Collier v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MICHAEL RAY COLLIER )

)

v. ) No. 3:20-0142

)

KILOLO KIJAKAZI1 )

Commissioner of Social Security )

To: The Honorable Aleta A. Trauger, District Judge

REPORT AND RECOMMENDATION

Plaintiff filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) to obtain

judicial review of the final decision of the Social Security Administration (“Defendant” or

“Commissioner”) denying Plaintiff’s claim for Disability Insurance Benefits (“DIB”) and

Supplemental Security Income (“SSI”) as provided under Titles II and XVI, respectively, of the

Social Security Act. The case is currently pending on Plaintiff’s motion for judgment on the

administrative record (Docket No. 29), to which Defendant has filed a response. (Docket

No. 30.) Plaintiff has also filed a reply to Defendant’s response. (Docket No. 31.) This matter has

been referred to the undersigned pursuant to 28 U.S.C. § 636(b) for initial consideration and a

Report and Recommendation. (Docket No. 6.)

Upon review of the administrative record as a whole and consideration of the parties’

filings, the undersigned Magistrate Judge respectfully recommends that Plaintiff’s motion

(Docket No. 29) be DENIED.

1 Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.

Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Kilolo Kijakazi is substituted for

former Commissioner Andrew Saul as the defendant in this lawsuit.

I. INTRODUCTION

Plaintiff filed applications for DIB and SSI on November 26, 2012. (See Transcript of the

Administrative Record (Docket No. 26) at 99-100).2 He alleged that he was unable to work, as of

the alleged disability onset date of May 30, 2012, because of depression, diabetes, fibromyalgia,

neuropathy, problems with his shoulders and back, carpal tunnel syndrome, and high blood

pressure. (AR 151.) The applications were denied initially and upon reconsideration. (AR 99-

100, 143-44.) Pursuant to his request for a hearing before an administrative law judge (“ALJ”),

Plaintiff appeared and testified at a hearing before ALJ Scott Shimer on February 5, 2015.

(AR 10-12.) The ALJ denied the claim on April 16, 2015. (AR 9-11.) The Appeals Council

denied Plaintiff’s request for review of the ALJ’s decision on June 3, 2016 (AR 1-3), thereby

making the ALJ’s decision the final decision of the Commissioner. Plaintiff then filed suit in this

Court on August 5, 2016. (AR 1063-64.)

On May 14, 2018, the presiding District Judge reversed the Commissioner’s decision and

remanded the case to the Commissioner for further consideration. See Collier v. Comm’r of Soc.

Sec., No. 3:16-cv-2077, 2018 WL 2193965 (M.D. Tenn. May 14, 2018). However, on

September 30, 2016, while the case was still pending, Plaintiff filed additional applications for

DIB and SSI that, following another administrative hearing on March 2, 2018, were denied by an

ALJ on June 28, 2018. (AR 1035, 1074.) On January 30, 2019, the Appeals Council granted

Plaintiff’s request for review of the second ALJ’s decision, consolidated the case with the case

remanded by the District Judge, and remanded both cases to an ALJ for further consideration.

(AR 1072-75.)

2 The Transcript of the Administrative Record is hereinafter referenced by the

abbreviation “AR” followed by the corresponding Bates-stamped number(s) in large black print

in the bottom right corner of each page.

On October 10, 2019, Plaintiff appeared for an additional administrative hearing before

ALJ Robert Martin. (AR 998.) On December 18, 2019, ALJ Martin denied the consolidated

claims. (AR 970-72.) Plaintiff states that he “bypassed written exceptions … once the Appeals

Council did not review the claim on its own” (Docket No. 29-1 at 5), which renders ALJ

Martin’s decision the final decision of the Commissioner. (AR 971.) Plaintiff then filed the

instant suit in this Court, which has jurisdiction pursuant to 42 U.S.C. § 405(g).

II. THE ALJ FINDINGS

The ALJ’s unfavorable decision, issued on December 18, 2019, included the following

enumerated findings:

1. The claimant meets the insured status requirements of the Social Security

Act through December 31, 2017.

2. The claimant has not engaged in substantial gainful activity since May 30,

2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et

seq.).

3. The claimant has the following severe impairments: obesity; diabetes

mellitus; osteoarthritis; history of right shoulder surgery; mild bilateral

carpal tunnel syndrome status post bilateral carpal tunnel releases;

degenerative disc disease; Raynaud’s syndrome; history of pseudoseizure;

cognitive disorder; major depressive disorder; anxiety; and attention

deficit hyperactivity disorder (20 CFR 404.1520(c) and 416.920(c)).

