Klusmeier v. Social Security Administration, Commissioner of (PLR1)

Filing 24

MEMORANDUM OPINION in support of the following Order dismissing case. Signed by District Judge Pamela L. Reeves on 3/17/17. (ADA)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DELORIS A. KLUSMEIER,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

No. 3:16-cv-00039
REEVES/SHIRLEY

MEMORANDUM OPINION
This case is before the Court on the Plaintiff’s Motion for Judgment on the Pleadings and
Memorandum in Support [Docs. 19 and 20] and the Defendant’s Motion for Summary Judgment
and Memorandum in Support [Docs. 21 and 22]. Deloris A. Klusmeier (“the Plaintiff”) seeks
judicial review of the decision of the Administrative Law Judge (“the ALJ”), and the final decision
of the Defendant Carolyn W. Colvin, Acting Commissioner of Social Security (“the
Commissioner”).
On February 29, 2012, the Plaintiff filed an application for supplemental security income
(“SSI”), claiming a period of disability which began March 1, 2000. [Tr. 151-56]. After her
application was denied initially and upon reconsideration, the Plaintiff requested a hearing. [Tr.
95]. On April 28, 2014, a hearing was held before an ALJ to review determination of Plaintiff’s
claim. [Tr. 37-59]. On August 11, 2014, the ALJ found that the Plaintiff was not disabled. [Tr.
8-34]. The Appeals Council denied the Plaintiff’s request for review [Tr. 1-6]; thus, the decision
of the ALJ became the final decision of the Commissioner.

During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner Carolyn W. Colvin. Pursuant
to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the Defendant in this case.

1

Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on January 20, 2016, seeking judicial review of the Commissioner’s final decision under
Section 405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive
motions, and this matter is now ripe for adjudication.
I.

ALJ FINDINGS
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since
February 29, 2012, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe impairments:
osteoarthritis; degenerative disc disease (DDD); morbid obesity;
dysthymic disorder; post-traumatic stress disorder (PTSD); social
phobia; and rule out borderline intellectual functioning (BIF) (20
CFR 416.920(c)).
3. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform light work
as defined in 20 CFR 416.967(b). The claimant can lift and carry,
push and pull 20 pounds occasionally and 10 pounds frequently,
with the exception of occasional pushing and pulling with the right
lower extremity. With normal breaks in an eight-hour day, she can
sit for six hours, and stand and/or walk for six hours; can
occasionally climb ladders, ropes, and scaffolds; can frequently
climb ramps and stairs; and can frequently balance, stoop, kneel,
crouch, and crawl. The claimant’s far acuity is limited to gross
vision, meaning that objects 20 feet away can be blurry. The
claimant can understand and remember for one to three step tasks,
can maintain attention and concentration for at least two hour
periods; cannot work in a public setting, can sustain superficial
interaction with her peers; and can adapt to gradual change.
5. The claimant has no past relevant work (20 CFR 416.965).
6. The claimant was born on June 22, 1971 and was 40 years old,
2

which is defined as a younger individual age 18-49, on the date the
application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue because the claimant
does not have past relevant work (20 CFR 416.968)
9. Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the
Social Security Act, since February 29, 2012, the date the
application was filed (20 CFR 416.920(g)).
[Tr. 13-28].

II.

DISABILITY ELIGIBILITY
This case involves an application for SSI benefits. To qualify for SSI benefits, an

individual must file an application and be an “eligible individual” as defined in the Act. 42 U.S.C.
§ 1382(a); 20 C.F.R. § 416.202. An individual is eligible for SSI benefits on the basis of financial
need and either age, blindness, or disability. See 42 U.S.C. § 1382(a).
“Disability” is “the inability to do any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or which has
lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C.
§ 1382c(a)(3)(A); 20 C.F.R. § 416.905(a).
A claimant will only be considered disabled if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
3

national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B); see also 20 C.F.R. § 416.905(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
Plaintiff bears the burden of proof at the first four steps. Id. The burden shifts to the Commissioner
at step five. Id. At the fifth step, the Commissioner must prove that there is work available in the
national economy that the claimant could perform. Her v. Comm’r of Soc. Sec., 203 F.3d 388,
391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).

III.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the ALJ applied the
4

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, 405 (6th Cir. 2009) (citing Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the correct legal standards and his findings are
supported by substantial evidence in the record, his decision is conclusive and must be affirmed.
42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). Substantial
evidence is “more than a scintilla of evidence but less than a preponderance; it is such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citing Kirk v. Secretary of Health &
Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)) (internal citations omitted).
It is immaterial whether the record may also possess substantial evidence to support a
different conclusion from that reached by the ALJ, or whether the reviewing judge may have
decided the case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th
Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice’ within
which the Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246
F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide
questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v.
Richardson, 471 F.2d 1265 (6th Cir. 1972)).
In addition to reviewing the ALJ’s findings to determine whether they were supported by
substantial evidence, the Court also reviews the ALJ’s decision to determine whether it was
reached through application of the correct legal standards and in accordance with the procedure
mandated by the regulations and rulings promulgated by the Commissioner. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
5

On review, the plaintiff “bears the burden of proving his entitlement to benefits.” Boyes
v. Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v. Richardson,
441 F.2d 1230 (6th Cir. 1971)).

