Myers v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JAMES D. MYERS,

Plaintiff,

v. Civil Action 2:19-cv-2060

Judge George C. Smith

Magistrate Judge Kimberly A. Jolson

COMMISSIONER OF

SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

Plaintiff, James D. Myers, brings this action under 42 U.S.C. § 405(g) seeking review of a

final decision of the Commissioner of Social Security (“Commissioner”) denying his applications

for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSI”).

For the reasons set forth below, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.

9) be OVERRULED and that judgment be entered in favor of Defendant.

I. BACKGROUND

Plaintiff filed his application for DIB in January 2013, and his application for SSI in July

2013. Both applications allege that he was disabled beginning December 21, 2012. (Tr. 183–84).

After his application was denied initially and on reconsideration, the Administrative Law Judge

(the “ALJ”) held a hearing on December 16, 2014. (Tr. 40–82). On January 16, 2015, the ALJ

issued a decision denying Plaintiff’s application for benefits. (Tr. 18–39). The Appeals Council

denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the

Commissioner. (Tr. 1–5). Plaintiff then filed a case in the United States District Court for the

Northern District of West Virginia. That court remanded the case back to the Commissioner on

September 12, 2016. (Tr. 570–71).

Another administrative hearing was held on May 18, 2017, (Tr. 472–536), and the ALJ

issued an unfavorable decision on September 18, 2017. (Tr. 445–64) The Appeals Council again

denied Plaintiff’s request for review, making the ALJ’s decision the final decision of the

Commissioner. Plaintiff filed the instant case seeking a review of the Appeals Council’s decision

on May 20, 2019 (Doc. 1), and the Commissioner filed the administrative record on July 29, 2019

(Doc. 8). This matter is now ripe for review. (See Docs. 9, 11).

In his decision, the ALJ found that Plaintiff had not engaged in substantial gainful activity

since December 21, 2012, the alleged onset date. (Tr. 448). He found that Plaintiff suffers from

the following severe impairments: multiple sclerosis and diagnoses of persistent dysthymic

disorder, unspecified personality disorder, amnestic disorder (not otherwise specified), and

cognitive disorder (not otherwise specified). (Id.). The ALJ, however, found that none of

Plaintiff’s impairments, either singly or in combination, met or medically equaled a listed

impairment. (Tr. 450).

As for Plaintiff’s residual functional capacity (“RFC”), the ALJ opined:

[T]he claimant has the residual functional capacity to perform a range of sedentary

work as defined in 20 CFR 404.1567(a) and 416.967(a) subject to some additional

nonexertional limitations. More specifically, the claimant is able to: lift and/or

carry up to 10 pounds occasionally and less than 5 pounds frequently; sit with

normal breaks for 6 to 8 hours out of an 8-hour workday; and stand and/or walk

with normal breaks for up to 2 hours out of an 8-hour workday. He also requires

the use of a cane, as needed, to ambulate. He can never climb ladders, ropes, or

scaffolds, but can occasionally climb ramps and stairs, balance, stoop, kneel,

crouch, and crawl. He must avoid concentrated to temperature extremes, vibration,

fumes, dusts, odors, gases, poor ventilation, and hazards of moving plant machinery

and unprotected heights. He is unable to do commercial driving and is limited to

simple, unskilled work involving occasional interaction with supervisors,

coworkers, and the public. Finally, the work must be performed in a low stress

work setting with no rapid production quotas or assembly line work, limited

decision-making responsibilities, and few changes in the work setting.

(Tr. 452).

A. Relevant Hearing Testimony

The ALJ summarized the testimony from Plaintiff’s hearing:

Over the course of two hearings, the claimant testified that he is married and has

one child (currently age 6). He indicated that his family supports itself through his

wife’s employment as a flight attendant. He testified that he has a 9th grade

education, but indicated that he obtained his GED and is able to read, write, and

perform simple math. The claimant initially alleged disability due to intermittent

vertigo, double vision, and loss of focus.

At the first hearing, the claimant testified that he stopped working in 2012 because

of impaired vision and vertigo secondary to an earlier diagnosis of multiple

sclerosis. He reported that he did not feel like it was safe for him to be behind the

wheel as a truck driver. He also indicated that no treating physician advised him

that his driver’s license should be revoked. The claimant testified that he was taking

Aubagio and Naproxen for his medical conditions at that time. Despite that

treatment, the claimant reported that he continued to experience memory issues,

double vision, right upper extremity numbness, and an unsteady gait. Overall, he

asserted that he was able to lift 20 to 25 pounds at one time, stand for 20 to 30

minutes at one time, and walk 15 to 20 minutes at one time.