4. The claimant does not have an impairment or combination of impairments

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

impairments in 20 CFR part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. 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) and 416.967(b) that is limited to lifting,

carrying, pushing, and pulling ten pounds frequently and twenty pounds

occasionally; sitting for six hours in an eight-hour workday;

standing/walking six hours in an eight-hour workday; occasionally

climbing of ramps and stairs but never ladders, ropes, or scaffolds;

occasional stooping, crouching, kneeling, crawling, and balancing; no

overhead reaching with the dominant right upper hand extremity; avoiding

concentrated exposure to extreme cold, work around hazardous

machinery, moving parts, vibrations, and work at unprotected heights; and

no operating heavy machinery or driving an automobile for work

purposes. Mentally, the claimant is limited to simple, routine, repetitive

tasks and simple work-related decisions, and he can maintain

concentration, persistence, and pace for such tasks with normal breaks

spread throughout the day. He can interact occasionally with supervisors

and coworkers but should have no interaction with the general public. His

interactions should be brief, job-related, and task-focused, which is

defined as limited to speaking to, serving, or receiving information from

supervisors and coworkers. He will work better with things than people.

He can adapt to occasional changes in the workplace. Work instructions

should either be delivered orally or by short demonstration.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565 and 416.965).

7. The claimant was born on September 27, 1977 and was 34 years old,

which is defined as a younger individual age 18-49, on the alleged

disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a framework

supports a finding that the claimant is “not disabled,” whether or not the

claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404,

Subpart P, Appendix 2).

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

functional capacity, there are jobs that exist in significant numbers in the

national economy that the claimant can perform (20 CFR 404.1569,

404.1569a, 416.969, and 416.969a).

11. The claimant has not been under a disability, as defined in the Social

Security Act, from March 30, 2012, through the date of this decision (20

CFR 404.1520(g) and 416.920(g)).

(AR 976-90.)

III. REVIEW OF THE RECORD

The parties and the ALJ have thoroughly summarized and discussed the medical and

testimonial evidence of the administrative record. Accordingly, the Court will discuss those

matters only to the extent necessary to analyze the parties’ arguments.

IV. DISCUSSION AND CONCLUSIONS OF LAW

A. Standard of Review

The determination of disability under the Act is an administrative decision. The only

questions before this Court upon judicial review are: (i) whether the decision of the

Commissioner is supported by substantial evidence, and (ii) whether the Commissioner made

legal errors in the process of reaching the decision. 42 U.S.C. § 405(g). Substantial evidence is

defined as “such relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Hargett v. Comm’r of Soc. Sec., 964 F.3d 546, 551 (6th Cir. 2020) (internal

citations omitted). If substantial evidence supports the ALJ’s decision, that decision will be

affirmed “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)). In other words, the ALJ’s decision must be

affirmed if his or her “findings and inferences are reasonably drawn from the record or supported

by substantial evidence even if that evidence could support a contrary decision.” Wright-Hines v.

Comm’r of Soc. Sec., 597 F.3d 392, 395 (6th Cir. 2010).

The Commissioner utilizes a five-step sequential evaluation process to determine whether

a claimant is disabled. 20 C.F.R. §§ 404.1520(a), 416.920(a). If the issue of disability can be

resolved at any point during the evaluation, the ALJ does not proceed to the next step and the

claim is not reviewed further. Id. First, if the claimant is engaged in substantial gainful activity,

he is not disabled. Id. Second, the claimant is not disabled if he does not have a severe medically

determinable impairment that meets the 12-month durational requirements. Id. Third, the

claimant is presumed disabled if he suffers from a listed impairment, or its equivalent, for the

proper duration. Id. Fourth, the claimant is not disabled if, based on his residual functional

capacity (“RFC”), he can perform past relevant work. Id. Fifth, if the claimant can adjust to other

work based on his RFC, age, education, and work experience, he is not disabled. Id. The

claimant bears the burden of proof through the first four steps, while the burden shifts to the

Commissioner at step five. Johnson v. Comm’r of Soc. Sec., 652 F.3d 646, 651 (6th Cir. 2011)

(citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).

The Court’s review of the Commissioner’s decision is limited to the record made during

the administrative hearing process. Jones v. Berryhill, 392 F. Supp. 3d 831, 843 (M.D. Tenn.

