Jones, Sr v. Commissioner of Social Security Administration

Filing 12

REPORT AND RECOMMENDATIONS - IT IS THEREFORE RECOMMENDED THAT: 1.The ALJs decision and non-disability determination be AFFIRMED; and 2. The case be terminated on the docket of this Court. Objections to R&R due by 11/15/2013. Signed by Chief Magistrate Judge Sharon L Ovington on 10/28/2013. (rms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
WAYMON JONES, SR.,
Plaintiff,

:
:
Case No. 3:12cv00392

vs.

:

CAROLYN COLVIN,
Acting Commissioner of the Social
Security Administration,
Defendant.

District Judge Thomas M. Rose
Chief Magistrate Judge Sharon L. Ovington

:
:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Waymon Jones, Sr. brings this case challenging the Social Security

Administration’s denial of his applications for Supplemental Security Income (SSI) and
Disability Insurance Benefits (DIB). Plaintiff filed his SSI and DIB applications on May
20, 2008, asserting that he has been under a “disability” since November 5, 2007.
(PageID## 215-18, 219-25). Plaintiff claims to be disabled due to numerous heart related
problems. (See PageID# 246).
After various administrative proceedings, Administrative Law Judge (ALJ) Carol
K. Bowen denied Plaintiff’s applications based on her conclusion that Plaintiff’s

1

Attached hereto is NOTICE to the parties regarding objections to this Report and
Recommendations.

1

impairments did not constitute a “disability” within the meaning of the Social Security
Act. (PageID## 80-91). The ALJ’s nondisability determination and the resulting denial
of benefits later became the final decision of the Social Security Administration. This
Court has jurisdiction to review the administrative denial of his applications. See 42
U.S.C. §§ 405(g), 1383(c)(3).
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #7), the
Commissioner’s Memorandum in Opposition (Doc. #10), Plaintiff’s Reply (Doc. # 11),
the administrative record (Doc. # 6), and the record as a whole.
II.

Background
A.

Plaintiff’s Vocational Profile and Testimony2

Plaintiff was 42 years old on his alleged disability onset date, which defined him
as a “younger individual” for purposes of resolving his DIB and SSI claims. See 20
C.F.R. §§ 404.1563(c); 416.963(c)3; (PageID## 89, 240). Plaintiff has a high school
education, see 20 C.F.R. § 404.1564(b)(4); (PageID# 251), and past relevant
employment as a warehouse worker, sheet metal worker, street sweeper operator, truck
driver, duct installer, and industrial truck operator. (PageID## 89, 247).
Plaintiff testified at the administrative hearing that he is forgetful, has shortness of
breath, and experiences back pain. (PageID# 105). He stated his left leg will start

2

As resolution of the issues presented in this case does not involve vocational expert testimony,
the Court will, accordingly, not summarize such testimony.
3

The remaining citations will identify the pertinent DIB Regulations with full knowledge of the
corresponding SSI/DIB Regulations.

2

swelling or throbbing if he sits too long. Id. He stated he experiences episodes of chest
pain lasting from 30 to 60 minutes, approximately two or three times per week. He also
testified these episodes are generally triggered by stress and depression. (PageID# 106).
He stated he experiences panic attacks about four times per week. Id.
As to his activities of daily living, Plaintiff reported that he sees his wife off to
work, watches television, and will “just stir around the house.” (PageID# 108). Plaintiff
testified he does not perform any household chores. He tries to mow the grass, but it
takes him three or four days to complete. Id. He also testified that he does not sleep well,
obtaining about four hours of sleep a night. (PageID# 112).
Plaintiff estimated that he can only stand or sit for about 30 to 60 minutes before
needing to change positions and can lift about ten pounds. (PageID# 113). He also
testified he started experiencing problems with his eyesight after he started taking his
medications. (PageID# 116).
B.