At the second hearing, the claimant continued to report residual effects of his

multiple sclerosis, such as double vision, headaches, memory issues, weakness, and

fatigue. He also indicated that he was taking Betaseron and Ibuprofen for his

physical issues. Overall, the claimant reported that he was able to repetitively lift

1 pound, sit for 1 hour at a one time, and stand 15 to 30 minutes at one time. The

claimant also reported that he has problems with depression and anxiety for which

he takes Cymbalta, but he indicated that he has never seen a psychologist or

psychiatrist and was unable to recall where he received individual therapy during

the alleged period of disability.

(Tr. 453).

B. Relevant Medical Evidence

The ALJ also usefully summarized Plaintiff’s medical records and symptoms. First, he

considered the records documenting Plaintiff’s physical impairments:

In assessing the claimant’s residual functional capacity, the undersigned first points

out that his claim for disability has two distinct components. The first part is related

to his multiple sclerosis and the second component is related to his overall mental

health condition. The undersigned will first address the claimant’s multiple

sclerosis diagnosis. The claimant was seen for a consultative examination

performed by Dr. Sethi in April 2013. The claimant reported a history of

intermittent headaches, vertigo, and lack of vision secondary to multiple sclerosis.

The claimant also indicated that he was not on any medications for any physical or

mental diagnosis. He indicated that he had stopped working on the alleged onset

date because he was involved in a motor vehicle accident while at work and his

employer fired him over the incident (Exhibit 8F/2).

Dr. Sethi’s physical examination revealed that the claimant was well-built, well-

nourished , and in no acute distress. The examination of the claimant’s head, eyes,

ears, nose, throat, neck, chest, heart, and abdomen were normal. The claimant had

mildly reduced range of motion of the dorsolumbar spine, varying sensation in the

right lower extremity, and he reported being unable to walk on his tiptoes.

Otherwise, the claimant had normal range of motion of the cervical spine,

shoulders, elbows, wrists, hands, fingers, hips, knees, and ankles. He also exhibited

5/5 strength in all four extremities and with grasping, manipulations, pinching, and

fine coordination (Exhibit 8F). Dr. Sethi’s opinion is addressed in the opinion

section of the decision located below the analysis of the claimant’s treatment

evidence.

As far as treatment is concerned, the claimant first sought treatment with his

primary care provider, Dr. Seco, in April 2014 for reports of a discolored brown

area on his right foot. The claimant also reported right arm numbness, fatigue, and

dizziness at times due to an earlier diagnosis of multiple sclerosis. However, he

indicated that he did not take any medications for multiple sclerosis and just dealt

with the symptoms. The claimant also specifically denied any issues with

confusion, disorientation, impaired memory/judgment, anxiety, loss of interest,

incontinence, frequency/urgency, blurred vision, vision loss, back pain, joint pain,

joint swelling, joint effusion, limited range of motion, muscle aches, muscle

weakness, stiffness, focal weakness, headaches, facial drooping, incoordination, or

any falls in the preceding six months. The claimant also reported that he was taking

care of his 3-year-old son while his wife worked (Exhibit 5F/5–21).

The claimant continued to follow up with Dr. Seco’s office through August 2014.

At the final visit, the claimant specifically denied any issues with focal weakness,

dizziness, headache, facial drooping, incoordination, memory problems, numbness,

seizures, slurred speech, tremor, joint pain, joint swelling, limited range of motion,

muscle aches, muscle weakness/stiffness, anxiety, sadness/tearfulness, or loss of

interest. The physical examination at this visit also revealed that the claimant was

comfortable, alert, and oriented. He had a normal range of motion of the neck and

his respiratory system and cardiovascular system were also normal. The claimant’s

abdominal area was nontender without any other abnormality being noted. The

examinations of the claimant’s head, neck, and back were normal. The claimant

also exhibited normal range of motion of the upper extremities, low back, and lower

extremities. The claimant had normal stability, muscle strength, and muscle tone of

all four extremities along with normal deep tendon reflexes, sensation, gait, and

station (Exhibit 5F/76–89).

