Dotson v. Social Security Administration
REPORT AND RECOMMENDATION: For the reasons explained below, the undersigned RECOMMENDS that plaintiff's motion for judgment on the administrative record (Doc. 13) be DENIED, and the Commissioner's decision AFFIRMED. Signed by Magistrate Judge Joe Brown on 3/29/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
BRIANNA A. DOTSON,
CAROLYN W. COLVIN,
OF SOCIAL SECURITY,
To: The Honorable Aleta A. Trauger, United States District Judge.
REPORT AND RECOMMENDATION
This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the
final decision of the Social Security Administration (SSA) through its Commissioner, denying
plaintiff’s applications for Supplemental Security Income (SSI) under Title XVI of the Social
Security Act (the Act), 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned
RECOMMENDS that plaintiff’s motion for judgment on the administrative record (Doc. 13) be
DENIED, and the Commissioner’s decision AFFIRMED.
I. PROCEDURAL HISTORY1
An application for SSI was filed on November 15, 2010 on plaintiff’s behalf, a child under
18 years of age at the time, alleging a disability onset date of October 6, 2010, subsequently
amended to May 20, 2009 (Doc. 9, p. 78). Plaintiff alleged disability due to attention deficit,
hyperactivity disorder, depression, speech and emotional difficulties. (Doc. 9, pp. 148, 153, 166,
The procedural history below is adopted from the jurisdiction and procedural history sections of the two
Administrative Law Judge (ALJ) decisions (Doc. 9, pp. 17-45, 120-39), unless indicated otherwise. References to page
numbers in the administrative record are to the page numbers that appear in bold in the lower right corner of each page.
251, 295, 363) The claim was denied initially on May 3, 2011, and upon reconsideration on August
25, 2011. Plaintiff requested a hearing on August 31, 2011, which was held before ALJ Michelle
Thompson on August 13, 2012 in Nashville (the first hearing). Plaintiff’s mother appeared and
testified at the first hearing without benefit of counsel.
The ALJ entered an unfavorable decision on August 17, 2012 (Doc. 9, pp. 120-39) (the first
decision), after which plaintiff filed a request with the Appeals Council on November 16, 2012 to
review ALJ Thompson’s decision (Doc. 9, pp. 90-92). The Appeals Council vacated the hearing
decision, and remanded the case to ALJ Thompson with instructions to: 1) evaluate and weigh the
medical opinions of Dorothy Lambert, Ph.D., Ken Owen, M.S., and to consider plaintiff’s low
Global Assessment of Functioning (GAF) scores and other related evidence; 2) evaluate evidence
of verbal aggression and noncompliance; 3) consider the opinions of treating and nontreating source
opinions and explain the weight given to those opinions; 4) update the evidentiary record with any
existing medical and education records. (Doc. 9, p. 140-42)
ALJ Thompson held a second hearing on August 22, 2014, also in Nashville. Plaintiff was
represented by attorney William Benjamin at the hearing. Plaintiff’s mother once again appeared
and testified. ALJ Thompson entered an unfavorable decision on November 14, 2014. (Doc. 9, pp.
17-45) Thereafter, counsel filed a request for the Appeals Council to review ALJ Thompson’s
second unfavorable decision on November 24, 2014 (Doc. 9, p. 15), and a supporting brief on
January 16, 2015. (Doc. 9, pp. 539-41) The Appeals Council denied plaintiff’s request for review
on March 31, 2016. (Doc. 9, pp. 1-6)
Plaintiff brought this action through counsel on May 26, 2016 (Doc. 1), following which she
filed a motion for judgment on the administrative record on October 17, 2016 (Doc. 13).2 The
This action was reassigned to the undersigned on October 18, 2016. (Doc. 15)
Commissioner responded in opposition on November 16, 2016 Doc. 16), and plaintiff replied on
November 28, 2016 (Doc. 19). This matter is now properly before the court.
The medical and other evidence in the record, as well as the transcript of both hearings, are
incorporated herein by reference. The evidence and hearing testimony will be addressed in the
analysis below to the extent that it is relevant to the issues.
