Shoop v. Commissioner of Social Security

Filing 17

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 6/4/19. (kma)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
STACEY SHOOP,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:17-cv-258
:
:
: Magistrate Judge Sharon L. Ovington
:
(by full consent of the parties)
:
:
:
:
:

DECISION AND ENTRY
I.

Introduction
Plaintiff Stacey Shoop applied for Supplemental Security Income on April 15,

2014, asserting she could no longer work due to her mental impairments and hepatitis C.
Her application was denied initially and upon reconsideration. Plaintiff requested a
hearing, after which Administrative Law Judge (ALJ) Elizabeth A Motta concluded that
she was not eligible for benefits because she is not under a “disability” as defined in the
Social Security Act.
Plaintiff brings this case challenging the Social Security Administration’s denial of
her application for Supplemental Security Income. She 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 non-disability decision.
The case is before the Court upon Plaintiff’s Statement of Errors (Doc. #11), the

Commissioner’s Memorandum in Opposition (Doc. #15), Plaintiff’s Reply (Doc. #16),
and the administrative records (Doc. #s 6, 10).
II.

Background
In April 2014, when Plaintiff filed her application for benefits, she was forty-three

years old and was therefore considered a “younger person” under Social Security
Regulations. See 20 C.F.R. § 416.963(c). She has a high school education. See id. §
416.964(b)(4).
A.

Plaintiff’s Testimony

Plaintiff testified at the hearing before ALJ Motta she is unable to work because of
her anxiety. (Doc. #10, PageID #793). When she is anxious, she feels “uncomfortable in
[her] skin … and shaky a little bit.” Id. at 805. She also has manic bipolar disorder. Id.
at 797.
Plaintiff has trouble concentrating. Id. at 803. She explained, “my mind goes
pretty quick and then I crash, and I have to sleep … for a few hours. I get started on
things and then I can’t finish them.” Id. at 793. She takes medication and it helps her
some. Id. She testified that she “can’t not be on medication.” Id. at 797. However, her
psychiatrist left and his replacement took her off one her medications. Id. at 794. She
does not think her new doctor is good for her and hopes to find a new psychiatrist. Id. at
794-95.
Plaintiff acknowledged her history of substance abuse. Id. at 798. She has been
incarcerated seven times—all related to drugs. Id. at 793. To her credit, at the time of
the hearing, she had not used drugs, alcohol, or cigarettes for four years and three
2

months. Id. at 798.
When asked if she looked for work after her most recent release from prison,
Plaintiff testified that she did at first but not recently because “[n]ot a whole lot of people
like my [criminal] record.” Id. at 799. Since her release, “my main goal is to stay off
drugs … and get my mental health in order.” Id. at 800.
Plaintiff lives with her fourteen-year-old son and his godfather. Id. at 790. She is
able to prepare simple meals and do laundry. Id. at 799, 805. She drives about every
other day. Id. at 790-91. However, she does not like to drive long distances or at night.
Id. at 804. She has no problems going to the store or shopping. Id. at 799. She attends
Narcotics Anonymous meetings approximately three times per week and regularly
attends church. Id. at 801-02. She does not have a lot of friends. Id. at 800.
B.

Medical Opinions
i.

Darke County Mental Health Providers

In June 2014, Plaintiff’s treating therapist, Dianna E. Burgess, MS, PC, opined in
a letter to Job & Family Services that Plaintiff was unable to work “due to the nature of
her symptoms and demonstrates the need to continue working to stabilize and regain her
typical functioning in the community.” (Doc. #6, PageID #601).
A few months later, in October 2014, Irfan Dahar, M.D.—Plaintiff’s treating
psychiatrist—and Ms. Burgess completed a Mental Impairment Questionnaire. Id. at
628-31. Dr. Dahar diagnosed Bipolar I Disorder, Anxiety Disorder Not Otherwise
Specified (NOS), Polysubstance Dependence, and Personality Disorder NOS. Id. at 628.
He opined that Plaintiff is markedly impaired in numerous areas of work-related mental
3