Treatment History and Relevant Medical Opinions

Plaintiff’s medical history includes an acute inferior myocardial infarction in
November 2007, in which he underwent stenting to his right coronary artery. (PageID##
341-66). A January 2008 stress cardiolite registered at 10.3 mets and was stopped due to
shortness of breath and fatigue, the EKG portion was negative for ischemia. (PageID##
383-85). In February 2008, Plaintiff was found to have normal heart function with an
ejection fraction greater than 65% with no obvious regional wall motion abnormalities.
(PageID# 380).
3

Plaintiff was re-catheterized in May 2008 and underwent percutaneous
transluminal coronary angioplasty (PTCA) and stenting of his circumflex artery, as well
as a repeat PTCA of the narrowed arrow and the distal aspect of the stent to the right
coronary artery. (PageID## 474, 544). An exercise study performed on July 22, 2008
was negative for ischemia and his ejection fraction was 70%. (PageID# 545).
In April 2009, Plaintiff underwent a cardiac catheterization and was found to be
“relatively well revascularized,” with no findings that were hemodynamically significant
and normal left ventricular systolic function. (PageID## 667-69). Plaintiff’s cardiologist
assessed recurrent chest pain consistent with angina. Plaintiff’s symptoms had been
exertional in nature, and he was found to have coronary artery disease, status
post-multiple percutaneous coronary interventions to his right coronary artery and
circumflex arteries. (PageID# 666).
Plaintiff relies on the opinions of his treating primary care physician, Kwasi A.
Nenonene, M.D. The record shows that Dr. Nenonene treated Plaintiff from January
2002 through, at least, February 2010. (PageID## 526-41, 584-95, 802-46). Dr.
Nenonene’s clinical notes reveal that Plaintiff was seen for shortness of breath, tightness
in chest, emergency room follow up, and lower back pain. Id.
Dr. Nenonene completed a Basic Medical form on behalf of the Ohio Department
of Job and Family Services on October 15, 2008. Dr. Nenonene indicated that Plaintiff’s
medical conditions include hypertension, coronary artery disease, hyperlipidemia, an
anxiety disorder, left shoulder pain, and lower back pain. Plaintiff’s status was reported
4

as “good/stable [with treatment].” Dr. Nenonene found that Plaintiff is limited to lifting
no more than 6-10 pounds, and to standing, walking and sitting for only 1-2 hours without
interruption, per 8-hour workday. Additionally, Dr. Nenonene found Plaintiff was
moderately limited in pushing/pulling, bending, reaching and handling but not
significantly limited in repetitive foot movements. Dr. Nenonene based his opinion on
physical examinations, consultations and the medical records. Dr. Nenonene concluded
that Plaintiff would be unemployable for 12 months or more. (PageID## 613-14).
Dr. Nenonene completed an updated Basic Medical form in May 2010. Plaintiff’s
status was reported as “poor but stable.” Dr. Nenonene found that Plaintiff is limited to
lifting no more than 6-10 pounds, and from standing, walking and/or sitting no more than
2 hours per day on a sustained basis, up to 6 hours per 8-hour work day. Dr. Nenonene
opined that Plaintiff had moderate limitations in pushing, pulling, bending, reaching, and
handling, but was not significantly limited with repetitive foot movements. Again, Dr.
Nenonene opined that Plaintiff was unemployable. (PageID## 721-23).
That same day, Dr. Nenonene completed an Ability to Work assessment form in
which he indicated that Plaintiff could only stand/walk and sit for ½ to 2 hours in an 8hour work day. Dr. Nenonene opined that Plaintiff could not use his feet for repetitive
movement, and could never lift over 50 pounds, bend, squat, crawl or climb. (PageID#
724).
Plaintiff began receiving mental health treatment at Day-Mont West Behavioral
Health Care Center on January 23, 2009. (PageID## 622-36). At the time of his initial
5

