and the Commissioner responded on September 30, 2018 (Doc. 10). No reply was
filed. Thus, this matter is now ripe for review.
B. Relevant Hearing Testimony
Plaintiff was 61 years old at the time of the hearing. (Tr. 46, PAGEID #: 95). At the
hearing, Plaintiff testified about both her physical and mental issues; however, because Plaintiff’s
argument relates only to her mental impairments, the Court focuses on testimony regarding the
same. Plaintiff testified that she lives in a two-story house with her husband and three dogs.
(Tr. 45, PAGEID #: 94). She has her GED and attended Daymar College for three quarters.
(Tr. 46, PAGEID #: 95). At the time of the hearing, Plaintiff was 5’1” tall and weighed 225
pounds. (Tr. 47, PAGEID #: 96). She explained that her husband has received disability benefits
since becoming injured in a 1986 mining accident and that she receives food stamps and has a
medical card. (Tr. 48, PAGEID #: 97).
As to her work history, Plaintiff worked at Ponderosa, from 2006 to 2013. She first served
as a food bar worker, before being promoted to shift coordinator, and eventually to assistant
manager. (Tr. 49–50, PAGEID #: 98–99). As shift coordinator, Plaintiff explained that her
responsibilities included ensuring that employees were on task, managing customer complaints,
and disciplining employees when necessary. (Tr. 53–54, PAGEID #: 102–03). As assistant
manager, she was primarily responsible for scheduling and customer service. (Id.). When asked
to describe the circumstances surrounding her departure from Ponderosa, Plaintiff explained that
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she was frustrated both because upper management would not act after she reported that her
manager was stealing and because her prep cooks had failed to show up to work that day. (Tr. 58–
59, PAGEID #: 107–08).
In response to the ALJ’s question concerning her inability to work, Plaintiff explained that
she was “afraid of hurting somebody or myself because [she] get[s] such anger” and that she does
not know how to deal with her “built up” anger. (Tr. 59, PAGEID #: 108). Plaintiff testified that
she sees a therapist at Woodland Centers on a monthly basis and takes BuSpar, Abilify, and Paxil
for her “nerves.” (Tr. 60, PAGEID #: 109). She explained that, because of her mental health
issues, she does not leave the house and does not often associate with others. (Id.). She also
testified, however, that she spends a significant amount of time with her husband, daughter, and
adult grandchildren, all of whom help her with household chores. (Id.). Plaintiff’s grandchildren
visit approximately once a week, and her daughter generally visits every other night. (Tr. 61,
PAGEID #: 110). She also stays in touch with a friend over the phone on a monthly basis. (Id.).
As to her daily activities, Plaintiff testified that her family members handle most of the grocery
shopping and housework and that she cooks simple meals, albeit infrequently. (Tr. 64–65,
PAGEID #: 113–14). She explained that she spends most of her days in her lounge chair either
sleeping, watching TV, or listening to music. (Tr. 66, PAGEID #: 115).
In response to her attorney’s questions about her ability to focus, Plaintiff explained that
“[i]t feels like the whole world is crashing in all around me, and everybody’s gathering up on top
of me, and just suffocating me” and that she “just want[s] to be left alone.” (Tr. 68, PAGEID #:
117). Plaintiff testified that she was a “nervous wreck” in anticipation of the hearing and took an
extra pill to help with her symptoms. (Id.). Plaintiff’s attorney then asked her to describe her
anger:
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Q. So tell us more about your anger. How frequently do you get angry, and
what kinds of things make you angry?
A. I get angry every day. It doesn’t take much to make me angry.
Q. What kinds of things might make you angry?
A. I can watch a simple television show, and be mad because of the, of a
commercial, or, or someone can knock on my door, and I’ll be mad because
they’re coming and bothering me.
Q. So how does that anger come out, or what - A. Sometimes I knock things off the tables. I have broken dishes before
because I was mad, just smashed them and cracked them.
Q. How frequently does stuff like that happen?
A. Once every couple months maybe if I get really, really angry.
Q. What other things do you do more frequently than that? How does your
anger come out?
A. It comes out in the way I treat people.
Q. And what does that mean?
A. That I’m mean to my family members when they try to help me.
Q. Okay. Are you loud?
A. I’m very loud.
Q. Do you use not nice words?
A. I use not nice words, and I call you everything but a - Q. Do you swear?
A. Oh, yes. I say things that I shouldn’t say.
Q. How frequently do you do that?
A. Every day. I’m cussing every day at something, or somebody.
(Tr. 68–69, PAGEID #: 117–18).
In response to her attorney’s questioning, Plaintiff explained that she stopped driving
because she gets “road rage.” (Tr. 72, PAGEID #: 121). Plaintiff testified that she does spend
time with family and has good days and bad days. (Id.). For example, she attended a baby shower
when she was having a good day. (Id.). She stated that she has not had thoughts of harming herself
for a long time, but that she has thoughts of harming other people and “just want[s] to slap people
every time [she] get[s] around them” because they “aggravate [her] so bad.” (Tr. 72–73, PAGEID
#: 121–22).
Finally, at the hearing, a vocational expert (“VE”) opined that an individual with Plaintiff’s
age, education, relevant work experience, and residual functional capacity could return to all of
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her past relevant work both as she generally and actually performed the work. (See generally
Tr. 77–81, PAGEID #: 126–30).
C.
