Opinion

Allen v. Commissioner of Social Security

Court: District Court, S.D. Ohio
Filed: Sep 24, 2021
Cited by: 0 cases
Authority: More cited than 28.3%

“State agency medical consultants are considered experts and their opinions may be entitled to greater weight if their opinions are supported by the evidence.”

How later courts described this case

“State agency medical consultants are considered experts and their opinions may be entitled to greater weight if their opinions are supported by the evidence.”
“The substantial evidence standard presupposes that there is a ‘zone of choice’ within which the Secretary may proceed without interference from the courts. If the Secretary’s decision is supported by substantial evidence, a reviewing court must affirm.”

Written by the judges who cited it.

The opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

JONATHON LAMAR ALLEN,

Plaintiff,

Civil Action 2:20-cv-2663

Magistrate Judge Elizabeth P. Deavers

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

OPINION AND ORDER

Plaintiff, Jonathon Lamar Allen (“Plaintiff”), brings this action under 42 U.S.C. § 405(g)

for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying

his application for supplemental security income benefits. With the consent of the parties

pursuant to 28 U.S.C. § 636(c) (ECF No. 8), this matter is before the Court for consideration of

Plaintiff’s Statement of Errors (ECF No. 15) the Commissioner’s Memorandum in Opposition

(ECF No. 18), Plaintiff’s Reply (ECF No. 19), and the administrative record (ECF No. 14). For

the reasons that follow, Plaintiff’s Statement of Errors is OVERRULED and the

Commissioner’s decision is AFFIRMED.

I. BACKGROUND

Plaintiff applied for supplemental security income benefits on September 2, 2016,

alleging disability beginning January 1, 2008. (R. at 203-208.) Plaintiff’s claim was denied

initially and upon reconsideration. (R. at 102-108, 112-116.) Upon request, a hearing was held

on March 19, 2019, in which Plaintiff appeared and testified. (R. at 32-63.)1 A vocational expert

(“VE”), Jerry Olsheski, also appeared and testified at the hearing. (Id.) On April 24, 2019,

Administrative Law Judge Jeannine Lesperance (“the ALJ”) issued a decision finding that

Plaintiff was not disabled. (R. at 13-31.) On March 24, 2020, the Appeals Council denied

Plaintiff’s request for review and adopted the ALJ’s decision as the Commissioner’s final

decision. (R. at 2-4.) Plaintiff then timely commenced the instant action. (ECF No. 1.)

II. RELEVANT HEARING TESTIMONY

A. Plaintiff’s Testimony

Plaintiff testified at the March 2019 administrative hearing. (R. at 39-56.) Plaintiff

testified that he lives alone and that he has not had a driver’s license since 1996 but usually has a

case manager to help take him places. (R. at 39-42.) Plaintiff also testified that he has a bus

pass, but he doesn’t use it because he doesn’t like being around a lot of people. (R. at 42.)

Plaintiff testified that he does not go to the library or go shopping for himself, and although he

goes shopping or to the food bank, he has people who do the shopping for him. (R. at 49.)

Plaintiff testified that he made it to the eleventh grade in school, but he did not finish due

to his behavioral issues. (R. at 42.) Plaintiff testified that at one point in his life, he had a

support group of good friends and enjoyed playing basketball, but now can’t really explain what

is going on inside of him and doesn’t even remember being that way because he is on a lot of

medicine. (R. at 46-47.)

Plaintiff testified that he has tried to work over the years, and in 2015 he made about

$2,500 from a part-time job that he received through a placement program. (R. at 43.) Plaintiff

1 During the administrative hearing, Plaintiff amended the alleged onset date from January 1,

2008 to August 16, 2016. (R. at 37.)

testified that he couldn’t remember whether he worked at a job in 2014, but he could remember

working as a car washer for about six months in 2004. (R. at 43-44.) The ALJ characterized

Plaintiff’s work history as “pretty patchy,” noting that Plaintiff often wouldn’t work anywhere

for more than a day or a week. Plaintiff confirmed, and indicated it was because he doesn’t like

socializing with groups for a long time. (R. at 45.) The ALJ asked Plaintiff if there was a reason

why Plaintiff couldn’t work a job that didn’t require social interactions, such as a janitorial type

of position. Plaintiff testified that he couldn’t explain it but “any little thing just can set [him]

off” so he just stays by himself at home. (R. at 45-46.)

Plaintiff testified that he drinks less alcohol than he used to because he is on so many

medications, and that he had been sober from alcohol and cannabis for six months. (R. at 47-48.)

The ALJ noted that Plaintiff has reported explosive anger episodes, but that the record doesn’t

actually document that happening. He testified that he doesn’t have problems when he is by

himself. (R. at 48.) Plaintiff represented that the last outburst he had was when he was working,

and “something popped in [his] head” and he was “just going through a lot of stuff.” (Id.)

Plaintiff also testified that his medication has “somewhat” helped to control his outbursts. (Id.)

Plaintiff stated that he has always heard voices in his head, but he only recently reported it

because he was ashamed to say it previously. (R. at 49.)