evaluation, Plaintiff was found to have a flat affect and depressed mood, but good eye
contact, clear speech, normal thought processes, a cooperative demeanor, and normal
judgment and insight. (PageID# 633). Plaintiff was diagnosed with dysthymic disorder
and was assigned a Global Assessment of Functioning (GAF) score of 63.4 (PageID#
631).
At his initial psychiatric evaluation with treating psychiatrist, Dr. Wee, on January
30, 2009, it was reported that Plaintiff had only mild limitations with attention and
concentration. (PageID## 617-20). Upon mental status examination, his affect was
noted as constricted with moderate depression. Plaintiff had good eye contact, clear
speech, normal thought processes, a cooperative demeanor, and normal judgment and
insight. Id. He was diagnosed with a panic disorder and dysthymic disorder and started
on Cymbalta.
At his first follow-up appointment on February 10, 2009, Plaintiff reported that
Cymbalta was helping and things “don’t seem quite as bad.” (PageID# 621). The
records from Day-Mont revealed that Plaintiff continued receiving counseling at that
facility and Dr. Wee continued to evaluate his medications. (PageID## 616-43, 739-99).

4

Global Assessment of Functioning (“GAF”) is a tool used by health-care professionals to assess
a person’s psychological, social, and occupational functioning on a hypothetical continuum of mental
illness. It is, in general, a snapshot of a person’s “overall psychological functioning” at or near the time
of the evaluation. See Martin v. Comm’r of Soc. Sec., 61 Fed.Appx. 191, 194 n.2 (6th Cir. 2003); see also
Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision (“DSM-IV-TR”) at 32-34.
A GAF score of 61-70 indicates that a person has only mild symptoms or some difficulty with social,
occupational or school functioning, but such a person can generally function pretty well and have some
meaningful interpersonal relationships. Id.

6

As to his mental impairments, Plaintiff relies on the opinion of his treating
psychiatrist, Dr. Wee, who along with treating counselor, Margaret Barker, LSW
completed interrogatories on April 23, 2010. (PageID## 711-20). Dr. Wee indicated that
he treated Plaintiff since January 30, 2009 for stress and panic attacks since his heart
attack, noting that Plaintiff isolates himself in his basement, and that he avoids people.
According to Dr. Wee and Counselor Barker, Plaintiff avoids public places; has a short
temperament; has decreased memory and concentration; and has paranoia and irritability.
Dr. Wee opined that Plaintiff cannot be prompt and regular in attendance, and that he
would not be able to respond appropriately to supervisors, co-workers, and customary
work pressures. (PageID# 714). Further, it was noted that Plaintiff would not be able to
withstand the pressure of meeting normal work standards of work productivity and work
accuracy without significant risk of physical and psychological decompensation or
worsening of his physical and mental impairments. (PageID# 715). Likewise, Plaintiff
would also not be able to sustain attention or concentration on his work to meet normal
work standards of work productivity and work accuracy, and would not be able to
understand, remember, and carry out simple instructions without requiring very close
supervision. (PageID# 715). Plaintiff would have trouble behaving in an emotionally
stable manner, relating predictably in social situations, and would not be reliable.
(PageID# 716). Dr. Wee also opined that Plaintiff would not be able to do the following:
maintain attention and concentration for extended periods (approximately 2 hour
segments); perform activities within a schedule, maintain regular attendance, and be
7

punctual within customary tolerances; complete a normal work day and work week
without interruptions from psychologically and/or physically based symptoms and
perform at a consistent pace without unreasonable numbers and length of rest periods;
respond appropriately to changes in the routine work setting; get along with co-workers
or peers without unduly distracting them or exhibiting behavior extremes; sustain
ordinary routine without special supervision; work in coordination with, or proximity to,
others without being unduly distracted by them; or accept instructions and respond
appropriately to criticism from supervisors. (PageID## 716-19).
Dr. Wee and Counselor Barker concluded that Plaintiff is markedly restricted in
activities of daily living; extremely restricted in difficulties maintaining social function;
and markedly restricted in deficiencies of concentration, persistence, or pace resulting in
failure to complete tasks in a timely manner. (PageID## 719-20). In May 2010, Plaintiff
reported being in a good mood and optimistic. (PageID# 745).
The Commissioner relies on the opinions of several non-treating medical
professionals. Lynne Torello, M.D., reviewed the file on behalf of the Ohio Bureau of
Disability Determination on November 24, 2008. (PageID## 605-12). Dr. Torello
concluded that Plaintiff could lift, carry, push and pull 20 pounds occasionally and 10
pounds frequently. (PageID# 606). Dr. Torello opined that Plaintiff could stand and/or
walk, as well as sit, for about 6 hours in an 8-hour workday. Id. Plaintiff could only
occasionally climb ramps/stairs, ladders, ropes, or scaffolds, and can only occasionally
balance, stoop, kneel, crawl, or crouch. (PageID# 607). Dr. Torello also found that
8