The claimant also established treatment with Dr. Zyznewsky, a neurologist, in June

2014 with reports of headaches, balance problems, and tingling/numbness of the

right upper extremity and left lower extremity. The claimant reported that he had

been diagnosed with multiple sclerosis approximately twenty (20) years prior to

this visit due to experiencing double vision at that time. The claimant indicated that

he had never really had any follow-ups for the condition since that date (Exhibit

7F/2).

As a result, Dr. Zyznewsky had the claimant undergo updated testing in the form

of a brain MRI, an EEG, an EMG/nerve conduction study, and a duplex can of the

carotid cervical area. The brain MRI revealed the presence of multiple foci and

white matter consistent with multiple sclerosis, but there was no acute intracranial

process (Exhibit 7F/8–9). The EEG was normal (Exhibit 7F/5). The EMG/nerve

conduction study was also normal specifically indicating that the nerve conduction

velocities and needle studies of the lower extremities were normal and no evidence

of radiculopathy or neuropathy was present (Exhibit 7F/4). The duplex scan

revealed no significant stenosis (Exhibit 7F/7).

Based upon these findings, Dr. Zyznewsky placed the claimant on Aubagio, which

the claimant indicated he was tolerating well except for some residual diarrhea. Dr.

Zyznewsky also prescribed the claimant a cane. In November 2014, the claimant

told Dr. Zyznewsky that he was no longer taking Aubagio because his hair was

falling out. Dr. Zyznewsky offered the claimant Tecfidera as a replacement

medication, but the claimant did not return his call and was a no show for his final

scheduled appointment in February 2015 (Exhibits 6F, 7F, and l0F).

The claimant then had a break in treatment for his multiple sclerosis until he

established with a new neurologist, Dr. Paris, in February 2017. At this visit, the

claimant reported that he was experiencing double vision on and off, right arm and

left leg numbness, and left leg weakness while walking. He also indicated that he

had not been on any medications for his multiple sclerosis recently. In fact, the

claimant reported that he had only taken Betaseron for 6 months approximately 20

years prior to his visit with Dr. Paris (Exhibits 16F/2 and 8).

The physical examination revealed that the claimant had mild hand tremors,

decreased sensation in the left leg, and an ataxic gait. Otherwise, the claimant was

awake, alert, and in no acute distress. The claimant’s mental status examination was

normal and he had normal strength in the bilateral upper extremities and right lower

extremity. His left lower extremity strength was 4-/5. The claimant’s cranial nerves

were also intact (Exhibit 16F). Based upon this examination, Dr. Paris had the

claimant undergo a brain and cervical spine MRI. The results indicated that there

was white matter present in the brain consistent with and areas of abnormal signal

in the cervical spine, both consistent with multiple sclerosis. There was no evidence

of enhancement (Exhibit 16F/8).

The claimant returned to Dr. Paris’s office for a follow-up visit in April 2017 at

which point she indicated that she had reviewed the records from the claimant’s

previous neurologists. The claimant reported that the symptoms he reported

experiencing at his first visit occurred when he experienced a flare-up in his

multiple sclerosis. He stated in the past the flare-ups resolved with a Medrol

Dosepak. At that time, the claimant denied any issues with headache, dizziness,

unilateral weakness, numbness, chest pain, or palpitations. Dr. Paris diagnosed the

claimant with relapsing remitting multiple sclerosis and suggested that he be treated

with Betaseron and Vitamin B12 (Exhibit 16F).

The claimant also had a physical consultative examination performed by Dr.

Schmitt in February 2017. The claimant continued to report symptoms stemming

from his multiple sclerosis, but indicated he was not taking any medications for this

condition. The claimant used a cane for ambulation and his gait was shuffling. The

physical examination revealed decreased pinprick sensation in the left upper and

left lower extremity. The claimant also exhibited decreased grip strength bilaterally.

The claimant required assistance getting on and off the examination table and his

fine manipulations were impaired, but he was able to make a fist, his hand was able

to be fully extended, and his fingers were able to be opposed. The claimant also

exhibited normal range of motion of the cervical spine, shoulders, elbows, wrists,

lumbar spine, hips, knees, and ankles. His upper extremity strength was 3/5

bilaterally and his lower extremity strength was 4/5 bilaterally (Exhibit 12F). Dr.

Schmitt’s opinion is also addressed in the opinion section of the decision located

below the analysis of the claimant’s treatment evidence

(Tr. 454–56).

Second, he considered the records concerning Plaintiff’s mental health:

The mental status examination revealed that the claimant was sad, anxious, restless,

and fidgety. Otherwise, the claimant’s sensorium, cognitive functioning, insight,

and judgment were unremarkable except that his anxiety increased as he was posed

proverbs and asked to recall objects after a delay. Based upon this examination, Dr.