A. The ALJ’s Notice of Decision
A child under the age of eighteen seeking SSI benefits will be considered disabled if she has
a “medically determinable physical or mental impairment, which results in marked and severe
functional limitations.” 42 U.S.C. § 1382c(a)(3)(C)(i). Childhood disability claims involve a threestep process evaluating whether the child claimant is disabled. 20 C.F.R. § 416.924. First, the ALJ
must determine whether the child claimant is working. 20 C.F.R. § 416.924(b); Elam v. Comm’r
of Soc. Sec., 348 F.3d 124, 125 (6th Cir. 2003). If not, at step two, the ALJ must decide whether the
child claimant has a severe mental or physical impairment. 20 C.F.R. § 416.924(c); Elam, 348 F.3d
at 125. Third, the ALJ must consider whether the claimant’s impairment(s) meets or equals a listing
under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. § 416.924(d); Elam, 348 F.3d at 125.
The burden of proof lies with the plaintiff to prove that she is disabled. Lowery v. Comm’r of Soc.
Sec., 55 Fed.Appx. 333, 337-38 (6th Cir. 2003); Foster v. Halter, 279 F.3d 348, 354 (6th Cir.
2001)(citing Casey v. Sec’y of Health & Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993)).
B. Standard of Review
The district court’s review of the Commissioner’s final decision is limited to determining
whether the Commissioner’s decision is supported by substantial evidence in the record, and
whether the decision was made pursuant to proper legal standards. 42 U.S.C. § 405(g); Gayheart
v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2014). Substantial evidence is less than a
preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); see
Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2003). The Commissioner’s decision
must stand if substantial evidence supports the conclusion reached, even if the evidence supports
a different conclusion. Gayheart, 710 F.3d at 374.
C. Claims of Error
1. Whether the ALJ Erred in Not According Proper
Weight to the Opinion of Psychiatrist
Dr. Lynna Hollis, M.D.
(Doc. 14, ¶ 1, pp. 8-13)
Plaintiff argues that the ALJ did not accord Dr. Hollis’ opinion proper weight, nor did she
explain adequately the weight given. The ALJ characterized Dr. Hollis as plaintiff’s “treating
provider” (Doc. 9, p. 30), which the Magistrate Judge construes as a “treating source.” Defendant
argues that Dr. Hollis was not a treating source. Rather, defendant argues that Dr. Hollis was a
supervising physician who never actually treated plaintiff, but merely signed off on the actions of
those who did. (Doc. 16, p. 10)
The regulations require that a claimant present evidence from “acceptable medical sources”
to support her claim for benefits. 20 C.F.R. § 404.1513(a). “Acceptable medical sources” include
“[l]icensed physicians” and “[l]icensed or certified psychologist.” 20 C.F.R. § 404.1513(a). The
regulations further classify “acceptable medical sources into three types: nonexamining sources,
nontreating (but examining) sources, and treating sources.” Smith v. Comm’r of Soc. Sec., 482 F.3d
873, 875 (6th Cir. 2007). More particularly, 20 C.F.R. § 404.1502 defines “treating source” as
Treating source means your own physician, psychologist, or other
acceptable medical source who provides you, or has provided you,
with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you. Generally, we will consider
that you have an ongoing treatment relationship with an acceptable
medical source when the medical evidence establishes that you see,
or have seen, the source with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required
for your medical conditions(s). We may consider an acceptable
medical source who has treated or evaluated you only a few times .
. . to be your treating source if the nature and frequency of the
treatment or evaluation is typical for your condition(s). . . .
The SSA evidence of record provides the following with respect to this claim of error. The
May 28, 2008 SSA disability report (Doc. 9, pp. 247-258) does not list Dr. Hollis as one of
plaintiff’s health care providers (Doc. 9, p. 252). The June 26, 2009 SSA disability report (Doc. 9,
pp. 291-303) does not list Dr. Hollis as one of plaintiff’s health care providers (Doc. 9, pp. 295-97).
The November 16, 2009 SSA disability report (Doc. 9, pp. 327-36) does not list Dr. Hollis as one
of plaintiff’s health care providers, but it does list Nurse Practitioner (NP) Leah Bowen as one (Doc.