IV.

POSITIONS OF THE PARTIES
On appeal, the Plaintiff argues that the ALJ did not properly apply the treating physician

rule, 20 C.F.R. § 416.927(c)(2), to the opinion of John McElligott, M.D., because the ALJ did not
assess the opinion for controlling weight. [Doc. 20 at 8-15]. In addition, the Plaintiff asserts that
the ALJ’s residual functional capacity (“RFC”) determination is not supported by substantial
evidence, because the ALJ purported to adopt the standing and walking limitations assessed by
consultative examiner Jeffery Summers, M.D., but did not incorporate the limitation into the
Plaintiff’s RFC. [Id. at 16-18]. Lastly, the Plaintiff submits that the ALJ erred by not adequately
explaining why one marked limitation – the ability to adapt to ordinary work situations and routine
changes in the workplace – assessed by consultative examiner Ellen Denny, Ph.D., was rejected.
[Id. at 18-21].
The Commissioner responds that the ALJ properly addressed and weighed Dr. McElligott’s
opinion, and the ALJ gave multiple “good reasons” for assigning the opinion less than controlling
weight as required by the regulations. [Doc. 22 at 7-14]. The Commissioner also maintains that
the Plaintiff is mistaken with regard to Dr. Summers’s opinion as the RFC includes the standing
and walking limitations he assessed. [Id. at 17-18]. Finally, the Commissioner contends that
substantial evidence supports the ALJ’s decision to reject Dr. Denny’s marked limitation but that
the ALJ nonetheless accommodated the restriction by limiting the Plaintiff to gradual changes.
[Id. at 18-21].
6

The Plaintiff filed a reply, arguing that the ALJ’s failure to assess Dr. McElligott’s opinion
for controlling weight precludes the ALJ from fulfilling the “good reason” requirement mandated
by the treating physician rule. [Doc. 23 at 1-3]. The Plaintiff also submits that Dr. Summers’s
opinion that the Plaintiff could only stand for four hours conflicts with the requirements of light
work as well as the ALJ’s RFC determination which limits the Plaintiff to standing and/or walking
for six hours. [Id. at 3-4]. Moreover, the Plaintiff maintains that limiting the Plaintiff to gradual
changes does not accommodate a substantial loss in the ability to respond appropriately to usual
work situations or changes in a routine setting. [Id. at 4-5].

V.

ANALYSIS
The Court will address the Plaintiff’s allegations of error in turn.
A.

Treating Physician John McElligott, M.D.

The Plaintiff contends that the ALJ did not properly assess Dr. McElligott’s opinion pursuant to
the treating physician rule.
Dr. McElligott examined the Plaintiff on four separate occasions beginning on July 18, 2011. [Tr.
795-807]. At that time, the Plaintiff complained of moderate pain in her lumbar spine, knees, and
ankles, as well as lower extremity edema and swelling, anxiety, depression, and post-traumatic
stress disorder. [Tr. 804-05]. Upon examination, the Plaintiff demonstrated Bells Palsy right with
tearing of the right eye, degenerative joint disease of both knees and ankles with instability of
compartment ligament testing, and decreased breath sounds bilaterally. [Tr. 806]. In addition, the
Plaintiff appeared angry and depressed. [Id.]. The Plaintiff was diagnosed with degenerative joint
disease of the knees and ankles, idiopathic low back pain, hypertension, hyperthyroid, Bell’s Palsy,
obesity, sleep apnea, and bradycardia. [Id.].
7

The Plaintiff returned for follow-up visits on August 17, 2011, September 6, 2011, and November
3, 2011. [Tr.795-803]. Treatment notes from each visit reflect that “[t]he examination, as
compared to previous visit/s has not changed.” [Tr. 796, 799, 802]. During the September 6, 2011
examination, Dr. McElligott reviewed an MRI of an ACL tear of the right knee which confirmed
the Plaintiff’s joint and spine complaints. [Tr. 799-800]. During the last examination on
November 3, 2011, Dr. McElligott opined that due to the Plaintiff’s diagnoses, “he/she must stand
less than 2 hours as part of an 8 hour work day. Due to the patient’s physical and/or psychiatric
condition, the patient is unable to complete an 8hr. work day without interruption.” [Tr. 797]. In
addition, Dr. McElligott found that the Plaintiff had been disabled since 2010. [Id.].
In the disability determination, after summarizing the diagnoses and limitations assessed by Dr.
McElligott, the ALJ assigned the opinion “limited weight.” [Tr. 21]. Citing to the length of the
treating relationship, the frequency of examination, the nature and extent of the treatment
relationship, the supportability and consistency of the opinion, as well as the specialization of Dr.
McElligott, the ALJ provided specific reasons as to why each factor weighed in favor of assigning
no more than limited weight to the opinion. [Tr. 22-23].
Under the Social Security Act and its implementing regulations, if a treating physician’s opinion
as to the nature and severity of an impairment is (1) well-supported by medically acceptable
clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other substantial
evidence in the case record, it must be given “controlling weight.” 20 C.F.R.§ 416.927(c)(2).
When an opinion does not garner controlling weight, the appropriate weight to be given to an
opinion will be determined based upon the length of treatment, frequency of examination, nature
and extent of the treatment relationship, amount of relevant evidence that supports the opinion, the
opinion’s consistency with the record as a whole, the specialization of the source, and other factors
8