Bousquet diagnosed the claimant with dysthymic disorder, anxiety disorder,

amnestic disorder (not otherwise specified), and a cognitive disorder (not otherwise

specified) (Exhibit 4F). Dr. Bousquet’s opinion is also addressed in the opinion

section of the decision located below the analysis of the claimant’s treatment

evidence.

In March 2017, the claimant was evaluated by Dr. Mansuetto. The claimant

reported difficulties focusing along with symptoms consistent with depression and

anxiety. The claimant indicated that he had just started receiving individual therapy

and he was taking Cymbalta for his mental symptoms. The claimant also reported

that he had been smoking marijuana on a daily basis, but had stopped at an unknown

time. He also reported that he had previously been cited for one DUI offense. The

mental status examination revealed an apathetic mood, blunted affect, deficient

concentration, and slowed pace. The claimant’s appearance, attitude, behavior,

speech, orientation, thought process, thought content, perception, insight,

psychomotor, judgment, immediate memory, remote memory, persistence, and

social functioning were within normal limits (Exhibit 13F).

Generally speaking, the medical evidence does not reveal any type of recurrent

complaints involving depression, anxiety, or mental abnormalities during any of his

routine treatment visits with various providers across the longitudinal period at

issue. Likewise, there is no indication that the claimant received any sort of

medication or specialized mental health treatment from a counselor, psychologist,

or psychiatrist in an attempt to deal with any severe mental symptoms at any time

from the alleged onset date of December 21, 2012, through in or around March

2017 (Exhibits 5F, 7F, 9F, and l0F). Moreover, prior to the date of this decision

the claimant’s representatives did not submit any evidence regarding the presence

of mental health treatment despite indicating in May 2017 that they would be

submitting said documentation (Exhibit 27E/2).

(Tr. 456–57).

C. The ALJ’s Decision

Upon review of the above-described evidence, the ALJ concluded that “the objective

medical record does not support the degree of impairment alleged by the claimant” and that

Plaintiff’s “severe physical and mental impairments” are “adequately accommodated” through the

RFC. (Tr. 457).

As for the opinion evidence, the ALJ first considered the opinions of the state agency

physical consultants, who determined that Plaintiff is capable of performing a range of work

between the light and sedentary exertional levels subject to some additional postural and

environmental limitations. (Id.). The ALJ gave these opinions little weight because neither

consultant examined Plaintiff, and the treatment evidence shows that Plaintiff’s “relapsing

remitting multiple sclerosis reasonably limits him to sedentary work activities.” (Tr. 458).

The ALJ then turned to the state agency mental consultants, who opined that even with

Plaintiff’s mental symptoms he would be able to understand, remember, and carry out 1 to 3 step

tasks in a relatively static environment, relate to others on a superficial basis, and adapt to changes

explained in advance. (Tr. 457–58). The ALJ assigned these opinions great weight, explaining

that they are “largely supported by the mental examinations . . . consistent with the claimant’s lack

of treatment as outlined above and are the most consistent with the longitudinal review of the

evidence of record with regard to the claimant’s mental symptoms.” (Tr. 458).

Next, the ALJ considered the opinion of Dr. Sushil Sethi, who opined in April 2013 that

Plaintiff’s ability to do work-related physical activities is limited. (Id.). The ALJ afforded this

opinion little weight, explaining that it is “vague and does not define what the term ‘limited’ means

from a functional standpoint,” and that as a result, “the limitations are not quantifiable for purposes

of establishing function-by-function physical limitations under the Social Security Rules and

Regulations.” (Id.).

The ALJ then considered the opinion of psychologist David Bousquet, who opined in May

2013 that Plaintiff “would be expected to have some difficulties” in his ability to understand,

remember, and carry out instructions in a work setting and that there would “be times when he will

have some difficulties” with his abilities to respond appropriately to work place stresses and

pressures, but that he is capable of conforming to social expectations in a work setting. (Id.). The

ALJ assigned this opinion little weight, explaining that the limitations regarding concentration and

response to work place stresses and pressure “are not quantifiable for purposes of establishing

nonexertional mental limitations” and further, “do not contain any indication what the claimant is

able to do or cannot do.” (Id.). And, regarding Bousquet’s opinion on Plaintiff’s ability to function

socially, the ALJ found it is “not supported by a review of the longitudinal record,” which supports

Plaintiff’s ability to occasionally interact with coworkers, supervisors, or the public. (Id.).