9, p. 332). The January 4, 2011 SSA disability report (Doc. 9, pp. 359-68) does not list Dr. Hollis
as one of plaintiff’s health care providers, but does list NP Brittany Haemmerlein as one (Doc. 9,
p. 363). The May 12, 2011 SSA disability report (Doc. 9, pp. 369-75) does not list Dr. Hollis as one
of plaintiff’s health care providers, but again lists NP Haemmerlein as one (Doc. 9, p. 372). The
September 1, 2011 SSA disability report (Doc. 9, pp. 376-83) does not list Dr. Hollis as one of
plaintiff’s health care providers, but once again lists NP Haemmerlein as one (Doc. 9, p. 379).
Turning to the medical evidence of record, NP Bowen conducted a psychiatric evaluation
of plaintiff on May 12, 2009 April and signed the evaluation that same date. (Doc. 9, pp. 677-82)
Dr. Hollis’s name does not appear anywhere on the evaluation. There are twenty-two “Outpatient
Treatment Progress Notes” in the record from the Centerstone Community Health Center
(Centerstone) dating from June 10, 2009 to February 4, 2011 in which Dr. Hollis’ name does appear.
(Doc. 9, pp. 670-74, 695-97, 702-11, 759-60, 765-66, 796-99, 821-22, 842-43, 849-50, 859-64, 86768, 873-74, 876-79, 919-22) However, either NP Bowen or NP Haemmerlein is identified as the
“provider” in each of these progress notes, and signed as such on the actual date of service.
Although Dr. Hollis’ name appears below theirs adjacent to the heading “MD Signature” in each of
these progress notes, Dr. Hollis never signed the progress notes earlier than three days after service
was provided. In fact, the record shows that Dr. Hollis signed the progress notes an average of ten
days after service was provided, with an average of 23 days more than half of the time.
Dr. Hollis is mentioned repeatedly in “Infoscriber Medication Log[s].” (Doc. 9, pp. 981,
988, 991, 997, 1002, 1007, 1028, 1097-98, 1105-06, 1109-10, 1113-15, 1120, 1142-44, 1148-50,
1155-56, 1173-75, 1182-84, 1187-89, 1194-96, 1202-04) However, in each and every entry, Dr.
Hollis is identified as the “Supervising Physician,” whereas the actual “Prescriber” is identified as
either NP Haemmerlein or NP Christine Henry. There also are three other “Medication Log[s]” in
the record covering the period February 13, 2008 to May 18, 2011 that show NP Bowen prescribed
medications for plaintiff. (Doc. 9, pp. 712-13, 894-97, 924-25) There is no mention of Dr. Hollis
in these three records, as “Supervising Physician” or otherwise.
As for testimonial evidence, plaintiff’s counsel stated the following to the ALJ at the August
22, 2014 hearing:
[T]he last point I’d like to make is all the doctors that have given
opinions about Brianna that have seen her have given significant
limitations. Centerstone, Dr. Lynn Hollis [phonetic] – 47, 48 GAF
scores – Dr. Lambert, which we discussed earlier, as well as Dr.
Owens – those are the doctors who’ve actually seen her. . . .
(Doc. 9, p. 78) Notwithstanding counsel’s statement that Dr. Hollis had “actually seen her,” no
evidence was adduced through testimony at either the first or the second hearing that Dr. Hollis ever
saw plaintiff, much less treated her. Moreover, a thorough review of the record shows that Dr.
