Goldsmith v. Commissioner of Social Security

Filing 14

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The ALJs non-disability decision is affirmed; and 2. The case is terminated on the Courts docket. Signed by Magistrate Judge Sharon L. Ovington on 3/27/2017. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
TERESA GOLDSMITH,

: Case No. 3:16-cv-00003
:
: Magistrate Judge Sharon L. Ovington
: (by full consent of the parties)
:
:
:
:
:
:
:

Plaintiff,
vs.
NANCY A. BERRYHILL,
Commissioner of The Social
Security Administration,
Defendant.

DECISION AND ENTRY
I.

Introduction
Plaintiff Teresa Goldsmith brings this action under 42 U.S.C. § 405(g) for review

of the Social Security Administration’s final decision denying her application for
Disability Insurance Benefits. She asserted before the Administration that starting on
December 30, 2011, she was under a benefits-qualifying disability due to her mental and
physical health problems, including paranoid schizophrenia, depression, anxiety, bipolar
disorder, carpal tunnel syndrome, osteoarthritis, and back problems. An Administrative
Law Judge (ALJ), Elizabeth A. Motta, denied Plaintiff’s application based on the central
conclusion that Plaintiff was not under a “disability” as defined in the Social Security
Act. (Doc. #6, PageID #s 41-61).

Plaintiff contends here that ALJ Motta erred by (1) rejecting multiple opinions
from Plaintiff’s treating sources; (2) inadequately explaining the deference she gave to
the opinions of non-examining medical sources; and (3) applying disparate scrutiny to the
non-examining medical sources’ opinions.
II.

Background
Plaintiff was classified as a “younger individual” under social security law on

March 31, 2014 (her “date last insured”). She has a high school education and past
relevant work as a dietary aide and a motor vehicle assembler. Id. at 258.
ALJ Motta summarized Plaintiff’s hearing testimony as follows:
The claimant testified that she is 66 inches tall. She weighs 190
pounds. The claimant lives in a single-family home with her
husband. She last operated a motor vehicle in 2012. The claimant
does not currently have a driver’s license. She alleges disability due
to back pain and lower extremity pain. The claimant had back
surgery in 2008. She also had gastric bypass surgery. The claimant
recently had hand surgery but, according to her testimony, this did
not help much. She has diminished grip strength and reduced
manipulative ability.
The claimant does household chores as she is able. She uses taxi
cabs for transportation when necessary (such as to doctor
appointments). The claimant shops occasionally. She attends
church. She sees her grandchildren about once per month. The
claimant is able to attend to her own personal grooming and hygiene
needs. She is able to use a computer but she does not use one very
often because there are too many pop-ups and she is worried they
may carry a computer virus. She watches television.
When questioned by her attorney, the claimant testified that she has
memory problems and feelings of paranoia. She is depressed and she
has crying spells. The claimant is frequently tired and fatigued. She
2

experiences insomnia. The claimant takes prescribed psychotropic
medication for depression and anxiety. The claimant takes
prescribed psychotropic medication for depression and anxiety. Such
medication is beneficial.
Id. at 44. This last sentence—a generalization—implies Plaintiff experiences more
medication benefits than she described. When asked, “Does the medication help you at
all?” Plaintiff answered, “It keeps me together for most part of the day I guess,
sometimes unless a situation comes up that I can’t handle.” Id. at 86. Plaintiff also
estimated that she spends 95% of her day lying down, sometimes watching TV, other
times listening to the radio. Id. at 83. Plaintiff’s husband does the laundry and most of
the cooking. Id. at 78. She does some light cleaning, but there are days when she just
cannot do it because of her pain. Id. Sometimes she goes to the grocery store; she does
not generally go out to eat. Id. at 79, 81. When she returns from the store, she feel “very
tired, exhausted” and goes to bed. Id. at 84.
Plaintiff’s medical records concerning her physical health contain significant
information and opinions from several medical sources. Dr. Marcos E. Amongero
performed back surgery—an L4-5 and L5-S1 discectomy and fusion—on July 9, 2008.
Id. at 328-35, 351-54. Yet, the hardware in Plaintiff's low back had failed by August 1,
2008, and Dr. Amongero surgically removed it and “exchanged” it, presumably with
other hardware. Id. at 326-27.
Plaintiff began seeing primary care physician Dr. Rhea Rowser in November
2012. Dr. Rowser’s diagnostic assessment of Plaintiff included, in part, essential
3