Next, the ALJ considered the opinions of licensed psychologist, M. Aileen Mansuetto, who

opined that “[i]t is highly unlikely” that Plaintiff “is going to be employable at this point,

particularly if the MS diagnosis is accurate,” and that Plaintiff has a “moderate limitation” in his

ability to understand, remember, and carry out simple or complex instructions and respond

appropriately to changes to usual work situations and changes in a routine work setting. (Tr. 459).

The ALJ assigned this opinion little weight, explaining, inter alia, that it is internally inconsistent

and relies heavily on Plaintiff’s subjective reports of symptoms and limitations. (Id.).

Finally, the ALJ considered the opinion of Dr. Thomas Schmitt, who opined in January

2017 that Plaintiff can “never” perform numerous physical activities, including, for example,

lifting, carrying, sitting, standing, or walking. (Id.). The ALJ assigned this opinion little weight,

explaining that it is “completely out of proportion to the longitudinal review of the evidence” and

relies “heavily” on Plaintiff’s subjective reports. (Id.).

II. STANDARD OF REVIEW

The Court’s review “is limited to determining whether the Commissioner’s decision is

supported by substantial evidence and was made pursuant to proper legal standards.” Winn v.

Comm’r of Soc. Sec., 615 F. App’x 315, 320 (6th Cir. 2015); see also 42 U.S.C. § 405(g).

“[S]ubstantial evidence is defined as ‘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 v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (quoting Cutlip v. Sec’y

of HHS, 25 F.3d 284, 286 (6th Cir. 1994)).

“After the Appeals Council reviews the ALJ’s decision, the determination of the council

becomes the final decision of the Secretary and is subject to review by this Court.” Olive v.

Comm’r of Soc. Sec., No. 3:06 CV 1597, 2007 WL 5403416, at *2 (N.D. Ohio Sept. 19, 2007)

(citing Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990); Mullen v. Bowen, 800 F.2d 535, 538

(6th Cir. 1986) (en banc)). If the Commissioner’s decision is supported by substantial evidence,

it must be affirmed, “even if a reviewing court would decide the matter differently.” Id. (citing 42

U.S.C. § 405(g); Kinsella v. Schweiker, 708 F.2d 1058, 1059–60 (6th Cir. 1983)).

III. DISCUSSION

Plaintiff asserts one assignment of error, that the ALJ improperly evaluated the mental and

physical health opinion evidence of record. (Doc. 9 at 6–13).

“The Social Security Administration defines three types of medical sources: non-

examining sources, non-treating (but examining) sources, and treating sources.” Reeves v.

Comm’r of Soc. Sec., 618 F. App’x 267, 273 (6th Cir. 2015) (citing 20 C.F.R. § 404.1502). “A

physician qualifies as a treating source if there is an ‘ongoing treatment relationship’ such that the

claimant sees the physician ‘with a frequency consistent with accepted medical practice for the

type of treatment and/or evaluation required for [the] medical condition.’” Id. (citing 20 C.F.R.

§ 404.1527(c)(2)). If the treating physician’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,’ then an ALJ ‘will give it controlling weight.’” Id. (quoting 20

C.F.R. § 404.1527(c)(2)). And, when an ALJ does not give the treating source’s opinion

controlling weight, the ALJ must give “‘good reasons’” for discounting the opinion. Id. (quoting

Rogers, 486 F.3d at 242).

On the other hand, when the opinion comes from a non-treating or non-examining source,

it is usually not entitled to controlling weight. 20 C.F.R. § 404.1527(c)(2). Rather, the ALJ should

consider relevant factors, including supportability, consistency, and specialization. 20 C.F.R. §

404.1527(d)(2). There is however, no “reasons-giving requirement” for non-treating source

opinions. Martin v. Comm’r of Soc. Sec., 658 F. App’x 255, 259 (6th Cir. 2016). Rather, the ALJ

must provide only “a meaningful explanation regarding the weight given to particular medical

source opinions.” Mason v. Comm’r of Soc. Sec., No. 1:18 CV 1737, 2019 WL 4305764, at *7

(N.D. Ohio Sept. 11, 2019) (citing SSR 96-6p, 1996 WL 374180, at *2).