Plaintiff testified that he used to live in specialized housing at Maryhaven, which Plaintiff

compared to a rehab center, and that he lived in a big “dorm-type room” with a lot of people. (R.

at 50-51.) Plaintiff testified that he got into a lot of altercations with people at Maryhaven, but

never faced any consequences. (R. at 51.)

Plaintiff testified that he suffers from severe depression and has suicidal thoughts, and

that he is on several different medications. (Id.) Plaintiff testified that he is aggravated and not

motivated to do anything, so he just likes to stay to himself. (R. at 51-52.) Plaintiff testified that

his medications help, as he hasn’t had any outbursts. (R. at 52.) Plaintiff testified that when he

is around other people, he worries that they are talking about him or looking at him in a certain

way, and he doesn’t like it. (R. at 52-53.) Plaintiff testified that he does not have any friends he

hangs out with, and that in a typical day he just watches TV and tries to sleep all day. (R. at 53.)

Plaintiff also testified that he does not do anything on the internet, and that he talks to his mother

but otherwise does not spend time with his family or a significant other. (R. at 53-54.)

The ALJ observed that Plaintiff’s case manager had reported, at least seven or eight

times, that Plaintiff was not home when the case manager came to his house. Plaintiff suggested

that he was probably actually home, asleep, on those occasions. (R. at 54-55.) Plaintiff also

testified that he was recently treated for his hand a couple of weeks ago, but had otherwise not

seen a doctor for about a year. (R. at 55.) Plaintiff testified that he didn’t know why he didn’t

seek treatment for his hand before then, but his case manager recommended it when Plaintiff

complained about how much his hand hurt. (R. at 55-56.) Plaintiff testified that he was

prescribed Ibuprofen for his hand pain at the most recent doctor’s visit. (R. at 56.)

B. Vocational Expert’s Testimony

Dr. Jerry Olesheski testified as the VE at the administrative hearing. (R. at 56-61.)

Based on Plaintiff’s age, education, and work experience and the residual functional capacity

ultimately determined by the ALJ, the VE testified that a similarly situated hypothetical

individual could perform the following jobs that exist in significant numbers in the national

economy: machine feeder; packing and filling machine tender; and hand packer. (R. at 58-59.)

III. RELEVANT RECORD EVIDENCE

A. Maryhaven Inc.

Plaintiff received alcohol detoxification and rehabilitation treatment from Maryhaven Inc.

(“Maryhaven”) between July 31, 2014 and April 13, 2016. (R. at 280-307.) On an Adult

Diagnostic Assessment form completed on August 8, 2014, Plaintiff reported that his strengths

included “good personality, keeps people laughing, determined and smart, improvements self-

esteem.” He reported having a friend support group and that he enjoyed playing basketball. (R.

at 286.) Plaintiff also reported wanting to work, and noted that he had had one job in the past

five years. (R. at 287.) Plaintiff’s record also indicated that he previously had been diagnosed

with depression, anxiety, and bipolar disorder. (R. at 288.)

Plaintiff reported that he started drinking alcohol at age 12 and that prior to July 20, 2014,

he drank alcohol “all day everyday.” (Id.) Plaintiff also reported smoking marijuana (once per

month) and tobacco (twenty cigarettes per day) prior to arriving at Maryhaven. (Id.) Plaintiff

reported having had legal issues related to drugs and alcohol, and reported being addicted to

alcohol and marijuana. (R. at 289-290.) Plaintiff was diagnosed with an alcohol dependency,

and he began various treatment regimens, including education programs, long-term residential

treatment, attending AA meetings every day, and meeting with a sponsor on a regular basis. (R.

at 293.) On September 8, 2014, Plaintiff underwent a Mental Status Exam from Kathryn Jilek,

LSW, who found that Plaintiff had no mental health impairments and that he had good insight

and judgment. (R. at 296-297.)

On March 23, 2016, Teresa Soller, RN, completed a Nursing Assessment form for

Plaintiff and reported that as of March 21, 2016, Plaintiff was drinking five 24-ounce beers on a

daily basis and was smoking three blunts of marijuana on a biweekly basis. (R. at 280-285.)

Nurse Soller also reported that, prior to July 18, 2014, Plaintiff had been taking one pill of the

opiate Percocet on a daily basis. (R. at 280.) Nurse Soller admitted Plaintiff for alcohol

detoxification treatment. (R. at 284.)

On March 30, 2016, Plaintiff transitioned to seek “Ambulatory Detox” treatment. (R. at

303.) Stephanie Scales, LCDCIII, completed a Maryhaven Transition Summary form and

indicated that Plaintiff “appears to have good insight into addiction/alcoholism,” he “has a desire

to make changes in his[] life,” and he “reports having a good work ethic and good work history

and experience.” (Id.) Ms. Scales also noted that Plaintiff “is able to advocate for [him]self and

participate effectively in an individual and group setting,” but that he “would benefit from

ongoing, community sober support.” (Id.)

Plaintiff terminated the Ambulatory Detox treatment and was discharged on April 13,

2016. The Discharge Summary completed by Ms. Scales indicated that Plaintiff “did not meet

all goals and did not complete[] Ambulatory Detox.” (R. at 300.) Ms. Scales further noted that

upon discharge, Plaintiff “needs to develop the strength to complete an [Alcohol Overuse

Disorder] program,” “needs to utilize familial support,” “needs to continue to build sober social

support,” needs to attend 12-step recovery meetings, and needs to engage with his sponsor. (R.

at 305.)