2019) (citing Jones v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991)). A

reviewing court is not permitted to try the case de novo, resolve conflicts in evidence, or decide

questions of credibility. Emard v. Comm’r of Soc. Sec., 953 F.3d 844, 849 (6th Cir. 2020) (citing

Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984)).

B. The ALJ’s Five -Step Evaluation of Plaintiff

In the instant case, the ALJ resolved Plaintiff’s claim at step five of the five-step process.

The ALJ found that Plaintiff met the first two steps but found at step three that Plaintiff was not

presumptively disabled because he did not have an impairment or combination of impairments

that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404,

Subpart P, Appendix 1. At step four, the ALJ found that Plaintiff was unable to perform any past

relevant work. At step five, the ALJ determined that Plaintiff’s RFC allowed him to perform a

range of light work with express limitations to account for his severe impairments, and that

considering his age, education, work experience, and RFC, there were jobs that existed in

significant numbers in the national economy that Plaintiff could perform. (AR 976-90.)

C. Plaintiff’s Assertion of Error

Plaintiff presents one assertion of error: that the RFC determination is not supported by

substantial evidence because the ALJ failed to properly weigh the opinions of the treating and

examining providers. (Docket No. 29-1 at 18.) Plaintiff therefore requests that the

Commissioner’s decision be reversed and remanded pursuant to sentence four of 42 U.S.C.

§ 405(g) for additional consideration. (Id. at 26.)

Sentence four of 42 U.S.C. § 405(g) states the following:

The court shall have power to enter, upon the pleadings and transcript of the

record, a judgment affirming, modifying, or reversing the decision of the

Commissioner of Social Security, with or without remanding the cause for a

rehearing.

If the case contains an adequate record, “the [Commissioner’s] decision denying benefits can be

reversed and benefits awarded if the decision is clearly erroneous, proof of disability is

overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Hudson-

Kane v. Berryhill, 247 F. Supp. 3d 908, 914 (M.D. Tenn. 2017) (quoting Mowery v. Heckler, 771

F.2d 966, 973 (6th Cir. 1985)). However, benefits may be awarded immediately “only if all

essential factual issues have been resolved and the record adequately establishes a plaintiff’s

entitlement to benefits.” Holtman v. Saul, 441 F. Supp. 3d 586, 609 (M.D. Tenn. 2020) (quoting

Faucher v. Sec’y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994)).

The RFC Determination.

Plaintiff asserts that the ALJ’s improper evaluation of the opinions provided by multiple

sources led to a mental RFC assignment that is not supported by substantial evidence.

Specifically, Plaintiff alleges that the ALJ erred by discounting the opinions of James Hebda,

Ph.D.—whom Plaintiff describes as his “treating physician” (Docket No. 29-1 at 22)—and

consultative examiner Paul Brown, Ph.D., and faults the ALJ for according greater weight to the

opinions provided by non-examining state agency consultants.

Applications for DIB filed prior to March 27, 2017—such as the ones at issue here—are

subject to the regulatory analysis set forth in 20 C.F.R. § 404.1527.3 Pursuant to this regulation,

the ALJ is required to weigh any medical opinion concerning a claimant’s functioning by

considering a variety of factors that include the nature and length of the relationship between the

provider and the claimant, the supportability and consistency of the opinion in question, and the

specialization of the opining provider. Id. § 404.1527(c). The regulation also includes the so-

called “treating physician rule,” which directs the ALJ to give controlling weight to a treating

source’s opinion if that 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.” Id. § 404.1527(c)(2). If the ALJ declines to give controlling weight to a

treating source’s opinion, he must provide “good reasons” for this decision that are “sufficiently

specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating

source’s medical opinion.” Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1000 (6th Cir. 2011)

(citing SSR 96-2p, 1996 WL 374188, at *5 (1996)).

The Court turns to a review of the opinion evidence beginning with Dr. Hebda. Over the

course of seven visits between January and May of 2013, Dr. Hebda performed a series of

evaluations of Plaintiff identified as follows: mental status exam, Wechsler Adult Intelligence

Scale-4, Halstead-Reitan Test Battery, Wechsler Memory Scales-3, Wide Range Achievement

3 The corresponding regulation for SSI applications is contained in 20 C.F.R. § 416.927.

For ease of reference, the Court will refer only to the relevant DIB regulatory language.