hypertension, benign; obstructive sleep apnea; depressive disorder, not elsewhere
classified; anxiety state, unspecified; insomnia, unspecified; and morbid obesity. Id. at
485-87.
When seen in December 2012, Plaintiff complained to Dr. Rowser of continued
difficulties with sleeping. She reported that she was taking 20 mg of Ambien, even
though she knew that this was above the maximum dosage. Plaintiff was also concerned
about continued weight gain but states she has not been eating too well. Dr. Rowser
prescribed a Nicoderm patch to quit smoking, vitamin D, continued Plaintiff's blood
pressure medication and encouraged diet and exercise. Id. At 488-89.
In September 2013, Plaintiff complained to Dr. Rowser of upper back pain. She
noted she had not been walking due to leg and feet pain. Plaintiff was given medication
to stop smoking and a letter for medical necessity for bariatric surgery. Id. at 757-58.
By March and April 2014, Plaintiff was experiencing pain in her knees, hands, and
back; and numbness in her hands. Id. at 749-50, 814. On April 11, 2014, Dr. Rowser
completed a Medical Impairment Questionnaire concerning Plaintiff. Id. at 798-99. She
reported that Plaintiff’s symptoms included nerve damage in her hands for which she is
followed by Dr. Barre; bilateral knee pain, followed by Dr. Lochner; and back pain with
radiation into her right leg related to Plaintiff's 2008 spinal surgery. Dr. Rowser opined
that Plaintiff was restricted to standing for no more than thirty minutes at a time and
sitting no greater than sixty; lifting to no more than ten pounds occasionally; Plaintiff
4

should never bend or stoop as a part of occupational activity and should balance only
occasionally; no hand manipulation; Plaintiff needs the ability to occasionally elevate her
legs at or above waist level. Dr. Rowser further opined that Plaintiff has significant
problems with anxiety or depression which would markedly limit her ability to withstand
the stresses and pressures of ordinary work activity. Id. Lastly, Dr. Rowser concluded
that Plaintiff has the capacity for only two hours of work activity per day. Id. at 798-99.
Turning to non-treating, record-reviewing medical sources, state agency physician
Dr. Maria Congbalay reviewed the record and evaluated Plaintiff’s physical functioning
in March 2013. Id. at 124-34. Dr. Congbalay opined that Plaintiff could lift and/or carry
twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours
in a workday; and sit for about six hours in a workday. Id. at 129. Plaintiff could,
according to Dr. Congbalay, occasionally climb ramps/stairs, balance, stoop, kneel,
crouch, crawl. Id. at 129-30. Dr. Congbalay concluded that her assessment of Plaintiff’s
residual functional capacity, or the most she could do despite her impairments,
constituted an adoption of a previous ALJ’s decision dated December 29, 2011. Id. at
130. In August 2013, Dr. Steve E. McKee reviewed Plaintiff’s records and agreed with
Dr. Congbalay’s opinions. Id. at 136-49.
Plaintiff’s medical records concerning her mental health contain significant
information and opinions from several medical sources. She sought mental health
treatment from Dr. Amita Patel in February 2010. Plaintiff reported excessive
5

