Dyer v. Social Security Administration

Filing 40

REPORT AND RECOMMENDATION: For the reasons set forth above, the undersigned RECOMMENDS that plaintiff's motion for judgment on the record be DENIED and that the findings of the Commissioner be AFFIRMED. Signed by Magistrate Judge Stephanie Dawkins Davis on 5/31/2018. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
WILLIAM A. DYER,
Plaintiff

Civil Action No. 16-cv-00067
JUDGE WAVERLY D. CRENSHAW, JR.

v.
COMMISSIONER OF SOCIAL
SECURITY,

MAGISTRATE JUDGE STEPHANIE
DAWKINS DAVIS

Defendant.
________________________/
REPORT AND RECOMMENDATION: PLAINTIFF’S SEALED
MOTION FOR JUDGMENT ON THE RECORD (Dkt. 37)
I.

PROCEDURAL HISTORY
A.

Proceedings in this Court

On August 19, 2016, plaintiff filed the instant suit seeking judicial review of
the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant
to Administrative Order No. 24 entered on January 29, 2018, this matter was
assigned and referred to the undersigned magistrate judge. See Text-Only entry
dated 1/29/18. This matter is before the Court on plaintiff’s motion for judgment
on the record. (Dkt. 37). The Commissioner filed a response to plaintiff’s motion.
(Dkt. 39).
B.

Administrative Proceedings

Plaintiff filed the instant claims for period of disability and disability

1

insurance benefits on August 20, 2012, alleging disability beginning on June 1,
2011. (Tr. 12).1 The claim was initially disapproved by the Commissioner on
January 28, 2013. (Tr. 13). Plaintiff requested a hearing, and on January 23, 2015,
he appeared and testified, without counsel, before Administrative Law Judge (ALJ)
Renee S. Andrews-Turner, who considered the case de novo. (Tr. 29-57). In a
decision dated April 10, 2015, the ALJ found that plaintiff was not disabled. (Tr.
9-24). Plaintiff requested a review of this decision (Tr. 7), and the ALJ’s decision
became the final decision of the Commissioner when the Appeals Council denied
plaintiff’s request for review on June 7, 2016. (Tr. 1-6); Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the undersigned RECOMMENDS that
plaintiff’s motion for judgment on the record be DENIED and that the findings of
the Commissioner be AFFIRMED.
II.

THE ALJ’S DECISION
Plaintiff was born in 1970 and was 41 years old, a younger individual, on the

alleged disability date. (Tr. 23). Plaintiff has work history as a landscape laborer
(heavy unskilled work), construction contractor (light skilled work), a construction
painter (medium skilled work), harvest worker (medium unskilled work), fast food

1

The Transcript of Social Security Proceedings is cited to throughout this Report and
Recommendation as “Tr.,” and can be found at Docket Entry 18.
2

restaurant manager (light skilled work), janitor (medium semi-skilled work), waiter
(light, semi-skilled work), and concrete laborer (heavy unskilled work. (Tr. 22).
In a decision dated April 10, 2015, the ALJ applied the five-step disability analysis
to plaintiff’s claim and found at step one that plaintiff had not engaged in
substantial gainful activity since the alleged onset date. (Tr. 14). At step two, the
ALJ found that plaintiff had the following severe impairments: bipolar disorder,
anxiety disorder, and attention deficit hyperactivity disorder (ADHD). Id. At step
three, the ALJ concluded that plaintiff’s severe impairments did not meet or equal
any listed impairment. (Tr. 15-16). The ALJ found that plaintiff had the residual
functional capacity to perform full range of work at all exertional levels as follows:
After careful consideration of the entire record, the
undersigned finds that the claimant has the residual
functional capacity to perform a full range of work at all
exertional levels but with the following nonexertional
limitations: the claimant can understand, remember and
carry out simple and detailed instructions; can maintain
concentration, pace and persistence for two hours at a
time during an eight-hour workday; occasionally interact
with the general public, coworkers and supervisors; and
can adapt to infrequent change in the workplace.
(Tr. 16). At step four, the ALJ found that plaintiff could perform his past relevant
work as a concrete laborer. (Tr. 22). In the alternative, at step five, the ALJ
concluded that, based on the vocational expert testimony, plaintiff could perform a
significant number of jobs available in the national economy with his RFC. (Tr.

3

23). Thus, the ALJ found plaintiff was not disabled under the Act from the
application date through the date of the decision. (Tr. 24).
III.

DISCUSSION
A.

