Wilson v. Commissioner of Social Security

Filing 13

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 9/8/17. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
RALPH E. WILSON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-258
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:
:

DECISION AND ENTRY
I.

Introduction
Plaintiff Ralph E. Wilson brings this case challenging the Social Security

Administration’s denial of his application for Supplemental Security Income. He applied
for benefits on September 18, 2012, asserting that he could no longer work a substantial
paid job. Administrative Law Judge (ALJ) Elizabeth A. Motta concluded that he was not
eligible for benefits because he is not under a “disability” as defined in the Social
Security Act.
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),
and the administrative record (Doc. #5).

Plaintiff seeks a remand of this case for payment of benefits or, at a minimum, for
further proceedings. The Commissioner asks the Court to affirm ALJ Motta’s nondisability decision.
II.

Background
Plaintiff asserts that he has been under a “disability” since July 1, 2012. He was

fifty-five years old at that time and was therefore considered a person of “advanced age”
under Social Security Regulations. See 20 C.F.R. § 416.963(e). He has a high school
education. See id. § 416.964(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Motta that Dr. Rojas, his family-care
doctor, prescribed medication for depression for about two years. (Doc. #5, PageID #s
107-08). When asked why he did not seek mental health treatment, Plaintiff responded,
“Basically I tried to get in as soon as -- because I was in the hospital for 10 days about
two years ago, and none of the places would take me at that time. And then finally I got
into Good Samaritan Behavior Healthcare.” Id. at 109.
Plaintiff sees Dr. Ballerene, his treating psychiatrist, once per month. Id. at 114.
She prescribes him medication. Id. at 108. When asked if the medication helps, he
responded, “I really haven’t noticed it, that it’s helping.” Id. Plaintiff also attends
counseling with Jeffrey Blommel, a therapist. Id. When asked if therapy helps, he stated,
“I have my good days and I have my bad days with him.” Id.
Plaintiff was admitted to the hospital towards the end of July or beginning of
August 2012 after he was diagnosed with neurosyphilis, a sexually-transmitted disease
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that affects his brain and nerves. Id. at 112. He has to go back to be tested every year.
Id. Plaintiff testified that it causes psychological symptoms, including problems with his
concentration and memory. Id. “Basically I can be thinking about one thing, and next
thing you know, it just -- I’m thinking about something else afterwards, or right -- you
know, during -- if I’m doing something, I’ll automatically forget what I was doing.” Id.
at 114-15.
Dr. Rojas believes Plaintiff’s problems with pain are also related to neurosyphilis.
Id. at 113. Plaintiff gets headaches four or five times per week that last one to two hours.
Id. If he takes aspirin or ibuprofen, his headaches go away “a little bit.” Id. He also gets
backaches; his shoulder bothers him; and he had problems with his feet. Id.
Plaintiff last worked as a catering manager. Id. at 106. He did everything—
cooking, setting up the banquet rooms, and bartending. Id. at 106-07. He left because his
employer stopped paying him. Id. at 107. He received unemployment for approximately
six months and then “had little odds and end jobs like painting houses ….” Id. Then, he
“just basically lost all will to do anything.” Id.
Plaintiff lives in a house with his partner. Id. at 105. He does not have a driver’s
license. Id. Plaintiff testified that he does not like to be around other people: “I get
anxious. I get upset. I get angry very easy.” Id. at 108. He also does not like to be out
in public. Id. His partner does all the grocery shopping. Id. Plaintiff has not been in a
store in about six months. Id. at 109.
Plaintiff used to love to cook but does not do it very often anymore. Id. at 110.
He can make a sandwich for himself and use the microwave. Id. at 109-10. “As far as in
3

the house, I normally let things pile up before … I literally have to force myself to do
things around the house.” Id. at 109. He is able to stand at the sink and wash dishes: “I
normally force myself to.” Id. at 110. He also mows the grass. Id. at 109. He explained
that he has been like this for at least three years. And, “there was a point in time where I
wouldn’t take a shower for a couple weeks.” Id.
On a typical day, Plaintiff watches TV and sits on his porch. Id. at 110. He has
three cats that he takes care of. Id. He goes to see his brother who lives about ten
minutes away “every now and then.” Id. at 111.
B.

Medical Opinions
i.

Ellen W. Ballerene, M.D.