Relevant Medical Background
Plaintiff’s arguments concern her mental impairments only, and the Court consequently
examines the relevant medical evidence pertaining to the same.
On January 23, 2014, Plaintiff was treated at Riverside Hospital and was noted to be
positive for anxiety but was in no acute distress and was alert and oriented. (Tr. 287, PAGEID #:
341). Plaintiff first saw her primary care physician, Dr. Ash, on April 29, 2014. (Tr. 336–37,
PAGEID #: 390–91). Plaintiff stated she had “suicidal ideations” but Dr. Ash was “unable to
assess” such ideations. (Tr. 336, PAGEID #: 390). Dr. Ash reported Plaintiff’s emotional state as
“appropriate” and noted that she was “pleasant,” alert, oriented, and in no acute distress. (Tr. 337,
PAGEID #: 391). Dr. Ash noted Plaintiff’s anxiety, along with other physical issues, and
prescribed Plaintiff medication for her anxiety. (Id.). In June 2014, Plaintiff experienced choking
episodes and reported smoking marijuana to help calm her nerves. (Tr. 331–32, PAGEID #:
385– 86).
During a January 12, 2015 follow-up appointment, Dr. Ash prescribed Plaintiff additional
medication for her depression and anger. (Tr. 543, PAGEID #: 597). Plaintiff “denies any
homicidal or suicidal ideations and states she loves and takes care of her grandchildren and because
of her faith she knows she could not kill herself.” (Id.). On January 27, 2015, Plaintiff presented
to Riverside Hospital, complaining of shortness of breath and chest pain. (Tr. 289, PAGEID #:
343). Plaintiff was found to be positive for anxiety. (Tr. 290, PAGEID #: 344). On March 17,
2015, Plaintiff told Dr. Ash that her depression was well controlled with medications and that,
because of her medications, she felt like she could get out of bed in the morning, bathe, get dressed,
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and tend to her daily activities. (Tr. 536, PAGEID #: 500). Dr. Ash noted, however, that Plaintiff
“states she remains extremely angry and very irritable” and “that she does not want to be around
people and everything and everybody makes her mad[.]” (Id.). Consequently, he referred Plaintiff
to psychiatry for her anger and irritability. (Id.).
Plaintiff began receiving treatment at Woodland Centers Inc. for her mental health
problems in March 2015. (Tr. 545, PAGEID #: 599). During her diagnostic assessment, Plaintiff
explained that she is “angry all the time,” “wake[s] up angry,” and sought out treatment to “talk to
someone” and “work on her anger.” (Id.). Plaintiff’s therapist, Mary Brown, opined that Plaintiff
“has had anger issues and inability to regulate emotions for approximately three years” but also
noted that she “has found through diagnosis of primary doctor that her thyroid is not working
properly and has been diagnosed with hypothyroidism, which may be contributing to client’s
symptoms.” (Tr. 548, PAGEID #: 602). Brown also opined that Plaintiff was at a low risk of
harm to herself and no reported risk of harm to others. (Tr. 553, PAGEID #: 607). March 19,
2015 progress notes from Woodland Centers provide that Plaintiff was “unable to control anger,
depression and anxiety symptomatology,” but that she was “very cooperative and open during
assessment.” (Tr. 749, PAGEID #: 804). On April 1, 2015, Plaintiff told her therapist that she
still struggled with anger issues, but that she “fel[t] better already since coming to therapy[.]”
(Tr. 752, PAGEID #: 807). A week later, Plaintiff expressed she was looking forward to her
birthday party that her family was hosting for her the next day, but that she was “still aggravated”
regarding her anger outbursts. (Tr. 753, PAGEID #: 808). She also told her therapist that she was
willing to work on breathing exercises to cope with her anger and reported “better mood and ability
to control thoughts faster since beginning therapy[.]” (Tr. 754, PAGEID #: 809). On April 14,
2015, she opened up to her therapist about various family issues, including abuse, and was “very
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engaging and open in session.” (Tr. 757, PAGEID #: 812). Plaintiff remarked that she “feels safe”
talking with her therapist about these issues. (Id.).
During a May 4, 2015 therapy session, Plaintiff reported that her symptoms had improved
since increasing her medications and that she had enjoyed spending the previous day with her
sister, stating, “[i]t felt great to get some sun” and plant flowers. (Tr. 760, PAGEID #: 815). She
also reported guilt stemming from family issues but attributed her overall change in attitude to
medications and therapy. (Tr. 761, PAGEID #: 816). Approximately one week later, Plaintiff
described her anger related to family issues but stated that she was enjoying outdoor activities and
spending time with other people, explaining, “I swear it’s the Abilify that’s made it better.”
(Tr. 762–63, PAGEID #: 817–18). June 4, 2015 therapy notes provide that Plaintiff “has had
difficulty getting along with her daughter for several years and finds it difficult to control her
temper when her daughter makes her mad.” (Tr. 767, PAGEID #: 822). Therapy notes, dated June
30, 2015, list “several successes between visits,” including “being able to hold her tongue with her
daughter” and going to work at a senior center without “getting upset” with anyone. (Tr. 771,
PAGEID #: 826).
On June 11, 2015 and June 16, 2015, Plaintiff underwent a psychological evaluation with
Boris Todorov, Ph.D. (Tr. 422, PAGEID #: 476). Dr. Todorov administered a Personality
Assessment Inventory (“PAI”), the Beck Depression Inventory, and the Beck Anxiety Inventory.