functioning, including, for example, her ability to understand, remember, and carry out
detailed instructions; maintain attention and concentration for extended periods; and work
in coordination with others without being distracted by them. Id. at 630-31. Further, she
would likely be absent from work more than three times a month due to her impairments
and treatment. Id. at 630.
In May 2015, Ms. Burgess opined that Plaintiff “suffers with moderate to severe
mood episodes and distress situations with her anxiety.” Id. at 731. Further, she
struggles with focus and has difficulty maintaining consistency in daily routines,
schedules, and tasks. Id. She has “[m]oderate to severe difficulty” being around others
because of social discomfort and the presence of mental health symptoms. Id.
In September 2015, Phillip A. Hash, D.O., who also provided medication
management to Plaintiff, and Ms. Burgess completed a Mental Impairment
Questionnaire. Id. at 733-37. He noted that Plaintiff “experiences frequent mental and
physical agitations, mood changes/variations, irritability, depression, and anxiety.” Id. at
735. Further, she “is fairly motivated for treatment and appears to be very responsive to
medication management/psychiatric services and individual treatment.” Id. He opined
that she has marked deficiencies of concentration, persistence, or pace resulting in failure
to complete tasks in a timely manner. Id. at 736. She would likely miss work at least
three times per month because of her impairments or treatment. Id.
In December 2015, Ms. Burgess opined that Plaintiff was “substantially affected”
in all areas of work-related mental functioning. Id. at 739-40. She explained that
Plaintiff has a “history of chronic and pervasive mental health symptoms and issues,
4

which continuously impact her in her daily functioning and limit her in her abilities. Id.
In March 2016, Ms. Burgess described the “wide spectrum” of Plaintiff’s mood
swings: “At times, she has presented as ‘low’ in her mood with overt depressive
symptoms, sadness, and feelings of being overwhelmed by life and all of its
responsibilities. At other times, she has presented as very ‘high,’ exhibiting strong traits
of mania, with rapid and pressured speech, a tangential thought process, and seemingly
impulsive thoughts, words, and actions.” Id. at 777. Plaintiff “has worked diligently to
maintain her treatment with individual therapy, psychiatric services, and medication
management.” Id. Although she tries to “maintain her typical life responsibilities and
tasks” (she keeps a planner and makes herself reminders of what she needs to do), she
struggles and “still often falls short in being able to do these things as efficiently and
effectively as needed.” Id. at 777-78. Ms. Burgess concluded, “Ms. Shoop is deserving
of support and would greatly benefit from any additional support that she is provided
with in her life. She clearly exhibits the motivation and drive of someone wanting to
receive and utilize appropriate help and puts forth great effort to be a healthy person. For
all of her efforts, it appears that she continues to struggle in her life due to her mental
health symptoms and issues.” Id. at 778.
ii. Vicki Warren, Ph.D./Mary K. Hill, Ph.D.
On July 9, 2014, Dr. Warren reviewed Plaintiff’s record on behalf of the state
agency. Id. at 116-26. She found that Plaintiff had two non-severe impairments—“Other
and Unspecified Arthropathies” and Personality Disorder—and two severe
impairments—Affective Disorder and Anxiety Disorder. Id. at 120. She opined that
5

Plaintiff had mild restrictions in her activities of daily living; moderate difficulties in
social functioning; moderate limitations in concentration, persistence and pace; and no
episodes of decompensation of extended duration. Id. at 121. Dr. Warren adopted the
Mental Residual Functional Capacity assessment from the July 21, 2011 administrative
decision under Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir.1997) and
Acquiescence Ruling 98-4(6). Id. at 124.
Dr. Hill reviewed Plaintiff’s record on December 29, 2014, and did not adopt the
prior assessment. Id. at 133. Dr. Hill noted that Plaintiff’s psychological symptoms will
limit her concentration, persistence, and pace and her ability to tolerate normal work
pressure. Id. at 137. She is limited to performing one-to-four-step tasks with no more
than moderate pace or production quotas in a static environment where changes are
explained and gradually introduced. Id. at 137-38. Dr. Hill, observing that Plaintiff has
problems with irritability and was diagnosed with a personality disorder, opined that her
interactions with others need to be on a superficial level with no conflict resolution or
persuading others. Id. at 137.
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
6

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
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
7

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
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
April 15, 2014.

Step 2:

She has the severe impairments of mood disorder, anxiety disorder,
personality disorder, and polysubstance abuse in reported remission.

Step 3:

She 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:

Her residual functional capacity, or the most she could do despite her
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 work
… lift and carry up to 50 pounds occasionally and 25 pounds
frequently; no climbing ladders, ropes, or scaffolds; no exposure to
hazards, such as dangerous machinery, driving as part of job duties, or
working at unprotected heights; no complex or detailed instructions;
simple, repetitive tasks; low stress with no strict production quotas or
fast pace and only routine work with few changes in the work setting;
no contact with the public as part of job duties; and occasional contact
with coworkers and supervisors, including no teamwork and no
conflict resolution or persuading others.”