worry/anxiety, impaired social/occupational functioning, difficulty with interpersonal
relationships, restlessness/feeling keyed up, depressed mood, diminished interest in
pleasurable activity, fatigue/loss of energy, feelings of worthlessness, poor concentration,
lack of self esteem, and excessive inappropriate guilt. Id. at 386. On mental status
examination, Dr. Amita Patel noted many observations: Plaintiff was easily distracted;
she was cooperative; her eye contact was good; her mood was sad and anxious; her affect
range was constricted yet her amplitude of affect was normal; she was logical and goal
oriented; she had experienced auditory hallucinations; her thought content was paranoid
and preoccupied; her judgment was intact; and her insight was fair. Dr. Amita Patel
diagnosed Plaintiff with major depression, a schizoaffective disorder, and insomnia. Id.
at 387.
That same day, Dr. Amita Patel prepared medical functional capacity assessment
on behalf of the Ohio Department of Job and Family Services. She opined that Plaintiff
was markedly limited in her ability to sustain an ordinary routine without special
supervision, to maintain regular attendance, to perform activities within a schedule, to
work in proximity to others, to accept instructions and respond appropriately to criticism
from a supervisor, and to perform at a consistent pace without an unreasonable number
and length of rest periods. Id. at 539.
In March 2010, Dr. A. Patel completed another form (Physician Certification of
Medication Dependency for the Disability Assistance Program) in which she noted,
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“Patient chronic mental condition is not good. [Patient] is going through lots of anxiety,
major depression, lack of energy, poor concentration, difficulty making decisions,
impairment in social occupational functioning, loss of self esteem.” Id. at 541-42.
After seeing Plaintiff on May 5, 2010, Dr. A. Patel’s checked boxes on a form
indicating that Plaintiff was markedly limited in fifteen out of twenty mental work
abilities. Dr. A. Patel also checked boxes opining that Plaintiff was unemployable and
would remain so for twelve months or more. Id. at 543.
In January 2011, psychiatrist Dr. Amparo Wee checked boxes on a form indicating
that Plaintiff is markedly limited in her ability to accept instructions, her ability to
respond appropriately to criticism from supervisors, and her ability to travel in unfamiliar
places. Id. Dr. Wee checked remaining boxes on this form indicating that Plaintiff’s
mental functioning capabilities were either “not significantly limited” or “moderately”
limited. She concluded that Plaintiff was unemployable and would remain so for twelve
months or more. Id. at 545-46.
Dr. Wee saw Plaintiff on January 10, 2012 and noted she reported feeling
depressed because she was denied her application for social security benefits. Dr. Wee
continued her medication with no change in diagnosis. Id. at 573-77.
In March 2012, Dr. Wee observed that Plaintiff was well groomed, cooperative
with clear speech, but she had a depressed mood and a constricted affect. Dr. Wee
assessed Plaintiff as having schizoaffective disorder. Id. at 578-83.
7

Plaintiff went to the emergency department at Miami Valley Hospital in June 2012
with depression and suicidal ideation. She told physicians that she had a psychiatric
history of paranoid schizophrenia and bipolar disorder with depression. Id. at 394. She
had experienced suicidal ideation for several months and thought about overdosing with
pills. A physician noted that Plaintiff said, “The question is not ‘if’ but ‘when’ I’ll do
something. She says just as soon as she’s made up her mind to try something, her
grandchildren will call and she will feel guilty.” Id. at 395.
Plaintiff described feeling really down about being unemployed and without a car
for two years. She felt trapped at home and was deteriorating. She had been trying to
enroll in the Easter Seals Program for disability due to her mental illness for some time,
but she had been denied social security since 2008. Her husband of twenty-eight years
was employed, and she denied any marital problems. She had been unable to sleep for
four nights before going to the hospital. Id. at 393-444. She was admitted overnight for
monitoring. Id. at 393-444. She was discharged the next day. Her discharge diagnosis
was “Depression, NOS [not otherwise specified], now resolved .” Id. at 393. She
instructed to follow up with Dr. Wee. Id. at 393.
Dr. Wee saw Plaintiff at the end of June 2012, after her hospitalization. She
reported her symptoms as insomnia, depression, auditory hallucinations, impaired
judgment, and irrational thoughts. Dr. Wee made sure a safety plan was in place for
Plaintiff to use if her symptoms worsened or she needed a medication refill. Plaintiff also
8