(Tr. 425–27, PAGEID #: 479–81). Based on his findings, Dr. Todorov noted the following
“diagnostic impression[s]”: Somatic Symptom Disorder, Major Depressive Disorder—Recurrent
and Moderate, and Generalized Anxiety Disorder, with a Global Assessment of Functioning
(“GAF”) of 50. (Tr. 427, PAGEID #: 481). He found that Plaintiff presented with a moderate to
severe depressed mood and generalized anxiety, with poor coping skills and difficulty self-
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regulating difficult emotions. (Id.). Consequently, he opined that Plaintiff would have “poor”
abilities coping with work stress and behaving in an emotionally stable manner; “fair” abilities
relating to coworkers, interacting with the public, using judgment when interacting with the public,
maintaining attention and concentration, relating predictably in social situations, and
demonstrating reliability; and “good” abilities following work rules, interacting with supervisors,
functioning independently, carrying out detailed, but not complex job instructions, carrying out
simple job instructions, and maintaining personal appearance. (Tr. 430–32, PAGIED #: 484–86).
On August 13, 2015, Plaintiff told her therapist that she was doing “so much better than
when [she] first started coming” and that she “feels so good right now[.]” (Tr. 778, PAGEID #:
833). On September 21, 2015, Plaintiff was pleased both to have had no recent arguments with
family members and with being able to clean her home. (Tr. 785, PAGEID #: 840). Therapy notes
from December 14, 2015, indicate that Plaintiff felt sad about her youngest granddaughter moving
out of her home, but that she would force herself to get up “most of the time” and that her husband
encouraged her to do so as well. (Tr. 790–91, PAGEID #: 845–46).
During a February 17, 2016 therapy session, Plaintiff was pleased that she had assisted her
friend following surgery and agreed that she was able to “manage remaining problems on her own
with skills she has learned through therapy[.]” (Tr. 793, PAGEID #: 848). Records from March
2016 indicate that Plaintiff was doing well, but that Dr. Ash increased her medications because of
Plaintiff’s concern that her symptoms were returning. (Tr. 449, PAGEID #: 503). During the
exam, Dr. Ash noted an appropriate emotional state and that Plaintiff was pleasant, alert, oriented,
and in no distress. (Tr. 449–50, PAGEID #: 503–04.). A review of symptoms in April 2016, noted
Plaintiff’s euthymic mood, with no signs of restlessness, no anxiety, no depression, and no
psychological symptoms. (Tr. 446, PAGEID #: 500). At a July 2016 appointment with Dr. Ash,
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Plaintiff reported that her anxiety and depression were doing well, and Dr. Ash noted Plaintiff’s
pleasant behavior and appropriate emotional state. (Tr. 441–42, PAGEID #: 495–96).
In January 2017, Plaintiff told her therapist that she did not like to go shopping, experienced
road rage, and had difficulties with her anger and impulse control. (Tr. 797–98, PAGEID #:
852– 53). On March 2, 2017, Plaintiff reported anger over the Nielsen ratings, her neighbor’s dog,
and road rage. (Tr. 861, PAGEID #: 916). During a March 13, 2017 appointment with Dr. Ash,
Plaintiff reported she no longer needed medication for sleep, felt things were going well, and that
she was doing well on her medication. (Tr. 882, PAGEID #: 971). Dr. Ash’s exam notes indicate
that Plaintiff was pleasant, alert, oriented, and in no acute distress. (Tr. 883, PAGEID #: 938). In
April 2017, Plaintiff reported feeling “very stressed” in anticipation of her upcoming disability
benefits hearing. (Tr. 865, PAGEID #: 920).
D.
The ALJ’s Decision
The ALJ found that Plaintiff remained insured for disability insurance benefits through
March 30, 2018, and that she had not engaged in substantial gainful activity since her alleged onset
date of January 1, 2013. (Tr. 13, PAGEID #: 62). The ALJ determined that Plaintiff suffered from
the following severe impairments: chronic obstructive pulmonary disease (COPD), disorders of
the spine, and osteoarthritis and allied disorders. (Id.). Additionally, the ALJ determined that
Plaintiff suffered from non-severe impairments, including hiatal hernia, GERD, a senile nuclear
cataract, and anxiety and depressive disorders. (Id.).
As for the opinion evidence, the ALJ assigned Plaintiff’s GAF score ranging from 50 to 55
“little weight,” noting, in part, that GAF scores “do not provide a reliable longitudinal picture of
the claimant’s mental functioning.” (Tr. 14, PAGEID #: 63). Next, the ALJ assigned the opinion
of examining psychiatrist, Boris Todorov Ph.D., “little weight.” Dr. Todorov opined that Plaintiff
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had a poor subjective functional capacity that would prevent her from participating in the
workforce, that she would be usually precluded from behaving in an emotionally stable manner in
dealing with work stress, and would be precluded at times, from such things as maintaining
attention and concentration. (Tr. 15, PAGEID #: 64). In assigning his opinion little weight, the
ALJ noted that Dr. Todorov’s opined functional limitations and conclusory statements were
“inconsistent with the exam findings noted above that do not suggest any significant issue with
interpersonal relations during the exam, with average intellectual functioning, in fact improving
over time, no issues with inattention, and no issues with personal care or grooming.” (Id.).