Step 4:

She has no past relevant work.

Step 5:

She could perform a significant number of jobs that exist in the
national economy.
8

(Doc. #6, PageID #s 39-53). These main findings led the ALJ to ultimately conclude that
Plaintiff was not under a benefits-qualifying disability. Id. at 53.
V.

Discussion
Plaintiff contends that the ALJ failed to properly evaluate the medical opinions of

record. Further, she argues that the ALJ erred in identifying her daily activities as an
adverse disability factor.
The Commissioner maintains that substantial evidence supports both the ALJ’s
evaluation of the medical opinions and her assessment of Plaintiff’s daily activities.
A.

Medical Opinions

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
9

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
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.
ALJ Motta found that “the opinions of Drs. Dahar and Hash are not entitled to
controlling or deferential weight” and, instead, assigned them “little weight.” (Doc. #6,
PageID #50). She provided two primary reasons for discounting their findings of marked
impairment. First, she found that their opinions “are unsupported by objective signs and
findings in the preponderance of the mental health records.” Id. Second, their opinions
are inconsistent with Dr. Dahar and Ms. Burgess’s treatment notes that indicate Plaintiff
was stable and/or functioning fairly well.
Plaintiff argues that, in reaching those conclusions, ALJ Motta improperly credited
only the evidence that disfavors a finding of disability. This argument lacks merit. ALJ
Motta recognized that some treatment notes showed Plaintiff was experiencing
symptoms—for example, “These notes generally show some anxious and/or depressed
moods and some impairment of memory[.]” Id. She also acknowledged similar notes
earlier in her decision:
10

According to Dr. Dahar, the claimant exhibited an anxious and
depressed mood with a labile affect.… The claimant continued
to remain relatively stable with continued medication
management and counseling. Subsequent notes show some
anxious and/or depressed moods …. She also exhibited some
impairment of memory on a few occasions …. Ms. Burgess
noted that, despite situational stressors regarding her
relationship with her son, the claimant appeared to be
“functioning fairly well” at that time ([Doc. #6, PageID
#713])…. Although Dr. Dahar1 noted some manic behavior at
the next visit in February 2015, the claimant said “she was
told” to stop taking her Levothyroxine for an unknown
reason.…
Id. at 46. But, the ALJ also observed Plaintiff’s treatment records include a plethora of
notes showing that she was stable and/or that she was functioning fairly well—for
example:
The claimant continued to remain relatively stable with
continued medication management and counseling. … [H]er
providers documented euthymic, calm, and/or stable moods on
several other occasions. She … displayed intact memory and
normal attention and concentration on several other occasions.
Other mental status findings remained relatively normal and
included an intact fund of knowledge, normal intelligence, fair
to good insight and judgment, normal hygiene, … normal
speech, goal-directed and/or linear thought processes … ([Doc.
#6, PageID #s 617-23, 691-729, 741-76]).
[Ms.] Burgess … noted that the claimant appeared to be
“making progress and maintaining her stability well” ([Id. at
711]). Later that month, Ms. Burgess noted that … the
claimant appeared to be “functioning fairly well” at that time
([Id. at 713]). In December 2014, the claimant told Dr. Dahar
that she was in a stable condition, and Dr. Dahar documented
a bright and calm mood and affect ([Id. at 697]). Ms. Burgess
also noted in December 2014 that the claimant appeared to be
“stable and functioning fairly well” ([Id. at 722]).… Further,
1

Plaintiff did not see Dr. Dahar in February 2015. The notes identified by ALJ Motta correspond to
treatment notes from Marc Marchioli, PA-C. (Doc. #6, PageID #s 703-05).