met with her counselor that day for an updated diagnostic assessment. The diagnostic
impression was a schizoaffective disorder. Id. at 584-93.
Plaintiff’s medication management was transferred from Dr. Wee to another
psychiatrist Dr. Pravesh Patel in August 2012 due to office location. Id. at 448. When
initially seen by Dr. P. Patel, Plaintiff reported paranoia, mood swings, feelings of
worthlessness, and decreased energy. Id. On mental status examination, she was found
to be anxious. Id. Dr. P. Patel adjusted and continued her medication. Id. at 448-53.
Plaintiff continued to see Dr. P. Patel for medication management through June 2014. Id.
at 454-77, 516-38, 733-46, 1018-33.
In April 2014, Dr. P. Patel completed a mental impairment questionnaire in which
he noted Plaintiff’s history of anxiety, mood swings, depression, and paranoia.
Examination findings included a constricted/anxious affect and paranoia. Id. at 795. He
opined that Plaintiff had marked restrictions in seven of twenty-four functional areas,
including in her abilities to work in proximity to others without being distracted by them,
carry out very detailed instructions, perform activities within a schedule and maintain
regular attendance, maintain attention and concentration for extended periods, and
interact appropriately with the general public. Id. at 796. The remaining areas of her
mental functioning were found to be slight or moderate. Id. at 796-97. Dr. P. Patel
concluded that Plaintiff would be absent from work more than three times each month.
Id. at 796.
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In March 2013, after reviewing Plaintiff's medical record on March 26, 2013,
psychologist Kristen Haskins assessed her mental condition at the request of the state
agency. Dr. Haskins found that Plaintiff was capable of understanding and remembering
simple work instructions; she could sustain concentration and persist in simple, unskilled
work tasks; and she can interact occasionally in situations that do not require persuasion
or frequent contact with the general public. Id. at 130-31.
In July 2013, psychologist Katherine Fernandez reviewed Plaintiff’s record upon
reconsideration and affirmed Dr. Haskins’ assessment. Id. at 136-47.
III.

ALJ Motta’s Decision
Plaintiff’s eligibility for Disability Insurance Benefit turned on whether she was

under a disability” as defined by social security law. See 42 U.S.C. § 423(d)(1)(A)(d)(2)(A); see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). To resolve this
issue, ALJ Motta evaluated the evidence under the Social Security Administration’s fivestep evaluation procedure. 20 C.F.R. § 404.1520(a)(4). Moving through step one, the
ALJ found at steps two and three that Plaintiff’s impairments—including her severe
impairments of lumbar spine degenerative disc disease, obesity, schizoaffective
disorder—did not automatically entitle her to benefits. (Doc. #6, PageID #s 45-53). At
step four, ALJ Motta found that the most Plaintiff could do despite her impairments—her
residual functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th
Cir. 2002)—was a reduced range of light work including:
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lifting as much as twenty pounds occasionally and ten pounds
frequently, except: she should have been provided the opportunity to
alternate between sitting and standing as often as ten minutes per
hour. Postural activities (e.g., climbing ramps or stairs, balancing,
stooping, kneeling, crouching, crawling, or twisting side to side) could
be done no more than occasionally. The claimant could not climb
ladders, ropes, or scaffolding. She should not have been exposed to
hazards such as moving or dangerous machinery or working at
unprotected heights. The claimant should not have been
expected to work on uneven terrain. She could do no more than
frequent handling and fingering bilaterally. She could do no more
than performing simple repetitive tasks involving low-stress duties
(i.e., no strict production quotas or fast pace and only routine
work with few changes in work setting). She could perform duties
involving no more than occasional contact with the general public, coworkers and supervisors.
Id. at 53-54. Given these abilities and limitations, the ALJ found (also at step four) that
Plaintiff could not perform her past relevant work.
The ALJ next found (step five)—by adding these abilities and limitations to
Plaintiff’s younger age, her high-school education, and her work experience—that
Plaintiff could perform a significant number of jobs in the regional and national
economies. These doable jobs, according to the ALJ, included inspector/hand packager,
laundry worker, and mail clerk, and others. This step-five finding dictated the ALJ’s
final determination that Plaintiff was not under a disability and not eligible for benefits.
Id. at 75-76.
IV.

Judicial Review
Judicial review of an ALJ’s non-disability decision proceeds along two lines:

“whether the ALJ applied the correct legal standards and whether the findings of the ALJ
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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 F.3d 742, 745-46 (6th Cir.
2007). 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. Gentry v. Comm’r of Soc. Sec., 741
F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.
2007). 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
(citations and internal quotation marks omitted); see Gentry, 741 F.3d at 722.
The other line of judicial inquiry—reviewing the correctness of the ALJ’s legal
criteria—may result in reversal even when 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 F.3d 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
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(6th Cir. 2004)).
V.