Hollis never assigned plaintiff either of the GAF scores noted above. There are several Tennessee
Target Population Group (TPG) Forms in the record that assign plaintiff with GAF scores of 47 or
48. (Doc. 9, pp. 693-94, 731-36, 741-42, 1190-91) However, Dr. Hollis’s name appears nowhere
on any of these forms. GAF scores of 47 and 48 also appear repeatedly in the “Outpatient Treatment
Progress Notes” discussed above. (Doc. 9, pp. 702, 710, 760, 765, 796, 799, 813, 822, 843, 850,
859, 868, 876, 878, 919, 922) Once again, however, the treatment reflected in those progress notes
was provided by NPs Bowen and Haemmerlein, not Dr. Hollis. GAF scores of 47 and 48 also are
noted repeatedly in the “Infoscriber Medication Log[s]” discussed above. However, treatment
provided in those entries are attributed to NPs Haemmerlein (Doc. 9, pp. 987, 1001, 1006, 1027,
1104, 1172, 1181), Henry (Doc. 9, pp. 1125, 1135, 1141, 1147, 1154), and Bowen (Doc. 9, pp. 1186,
1193, 1201) – again, not to Dr. Hollis. Finally, there are several other records in which the GAF
scores of 47 and 48 are noted, but those records are attributable to Licensed Clinical Social Worker
(LCSW) Dianne Castellano (Doc. 9, p. 714) and Jessi Lefholz/Johnson,3 MS (Doc. 9, pp. 899, 926,
980, 1096) – once again, not to Dr. Hollis.
Finally, there is the Medical Source Statement (MSS) dated October 1, 2014 that is the basis
for this claim for relief. (Doc. 9, pp. 1268-70) The MSS bears the signature of NP Henry, below
which the following note appears on the form: “May be completed and signed by PA, NP, etc. Must
be co-signed by M.D., or Ph.D.” (Doc. 9, p. 1270) Dr. Hollis signed the MSS following a forward
slash (/) that appears immediately after NP Henry’s signature, showing that NP Henry actually
completed the MSS, and Dr. Hollis co-signed the document after the fact. Once again, no direct
contact or association indicated between doctor and patient.
The following providers are identified in the record: Jessi Lefholz and Jessi Johnson, both of whom have the
same identifier “710" following their name. Although the dates applicable to these names overlap, the Magistrate Judge
assumes without deciding that the identifier “710” signifies that Lefholz and Johnson are the same person.
While it may be that providers in a clinic environment will see the claimant more frequently
than will the supervising physician, and while it also may be true that the supervising physician need
only have access to the entire treatment record, it also must be true that the supervising physician
has actually seen and examined the patient directly before characterizing a supervising physician
as a treating source. See Rios v. Comm’r of Soc. Sec., 2016 WL 3144086 * 7 (N.D. Ohio June 6,
2016). More particularly, a physician is not a treating source in the absence of any evidence that
the physician ever saw or evaluated a claimant. See Matelske v. Comm’r of Soc. Sec., 2013 WL
4520202 * 13 (W.D. Mich. Aug. 26, 2013); Bieri v. Astrue, 2008 WL 4185967 * 10 (S.D. Ohio Sept.
2, 2008). Because there was not an ongoing treatment relationship between plaintiff and Dr. Hollis,
the latter is not a “treating source” under the regulations. See Engebrecht v. Comm’r of Soc. Sec.,
572 Fed.Appx. 392, 398-99 (6th Cir. 2014); Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496,
506-07 (6th Cir. 2006); Daniels v. Comm’r of Soc. Sec., 152 Fed.Appx. 485, 490 (6th Cir. 2005).
As explained above, the record shows that Dr. Hollis was not a “treating source” as defined
in the regulations. The next question is whether the ALJ adequately explained the weight she gave
to Dr. Hollis’ opinion.
Whereas the opinions of a treating source generally are entitled to “controlling weight,” the
opinions of medical sources such as Dr. Hollis “are never assessed for ‘controlling weight.’”
Gayheart, 710 F.3d at 376-77 (quoting 20 C.F.R. § 404.1527(c)(2)). In other words, although the
ALJ is required to provide “good reasons” for discounting the weight given to the opinion of a
“treating source,” Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)), the ALJ is not
procedurally required to give “good reason” for the weight given to the opinion for such medical
sources as Dr. Hollis, see Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 514-15 (6th Cir. 2010). Indeed,
having accorded Dr. Hollis’ opinion “no weight” for the reasons stated at n. 3 below,4 the ALJ was
not required by the regulations to provide any further explanation. See Norris v. Comm’r. of Soc.