Test-4, Beck Inventories, and Activities of Daily Living Questionnaire. (AR 748.) In June 2013,

Dr. Hebda produced a medical source statement (“MSS”) in which he opined that Plaintiff

suffered from “marked” limitations—defined as a “serious limitation” indicating “substantial

loss in the ability to effectively function”—in seven categories of mental functioning:

understanding and remembering complex instructions; carrying out complex instructions;

making judgments on complex work-related decisions; interacting appropriately with the public;

interacting appropriately with supervisors; interacting appropriately with coworkers; and

responding appropriately to usual work situations and changes in a routine work setting.

(AR 753-54.) When prompted to identify the “factors” supporting these conclusions, Dr. Hebda

wrote the following: “Moderate depression, [] severe reading and written language skills (3rd-4th

grade level), and deficits in processing speed impair his ability to make adjustments in [a] work

setting.” (AR 754.) When asked to describe any other “capabilities” affected by Plaintiff’s

mental impairments, Dr. Hebda responded that “moderately impaired executive functions reduce

his ability to analyze, plan, organize and complete tasks in a timely manner.” (AR 754.)

Dr. Hebda referenced the “Halstead-Reitan Test Battery” to support this assessment, although he

did not cite any findings from such testing. (AR 754.)

The ALJ accorded “little weight” to Dr. Hebda’s MSS for multiple reasons. First, the

ALJ emphasized that although Dr. Hebda was considered a treating source under 20 C.F.R.

§ 404.1527(a)(2), he had seen Plaintiff for only five months in 2013. (AR 988.) The ALJ

additionally highlighted “unremarkable” findings in records documenting Plaintiff’s treatment at

the Mental Health Cooperative following Plaintiff’s treatment with Dr. Hebda, including

improvement in his mood, anxiety, and depression. (AR 988.) The ALJ also noted Plaintiff’s

testimony during the administrative hearing that he was fired from his most recent job due to

absenteeism caused by physical pain rather than any problems interacting with coworkers.

(AR 988.) Finally, the ALJ determined that the MSS was “questionable” and “inconsistent”

given that Dr. Hebda assigned several “marked” restrictions with respect to Plaintiff’s vocational

functioning but found only “moderate” impairment in Plaintiff’s ability to perform activities of

daily living, function socially, concentrate, and adapt generally. (AR 985.)

Plaintiff first objects to the ALJ’s decision to discount Dr. Hebda’s opinion based on the

limited period of time that he evaluated Plaintiff—five months in 2013—given that the ALJ

accorded great weight to opinions from state agency consultants who never examined Plaintiff.

Defendant counters by emphasizing a Mental Health Cooperative provider’s note from October

2014 in which Plaintiff admitted that he employed Dr. Hebda’s services “to assist with obtaining

disability.” (AR 1215.) Plaintiff concedes in his brief that he saw Dr. Hebda on a limited basis

“for a neuropsychological evaluation” (Docket No. 29-1 at 8), which is confirmed both by the

accompanying report completed by Dr. Hebda (AR 748) (“Michael Collier … was self-referred

for neuropsychological evaluation.”) and Plaintiff’s own testimony:

ALJ: [D]id you ever see [Dr. Hebda] other than that one time?

Plaintiff: All he [did] was an evaluation on me.

ALJ: Okay.

Plaintiff: And being as he was so far from home, he recommended [that I]

go to the Mental Health Co-op in Dickson, because they took my

insurance.

ALJ: Okay. So he only saw you for that evaluation.

Plaintiff: Right.

(AR 1007.) It would not be unreasonable to interpret such evidence, taken together, as an attempt

by Plaintiff to procure a favorable opinion in support of his applications, which generally

prevents the subject provider from enjoying treating source status. See 20 C.F.R.

§ 404.1527(a)(2) (“We will not consider an acceptable medical source to be your treating source

if your relationship with the source is not based on your medical need for treatment or

evaluation, but solely on your need to obtain a report in support of your claim for disability.”).

Nonetheless, the ALJ found that Dr. Hebda qualifies as a treating source under the regulation,

which means that the ALJ was required to set forth good reasons for giving the MSS little

weight. For the reasons that follow, the Court concludes that the ALJ did so.