B. North Central Mental Health Center

Between August 11, 2014 and February 15, 2019, Plaintiff received treatment and case

management services from North Central Mental Health Center (“North Central”). (R. at 341-

528.) After seeking treatment from North Central on a regular basis from August 2014 through

February 2015, Plaintiff inexplicably did not return again until May 16, 2016, prompting

psychiatrist Ayesha Haq, D.O. to note that Plaintiff “has no good explanation for not keeping his

appointments.” (R. at 381.) Plaintiff then continued treatment on an infrequent basis from 2016

through 2019, often missing appointments and going several months between visits. (See

generally R. at 341-528.)

Plaintiff had a similarly inconsistent experience with the case management services

offered by North Central. The records indicate that the case management services were intended

to help connect Plaintiff with community resources and provide transportation as needed, but

Plaintiff regularly missed his scheduled appointments, again allowing several months to pass

between some appointments. (See R. at 455 (On April 14, 2017, Plaintiff “did not answer” when

his case manager knocked on his door), 459 (On July 17, 2017, Plaintiff “stated that he did not

want to meet at this time”), 460 (On August 15, 2017, Plaintiff “stated that he did not want to

meet”), 461 (On September 22, 2017, Plaintiff’s case manager was unable to reach him), 462 (on

October 20, 2017, Plaintiff “did not answer” when his case manager knocked on his door), 491

(on January 5, 2018, Plaintiff “stated he could not meet” for his appointment), 499 (on March 26,

2018, Plaintiff “did not answer” when his case manager knocked on his door), 500 (on May 3,

2018, Plaintiff’s case manager was unable to reach him), 501 (on May 24, 2018, Plaintiff was not

home when his case manager arrived for a scheduled meeting), 502 (on May 29, 2018, Plaintiff

did not answer his case manager’s phone call to schedule an appointment), 510 (on August 13,

2018, Plaintiff didn’t open his door for his case manager and nurse), 511 (on August 16, 2018,

Plaintiff was not at home for an appointment).)

C. Judith Brown, M.D.

On November 14, 2016, Plaintiff saw Judith Brown, M.D., for a physical examination,

complaining of “right hand problems.” (R. at 323-333.) Plaintiff reported breaking his hand in a

fit of rage about five months prior, and despite surgical repair Plaintiff believed it had not yet

healed. (R. at 323.) Plaintiff reported a constant ache, decreased flexion of his fingers, and

constant numbness, but denied problems with the range of motion of his wrist. (Id.) Plaintiff

also reported that he had experienced shortness of breath of an unspecified period of time, but he

had not sought treatment. (Id.)

Upon examination, Dr. Brown found that Plaintiff’s extremities were normal, and his

wrists were nontender and negative for Tinel’s sign. (R. at 325.) Dr. Brown noted that

Plaintiff’s right hand revealed tenderness over the 4th and 5th metacarpal bones with a bony

deformity of the proximal aspect of the 4th and 5th metacarpals, with mild soft tissues swelling.

(R. at 326.) Dr. Brown also noted that Plaintiff was not able to make a fist with his right hand.

(Id.) Dr. Brown noted some muscle weakness around Plaintiff’s right hand, and concluded that

Plaintiff’s “ability to perform work-related activities such as bending, stooping, lifting, walking,

crawling, squatting, carrying and traveling as well as pushing and pulling heavy objects appears

to be at least mildly affected by the findings noted.” (R. at 327.)

D. Margaret G. Smith, Ph.D.

On December 12, 2016, Plaintiff saw Margaret G. Smith, Ph.D., for a psychological

evaluation. (R. at 334-340.) Dr. Smith noted that when asked about the nature of his disability,

Plaintiff reported that he broke his right hand and had surgery, but his hand was not healing

properly and may require another surgery. (R. at 334.) Plaintiff also reported being treated for

“mental issues,” including depression, bipolar disorder, and schizophrenia. (Id.)

Dr. Smith noted that Plaintiff currently was taking Lexapro, which he had just started that

week, and Melatonin. (R. at 335.) Dr. Smith reported that Plaintiff was “somewhat vague about

this, but apparently he was off medication for about a month” and “[a]pparently he missed an

appointment and his case manager quit.” (Id.) Plaintiff told Dr. Smith that he drank regularly

throughout his life, and that he currently was living in a Maryhaven residential placement center

following detox and treatment at Maryhaven. (Id.) Plaintiff reported that he was “sociable” with

some of the guys at the center and that he had a good female friend he saw daily. (R. at 336.)

Dr. Smith reported that the female friend was “the only one that can calm him down.” (Id.)

Dr. Smith reported that Plaintiff told her that he has mostly just had temporary jobs that

have lasted a couple of weeks to a month, because he “can’t put up with people,” he doesn’t trust

people, and he thinks people are watching him. (R. at 335.) Plaintiff reported that he has been

depressed his entire life, that he has had a “rough” life, and that he doesn’t feel like he fits into

society anymore. (Id.) Plaintiff reported to Dr. Smith that he gets angry very easily, which

results in him punching things and getting into fights, and that he has little motivation. (Id.)

