Hess v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATIONS: The Commissioner's non-disability determination be affirmed, and the case be terminated on the docket of this Court. Objections to R&R due by 12/28/2015. Signed by Chief Magistrate Judge Sharon L. Ovington on 12-10-15. (mcm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
SHIELA D. HESS,

:

Plaintiff,

:
Case No. 3:14cv00401

vs.

:

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

:

District Judge Walter Herbert Rice
Chief Magistrate Judge Sharon L. Ovington

:
:

REPORT AND RECOMMENDATIONS1

I.

Introduction
Plaintiff Shiela D. Hess brings this case challenging the Social Security

Administration’s denial of her applications for Disability Insurance Benefits and
Supplemental Security Income. She asserted in her applications that she was under a
benefits-qualifying disability, starting on February 28, 2010, due (in part) to mental-health
problems. (Doc. #9, PageID #251). As the evidence developed, it became apparent that
Plaintiff’s health problems included affective disorder and anxiety disorder. Administrative
Law Judge Irma J. Flottman denied Plaintiff’s applications mainly because she found that
Plaintiff’s impairments did not constitute a benefits-qualifying disability. Id. at 53-65.

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

The case is presently before the Court upon Plaintiff’s Statement of Specific Errors
(Doc. #10), the Commissioner’s Memorandum in Opposition (Doc. #13), Plaintiff’s Reply
(Doc. #14), the administrative record (Doc. #9), and the record as a whole. Plaintiff seeks an
Order remanding this matter for benefits or, alternatively, further administrative
proceedings. The Commissioner seeks an Order affirming the ALJ’s decision.
II.

Background
A.

Plaintiff and Her Testimony

On the date Plaintiff’s claimed disability began, she was 37 years old. The Social
Security Administration therefore considered her to be a “younger person.” See 20 C.F.R.
§§ 404.1563(c), 416.963(c).2 She has a “limited” education. 20 C.F.R. § 404.1564(b)(3).
Plaintiff focuses her challenge to the ALJ’s assessment of her mental-work abilities
and limitations. During the ALJ’s hearing, Plaintiff testified that her long-term physician,
Dr. Aziz-Khan,3 was treating her for bipolar disorder. Her symptoms include crying a lot,
getting agitated, and difficulty being around other people. She also experiences depression.
She takes numerous prescription medications including, in part, Trazadone, Xanax, Lithium,
and Risperdal plus medications for chronic obstructive pulmonary disease. Plaintiff
explained that the medications cause fatigue and put her “down to where like I’m lazy and

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The remaining citations will identify the pertinent regulations for disability insurance benefits
with full knowledge of the corresponding regulations for supplemental security income.
3

The parties’ respective briefs refer to Dr. Khan and Dr. Aziz-Kahn. There is no dispute in the
record that Dr. Kahn or Dr. Aziz-Kahn are the same physician.

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can’t motivate.” (Doc. #9, PageID #79). Plaintiff explained that her difficulty being
around others is due to her lack of trust, and she knows people are talking about her. Id. at
80. She went to counseling once, about a year before the ALJ’s hearing, but she did not
return after the counselor told her that everything was her fault. She has difficulty getting
along with family members and has a lot of family problems.
Plaintiff does not belong to any organizations. She does not attend church. Once a
month she copies a recipe from a magazine. She watches television a little bit, every
evening. She has some difficulty focusing on the programs she watches because she’ll
“start zoning out ...,” id. at 89, and can’t remember what people say.
B.

Medical Evidence

Dr. Aziz-Khan completed several assessments regarding Plaintiff’s mental residual
functional capacity, for the purpose of disability determination by the Ohio Department of
Jobs and Family Services. The first was in early March 2010. Dr. Aziz-Khan checkmarked boxes to indicate her opinion that Plaintiff had marked limitation in 11 work-related
areas. Id. at 317. Fourteen months later, in May 2011, Dr. Aziz-Khan again completed the
same form but this time identified only 2 areas of marked limitation. Dr. Aziz-Khan opined
that Plaintiff was markedly limited (1) in her ability to accept instructions and criticism
from supervisors, and (2) her ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods. Id. at 316.

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In November 2011, Dr. Aziz-Khan completed the same form and again found
Plaintiff to have some markedly limited mental-work abilities. Dr. Aziz-Khan believed that
Plaintiff was markedly limited in 7 work-related abilities, and moderately limited in an
additional 7 areas. Id. at 360.
Plaintiff’s long-term treating physician answered written interrogatories in January
2011. She diagnosed Plaintiff with depression and panic attacks. She noted that Plaintiff
was taking Xanax. She indicated that Plaintiff was responding “Great” to prescribed
therapy, although she did not elaborate further. Id. at 313. And she noted that Plaintiff was
not having any issues of compliance that interfere with her treatment.
A detailed description of Plaintiff’s remaining medical records and medical-opinions
is unnecessary because the undersigned has reviewed the entire administrative record and
because Plaintiff and the ALJ have discussed the pertinent records in detail. The
Commissioner, moreover, relies on the ALJ’s decision.
III.