Sec., 461 Fed.Appx. 433, 439 (6th Cir. 2012)(“[A]n ALJ need only explain its reasons for rejecting
a treating source statement because such an opinion carries ‘controlling weight’ under the
SSA.”)(citing Smith, 482 F.3d at 876 (“[T]he SSA requires ALJs to give reasons for only treating
As shown above, Dr. Hollis was not a “treating source,” her opinion was not entitled to
controlling weight, nor was the ALJ required to provide “good reason” for the weight she gave to
Dr. Hollis’s opinion. Because any error on the ALJ’s part in mis-characterizing Dr. Hollis as a
“treating source” was harmless, plaintiff is not entitled to relief on her first claim of error.
2. Whether “the ALJ Erred by Not Addressing” Plaintiff’s Hospitalization
for a Second Suicide Attempt and the Opinion of Treating
Physician, Dr. Todd Peters, M.D., That
Plaintiff Had a GAF Score of 45
(Doc. 14, ¶ 2, pp. 13-14)
Plaintiff argues that the ALJ never “discussed or reviewed” the records of plaintiff’s second
suicide attempt, and Dr. Peter’s opinion that plaintiff had a GAF score or 45. Plaintiff asserts further
that “[t]hese records were submitted to the record shortly after a request for Appeals Council review
. . . [and] . . . although made a part of the record at Exhibit 33F the ALJ never reviewed them.”
The Undersigned considered the opinion of the claimant’s treating provider Lynna Hollis, M.D[.] (Ex. 32F).
Dr. Hollis opined that the claimant has marked limitation in every functional domain, except moving about and
manipulating objects and that the claimant has a long documented history of dysfunctional behavior and emotional
dysregulation, ‘which can be attributed to her psychiatric disorders’ (Ex. 32F). The undersigned gives no weight to Dr.
Hollis’ opinion because it is inconsistent with the evidence that shows the claimant does well when she takes her
medications, treatment records, and the claimant’s academic performance. The claimant has done well academically
in school and has successfully advanced to each grade level within the accommodations provide[d] to her. The claimant
has problems getting along with others, but it seems that she is able to manage her behaviors depending on whom she
is interacting with, as evidence by the opinion of her behavioral specialist at exhibit 33E and her testimony that she
respects some, but not all adults. The claimant is able to get along with friends and adults at church and recently started
a job at KFC. The claimant has had only one hospitalization for mental health issues, which was likely brought on by
the claimant being without her medication for a time. The evidence does not support marked limitation in any functional
domain, as Dr. Hollis asserts.
Plaintiff avers that the ALJ’s “failure . . . to follow procedural rules for assigning weight to the
opinions of treating sources and . . . giving good reason for the weight assigned” constitutes
Plaintiff asserts, and the record confirms, that she was hospitalized at the Vanderbilt
Psychiatric Hospital (Vanderbilt) during the period October 24, 1014 through October 31, 2014
following a second suicide attempt, and that Dr. Peters assessed plaintiff with a GAF score of 45
during her hospitalization. (Doc. 9, pp. 539-40, 1287-92) The record shows that the ALJ entered
her unfavorable decision on November 14, 2014 – two weeks after plaintiff was discharged from
Vanderbilt. (Doc. 9, p. 37) However, plaintiff asserts, and the record confirms, that the evidence
at issue was never presented to the ALJ. (Doc. 9, p. 45; Doc. 14, p.14) Indeed, plaintiff asserts and
the record confirms that a new claim based on this new evidence at issue was first submitted to the
Appeals Council on January 14, 2015 (Doc. 9, p. 539-40; Doc. 14, p. 14) – two months after the
ALJ entered her unfavorable decision. The record shows that the Appeals Council’s denial of
plaintiff’s request for review included the new evidence pertaining to plaintiff’s second suicide
attempt and subsequent hospitalization at Vanderbilt. (Doc. 9, pp. 1-5)
Plaintiff’s demands for relief include the following: 1) “[r]eversing the [d]efendant’s final
decision and awarding the [p]laintiff the Social Security Income to which she is entitled”; 2)
“remand . . . to the Defendant Commissioner for a new hearing with an Administrative Law Judge
under Sentence four of 42 U.S.C. § 405(g).” (Doc. 14, p. 15)
As for plaintiff’s request to reverse and award benefits, to the extent that Ex. 33F provides
new evidence and information not previously before the ALJ, federal courts reviewing claims for
Social Security benefits may not reverse an ALJ’s decision on the basis of evidence first submitted
to the Appeals Council. See Cotton v. Sullivan, 2 F.3d 692, 695-96 (6th Cir. 1993)(citations omitted);
see also Pompa v. Commissioner of Social Sec., 73 Fed.Appx. 801, 804 (6th Cir. 2003)(citing
Turning to plaintiff’s demand to remand for a rehearing, the sixth sentence under § 405(g)
reads in relevant part as follows:
The court may . . . remand the case to the Commissioner of Social
Security for further action by the Commissioner of Social Security,
and it may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good cause
for the failure to incorporate such evidence into the record in a prior
proceeding . . . .