While Plaintiff’s initial objection certainly seems logical—a five-month examination

period would in all likelihood provide a more accurate assessment of a claimant’s impairments

than no examination at all—the ALJ’s reasoning is not necessarily amiss. The regulation indeed

directs the ALJ to evaluate the depth of the relationship between the claimant and the treating

source. See 20 C.F.R. § 404.1527(c)(2)(i)-(ii) (noting that the Commissioner will consider the

length of the treating period and “look at the treatment the source has provided” in assessing the

“nature and extent of the treatment relationship”). However, the ALJ’s simple declaration that

“Dr. Hebda only met with the claimant between January and May of 2013” (AR 988), does not,

by itself, represent a good reason for discounting the MSS. See Weeks v. Comm’r of Soc. Sec.,

No. 1:16-cv-121, 2016 WL 6067957, at *4 (W.D. Mich. Oct. 17, 2016) (“An ALJ ‘must

articulate, at some minimum level, his analysis of the evidence to allow the appellate court to

trace the path of his reasoning.’”) (quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir. 1995)).

The ALJ acknowledged that Dr. Hebda’s role was confined to “evaluation” as opposed to

providing significant treatment, see 20 C.F.R. 404.1527(a)(2) (“Treating source means your own

acceptable medical source who provides you … with medical treatment or evaluation and who

has, or has had, an ongoing treatment relationship with you.”) (emphasis added), and

Dr. Hebda’s report indicates that he utilized seven different “procedures” in measuring Plaintiff’s

mental deficits. (AR 748.) Such a range of mental testing would seem to outweigh the need for

an arbitrarily longer period of evaluation.

Nevertheless, the Court finds the additional reasons articulated by the ALJ for according

little weight to Dr. Hebda’s opinion are supported by substantial evidence. Plaintiff minimizes

the significance of his mental health treatment following Dr. Hebda’s evaluation, but the records

documenting such treatment do in fact contain relatively minor mental findings that weigh

against the severe restrictions proposed in the MSS. During a visit at the Mental Health

Cooperative on November 2, 2017, Plaintiff was described as “friendly … with a broad affect”

and reported improvement in his mental health symptoms. (AR 1326.) The same description was

used one month later during an office visit where Plaintiff reported that his mental symptoms

were stable and he was “getting out of the house.” (AR 1325.) In January 2018, Plaintiff

presented with a stable mood, “minimal” anxiety, and grossly intact attention and concentration,

while reporting that his medications were working well. (AR 1321-22.) In June 2018, a mental

status examination revealed “linear, logical and goal directed” thought processes, a calm and

cooperative presentation, and “fair” insight and judgment. (AR 1196.)

Plaintiff’s symptoms continued to improve over time. In October 2018, providers

described his mood as “engaged” while mental health measurements demonstrated “moderate”

impairment in his overall functioning (AR 1189), which is congruent with every opinion in the

record except Dr. Hebda’s MSS. Plaintiff also reported that his medication continued to work

and that his symptoms were “well-improved.” (AR 1187.) Notably, Plaintiff reported to

providers during this visit that he was able to perform the following activities “a good bit of the

time”: resolve problems and set expectations with others, appear on time for appointments and

meetings, abide by community norms and respect the rights of others, and “get along with

neighbors, coworkers, or others.” (AR 1191.) He further reported that he was able to exhibit

appropriate behavior towards others “most of the time.” (AR 1191.)

In 2019, Plaintiff continued to report that his mental symptoms were stable and his

medication was working well. (AR 1178-80.) On February 21, 2019, his treating provider’s

description was:

Michael has been making significant progress with coping skills, communication

skills, anger, aggression, and self care since starting therapy with us. He has

stopped long term use of opioids and this has helped to improve his overall mood

and family relationships. He says that he feels better, clearer … He says that

things are going well with his wife and his older son Josh and step-son Harley live

with him. He says that he feels that the [medications] are working fairly well.

(AR 1175.) In addition to discussing this treatment in the administrative opinion, the ALJ

highlighted the repeated findings during mental examinations showing “normal thought

processes and thought content, intact memory and concentration, and fair insight and judgment.”

(AR 986, 1203, 1310, 1313, 1322-23, 1327.) Such findings stand in contrast to the severe mental

restrictions recommended by Dr. Hebda and constitute “good reasons” for discounting his

opinion. See Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 584 (6th Cir. 2010) (“Because the

record adequately supports the finding that [the treating physician’s] medical opinion … was

inconsistent with the record as a whole, the ALJ was warranted in discrediting her opinion.”).

The ALJ also appropriately cited Plaintiff’s hearing testimony that physical pain, and not

mental or social impairment, prevents him from continuing to work. (AR 988, 1108-09.)