11

the claimant’s counselor again indicated in February 2015 that
the claimant appeared to be “fairly stable and functional” at
that time ([Id. at 728]). In November 2015, the claimant
reported an increase of focus with an increase in Concerta ([Id.
at 758]).
(Doc. #6, PageID #46). The ALJ recognized evidence that supported Plaintiff’s
allegations and evidence that disfavored a finding a disability. Importantly, ALJ Motta
did not find that Plaintiff’s impairments caused no limitations. Rather, she found that
Plaintiff was not as limited as opined by Dr. Dahar and Dr. Hash. This is reflected in her
RFC assessment: “no complex or detailed instructions; simple, repetitive tasks; low
stress with no strict production quotas or fast pace and only routine work with few
changes in the work setting; no contact with the public as part of job duties; and
occasional contact with coworkers and supervisors, including no teamwork and no
conflict resolution or persuading others.” Id. at 44, 50. And, “because the ALJ’s opinion
was supported by substantial evidence, it must be upheld, despite conflicting evidence.”
Rudd v. Comm’r of Soc. Sec., 531 F. App’x 719, 727 (6th Cir. 2013) (citing Ulman v.
Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012); 20 C.F.R. §§ 404.1527(c)(4),
416.927(c)(4)).
In addition, Plaintiff argues that the ALJ—who is not a medical expert—
improperly substituted her opinion for that of Dr. Dahar’s. (Doc. #11, PageID #823).
This argument lacks merit; ALJ Motta did not did not “play doctor.” See Simpson v.
Comm’r of Soc. Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (“[A]n ALJ ‘may not
substitute his own medical judgment for that of the treating physician where the opinion
of the treating physician is supported by the medical evidence.’”) (quoting Meece v.
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Barnhart, 192 F. App’x 456, 465 (6th Cir. 2006); (citing Rohan v. Chater, 98 F.3d 966,
970 (7th Cir. 1996) (“ALJs must not succumb to the temptation to play doctor and make
their own independent medical findings”)). She considered—as the Regulations
require—whether Dr. Dahar’s opinion is not inconsistent with the other substantial
evidence in the case record and whether his opinion was consistent with the record as a
whole. 20 C.F.R. § 416.927(c)(2), (4); (“Generally, the more consistent a medical
opinion is with the record as a whole, the more weight we will give to that medical
opinion.”). And, she reasonably concluded that their opinions were inconsistent with Dr.
Dahar and Ms. Burgess’s treatment notes.
ALJ Motta found that their opinion that Plaintiff would likely miss more than
three days of work per month due to her impairments and treatment is “speculative and
unsupported.” (Doc. #6, PageID #50). According to the ALJ, “The record shows no
significant periods of work activity, even with some presumed periods of sobriety, so any
such opinion on the claimant’s absenteeism is speculative and unsupported.” Id.
Plaintiff takes issue with the ALJ’s reasoning because it “would prevent any opined []
mental health limitation from being credited in the absence of work activity ….” (Doc.
#11, PageID #822).
Plaintiff is correct that her lack of “significant periods of work activity” does not
necessarily render Dr. Dahar and Dr. Hash’s opinion speculative and unsupported. A
physician’s opinion is not speculative merely because the doctor sets forth what is likely

13

to happen in the future—indeed, that is what is expected from medical professionals.2
However, to the extent that the ALJ erred, it is harmless error because substantial
evidence supports ALJ Motta’s conclusion that Dr. Dahar and Dr. Hash’s opinion that
Plaintiff would be absent more than three times is unsupported. 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.”).
Plaintiff disagrees, asserting that the medical records show she had difficulty
maintaining attendance at her mental health appointments. (Doc. #11, PageID #822)
(citing Doc. #6, PageID #s 580-87, 635, 777-78). But, the records Plaintiff cites do not
support her argument. There are three transfer/discharge summaries in Plaintiff’s
treatment notes (dated January 2, 2012, July 23, 2012, and October 28, 2014). The first
two indicate that the provider’s last contact with Plaintiff occurred on August 5, 2011.
The third indicates that the provider’s last contact occurred on April 25, 2014. Plaintiff
did not merely fail to show up for her next appointment.
According to Plaintiff’s records from the Ohio Department of Rehabilitation and
Correction, Plaintiff was incarcerated (in the Montgomery County jail) on November 13,
2011. (Doc. #6, PageID #s 391, 636). She was then transferred to a prison on February

2

The definition of medical opinions under the Regulations includes “statements from physicians … that
reflect judgments about the nature and severity of [an individual’s] impairment(s), including [her] …
prognosis, what [she] can still do despite impairment(s), and [her] physical or mental restrictions.”2 20
C.F.R. § 416.927(a)(2) (emphasis added). Prognosis is defined as “the prospect of recovery as anticipated
from the usual course of disease or peculiarities of the case.” Merriam-Webster.com/dictionary/prognosis
(last updated May 2, 2019).