which tend to support or contradict the opinion. Id.
When an ALJ does not give a treating physician’s opinion controlling weight, the ALJ must always
give “good reasons” for the weight given to a treating source’s opinion in the decision. Id. A
decision denying benefits “must contain specific reasons for the weight given to the treating
source’s medical opinion, supported by evidence in the case record, and must be sufficiently
specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating
source’s medical opinion and the reasons for the weight.” Soc. Sec. Rul. 96-2p, 1996 WL 374188
at *5 (July 2, 1996).
Relying on the Sixth Circuit Court of Appeal’s opinion in Gayheart v. Comm’r of Soc. Sec., 710
F.3d 365, 376-77 (6th Cir. 2013), the Plaintiff argues that 20 C.F.R. § 416.927(c)(2) articulates a
distinct two-step evaluation process for weighing a treating source’s opinion and that the ALJ
failed to comply with the first step. [Doc. 20 at 8-9]. The Plaintiff submits that first, the ALJ must
determine whether the treating physician’s opinion deserves controlling weight by articulating
whether the opinion is (1) well-supported by medically acceptable clinical and laboratory
diagnostic techniques and (2) not inconsistent with the other substantial evidence in the case
record. [Id. at 9-10]. Only if the ALJ finds that the opinion is not due controlling weight, does the
ALJ move to the second step which requires consideration of the regulatory balancing factors to
determine the appropriate weight the opinion deserves. [Id.]. The Plaintiff submits that the ALJ
shortcuts the process by bypassing the first step altogether.
The Commissioner responds that articulation of such a two-step evaluation process is not required
by the regulations. [Doc. 22 at 9]. The Commissioner argues that the regulations require that the
ALJ give “good reasons” in his decision for the weight assigned and that the ALJ did just that in
this case. [Id. at 9-10]. The Commissioner posits that Gayheart did not mandate a two-step
9

evaluation process, and that the Sixth Circuit found error in that case because the ALJ failed to
provide “good reasons” for discounting the treating physician’s opinion which is the opposite of
what occurred in the present matter. [Id. at 11-12].
The Court finds the Sixth Circuit’s decision in Wilson v. Comm’r of Soc. Sec., 378 F.3d
541, 545 (6th Cir. 2004) instructive. In Wilson, the Court found that the ALJ did not give “good
reason” for dismissing the treating source’s opinion, in part, because there was no mention whether
the treating source’s opinion was entitled to controlling weight. The Court held:
In particular, the ALJ failed to clarify whether DeWys’s opinion was
not “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” or was “inconsistent with the
other substantial evidence in [the] case record,” 20 C.F.R. §
404.1527(d)(2), did not identify the evidence supporting such a
finding, and did not explain its application of the factors listed in 20
C.F.R. § 404.1527(d)(2) to determine the weight given to DeWys’s
opinion. Reversal is therefore required.
378 F.3d at 546 (emphasis added). Thus, Wilson suggests that the ALJ should have provided some
discussion whether the treating source’s opinion met the controlling-weight test and identify the
evidence that supported the ALJ’s finding.
In Gayheart, the Sixth Circuit further clarified application of the controlling-weight test
and the importance of the “good reason” requirement. The Court explicitly concluded that the
ALJ did not provide “good reason” for why the treating source’s opinions were not well-supported
by objective findings and were not consistent with other substantial evidence – the requisite criteria
for controlling weight. 710 F.3d at 376. In support of its finding that the ALJ should have, but
did not, provide any discussion of the controlling-weight test, the Court stated:
To be sure, the ALJ discusses the frequency and nature of Dr.
Onady’s treatment relationship with Gayheart, as well as alleged
internal inconsistencies between the doctor’s opinions and portions
of her reports. But these factors are properly applied only after the
10

ALJ has determined that a treating-source opinion will not be given
controlling weight.
Id. (emphasis added). The Court observed that the ALJ did not sufficiently explain why the
treating source’s opinions were not well-supported by objective evidence, nor did the ALJ identify
the substantial evidence that was inconsistent with the opinions. Id. at 377. Although “the ALJ
provided a modicum of reasoning” for ultimately assigning the treating source’s opinions little
weight, the Court found that these reasons were relevant to how the “opinions should be weighed
after determining that they were not controlling.” Id. (emphasis in the original).
Thus, in light of Sixth Circuit jurisprudence, the Court finds that the regulations require an
ALJ to first articulate whether, and why, a treating source’s opinion is well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in the case record, i.e., the controlling-weight test, and, second, to the extent
the treating source’s opinion is not entitled to controlling weight, the ALJ must then weigh the
regulations’ balancing factors – the length of the treatment relationship and the frequency of the
examination, the nature and extent of the treatment relationship, the supportability of the opinion,
the consistency of the opinion with the record as a whole, the specialization of the source, and any
other factors which tend to support or contradict the opinion – to determine the amount of weight
the opinion deserves. See Cummings v. Comm’r of Soc. Sec., No. 3:11-CV-614, 2013 WL
1192817, at *5 (E.D. Tenn. Mar. 22, 2013) (CJ. Varlan) (holding that the regulatory balancing
factors are only properly applied after the ALJ has determined that a treating-source opinion is not
entitled to controlling weight).
In the present matter, the Court agrees with the Plaintiff and finds that the ALJ shortcut the
process. Specifically, the ALJ did not explain whether Dr. McElligott’s opinion was entitled to
11