Standard of Review

In enacting the social security system, Congress created a two-tiered system
in which the administrative agency handles claims, and the judiciary merely
reviews the agency determination for exceeding statutory authority or for being
arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process itself is multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency itself, then to an ALJ, and
finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If the
claimant does not obtain relief during this administrative review process, the
claimant may file an action in federal district court. Mullen v. Bowen, 800 F.2d
535, 537 (6th Cir. 1986).
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

4

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding
whether substantial evidence supports the ALJ’s decision, “we do not try the case
de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a
claimant’s subjective complaints and may ... consider the credibility of a claimant
when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the
claimant are to be given great weight, particularly since the ALJ is charged with
observing the claimant’s demeanor and credibility.”) (quotation marks omitted);
Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among medical reports, claimant’s
testimony, and other evidence.”). “However, the ALJ is not free to make
credibility determinations based solely upon an ‘intangible or intuitive notion
about an individual’s credibility.’” Rogers, 486 F.3d at 247 (quoting Soc. Sec.
Rul. 96-7p, 1996 WL 374186, *4).

5

If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). 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.” Rogers, 486
F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted) (citing Mullen, 800 F.2d at 545).
The scope of this Court’s review is limited to an examination of the record
only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001). When reviewing the Commissioner’s factual findings for substantial
evidence, a reviewing court must consider the evidence in the record as a whole,
including that evidence which might subtract from its weight. Wyatt v. Sec’y of
Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of
appeals and the district court may look to any evidence in the record, regardless of
whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec.,

6

245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either
the ALJ or the reviewing court discuss every piece of evidence in the
administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508
(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted by a party.”)
(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,
198 Fed. Appx. 521, 526 (6th Cir. 2006).
B.

Governing Law

The “[c]laimant 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);
accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003).
There are several benefits programs under the Act, including the Disability
Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and
Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et
seq.). Title II benefits are available to qualifying wage earners who become
disabled prior to the expiration of their insured status. Title XVI benefits are
available to poverty stricken adults and children who become disabled. While the
two programs have different eligibility requirements, “DIB and SSI are available
only for those who have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th

7

Cir. 2007). F. Bloch, Federal Disability Law and Practice § 1.1 (1984).
“Disability” means:
inability to engage in 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 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
The Commissioner’s regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in
substantial gainful activity, benefits are denied without
further analysis.
Step Two: If the claimant does not have a severe
impairment or combination of impairments, that
“significantly limits ... physical or mental ability to do
basic work activities,” benefits are denied without further
analysis.
Step Three: If plaintiff is not performing substantial
gainful activity, has a severe impairment that is expected
to last for at least twelve months, and the severe
impairment meets or equals one of the impairments listed
in the regulations, the claimant is conclusively presumed
to be disabled regardless of age, education or work
experience.
Step Four: If the claimant is able to perform his or her
past relevant work, benefits are denied without further
analysis.
Step Five: Even if the claimant is unable to perform his
or her past relevant work, if other work exists in the
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national economy that plaintiff can perform, in view of
his or her age, education, and work experience, benefits
are denied.
Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,
20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner
makes a dispositive finding at any point in the five-step process, the review
terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the burden transfers to the
Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
At step five, the Commissioner is required to show that “other jobs in significant
numbers exist in the national economy that [claimant] could perform given [his]
RFC and considering relevant vocational factors.” Rogers, 486 F.3d at 241; 20
C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently, and even where substantial evidence supports the opposite conclusion.

9

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where
substantial evidence supports the ALJ’s decision, it must be upheld.
C.

Analysis and Conclusions
1.

Diagnoses/Step Two

Plaintiff argues that the ALJ omitted his complete diagnoses from the list of
severe impairments, and ignored impairments listed on Tr. 383. More specifically,
according to plaintiff, the ALJ ignored the majority of the medical opinions offered
by Dr. Gale (citing Tr. 378, 383) and Dr. Nyquist (citing Tr. 368-69), which relate
to his diagnoses. Plaintiff contends that the complete diagnoses are vital to any
consideration of the severity and consistency of his behavior and testimony
regarding his inability to perform work. Plaintiff argues that the ALJ improperly
failed to give these opinions controlling weight. Plaintiff also finds fault with the
ALJ’s decision to give great weight to Dr. Jenaan Khaleeli’s opinion in light of the
ALJ’s failure to give great weight to the assessments on which Dr. Khaleedi
relied.2 Plaintiff says the record shows that Dr. Khaleeli accorded great weight to
the GAF score of 54-60 given at Guidance Center. (Tr. 97). Dr. Khaleeli also
gave great weight to the 2012 assessments by Kasey Anderson, MSN (Tr. 422426) and Maggie Harris, LCSW (Tr. 396-407). (Tr. 99). This means, according to