Accordingly, the ALJ concluded that “the objective findings do not support the claimant’s selfreported subjective complaints, upon which [Dr. Todorov’s] opinion relies.” (Id.). She also found
that “the longitudinal treatment history and contemporaneous treatment notes [were] inconsistent
with the opinions of Dr. Todorov.” (Id.). Therefore, the ALJ concluded, “[g]iven the overall
improvement with medication and treatment,” that Dr. Todorov’s opinion was entitled to little
weight and that Plaintiff’s mental health conditions were non-severe. (Id.).
The ALJ then went on to assess the “paragraph B” criteria of Listings 12.04 and 12.06.
(Tr. 15–17, PAGEID #: 64–66). She found that Plaintiff has no limitation in the area of
understanding, remembering, or applying information. (Tr. 16, PAGEID #: 65). She explained
that Plaintiff “alleges significant limitations that are not consistent with or supported in the
medical and clinical evidence[.]” (Id.). She noted, for example, that Plaintiff “does not need
special reminders to take care of personal needs or grooming,” is able to prepare her own meals,
perform occasional household chores, volunteer at a soup kitchen and with senior citizens, and
care for her grandchildren. (Id.). The ALJ also referred to record evidence of Plaintiff’s average
intellectual functioning and “adequate fund of knowledge.” (Id.). Next, the ALJ found that
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Plaintiff has a mild limitation in the area of interacting with others. (Id.). She explained that while
Plaintiff has reported significant difficulty getting along with others, “the severity of these claims
is not supported in the evidence.” (Id.). The ALJ noted that, for instance, Plaintiff is capable of
short trips to the grocery store, “suggesting an ability to function in a public setting,” that she has
a friend with whom she regularly stays in touch, that, according to the record, she volunteers in
her community, and that both treatment and counseling notes indicate that medications and
treatment helped to improve her mood regulation. (Id.). Moreover, the ALJ found that Plaintiff’s
treating providers “overall do not indicate that the claimant has any particular difficulty getting
along with others within the treatment setting [ ] despite her allegations of difficulty dealing with
others” and that during exams, Plaintiff was “routinely cooperative, and at times demonstrated a
euthymic mood.” (Id.).
In the area of concentration, persistence, or maintaining pace, the ALJ found that Plaintiff
has a mild limitation. (Id.). She relied, in part, on the fact that Plaintiff can prepare her own meals,
does not need special reminders to take care of personal needs or grooming, cares for her
grandchildren, and volunteers. (Id.). Finally, as to her ability to adapt and manage herself, the
ALJ found that Plaintiff has a mild limitation. (Id.). The ALJ reiterated the fact that Plaintiff does
not need special reminders to take care of personal needs or grooming, that her weekly pill bottles
“suggest[] a minimal and self-organized system,” and that health records do not indicate any issues
with hygiene or dress at evaluations. (Tr. 17, PAGEID #: 66). Moreover, ongoing therapy notes
indicate Plaintiff’s reports of continued improvement and “while she reported stressors due to
situational factors, she was cooperative during sessions.” (Id.).
Upon consideration of the record, the ALJ determined that Plaintiff retained the following
residual functional capacity (“RFC”) to:
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perform medium work … except the claimant is limited to no more than frequent
exposure to extreme cold, extreme heat, humidity, fumes, odors, dusts, gases, poor
ventilation, and hazards.
(Tr. 19, PAGEID #: 68). In explaining her RFC determination, the ALJ noted, in part, that while
Plaintiff “alleged limitations from conditions including arm pains, thyroid issues, and fatigue, as
well as the psychological issues discussed above,” ultimately, the “objective medical evidence []
does not document clinical findings of physical or mental status abnormality that establish total
disability, as defined by the Social Security Act, or that corroborate the degree of symptomatology
and limitation the claimant has alleged in support of her application.” (Tr. 19–20, PAGEID #: 68–
69). As part of her RFC analysis, the ALJ relied on her previous analysis concerning the severity
of Plaintiff’s mental health symptoms and provided the following explanation:
The claimant’s activities of daily living during the period relevant to this
adjudication have not been supportive of or consistent with her alleged symptoms
or limitations. While the claimant alleges significant limitations that are not
consistent with or supported in the medical and clinical evidence, she also reported
that she does not need special reminders to take care of personal needs or grooming,
and while she reported a need for reminders with medication . . . suggesting a
minimal and self organized system. She indicated that she could prepare her own
simple meals and perform occasional household chores though with
encouragement. She indicated that her family members do the shopping, though
she is capable of short trips, suggesting an ability to function in a public setting.
The claimant testified she has a friend with whom she keeps in regular contact. The
medical evidence also indicates volunteering activities at a soup kitchen and with
senior citizens, that are inconsistent with her allegations. I find that the nature of
these reported activities are internally inconsistent, and inconsistent with the
allegations of severe pain and disabling symptoms made in connection with this
application.
(Tr. 20, PAGEID #: 69).
II.
STANDARD OF REVIEW
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.” Winn v.
Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). “[S]ubstantial
12
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
v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec’y of Health &
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner’s findings of fact must also
be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To
this end, the Court must “take into account whatever in the record fairly detracts from [the] weight”
of the Commissioner’s decision. Rhodes v. Comm’r of Soc. Sec., No. 2:13-cv-1147, 2015 WL
4881574, at *2 (S.D. Ohio Aug. 17, 2015).
III.