controlling weight or give any indication that it was first assessed for controlling weight before
moving into the regulatory balancing factors. [Tr. 21]. In other words, the ALJ failed to clarify
whether the opinion was supported by medically acceptable techniques and not inconsistent with
other credible evidence. Instead, after summarizing the opinion, the ALJ immediately assigned
the opinion “limited weight” and went straight into the regulatory balancing factors in an effort to
explain why the opinion was entitled to limited weight. [Tr. 21-23]. However, “these factors are
properly applied only after the ALJ has determined that a treating-source opinion will not be given
controlling weight.” Gayheart, 710 F.3d at 376.
The Commissioner concedes that the ALJ did not articulate the test for controlling weight, but
argues that the treating physician rule was nonetheless satisfied because the ALJ provided “good
reasons” why the opinion was only entitled to limited weight. [Doc. 22 at 12]. Because the ALJ
provided “good reasons,” the Commissioner submits that the Court is able to conduct a
“meaningful review” of the ALJ’s application of the treating physician rule. [Id. at 11]. The
Plaintiff alleges that addressing the “supportability” and “consistency” regulatory balancing
factors does not absolve the ALJ’s violation because the decision cannot fulfill the “good reason”
requirement if it is silent as to why a treating physician’s opinion does not merit controlling weight.
[Docs. 22 at 12-14, 23 at 2].
The Court observes that the failure to provide “good reasons” for not giving a treating source’s
opinion controlling weight hinders a meaningful review of whether the ALJ properly applied the
treating-physician rule. Id. at 377. However, the Court need not remand the case if the violation
is harmless error. A violation of the “good reason” rule can be deemed harmless error if:
(1) a treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it; (2) if the Commissioner
adopts the opinion of the treating source or makes findings
12

consistent with the opinion; or (3) where the Commissioner has met
the goal of § [927(c)(2)] . . . even though she has not complied with
the terms of the regulation.
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir.2010) (citation omitted). The
Court finds that the third exception is applicable here. Although the ALJ did not discuss whether
Dr. McElligott’s opinion was entitled to controlling weight before balancing the regulatory factors,
the ALJ sufficiently explained what weight the opinion deserved and the reasons for that weight,
which the Court finds is supported by substantial evidence and makes clear to subsequent
reviewers the reason for the assignment of limited weight.
First, the ALJ observed that Dr. McElligott had only examined the Plaintiff on four occasions
during a four-month period before rendering his opinion. [Tr. 22]. The brief nature of the treating
relationship is a factor that may undermine a treating physician’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.”). Second, the ALJ considered the nature and extent of the treating relationship by
observing that Dr. McElligott was the medical director of an occupational health clinic. [Tr. 22].
In this regard, the Court observes that Dr. McElligott’s treatment notes suggest that the Plaintiff
was seen for the purpose of obtaining a functional evaluation rather than to establish long-term or
routine medical care. Indeed, the Plaintiff was only examined on four occasions and until Dr.
McElligott was able to establish functional restrictions, and no extensive examinations or
diagnostic testing was conducted.

[Tr. 796-97, 799-800, 802, 806]; see 20 C.F.R. §

416.927(c)(2)(ii) (“We will look at the treatment the source has provided and at the kinds and
extent of examinations and testing the source has performed.”).
With regard to the supportability of the opinion and consistency of the opinion with the record as
13

a whole, the ALJ made a number of findings. As to Dr. McElligott’s finding that the Plaintiff
would be unable to complete an eight-hour workday, the ALJ noted that such a finding is not a
medical opinion but an issue reserved for the Commissioner. See 20 C.F.R. § 416.927(d)(2)
(opinions that amount to a finding that a claimant is “disabled” or “unable to work” are “opinions
on issues reserved to the Commissioner because they are administrative findings that are
dispositive of a case.”).
The ALJ also observed that the opinion used form wording, such as words and phrases that
included “he/she” and “physical and/or psychiatric condition” and provided no functional
limitations, such as walking, sitting, manipulative, visual, communicative or environmental
limitations, beyond the restriction against standing more than two hours in an eight-hour workday.
[Tr. 22]. The ALJ observed that no analysis or explanation was given as to why the Plaintiff could
only stand two hours. [Id.]. The ALJ reasonably noted that Dr. McElligott’s opinion that the
Plaintiff could not work without interruption due to her “physical and/or psychiatric condition” is
confusing as “we do not know whether this is because of physical reasons and what they were, or
if it is because of psychiatric reasons and what they were, as there is no explanation.” [Id.].
Similarly, the ALJ noted that Dr. McElligott opined that the Plaintiff had been disabled since
March 2000 without any explanation as to how the Plaintiff’s impairments and standing limitation
could be pinpointed to March 2000 when Dr. McElligott began treatment in July 2011. [Tr. 2223]. As pointed out by the Plaintiff [Doc. 20 at 14 n.2], Dr. McElligott actually opined that the
Plaintiff had been disabled since March 2010 [Tr. 797], not March 2000 which serves as the
Plaintiff’s alleged onset date. However, the Court finds the ALJ’s misstatement in this regard
harmless. Nothing within Dr. McElligott’s opinion or treatment notes explain or provide a basis
for concluding that the Plaintiff became disabled in March 2010. [Tr. 795-807]. The arbitrary
14