14

10, 2012. Id. at 391. She was released from prison on March 3, 2014. Id. at 375, 477.
Thus, it is reasonable to assume that Plaintiff did not attend treatment because she was
incarcerated. Turning to the last transfer/discharge summary, in April 2014, Plaintiff
sought treatment at New Creation Counseling, where she had received treatment in the
past. Id. at 636. On October 28, 2014, her provider discharged her, indicating that her
admission date was April 4, 2014 and her last contact was April 25, 2014. Id. at 635.
But, this does not show her inability to attend appointments; Plaintiff had already begun
treatment with Dr. Dahar on April 16, 2014 and with Ms. Burgess on May 1, 2014. Id. at
684, 710. This evidence does not support Dr. Dahar and Dr. Hash’s opinion that Plaintiff
would be absent from work three or more times per month.
ALJ Motta’s provided one other reason: “Drs. Dahar and Hash relied quite heavily
on the subjective report of symptoms and limitations provided by [Plaintiff] and seemed
to uncritically accept as true most, if not all, of what [she] reported. Yet, … good reasons
exist for questioning the reliability of [Plaintiff’s] subjective complaints.” (Doc. #6,
PageID #50). Plaintiff contends that ALJ Motta disregards the nature of her mental
health issues.
It can be considerably more difficult to substantiate psychiatric impairments by
objective testing:
[W]hen mental illness is the basis of a disability claim, clinical
and laboratory data may consist of the diagnosis and
observations of professionals trained in the field of
psychopathology. The report of a psychiatrist should not be
rejected simply because of the relative imprecision of the
psychiatric methodology or the absence of substantial
documentation, unless there are other reasons to question the
15

diagnostic techniques.
Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th Cir. 1989) (citing Poulin v. Bowen, 817
F.2d 865, 873-74 (D.C. Cir. 1987), quoting Lebus v. Harris, F.Supp. 56, 60 (N.D. Cal.
1981)). In the present case, ALJ Motta reasonably questioned their diagnostic
techniques—specifically, the questionable reliability of Plaintiff’s statements given her
possible drug-seeking behavior.
Plaintiff contends, “It is a logical fallacy to assume that a treating physician relied
quite heavily upon subjective reports where a treatment relationship has afforded the
physician a longitudinal perspective.” (Doc. #11, PageID 824). However, Dr. Dahar had
only seen Plaintiff two times in 2011 and two times in 2014 (almost six months apart)
when he provided his opinion. (Doc.#6, PageID #s 571, 588, 684, 691). Although he
had access to notes from Plaintiff’s counselor and she also signed the opinion, his
treatment relationship with Plaintiff was random, at best. See 20 C.F.R. §
416.927(c)(2)(ii) (“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.”).
In conclusion, ALJ Motta provided good reasons for the weight she assigned Dr.
Dahar’s and Dr. Hash’s opinions, and substantial evidence in the record supports those
reasons. Accordingly, Plaintiff’s challenges to the ALJ’s assessment of their opinions
lack merit.
ALJ Motta also assigned the opinions of Plaintiff’s therapist, Ms. Burgess, “little
weight.” (Doc.#6, PageID #51). She correctly observed that as a therapist, Ms. Burgess
16

in not an “acceptable medical source” under 20 C.F.R. § 416.913. Instead, she falls
under the category of “other sources.” 20 C.F.R. § 416.913(d). “Although there is a
distinction between what an adjudicator must consider and what the adjudicator must
explain in the disability … decision, the adjudicator generally should explain the weight
given to opinions from these ‘other sources’ ….” Soc. Sec. R. 06-03p, 2006 WL
2329939, at *6 (Aug. 9, 2006).3 The same factors that are used to evaluate opinions from
acceptable medical sources can be applied to opinions from other sources. Id. at *4-5
ALJ Motta did provide reasons for assigning Ms. Burgess’s opinions little weight.
For the most part, the ALJ’s reasons for rejecting Dr. Dahar’s opinions are the same as
her reasons for discounting Ms. Burgess’s opinion. First, she found Ms. Burgess’s
opinions were “unsupported by objective signs and findings in the preponderance of the
record.” (Doc.#6, PageID #51). Second, she observed that Ms. Burgess’s opinions are
“inconsistent with her own statements on several occasions that the claimant was ‘making
progress,’ ‘functioning fairly well,’ or ‘maintaining her stability well[.]’” Id. at 51
(citations omitted). For the same reasons explained above, substantial evidence supports
the ALJ’s reasons.
Additionally, ALJ Motta discounted her opinion because, “Ms. Burgess did not
offer any specific functional limitations in her assessments ….” (Doc.#6, PageID #51).
Plaintiff strongly disagrees, “This is a bizzare criticism which appears to neglect that

3

The Social Security Administration rescinded SSR 06-03p, effective March 27, 2017. See Federal
Register Notice Vol. 82, No. 57, page 15263. At the time of ALJ Motta’s decision, SSR 06-03p was still
in effect.