Moreover, Plaintiff cited only a lack of financial resources in response to questions about his

lack of social activity. (AR 1109.) And notwithstanding such testimony, he acknowledged that he

attended church services every week, during which he experiences physical pain but no social or

mental problems. (AR 1010.) While the Court acknowledges the discomfort caused by such

physical symptoms, this does not undermine the ALJ’s assessment of Plaintiff’s mental

functioning, while the ALJ’s discussion of the absence of testimony describing significant

mental symptoms bolsters the decision to discount Dr. Hebda’s opinion.

The ALJ’s additional reason for according little weight to Dr. Hebda’s opinion based on

purported internal inconsistencies is somewhat less compelling. Dr. Hebda’s finding that

Plaintiff is “marked[ly]” impaired in his vocational functioning was, according to the ALJ,

inconsistent with his finding of “moderate” impairment in daily living activities, social

functioning, concentration, and general adaptation. (AR 751, 977, 985.) Plaintiff notes that the

latter observations appear to represent general statements that are independent of the specific

functional limitations delineated later in Dr. Hebda’s proposed RFC and cannot serve as a basis

for finding the opinion internally inconsistent. (Docket No. 29-1 at 20.) However, even if this

premise is accepted, the ALJ additionally highlighted Plaintiff’s consistent church attendance, an

ability to shop, and interactions with friends as countervailing evidence to Dr. Hebda’s finding of

“marked” limitations in Plaintiff’s ability to interact with coworkers and the general public.

(AR 754, 977.) The ALJ also referenced Plaintiff’s hearing testimony that he has difficulty

interacting with others in a work setting only when supervisors are especially “disrespectful,”

and that he does not struggle with following directions or adhering to general employment

decorum. (AR 988, 1016-17.) Such testimony further undermines the severity of Dr. Hebda’s

proposed limitations on social interaction and provides additional support for the ALJ’s decision

to discount the MSS.

The Court similarly finds no error in the ALJ’s assessment of Dr. Brown’s opinion

completed as part of the March 2013 consultative psychological evaluation. Following a clinical

interview and mental examination, Dr. Brown diagnosed Plaintiff with “Adjustment Disorder

with moderate depressed mood” and “Estimated low average range of intellectual functioning.”

(AR 595.) Dr. Brown concluded that Plaintiff had “mild to moderate” limitations in

“understanding and remembering,” as well as “moderate” limitations with respect to “sustaining

concentration and persistence,” “interacting with others,” and “adapting to changes and

requirements.” (AR 594-95.)

The ALJ gave “some weight” to Dr. Brown’s opinion. Like Dr. Brown, the ALJ

concluded that Plaintiff suffers from “moderate” limitations in maintaining concentration,

interacting with others, and adapting. (AR 977.) The ALJ’s additional finding of “moderate”

limitation in understanding and remembering is slightly more restrictive—and therefore more

favorable to Plaintiff—than Dr. Brown’s finding of only “mild to moderate” limitation in the

same area of functioning. (AR 977.) However, the ALJ rejected Dr. Brown’s assertion that

Plaintiff “does not appear capable of performing simple routine activities on a consistent basis

over longer periods of time.” (AR 594-95, 987-88.) The ALJ dismissed this assertion based on

Plaintiff’s testimony that physical pain—as opposed to mental restrictions—led to the

termination of his employment in 2019, and on Plaintiff’s separate report to a provider that he

actually quit his job “because of dust.” (AR 987.) The ALJ further cited the relatively mild

mental exam findings from Plaintiff’s treatment at the Mental Health Cooperative as evidence

that Plaintiff could in fact perform simple routine activities on a consistent basis. (AR 987-88.)

Plaintiff contests the ALJ’s conclusion by citing hearing testimony in which he asserted

that his son frequently “helped him” on job sites, and that he needed “extra breaks” throughout

the workday. (Docket No. 29-1 at 24.) Yet Plaintiff’s testimony in this regard again focused

almost exclusively on pain caused by physical discomfort and not mental symptoms. (AR 1021-

25.) As an example, when Plaintiff was asked about his son’s involvement at job sites, he

testified that his son “[did] all the heavy lifting and stuff,” and that Plaintiff was physically

limited to “thread[ing] the machine.” (AR 1022-23.) Such testimony does not negate the

evidence cited by the ALJ to discount this portion of Dr. Brown’s opinion regarding mental

functioning, and the ALJ was under no obligation to provide an analysis as extensive as that

applied to Dr. Hebda’s MSS. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.