2

Dr. Khaleedi is a state agency reviewing psychologist who issued a Disability
Determination Explanation on May 13, 2013 at the reconsideration level. (Tr. 100).
10

plaintiff, that the ALJ also must give great weight to their diagnoses and analysis
as follows: Axis I- Bipolar II Disorder, Anxiety Disorder NOS, Polysubstance
Dependence, Attention Deficit Hyperactive Disorder, Axis IV multiple severe
legal, economic, occupational, Axis I- Bipolar II Disorder, Anxiety Disorder NOS,
Polysubstance Dependence, Attention Deficit Hyperactive Disorder, Axis IVmultiple severe legal, economic, occupational. (Tr. 405, 424).
The Commissioner maintains, however, that the ALJ properly determined
plaintiff’s severe impairments. (Tr. 14). The ALJ found that plaintiff’s severe
impairments were bipolar disorder, anxiety disorder, and attention deficit
hyperactivity disorder (ADHD). (Tr. 14). According to the Commissioner,
plaintiff refers the Court to Tr. 338, which consists of progress notes from the
Siloam Family Therapy Center, and an old listing of assessed conditions dated
August 26, 2004. (Dkt. 37: Pl.’s Br. at Pg ID 853, citing Tr. 338). 3 Quoting from
the Decision, the Commissioner points out that the ALJ explained that these were
“remote records and opinions” which “do not reflect the claimant’s current
functional abilities. As a result the undersigned primarily focused on the records
and opinions close in time to the June 1, 2011, alleged onset date.” (Tr. 14).
According to the Commissioner, the ALJ need only review the “relevant” evidence

3

As noted above, plaintiff actually refers to Tr. 383, not Tr. 338. Tr. 383 is a September
2010 report from Dr. Scott J. Gale.
11

and these old records were not relevant. See 20 C.F.R. § 404.1527 (“After we
review all of the evidence relevant to your claim, including medical opinions….”);
20 C.F.R. § 404.1545(a)(3) (RFC is assessed “based on all of the relevant medical
and other evidence” of record). The Commissioner also suggests that the plaintiff
inappropriately focuses on the diagnoses, as opposed to the limitations in
functioning. (Dkt. 37: Pl.’s Br. at Pg ID 853-55, 860). The ALJ must follow the
regulations, and the regulatory focus is on the limitations that arise from an
impairment, not what one doctor or another labels a particular condition. A “mere
diagnosis…says nothing about the severity of the condition.” Higgs v. Bowen, 880
F.2d 860, 863 (6th Cir. 1988).
The Commissioner also points out, regarding the long citation to an article
from the Mayo Clinic in plaintiff’s brief, that the article does not pertain to
plaintiff’s individual condition and limitations that were at issue before the ALJ.
Instead, the article addresses what a condition could result in for the general
population. The Sixth Circuit recently addressed this issue and concluded that
general information about an impairment does not warrant remand. See
Montecalvo v. Comm. of Soc. Sec., 2017 WL 2983032, at *5 (6th Cir. July 13,
2017) (Plaintiff submitted some general papers and articles on Gulf War Syndrome
but these did not meet the materiality requirement for S6 remand. Plaintiff failed
to demonstrate how these documents were relevant to his specific claim or how

12

such general articles would affect the ALJ’s findings because this evidence “does
not relate to Plaintiff personally.”).
Furthermore, plaintiff must show prejudice to obtain a remand based on an
alleged omission by the ALJ at step two of the sequential evaluation. See 20
C.F.R. § 404.1520. As long as the ALJ considers all of an individual’s
impairments, the “failure to find additional severe impairments…does not
constitute reversible error.” Kirkland v. Comm’r of Soc. Sec., 528 Fed. Appx. 425,
427 (6th Cir. 2013) (quoting Fisk v. Astrue, 253 Fed. Appx. 580, 583 (6th Cir.
2007)); Miller v. Comm’r of Soc. Sec., 524 Fed. Appx. 191, 194 (6th Cir. 2013)
(ALJ’s RFC for simple low stress work adequately took into account other alleged
mental deficits). In sum, the Commissioner maintains that the ALJ properly
considered the severity of plaintiff’s impairments.
At Step 2 of the sequential evaluation process, the ALJ must consider
whether a claimant has a severe impairment and whether the impairment(s) meet
the twelve month durational requirement in 20 C.F.R. § 404.1509. See 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4); see also Simpson v. Comm’r of Soc. Sec., 344
Fed. Appx. 181, 188 (6th Cir. 2009) (“At step two, if a claimant does not have a
severe medically determinable physical or mental impairment ... that meets the
durational requirement in § 404.1509 ..., or a combination of impairments that is
severe and meets the durational requirement, then [she] is not disabled.”). In order