Dr. Ballerene, Plaintiff’s treating psychiatrist, completed a mental impairment
questionnaire on August 19, 2014. Id. at 745-48. She indicated Plaintiff’s highest Global
Assessment of Functioning (GAF) score in the past year was fifty-one. Id. at 745. Dr.
Ballerene identified the following as Plaintiff’s signs and symptoms: poor memory; sleep
disturbance; mood disturbances; emotional lability; recurrent panic attacks; adhedonia or
pervasive loss of interests; feelings of guilt/worthlessness; difficulty thinking or
concentrating; suicidal ideation or attempts; social withdrawal or isolation; decreased
energy; generalized persistent anxiety; and hostility and irritability. Id. at 745-46.
Dr. Ballerene noted that Plaintiff’s treatment has included medication and
counseling with “only [a] partial response.” Id. at 746. She opined his prognosis is fair
and remarked, he “has made some improvements but [is] still limited in his activity by
low energy, ongoing overwhelming anxiety, [and] poor memory [and] concentration.”
4

Id. at 747. Additionally, his impairments or treatment would cause him to be absent from
work more than three times per month. Id. He has a slight restriction of activities of daily
living; marked difficulties in maintaining social functioning; moderate deficiencies of
concentration, persistence, or pace resulting in failure to complete tasks in a timely
manner; and marked episodes of deterioration or decompensation in work. Id. at 748.
ii.

Mary Ann Jones, Ph.D.

Dr. Jones evaluated Plaintiff on October 18, 2012. Id. at 451-58. She diagnosed
Plaintiff with dysthymic disorder and psychological factors affecting physical condition
and assigned him a GAF score of fifty-one. Id. at 456-57. She opined that Plaintiff’s
intelligence fell within the borderline range, and he “would be able to understand,
remember, and carry out instructions in a work setting consistent with intellectual
functioning range.” Id. at 455-57. Further, “It is likely that he is experiencing some
limitations in his ability to sustain appropriate attention and concentration and to maintain
adequate persistence and pace in order to perform work tasks.” Id. at 457. Plaintiff
reported to Dr. Jones that he used to cope well with stress at work but now does not. Id.
at 458. He indicated that he is “more easily agitated and experiences more anger
outbursts. Id. Dr. Jones concluded, “there do appear to be at least some limitations in his
ability to cope with common workplace pressure.” Id.
iii.

Bruce Goldsmith, Ph.D., & Karla Voyten, Ph.D.

Dr. Goldsmith reviewed Plaintiff’s records on October 29, 2012. Id. at 122-33.
He found that Plaintiff had five severe impairments: Neurosyphilis, major motor
seizures, affective disorders, anxiety disorders, and somatoform disorders; and one non5

severe impairment: other disorders of the skin and subcutaneous tissues. Id. at 126. He
has a mild restriction of activities of daily living; mild difficulties in maintaining social
functioning; moderate difficulties in maintaining concentration, persistence, or pace; and
no repeated episodes of decompensation. Id. at 126-27. Dr. Goldsmith opined that
Plaintiff “retains the ability to complete 3-4 step tasks… without unusual production and
pace demands… [and] [c]hanges should be well explained.” Id. at 130-31.
On May 25, 2013, Dr. Voyten reviewed Plaintiff’s records and affirmed Dr.
Goldsmith’s assessment. Id. at 135-47.
III.

Standard of Review
The Social Security Administration provides Supplemental Security Income to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.
City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. § 1382(a). The term
“disability”—as defined by the Social Security Act—has specialized meaning of limited
scope. It encompasses “any medically determinable physical or mental impairment” that
precludes an applicant from performing a significant paid job—i.e., “substantial gainful
activity,” in Social Security lexicon. 42 U.S.C. § 1382c(a)(3)(A); see Bowen, 476 U.S. at
469-70.
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
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
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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
(6th Cir. 2004)).
IV.

The ALJ’s Decision
As noted previously, it fell to ALJ Motta to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five sequential

7

steps set forth in the Social Security Regulations. See 20 C.F.R. § 416.920. She reached
the following main conclusions:
Step 1:

Plaintiff has not engaged in substantial gainful employment since
September 18, 2012.

Step 2:

He has the severe impairments of affective (depressive) disorder and
generalized anxiety disorder.