Plaintiff was to avoid concentrated exposure to temperature extremes. (PageID# 609).
Dr. Torello concluded that Plaintiff’s statements were only partially credible, noting that
Plaintiff reported being able to mow the lawn and workout. (PageID# 610). Another
state agency physician, Walter Holbrook, M.D., affirmed Dr. Torello’s assessment on
June 1, 2009. (PageID# 682).
After review of the medical record on April 13, 2009, Carl Tishler, Ph.D. assessed
Plaintiff’s mental condition. (PageID## 644-61). Dr. Tishler found Plaintiff had mild
restrictions in activities of daily living; moderate difficulties in social functioning and in
maintaining concentration, persistence, or pace; and no episodes of decompensation.
(PageID# 658).
Dr. Tishler found that Plaintiff was able to maintain a good relationship with his
wife and have good contact with his siblings. (PageID# 646). Dr. Tishler considered
Plaintiff’s allegations credible and supported by the “file findings.” He concluded that
Plaintiff was “capable of simple, repetitive tasks, which involves only superficial contact
with the public in a low stress work environment.” Id.
III.

Administrative Review
A.

“Disability” Defined

To be eligible for SSI or DIB a claimant must be under a “disability” within the
definition of the Social Security Act. See 42 U.S.C. §§ 423(a), (d), 1382c(a). The
definition of the term “disability” is essentially the same for both DIB and SSI. See
Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). Narrowed to its statutory
9

meaning, a “disability” includes only physical or mental impairments that are both
“medically determinable” and severe enough to prevent the applicant from (1) performing
his or her past job and (2) engaging in “substantial gainful activity” that is available in the
regional or national economies. See Bowen, 476 U.S. at 469-70 (1986).
A DIB/SSI applicant bears the ultimate burden of establishing that he or she is
under a disability. See Key v. Callahan, 109 F.3d 270, 274 (6th Cir. 1997); see Wyatt v.
Sec’y of Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992); see also Hephner v.
Mathews, 574 F.2d 359, 361 (6thCir. 1978).
B.

ALJ Bowen’s Decision

ALJ Bowen resolved Plaintiff’s disability claim by using the five-Step
sequential evaluation procedure required by Social Security Regulations. See PageID##
81-82; see also 20 C.F.R. § 404.1520(a)(4). Her pertinent findings began at Step 2 of the
sequential evaluation where she concluded that Plaintiff had the following severe
impairments: coronary artery disease status post myocardial infarction and stenting;
dysthymic disorder; panic disorder; and COPD (chronic obstructive pulmonary disease).
(PageID# 82).
The ALJ concluded at Step 3 that Plaintiff did not have an impairment or
combination of impairments that met or equaled the criteria in the Commissioner’s
Listing of Impairments. (PageID# 83).

10

At Step 4, the ALJ concluded that Plaintiff retained the residual functional
capacity (RFC) to perform light work,5 subject to the following limitations:
no climbing ladders, ropes or scaffolds; occasional climbing ramps or stairs;
occasional balancing, stooping, kneeling, crouching and crawling; no
overhead reaching; clean-air, temperature-controlled environment; no
hazardous machinery or unprotected heights; simple, routine, and repetitive
tasks in a low-stress job (i.e., only occasional changes in work-setting, no
hazardous conditions, and no production-rate pace demands, and no public
interaction) with superficial interaction with co-workers with no tandem
tasks and no “over the shoulder” supervision.
(PageID# 85).
The ALJ concluded at Step 4 that Plaintiff is unable to perform his past relevant
work. (PageID# 89). At Step 5, the ALJ concluded that Plaintiff could perform a
significant number of jobs in the national economy. (PageID## 89-90).
The ALJ’s findings throughout her sequential evaluation led her to ultimately
conclude that Plaintiff was not under a disability and was therefore not eligible for DIB or
SSI. (PageID## 90-91).
IV.