Here, the Commissioner seems to rely on the stricter standard governing treating source

opinions. (See, e.g., Doc. 11 at 5, 11). But, the Undersigned finds, and Plaintiff does not state

otherwise, that there are no treating source opinions of record. Rather, the medical opinions come

from: examining but non-treating state psychology consultants (Tr. 89–91, 105–06); Dr. Sushil

Sethi, a one-time examining medical consultant (Tr. 402–04); David Bousquet, a one-time

examining psychological consultant (Tr. 283–90); M. Aileen Mansuetto, a one-time examining

psychological consultant (Tr. 760–68); and Dr. Thomas Schmitt, a one-time examining medical

consultant (Tr. 746–58).

Accordingly, the ALJ was not required to assign controlling weight to these opinions or

provide “good reasons” for discounting them. See Martin, 658 F. App’x at 259. Instead, the ALJ

must have provided a “meaningful explanation regarding the[ir] weight[.]” Mason, 2019 WL

4305764, at *7.

A. Mental Health Opinion Evidence

Plaintiff makes two arguments regarding the ALJ’s treatment of the mental health opinion

evidence: (1) that the ALJ failed to incorporate the state psychologists’ limitations into the RFC;

and (2) that the ALJ improperly evaluated the opinion of examining psychologist M. Aileen

Mansuetto. (See Doc. 9 at 6–11).

First, Plaintiff contends that, because the ALJ afforded great weight to the opinions of the

state agency psychologists, he should have accounted for each of their opined limitations in the

RFC, or at the very least, explained why he excluded any limitations. (Doc. 9 at 8). Specifically,

Plaintiff asserts that, because the state psychologists limited him to only superficial and occasional

interactions with the public, the ALJ erred in limiting him to only occasional interactions with the

public and excluding the specific limitation of “superficial.” (Id.).

Plaintiff’s argument fails. The Sixth Circuit has rejected the argument that an ALJ must

explain every omitted restriction from a non-treating physician’s opinion. In Martin v.

Commissioner of Social Security, the plaintiff argued that the ALJ failed to adopt certain

limitations espoused by a non-examining source and a one-time consultative examiner. See Martin

v. Comm’r of Soc. Sec., 658 F. App’x 255, 259 (6th Cir. 2016). The Sixth Circuit found no

reversible error:

Martin protests the ALJ’s lack of explanation as to why Martin’s marked

impairment in interacting with the general public—as found by Dr. Joslin—and his

moderate to marked impairment in his ability to sustain concentration—as found

by Dr. Rutledge—were not explicitly incorporated into Martin’s RFC. But because

Dr. Rutledge and Dr. Joslin are non-treating sources, the reasons-giving

requirement is inapplicable to their opinions.

Id. at 259; see also Reeves, 618 F. App’x at 275 (“Although the ALJ gave great weight to Dr.

Torello’s opinion, he was not required to incorporate the entirety of her opinion, especially those

findings that are not substantially supported by evidence in the record.”); Mason, 2019 WL

4305764, at *10 (finding that the ALJ was not required to adopt all of the non-treating source’s

limitations).

The same reasoning applies here. The ALJ was not required to explain why he excluded

the limitation of only “superficial” interactions with the public. Yet it is clear from his opinion

why he did. In reviewing the record, the ALJ found that Plaintiff has only moderate limitations in

interacting with others. (Tr. 451; see also Tr. 458). He explained:

In interacting with others, the claimant has moderate limitations. Here, the claimant

indicated that he is able to get along with family, friends, neighbors, authority

figures, and other people without difficulty. The claimant also reported being the

primary caretaker of his young son and is able to go out alone (Exhibits 4E, 4F,

13F, and Hearing Testimony dated 12/16/14 and 5/18/17). The medical evidence

shows that the claimant had a good rapport with providers, was described as

pleasant and cooperative, had good interactions with medical staff, and appeared

comfortable during appointments. Further, he never exhibited any significant

social abnormalities during routine appointments.

(Tr. 451).

In sum, substantial evidence supports the ALJ’s decision to limit Plaintiff to only

occasional rather than occasional and superficial interaction with the public.

Turning to Plaintiff’s second argument regarding the opinion evidence, he contends that

the ALJ improperly discounted the opinion of licensed psychologist Mansuetto, (Doc. 9 at 9–10),

who opined in January 2017, that “[i]t is highly unlikely that [Plaintiff] is going to be employable

at this point, particularly if the MS diagnosis is accurate.” (Tr. 764). Mansuetto also completed a

medical source statement, finding that Plaintiff has moderate limitations in his ability to understand

and remember simple instructions, carry out complex instructions, make judgments on complex

work-related decisions, and that he would never be able to interact appropriately with the public,

supervisors, or coworkers. (Tr. 760–68). Essentially, Plaintiff argues that Mansuetto’s exam notes

reveal greater limitations than the “check the box” medical source statement, and that the ALJ

should have relied more on the detailed exam notes than the administrative form. (Doc. 9 at 9–

10).