Discussion
Plaintiff argues that the ALJ erred in rejecting the opinions provided by her

treating medical sources, Dr. Amita Patel, Dr. Wee, Dr. Pravesh Patel, and Dr. Rowser.
She reasons that (1) the ALJ failed to substantiate her justification for the weight she
placed on their opinions, (2) the evidence does not support the ALJ’s reasons but instead
supports the medical sources’ opinions, and (3) and the ALJ failed to consider the
deferential factors required by regulation and case law. Plaintiff further contends the ALJ
erred by not adequately explaining her deference to the opinions of record-reviewing
medical sources and by scrutinizing her treating sources’ opinions more that the opinions
of the record-reviewers.
The Commissioner counters: (1) the ALJ properly weighed the opinions of
Plaintiff’s treating sources, (2) the ALJ provided good reasons for not placing controlling
or deferential weight on their opinions, and (3) specific evidence, which the
Commissioner describes, supported the ALJ’s assessments of the weight due each
source’s opinions.
The parties’ disagreement over the ALJ’s evaluation of Plaintiff’s treating medical
sources arises from the “greater deference … generally given to the opinions of treating
physicians than to those of non-treating physicians …. “ Rogers, 486 F.3d at 242

13

(citations omitted). This greater deference, “commonly known as the treating physician
rule,” id., rests on straightforward criteria:
Treating-source opinions must be given “controlling weight” if
two conditions are met: (1) the opinion “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques”;
and (2) the opinion “is not inconsistent with the other substantial
evidence in [the] case record.”
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citations omitted);
see Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 723 (6th Cir. 2014). If the treating
physician’s opinion is not controlling, “there remains a presumption, albeit a rebuttable
one, that the opinion of a treating physician is entitled to great deference, its noncontrolling status notwithstanding.” Rogers, 486 F.3d at 242 (citation omitted). As a
result, when the treating physician rule does not apply, ALJs must continue to weigh a
treating physician’s opinion under “a host of factors, including the length, frequency,
nature, and extent of the treatment relationship; the supportability and consistency of the
physician’s conclusions; the specialization of the physician; and any other relevant
factors.” Id. (citing Wilson, 378 F.3d at 544). ALJs must likewise consider these
regulatory factors when weighing the opinions provided by nontreating phsycians. Miller
v. Comm’r of Soc. Sec., 811 F.3d 825, 836-37 (6th Cir. 2016).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions by stating “specific reasons for the weight
placed on a treating source’s medical opinions ….” Wilson, 378 F.3d at 544 (quoting
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Soc. Sec. R. 96-2p, 1996 WL 374188 at *5 (1996)). The ALJ’s reasons must be
“supported by the evidence in the case record ….” Id. The goals are to assist the claimant
in understanding the disposition of his or her case and to make clear to any subsequent
reviewer the weight given and the reasons for that weight. Id.
In the present case, the ALJ declined to apply controlling or deferential weight, to
the opinions provided by Dr. Amita Patel, Dr. Amparo Wee, and Dr. Pravesh Patel. The
ALJ found their opinions as to Plaintiff experiencing “marked” limitation “neither well
supported by medically acceptable clinical and laboratory diagnostic techniques nor
consistent with other substantial evidence in the case record.” Id. at 50. The ALJ also
found that they based their assessment “on uncritical acceptance of the claimant's
subjective complaints.” Id.
The ALJ set forth the correct legal criteria for weighing opinions from treating
medical sources. See Doc. #5, PageID #s 50-51. The ALJ then found that the opinions
of Drs. A. Patel, P. Pate, and Wee concerning Plaintiff’s “marked limitations” in her
mental work abilities “cannot be given controlling or even deferential weight. The
conclusions of these medical sources are neither well supported by medically acceptable
clinical and laboratory diagnostic techniques nor consistent with other substantial
evidence in the case record. The extent of impairment described by those sources could
only be based on uncritical acceptance of the claimant’s subjective complaints.” Id. at 51.
Next, the ALJ supported these conclusions by discussing certain evidence . Id. And, the
15