DISCUSSION
Although Plaintiff sets forth just one error, her asserted error is actually twofold: First,
Plaintiff alleges that the ALJ failed to substantially support her treatment of opinions offered by
examining medical expert, Dr. Todorov. (See generally Doc. 8 at 10–15). Further, Plaintiff
contends that the ALJ failed to substantially support her conclusion that Plaintiff’s mental health
conditions are “non-severe.” (Id.).
A.
Assessment of Dr. Todorov’s Opinion
Plaintiff alleges that the ALJ erred in assigning little weight to Dr. Todorov’s opinion. (See
generally id.).
Plaintiff emphasizes that Dr. Todorov’s examination consisted of both an
examination and administration of the Personality Assessment Inventory, “including validated
testing results, as well as his expertise as a mental health professional.” (Id. at 12). Plaintiff seems
to suggest that the ALJ was required to adopt Dr. Todorov’s opinion because the ALJ “did not
have the expertise to independently draw her own medical conclusion.” (Id. at 13). Despite
Plaintiff’s allegation that the ALJ “played doctor” (id. at 12), the Court finds that substantial
evidence supports the ALJ’s decision to assign little weight to Dr. Todorov’s opinion.
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While ALJs must consider opinions from medical sources, ALJs are the ones responsible
for weighing the record evidence, determining whether an impairment is severe, and deciding
whether a claimant is disabled. See 20 C.F.R. §§ 404.1520b, 404.1521 (explaining that “[a]fter
we review all of the evidence relevant to your claim, we make findings about what the evidence
shows.”). Relevant here, ALJs are not required to rely on medical opinions at face value, but
instead must evaluate medical opinions based on their consistency with and support from
“medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(c),
(d) (2), (3), (4). An ALJ must also “consider any factors you or others bring to our attention, or of
which we are aware, which tend to support or contradict the medical opinion.” Id. at (c)(6). See
also Hernandez v. Comm’r of Soc. Sec., 644 F. App’x 468, 474 (6th Cir. 2016) (finding that the
ALJ did not substitute his opinion for that of the physician because the ALJ “properly discussed
objective evidence in the record that demonstrates [plaintiff’s] symptoms lessen when she is
compliant with her medication . . . and that she can tolerate certain limited social interactions, such
as shopping and interacting with her boyfriend.”); Smith v. Astrue, No. CIV.A 4:09-cv-46-J, 2009
WL 4928035, at *4 (W.D. Ky. Dec. 14, 2009) (noting that plaintiff “argues as though this is the
only acceptable opinion in the record and no other medical evidence” and upholding the ALJ’s
decision because it was “based on the ALJ’s study of the record as a whole.”).
Here, for the ALJ to have adopted Dr. Todorov’s opinion, she must have found his opinion
“well-supported and not inconsistent with other substantial evidence in the record.” See SSR 962p. The ALJ, however, found, based on the record and Plaintiff’s own testimony, that Dr.
Todorov’s opinion did not satisfy this standard. Specifically, the ALJ found that Dr. Todorov’s
opinion was both internally inconsistent and inconsistent with the record as a whole. For example,
the ALJ found that Dr. Todorov’s opinion was inconsistent with his own exam findings, which did
14
not suggest any significant issue with interpersonal relations; showed average intellectual
functioning; and no issues with inattention, personal care or grooming. (Tr. 15, PAGEID #: 64).
She also found that Dr. Todorov’s opinion was based on Plaintiff’s self-reported complaints, which
she also found to be inconsistent with exam findings and evidence in the record. (Id.). The ALJ
elaborated on her opinion:
On June 1, 2015, Dr. Ash, the claimant’s treating physician, noted an appropriate
emotional state and further noted that the claimant was volunteering at a soup
kitchen. Though [] concerned if she could continue due to standing concerns, she
did not report any psychological difficulties, which I find inconsistent with the
alleged limitations from Dr. Todorov. In August 2015, the claimant reported that
therapy was going very well, and the claimant reported her anxiety and depression
was [sic] doing well on the medication, noting that she does not take Trazodone
very often. In November 2015, she again reported her anxiety and depression was
[sic] doing pretty well with medications. In a follow up visit with Dr. Ash in March
2016, she again reported she was doing very well. She reportedly felt her symptoms
may be returning resulting in an increase in her Abilify, though Dr. Ash noted an
appropriate emotional state and an exam noted she was pleasant, alert, and oriented,
and in no distress. A review of symptoms in April 2016 noted a euthymic mood,
with no signs of restlessness, no anxiety, no depression, and no psychological
symptoms. In July 2016, Dr. Ash noted her anxiety and depression continued to be
doing well with an appropriate emotional state and pleasant behavior in the exam.
In March 2017, she reported she was no longer taking gabapentin and trazodone as
she no longer had trouble sleeping, felt things were going well, and reported she
was doing well with her medication. An exam continued to note she was pleasant,
alert, oriented, and in no acute distress, and Dr. Ash noted a history of irritability
for which medications were helping and she was feeling better. Ongoing therapy
notes also indicate that the claimant continued to report improvement with the
medication and counseling, and while she reported stressors due to situational
factors, she was cooperative during sessions. The claimant indicated that she was
successful in meeting her goals of refraining from impulsive behavior and reducing
her anger.
(Id.).
It was proper for the ALJ to consider these inconsistencies when assessing Dr. Todorov’s
opinion. See, e.g., Urbanczyk v. Berryhill, No. CV 16-12139, 2017 WL 4925739, at *3–5 (E.D.