Up front, because Mansuetto examined Plaintiff only once, “the reasons-giving

requirement is inapplicable to [Mansuetto’s] opinion.” Martin, 658 F. App’x at 259. Rather, as

noted, the ALJ was required to provide only “a meaningful explanation regarding the weight given

to particular medical source opinions.” Mason, 2019 WL 4305764, at *7. The ALJ did that here.

First, the ALJ found that Mansuetto’s opinions “contain inconsistencies, which renders

them less persuasive.” (Tr. 459). He elaborated:

For example, Dr. Mansuetto states that the claimant is “unemployable” in the body

of her report, but indicates that the claimant is able to function satisfactorily in all

areas required to mentally sustain work-related activities on her “Medical Source

Statement.” These discrepancies call into question the veracity of both opinions

since they are on opposite ends of the spectrum with respect to a disability finding

in this case.

(Id.).

Second, the ALJ noted that Manusettos’ opinions “rely heavily on the subjective report of

symptoms and limitations provided by the claimant and the totality of the evidence does not

support the ‘unemployable’ statement.” (Id.). The ALJ explained:

For example, Dr. Mansuetto indicated throughout her report that she was relying

on the claimant’s subjective complaints and/or the claimant’s multiple sclerosis

diagnosis in reaching her limitations. The problem with this reasoning is that the

mental status examination was generally unremarkable from an objective

standpoint except for deficient concentration and a slow pace. Also, the treatment

evidence shows no ongoing treatment or medication for an underlying mental

health condition or multiple sclerosis from December 21, 2012, until at least in or

around March 2017.

(Id.).

Third, the ALJ reasoned that Plaintiff’s multiple sclerosis “is outside” Mansuetto’s area of

expertise as a psychologist. (Id.). Finally, the ALJ noted that Mansuetto’s opinion that Plaintiff

is disabled or unemployable “is not a medical opinion, but is an administrative finding dispositive

of a case that requires familiarity with the Regulations and legal standards set forth therein.” (Id.).

While Plaintiff cites to numerous notes from his exam with Mansuetto, including, for

example, that he “exhibited an unusual presentation during the examination,” the ALJ was well

within his discretion to discredit Mansuetto’s opinion, finding that it was internally inconsistent,

based on subjective evidence, concerned matters outside of his specialty, and contained an opinion

of disability reserved for the Commissioner. As such, the Undersigned finds that the ALJ provided

a “meaningful explanation regarding the weight given to” Mansuetto’s opinion, Mason, 2019 WL

4305764, at *7, and Plaintiff has shown no reversible error in this regard.

B. Physical Health Opinion Evidence

Plaintiff also asserts that the ALJ failed to properly evaluate the physical health opinion

evidence. (Doc. 9 at 11–13). Specifically, he avers that the ALJ improperly discounted the

opinions of Dr. Sushil Sethi and Dr. Thomas Schmitt. (Id.).

Dr. Sethi opined in an April 2013 medical source statement that Plaintiff’s ability to do

work-related activities, such as sitting, standing, walking, lifting, carrying, and handling objects

traveling is “limited” but that his hearing and speaking are “normal.” (Tr. 402–4). The ALJ

assigned this opinion little weight, explaining:

Dr. Sethi’s opinion is vague and does not define what the term ‘limited’ means from

a functional standpoint. Therefore, the limitations are not quantifiable for the

purposes of establishing function-by-function physical limitations under the Social

Security Rules and Regulations.

(Tr. 458).

Dr. Schmitt, in January 2017, opined that Plaintiff is “never” able to lift, carry, sit, stand,

walk, reach in any direction, handle, finger, feel, push/pull, operate foot controls, climb, balance,

stoop, kneel, crouch or crawl, along with a myriad of other physical limitations. (Tr. 746–58).

The ALJ afforded this opinion little weight for multiple reasons. (Tr. 459–60).

First, the ALJ found it to be “completely out of proportion to the longitudinal review of the

evidence.” (Tr. 459). Second, he noted that it “appears to rely heavily on the subjective report of

symptoms and limitations provided by the claimant and the totality of the evidence does not

support the opinion. (Id.). He elaborated:

For example, the claimant did not receive any treatment for his multiple sclerosis

for approximately two years prior to the date of the evaluation with Dr. Schmitt.

The claimant was seen approximately one week prior by Dr. Paris, but no treatment

had started. The physical examination performed by Dr. Paris revealed that the

claimant was awake, alert, oriented, and in no acute distress. The claimant’s mental

status was normal and his motor strength in the upper extremities and right lower

extremity was normal. He also exhibited 4-/5 in the left lower extremity. The

claimant’s cranial nerves were intact and his reflexes were symmetric in the upper

extremities (Exhibit 16F). The same or similar findings were made in 2013 and

2014, which was before the claimant stopped treatment altogether prior to resuming

treatment in February 2017.

(Tr. 459–60).

Finally, the ALJ explained that Dr. Schmitt’s opinion was not supported by Plaintiff’s

reported activities of daily living:

Dr. Schmitt’s opinion as it pertains to the claimant’s ability to operate a motor

vehicle, shop, travel without assistance, ambulate without a walker/2 canes /2

crutches, walk a block at a reasonable pace, climb a few steps, prepare a simple

meal, care for personal hygiene, and sort, handle, or use files are not consistent with

the claimant’s reported activities of daily living or the fact that he has only used a

cane for ambulation.

(Tr. 460).

Plaintiff resists these conclusions, contending that Dr. Sethi and Dr. Schmitt “are the only

opinions of record to have had the opportunity to personally examine and observe [him] and

provide an opinion regarding his functional capacity” and that they are “experts in disability

evaluation.” (Doc. 9 at 12). He also asserts that Dr. Schmitt’s evaluation “revealed numerous

clinical observations,” including, for example, that he has a history of Multiple Sclerosis, severely

compromised grip strength and gait disturbance, as well as dizziness and severe weakness in the

right and left upper extremities. (Id.). Finally, Plaintiff, relying on records from hospital visits

and exams, insists that the record “consistently documents ongoing problems with [his] physical

capabilities.” (Id. at 13).

But there are two critical problems with Plaintiff’s argument. First, neither Dr. Sethi nor

Dr. Schmitt are treating sources, and consequently, the ALJ was not required to give “good

reasons” for discounting their opinions. See Martin, 658 F. App’x at 259. Regardless, the ALJ

closely scrutinized the record and thoughtfully compared it with the limitations expressed in Dr.

Sethi’s and Schmitt’s opinions. And, as required, he provided a “meaningful explanation

regarding the weight given to” their opinions, Mason, 2019 WL 4305764, at *7, explaining that

they were inconsistent with both the record and Plaintiff’s reports of daily activities, (Tr. 458–59).

Second, while Plaintiff relies on certain records documenting his physical problems, he is

essentially asking the Court to reweigh the evidence and substitute its judgment for that of the

ALJ. The law prohibits the Court from doing so. See Reynolds v. Comm’r of Soc. Sec., 424 F.

App’x 411, 414 (6th Cir. 2011) (citing Youghiogheny & Ohio Coal Co. v. Webb, 49 F.3d 244, 246

(6th Cir. 1995)) (“This court reviews the entire administrative record, but does not reconsider facts,

re-weigh the evidence, resolve conflicts in evidence, decide questions of credibility, or substitute

its judgment for that of the ALJ.”); see also Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)

(noting that “there is a ‘zone of choice’ within which the Commissioner can act, without the fear

of court interference”).

In sum, substantial evidence supports the ALJ’s RFC determination.

IV. CONCLUSION

Based on the foregoing, it is RECOMMENDED that Plaintiff’s Statement of Errors (Doc.

9) be OVERRULED and that judgment be entered in favor of Defendant.

V. PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those specific

proposed finding or recommendations to which objection is made, together with supporting

authority for the objection(s). A District Judge of this Court shall make a de novo determination

of those portions of the Report or specific proposed findings or recommendations to which

objection is made. Upon proper objection, a District Judge of this Court may accept, reject, or

modify, in whole or in part, the findings or recommendations made herein, may receive further

evidence or may recommit this matter to the Magistrate Judge with instructions. 28 U.S.C.

§ 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the district judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

Date: December 23, 2019 /s/ Kimberly A. Jolson

KIMBERLY A. JOLSON

UNITED STATES MAGISTRATE JUDGE