ALJ’s previous description of these medical sources’ opinions bolsters her reasoning. Id.
at 48-50. It should be noted in passing, however, that the ALJ’s evaluation is not a model
of perfection: She could have more clearly tied together her description of pertinent
medical records with her application of the legal criteria applicable to treating source
opinions. Cf. Fleischer v. Astrue, 774 F. Supp. 2d 875, 877 (N.D. Ohio 2011) (“[T]he
ALJ failed to provide a ‘logical bridge between the evidence on the record and his
conclusion....’ ”) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7th Cir. 1996)). Despite
this, the ALJ’s decision is sufficiently detailed “to assist the claimant in understanding
the disposition of … her case and to make clear to any subsequent reviewer the weight
given and the reasons for that weight.” Wilson, 378 F.3d at 544 (quoting Soc. Sec. R. 962p, 1996 WL 374188 at *5 (1996)).
Beginning with psychiatrist Dr. A. Patel’s opinions, in February 2010 opinion
(before Plaintiff’s alleged disability onset date), Dr. A. Patel had seen Plaintiff once. She
diagnosed Plaintiff with “major depressive disorder recurrent episode,” and
schizoaffective disorder. Id. at 387. Dr. Patel’s estimate of Plaintiff’s Global
Assessment of Functioning (GAF) placed her in the category of having “[m]ajor
impairment in several areas, Some impairment in reality testing.” Id. at 387. Yet, just a
few months later, in May 2010, Dr. A. Patel reported a GAF score reflecting only mild
symptoms. (PageID 49, 384-85, 387). Although Dr. A. Patel’s GAF assessments taken
individually say little about the validity or invalidity of this psychiatrist’s opinions, the
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significant improvement in her GAF in such a short span of time detracts from Dr. Patel’s
opinions concerning the severity of Plaintiff’s mental work impairments. Indeed, based
on that improvement, the ALJ reasonably concluded that Dr. A. Patel’s notes were
insufficient to support the marked limitations she indicated. 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.”). Additionally, social security regulations did
not require the ALJ to credit Dr. A. Patel’s opinion that Plaintiff was “unemployable,”
see id. at §404.1527(d), particularly where—as the ALJ reasonably recognized—there is
no indication in Dr. Patel’s report that her generic statement is consistent with the
definition of “disability” under social security law. (Doc. #6, PageID #50). Moreover,
Dr. A. Patel’s 2010 opinions predated Plaintiff’s alleged onset date (December 30, 2011),
and related to a time during which Plaintiff has been previously and finally adjudicated as
not disabled. See id. at 12-13.
Psychiatrist Dr. Wee saw Plaintiff for medication management beginning
sometime in 2011. See, e.g., Doc. #6, PageID #s 568-89, 546. Although Dr. Wee
completed an assessment regarding Plaintiff’s mental functional abilities, there are not
treatment records from treatment she had with Dr. Wee during 2011. Id. at 545-46. Dr.
Wee, moreover, believed that Plaintiff was markedly limited in only three of twenty
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areas—namely, her abilities to accept instructions and respond appropriately to criticism
from supervisors, to respond appropriately to changes in the work setting, and to travel to
unfamiliar places or use public transportation.1 And, Dr. Wee noted in 2011 that Plaintiff
was “not significantly limited” or no more than “moderately limited” in the remaining
seventeen areas. Id. at 545. Yet, Dr. Wee also checked a box indicating that Plaintiff
was “unemployable,” an opinion (as with Dr. A. Patel) not binding on the ALJ. This
opinion, moreover, was inconsistent with Dr. Wee’s opinions in 2011 concerning
Plaintiff’s work limitations.
In treatment records from March 2012, Dr. Wee reported that Plaintiff had a
depressed mood and constricted affect, she was well-groomed and cooperative; her
demeanor and activity were average; her speech was clear; her thought process was
logical and she reported no hallucinations. Id. at 578-79. Dr. Wee diagnosed Plaintiff
with a schizoaffective disorder. Id. at 582-83. In evaluating Dr. Wee’s opinion, the ALJ
considered the numerous areas in which Dr. Wee opined that Plaintiff either had no
significant limitation or no more than moderate limitation undermined a disabling level of
impairment. Id. at 48-49. Moreover, the ALJ generally accounted for Dr. Wee’s
“marked” limitations by including cognitive, stress, and social limitations (namely,
simple, repetitive tasks involving low-stress duties, no strict production quotas or fast

1

The ALJ mentioned that Dr. A. Patel may have previously seen Plaintiff in 1999. Id. at 48; see PageID #s 119,
362). Those records are not in the file.

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pace, only routine work with a few changes in work setting, and only occasional contact
with supervisors) in her assessment of Plaintiff’s residual functional capacity. Id. at 49,
53-54). The ALJ also considered that at the time of Dr. Wee’s assessment, Plaintiff was
working as a dietary aide. Id. at 39. The ALJ reasonably found that Plaintiff’s ability to
work undermined Dr. Wee’s opinion that she was unemployable.
Even if Dr. Wee’s opinion concerned Plaintiff’s condition in 2011, the ALJ also
considered that she did not stop working due to a mental impairment, but rather, because
she was faulted for eating ice cream in front of a nursing home resident, in violation of
work policy. Id. at 51, 57, 74-75. Thus, Plaintiff’s reasons for not continuing to work
were unrelated to her mental condition. And as with Dr. A. Patel’s opinions, Dr. Wee’s
2011 opinion predated Plaintiff’s alleged onset date of December 30, 2011, and thus
related to a time during which Plaintiff had been previously and finally adjudicated as not
disabled.
With regards to Dr. P. Patel’s opinion, the ALJ considered that the mental status
findings in Dr. Patel’s treatment records were generally normal. Id. at 49-51. See C.F.R.
§ 404.1527(c)(3) (“The better an explanation a source provides for an opinion, the more
weight we will give that opinion.”). Substantial evidence supports this. For instance,
when seen in November 2012, Plaintiff’s concern was an 11 pounds weight gain over the
prior year caused by her medication Geodon. She was sleeping 6-7 hours per night. Id.
at 462. The following year, when seen in May 2013, Dr. Patel advised Plaintiff “to go for
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diet and exercise before considering bariatric surgery. Plaintiff reports she doing pretty
well. She wants to quit smoking and asked to prescribe Wellbutrin to help quit smoking
cigarettes. She denies side effects on Wellbutrin when used it years ago. She reports
stable mood. Denies feeling depressed nor anxious. No mood swings/anger. No
AH/VH. No S/H/I. No alcohol or illicit substance use. Compliant on meds and able to
tell the names. Sleep and appetite are normal.” Id. at 524. Given such evidence, the ALJ
reasonably found that Dr. P. Patel’s opinion was not supported by the evidence in the
record, including his own treatment notes. See 20 C.F.R. § 404.1527(c)(3)-(4) (medical
opinions evaluated for supportability and consistency).
Turning to Dr. Rowser, the ALJ correctly recognized that the extent of impairment
described by Dr. Rowser lacks support in the medical record and is without sufficient
medically determinable justification. Id. The ALJ further found that Dr. Rowser’s
opinion appears to be “based largely on the claimant’s subjective complaints.” In light of
the substantial evidence the ALJ discussed, see Doc. #6, PageID #s 49-51, this
constituted an adequate reason to discount Dr. Rowser’s opinion. See Keeler v. Comm'r
of Soc. Sec., 511 F. App’x. 472, 473 (6th Cir. 2013) (“We have previously found
reasoning that a medical opinion relied too heavily on the claimant's subjective
complaints as adequate to support an ALJ’s decision to give little weight to the
opinion.”). Additionally, examination of the evidence confirms the ALJ’s assessment of
inconsistencies between Dr. Rowser’s opinion and other evidence in the record. For
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example, when seen in May 2013, Dr. Rowser reported that Plaintiff’s posture was
“unremarkable” and her range of motion was “unrestricted. ” Id. at 498. Objective
medical evidence includes an MRI of Plaintiff’s lumbar spine taken in May 2014, which
showed no evidence of significant central spinal canal stenosis or foraminal or lateral
recess narrowing in the lumbar spine. Id. at 808-09.
Plaintiff points out that Dr. Rowser’s opinion is also the only assessment of
Plaintiff’s physical capabilities prepared by a medical source that had even set eyes upon
her and is also the only evaluation in the record to speak to Plaintiff’s manipulative
limitations. However, as the ALJ correctly recognized, Dr. Rowser’s treatment records
contained minimal references to back pain or significant spinal impairment. Id. at 58
(citing id. at 747-93). Even though Dr. Rowser indicated Plaintiff had upper-extremity
limitations, the record shows she underwent successful surgery and this limitation did not
persist for a continuous twelve-month period. Id. at 46 (citing to 1038-40). Given Dr.
Rowser’s minimal findings and the absence of specific information or an explanation in
support of her opinions, it was reasonable for the ALJ to decline to place controlling or
deferential weight on Dr. Rowser’s assessment.
Plaintiff’s further contends that the ALJ improperly relied on the opinions of the
record-reviewing psychologists, Dr. Haskins and Dr. Fernandez, and record-reviewing
physicians, Drs. Congbalay and McKee, who never examined her and who completed

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their assessments after reviewing “only a small fraction of the medical record.” (Doc #8,
PageID# 1063).
Starting with Drs. Haskins and Fernandez’s assessments, Plaintiff argues that
“ALJ Motta does not actually explain how either an application of the regulatory factors
to the record’s evidence supports this deference. For instance, while she repeatedly
asserts that the mental health opinions of Drs. Haskins and Fernandez “best represent the
degree of restriction experienced by the claimant…” she fails to specifically explain the
regulatory or evidentiary basis for this conclusion.” (Doc. #8, PageID# 1062) (citations
omitted). The ALJ, however, properly analyzed Plaintiff’s mental impairments under the
four criteria of the “B” listings. See Doc. #6, PageID #s 51-52. The ALJ noted that the
Plaintiff did not stop working because of a mental impairment but because she was
discovered eating ice cream in front of a nursing home resident (in violation of work
policy). Id. at 51. Dr. Haskins and Dr. Fernandez determined that Plaintiff may
experience “moderate” limitation in her ability to maintain social functioning. The ALJ
reasonably determined that this is also consistent with the conclusions of treating source
Dr. P. Patel, (id. at 796), and Dr. Wee (id. at 545). Id. at 51-52. According to Dr.
Haskins, Plaintiff’s ability to maintain attention and concentration was “moderately”
limited but she is not significantly limited in her ability to make simple work-related
decisions. Id. at 131. According to Dr. Fernandez, Plaintiff was “moderately" limited in
her ability to maintain concentration, persistence or pace. Id. at 142. Dr. A. Patel
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indicated that Plaintiff’s capacity to maintain attention and concentration is “moderately”
limited. Id. at 543. The ALJ determined that any greater (than “moderate”) degree of
limitation is not supported by the evidence of record. Id. at 52.
The physical assessment of Plaintiff’s physical residual functional capacity
completed by Drs. Congbalay and McKee reasonably relied on an absence of objective
clinical findings to find that Plaintiff could perform work activities of a light exertional
level. Id. at 124-34, 136-49. Dr. Congbalay noted that Plaintiff does not have new and
material conditions to consider, and the current evidence in file is similar to the evidence
in file at the time of the last ALJ decision. Id. at 128. Dr. McKee noted that when
Plaintiff saw Dr. Amongero in May 2013, her examination showed “no acute distress
A&Ox3. Posture unremarkable and antalgic gait Non tender. Neuro Intact to light touch.
NO focal motor deficits DTR equal [bilateral] Right and Left straight leg raise negative.
able to heel and toe walk. Dx: [status post] L4-5 and L5-1 decompression and
instrumented fusion, done in 2008.” Id. at 141. Although Drs. Congbalay and McKee
rendered their opinions before Dr. Rowser issued her opinion, Dr. Rowser’s progress
notes from 2013 and 2014 do not show any significant changes in Plaintiff’s condition to
explain the severe limitations imposed by Dr. Rowser’s assessment. In view of the
conflicting evidence in the record, it was the ALJ’s reasonable judgment to place less
weight on Dr. Rowser’s opinion about Plaintiff’s physical residual functional capacity.
See 20 C.F.R. § 404.1527(c)(3)-(4); 20 C.F.R. § 404.1527(e)(2)(i) (state agency
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consultants are “highly qualified physicians . . . who are also experts in Social Security
disability evaluation.”); see also Vorholt v. Comm’r of Soc. Sec., 409 F. App’x 883, 887
(6th Cir. 2011) (holding that the ALJ was justified in relying on the opinion of the state
agency physician).
Accordingly, Plaintiff’s Statement of Errors lacks merit.
IT IS THEREFORE ORDERED THAT:
1.

The ALJ’s non-disability decision is affirmed; and

2.

The case is terminated on the Court’s docket.

March 27, 2017

slo/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge

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