selection of March 2010 is particularly perplexing given the date Dr. McElligott began treating the
Plaintiff which was July 18, 2011. Therefore, the ALJ’s conclusion that “[i]t is difficult to see
how Dr. McElligott could pin point the [disability] date so precisely” was reasonable. [Tr. 22];
see Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 651 (6th Cir. 2009) (finding it proper to reject a
treating physician’s opinion as speculative regarding the claimant’s symptoms for the two-year
period before the physician first treated him).
Moreover, the ALJ noted that the record was void on any medical evidence from August 2013
through the hearing date of April 28, 2014. The ALJ permissibly observed that the lack of
treatment indicated the possibility that the Plaintiff’s impairments may not be as severe as alleged.
[Tr. 23]; see Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir. Feb. 3, 2004) (“In the
ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable
expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt
on a claimant’s assertions of disabling pain.”). 2 Further, the ALJ deferred to certain less restrictive
limitations opined by consultative examiner Dr. Summers. [Tr. 23, 824]. Putting aside the
challenges raised by the Plaintiff as to Dr. Summers’s opinion, which the Court will address more
fully below, a competing medical opinion from a non-treating source identified with other
substantial evidence in the record may constitute “good reason” for declining to give a treating
source’s opinion greater deference. See Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 391 (6th
Cir. 2004) (substantial evidence supported rejection of a treating physician’s opinion that the

The Plaintiff asserts that the “lack of treatment is a credibility factor which the ALJ had a duty to investigate before
using it against Plaintiff.” [Doc. 20 at 14]. Social Security Ruling 96-7p provides that “the adjudicator must not draw
any inferences about an individual’s symptoms and their functional effects from a failure to seek or pursue regular
medical treatment without first considering any explanations that the individual may provide.” 1996 WL 374186, *7
(July 2, 1996) superseded by Soc. Sec. Rul. 16-3p, 2016 WL 1119029, at *1 (effective Mar. 28, 2016, subsequent to
the ALJ’s decision). Neither the Plaintiff or the record, however, have offered any possible reason for failing to pursue
treatment that would necessitate further inquiry by the ALJ before drawing an adverse inference.
2

15

claimant could stand or walk no more than two hours in an eight-hour workday where there were
contrary medical opinions in the record and other substantial evidence). In addition, the ALJ found
relevant the denial of the Plaintiff’s previous application for SSI dated May 18, 2010, which
alleged the same onset date – March 1, 2000 – as the current application now before the Court.
[Tr. 23]. The ALJ found significant that the prior application was denied only five months before
the current application was filed. [Id.].3
Finally, as to Dr. McElligott’s specialization, the ALJ noted that Dr. McElligott was a medical
doctor and that the record was void of any evidence that he had mental health training. [Tr. 23].
Although a physician’s lack of mental-health specialization does not necessarily disqualify him
from opining on a claimant’s mental status, “It is well established that primary care physicians
(those in family or general practice) identify and treat the majority of Americans psychiatric
disorders.” Sprague v. Bowen, 812 F.2d 1226, 1232 (9th Cir. 1987). In this case, Dr. McElligott
does not state what mental impairments specifically affect the Plaintiff’s ability to work and why
[Tr. 797], a fact recognized by the ALJ [Tr. 22]. Dr. McElligott noted that the Plaintiff had ongoing treatment for anxiety and depression [Tr. 796], but beyond that notation, Dr. McElligott did
not make any specific examination findings or conduct any diagnostic testing to justify a finding
that the Plaintiff’s “psychiatric condition” would interrupt the Plaintiff’s ability work an eighthour workday. Therefore, the ALJ’s finding that Dr. McElligott’s specialization did not render
him qualified to opine on the limiting effects of the Plaintiff’s mental condition constitutes “good
reason.”

In a footnote, the Plaintiff argues that “an opinion about an ongoing medical problem rendered five months before a
claim is still relevant.” [Doc. 20 at 14, n.2]. The Court does not disagree with the Plaintiff’s contention, but the
purpose of the ALJ’s finding was with regard to when the Plaintiff’s alleged disability began, not the ongoing nature
of her medical problems.