Mich. July 21, 2017), report and recommendation adopted sub nom. Urbanczyk v. Comm’r of Soc.
Sec., No. 16-12139, 2017 WL 4296606 (E.D. Mich. Sept. 28, 2017) (rejecting plaintiff’s argument
15
that the ALJ “played doctor” and finding that the ALJ properly considered evidence regarding
plaintiff’s social functioning, including the fact that he spent time with his grandchildren, was
cooperative during examinations, and had no problem following written instructions); Bouschor
v. Colvin, No. 2:15-CV-47, 2016 WL 336099, at *5 (W.D. Mich. Jan. 28, 2016) (finding that the
ALJ did not substitute his medical judgment for that of plaintiff’s doctor simply because he did
not assign great weight to the medical opinion regarding plaintiff’s mental health). Further, the
ALJ did not err in discounting portions of Dr. Todorov’s opinion that were based in large part on
Plaintiff’s self-reports. See, e.g., Johnson v. Colvin, No. cv 7:15-039-DCR, 2016 WL 3257124, at
*4– 5 (E.D. Ky. June 13, 2016) (citing Smith v. Comm’r of Soc. Sec. Admin., 564 F. App’x 758,
764 (6th Cir. 2014)).
Plaintiff also contends that the ALJ “cherry picked” the record to support her assessment
of Dr. Todorov’s opinion. (Doc. 8 at 13–14). In so arguing, Plaintiff asserts that “the only records
cited during this discussion were notes made by [her] primary caregiver.” (Id. at 13). Specifically,
Plaintiff complains that the ALJ did not discuss the following: (1) Plaintiff’s treatment at
Woodland Centers; and (2) the fact that she experienced a “significant return of symptoms and
positive exam findings occurring in late 2016.” (Doc. 8 at 13). Plaintiff’s cherry-picking argument
falls short.
To start, the ALJ considered Plaintiff’s treatment records from Woodland Centers. Most
notably, the ALJ cited to the exhibit containing these records when evaluating Dr. Todorov’s
opinion (Tr. 15, PAGEID #: 64) and when assessing the “paragraph B” criteria concerning
Plaintiff’s ability to interact with others (Tr. 16, PAGEID #: 65). Moreover, in analyzing the
record as a whole and assessing the severity of Plaintiff’s mental health conditions, the ALJ relied
on therapy notes from Woodland Centers. (See, e.g., Tr. 14, PAGEID #: 63 (citing Woodland
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Centers treatment notes, which provide that while Plaintiff expressed a depressed or angry mood
and affect, her behavior was adequate); id. (citing Woodland Centers treatment notes, which
provide that despite Plaintiff’s issues controlling her anger, she attempted to volunteer once a
month and reported a “big improvement” since starting medication); id. (citing Woodland Centers
treatment notes pertaining to Plaintiff’s marijuana use); Tr. 15, PAGEID #: 64 (citing Woodland
Centers treatment notes, which provide that despite Plaintiff’s reports of stressors due to situational
factors, Plaintiff was cooperative during sessions); Tr. 17, PAGEID #: 66 (same); Tr. 15,
PAGEID #: 64 (citing Woodland Centers treatment notes indicating that Plaintiff continued to
report improvement with medication and counseling); id. (citing Woodland Centers treatment
notes indicating that Plaintiff was successful in meeting her goals of refraining from impulsive
behavior and reducing anger)). Therefore, despite Plaintiff’s allegation that the ALJ overlooked
records from Woodland Centers, the ALJ’s opinion demonstrates otherwise. Accordingly, the
Court finds that the ALJ properly considered this evidence as a part of his overall decision. See
Durio v. Comm’r of Soc. Sec., No. 95-1089, 1996 WL 169362, at *2 (6th Cir. Apr. 10, 1996)
(explaining that the ALJ did not “ignore” evidence where he discussed it in his decision).
Moreover, Plaintiff’s cherry-picking argument is unpersuasive because the ALJ, in
reaching her ultimate conclusion, cited to and analyzed substantial evidence concerning Plaintiff’s
mental health symptoms. (See, e.g., Tr. 14, PAGEID #: 63 (noting that Plaintiff received treatment
for anxiety and depression, reported suicidal ideations and had issues with anger); id. (noting that
Plaintiff was treated at Riverside Hospital for her anxiety); id. (noting that Plaintiff expressed a
depressed or angry mood and affect); id. (noting that Plaintiff told Dr. Todorov that she had a
history of interpersonal difficulties, disruptive sleep, depression, and anxiety)). While Plaintiff
suggests otherwise, the Court finds that this is not a case where the ALJ overlooked the claimant’s
17
own allegations or medical evidence supporting an impairment. Instead, the ALJ weighed the
evidence in its entirety and concluded that Dr. Todorov’s opinion was entitled to little weight. See,
e.g., White v. Comm’r of Soc. Sec., 572 F.3d 272, 284 (6th Cir. 2009) (“[W]e see little indication
that the ALJ improperly cherry picked evidence; the same process can be described more neutrally
as weighing the evidence.”).
Finally, Plaintiff alleges that the ALJ, in rejecting Dr. Todorov’s opinion, failed to discuss
records supporting a “significant return” in 2016 of her mental health symptoms. (Doc. 8 at 13).