Plaintiff also reported to Dr. Smith that he has “crazy stupid” thoughts, including paranoia,

which makes him angry so he stays in his apartment, and that he previously saw a psychiatrist in

2008 but then quit going. (R. at 336.) Plaintiff also reported to Dr. Smith that he had been going

to the North Central Mental Health Center for about two years, and that he had a case manager

there. (Id.)

Dr. Smith noted that “[m]anifest signs of anxiety were not observed” with Plaintiff, and

opined that “[h]e [did] not present as psychotic during this interview.” (R. at 337.) Dr. Smith

also noted a previous evaluation of Plaintiff, noting that she “was concerned for the reliability of

his reporting,” but added that “his report from the last evaluation is generally consistent.” (Id.)

Dr. Smith diagnosed Plaintiff with Major Depression, Recurrent, Moderate; Alcohol Use

Disorder, Reports in Remission; and Unspecified Personality Disorder (Antisocial and

Borderline Traits). (Id.) Dr. Smith wrote that Plaintiff’s symptoms “do support Major

Depression and rule out Bipolar Disorder,” and highlighted that “[i]t would be helpful to review

[the] psychiatric notes from North Central and to document that he has attended there.” (R. at

338.)

With regard to a functional assessment of Plaintiff, Dr. Smith wrote that he “is an

individual with probable borderline functioning,” and added that he “is limited to basic simple

tasks with a set routine.” (Id.) Dr. Smith also opined that “[g]iven [Plaintiff’s] low cognitive

functioning it is not expected that he is competent to multi-task and it is expected that he would

be highly distracted working with groups of people.” (R. at 339.) Dr. Smith opined that “[i]t is

not expected that he will be consistent in maintaining pace or persistence over prolonged periods

of time.” (Id.) Dr. Smith further found that Plaintiff has “low frustration tolerance and

significant potential for explosive outbursts on the job,” and added that “[w]ork pressures may

exacerbate anger, paranoia, and aggression.” (Id.) Dr. Smith did note, however, that she was not

able to review any records from North Central as a part of the evaluation. (Id.)

E. State Agency Consultants

State agency consultant Maria Congbalay, M.D., reviewed Plaintiff’s file at the initial

level on December 12, 2016, and provided assessments of Plaintiff’s physical RFC. (R. at 65-

82.) Specifically, Dr. Congbalay found that Plaintiff could occasionally lift and/or carry up to 50

pounds; frequently lift and/or carry 25 pounds; stand and/or walk (with normal breaks) for about

six hours in an eight-hour workday; sit (with normal breaks) for about six hours in an eight-hour

workday; was occasionally limited in his right hand control with regard to his ability to push

and/or pull (including operation of hand and/or foot controls); was frequently limited in climbing

ramps/stairs; was never limited in climbing ladders/ropes/scaffolds, and crawling; and was

unlimited in his balancing, stooping (i.e., bending at the waist), kneeling, crouching (i.e., bending

at the knees); and was frequently limited in his crawling ability. (R. at 76-77.) Dr. Congbalay

found that Plaintiff was limited in his handling ability on his right side, but had no other postural,

manipulative, visual, or communicative limitations. (R. at 77.) Dr. Congbalay also found that

Plaintiff should avoid concentrated exposure to all hazards (machinery, heights, etc.). (R. at 78.)

State agency psychological consultant Judith Schwartzman, Psy.D. also reviewed

Plaintiff’s file at the initial level on January 4, 2017, and provided assessments of Plaintiff’s

mental RFC. (R. at 78-80.) Dr. Schwartzman found that Plaintiff was moderately limited in his

ability to understand and remember detailed instructions, in that he could understand, remember,

and perform simple tasks of 1-3 steps, but that Plaintiff was otherwise not significantly limited in

his understanding and memory. (R. at 78.) Dr. Schwartzman also found that Plaintiff had

sustained concentration and persistence limitations, including being moderately limited in his

ability to carry out detailed instructions, moderately limited in his ability to maintain attention

and concentration for extended periods, and being moderately limited in the ability to complete a

normal workday and workweek without interruptions from psychologically based symptoms and

to perform at a consistent pace without an unreasonable number and length of rest periods. (R. at

79.) To this end, Dr. Schwartzman found that “[w]hen symptoms increase, [Plaintiff] will

occasionally need flexibility in work schedule, taking breaks, and pacing.” (Id.)