3

16

The Plaintiff contends, however, that the ALJ’s discussion of the “‘supportability’ and
‘consistency’ factors in the second step does not absolve an ALJ decision from ignoring the first
step” and that although discussion of the regulatory balancing factors may provide understanding
for the ultimate weight assigned, “reviewability does not save a decision that violates the rules.”
[Doc. 20 at 12]. The Plaintiff relies on Gayheart for the proposition that discussion of the
regulatory balancing factors does not cure the ALJ’s failure to first assess a treating physician’s
opinion for controlling weight. [See id.]. The reasons for ultimately finding reversible error in
Gayheart, however, is distinguishable from the instant case. Not only did the ALJ in Gayheart fail
to provide “good reason” for not giving the treating source’s opinions controlling weight, the
“modicum of reasoning” the ALJ did provide with regard to how the opinions should be weighed
“fail to justify giving those opinions ‘little weight.’” 710 F.3d at 377. For example, the ALJ cited
to activities the Plaintiff engaged in as evidence that the mental impairments were not as severe as
alleged. Id. However, the Court observed that the record did not support a finding that the claimant
could perform the cited activities on a sustained basis and other examples of activities cited by the
ALJ were found to be taken out of context as the result of focusing on isolated pieces of the record.
Id.
In the present case, however, the reasons cited by the ALJ are supported by the record as detailed
above. Moreover, the Plaintiff does not set forth any specific error regarding the reasons given by
the ALJ except in a footnote in which the Plaintiff states, “it should be noted that some of the
ALJ’s Second Level findings are either wrong or inappropriate.” [Doc. 20 at 14 n.2]. The Plaintiff
then cites to the ALJ’s misstatement regarding the year Dr. McElligott noted that the Plaintiff
became disabled as well as the ALJ’s citation to the Plaintiff’s prior application for SSI [Id.], points
which have been addressed above. The Plaintiff’s generalized argument that the remaining reasons
17

given by the ALJ are “either wrong or inappropriate” is undeveloped and therefore waived. See
McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir.1997) (Issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not
sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to
put flesh on its bones).
Further, Sixth Circuit case law makes clear that violation of the treating physician rule may be
harmless where “the ALJ’s analysis meet[s] the goal of the rule even if not meeting its letter.”
Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. 2006); see Friend v. Comm’r
of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion permits the claimant
and a reviewing court a clear understanding of the reasons for the weight given a treating
physician’s opinion, strict compliance with the rule may sometimes be excused.”); Wilson, 378
F.3d at 547 (“[W]here the Commissioner has met the goal of § [927(c)](2)—the provision of the
procedural safeguard of reasons—even though she has not complied with the terms of the
regulation,” the ALJ’s violation of the procedural requirement of § 927(c) is harmless).
In Nelson, although the ALJ did not articulate reasons why the treating sources’ opinions were not
entitled to controlling weight, the Sixth Circuit excused the error because
the ALJ’s discussion of the other record evidence about Nelson’s
mental impairments makes clear that the opinions of Drs. Cook and
Peterson as to Nelson’s limitations do not meet one of the two
criteria for controlling weight: that the opinion be consistent with
the other record evidence as a whole. Drs. Cook and Peterson found
considerable limitations on Nelson’s work abilities, as detailed
above.
Id. at 470-71.

Here, like Nelson, the reasons provided by the ALJ demonstrate that Dr.

McElligott’s opinion was inconsistent with other substantial evidence, thereby failing to meet the

18

second prong of the controlling-weight test.4 In other words, despite the ALJ’s failure to first
assess Dr. McElligott’s opinion for controlling weight, the ALJ went on to provide “good reasons”
for the weight assigned and the reasons cited by the ALJ leave the Court with a clear understanding
of why Dr. McElligott’s opinion was discredited and only assigned limited weight.
Therefore, the Court finds that the goal of § 416.927(c)(2) was met. Accordingly, the Plaintiff’s
form over substance argument is unavailing. “Even when considering claims alleging violation of
the treating-source rule, we continue to believe that [w]hen remand would be an idle and useless
formality, courts are not required to convert judicial review of agency action into a ping-pong
game.” Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 463 (6th Cir. 2005) (internal quotations
omitted).
B.

Consultative Examiner

The Plaintiff also argues that the ALJ erred in his assessment of the opinions rendered by the
consultative examiners of record.
The Court observes that opinions from non-treating sources are never assessed for “controlling
weight.” Gayheart, 710 F.3d at 376. In fact, opinions rendered by one-time consultative examiners
are not due any special degree of deference. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
However, their opinions, like all medical opinions, must be considered. 20 C.F.R. § 416.927(c).
The Commissioner instead weighs these opinions based on the examining relationship (or lack

The Plaintiff argues that none of the reasons cited by the ALJ consider whether Dr. McElligott’s opinion is wellsupported by medically acceptable clinical and diagnostic techniques and that the ALJ ignores the fact that Dr.
McElligott based his opinion on the Plaintiff’s diagnoses of acute idiopathic back pain, degenerative disc disease of
the knees and ankles, and an ACL tear. [Doc. 20 at 14]. The ALJ, however, did consider Dr. McElligott’s diagnoses
[Tr. 18-19] and although he did not discuss them in the context of the first prong under the controlling-weight test, a
treating source’s opinion must also meet the second prong which the ALJ did discuss albeit with regard to the
regulatory balancing factors. Moreover, “disability is determined by the functional limitations imposed by a condition,
not the mere diagnosis of it.” Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 551 (6th Cir. 2014). Dr. McElligott’s
diagnosis alone does not explain the severity or functional effects of the Plaintiff’s medical conditions as recognized
by the ALJ. [Tr. 22].
4

19

thereof), specialization, consistency, and supportability, but only if a treating-source opinion is not
deemed controlling. Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)). Other factors
which tend to support or contradict the opinion may be considered in assessing any type of medical
opinion. Id. (quoting 20 C.F.R. § 404.1527(c)(6)).
1.