(bold and underline added) Evidence is “new” if it did not exist at the time of the administrative
proceeding, and “material” if there is a reasonable probability that a different result would have been
reached if introduced at the proceeding. Ferguson v. Comm’r of Soc. Sec., 628 F.3d 269, 276 (6th
Cir. 2010). “Good cause” is demonstrated by “a reasonable justification for the failure to acquire
and present the evidence for inclusion in the hearing before the ALJ.” Foster, 269 F.3d at 357. The
law is well established that the Sixth Circuit takes “a harder line on the good cause test” with respect
to timing and thus requires that the claimant “give a valid reason for his failure to obtain evidence
prior to the hearing.” Courter v. Comm’r of Soc. Sec., 479 Fed.Appx. 713, 725 (6th Cir.
2012)(quoting Oliver v. Sec’y of Health & Hum. Servs., 804 F.2d 964, 966 (6th Cir. 1986)). Under
§ 405(g), plaintiff bears the burden of establishing that remand is warranted. See Foster, 279 F.3d
The evidence at issue is not new as defined above, because it existed and was available to
present to the ALJ at least two weeks prior to the date the ALJ entered her unfavorable decision.
In other words, the evidence existed at the time the administrative proceeding still was open. The
evidence also is not material. More particularly, plaintiff makes no effort to show how the evidence
would have made a difference. She merely asserts the following:
We submit further that given this new evidence and given the rest of
the evidence above including all the opinions of all the doctors in
[the] file that actual[ly] saw Ms. Dotson that Dr. Hollis’ opinion
should be assigned great weight and Ms. Dotson should be
determined to be medically disabled per SSA guidelines.
(Doc. 14, p. 14) With its reference to Dr. Hollis, to whom this new-evidence claim does not pertain,
the statement is merely a summary statement of plaintiff’s view of her case, i.e., the statement above
is a legal conclusion, not a legal argument. The law is well established that the district court is not
obligated on judicial review to supply factual allegations in support of claims where no facts are
alleged. See Hollon ex rel Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th Cir. 2006)(“[W]e
decline to formulate arguments on [appellant’s] behalf”). Consequently, this argument is waived.
See Moore v. Comm’r of Soc. Sec., 573 Fed.Appx. 540, 543 (6th Cir. 2014)(citing United States v.
Stewart, 628 F.3d 246, 256 (6th Cir. 2010)(“Issues averted 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.”).
In addition to not being able to satisfy the new-material half of the two-part test under §
405(g), plaintiff fails to demonstrate good cause for failure to present the evidence at issue to the
ALJ while the administrative proceedings below still were open. As previously established,
plaintiff’s hospitalization at Vanderbilt ended two full weeks prior to the date the ALJ entered her
unfavorable decision. Moreover, plaintiff does not assert that she sought to submit the new evidence
to the ALJ to review, either while the administrative proceedings were open or afterward, nor can
it be gleaned from the record that she sought to do so.
Plaintiff’s second claim of error is without merit for the reasons stated above.