13

to be classified as severe, an impairment or combination of impairments must
significantly limit the claimant’s physical or mental ability to do basic work
activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). Basic work activities, defined in
the regulations as “the abilities and aptitudes necessary to do most jobs,” include:
(1) physical functions such as walking, standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling; (2) capacities for seeing, hearing, and speaking; (3)
understanding, carrying out, and remembering simple instructions; (4) use of
judgment; (5) responding appropriately to supervision, co-workers, and usual work
situations; and (6) dealing with changes in routine work settings.
Sixth Circuit precedent establishes that failure to find an impairment severe
at Step 2 of the sequential analysis is not reversible error if the ALJ found another
impairment severe and therefore continued with the five-step evaluation. See e.g.,
Fisk v. Astrue, 253 Fed. Appx. 580, 584 (6th Cir. 2007); Anthony v. Astrue, 266
Fed. Appx. 451, 457 (6th Cir. 2008). If the ALJ continues with the remaining
steps, any error at Step 2 is harmless, so long as the ALJ considered the effects of
all medically determinable impairments, including those deemed nonsevere. See
e.g., Cobb v. Colvin, 2013 WL 1767938 (D. Kan. 2013) (“The Commissioner is
correct that the failure to find that additional impairments are severe is not in itself
cause for reversal. But this is true only so long as the ALJ considers the effects of
all of the claimant’s medically determinable impairments, both those he deems

14

severe and those not severe.”) (internal quotation marks omitted); Jackson v.
Astrue, 734 F. Supp. 2d 1343, 1361 (N.D. Ga. 2010) (Where ALJ identified one
severe impairment at step two, the failure to identify additional severe impairments
at step two was harmless error in child disability case where the ALJ considered all
of the plaintiff’s impairments at other steps as demonstrated by discussion of
testimony and medical history.). Here, the ALJ continued with the full analysis of
plaintiff’s mental health impairments. Thus, any error would be harmless.
Further, in the view of the undersigned, there is no error given that the only mental
health diagnosis identified by plaintiff and not considered by the ALJ was
plaintiff’s polysubstance abuse, which was deemed to be in “full remission.” (Tr.
405, 424). Plaintiff has identified no impairments or other ill-effects from the
polysubstance abuse such that the ALJ’s failure to consider this diagnosis was
harmful. As to any other diagnoses mentioned in plaintiff’s records, the ALJ
reasonably concluded that those diagnoses were somewhat remote in time to the
alleged onset date. And, more importantly, plaintiff does not identify any
additional impairments or limitations caused by of these additional mental
conditions. Under these circumstances, the undersigned finds no error at Step Two
warranting remand and even if there were an error, it was harmless.
2.

Medical opinions

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Plaintiff argues that the ALJ erred in evaluating the medical opinions from
his therapist, Mr. Hinton, and nurse practitioner, Mr. Moss. While the ALJ stated
that she accorded little weight to Mr. Moss and Mr. Hinton’s opinions, plaintiff
points out that they consulted with, were supervised by, and agreed with by Dr.
Linda S. Lundin MD. (Tr. 617). Dr. Lundin also agreed with Debrah Harrah’s
diagnosis of plaintiff’s symptoms worsening and a low GAF score of 54 on
2/28/2013 and on 5/27/2013. (Tr. 451, 514). Dr. Lundin is the supervising and
consulting physician for all Volunteer Behavioral Health/Guidance Center treating
faculty and staff, yet the ALJ gave no weight to her at all.
The Commissioner maintains that the ALJ properly considered these
opinions. (Tr. 20-21). Under the regulations in effect at the time of the decision, a
nurse is an “other” or “not acceptable” form of medical information. The
regulations describe “acceptable” medical sources as those who may establish
whether an individual has a medically determinable impairment. See 20 C.F.R.
§ 404.1513 (“Medical and other evidence of your impairment(s).”). Social
Security requests and evaluates opinions from acceptable medical sources, but
“other” medical sources (including nurse practitioners, physician assistants,
chiropractors, and therapists) may also provide opinions and evidence. See id.
According to the Commissioner, the ALJ properly evaluated the statements at issue
regardless of how they might be characterized. The ALJ gave little weight to both