Judicial Review
Judicial review of an ALJ’s decision proceeds along two lines: “whether the ALJ

applied the correct legal standards and whether the findings of the ALJ are supported by
substantial evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406
(6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F3d 742, 745-46 (6th Cir. 2007).

5

The Regulations define light work as involving the ability to lift “no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to 10 pounds....” 20 C.F.R. §404.1567(b).

11

Review for substantial evidence is not driven by whether the Court agrees or
disagrees with the ALJ’s factual findings or by whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Soc. Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th
Cir. 1999). Instead, the ALJ’s factual findings are upheld if the substantial evidence
standard is met – that is, “if a ‘reasonable mind might accept the relevant evidence as
adequate to support a conclusion.’” Blakley, 581 F.3d at 407 (quoting Warner v. Comm’r
of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial evidence consists of
“more than a scintilla of evidence but less than a preponderance...” Rogers, 486 F.3d at
241.
The second line of judicial inquiry – reviewing for correctness the ALJ’s legal
criteria – may result in reversal even if the record contains substantial evidence
supporting the ALJ’s factual findings. Rabbers v. Comm’r of Soc. Sec., 582 F.3d
647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746. “[E]ven if supported by substantial
evidence, ‘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 in part
Bowen, 478 F.3d at 746, and citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
546-47 (6th Cir. 2004)).
V.

Discussion
A.

The Parties’ Contentions
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Plaintiff contends that the ALJ erred in her evaluation of the medical source
opinions. Specifically, Plaintiff argues that the ALJ failed to grant appropriate weight to
the opinion of his treating medical sources. (Doc. #7, PageID# 859). According to
Plaintiff, the overwhelming medical evidence supports the opinions of treating physician,
Dr. Nenonene, and treating psychiatrist, Dr. Wee, and the ALJ erroneously relied on the
opinions of the nonexamining State agency reviewers. (Id., PageID# 865). Plaintiff also
asserts that the combination of his physical and mental impairments, combined with side
effects from his medications and other aggravating factors, render him unable to work.
(Id., PageID# 868).
The Commissioner contends that substantial evidence supports the ALJ’s
determination that Drs. Nenonene and Wee’s opinions were not entitled to controlling
weight. (Doc. #10, PageID# 878). The Commissioner contends that the ALJ properly
noted that Dr. Wee’s assessment was deserving of little weight because it was “based
almost entirely on Plaintiff’s self-reporting” and not on clinical observation or objective
evidence. (Id., PageID# 879). In addition, according to the Commissioner, Plaintiff’s
treatment history was not consistent with his allegations of disabling mental health issues.
(Id., PageID## 881-82). Finally, the Commissioner argues that the ALJ properly relied
on Dr. Tishler’s assessment in determining Plaintiff’s mental RFC. (Id., PageID## 88283).

13

As to Dr. Nenonene’s opinions, the Commissioner argues that they were internally
inconsistent, inconsistent with his treatment notes, extreme, and not consistent with the
objective medical evidence. (Id., PageID## 885-87).
As discussed below, the Court finds the ALJ’s decision is supported by substantial
evidence and should be affirmed.
B.

Weighing Medical Source Opinions

The Sixth Circuit has held that claimants are “entitled to receive good reasons for
the weight accorded their treating sources independent of their substantive right to receive
disability benefits.” Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 875–76 (6th Cir. 2007);
see Cole v. Astrue, 661 F.3d 931, 937–38 (6th Cir. 2011); Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 544 (6th Cir. 2004). “[T]he procedural requirement exists, in part, for
claimants to understand why the administrative bureaucracy deems them not disabled
when physicians are telling them that they are.” Smith, 482 F.3d at 876; see Gayheart v.
Comm’r of Soc. Sec., 710 F.3d 365, 368 (6th Cir. 2013).
Generally, “the opinions of treating physicians are entitled to controlling weight.”
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 540 (6th Cir. 2007), citing Walters v.
Comm’r of Soc. Sec., 127 F.3d 525, 529-30 (6th Cir. 1997). However, “‘[i]t is an error to
give an opinion controlling weight simply because it is the opinion of a treating source if
it is not well-supported by medically acceptable clinical and laboratory diagnostic
techniques or if it is inconsistent with the other substantial evidence in the case record.’”
Blakley, 582 F.3d at 406, quoting Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *2 (July 2,
14