3. Whether the ALJ Erred in Not Properly Considering
Plaintiff’s Noncompliance with Treatment
and Prescribed Medications
Plaintiff argues in her reply to defendant’s response that the ALJ erred in denying her
disability claim because she “failed to properly consider and evaluate [her] noncompliance with
treatment and prescribed medications in light of her severe impairment of Oppositional Defiant
Disorder [ODD].” Plaintiff did not raise this claim of error in her brief in support of her motion for
judgment on the administrative record. She first raised this claim of error as an “additional issue”
in her reply (Doc. 19) to defendants response (Doc. 16) to her motion for judgment on the
administrative record (Doc. 13).
Plaintiff mentions ODD twice in her brief in support of her motion for judgment on the
administrative record, but only in terms of the ALJ listing ODD as one of plaintiff’s severe
impairments. (Doc. 14, pp. 1, 6) Plaintiff also asserts unambiguously in her brief that “[t]he issue
at hand revolves around two questions”: first, “whether the ALJ erred by not according proper
weight to treating psychiatrist Lynna Hollis’ opinion; and second, “whether the ALJ erred by not
addressing a mental hospitalization for a suicide attempt and the subsequent treating physician’s
opinion of limitation in the form of a Global Assessment of Functioning or GAF score.” (Doc. 14,
p. 2) In other words, plaintiff raised her ODD claim of error in her reply to defendant’s response
to her motion for judgment on the administrative record.
The Sixth Circuit has held that an issue presented for the first time in a reply to a response
is waived. See Kuhn v. Washentaw County, 709 F.3d 612, 624 (6th Cir. 2013)(an argument is waived
if not raised in the initial brief); Golden Living Center-Frankfort v. Secretary of Health and Human
Services, 656 F.3d 421, 429 (6th Cir. 2011)(citing Sanborn v. Parker, 629 F.3d 554, 579 (6th Cir.
2010)(arguments raised for the first time in a reply brief are waived)); United States v. Perkins, 994
F.2d 1184, 1191 (6th Cir. 1993)(“[i]ssues raised for the first time in a reply brief are not properly
before th[e] court”); Scottsdale Ins. Co. v. Flowers, 513 F.3d 546, 553 (6th Cir. 2008)(“we have
found issues to be waived when they are raised for the first time . . . in replies to responses”).
Although there is scant authority in the Sixth Circuit, other circuits that have considered this
question have so held in the Social Security Context. See Butler v. Soc Sec. Admin, 146 Fed.Appx.
752, 753 (5th Cir. 2005); Elletson v. Astrue, 319 Fed.Appx. 621, 623 (9th Cir. 2009); Carter v.
Astrue, 413 Fed.Appx. 899, 906 (7th Cir. 2011); Lowry v. Astrue, 474 Fed.Appx. 801, 804 (2nd Cir.
2012); Jones v. Colvin, 647 Fed.Appx. 878, 885 (10th Cir. 2016). Moreover, at least four district
courts in the Sixth Circuit have so ruled. Tennant v. Comm’r of Soc. Sec., 2016 WL 5799164 * 5
(W.D. Mich., Oct 5, 2016); Brown v. Comm’r of Soc. Sec., 2015 WL 12681367 * 14 (E.D. Mich.,
Oct 20, 2015); Blount v. Colvin, 2014 WL 4231182 * 10 (N.D. Ohio, Aug. 21, 2014); Yazell v.
Comm’r of Soc. Sec., 2009 WL 2982882 * 3 n. 2 (S.D. Ohio, Sep. 15, 2009).
Plaintiff’s ODD claim for relief is waived for the reasons stated above.
For the reasons explained below, the undersigned RECOMMENDS that plaintiff’s motion
for judgment on the administrative record (Doc. 13) be DENIED, and the Commissioner’s decision
AFFIRMED. The parties have fourteen (14) days of being served with a copy of this R&R to serve
and file written objections to the findings and recommendation proposed herein. A party shall
respond to the objecting party’s objections to this R&R within fourteen (14) days after being served
with a copy thereof. Failure to file specific objections within fourteen (14) days of receipt of this
R&R may constitute a waiver of further appeal. Thomas v. Arn, 474 U.S. 140, 142, reh’g denied,
474 U.S. 111 (1986); see Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011).
ENTERED this 29th day of March, 2017.
/s/ Joe B. Brown
Joe B. Brown
United States Magistrate Judge
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