“Disability” Defined and the ALJ’s Decision
To be eligible for Disability Insurance Benefits or Supplemental Security Income 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 meaning, a “disability” includes only physical or mental
impairments that are both “medically determinable” and severe enough to prevent the

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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).
To determine whether Plaintiff was under a benefits-qualifying disability, ALJ
Flottman applied the Social Security Administration’s 5-Step sequential evaluation
procedure. See 20 C.F.R. § 404.1520(a)(4). Her more significant findings began at Step 2
where she described Plaintiff’s severe impairments as “chronic obstructive pulmonary
disease..., asthma, left knee arthopathies, affective disorder, and anxiety disorder.” (Doc.
#9, PageID #55). At Step 3, the ALJ concluded that Plaintiff’s impairments or combination
of impairments did not meet or equal the criteria in the Commissioner’s Listing of
Impairments.
The ALJ assessed at Step 4 Plaintiff’s mental residual functional capacity or the most
she could do in a work setting despite her impairments.4 Doing so, the ALJ found Plaintiff
“limited to simple, routine, and repetitive tasks; no interaction with the public; and only
occasional interaction with coworkers.” Id. at 58. The ALJ also found that Plaintiff had no
past relevant work experience.
At Step 5, the ALJ found that Plaintiff could perform a significant number of jobs
that exist in the national economy. Id. at 63-64. In the end, the ALJ’s finding at Step 5 led
her to ultimately conclude that Plaintiff was not under a benefits-qualifying disability.
4

See 20 C.F.R. §404.1545(a); see also Howard v. Commissioner of Social Sec., 276 F.3d 235,
239 (6th Cir. 2002).

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IV.

Judicial Review
The Social Security Administration’s denial of Plaintiff’s applications for benefits –

here, embodied in ALJ Flottman’s decision – is subject to judicial review along two lines:
whether the ALJ applied the correct legal standards and whether substantial evidence
supports the ALJ’s findings. Blakley v. Comm’r of Social Sec., 581 F.3d 399, 405 (6th Cir.
2009); see Bowen v. Comm’r of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007).
Reviewing the ALJ’s legal criteria for correctness may result in reversal even if the record
contains substantial evidence supporting the ALJ’s factual findings. Rabbers v. Comm’r of
Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
The substantial-evidence review does not ask whether the Court agrees or
disagrees with the ALJ’s factual findings or whether the administrative record contains
evidence contrary to those factual findings. Rogers v. Comm’r of Social Sec., 486
F.3d 234, 241 (6th Cir. 2007); see Her, 203 F.3d at 389-90. Instead, substantial evidence
supports the ALJ’s factual findings when “a ‘reasonable mind might accept the relevant
evidence as adequate to support a conclusion.’” Blakley, 581 F.3d at 406 (quoting Warner
v. Comm’r of Social 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.
V.

Discussion
Plaintiff contends that the ALJ’s decision should be reversed because substantial

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evidence does not support her assessment of Plaintiff’s mental residual functional capacity.
She maintains that the ALJ violated the treating physician rule in her evaluation of Dr. AzizKahn’s opinions and failed to provide good reasons for rejecting Dr. Aziz-Kahn’s opinions.
Plaintiff further maintains that the work limitations Dr. Aziz-Kahn set corresponded to Dr.
Aziz-Khan’s personal examinations of Plaintiff and were consistent with mental-healthtreatment notes. And, Plaintiff argues that the ALJ erred in relying on non-examining
medical source opinions, which essentially left Dr. Aziz-Kahn’s opinions unrefuted.
The Commissioner opposes Plaintiff’s arguments and concludes that substantial
evidence supports the ALJ’s review of the medical source opinions.
Social security regulations recognize several different types of medical sources:
treating physicians and psychologists, nontreating/examining physicians and psychologists,
and nontreating/record-reviewing physicians and psychologists. See 20 C.F.R. §
404.1527(c), (e). “The regulations provide progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the individual become weaker.”
Social Security Ruling No. 96–6p, 1996 WL 374180, at *2 (July 2, 1996)). The strongest
ties potentially arise between a treating-medical source and his or her patients. Given this,
the treating physician rule requires ALJs to apply controlling weight to a treating-medical
source’s opinion when the opinion is (1) “well supported by medically acceptable clinical
and laboratory diagnostic techniques,” and (2) “is not inconsistent with other substantial
evidence in [a claimant’s] case record.” 20 C.F.R. §404.1527(c)(2)); see Gentry v. Comm’r