1996). In Wilson, 378 F.3d at 546, the Sixth Circuit noted that a treating physician’s
opinion can be discounted if: (1) it is not supported by medically acceptable clinical and
laboratory diagnostic techniques; (2) it is inconsistent with substantial evidence in the
record; (3) it does not identify the evidence supporting its finding; and (4) if it fares
poorly when applying the factors listed in 20 C.F.R. § 404.1527(d)(2), which include,
inter alia, the length and frequency of examinations, the amount of evidence used to
support an opinion, the specialization of the physician, and consistency with the record.
Finally, the Commissioner reserves the power to decide certain issues, such as a
claimant’s residual functional capacity. 20 C.F.R. § 404.1527(e). 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(e); Bass v. McMahon, 499 F.3d
506, 511 (6th Cir. 2007).
As to non-treating medical sources, the Regulations do not permit an ALJ to
automatically accept or reject their opinions. See id at *2-*3. The Regulations explain,
“[i]n deciding whether you are disabled, we will always consider the medical opinions in
your case record together with the rest of the relevant evidence we receive.” 20 C.F.R.
§404.1527(b). To fulfill this promise, the Regulations require ALJs to evaluate nontreating medical source opinions under the factors set forth in § 404.1527(d) including, at
a minium, the factors of supportability, consistency, and specialization. See 20 C.F.R. §
404.1572(f); see also Soc. Sec. Ruling 96-6p, 1996 WL 374180 at *2-*3.
15

C.

Analysis

In considering Dr. Nenonene’s opinions, ALJ Bowen reviewed the record and
medical evidence before her and concluded that Dr. Nenonene’s opinions were entitled to
“little weight” finding them “somewhat disproportionate to objective record.” (PageID#
88). The ALJ noted that Dr. Nenonene’s October 2008 assessment “says the claimant is
in good/stable condition and the sitting, standing, walking, and lifting limitations are not
supported by objective findings.” Id. The ALJ went to note that Dr. Nenonene’s May
2010 report “says the claimant is in poor, but stable condition.” Id. The ALJ cited her
impression that the sitting, standing, walking, and lifting limitations suggested by Dr.
Nenonene are not representative of someone who is disabled. Id. A review of the ALJ’s
decision indicates that she applied the correct legal criteria in assessing the medical
source opinion of Dr. Nenonene.
Dr. Nenonene completed two functional capacity forms in May 2010. See
PageID## 721-23, 724. On the first assessment, Dr. Nenonene opined that Plaintiff was
“not significantly limited” with repetitive foot movements, and on the other, he opined
that Plaintiff could not use his feet for repetitive movement at all. (Compare PageID#
722 to PageID# 724). Also, on the Basic Medical form completed in May 2010, Dr.
Nenonene opined that Plaintiff had moderate limitations in pushing, pulling, bending,
reaching, and handling, whereas, on the “Ability to Work” form completed that same day,
Dr. Nenonene opined that Plaintiff could never do these things. Id. Dr. Nenonene
consistently reported that Plaintiff had no greater than “moderate” limitations in his
16