Dr. Schwartzman also found that Plaintiff had social interaction limitations, including

being moderately limited in his ability to interact appropriately with the general public,

moderately limited in his ability to accept instructions and respond appropriately to criticism

from supervisors, moderately limited in his ability to get along with coworkers or peers without

distracting them or exhibiting behavioral extremes, and moderately limited in his ability to

maintain socially appropriate behavior and to adhere to basic standards of neatness and

cleanliness. (Id.) To this end, Dr. Schwartzman noted that Plaintiff “is easily frustrated and

prone to angry outbursts,” and opined that “[h]e would perform best in a non-public position,

preferably working alone” and “[h]e can engage in superficial, intermittent contacts with

coworkers and supervisors” but “[s]upervisors will need to offer constructive criticism.” (R. at

79-80.) Dr. Schwartzman also found that Plaintiff was moderately limited in his ability to

respond appropriately to changes in the work setting, noting that Plaintiff “will need advance

notice of major changes and a gradual implementation.” (R. at 80.) Dr. Schwartzman concluded

that Plaintiff “is capable of simple, repetitive tasks in settings where duties are relatively static,

changes can be explained in advance, and he has superficial, intermittent interactions with others

and no strict demand on production.” (Id.)

Dr. Congbalay reviewed the opinions of Drs. Brown and Smith, affording them each

“great weight” and noting that Dr. Smith’s opinions were “consistent with the objective evidence

in [the] file.” (R. at 75-76.) Dr. Congbalay ultimately concluded that Plaintiff was not disabled,

with the following explanation:

You said you were disabled due to depression, anxiety disorder, bipolar, and a hand

fracture. Although you may have some pain and discomfort, you are able to move

about and perform normal activities. Although you may have some emotional

problems, you are able to think, communicate, act in your own interest and pursue

normal activities. We do not have sufficient vocational information to determine

whether you can perform any of your past relevant work. However, based on the

evidence in [the] file, we have determined that you can adjust to other work. We

are unable to establish disability under SSA guidelines.

(R. at 82.)

State agency consultant Leon D. Hughes, M.D., reviewed Plaintiff’s file at the

reconsideration level on March 26, 2017, and agreed with Dr. Congbalay’s above assessments.

(R. at 83-97.) State Agency consultant Jennifer Swain, Psy.D., reviewed Plaintiff’s file at the

reconsideration level on March 22, 2017, and agreed with Dr. Schwartzman’s above

assessments. (R. at 93-95.) With regard to the opinion evidence, Dr. Hughes found that Dr.

Smith’s December 12, 2016 opinion was “consistent and supported by the overall medical and

non medical evidence in [the] file,” and added that Plaintiff “has some limitations in his ability to

understand [and] remember, sustain concentration [and] persistent, interact socially and

withstand stress [and] pressure.” (R. at 90.) Dr. Hughes also found that Dr. Brown’s opinion

was “not supported by the medical and non medical evidence,” adding that Plaintiff’s

impairments “are severe and limit him to medium-exertional work activities.” (Id.) Dr. Hughes

then also concluded that Plaintiff was “Not Disabled,” and provided following explanation:

You said you were disabled due to a hand fracture, anxiety, bipolar and depressive

disorders. Despite your impairments, you are able to use your arms, hands, legs and

back to perform some limited types of work activity. Although you may have some

emotional problems, you are able to care for your own personal needs as well as

understand and follow simple directions. We did not have sufficient vocational

information to determine whether you can perform any of your past relevant work.

However, based on the evidence in [the] file, we have determined that you can

adjust to other work. While we recognize your conditions are serious, they are not

so severe that you can be considered disabled.

(R. at 97.)

IV. ADMINISTRATIVE DECISION

On April 24, 2019, the ALJ issued her decision. (R. at 13-31.) At step one of the

sequential evaluation process,2 the ALJ found that Plaintiff has not engaged in any disqualifying

2 Social Security Regulations require ALJs to resolve a disability claim through a five-step

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th

Cir. 2007), if fully considered, the sequential review considers and answers five questions:

1. Is the claimant engaged in substantial gainful activity?

2. Does the claimant suffer from one or more severe impairments?

3. Do the claimant’s severe impairments, alone or in combination, meet or equal the

criteria of an impairment set forth in the Commissioner’s Listing of Impairments,

20 C.F.R. Subpart P, Appendix 1?

4. Considering the claimant's residual functional capacity, can the claimant

perform his or her past relevant work?

substantial gainful activity since the alleged onset date of August 16, 2016. (R. at 18.) At step

two, the ALJ found that Plaintiff has the following severe impairments: depression; personality

disorder; alcohol use disorder; and history of right hand fracture with post-traumatic

osteoarthritis. (R. at 18-19.) The ALJ found that Plaintiff did not have an impairment or

combination of impairments that meets or medically equals the severity of one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 19.) Then, at step four of the

sequential process, the ALJ set forth Plaintiff’s residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, I find that the claimant has the

residual functional capacity to perform medium work as defined in 20 CFR

416.967(c) except the claimant can frequently climb ramps and stairs, crawl, and

finger with the right upper extremity and can never climb ladders, ropes, or

scaffolds. Mentally, the claimant can perform simple, routine tasks at an average

pace without strict time or production demands; can interact occasionally with co-

workers and supervisors on matters limited to the straightforward exchange of

information without negotiation, persuasion, conflict resolution, teamwork, or

tandem work, but work duties should not require interaction with the general public;

and can adapt to occasional changes that are explained.

(R. at 20-21.) The ALJ concluded that Plaintiff’s “medically determinable impairments could

reasonably be expected to cause at least some of the alleged symptoms; however, [Plaintiff’s]

statements concerning the intensity, persistence and limiting effects of these symptoms are not

entirely consistent with the medical evidence and other evidence in the record for the reasons

explained in this decision.” (R. at 22.)