16

of these statements. As the ALJ explained, Mr. Moss, the psychiatric nurse
practitioner, completed a statement entered into the record as exhibit 10F and dated
January 21, 2015. (Tr. 20-21, 636). Mr. Moss said that plaintiff had minimal
improvements with medications. (Tr. 636). He seemed to list generic side effects
from medications. (Tr. 636). Among other restrictions, Mr. Moss stated that
plaintiff had marked functional limitations and that he would miss more than four
days of work per month. (Tr. 637). Ms. Hinton, a therapist, provided an opinion
entered into the record as exhibit 11F and dated January 23, 2015. (Tr. 20-21,
640). She also stated that plaintiff would have various marked limitations and
would miss more than four days of work per month, and that he had made minimal
progress towards functioning. (Tr. 642-43). The ALJ found these statements
inconsistent with the overall records as well as the specific treatment records. (Tr.
21). The ALJ contrasted the statements with the far less negative treatment record
which indicated good focus and participation and normal mental status
examinations. (Tr. 21, 597, 606-07, 613-14). The ALJ also commented that it did
not seem consistent with the record that plaintiff had minimal improvement
considering the frequency of treatment did not increase and plaintiff was never
referred to other providers. (Tr. 21, 619, 622-24). According to the
Commissioner, the ALJ identified sufficient inconsistencies to support the finding
that these opinions were due only “little” weight. Thus, the Commissioner

17

maintains that the ALJ properly satisfied the obligation to consider these opinions
and provide adequate reasoning for discounting them. See Engebrecht v. Comm’r
of Soc. Sec., 572 Fed. Appx. 392, 399 (6th Cir. 2014) (“However, we are satisfied
that the ALJ properly recognized that Hastings’ opinions were “important and
should be evaluated” and accordingly considered Hastings’ opinions and gave
them weight. Cruse, 502 F.3d at 541 (quoting SSR 06-03p). The ALJ accordingly
satisfied his obligations under the Social Security Act with respect to Hastings’
opinions.”).
Plaintiff makes a fair point that Dr. Lundin did co-sign some of his mental
health treatment records. Several courts have concluded that where a licensed
social worker or other unacceptable medical source is working as part of a
treatment team and an acceptable medical source has “signed off” on the opinions,
they should be evaluated as treating physician opinions. See e.g., Gomez v. Chater,
74 F.3d 967, 970-971 (9th Cir. 1996) (non-medical source must be integral to
team, and the acceptable medical source must undersign her findings); Keith v.
Astrue, 553 F.Supp.2d 291, 301 (W.D. N.Y. 2008) (ALJ erred and remand required
where the ALJ discounted the reports and notes signed by a psychiatrist because
they were primarily prepared by a social worker); Wethington v. Astrue, 2009 WL
2485395 (W.D. Ky. 2009) (Social worker’s records were signed by treating
psychiatrist, who would be an “acceptable medical source” and whose opinion may

18

be entitled to controlling weight under the treating physician rule.). Under the
aforementioned circumstances, the ALJ was directed, on remand, to review the
psychiatrist’s notes and reports, including any notes by social worker which the
psychiatrist co-signed, in accordance with the treating physician rule. Keith, 553
F.Supp.2d at 301.
In contrast to the foregoing cases, here, Dr. Linden signed a few office notes
prepared by therapists, but did not sign off on the opinions offered by Mr. Moss
and Mr. Hinton regarding plaintiff’s functionality. (Tr. 451, 514, 530, 636-639,
640-643). Indeed, while there is a blank space for Dr. Teresa Boyd’s 4 signature on
these opinion forms, she did not sign them. (Tr. 639, 643). Under these
circumstances, the ALJ correctly treated the opinions of Mr. Moss and Mr. Hinton
as opinions from a non-acceptable medical source.
“Other sources” include medical sources, such as therapists, which are not
“acceptable medical source” under the regulations. 20 C.F.R. § 416.913(d)(1).3
While “Other sources” may provide evidence as to the severity of a claimant’s
impairment as well as the effects the impairment has on the claimant’s ability to
work, they “cannot establish the existence of a disability.” Baker v. Colvin, 2016
WL 6501361, at *9 (E.D. Tenn. Aug. 22, 2016), report and recommendation

4

Theresa Boyd, PhD appears to be a supervising medical provider and would also
qualify as an “acceptable medical source.” (Tr. 419, 639, 643).
19

adopted, 2016 WL 6496239 (E.D. Tenn. Nov. 2, 2016) (citing Engebrecht v.
Comm’r of Soc. Sec., 572 Fed.Appx. 392, 398 (6th Cir. 2014). Accordingly,
opinions rendered by “other sources” are not subject to any special degree of
deference. Noto v. Comm’r of Soc. Sec., 632 Fed.Appx. 243, 248-49 (6th Cir.
2015) (“The opinion of a ‘non-acceptable medical source’ is not entitled to any
particular weight or deference—the ALJ has discretion to assign it any weight he
feels appropriate based on the evidence of record.”). The undersigned finds no
error in the weight accorded to the opinions of Mr. Moss and Mr. Hinton.
Significantly, the ALJ’s RFC findings are fully consistent with and support
by Dr. Khaleedi’s opinions set forth in the May 13, 2013 Disability Determination
Explanation. (Tr. 91-103). Dr. Khaleedi found that plaintiff had some moderate
limitations in the areas of concentration, persistence or pace (the ability to maintain
attention and concentration for extended periods, the ability to perform activities
within a schedule, maintain regular attendance, and be punctual within customary
tolerance, and the ability to complete a normal workday and workweek without
interruptions from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods), some moderate
limitations in social interactions (the ability to interact appropriately with the
general public, the ability to accept instructions and respond appropriately to
criticism from supervisors, the ability to get along with coworkers or peers without