Step 3:

He does not have an impairment or combination of impairments that
meets or equals the severity of one in the Commissioner’s Listing of
Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

Step 4:

His residual functional capacity, or the most he could do despite his
impairments, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239
(6th Cir. 2002), consists of “less than the full range of medium
exertion …. He can lift as much as 50 pounds occasionally and 25
pounds frequently. Postural activities (such as climbing stairs or
ramps, balancing, stooping, kneeling, crouching or crawling) can be
done frequently. The claimant should not climb ropes, ladders or
scaffolds. He should not be exposed to hazards such as moving or
dangerous machinery or working at unprotected heights. The claimant
is limited to 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). The claimant should have no
more than occasional contact with the public, co-workers, and
supervisors.”

Step 4:

He is unable to perform any of his past relevant work.

Step 5:

He could perform a significant number of jobs that exist in the
national economy.

(Doc. #5, PageID #s 73-88). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 87.

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V.

Discussion
Plaintiff contends that the ALJ failed to properly evaluate the medical evidence.

The Commissioner maintains that substantial evidence supports the ALJ’s evaluation of
the medical opinions of record.
Social Security Regulations require ALJs to adhere to certain standards when
weighing medical opinions. “Key among these is that greater deference is generally
given to the opinions of treating physicians than to those of non-treating physicians,
commonly known as the treating physician rule.” Rogers, 486 F.3d at 242 (citations
omitted). The rule is straightforward:
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) (quoting in part 20
C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.
If the treating physician’s opinion is not controlling, “the ALJ, in determining how
much weight is appropriate, must consider 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.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).
The Regulations also require ALJs to provide “good reasons” for the weight
placed upon a treating source’s opinions. Wilson, 378 F.3d at 544. This mandatory
“good reasons” requirement is satisfied when the ALJ provides “specific reasons for the
9

weight placed on a treating source’s medical opinions.” Id. (quoting Soc. Sec. R. 96-2p,
1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The goal is to make clear to
any subsequent reviewer the weight given and the reasons for that weight. Id.
Substantial evidence must support the reasons provided by the ALJ. Id.
Dr. Ballerene
ALJ Motta found Dr. Ballerene’s opinion to be “generally credible in most
respects and entitled to significant weight.” (Doc. #5, PageID #79). She explained, “Dr.
Ballerene’s assessment was, in many ways, consistent with those of Dr. Jones, Dr.
Goldsmith, and Dr. Voyten except with regard to the ‘marked’ degree of limitation said
to exist in the claimant’s ability to maintain social functioning and in episodes of
deterioration or decompensation.” Id. The ALJ thus concluded that because “[a]
‘marked’ degree of limitation is neither well supported by medically acceptable clinical
and laboratory diagnostic techniques nor consistent with other substantial evidence in the
case record[,]” those opinions are entitled to “no weight whatsoever.” Id. at 79-80. She
similarly gave no weight to Dr. Ballerene’s opinion that Plaintiff would be absent from
work more than three times per month. Id. at 80.
ALJ Motta provided several reasons for her findings. She first broadly addressed
Dr. Ballerene’s opinions, finding, “Dr. Ballerene’s own treatment records do not
substantiate “marked” limitation in any relevant area of consideration.” Id. (citing Ex.
12F [PageID #s 749-56]). For example, the ALJ notes that Dr. Ballerene diagnosed
Plaintiff with major depressive disorder, single episode, in partial remission and

10

generalized anxiety disorder. Id. at 80. Further, Dr. Ballerene indicated in both her
opinion and her treatment notes that Plaintiff’s symptoms improved with medication. Id.
Plaintiff counters that the ALJ erred in finding Plaintiff’s mental health records
showed improvement with medication. He reasons, “mental health symptoms inevitably
wax and wane in the course of treatment. Cycles of improvement and debilitating
symptoms are a common occurrence, and in such circumstances, it is error for an ALJ to
pick out a few isolated instances of improvement over a period of months or years and to
treat them as a basis for concluding a claimant is capable of working.” (Doc. #7, PageID
#824) (citing Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)). Plaintiff also
argues, “Significantly, ALJ Motta failed to consider the evidence indicating Wilson’s
ongoing severe mental health symptoms even with different medications and treatment.”
Id. at 825. For example, “In April 2014, treatment notes show that Wilson was having
outbursts on a daily basis and experiencing symptoms of depression and anxiety
including suicidal ideation, lack of interest in life, and uncontrollable worry and
irritability. Id. (citing Doc. #5, PageID #669).
Although Plaintiff is able to point to some specific examples of his ongoing
mental health symptoms, “[t]he substantial-evidence standard ... presupposes that there is
a zone of choice within which the decisionmakers can go either way, without interference
by the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “[I]f substantial
evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is
substantial evidence in the record that would have supported an opposite conclusion.’”
Blakley, 581 F.3d at 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). In
11