The ALJ addressed each of Plaintiff’s alleged impairments. First, the ALJ discussed

Plaintiff’s major depression, personality disorder, and alcohol use disorder. (Id.) Specifically,

5. Considering the claimant’s age, education, past work experience, and residual

functional capacity, can the claimant perform other work available in the national

economy?

See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster

v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

the ALJ discussed Plaintiff’s psychiatric symptoms and history of alcohol use, as well as his

mental status examinations of record, case management services and counseling, and other

mental health treatment. (Id.) The ALJ also discussed Plaintiff’s right hand fracture with post-

traumatic osteoarthritis, including the associated diagnostic tests and subsequent treatment. (R.

at 22-23.) The ALJ then discussed the opinion evidence of record, beginning with the State

agency consultants. (R. at 23-24.) As to the State agency psychological consultants, the ALJ

“adopted limitations consistent with the State agency determination” and afforded their

assessments “partial weight” for the following reasons:

The State agency psychological consultants’ mental assessments are given partial

weight. Overall, I adopted limitations consistent with the State agency

determination. However, the record does not support his subjective reports of

uncontrolled outbursts. In fact, he is noted to travel with his case manager to

numerous appointments for purposes of seeking various social benefits. While he

is noted to be irritable at times, he is not noted to have any outbursts and is able to

calm himself and complete necessary processes. He is cooperative at mental health

appointments. He has no legal history during the period at issue in this case.

Although some of these activities are remote, he is noted to be able to panhandle

and go to the library and food banks. He often appears to be away from home when

his case manager comes, she stated that he missed two appointments in 2018

because he was “busy with some stuff,” and he did apply for a COTA bus pass, all

of which at least suggest greater engagement in the community than he describes.

Additionally, he is noted more than once to want new housing as he found the rules

in his current housing too restrictive, and one would not expect that to be a problem

if he were isolating at home all the time. He admitted that he could get to his

appointment without his case manager at least once. Based on the hearing level

medical evidence of record, I do not find support for needing any special flexibility

in work schedule, taking breaks, and pacing or that he would have any angry

outbursts. Additionally, I do not adopt that supervisors must provide constructive

criticism. The latter is not a characteristic of an occupation at all and thus

inappropriate to include in a hypothetical to a vocational expert; rather it is a

characteristic of an individual supervisor’s personality. Moreover, if the State

agency intended to suggest that the claimant required a form of special placement,

such a finding is inconsistent with their determination of “not disabled.” Again,

while the record supports some irritability when frustrated, it does not support

outbursts or inability to calm himself to complete tasks. On the State agency’s

initial review, they did not include as many limitations. I give more weight to the

initial determination, as I adopted limitations that accommodate the same areas.

However, I did not use the undefined term “superficial,” but instead described

specific higher stress interactions that would be precluded. Therefore, the State

agency mental assessments are given partial weight.

(Id. (citations omitted).) The ALJ also considered the opinion of independent medical

consultative examiner Dr. Brown, affording her opinion “partial weight.” (R. at 24.) Finally, the

ALJ considered the opinion of independent psychological consultative examiner Dr. Smith, and

afforded her opinion “little weight” for the following reasons:

The opinion of Margaret G. Smith, Ph.D., an independent psychological

consultative examiner, is given little weight. I accept Dr. Smith’s diagnoses, but

note that he claimed that his alcohol abuse was in remission at that time, although

the record has many reference to his drinking to at least some extent after this date.

Additionally, he did not report cannabis use although that is also noted in file.

Therefore, Dr. Smith was not given the opportunity to fully evaluate his substance

use issues. I note that despite the social issues that he alleged, while he was initially

subdued during her assessment, rapport was established. He also had only been on

medication for four days at this time after being off medication for at least a month.

He showed no signs of distractibility and his immediate memory was retained. The

examiner noted conflicts at the last evaluation in connection with his 2016 filing

between his reports and evidence. Here, he reported sobriety since 2014, which is

patently false, as he attended detox in 2016. She did not observe him to be paranoid

or attending to internal stimuli and noted specifically that he did not present as

psychotic during the interview. Overall, I give her conclusions little weight to the

extent that they suggest marked limitations in concentration, persistence, and pace,

social functioning, or managing work stressors. For the reasons explained above,

the record as a whole has few to no objective signs and symptoms to support the

degree of limitation that he alleged, including having outbursts, paranoia, and

hallucinations, as well as any degree of significant social anxiety. While the record

supports irritability and moderate limitations in these areas, it does not support

finding him more limited and the objective observations at this consultative

examination do not otherwise support greater limitations. Therefore, Dr. Smith’s

opinion is given little weight.

(R. at 24-25 (citations omitted).) Then, relying on the VE’s testimony VE, the ALJ found that

considering Plaintiff’s age, education, work experience, and RFC, he could perform jobs that

existed in significant numbers in the national economy, including: machine feeder; packing and

filling machine tender; and hand packer. (R. at 26.) The ALJ therefore concluded that Plaintiff

was not disabled under the Social Security Act since filing the application on August 16, 2016.