20

distracting them or exhibiting behavioral extremes), and some moderate limitations
in his adaptive abilities (the ability to respond appropriately to changes in the work
setting). (Tr. 99-100). Based on this assessment, Dr. Khaleedi concluded that
plaintiff could understand and remember simple, detailed, and multi-step but not
executive level tasks; plaintiff could concentrate and persist within the other
restrictions identified above; plaintiff could interact appropriately with the public,
co-workers, and supervisors occasionally during the workday within the other
restrictions identified; and plaintiff could adapt to infrequent change within the
other restrictions identified. (Tr. 100). The ALJ’s RFC appears to accommodate
plaintiff’s limitations in concentration persistence and pace in the ALJ’s
conclusion that plaintiff can understand, remember and carry out simple and
detailed instructions and can maintain concentration, pace and persistence for two
hours at a time during an eight-hour workday. The ALJ’s RFC also accommodates
plaintiff’s social limitations by limiting him to occasional interaction with the
general public, coworkers and supervisors. And, the ALJ’s RFC also
accommodates plaintiff’s adaptive limitations by concluding that he could only
adapt to infrequent change in the workplace. Thus, the RFC is consistent with Dr.
Khaleedi’s opinions and Dr. Khaleedi is not only an acceptable medical source, but
is also a “highly qualified . . . expert[]” in the evaluation of disability under the
Act. 20 C.F.R. § 404.1527(e)(2)(I).

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3.

Listings

Plaintiff states that he meets the criteria for listing 12.04 (affective disorder)
and listing 12.06 (anxiety disorder) which requires, in relevant part, two “marked”
limitations in functioning or one “marked” limitation plus repeated episodes of
decompensation. Plaintiff relies on the Horton and Moss opinions, which include
marked impairments and episodes of decompensation. On the other hand, the
Commissioner contends that the ALJ fully explained, with specific citations to the
record, why plaintiff did not have the required limitations or periods of
decompensation. (Tr. 15-16). The Commissioner suggests that plaintiff may
misunderstand the term “decompensation” as used in SSA’s regulations. Episodes
of decompensation as provided for in the regulations are of extended duration,
meaning at least two weeks, and will be inferred from fairly significant evidence,
such as “e.g. hospitalizations, placement in a halfway house, or a highly structured
and directing household.” 20 C.F.R. pt. 404, subpt. P., app. 1, § 12.00C4. And,
while plaintiff relies on the opinions of Mr. Horton and Mr. Moss, the ALJ
explained that these opinions were due “little” weight. (Tr. 21).
The undersigned agrees with the Commissioner’s analysis. Plaintiff’s
argument relied on the opinions of Mr. Moss and Mr. Hinton, which the
undersigned has already concluded were properly accorded little weight by the
ALJ. Plaintiff also relies on other opinion evidence from Dr. Khaleedi, as

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described above, which in turn merely points to other opinions or notations of
plaintiff’s diagnoses and GAF scores. As discussed in detail above, the mere
assignment of a diagnosis does not inform the ALJ or the Court of how plaintiff is
impaired by that diagnosis. Finally, plaintiff’s argument that the increase in his
Lamictal dose and the addition of Strattera shows that he satisfied the definition of
“decompensation” is not persuasive. The addition of or adjustments to medication,
without more, does not show that plaintiff required hospitalizations, placement in a
halfway house, or a highly structured and directing household. Indeed, nothing in
this records suggests that plaintiff experienced episodes of decompensation as
described in the regulations. Thus, plaintiff’s claim of error regarding the Listings
is without merit.
4.