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of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). If both conditions do not exist, the treating
source’s opinions are not controlling. The treating source’s opinions, however, might still
be due dispositive weight because the ALJ must continue to weigh the opinion under
additional factors, “including the length, frequency, nature, and extent of the treatment
relationship; the supportability of the physician’s conclusions; the specialization of the
physician; and any other relevant factors.” Gentry, 741 F.3d at 723 (citation omitted).
These factors likewise apply to the ALJ’s review of a nontreating source’s opinions. 20
C.F.R. §404.1527(e); see Soc. Sec. Rul. 96-6P, 1996 WL 374180 at *2.
The ALJ placed “little weight” on the opinions provided by Plaintiff’s treating
physician Dr. Aziz-Kahn about Plaintiff’s mental-work limitations for a number of reasons.
She first noted that Dr. Aziz-Kahn is an “internist unqualified to offer an opinion on
[Plaintiff’s] level of mental functioning.” (Doc. #9, PageID #63). She then found that Dr.
Aziz-Kahn’s opinion about Plaintiff’s marked limitations are completely inconsistent with
Dr. Aziz-Kahn’s indication (in January 2011) that Plaintiff’s response to Xanax was
“great.” Id.; see PageID # 313. Next, the ALJ observed that the marked limitations Dr.
Aziz-Khan identified are “out of proportion to the preponderance of the objective mental
status findings ....” Id. at 63. Lastly, the ALJ gave little weight to Dr. Aziz-Kahn’s opinion
that Plaintiff was unemployable because the disability determination is reserved to the
Commissioner, and the record did not indicate that Dr. Khan was qualified to offer an
opinion about Plaintiff’s employability. Id.

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The ALJ correctly described the legal criteria applicable to weighing medical source
opinions, including the standards applicable under the treating physician rule and the need
to apply additional factors when the treating physician rule does not apply. The ALJ then
accurately identified the applicable factors. See Doc. #9, PageID #62. Despite this, several
of the reasons the ALJ provided in support of her decision to place little weight on Dr. AzizKahn’s opinions are problematic.
Plaintiff points out that Dr. Aziz-Kahn was a Board Certified specialist in family
medicine, not an “internist” as the ALJ found. Dr. Aziz-Kahn’s status as a family-medicine
specialist qualified her to provide an opinion about Plaintiff’s mental work limitations,
rather than unqualified as the ALJ believed. The American Board of Family Medicine, the
body responsible for certifying family-medicine physicians, describes family medicine as
“the medical specialty that provides continuing, comprehensive health care for the
individual and family. It is a specialty in breadth that integrates the biological, clinical and
behavioral sciences....” See American Board of Family Medicine,
https://www.theabfm.org/index.aspx (search public database: “What is family medicine?”)
(emphasis added). Given the inclusion of behavioral sciences in breadth of this medical
specialty, substantial evidence does not support the ALJ’s decision to place little weight on
Dr. Aziz-Khan’s opinions on the ground she is an internist “unqualified to offer an opinion
about [Plaintiff’s] mental functioning.” (Doc. #9, PageID #63).
Despite this problem, substantial evidence supports the ALJ’s decision to place little

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weight on Dr. Aziz-Kahn’s opinions about Plaintiff’s markedly limited mental-work
abilities. Dr. Aziz-Kahn provided no explanation for why she believed Plaintiff was
markedly limited in her mental-work abilities. Instead, her opinions appear only in the
check-marks she placed in boxes on the forms she completed. See id. at 273-74, 360. This
problem triggers the supportability factor, which provides, in part, “The better an
explanation a source provides for an opinion, the more weight [an ALJ] will give that
opinion.” 20 C.F.R. §404.1527(c)(3).
Plaintiff contends that Dr. Aziz-Khan’s treatment notes support her opinions about
Plaintiff’s mental-work abilities. Careful review of the notes, however, reveals few
references to the type of signs and symptoms needed to support an opinion about mentalwork limitations. See Doc. #9, PageID #s 376-82. Instead, the treatment notes frequently
contain mere diagnoses, such as depression, panic attacks, and “bipolar” without indicating
the severity of these mental-health problems or the signs or symptoms that would support
Dr. Aziz-Khan’s opinion held about the severity of Plaintiff’s mental-health problems. See
Simons v. Barnhart, 114 Fed. Appx. 727, 733-34 (6th Cir. 2004); see also Landsaw v.
Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir. 1986); Higgs v.
Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (“The mere diagnosis of arthritis, of course, says
nothing about the severity of the condition.”).
Substantial evidence also supports the ALJ’s application of the “consistency” factor
to justify placing little weight on Dr. Aziz-Kahn’s opinions about Plaintiff’s mental-work