the present case, substantial evidence supports the ALJ’s finding that Dr. Ballerene’s
opinions concerning Plaintiff’s marked limitations are not consistent with the treating
notes of record.
The ALJ is correct that Dr. Ballerene’s August 2014 assessment rated Plaintiff’s
prognosis as “fair” and recognized he “has made some improvements ….” (Doc. #5,
PageID #747). She also accurately acknowledged that despite these improvements,
Plaintiff still experiences symptoms such as low energy, overwhelming anxiety, poor
memory and concentration, and mood disturbances. Id. The ALJ is likewise correct
that Dr. Ballerene’s treatment notes document improvement. For example, in
September 2014, Dr. Ballerene noted that Plaintiff’s sleep was “a bit better” and he was
sleeping more. Id. at 768. Further observations indicated improvement: “Moods not
too bad, still has episodes that gets down, [but] not happening as often, not as upset over
[little] things. [P]artner has [noticed] a change and says he is not getting as angry as
fast. Lamictal & zoltot [seemed] to help. [N]o SEs [side effects] to them. ... Still some
[anxiety], ·but not like it [was]. A [little] more relaxed and easy [going].
[Concentration] a [little] better, but still issues with memory. Energy level is getting
better, doing a few more things around the house, still not where [he] wants to be or
used to be, but getting there.” Id.
Plaintiff’s therapist’s records also show some improvement. For example, in July
2014, Mr. Blommel noted that he and Plaintiff discussed his “improvement, [and]
getting out of the house and going to the busy flea market with [his partner]. He stated
that he was a little uneasy, but was able to maintain his presence, although he was not as
12

engaged in shopping as [his partner].” Id. at 693. In September 2014, he noted that
Plaintiff “stated that he has been sleeping better and longer, and that the improved
sleeping pattern help[s] him ‘feel calmer in the morning … feel better during the day.’
He also stated that he is spending more time out of his house, sitting on the front porch,
walking around the block, and going shopping with his partner.” Id. at 777. And, he
indicated in November 2014, Plaintiff “stated that he has been feeling really good lately
and believes his medication have had a positive influence in his improved behavior. …
[He] also stated that he was able to ‘reconnect with an old friend I have not seen for
years’, and he really enjoyed the company and plans to continue the relationship. He
also stated that his partner has been encouraging him to get his driver’s license back, so
[he] can ‘get out of the house and get active during the day’ when his partner is at
work.” Id. at 806.
ALJ Motta also observed that Dr. Ballerene and Dr. Jones assigned Plaintiff a
GAF score of 51—indicating moderate symptoms. Id. at 80. Plaintiff asserts that the
ALJ’s reliance on his moderate GAF scores is misplaced. (Doc. #7, PageID #823).
He notes that a GAF score of 51 indicates moderate symptoms, but it “is on the low
borderline end of moderate to severe symptoms.” Id. “In fact, a GAF score of 50
reflects serious symptoms or serious difficulty in social, occupational, or school
functioning ….” Id. at 823-24 (citation omitted). Plaintiff is correct that his GAF
scores are very close to “serious” symptoms. But, notably, Dr. Ballerene assigned
slightly higher GAF scores throughout her treatment of Plaintiff. For example, on