Credibility

As part of this determination, the ALJ also evaluated plaintiff’s subjective
complaints and found that they were not entirely credible. (Tr. 17). “Credibility
determinations concerning a claimant’s subjective complaints are peculiarly within
the province of the ALJ. See Gooch v. Sec’y of Health & Human Servs., 833 F.2d
589, 592 (6th Cir. 1987). “Upon review, [the court must] accord to the ALJ’s
determinations of credibility great weight and deference particularly since the ALJ
has the opportunity, which [the court] d[oes] not, of observing a witness’s
demeanor while testifying.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th

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Cir. 2003). Thus, an ALJ’s credibility determination will not be disturbed “absent
compelling reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ
is not required to accept the testimony of a claimant if it conflicts with medical
reports, the claimant’s prior statements, the claimant’s daily activities, and other
evidence in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th
Cir. 1997). Rather, when a complaint of pain or other symptoms is at issue, after
the ALJ finds a medical condition that could reasonably be expected to produce the
claimant’s alleged symptoms, she must consider “the entire case record, including
the objective medical evidence, statements and other information provided by
treating or examining physicians . . . and any other relevant evidence in the case
record” to determine if the claimant’s claims regarding the level of his pain are
credible. SSR 96-7p, 1996 WL 374186, at *1; see also 20 C.F.R.
§ 416.929. “Consistency between the plaintiff’s subjective complaints and the
record evidence tends to support the credibility of the [plaintiff], while
inconsistency, although not necessarily defeating, should have the opposite
effect.” Kalmbach v. Comm’r of Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir.
2011).
Plaintiff first argues that the ALJ did not consider the side effects of his
medications. Yet, as the Commissioner points out, plaintiff notes only potential
side effects common to the medications he was taking, not to actual side effects

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documented in the record. A claimant asserting debilitating medicinal side effects
must present objective medical evidence to support his claim. See Farhat v. Sec’y
of Health & Human Servs., 972 F.2d 347, 1992 WL 174540, at *3 (6th Cir. July
24, 1992) (unpublished) (citing Duncan v. Sec’y of Health & Human Servs., 801
F.2d 847, 852 (6th Cir. 1986)). Plaintiff has not pointed to any objective medical
evidence to support his assertion of disabling side effects of his medication. See
Essary v. Comm’r of Soc. Sec., 114 Fed. Appx. 662, 665 (6th Cir. 2004)
(“Although Essary testified that she suffered from dizziness and drowsiness as a
result of her medications, Essary’s medical records make no indication that Essary
reported such side effects to any of her physicians.”); Hopkins v. Comm’r of Soc.
Sec., 96 Fed. Appx. 393, 395 (6th Cir. 2004) (alleged medication side effects of
drowsiness, nausea, and blurred vision “not documented in the record”). On April
13, 2013, in his adult function report, plaintiff reported only side effects of dry eye
and a depressed immune system. (Tr. 237). Plaintiff’s medical records showed no
side effects reported in June 2012. (Tr. 427, 429). While Mr. Moss described side
effects in an opinion, the ALJ found that this opinion as a whole was inconsistent
with the medical record and as noted, there is no evidence that plaintiff ever
reported side effects to a treating provider. (Tr. 21, 636). Indeed, a September
2014 report by Mr. Moss shows “no SE’s” a common abbreviation for no side
effects. (Tr. 578). A 2015 report from Mr. Moss showed that plaintiff had some

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side effects in the past, but medications were adjusted. (Tr. 625). In the view of
the undersigned, plaintiff has not established medication side effects in this record
that would have affected his ability to perform work activities.
Plaintiff argues that the ALJ did not properly address his activities of daily
living (alternately “ADL”) and that an ability to perform certain tasks does not
automatically equate to show that he can work. According to the Commissioner,
the ALJ correctly used plaintiff’s alleged limitations to compare them to the record
- a proper evaluation of plaintiff’s subjective complaints. Further, the ALJ did not
reach a finding that plaintiff’s ADL meant that he could work, but rather
mentioned plaintiff’s activities in the context of showing inconsistency. As the
Commissioner points out, the ALJ may consider daily activities as one factor in the
evaluation of subjective complaints. See Temples v. Comm’r of Soc. Sec., 515 Fed.
Appx. 460, 462 (6th Cir. 2013) (“Further, the ALJ did not give undue
consideration to Temples’ ability to perform day-to-day activities. Rather, the ALJ
properly considered this ability as one factor in determining whether Temples’
testimony was credible.”). Here, the Commissioner acknowledged that plaintiff
had some restrictions in his activities of daily living and had motivation issues.
(Tr. 15). Yet, the ALJ also observed that he did small household chores, went to
AA meetings, did the laundry, and cared for his children and his dog. The ALJ
concluded that plaintiff retained the ability to perform some activities of daily