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functioning. This is because the information and answers Dr. Aziz-Kahn provided (in
January 2011) to certain written questions were inconsistent with the marked mental-work
limitations she found applicable to Plaintiff. Dr. Aziz-Khan wrote, “Great,” when asked to
describe “the prescribed therapy and [Plaintiff’s] response to therapy.” (Doc. #9, PageID
#313). Dr. Aziz-Khan, moreover, provided only the diagnoses of depression and panic
attacks. She declined to provide any details in support of these diagnoses and instead
merely wrote “same as above,” referring to the diagnoses themselves. Id. at 312. Perhaps
most significantly, it appears that Dr. Aziz-Khan wrote the symbol “i,” used in
mathematics for the integer zero,5 and used in this context for the word “none.” Id. at 313.
Even if this misreads the symbol Dr. Aziz-Khan used, she otherwise declined to provide
any response when asked to describe any limitations Plaintiff’s impairments impose on her
ability to perform sustained work activity. Id. at 313.
Plaintiff argues that records from Consolidated Care are consistent with Dr. AzizKahn’s opinions. The information in these records were compiled on one occasion in July
2011 by a licensed social worker. Id. at 318-32. To the extent these records supported or
were consistent with Dr. Aziz-Kahn’s conclusory opinions, the records document
Plaintiff’s condition on only 1 day. The records are, therefore, minimally probative of
Plaintiff’s condition over an extended period of time. In addition, the presence of such
evidence does not negate or override the substantial evidence supporting the ALJ’s other

5

Use of “i” avoids confusing the integer zero for the letter “O.”

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reasons for discounting Dr. Aziz-Kahn’s opinions. Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001) (“we must defer to an agency’s decision ‘even if there is substantial
evidence in the record that would have supported an opposite conclusion, so long as
substantial evidence supports the conclusion reached by the ALJ.”) (citation omitted)).
Relying on Gayheart, 710 F.3d at 376-77, Plaintiff contends that the ALJ erred by
applying more rigorous scrutiny to Dr. Aziz-Kahn’s opinions than to the opinions of state
agency psychologist Dr. Bergstrom. This contention lacks merit because Gayheart is
distinguished from the present case. In Gayheart, the ALJ rejected the opinions of the
plaintiff’s treating physicians for alleged internal inconsistencies and for being inconsistent
with the record as a whole while at the same time accepting the opinions of the state
agency physicians that suffered from the same flaws. This was a problem, the Court of
Appeals reasoned, because evidence conflicting with the treating source’s opinions “must
consist of more than the medical opinions of the nontreating and nonexamining doctors.
Otherwise the treating-physician rule would have no practical force because the treating
source’s opinion would have controlling weight only when the other sources agreed with
that opinion.” Gayheart, 710 F.3d at 377. In the present case, unlike Gayheart, the ALJ
did not reject Dr. Aziz-Kahn’s opinions only because they were inconsistent with the
nontreating and nonexamining physicians’ opinions. The ALJ instead provided other
reasons, which substantial evidence supports, as explained above. As a result, the ALJ’s
decision in this case is distinguished from the ALJ’s decision in Gayheart, and the ALJ

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here did not violate the rule enunciated in Gayheart.
Plaintiff contends that the state-agency psychologist’s opinions were outdated and
the ALJ committed reversible error by relying on them in violation of Soc. Sec. R. 96-6p,
1996 WL 374180 (July 2, 1996). Plaintiff reasons that under Ruling 96-6p, for a stateagency-medical source’s opinions to receive greater weight than a treating source’s
opinions, the record reviewed by the state-agency source must provide more detailed and
comprehensive information than that available to the treating source. Plaintiff, however,
reads too much into Ruling 96-6p, which states in pertinent part:
In appropriate circumstances, opinions from State agency medical and
psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining
sources. For example, the opinion of the State agency medical or
psychological consultant ... may be entitled to greater weight than a treating
source’s medical opinion if the State agency medical or psychological
consultant’s opinion is based on a review of a complete case record that
includes a medical report from a specialist in the individual’s particular
impairment which provides more detailed and comprehensive information
than what was available to the individual’s treating source.
1996 WL 374180 at *3. This example does not establish the principle that Plaintiff’s
identify; it does not say that a nontreating or nonexamining medical source’s opinions are
given more weight only when they review a more complete record than the record before
the treating source. The example, merely sets a permissive example – “may be entitled to
greater weight ...” – for crediting a nontreating or nonexamining source’s opinions over a
treating source’s opinions. Ruling 96-6p, moreover, explains that opinions by stateagency-medical sources are evaluated by the factors set forth in the regulations, 20 C.F.R.
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§404.1527, most notably with regard to a plaintiff’s residual functional capacity. 1996 WL
374180 at *4. As a result, the completeness of the record is one of many factors used to
weigh state-agency source’s opinions.
Accordingly, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE RECOMMENDED THAT:
1.

The Commissioner’s non-disability determination be affirmed; and

2.

The case be terminated on the docket of this Court.

December 10, 2015
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 Recommendation is
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 Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947,
949-50 (6th Cir. 1981).

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