13

September 23, 2014, she assigned a GAF score of 52, and on October 21, 2014, she
assigned a GAF score of 53. (Doc. #5, PageID #s 772, 796).
There are significant problems associated with GAF scores. Indeed, the fifth
and most recent edition of the Diagnostic and Statistical Manual of Mental Disorders
(DSM-5) no longer uses the GAF scale, in part due to “its lack of conceptual clarity
(i.e., including symptoms, suicide risk, and disabilities in its descriptors) and
questionable psychometrics in routine practice.” Liza H. Gold, DSM-5 and the
Assessment of Functioning: The World Health Organization Disability Assessment
Schedule 2.0, 42 J. AM. ACAD. PSYCHIATRY & LAW 173, 174 (2014) (footnote omitted)
(available at http://www.jaapl.org. Search by article title). Further, “the
Commissioner ‘has declined to endorse the [Global Assessment Functioning] score for
‘use in the Social Security and [Supplemental Security Income] disability programs,’
and has indicated that [Global Assessment Functioning] scores have no ‘direct
correlation to the severity requirements of the mental disorders listings.’’” DeBoard v.
Comm’r of Soc. Sec., 211 F. App’x 411, 415 (6th Cir. 2006) (quoting Wind v.
Barnhart, 133 F. App’x 684, 692 (11th Cir. 2005); 65 Fed. Reg. 50746, 50764–65
(Aug. 21, 2000)). Given the evidence in this case, a GAF score of 51 does not
elucidate the severity of Plaintiff’s mental health conditions. See Oliver v. Comm’r of
Soc. Sec., 415 F. App’x 681, 684 (6th Cir. 2011) (“A GAF score is thus not dispositive
of anything in and of itself, but rather only significant to the extent that it elucidates an
individual’s underlying mental issues.”) (citing White v. Comm’r of Soc. Sec., 581 F.3d
272, 276 (6th Cir. 2009); 65 Fed. Reg. 50746, 50764–65 (Aug. 21, 2000)).
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ALJ Motta provided some specific reasons for discounting each of Dr.
Ballerene’s remaining opinions. Looking first at social functioning, the ALJ noted that
both Dr. Jones and Dr. Ballerene described Plaintiff as cooperative. (Doc. #5, PageID
#80). Plaintiff also “told Dr. Jones that he ‘interacted quite well with his coworkers
and supervisors when he was employed’ [and] … he ‘did very well with difficult
clients’ [in his former catering work].” Id. (citing Ex. 3F at 8 [PageID #457]).
Additionally, Plaintiff gets “along adequately with his partner and he occasionally
visits his brother.” Id. Further, there is no evidence of him being rude, aggressive, or
violent towards others. Id.
The ALJ, however, acknowledges that Plaintiff “did become embroiled in a pay
dispute with his last employer… [and he] testified that he does not like to be around other
people and that he prefers to remain at home.” Id. (citation omitted). She likewise
observes that the State agency record-reviewing psychologists, Dr. Voyten and Dr.
Goldsmith, opined Plaintiff only had a mild limitation in social functioning. However,
based on Plaintiff’s allegation of social withdrawal, ALJ Motta found their opinion “to be
an underestimate of the claimant’s actual degree of limitation ….” Id. Together, this
constitutes substantial evidence supporting ALJ Motta’s rejection of Dr. Ballerene’s
opinion on Plaintiff’s social functioning.
Turning to Dr. Ballerene’s opinion that Plaintiff experiences marked episodes of
deterioration or decompensation at work, the ALJ accurately observed that Dr. Ballerene
provided “no explanation as to what exactly that meant.” Id. at 81; see 20 C.F.R. §
416.927(c)(3) (“The better an explanation a source provides for a medical opinion, the
15

more weight we will give that medical opinion.”). Additionally, the ALJ emphasized,
“There is no evidence of episodes of decompensation each of extended duration[:]”
There was only one relatively recent episode of manic
behavior in 2012 (and/or seizure as he had an emotional
reaction to finding out the diagnosis of neurosyphilis) that
could be characterized as an episode of decompensation and
that particular episode was clearly not of extended duration.
The claimant’s symptoms were quickly and effectively
treated and he was discharged from treatment in a muchimproved condition (characterized by a GAF score of “70”).
… The evidence does not document the existence of a
residual disease process that has resulted in such marginal
adjustment that even a minimal increase in mental demands
or change in the environment would be predicted to cause the
claimant to decompensate. The evidence does not document
a current history of one or more years’ inability to function
outside a highly supportive living arrangement with an
indication of continued need for such an arrangement.
(Doc. #5, PageID #81); see 20 C.F.R. § 416.927(c)(3) (“The more a medical source
presents relevant evidence to support a medical opinion, particularly medical signs and
laboratory findings, the more weight we will give that medical opinion.”).
Finally, ALJ Motta also gave less weight to Dr. Ballerene’s opinion that Plaintiff
would be absent from work more than three times per month due to his impairment or
treatment. She found that it “cannot be credited” because it “is purely speculative and
lacks any logical medically determinable foundation in the record.” (Doc. #5, PageID
#80). And, she noted, as discussed in more detail above, Plaintiff’s symptoms have
responded to treatment. Id.
Plaintiff contends that Dr. Jones’ opinion that he would have some limitations
in his ability to cope with workplace pressure is “not inconsistent” with Dr. Ballerene’s