ability to perform work-related tasks, yet nonetheless concluded that Plaintiff is
“unemployable.” (See PageID## 613-14, 721-23, 724). Thus, Dr. Nenonene’s opinion
was internally inconsistent, which is a proper basis for which an ALJ may discredit a
medical opinion. See Ledford v. Astrue, 311 F. App’x 746, 754 (6th Cir. 2008).
Moreover, as the ALJ properly noted, Dr. Nenonene’s conclusion that Plaintiff is disabled
is inconsistent with his treatment notes indicating mostly normal physical examination
findings, including clear lungs, normal heart, normal blood pressure, and normal
neurological findings. (PageID## 526-41, 584-95, 802-46). Where a physician’s opinion
is not accompanied by the kinds of findings of clinical and diagnostic evidence required
to support a doctor’s opinion that a claimant has disabling limitations, the ALJ is not
required to accept it. See 20 C.F.R. § 404.1527(c)(3) (“Supportability. The more a
medical source presents relevant evidence to support an opinion, particularly medical
signs and laboratory findings, the more weight we will give that opinion. The better an
explanation a source provides for an opinion, the more weight we will give that
opinion.”). Thus, Dr. Nenonene’s conclusory opinions were properly discounted by the
ALJ. Social Security Regulations place the burden on the claimant to produce evidence
to show the existence of a disability. 20 C.F.R. § 404.1512(a); Landsaw v. Sec’y of
Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986). Thus, given the lack of
supporting treatment records, the ALJ properly discounted Dr. Nenonene’s disability
finding. See White v. Comm’r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009)
(“Conclusory statements from physicians are properly discounted by ALJs.”). Given this
17

analysis, there is no basis for this Court to conclude that the ALJ failed to apply the
appropriate legal standards to Dr. Nenonene’s opinion.
In determining Plaintiff’s mental limitations, the ALJ restricted Plaintiff to work
that involves “simple, routine, and repetitive tasks in a low-stress job (i.e., only
occasional changes in work-setting, no hazardous conditions, and no production-rate pace
demands, and no public interaction) with superficial interaction with co-workers with no
tandem tasks and no ‘over the shoulder’ supervision,” in order to accommodate his
functional limitations resulting from his psychological impairments. See PageID# 85.
This is consistent with the limitations in the opinions provided by the reviewing
psychologist, Dr. Tishler, who concluded that Plaintiff was “capable of simple, repetitive
tasks, which involves only superficial contact with the public in a low stress work
environment.” (PageID# 646). The ALJ reasonably relied on Dr. Tishler’s medical
source opinions as she believed his opinion best reflected an evaluation of the record
evidence as a whole. (PageID# 87). See 20 C.F.R. § 404.1527(c)(4). The ALJ also gave
Plaintiff the benefit of the doubt regarding his subjective allegations and included
additional limitations restricting Plaintiff to work without public contact and reduced
interaction with co-workers and supervisors in the workplace. (PageID# 87).
The ALJ declined to afford controlling or deferential weight to Dr. Wee and
Counselor Barker’s ultimate conclusion that Plaintiff is markedly restricted in activities of
daily living; extremely restricted in difficulties maintaining social function; and markedly
restricted in deficiencies of concentration, persistence, or pace resulting in failure to
18

complete tasks in a timely manner. (PageID## 719-20). The ALJ based her decision on
the following rationale:
Treating psychiatrist and counselor provided a medical source statement
noting that the claimant must avoid public/crowded areas due to panic
attacks (Exhibit 27F). A lot of this report recounts various subjective
complaints and aspects of the claimant’s physical issues that are outside the
psychiatric range. However, he was nonetheless assessed as markedly to
extremely impaired in functioning. Given that he sees his therapist only
monthly and psychiatrist every 8 weeks (he did see the psychiatrist monthly
at first) and there has been no reported need for crisis intervention or
hospitalization these ratings – which would suggest a listing-level mental
impairment – cannot be given significant weight.
(PageID# 88).
Accordingly, the ALJ articulated good reasons that were supported by substantial
evidence for declining to adopt the disability findings of Dr. Wee and Counselor Barker.
Plaintiff also urges in his Statement of Errors that in making Plaintiff’s RFC
finding, the ALJ did not fully account for the combination of his physical and mental
impairments. (Doc. #7, PageID# 863).
In determining whether a claimant is capable of working, the ALJ must consider
“the combined effect of all of the claimant’s impairments without regard to whether any
such impairment, if considered separately, would be of sufficient severity to render the
claimant disabled.” Walker v. Sec’y of Health & Human Servs., 980 F.2d 1066, 1071 (6th
Cir. 1992). However, the ALJ does not necessarily need to provide a detailed “combined
effects” analysis. See Loy v. Sec’y of Health & Human Servs., 901 F.2d 1306, 1310 (6th
Cir. 1990). “An ALJ’s individual discussion of multiple impairments does not imply that