17

Therapist Burgess not only responded to interrogatories … but also cosigned forms
completed with Drs. Dahar and Hash. (Doc.#11, PageID #824).
Overall, Ms. Burgess’s opinions are relatively vague. For example, in June 2014,
she opined that Plaintiff was unable to work “due to the nature of her symptoms and
demonstrates the need to continue working to stabilize and regain her typical functioning
in the community.” (Doc. #6, PageID #601). In comparison, Mary K. Hill, Ph.D.,
explained, “[plaintiff’s] psych [symptoms] will limit [concentration/persistence/pace] and
her ability to tolerate normal work pressures. [She is] able to perform 1-4 step tasks
[with] no more than moderate pace or production quotas.” Id. at 137.
Plaintiff is correct that she co-signed the opinions with the doctors. But,
regardless of whether they include specific functional limitations, ALJ Motta assigned
little weight to those opinions and (for the reasons explained above) substantial evidence
supports her conclusion.
In comparison, ALJ Motta assigned significant weight to the opinions of state
agency reviewing psychologists, Dr. Warren and Dr. Hill. She gave greater weight to Dr.
Hill’s (more recent) opinion, concluding it was supported by objective signs and findings
in the record, including the records submitted after her assessment. Id. at 49; see 20
C.F.R. § 416.927(c)(3). Indeed, ALJ Motta “essentially adopted” the limitations opined
by Dr. Hill.4 Plaintiff contends that ALJ Motta did not adequately explain her reasons for

4

As described above, Dr. Hill opined Plaintiff is “able to perform 1–4 step tasks [with] no more than
moderate pace or production quotas.” (Doc. #6, PageID #137). Her “[i]nteractions [with] others need to
be on a superficial level. No conflict resolution or persuading others.” Id. She is “able to work in a static
environment where change is explained and gradually introduced.” Id. at 138.

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giving Dr. Hill significant weight and failed to apply the same scrutiny, let alone greater
scrutiny, to Dr. Hill’s opinion that she did to Plaintiff’s treating physicians. Plaintiff’s
arguments lack merit.
ALJ Motta reasonably relied on the opinions of the record-reviewing
psychologists. See 20 C.F.R. § 416.927(e)(2)(i); Soc. Sec. R. 96-6p, 1996 WL 374180,
*2 (July 2, 1996)5 (“State agency medical and psychological consultants are highly
qualified physicians and psychologists who are experts in the evaluation of the medical
issues in disability claims under the Act.”). Because ALJ Motta “essentially adopted” Dr.
Hill’s opinion, the objective evidence the ALJ Motta identifies in support of her RFC
assessment is the same evidence that supports Dr. Hill’s opinion. For instance, the ALJ
observed that Plaintiff remained relatively stable with continued medication management
and counseling. (Doc. #6, PageID #46).
Further, ALJ Motta adjusted her RFC assessment based on the evidence obtained
after Dr. Hill reviewed Plaintiff’s record. To account for Plaintiff’s mood disorder and
potential drug-seeking behavior, ALJ Motta limited Plaintiff to simple, repetitive tasks.
Id. at 49. Further, ALJ Motta did not adopt Dr. Hill’s limitation to “superficial
interactions” because it is not defined in the Regulations and, instead, limited Plaintiff to
no public contact and occasional contact with coworkers and supervisors, including no
teamwork. Id.
In sum, the medical evidence of record paints a less restrictive picture of

5

The Social Security Administration rescinded SSR 96-6p and replaced it with SSR 17-2p, 2017 WL
3928306, effective March 27, 2017. At the time of ALJ Motta’s decision, SSR 96-6p was still in effect.

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Plaintiff’s mental functional abilities than does Dr. Dahar’s and Ms. Burgess’s opinions.
ALJ Motta provided the requisite “good reasons” for discounting the opinions and she
appropriately weighed and discounted the opinions in accordance with the law.
B.