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living. Nothing in the ALJ’s analysis, however, suggests that the ALJ equated his
activities of daily living with the ability to work full-time. Thus, the undersigned
finds no error.
Plaintiff also disputes the ALJ’s characterization of his cancelled
appointments, stating that the cancellations actually demonstrate that he suffers
from a more severe mental illness. According to the Commissioner, the ALJ
properly contrasted plaintiff’s report of worsening symptoms with cancelled
appointments during 2013 and 2014. (Tr. 19). The Commissioner acknowledges
that plaintiff’s explanation could make sense in some situations, but here, the ALJ
showed that plaintiff’s records showed that his medications were helpful and that
he did not need them changed. (Tr. 19). Moreover, the ALJ also focused on
plaintiff’s records of fairly normal mental status examinations during this time
period. (Tr. 18, 580-614). “For some mental disorders, the very failure to seek
treatment is simply another symptom of the disorder itself. See Pate-Fires v.
Astrue, 564 F.3d 935, 945 (8th Cir. 2009) (listing cases recognizing that a mentally
ill person’s noncompliance with treatment “can be ... the result of the mental
impairment itself and, therefore, neither willful nor without a justifiable excuse”)
(citations, internal quotation marks, and brackets omitted).” White v. Comm’r of
Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009). The Commissioner maintains,
however, this is not the situation here. Rather, as the ALJ showed, the record

27

reflected that plaintiff’s treatment was effective and his mental status examinations
were favorable.
In the view of the undersigned, there is evidence in the record that plaintiff
cancelled at least some appointments based on reasons other than his mental
illness. (Tr. 489, client cancelled appointment because daughter was in the
hospital; Tr. 485, client cancelled appointment because he was in Ohio and would
reschedule when he returned.). The other cancellations do not reveal any reasons,
and nothing else in the record suggests that plaintiff’s mental illness prevented him
from obtaining treatment on a regular basis. Indeed, the record suggests that
plaintiff regularly sought treatment for his mental illness. Given that this was but
one factor the ALJ relied on in his credibility analysis, which is otherwise
supported by substantial evidence, the undersigned finds no basis to disturb the
ALJ’s credibility determination.
5.

VE testimony

Plaintiff argues that the ALJ erred in stating that vocational expert testimony
supported the finding that he could work. He principally points to his own
testimony to support his challenge to reliance on the VE testimony, pointing out
that the VE testified in response to hypotheticals posed after the first hypothetical
that if a claimant were limited to the extent of plaintiff’s testimony, then such
claimant would be rendered unemployable. However, as discussed above, the ALJ

28

did not find plaintiff’s testimony concerning his limitations to be entirely credible
and assessed an RFC based on the credible evidence in the record. Thus, it is
apparent that the ALJ did not rely on Hypotheticals 2 and beyond, but rather on
Hypothetical 1, which incorporated the limitations stated in plaintiff’s RFC. (Tr.
22, 25-26). Because the hypothetical question to the vocational expert on which
the ALJ relied restates the RFC, and because, as discussed above, the RFC
accurately portrays plaintiff’s limitations, there is no error at Step Five. (Tr. 16,
52-53). See Hatton v. Comm’r of Soc. Sec., 2018 WL 1278916, at *8 (E.D. Mich.
Feb. 14, 2018), report and recommendation adopted, 2018 WL 1254948 (E.D.
Mich. Mar. 12, 2018) (Where the hypothetical question to the vocational expert
restated the RFC and the RFC accurately portrayed the plaintiff’s limitations, there
was no error at Step Five.); Sellers v. Berryhill, 2018 WL 989563, at *6 (E.D.
Tenn. Jan. 22, 2018), report and recommendation adopted, 2018 WL 988084 (E.D.
Tenn. Feb. 20, 2018) (“Having found that substantial evidence supports the ALJ’s
RFC determination, the Court finds the hypothetical question posed to the
vocational expert, and the ALJ’s reliance on the vocational expert’s response, was
appropriate and constitutes substantial evidence at step five that other jobs exist in
the national economy that the Plaintiff can perform.”). Thus, the ALJ was entitled
to rely on the VE’s testimony, which provides substantial evidence for the ALJ’s
Step Five determination.

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IV.

RECOMMENDATION
For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for judgment on the record be DENIED and that the findings of
the Commissioner be AFFIRMED.
The parties to this action may object to and seek review of this Report and
Recommendation, but are required to file any objections within 14 days of service,
as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule
72.1(d). Failure to file specific objections constitutes a waiver of any further right
of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and
Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some
issues but fail to raise others with specificity will not preserve all the objections a
party might have to this Report and Recommendation. Willis v. Sec’y of Health
and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule
72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”
etc. Any objection must recite precisely the provision of this Report and
Recommendation to which it pertains. Not later than 14 days after service of an
objection, the opposing party may file a concise response proportionate to the
objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d).

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The response must specifically address each issue raised in the objections, in the
same order, and labeled as “Response to Objection No. 1,” “Response to Objection
No. 2,” etc. If the Court determines that any objections are without merit, it may
rule without awaiting the response.
Date: May 31, 2018

s/Stephanie Dawkins Davis
STEPHANIE DAWKINS DAVIS
UNITED STATES MAGISTRATE JUDGE
SITTING BY SPECIAL DESIGNATION

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