(Id.)

V. STANDARD OF REVIEW

When reviewing a case under the Social Security Act, the Court “must affirm the

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009)

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. §

405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if supported by

substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 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, 486

F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

Although the substantial evidence standard is deferential, it is not trivial. The Court must

“‘take into account whatever in the record fairly detracts from [the] weight’” of the

Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting

Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d

270, 273 (6th Cir. 1997)).

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision

of the Commissioner will not be upheld where the [Social Security Administration] fails to

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

the claimant of a substantial right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of

Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

VI. ANALYSIS

Plaintiff puts forth two assignments of error: that the ALJ failed to properly weigh the

opinions of psychological consultative examiners, including the opinion of Dr. Smith, and that

the ALJ failed to properly weigh the opinion of the State agency psychological consultants (the

“State Consultants”) who opined that Plaintiff was limited to occasional handling. (R. at 601-

608.) Plaintiff argues that, by affording the State Consultants’ mental assessments “partial

weight” and Dr. Smith’s opinion “little weight,” the ALJ “rejected limitations . . . without

providing appropriate reasons.” (ECF No. 15 at PAGEID # 602.) With regard to the State

Consultants’ opinion, Plaintiff argues that the ALJ improperly concluded that the record does not

support Plaintiff’s reports of uncontrolled anger outbursts. (Id. at PAGEID ## 602-603.)

Plaintiff also disagrees the ALJ’s conclusion that constructive criticism “is a characteristic of an

individual supervisor’s personality,” and argues that the necessity of constructive criticism is an

accommodation and is not related to the characteristics of an individual supervisor. (Id. at

PAGEID # 603.)

In response, the Commissioner argues that the ALJ properly evaluated Plaintiff’s RFC

and that substantial evidence supports the ALJ’s finding that Plaintiff did not have limitations in

handling. (ECF No. 18 at PAGEID ## 620-632.) As to Plaintiff’s RFC, the Commissioner

argues that the ALJ properly considered the objective medical evidence, opinions, and subjective

allegations of Plaintiff, and specifically argues that the ALJ appropriately evaluated the opinions

of Dr. Smith and the State Consultants. (Id. at PAGEID ## 620-629.) As to Dr. Smith’s opinion,

the Commissioner argues that the ALJ “identified inconsistencies between Dr. Smith’s own

examination findings and her opinion,” and that the ALJ “reasonably concluded that because Dr.

Smith was presented with an inaccurate picture of Plaintiff’s history and impairments, her

opinion was not reliable.” (Id. at PAGEID ## 620-625.) As to the State Consultants, the

Commissioner argues that the ALJ “properly discounted the portions of the opinions that were

inconsistent with the record as a whole” and “observed that the lack of evidence documenting

angry outbursts and Plaintiff’s demonstrated ability to travel independently, application for a

public bus pass, and other evidence of socialization beyond that which he alleged showed he was

not as limited as [the State Consultants] indicated.” (Id. at PAGEID ## 625-629.) As to

Plaintiff’s limitations in handling, the Commissioner argues that “the medical evidence does not

demonstrate Plaintiff had a hand impairment lasting at least twelve months,” and concludes that

“the objective medical evidence provided substantial evidence that the ALJ relied on in finding

Plaintiff was not limited in his ability to handle.” (Id. at PAGEID ## 629-632.)

In reply, Plaintiff argues that “Defendant attempts to contradict Plaintiff’s argument

concerning the ALJ’s improper weighing of Dr. Smith’s opinion through utilization of post hoc

claims and inaccurate generalizations.” (ECF No. 19 at PAGEID # 634.) Plaintiff takes issue

with Defendant’s argument that the ALJ properly identified inconsistencies in Dr. Smith’s

opinion, stating that the ALJ “lacks the medical training necessary for such opinions to have

precedence over that of Dr. Smith’s findings,” and Plaintiff argues that Defendant repeatedly

mischaracterizes the record. (Id. at PAGEID ## 634-635.) Plaintiff also generally argues that “it

is Defendant’s misunderstanding of the nature of mental illness, shared by the ALJ, which

highlights the error throughout this decision.” (Id. at PAGEID # 636.) As to the ALJ’s opinion

that Plaintiff was limited to occasional handling, Plaintiff argues that the Defendant’s argument

that Plaintiff’s hand impairment did not last at least twelve months “is flawed as it undermines

the ALJ’s finding that Plaintiff suffers from a severe hand impairment in the first place.” (Id. at

PAGEID ## 638-639.) Plaintiff further argues that “[i]f the ALJ was dissatisfied with the

record’s amount of hand injury treatment, then she had the responsibility to pursue more

evidence.” (Id. at PAGEID # 639.) To this end, Plaintiff argues that “had the ALJ properly

bolstered the record with additional medical evidence and included a handling limitation, the

occupations proffered by the VE and incorporated in the ALJ’s decision would have been

eliminated” and “the ALJ’s ultimate determination concerning Plaintiff’s status as disabled

would have been altered with the preclusion of these occupations.” (Id. at PAGEID # 640.)