Daily Activities

Plaintiff contends that ALJ Motta improperly identified her daily activities as an
adverse disability factor. (Doc. #11, PageID #827).
The Social Security Administration uses a two-step process for evaluating an
individual’s symptoms. First, the ALJ determines whether an individual has a medically
determinable impairment that could reasonably be expected to produce the individual’s
alleged symptoms. Soc. Sec. R. 16-3p, 2016 WL 1119029, *3 (March 16, 2016).6
Second, the ALJ evaluates the intensity and persistence of the individual’s symptoms and
determines the extent to which the individual’s symptoms limit her ability to perform
work-related activities. Id. at *4. To do this, the ALJ must examine the entire case
record, including the objective medical evidence; the individual’s relevant statements;
statements and other information provided by medical sources and others; and any other
relevant evidence in the record. Id. at *4. The ALJ should also consider several factors:
1.
2.
3.
4.

Daily activities;
The location, duration, frequency, and intensity of pain or other
symptoms;
Factors that precipitate and aggravate the symptoms;
The type, dosage, effectiveness, and side effects of any
medication an individual takes or has taken to alleviate pain or
other symptoms;

6

Soc. Sec. R. 16-3p was republished on October 25, 2017 to clarify that the Administration’s adjudicators
will apply Soc. Sec. R. 16-3p when they make decisions on or after March 28, 2016. Soc. Sec. R. 16-3p,
2017 WL 5180304 (October 25, 2017).

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5.
6.

7.

Treatment, other than medication, an individual receives or has
received for relief of pain or other symptoms;
Any measures other than treatment an individual uses or has
used to relieve pain or other symptoms (e.g., lying flat on his
or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and
Any other factors concerning an individual’s functional
limitations and restrictions due to pain or other symptoms.

Id. at *7; see also 20 C.F.R. § 416.929(c)(3). The Administration stresses that it “will
consider other evidence to evaluate only the factors that are relevant to assessing the
intensity, persistence, and limiting effects of the individual’s symptoms.” Id. at *7. And
if there is no evidence regarding one of the factors, that factor will not be discussed. Id.
In the present case, ALJ Motta followed these steps. First, she found Plaintiff had
several severe impairments: mood disorder, anxiety disorder, personality disorder, and
polysubstance abuse in reported remission. (Doc. #6, PageID #41). Second, she
concluded that Plaintiff’s statements concerning the intensity, persistence, and limiting
effects of her symptoms were not entirely consistent with the evidence of record. In
support, the ALJ examined—as required—the objective medical evidence, Plaintiff’s
statements, and other relevant information. Further, she considered the factors, including,
as is relevant here, Plaintiff’s daily activities. ALJ Motta found that her description of
daily activities was inconsistent with her complaints of disabling symptoms and
limitations. The ALJ explained, for example, that in August 2015, Plaintiff reported that
she was active in her church and also spent time with her teenage son, working out, and
doing “other healthy activities” with him. Id. at 47 (citation omitted). Additionally, she
drives every day but does not like to drive long distance or at night. Id. at 791, 804. She

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regularly attends church, Narcotics Anonymous meetings, and does not have any trouble
going to the store or shopping. Id.; (Doc. #10, PageID #799). She concluded that
Plaintiff’s activities “support[] a finding that [Plaintiff] remains capable of performing
work involving the reduced range of medium exertion described [in the residual
functional capacity assessment].” (Doc. #6, PageID #47).
ALJ Motta does not suggest that because Plaintiff can go shopping, she can also
sustain full-time employment. Instead, the ALJ found that her activities of daily living
were inconsistent with her alleged disabling symptoms and limitations. This was only
one of several factors ALJ Motta considered in evaluating Plaintiff’s symptoms. For
instance, she also looked at Plaintiff’s response to treatment. Id. at 45 (“She has shown a
relatively good response to treatment and abstinence from substances ….”). Further, the
ALJ questioned whether Plaintiff’s reported symptoms were for the purpose of treating
psychological symptoms or for obtaining drugs to use and/or sell. Id. at 47. In sum, ALJ
Motta reasonably evaluated Plaintiff’s daily activities as set forth in the Regulations and
Social Security Ruling 16-3p. Accordingly, Plaintiff’s challenges to the ALJ’s decision
lack 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: June 4, 2019

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

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