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he failed to consider the effect of the impairments in combination.” Id. Instead, it is
sufficient for the ALJ to refer to the claimant’s “impairments” (plural) and “combination
of impairments.” Id.
Here, the ALJ’s decision shows that she properly considered the combined effects
of Plaintiff’s physical and mental impairments. The ALJ determined that, “[t]he claimant
does not have an impairment or combination of impairments that meets or medically
equals one of the listed impairments . . . .” (PageID# 83). Similarly, the ALJ states,
“reports note that some of claimant’s chest pain and other physical complaints may be
attributable to anxiety attacks. Low stress environment and the additional restrictions as
discussed below are incorporated to address claimant’s mental issues and at the same time
avoid exacerbating cardiac issues.” (PageID# 87). Moreover, in determining Plaintiff’s
RFC, the ALJ considered both Plaintiff’s physical and mental impairments. Due to
Plaintiff’s physical impairments, the ALJ restricted Plaintiff to jobs with no climbing
ladders, ropes or scaffolds; only occasional climbing ramps or stairs; only occasional
balancing, stooping, kneeling, crouching and crawling; no overhead reaching; clean-air,
temperature-controlled environment; and no hazardous machinery or unprotected heights.
(PageID# 85). In light of Plaintiff’s dysthymic disorder and panic disorder, the ALJ
limited Plaintiff’s RFC to unskilled work. (PageID# 90). Accordingly, the ALJ’s
decision demonstrates that Plaintiff’s mental and physical impairments were considered
collectively. See Gooch v. Sec’y of Health & Human Servs., 833 F.2d 589, 592 (6th Cir.
1987). This reasoned analysis is supported by substantial evidence.
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The Court finds the ALJ’s determination not to give the opinions of Drs. Nenonene
and Wee controlling or deferential weight is well-supported by substantial evidence, and
her reasons for discrediting their opinions are adequately set forth in the decision. See
Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Further, the functional
limitations resulting from Plaintiff’s impairments are adequately addressed by the ALJ’s
RFC assessment. As such, the Court is not free to re-weigh the medical source opinions
or to resolve other evidentiary conflicts. See Buxton v. Halter, 246 F.3d 762, 773 (6th
Cir. 2001)(“there is a ‘zone of choice’ within which the Commissioner can act, without
the fear of court interference.”); see also Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir.1999) (“Even if the evidence could also support another conclusion, the
decision of the Administrative Law Judge must stand if the evidence could reasonably
support the conclusion reached.”). In such circumstances, the Court is required to affirm
the ALJ’s conclusion that Plaintiff is not disabled. See id.
IT IS THEREFORE RECOMMENDED THAT:
1.

The ALJ’s decision and non-disability determination be AFFIRMED; and

2.

The case be terminated on the docket of this Court.

October 28, 2013
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge

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NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to the proposed findings and recommendations within fourteen days after
being served with this Report and Recommendations. Pursuant to Fed. R. Civ. P. 6(d),
this period is extended to seventeen days because this Report is being served by one of
the methods of service listed in Fed. R. Civ. P. 5(b)(2)(C), (D), (E), or (F). Such
objections shall specify the portions of the Report objected to and shall be accompanied
by a memorandum of law in support of the objections. If the Report and
Recommendations are based in whole or in part upon matters occurring of record at an
oral hearing, the objecting party shall promptly arrange for the transcription of the record,
or such portions of it as all parties may agree upon or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on
appeal. See, United States v. Walters, 638 F. 2d 947 (6th Cir. 1981); Thomas v. Arn, 474
U.S. 140 (1985).

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