16

opinion that he would miss more than three days of work per month. (Doc. #7,
PageID #822). It is not clear how these two opinions are related. Dr. Ballerene opined
that Plaintiff’s impairments or treatment would cause him to be absent from work more
than three times per month. (Doc. #5, PageID #747). Plaintiff is correct that Dr.
Jones’ opinion that “there do appear to be at least some limitations in his ability to
cope with common workplace pressure” is “not inconsistent” with Dr. Ballerene
opinion—but it is also not consistent with or supportive of her opinion.
Plaintiff, moreover, does not point to any other evidence that supports Dr.
Ballerene’s opinion that Plaintiff would be absent from work more than three times per
month. Given the lack of support in the record, it was reasonable for the ALJ to
discount Dr. Ballerene’s opinion.
ALJ Motta provides one additional reason for discounting Dr. Ballerene’s opinion.
She accurately observed that Dr. Ballerene began treating Plaintiff in June 2014—two
months before she provided her opinion—and the day she completed her opinion was
only her third appointment with him. Id. at 79, 749. She only saw him two times after
that date. Id. at 767, 791. These observations reasonably support the ALJ’s decision to
discount Dr. Ballerene’s opinion. See 20 C.F.R. § 416.927(c)(2)(i) (“Generally, the
longer a treating source has treated you and the more times you have been seen by a
treating source, the more weight we will give to the source's medical opinion.”).
The court’s review of an ALJ’s decision is limited to determining whether the ALJ
applied the correct legal standard and whether the ALJ’s decision is supported by
substantial evidence. Gayheart, 710 F.3d at 374. In the present case, ALJ Motta applied
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the correct legal standards to determine that three of Dr. Ballerene’s opinions are not
entitled to weight. The ALJ’s decision is supported by substantial evidence.
Dr. Jones
Plaintiff also contends that the ALJ failed to evaluate and assign weight to Dr.
Jones’s opinion. (Doc. #7, PageID #820). The ALJ did, however, assign “great weight”
to Dr. Jones’ opinion concerning Plaintiff’s ability to maintain concentration, persistence,
and pace. (Doc. #5, PageID #81) (“The opinions of the above-referenced mental health
professionals in that regard are given great weight.”). Plaintiff is correct that the ALJ
failed to specifically assign weight to Dr. Jones’s other opinions.
Under the Regulations, “Unless a treating source’s opinion is given controlling
weight, the administrative law judge must explain in the decision the weight given to the
opinions of a State agency medical or psychological consultant….” 20 C.F.R. §
416.927(e)(2)(ii); see Soc. Sec. R. 96-6p, 1996 WL 374180, at *2 (Soc. Sec. Admin. July
2, 1996). When considering the opinions of nontreating sources, ALJs use the same
factors applicable to weighing treating source opinions—the examining relationship,
supportability, consistency, specialization, and other factors such as the source’s
understanding of disability programs. 20 C.F.R. § 416.927(a)-(d).
The Commissioner asserts, “Plaintiff fails to show reversible error …. Simply put,
Plaintiff fails to show how Dr. Jones’ opined limitations were inconsistent with the ALJ’s
RFC limiting Plaintiff to simple, repetitive tasks involving low-stress duties ….” (Doc.
#10, PageID #848). This argument is well taken. Because the ALJ accommodated all of
Dr. Jones’ limitations, the ALJ’s failure to assign weight to each opinion and address
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every factor constitutes harmless error. See Wilson, 378 F.3d at 547-48 (“Despite his
failure to address the treating physician’s opinion, the ALJ in Heston had considered the
limitations described by that physician …. There was no reason to remand the case
because, wittingly or not, the ALJ attributed to the claimant limitations consistent with
those identified by the treating physician.”) (discussing Heston v. Comm’r of Soc. Sec.,
245 F.3d 528 (6th Cir. 2001)).
Accordingly, for the above reasons, 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.

Date: September 8, 2017

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

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