Jeffrey Summers, M.D.

On May 27, 2014, Dr. Summers examined the Plaintiff and opined on her physical
limitations. Dr. Summers provided a narrative report of the Plaintiff’s work-related limitations
[Tr. 819-22] and completed a form entitled “Medical Source Statement of Ability to Do WorkRelated Activities (Physical)” (“physical medical source statement”) that provided work-related
limitations in multiple-choice and short answer form. [Tr. 823-28]. Of relevance, Dr. Summers
opined in his narrative report that the Plaintiff would have “difficulty . . . standing and walking for
greater than 2 hrs. continuously or 4 hrs. in a single workday.” [Tr. 822]. In the physical medical
source statement, Dr. Summers opined that the Plaintiff could stand for two hours at one time
without interruption and up to four hours total in an eight-hour workday, and she could walk for
two hours at one time without interruption and stand for four hours total in an eight-hour workday.
[Tr. 824].
The ALJ summarized Dr. Summers’s narrative report and physical medical source
statement and assigned “partial weight” to Dr. Summers’s opinion. [Tr. 23]. However, the ALJ
specifically agreed with the standing and walking limitations assessed. [Id.]. The ALJ’s RFC
determination limits the Plaintiff to light work and an ability to “stand and/or walk for six hours”
in an eight-hour workday. [Tr. 17].
The Plaintiff argues that the RFC determination which limits the Plaintiff to six hours in
which she can stand and/or walk is greater than the stand/walk limitation assessed by Dr. Summers.
20

[Doc. 20 at 16]. The Commissioner contends that the Plaintiff misreads Dr. Summers’s opinion
by focusing on the narrative report only and not the physical medical source statement which
clarifies how long the Plaintiff can perform each activity. [Doc. 22 at 17-18].
The Court observes that Dr. Summers’s finding in his narrative report, that the Plaintiff
would have “difficulty standing and walking for greater than 2 hrs. continuously or 4 hrs. in a
single workday,” is somewhat ambiguous. It is unclear whether the Plaintiff can stand for four
hours and then walk for another four hours, or whether the Plaintiff can only alternate between
standing and walking for a combined total of four hours.

However, the Court finds that the

narrative report and the physical medical source statement must be read together and in doing so,
the physical medical source statement clarifies the opinion expressed in the narrative report.
The physical medical source statement expressly indicates that Dr. Summers was of the opinion
that the amount of time the Plaintiff can stand is separate and distinct from the amount of time the
Plaintiff can walk. [Tr. 824]. The physical medical source statement indicates that the Plaintiff
can stand for two hours continuously and four hours total and can walk for another two hours
continuously and four hours total. [Id.]. As such, the ALJ’s RFC determination which limited the
Plaintiff to six hours total which within she could stand and/or walk is not inconsistent with Dr.
Summers’s standing and walking limitation. [Tr. 17]. Therefore, the ALJ’s RFC determination is
also consistent with the definition of light work which “requires standing or walking, off and on,
for a total of approximately 6 hours of an 8-hour workday.” Soc. Sec. Rul. 83-10, 1983 WL 31251,
at *6 (Jan. 1, 1983).
The Plaintiff also contends that Dr. Summers’s opinion did not deserve more weight than
Dr. McElligott’s opinion because, according to the Plaintiff, Dr. Summers did not have a full
picture of the Plaintiff’s medical issues. [Doc. 20 at 15]. The Plaintiff argues that the absence of
21

any comments or notations by Dr. Summers concerning degenerative joint disease of the knees
and ankles, as well as an ALC tear, demonstrates that Dr. Summers could not have reviewed the
Plaintiff’s medical file. [Id.]. In addition, the Plaintiff cites to Dr. Summers’s notation that the
Plaintiff “provided her own background information.” [Id. (citing Tr. 819]). The Court, however,
is not persuaded.
First, the Plaintiff’s position requires speculation on the Court’s part in that the Court would have
to assume that Dr. Summers would make particular findings based on certain evidence. [See Doc.
20 at 15 (“Had [Dr. Summers] reviewed the record, he surely would have noted DJD in Plaintiff’s
ankles as well as both knees.”)]. A consultative examiner is not bound by the findings made by
other medical sources and instead must base his opinion on his own clinical impression given the
evidence presented. Second, and as pointed out by the Commissioner [Doc. 22 at 15], Dr.
Summers billed the agency for certain services, including “Record Review” [Tr. 817], which
suggests that Dr. Summers was given necessary background information about the Plaintiff’s
condition. See 20 C.F.R. § 416.917.
Therefore, the Plaintiff’s assignment of error is not-well taken.
2.

Ellen Denny, Ph.D.