As a threshold matter, “an ALJ is not required to discuss all the evidence submitted, and an ALJ’s
failure to cite specific evidence does not indicate that it was not considered.” Dykes ex rel. Brymer
v. Barnhart, 112 F. App’x 463, 467 (6th Cir. 2004). See also Kornecky v. Comm’r of Soc. Sec.,
167 F. App’x 496, 508 (6th Cir. 2006) (holding that “[a]n ALJ can consider all the evidence
without directly addressing in his written decision every piece of evidence submitted by a party.”);
Hamper v. Comm’r of Soc. Sec., 714 F. Supp. 2d 693, 703 (E.D. Mich. 2010) (noting that an ALJ
is not required to “discuss every piece of evidence in the administrative record”).
In any event, the Court finds that substantial evidence supports the ALJ’s conclusion that
Plaintiff’s mental health symptoms were improving with treatment and medication. In particular,
the Court finds, based on its analysis of the record, that Plaintiff somewhat overstates the
“significant return” of her symptoms. While Plaintiff does not pinpoint specific records supporting
her argument, the Court, in giving Plaintiff the benefit of the doubt, assumes that she is referring
to her concern that her symptoms were returning in March 2016 (Tr. 449, PAGEID #: 503), her
reports to her therapist in January 2017 that she continued to struggle with anger and impulse
control (Tr. 797–98, PAGEID #: 852–53), and her reports in April 2017 that she was feeling “very
stressed” in anticipation of her upcoming disability benefits hearing (Tr. 865, PAGEID #: 920).
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However, the record also indicates that, during this time period, Plaintiff’s symptoms were
improving with medications and therapy. For example, on February 17, 2016, Plaintiff told her
therapist that she had assisted her friend after surgery and “agree[d] that she was able to “manage
remaining problems on her own with skills she has learned through therapy[.]” (Tr. 793, PAGEID
#: 848). At a July 2016 appointment with Dr. Ash, Plaintiff reported that her anxiety and
depression were doing well, and Dr. Ash noted Plaintiff’s pleasant behavior and appropriate
emotional state. (Tr. 441–42, PAGEID #: 495–96). And, during a March 13, 2017 appointment,
Plaintiff told Dr. Ash she no longer needed medication for sleep, felt things were going well, and
reported she was doing well with her medication. (Tr. 882, PAGEID #: 971). Dr. Ash’s exam
notes indicate that Plaintiff was pleasant, alert, oriented, and in no acute distress. (Tr. 883,
PAGEID #: 938).
Accordingly, while Plaintiff may disagree with the ALJ’s conclusion, the Court finds that
substantial evidence supports the ALJ’s assessment of Dr. Todorov’s opinion and further finds that
the ALJ did not selectively cite the record to reach that conclusion.
B.
Assessment of Plaintiff’s Mental Health Conditions
Plaintiff also contends that the ALJ failed to “substantially support” her conclusion that
Plaintiff’s mental health conditions are not severe. (Doc. 8 at 10). The Court finds that substantial
evidence supports the ALJ’s determination that Plaintiff’s depression and anxiety conditions are
not severe.
A claimant “bears the burden of demonstrating that he suffers from a medically
determinable physical impairment” as well as “the burden of showing a severe impairment by
medical evidence.” Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 559 (6th Cir. 2014); Watters
v. Comm’r of Soc. Sec. Admin., 530 F. App’x 419, 421 (6th Cir. 2013). The Sixth Circuit construes
19
the Step Two severity regulation as a “de minimis hurdle,” Rogers, 486 F.3d at 243 n. 2 (internal
quotation marks and citation omitted), intended to “screen out totally groundless claims.” Farris
v. Sec’y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985). Thus, if an impairment has
“more than a minimal effect” on the claimant’s ability to do basic work activities, the ALJ must
treat it as “severe.” Soc. Sec. Rul. 96–3p, 1996 WL 374181, at *1 (1996). Because the regulations
require an ALJ to consider both severe and non-severe impairments in the remaining steps of the
disability determination analysis, once a severe impairment is found, all impairments, regardless
of how they are classified, will be analyzed in the ALJ’s determination. See Dyer v. Colvin, No.
CV-14-156-DLB, 2016 WL 1077906, at *3 (E.D. Ky. Mar. 17, 2016). “For this reason, the Sixth
Circuit has consistently held that an ALJ does not commit reversible error when he or she decides
that some of claimant’s impairments are not severe, but finds that other impairments are severe
and proceeds with his or her analysis.” Id.
In this case, the issue is not whether this Court would come out differently on the severity
determination, but whether substantial evidence supports the ALJ’s finding. See Reed v. Colvin,
No. CIV. 13-54-GFVT, 2014 WL 318569, at *3 (E.D. Ky. Jan. 29, 2014) (“The limited nature of
substantial evidence review prevents the reviewing court from substituting its judgment for that of
the ALJ.”). Here, the Court finds that substantial evidence supports the ALJ’s classification of
Plaintiff’s anxiety and depressive disorders as non-severe.