Accordingly, the matter is ripe for judicial review. The Court will analyze each of Plaintiff’s

arguments separately.

A. The ALJ Properly Weighed the Opinion Evidence of Record, Including the

Opinions of the State Consultants and Dr. Smith.

As a preliminary matter, the ALJ must consider all medical opinions that he or she

receives in evaluating a claimant’s case. 20 C.F.R. § 416.927(c) (“Regardless of its source, we

will evaluate every medical opinion we receive.”). The applicable regulations define medical

opinions as “statements from acceptable medical sources that reflect judgments about the nature

and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you

can still do despite impairment(s), and your physical or mental restrictions.” 20 C.F.R. §

416.927(a)(1); see also SSR 96–8p, 1996 WL 374184, *7 (July 2, 1996) (“The RFC assessment

must always consider and address medical source opinions.”). Like other medical source

opinions, the ALJ must consider state agency medical opinions. See 20 C.F.R. § 416.913a(b)(1)

(“Administrative law judges are not required to adopt any prior administrative medical findings,

but they must consider this evidence according to §§ 416.920b, 416.920c, and 416.927, as

appropriate, because our Federal or State agency medical or psychological consultants are highly

qualified and experts in Social Security disability evaluation.”); SSR 96-6p, 1996 WL 374180,

*2 (July 2, 1996) (administrative law judges are required to consider state agency medical

“findings of fact about the nature and severity of an individual’s impairment(s) as opinions of

nonexamining physicians and psychologists. Administrative law judges and Appeals Council are

not bound by findings made by State agency . . . but they may not ignore these opinions and must

explain the weight given to the opinions in their decisions.”).

Regardless of the source of a medical opinion, in weighing the opinion, the ALJ must

apply the factors set forth in 20 C.F.R. § 416.927(c), including the examining and treatment

relationship, supportability of the opinion, consistency of the opinion with the record as a whole,

and the specialization of the source. “In appropriate circumstances, opinions from State agency

medical and psychological consultants and other program physicians and psychologists may be

entitled to greater weight than the opinions of treating or examining sources.” SSR 96-6p, 1996

WL 374180, *3; see also Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016) (state-

agency medical consultants are “highly qualified physicians and psychologists who are experts in

the evaluation of the medical issues in disability claims under the [Social Security] Act”; thus, in

some cases, “an ALJ may assign greater weight to a state agency consultant’s opinion than to

that of a treating or examining source.”) (first alteration in original) (internal quotation marks

omitted); Hoskins v. Comm'r of Soc. Sec., 106 F. App’x 412, 415 (6th Cir. 2004) (“State agency

medical consultants are considered experts and their opinions may be entitled to greater weight if

their opinions are supported by the evidence.”).

To be clear, however, “there is no regulatory requirement that an ALJ adopt every facet

of a particular medical opinion in formulating an RFC, so long as the record as a whole supports

the RFC actually determined by the ALJ, and she adequately explains her analysis in a manner

sufficient to allow review.” Kincaid v. Comm'r of Soc. Sec., No. 1:16-CV-736, 2017 WL

9515966, at *3 (S.D. Ohio June 12, 2017), report and recommendation adopted, No.

1:16CV736, 2017 WL 4334194 (S.D. Ohio Sept. 30, 2017). A disagreement with how the ALJ

decided to weigh differing medical opinions “is clearly not a basis for . . . setting aside the ALJ’s

factual findings.” Id. (citing Mullins v. Sec'y of Health & Hum. Servs., 836 F.2d 980, 984 (6th

Cir. 1987)).

Here, Plaintiff generally argues that by affording the State Consultants’ opinions “partial

weight,” and by affording Dr. Smith’s opinion “little weight,” the ALJ “effectively disregarded

these expert physicians’ opinions that Plaintiff’s severe mental impairments result in limitations

in areas related to social interactions and workplace performance.” (ECF No. 15 at PAGEID #

602.) Plaintiff further argues that the ALJ “rejected limitations within these opinions without

providing appropriate reasons,” which constitutes error.” (Id.) As to the State Consultants’

opinions, Plaintiff argues that the ALJ improperly found that “the record does not support his

subject reports of uncontrolled outbursts” and improperly refused to adopt that “supervisors must

provide constructive criticism.” (Id. at PAGEID ## 602-603.) As to Dr. Smith’s opinion,

Plaintiff argues that the ALJ erred by only affording “little weight” to the opinion “because of its

ability to strengthen the State agency psychologists’ opinions.” (Id. at PAGEID # 604.) Plaintiff

further argues that the ALJ’s “conclusion stating the record lacks objective signs and symptoms

to support greater limitations is simply false,” and that the ALJ’s errors were harmful because

she then improperly posed incomplete hypothetical questions to the VE.

Plaintiff’s arguments are not well taken. For the reasons discussed below, the Court finds

both that the ALJ sufficiently explained why she weighed the State Consultants’ opinions and

Dr. Smith’s opinion the way she did, and that the ALJ’s findings were supported by substantial

evidence.

1. The State Consultants’ Opinions.

The Court first turns to the ALJ’s analysis of the State Consultants’ opinions, which reads

as follows: