Crochet v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHERYL CROCHET, : Case No. 3:20-cv-00079

:

Plaintiff, : Magistrate Judge Sharon L. Ovington

: (by full consent of the parties)

vs. :

:

COMMISSIONER OF THE SOCIAL :

SECURITY ADMINISTRATION, :

:

Defendant. :

DECISION AND ENTRY

I. Introduction

Plaintiff Cheryl Crochet brings this case challenging the Social Security

Administration’s denial of her application for a period of disability and Disability

Insurance Benefits. She asserts that since May 1, 2014, she no longer has been able to

work a substantial paid job due to depression, anxiety, back pain, and interstitial cystitis.

Administrative Law Judge (ALJ) Laura Twilley concluded that Plaintiff was not eligible

for benefits because she is not under a “disability” as defined in the Social Security Act.

This case is before the Court upon Plaintiff’s Statement of Errors (Doc. #12), the

Commissioner’s Memorandum in Opposition (Doc. #14), Plaintiff’s Reply (Doc. #15), the

administrative record (Doc. #10), and the record as a whole.

Plaintiff requests that the Court overturn the non-disability finding. The

Commissioner asks the Court to affirm ALJ Twilley’s non-disability decision.

II. Background

Plaintiff was 60 years old on the date ALJ Twilley issued a decision in her case,

placing her in the category of “closely approaching retirement age” for social-security

purposes. See 20 C.F.R. § 404.1563, §404.1568(d)(4). She has an associate’s degree in

nursing and has worked as a customer service representative, nursing service director,

general duty nurse, and cashier checker. (Doc. #10 at PageID # 302, 310).

The evidence of record is sufficiently summarized in the ALJ’s decision (Doc. #10

at PageID # 49-51, 54-58) and Plaintiff’s Statement of Errors. (Doc. #12 at PageID # 1085-

90). The Commissioner referred to the ALJ’s recitation of the relevant evidence. (Doc.

#14 at PageID # 1110). Rather than repeat these summaries, the Court will focus on the

medical records and opinions in the discussion below.

III. Standard of Review

The Social Security Administration provides Disability Insurance Benefits to

individuals who are under a “disability,” among other eligibility requirements. Bowen v.

City of New York, 476 U.S. 467, 470 (1986); see 42 U.S.C. §§ 423(a)(1), 1382(a). The

term “disability,” as the Social Security Act defines it, has specialized meaning of limited

scope. It encompasses “any medically determinable physical or mental impairment” that

precludes an applicant from performing a significant paid job—i.e., “substantial gainful

activity,” in Social Security lexicon. 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A); see

Bowen, 476 U.S. at 469-70.

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An ALJ’s non-disability decision is affirmed unless he or she “failed to apply the

correct legal standards or has made findings of fact unsupported by substantial evidence in

the record.” Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 604 (6th Cir. 2009) (citations

omitted); cf. Blackburn v. Comm’r of Soc. Sec., 78 F. App’x, 45, 47 (6th Cir. 2018) (“We

review the administrative law judge’s application of legal standards with fresh eyes and

factual findings for substantial evidence.”). “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.” Gentry v. Comm’r of Soc. Sec.,

741 F. 3d 708, 722 (6th Cir. 2014). Review for substantial evidence is not driven by

whether the Court agrees or disagrees with the ALJ’s factual findings. Rogers v. Comm’r

of Soc. Sec., 486 F. 3d 234, 241 (6th Cir. 2007). If the ALJ applies the correct legal criteria

and substantial evidence supports the ALJ’s factual conclusions, the decision is affirmed

“even if substantial evidence exists in the record supporting a different conclusion.” Ealy

v. Comm’r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citation omitted).

Conversely, “[e]ven if supported by substantial evidence . . ., a decision of the

Commissioner will not be upheld where [an ALJ] fails to follow [the Commission’s] own

regulations and where that error prejudices a claimant on the merits or deprives the claimant

of a substantial right.” Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007);

(citations omitted); see, e.g., Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 379 (6th Cir.

2013) (remanding because ALJ’s “more rigorous scrutiny of the treating-source opinion

than the nontreating and nonexamining opinions is precisely the inverse of the analysis that

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the regulation requires”); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir.

2004) (remanding due to ALJ’s failure to provide “good reasons,” as the Regulations

require, for not crediting treating physician’s opinion).

IV. The ALJ’s Decision

As noted previously, it fell to ALJ Twilley to evaluate the evidence connected to

Plaintiff’s application for benefits. She did so by considering each of the five sequential

steps set forth in the Social Security Regulations. See 20 C.F.R. § 404.1520. At Step 1,

she found that Plaintiff has not engaged in substantial gainful employment since May 1,

2014, the alleged onset date. (Doc. 10 at PageID# 48). At Step 2, the ALJ determined that

Plaintiff has the severe impairments of obesity, diabetes, diabetic neuropathy, post

laminectomy syndrome, hypothyroidism, and opiate dependence. Id. According to ALJ

Tilley, at Step 3, Plaintiff did not have an impairment or combination of impairments that

met or medically equaled the severity of one in the Commissioner’s Listing of

Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 52.

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

After careful consideration of the entire record, the undersigned finds that

the claimant has the residual functional capacity to perform light work as

defined in 20 CFR 404.1567(b) except as follows[:] the claimant should not

climb ropes, ladders, or scaffolds. She can occasionally climb ramps and

stairs, kneel, crouch, crawl, and balance on uneven, moving or narrow

surfaces. She should perform no work involving any exposure to unprotected

heights, dangerous moving machinery, or commercial driving. [Plaintiff]

should not engage in production rate work or strict production quotas.

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Id. at 53. With these abilities, Plaintiff could engage in her past relevant work as a cashier

checker. This work does not require the performance of work-related activities precluded

by Plaintiff’s RFC. Id. at 59. Her ability to do her past relevant work meant she was not

under a disability and not eligible to receive Disability Insurance Benefits. Id.

V. Discussion

Plaintiff raises three issues as to the ALJ’s decision. In the first two contentions, she

asserts that the ALJ erred in weighing the medical opinions of treating source Denise

Rodney, M.D., and by relying on the opinions of the state agency reviewing physicians.

(Doc. # 12, PageID # 1092-98). Plaintiff also argues that the ALJ erred by failing to find

her depression and anxiety were severe impairments. Id. at 1098-1103.

The Commissioner counters that the ALJ properly evaluated the record evidence,

including the medical source opinions, to reasonably determine that Plaintiff could perform

the work contemplated within her RFC. (Doc. # 14).

A. Medical Source Opinions as to Plaintiff’s Physical Impairments

Because Plaintiff’s claim was filed before March 27, 2017, the treating physician

rule described in 20 C.F.R. § 404.1527 applies. Those regulations require ALJs to adhere

to certain standards when weighing medical opinions. “Key among these is that greater

deference is generally given to the opinions of treating physicians than to those of non-

treating physicians, commonly known as the treating physician rule.” Rogers, 486 F.3d at

242 (citations omitted). The rule is straightforward: “Treating-source opinions must be

given ‘controlling weight’ if two conditions are met: (1) the opinion “is well-supported by

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medically acceptable clinical and laboratory diagnostic techniques”; and (2) the opinion

“is not inconsistent with the other substantial evidence in [the] case record.’” Gayheart,

710 F.3d at 376 (quoting in part 20 C.F.R. § 404.1527(c)(2)); see Gentry, 741 F.3d at 723.

If the treating physician’s opinion is not controlling, “the ALJ, in determining how

much weight is appropriate, must consider a host of factors, including the length,

frequency, nature, and extent of the treatment relationship; the supportability and

consistency of the physician’s conclusions; the specialization of the physician; and any

other relevant factors.” Rogers, 486 F.3d at 242 (citing Wilson, 378 F.3d at 544).

“Separate from the treating physician rule, but closely related, is the requirement

that the ALJ ‘always give good reasons’ for the weight ascribed to a treating-source

opinion.” Hargett v. Comm’r of Soc. Sec., 964 F.3d 546, 552 (6th Cir. 2020) (citing 20

C.F.R. § 404.1527(c)(2); other citation omitted)); see Wilson, 378 F.3d at 544. “The

purpose of the good reasons rule is twofold: first, ‘to let claimants understand the

disposition of their cases’; and second, to ‘ensure[ ] that the ALJ applies the treating

physician rule and permit[ ] meaningful review of the ALJ’s application of the rule.’” Id.

(citations omitted; brackets sic).

The Social Security regulations, rulings, and Sixth Circuit precedent provide that

the ALJ is charged with the final responsibility for determining a claimant’s residual

functional capacity. See e.g., 20 C.F.R. § 404.1527(d)(2) (the final responsibility for

deciding the residual functional capacity “is reserved to the Commissioner.”). Moreover,

the Social Security Act and agency regulations require an ALJ to determine a claimant’s

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residual functional capacity based on the evidence as a whole. 42 U.S.C. § 423(d)(5)(B);

20 C.F.R. § 404.1520(a)(4)(iv) (“the administrative law judge . . . is responsible for

assessing your residual functional capacity”). The ALJ’s RFC assessment must be “based

on all of the relevant evidence in the case record, including information about the

individual’s symptoms and any ‘medical source statements’ – i.e., opinions about what the

individual can still do despite his or her impairment(s) – submitted by an individual’s

treating source or other acceptable medical sources.” Id. (footnote omitted).

In certain circumstances, however, an ALJ’s failure to give good reasons for

rejecting the opinion of a treating source may constitute de minimis or harmless error.

Wilson, 378 F.3d at 547. De minimis or harmless error occurs: (1) if a treating source’s

opinion is so patently deficient that the Commissioner could not possibly credit it; (2) if

the Commissioner adopts the opinion of the treating source or makes findings consistent

with the opinion; or (3) where the Commissioner has met the goal of the procedural

safeguard of the good reasons rule even though an ALJ has not complied with the express

terms of the regulation. Id.

Plaintiff argues that ALJ Twilley erred by improperly evaluating and weighing Dr.

Denise Rodney’s February 7, 2017, interrogatory responses. (Doc. #12 at PageID# 1092-

96). In that statement, Dr. Rodney wrote that she began treating Plaintiff in July 2013 and

had seen her about 33 times over the course of her treatment. (Doc. #10 at Page ID# 801).

Dr. Rodney also reported that Plaintiff’s diagnoses included hypertension, diabetes

mellitus, asymptomatic premature ventricular contraction, chronic back pain, depression,

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anxiety, insomnia, and hyperlipidemia. Id. Dr. Rodney opined that Plaintiff cannot sit or

stand continuously for more than an hour at a time; cannot stand for a combined total of

more than two hours per eight-hour workday; and cannot sit for more than three hours total

during an 8-hour work day. Id. at 802. Dr. Rodney also opined that Plaintiff should avoid

lifting greater than 10 pounds occasionally, and should never carry 11 pounds or more. Id.

Dr. Rodney concluded that “even under the best circumstances,” Plaintiff would miss 20

work days per month. Id. at 803.

Contrary to Plaintiff’s contentions, the ALJ considered Dr. Rodney’s opinion and

provided good reasons for finding it was entitled to only little weight, rather than

controlling or deferential weight. Id. at 58. First, she recognized that under the treating

physician rule, treating physicians’ opinions generally are afforded deference. She

explained:

The opinion of Denise Rodney, M.D. is a treating source statement (Exhibit

6F). As such, for claims filed before March 27, 2017, the relevant regulations

found at 20 CFR 404.1527(c)(2) and 416.927(C)(2) state as follows:

If we find that a treating source’s medical opinion on the issue(s) of

the nature and severity of your impairment(s) is well supported by

medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with the other substantial evidence in your

case record, we will give it controlling weight.

The undersigned considered the following factors to determine the weight

not given to the treating source medical opinion: the length of the treatment

relationship and the frequency of the examination; the nature and extent of

the treatment relationship; the supportability of the opinion, the consistency

of the opinion, any relevant specialty of the treating source, and other

relevant factors.

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(Doc. #10 at PageID# 58).

With that framework in mind, the ALJ articulated good reasons for assigning Dr.

Rodney’s opinions “little weight.” She found Dr. Rodney’s checklist statement was both

internally unsupported and unsupported by the treatment record. Id. at 58. This Court’s

review confirms that Dr. Rodney’s opinion sets forth no explanation for the restrictions she

provided.

Given the conclusory and vague nature of Dr. Rodney’s opinion, substantial

evidence supports the ALJ’s decision to discount it. Indeed, other district courts have

upheld an ALJ’s decision for similar reasons. See, e.g., Phillips v. Berryhill, No. 3:16-CV-

193-CHL, 2017 WL 6045451, at *4 (W.D. Ky. Dec. 6, 2017). In Phillips, the court

affirmed the ALJ’s decision rejecting the treating physician’s opinion on the basis that it

was vague, unexplained, and exaggerated. See id. Upon review of the treating physician’s

opinion, the court noted that the treating physician wrote only “‘MRI’ and ‘back surgery’”

to explain the basis for any functional limitations. Id. (citation omitted). The court found

such explanation “both unclear and unhelpful in judging the rationale behind the limitations

[the treating physician] placed on [the p]laintiff.” Id. Moreover, the treating physician

“did not attach any MRI results to her opinion or explain how specifically the ‘MRI’ and

‘back surgery’ supported her suggested limitations.” Id.

Ultimately, the court in Phillips concluded that, “[b]ecause of the conclusory and

explanation-free nature of [the treating physician’s stated] limitations and the lack of

supporting, objective findings, substantial evidence support[ted] the ALJ’s decision to

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deny her opinion controlling weight.” Id. (citing F.R. § 404.1527(c)(3) (stating that the

more a medical source presents relevant evidence and explains the basis behind her medical

opinion, the more weight the ALJ will afford to it)). Id. As the court there noted, “[t]he

lack of objective medical evidence to support the [treating source] opinion qualifies as a

‘good reason’ as used in 20 C.F.R. § 404.1527(c).” See also Acosta v. Comm’r of Soc. Sec.,

No. 17-12414, 2018 WL 7254256, at *9-10 (E.D. Mich. Sept. 6, 2018), report and

recommendation adopted, No. 17-12414, 2019 WL 275931 (E.D. Mich. Jan. 22, 2019)

(holding that treating physician’s “vague” opinions could not be “translate[d] into

functional limitations that [could] be properly incorporated into an RFC,” because, e.g., the

opinion did “not explain how plaintiff was limited or whether she could only do certain

activities for a certain amount of time in each day”); Hanna v. Colvin, No. 5:13CV1360,

2014 WL 3749420, at *15 (N.D. Ohio July 30, 2014) (upholding ALJ’s decision rejecting

treating physician’s opinion as incomplete and internally inconsistent, and noting that

“courts have upheld an ALJ’s rejection of a physician opinion on the grounds that it is

inconsistent, unclear, or vague”); Bennett v. Comm’r of Soc. Sec., No. 1:07-CV-1005, 2011

WL 1230526, at *4 (W.D. Mich. Mar. 31, 2011) (upholding ALJ’s decision discounting

physician’s vague opinion) (citing Tempesta v. Astrue, No. CV-08-00003 (FB), 2009 WL

211362, at *7 (E.D.N.Y. Jan. 28, 2009) (characterizing treating physician’s opinion as

“vague” and of little value)).

Like the treating physician in Phillips, Dr. Rodney failed to identify objective

medical evidence in the record that would substantiate the limitations she imposed.

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Consequently, Plaintiff has failed to show that the ALJ committed reversible error as to the

weight she accorded that opinion.

Plaintiff further asserts that the ALJ’s “brief opinion[-]weighing fails to contain

even a single evidentiary citation.” See Doc. #12 at PageID# 1093. However, review of

the ALJ’s decision reveals that the ALJ referred back to her earlier discussion of the

medical records. Id. at 54. Indeed, her opinion details various inconsistencies as well as

benign or mild exam findings. For example, Dr. Rodney’s records from 2014 showed that

Plaintiff was being treated with medications because she was pre-diabetic. Id. at 466. The

ALJ considered that in February 2017, the same month Dr. Rodney provided her

assessment, she stated that Plaintiff had been diagnosed with diabetes without

complications and without long-term use of insulin, and that she was maintained on oral

medications and mostly was compliant with treatment. Id. at 56, citing to 894, 896.

Furthermore, even assuming arguendo that the ALJ’s discussion was technically

insufficient, remand would not be warranted. If technical compliance is lacking, an ALJ

may satisfy the procedural safeguards by implicitly providing sufficient reasons for not

giving a treating physician’s opinion controlling weight. For example, in a case where an

ALJ failed to state good reasons for giving the opinions of two treating physicians little

weight, the Sixth Circuit nonetheless concluded that the ALJ’s analysis of the record

evidence adequately addressed the treating physicians’ opinions by indirectly attacking

both their supportability and their consistency. Nelson v. Comm’r of Soc. Sec., 195 F.

App’x. 462, 470 (6th Cir. 2006); see also Coldiron v. Comm’r of Soc. Sec., 391 Fed. App’x.

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435, 440 (6th Cir. 2010) (citing Nelson, supra) (“An ALJ may accomplish the goals of the

procedural requirement by indirectly attacking the supportability of the treating physician’s

opinion or its consistency with evidence in the record.”)).

When determining whether an ALJ indirectly attacked the treating physician’s

opinion, “courts look at the ALJ’s decision itself, not the other evidence in the record.”

Coldiron, 391 F. App’x. at 440. Here, the ALJ’s comments about Dr. Rodney’s opinions

suffice to illustrate their lack of consistency and supportability. The ALJ therefore did not

err in declining to assign Dr. Rodney’s opinions controlling weight.

Plaintiff’s second argument is an extension of her first: “While the ALJ entirely

rejects Dr. Rodney’s opinions, she purports to embrace the opinions of Drs. Siddique and

Klyop, the state agency’s early record reviewing consultants.” (Doc. #12 at PageID #

1096). After reviewing Plaintiff’s medical records, Mehr Sidedique, M.D. and Gerald

Klyop, M.D., state agency physicians, found that Plaintiff could sit, stand, and walk up to

six hours each per day and lift no more than 10 pounds frequently or 20 pounds

occasionally. (Doc. #10 at PageID #112-14, 130-32). Dr. Siddique found that Plaintiff

could frequently climb ramps or stairs, while Dr. Klyop found she could occasionally climb

ramps or stairs. They agreed she was able to crouch frequently, occasionally crawl, but

should never climb ladders, ropes, or scaffolds. Both doctors opined that Plaintiff should

avoid all exposure to unprotected heights, hazardous machinery, and commercial driving.

Id. at 114-15, 131-32. The ALJ assigned their assessments significant weight, finding they

were consistent with the record. Id. at 57. The ALJ added that the record also supported

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occasional limitations in kneeling, crouching, and crawling, based on a functional capacity

evaluation performed in November 2015. Id., citing to #636-39.

Plaintiff contends that the ALJ provided no explanation for her reliance upon these

opinions other than an unelaborated allusion to “the medical record.” (Doc. #12 at PageID#

1097, citing to 57). Citing Gayheart, Plaintiff also contends that the ALJ failed to

scrutinize these state agency physician opinions to the same degree as the opinions of Dr.

Rodney. In Gayheart, the Court held in relevant part that an ALJ commits reversible error

by subjecting the opinions of the claimant’s treating physicians to closer scrutiny than the

opinions of state agency physicians. See Gayheart, 710 F.3d at 379. In that case, the ALJ

rejected the opinions of the plaintiff’s treating physicians for alleged internal

inconsistencies and for being inconsistent with the record as a whole, while at the same

time accepting the opinions of the state agency physicians that suffered from the same

flaws. Id.

The Court concludes that Gayheart is inapposite here, where the ALJ does not

appear to have scrutinized the opinions of Plaintiff’s treating physician more closely than

those of the state agency consultants, or to have applied a double standard in evaluating the

medical evidence. As noted above, Dr. Rodney’s assessment was cursory, somewhat

equivocal, and unsupported by treatment notes or specific examples that substantiated her

clinical conclusions. Plaintiff does not explain how these opinions warrant specific

additional restrictions that the ALJ failed to accommodate. It is her burden to do so. See,

e.g., Frye v. Soc. Sec. Admin., No. 3:17-1466, 2018 WL 6710039, at *6 (M.D. Tenn. Dec.

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4, 2018), report and recommendation adopted sub nom. Frye v. Comm’r, Soc. Sec. Admin.,

No. 3:17-CV- 01466, 2018 WL 6696938 (M.D. Tenn. Dec. 20, 2018) (rejecting plaintiff’s

reliance on opinions containing limitations more restrictive than RFC because plaintiff

failed to meet burden to identify how opinions “undermine the formulated RFC”).

B. Severe mental impairments at step two and mental residual functional

capacity.

Plaintiff’s final argument focuses on the ALJ’s labeling of her alleged depression

and anxiety as “nonsevere” impairments. She contends that because she was diagnosed

with and received some treatment for such impairments, she should have further

limitations. However, beyond those diagnoses, the evidence contains no objective findings

to demonstrate a reasonable probability the ALJ would have found Plaintiff disabled had

she deemed her mental impairments severe. See NLRB v. Wyman-Gordon, 394 U.S. 759,

766 n.6 (1969), quoted in Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004)

(where “remand would be an idle and useless formality,” courts are not required to “convert

judicial review of agency action into a ping-pong game”); Fisher v. Bowen, 869 F.2d 1055,

1056 (7th Cir. 1989) (stating that “[n]o principle of administrative law or common sense

requires [a court] to remand a case . . . unless there is reason to believe that the remand

might lead to a different result”).

At step two of the five-step sequential evaluation process, an ALJ considers the

“medical severity of [the claimant’s] impairments.” 20 C.F.R. § 404.1520(a)(4). “An

impairment or combination of impairments is not severe if it does not significantly limit

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[the applicant’s] physical or mental ability to do basic work activities.” 20 C.F.R. §

404.1521(a). Basic work activities are defined as “abilities and aptitudes necessary to do

most jobs.” Id. at § 404.1521(b).

The Sixth Circuit has construed step two as a “de minimis hurdle.” Higgs v.

Bowen, 880 F.2d 860, 862 (6th Cir. 1988) (citations omitted). Under this approach, “an

impairment can be considered not severe only if it is a slight abnormality that minimally

affects work ability regardless of age, education, and experience.” Id. (citation omitted).

As explained by the Court, “this lenient interpretation of the severity requirement in part

represents the courts’ response to the Secretary’s questionable practice in the early 1980s

of using the step two regulation to deny meritorious disability claims without proper

vocational analysis.” Id. (citations omitted). However, “the severity requirement may

still be employed as an administrative convenience to screen out claims that are totally

groundless solely from a medical standpoint.” Long v. Apfel, 1 F. App’x 326, 331 (6th

Cir. 2001) (internal quotations and citations omitted).

In the present case, the ALJ found at step two that Plaintiff had several severe

physical impairments but only opiate dependence as a severe mental impairment. (Doc.

#10 at PageID #48). Substantial evidence supports the ALJ’s findings.

Significantly, Plaintiff misquotes the ALJ’s decision as stating, “There are also no

medical opinions regarding her mental health and any limitations her diagnosed anxiety

and depression caused.” (Tr. 49).” (emphasis added). See Doc. # 12 at PageID # 1099. In

fact, the ALJ clearly was aware of the medical source opinions as to Plaintiff’s mental

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health, stating, “There are also medical opinions regarding her mental health and any

limitations her diagnosed anxiety and depression caused.” Id. at 49 (emphasis added).

When evaluating the severity of Plaintiff’s mental impairments, the ALJ acknowledged

that the record contains treating source opinions along with a separate mental health report

from a mental health expert hired by Social Security to evaluate Plaintiff. Id.

Plaintiff’s mental health counselor, Thomas Butler, PCC, LSW, provided several

opinions as to Plaintiff’s psychiatric limitations. In July 2015, Mr. Butler opined that

Plaintiff had moderate to severe limitations in concentration and functioning in proximity

to others without being distracted. Id. at 966. He also found Plaintiff had a moderate to

severe limitation in her ability to complete tasks in a designated period of time and perform

complex tasks on a sustained basis. He believed she had moderate functional limitations

associated with her ability to make simple decisions, maintain socially appropriate

behavior, and perform simple tasks on a sustained basis. Id. In August 2015, Mr. Butler

opined that Plaintiff had difficulty sustaining attention, had a low tolerance to stress, and

extreme difficulty getting along with others. Id. at 963-94.

The following June, Mr. Butler completed a mental health evaluation form in which

he estimated Plaintiff could return to work on August 1, 2016, with restricted duty until

September 1, 2016. Id. at 961.

On behalf of the state agency, Mr. Butler also provided an opinion in September

2016, in which he indicated that Plaintiff’s recent Montreal Cognitive Assessment scores

were within the normal range. Id. at 798. Mr. Butler found that Plaintiff had trouble

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maintaining concentration and focus for longer than 10 minutes. He also opined that

Plaintiff was severely to moderately impaired in her ability to process general instructions

and remember to do important things. She reported difficulty getting out of bed some days

due to depression, which resulted in poor hygiene. He also reported that Plaintiff had

significant problems with social interaction in general, reporting increased anxiety leading

to level of isolation, little or no physical activity, and increase irritability and conflict with

others who are in a supervisory position. He wrote she had a very low stress tolerance.

According to Mr. Butler, Plaintiff reported a decrease in the frequency of anxiety and panic

symptoms, although she continued to report depression. Id. at 799. When Plaintiff began

treatment, she reported panic attacks three to five times per week, but now was reporting

fewer than five panic attacks per month. Id. at 800.

In weighing Mr. Butler’s opinions, the ALJ determined that his opinions fluctuated

over time, citing a June 2016 release indicating Plaintiff could return to full work duties as

of September 1, 2016, followed by an opinion setting moderate to severe limitations later

in September 2016, even though she reported improved symptoms. Due to internal

inconsistencies, the ALJ did not give Mr. Butler’s opinions controlling weight. She did

assign them partial weight, however, as many of the mental limitations were supported by

Plaintiff’s severe impairment of opioid dependence. In addition, the ALJ noted that “the

mental limitations included in the residual functional capacity also account for the

claimant's non-severe mental health conditions included in Dr. Butler’s findings and

opinions.” Id. at 51.

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George Schulz, Ph.D., the state agency’s consulting psychologist, concluded that

Plaintiff would be able to understand and apply instructions in the work setting with

average intellectual functioning. She is mentally capable of completing routine or

repetitive activities of daily living tasks both at home and in the community or in a job

setting. Plaintiff is able to respond to coworkers and supervisors in a work setting. Plaintiff

is likely to have some difficulty responding appropriately to work pressure. Id. at 1077-

78. Plaintiff argues the ALJ gives this opinion “significant weight” but provides no

justification for doing so, other than a cursory and poorly-worded citation to “the

claimant’s examination and expertise. (sic).” (Doc. #12 at PageID # 1101). The ALJ found

that Dr. Schulz’s opinion is consistent with only “mild” limitations. See 20 C.F.R. §

404.1520a(d)(l).

The ALJ relied on the opinions of the state agency reviewing psychologists, Drs.

Lisa Foulk, Psy.D. and Denise Rabold, Ph.D. (Doc. #10 at PageID # 49-50). Dr. Foulk

found that Plaintiff had two non-severe mental impairments: affective disorder and anxiety

disorder. Id. at 111. She opined that Plaintiff had no restriction of activities of daily living

and mild difficulties in maintaining concentration, persistence, or pace. But Plaintiff had

no difficulties in maintaining social functioning and no repeated episodes of

decompensation. Id. She concluded that Plaintiff’s mental health conditions do not pose

a significant limitation to her ability to work and she has no severe psychological

impairment. Id. at 112. Dr. Rabold affirmed Dr. Foulk’s assessment. Id. at 128-30.

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Pursuant to the regulatory guidelines that were in effect at the time of the decision

in Plaintiff’s case, when determining the weight to assign to a non-treating medical source

such as a state agency reviewing psychologist, an ALJ is to consider the following factors:

the treatment relationship; supportability; consistency; area of specialization of the source;

and “other factors,” such as familiarity with SSA programs. 20 C.F.R. § 404.1527(c)(2)-

(6). However, an ALJ need not affirmatively discuss all such factors. Francis v. Comm’r

Soc. Sec. Admin., 414 F. App’x 802, 804-05 (6th Cir. 2011) (finding no requirement that

an ALJ expressly consider each of the factors in 20 C.F.R. § 404.1527(c) within the written

decision). The ALJ’s failure to address each factor explicitly did not constitute error.

Finally, the ALJ reasonably relied on Plaintiff’s treatment records. Evidence in the

record shows improvement of mental symptoms as Plaintiff’s pain control improved.

(Doc. #10 at PageID # 49). For example, Dr. Rodney observed in her July 1, 2015

treatment note that Plaintiff’s psychiatrist said her anxiety and depression are due to her

pain. Id. at 498. Her May 12, 2013 treatment note stated: “Anxiety/depression: better since

her pain has improved.” Id. at 528.

Plaintiff has failed to demonstrate that the ALJ would have found her disabled had

she confirmed the diagnoses of depression and anxiety.. As explained above and in the ALJ

decision, substantial evidence supported the ALJ’s determination in assessing Plaintiff’s

RFC that Plaintiff’s non-severe impairments led to mental limitations on “engag[ing] in

production rate work or strict production quotas.” Id. at 53. With any impairment, a

claimant must do more than merely show the presence of an impairmen. in order to

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establish that it is disabling. See, e.g., Estok v. Apfel, 152 F.3d 636, 640 (7th Cir. 1998)

(diagnosis alone does not show disability). Because Plaintiff failed to do so, the ALJ did

not commit reversible error at step two.

Accordingly, for the above reasons, Plaintiff’s Statement of Errors lacks merit.

IT IS THEREFORE ORDERED THAT:

1. The Commissioner’s non-disability finding is AFFIRMED; and

2. The case is terminated on the Court’s docket.

March 26, 2021 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

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