Plaintiff, despite continuing to struggle with anger issues, had a positive response to
medication and therapy. (See, e.g., Tr. 536, PAGEID #: 500 (noting that Plaintiff told Dr. Ash that
her depression was well controlled with medications and that, because of her medications, she felt
like she could get out of bed in the morning, bathe, get dressed, and tend to her daily activities);
Tr. 760, PAGEID #: 815 (noting that Plaintiff’s symptoms had improved since increasing her
20
medications and that she had enjoyed spending the previous day with her sister, stating, “[i]t felt
great to “get some sun” and plant flowers); Tr. 761, PAGEID #: 816 (noting that Plaintiff attributed
her change in attitude to medications and therapy); Tr. 762–63, PAGEID #: 817–18 (noting that
Plaintiff stated, “I swear it’s the Abilify that’s made it better.”); Tr. 767, PAGEID #: 822 (listing
“several successes” between therapy visits); Tr. 778, PAGEID #: 833 (noting that Plaintiff told her
therapist that she was doing “so much better than when [she] first started coming” and that she
“feels so good right now”); Tr. 793, PAGEID #: 848 (noting that Plaintiff agreed that she was able
to “manage remaining problems on her own with skills she has learned through therapy”); Tr. 882,
PAGEID #: 971 (noting that Plaintiff felt she no longer needed medication for sleep, felt things
were going well, and reported she was doing well with her medication)). Moreover, Plaintiff cared
for her grandchildren (Tr. 61, PAGEID #: 110), volunteered in her community, albeit not as
frequently as she intended (Tr. 771, PAGEID #: 826), and enjoyed spending time outdoors with
her family (Tr. 760, PAGEID #: 815).
At bottom, the Court finds that substantial evidence supports the ALJ’s finding that
Plaintiff’s mental health conditions are not severe. In formulating her RFC, the ALJ properly
considered Plaintiff’s mental health conditions, in addition to her other severe and non-severe
conditions. Accordingly, Plaintiff has failed to demonstrate reversible error. See, e.g., Born v.
Berryhill, No. 3:14-cv-01946, 2017 WL 2376921, at *6–8 (M.D. Tenn. June 1, 2017) (holding that
while “the court may not have reached the same decision, given the de minimis threshold for
showing a severe impairment constitutes reversible error” the ALJ properly proceeded to the
remaining steps of the analysis and “considered all of [plaintiff’s] impairments, including his
mental impairments”).
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Finally, Plaintiff, cursorily suggests that the ALJ erred because her RFC “did not contain
any mental health limitations on [her] capacity to perform work.” (Doc. 8 at 11). As an initial
matter, the Court finds that Plaintiff has likely waived her RFC argument. The Sixth Circuit “has
consistently held that arguments not raised in a party’s opening brief as well as arguments adverted
to in only a perfunctory manner are waived.” Kuhn v. Washtenaw Count, 709 F.3d 612, 624 (6th
Cir. 2013). See also Rice v. Comm’r of Soc. Sec., 169 F. App’x 452, 454 (6th Cir. 2006) (finding
that a plaintiff’s failure to develop an argument challenging an ALJ’s conclusion amounts to a
waiver of that argument); Williams v. Comm’r of Soc. Sec., No. 1:16-CV-347, 2017 WL 65837, at
*6–7 (S.D. Ohio Jan. 6, 2017), report and recommendation adopted, No. 1:16CV347, 2017 WL
432808 (S.D. Ohio Jan. 31, 2017) (holding that plaintiff waived her argument challenging the
ALJ’s credibility finding because she had “neither legally nor factually developed” that argument).
Here, Plaintiff’s one-sentence reference to the ALJ’s RFC finding is “neither legally nor factually
developed.” See id.
Regardless, even if Plaintiff has not waived her argument challenging the ALJ’s RFC, the
Court finds that substantial evidence supports the ALJ’s RFC finding. “[T]he case law does not
require an ALJ to include limitations for non-severe impairments; the case law requires the ALJ
to consider the claimant’s non-severe impairments.” Lewis v. Comm’r of Soc. Sec. Admin., No.
5:17-CV-2438, 2018 WL 4615961, at *9 (N.D. Ohio Sept. 26, 2018) (emphasis in original)
(citations omitted). Here, as discussed in detail above, the ALJ considered Plaintiff’s non-severe
impairments when weighing the evidence as a whole and formulating her RFC assessment. See,
e.g., Born, 2017 WL 2376921, at *7 (noting that, while the ALJ did not include any mental health
limitations in the RFC, the ALJ properly summarized relevant record evidence, including
plaintiff’s inability to sleep due to panic attacks, plaintiff’s prescription for Xanax, and plaintiff’s
22
own testimony regarding his mood swings, and concluded that the evidence as a whole supported
her RFC finding). Here, the ALJ properly considered Plaintiff’s mental health limitations when
formulating her RFC, and the Court finds that substantial evidence supports her finding.
Ultimately, the Court must decide if substantial evidence supports the ALJ’s conclusion.
Indeed, “[i]f substantial evidence supports the Commissioner’s decision, this Court will defer to
that finding even if there is substantial evidence in the record that would have reached an opposite
conclusion.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 592, 595 (6th Cir. 2005) (internal
quotations omitted). Taking into account all that the ALJ considered, substantial evidence supports
her RFC determination.
IV.
CONCLUSION
Based on the foregoing, it is RECOMMENDED that that the Court OVERRULE
Plaintiff’s Statement of Errors and AFFIRM the Commissioner’s decision.
V.
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 finding or recommendations to which objection is made, together with supporting
authority for the objection(s). A District Judge of this Court shall make a de novo determination
of those portions of the Report or specific proposed findings or recommendations to which
objection is made. Upon proper objection, a District 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).
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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).
IT IS SO ORDERED.
Date: November 13, 2018
/s/ Kimberly A. Jolson
KIMBERLY A. JOLSON
UNITED STATES MAGISTRATE JUDGE
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