The Plaintiff also alleges that the ALJ did not properly assess the opinion of Dr. Denny
who opined on the Plaintiff’s cognitive and psychological limitations.
Dr. Denny conducted a consultative examination on June 3, 2014. [Tr. 808-16]. Dr. Denny
opined on the Plaintiff’s limitations in a narrative report and “Medical Source Statement of Ability
to Do Work-Related Activities (Mental)” (“mental medical source statement”). [Id.]. Dr. Denny
concluded that the Plaintiff suffered from Post-Traumatic Stress Disorder and Persistent
Depressive Disorder, with anxious distress, early onset, with persistent depressive disorder,
22

moderate to severe. [Tr. 808, 812]. In relevant part, Dr. Denny opined in the mental medical
source statement that the Plaintiff had a “marked” impairment in her ability to “respond
appropriately to usual work situations and to changes in a routine work setting.” [Tr. 814]. As to
all other domains of functioning, Dr. Denny found that the Plaintiff had moderate, mild, or no
limitations. [Tr. 812-14].
The ALJ gave “great weight” to Dr. Denny’s opinion with regard to the diagnoses and all
of the limitations assessed in the mental medical source statement except that the Plaintiff was
markedly impaired in “responding appropriately to usual work situations and to changes in a
routine work setting.” [Tr. 26]. The ALJ reasoned that this particular limitation was not credible
because it “appear[ed] to be based on the claimant’s representations.” [Id.]. The ALJ continued,
“Nevertheless, I have accommodated the limitation in adaption by setting out in the RFC that the
claimant can adapt to gradual changes.” [Id.].
The Plaintiff argues that the ALJ’s finding that the Plaintiff “can adapt to gradual changes”
is inconsistent with Dr. Denny’s “marked limitation and says nothing about adapting to ordinary
work situations.” [Doc. 20 at 19]. In addition, the Plaintiff argues that discounting the marked
limitation because it appeared to be based on the Plaintiff’s subjective allegations is not an
appropriate basis to reject a mental limitation opined by a medical expert. [Id. at 19-20]. The
Commissioner argues that limiting the Plaintiff to gradual changes sufficiently accounts for the
Plaintiff’s marked limitation and that an ALJ is free to reject limitations that are based solely on a
claimant’s self-report. [Doc. 22 at 19-20].
As an initial matter, the Court observes that the Sixth Circuit recently upheld an ALJ’s
assignment of less weight to the consultative examiner’s opinion of a marked limitation in
responding to work situations and changes, as the opinion was based on the claimant’s subjective
23

reporting of symptoms and not supported by other objective evidence. Staymate v. Comm’r of
Soc. Sec., No. 16-3896, 2017 WL 902136, at *4 (6th Cir. Mar. 7, 2017). The Court reiterated that
“[w]e 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.”
Id. (citing Keeler v. Comm’r of Soc. Sec., 511 F. App’x 472, 473 (6th Cir. 2013)); see Kepke v.
Comm’r of Soc. Sec., 636 F. App’x 625, 629 (6th Cir. 2016) (“Regardless of any inherent
subjectivity in the field of psychiatry, a doctor cannot simply report what his patient says and repackage it as an opinion.”). Thus, while it may be appropriate in some circumstances to reject a
medical source’s opinion where no other evidence would appear to support it aside from the
claimant’s subjective complaints, the Court finds that the present matter is distinguishable.
In the mental medical source statement, Dr. Denny identified the claimant’s reports of
difficulty going out in public and a tendency to have panic attacks as “factors” that supported her
assessment. [Tr. 814]. However, Dr. Denny’s narrative report indicates that she relied on more
than the Plaintiff’s subjective allegations in determining the Plaintiff’s functional limitations.
Specifically, Dr. Denny reviewed a prior psychological evaluation she had conducted in 2010, as
well as letters from Tony Elkins, NP, and Ann Gallaher, LCSW, with Peninsula Hospital where
the Plaintiff received mental health treatment in 2010 and 2011. [Tr. 808, 723, 762]. Ms.
Gallaher’s letter expresses the adverse impact, such as emotional regression and panic attacks, that
a work environment could have on the Plaintiff. [Tr. 723].

These records, in addition to Dr.

Denny’s clinical interview and mental status examination, demonstrate that Dr. Denny did not rely
solely on the Plaintiff’s self-report in assessing the Plaintiff’s ability to perform work-related
activities as found by the ALJ.
The Court finds, however, the any error in the ALJ’s reasoning for rejecting Dr. Denny’s
24

marked limitation was harmless because the ALJ nonetheless “accommodated the limitations in
adaption by setting out in the RFC that the claimant can adapt to gradual change.” [Tr. 26]. While
the Plaintiff argues that limiting the Plaintiff to gradual change fails to accommodate a marked
limitation in adapting to ordinary work situations, the Plaintiff does not explain why or cite any
supporting law or cases. Merely asserting that that the accommodation is inadequate fails to carry
the Plaintiff’s burden in demonstrating that the ALJ’s RFC determination is not supported by
substantial evidence. The Court observes that introducing changes on a gradual basis would assist
a claimant who may otherwise not be able to adapt to ordinary work situations or changes in a
routine work setting.
Accordingly, the Plaintiff’s allegation is this regard is not well-taken.

VI.

CONCLUSION
Based upon the foregoing, it is hereby ORDERED that the Plaintiff’s Motion for Judgment

on the Pleadings [Doc. 19] is DENIED; the Commissioner’s Motion for Summary Judgment [Doc.
21] is GRANTED; the Commissioner’s decision in this case denying plaintiff’s application

for benefits under the Social Security Act is AFFIRMED; and this case is DISMISSED.
Enter:
______________________________________
___________________________________
_
_
_ _
UNITED STATES DISTRICT JUDGE
UNITED STATES DISTRICT
A S S
C

25