2007) (noting that the “reasons-giving requirement” under 20 C.F.R. § 404.1527(c)(2) applies

only to treating sources).

Plaintiff’s final contention that the ALJ erred by relying on “remarkably stale” opinions

from two state agency psychological consultants (Docket No. 29-1 at 25) (emphasis in original)

is likewise unavailing. In March 2013, Dr. Brad Williams provided the first of these two

opinions, in which he opined that Plaintiff is not limited with respect to understanding or

memory, moderately limited in maintaining attention and concentration for extended periods,

moderately limited in his ability to complete a normal workday, moderately limited in his ability

to get along with coworkers, moderately limited in his ability to respond appropriately to

workplace changes, and moderately limited in his ability to set realistic goals (AR 77-78.)

Dr. Andrew Phay provided the second opinion in August 2013, opining that Plaintiff is

moderately limited in several areas of functioning that include: understanding and remembering

detailed instructions, carrying out detailed instructions, maintaining attention and concentration

for extended periods, performing activities within a schedule, completing a normal workday,

interacting appropriately with the general public, accepting instructions and responding

appropriately, getting along with coworkers, responding appropriately to workplace changes, and

setting realistic goals. (AR 116-18.) The ALJ gave these opinions “great weight.” (AR 987.)

Plaintiff does not allege any specific error in the psychological consultants’ findings,

which is significant given that state agency consultants are considered to be

“highly qualified physicians and psychologists who are experts in the evaluation of the medical

issues in disability claims[.]” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 834 (6th Cir. 2016)

(quoting SSR 96-6p, 1996 WL 374180, at *2 (1996)). Plaintiff instead faults the ALJ for

crediting “these ancient opinions” over those offered by Drs. Hebda and Brown (Docket No. 29-

1 at 26), apparently holding little regard for any evidence arising during the first 15 months

following his alleged onset date of May 30, 2012. Plaintiff’s characterization is especially

disingenuous given that the opinion he suggests should be controlling—Dr. Hebda’s MSS—was

issued before Dr. Phay completed his evaluation. (AR 118, 755.) Dr. Phay in fact considered

Dr. Hebda’s proposed RFC as part of his opinion. (AR 111.)

Plaintiff also misconstrues the Sixth Circuit’s decision in Blakley by arguing that the ALJ

erred in crediting theses non-examining source opinions from 2013 without “indicat[ing] that he

has at least considered” that the sources were not privy to records documenting Plaintiff’s

subsequent treatment. (Docket No. 29-1 at 25.) Plaintiff omits a key portion of the holding,

however, which found reversible error where an ALJ failed to take into consideration substantial

evidence of ongoing treatment with a treating source following the issuance of a non-examining

opinion granted significant weight. See Blakley, 581 F.3d at 409 (“[B]ecause much of the over

300 pages of medical evidence reflects ongoing treatment and notes by Blakley’s treating

sources, we require some indication that the ALJ at least considered these facts before giving

greater weight to an opinion that is not based on a review of a complete case record.”) (internal

quotations and citation omitted). As discussed above, there is no evidence that Plaintiff

underwent any treatment with Dr. Hebda, let alone a quantity of treatment following Dr. Phay’s

August 2013 opinion that would have warranted additional discussion by the ALJ. The Blakley

decision has no bearing on the instant matter.

It is well established that a reviewing court is not permitted to reweigh evidence or

substitute its own judgment for that of the Commissioner even if there is evidence to support a

claimant’s position. See Dalton v. Sec’y of Health & Human Servs., 908 F.2d 973 (6th Cir. 1990)

(“The fact that the record may also contain substantial evidence in support of a different

conclusion than that of the [Commissioner] is irrelevant.”) As discussed, the Court finds that the

ALJ provided adequate explanations for the weight accorded to the various opinions in the

medical record, which fortifies his RFC formulation with substantial evidence. Plaintiff’s

assertion of error is therefore rejected.

V. RECOMMENDATION

For the above stated reasons, it is respectfully RECOMMENDED that Plaintiff’s motion

for judgment on the administrative record (Docket No. 29) be DENIED and the Commissioner’s

decision be affirmed.

ANY OBJECTIONS to this Report and Recommendation must be filed with the Clerk of

Court within fourteen (14) days of service of this Report and Recommendation and must state

with particularity the specific portions of this Report and Recommendation to which objection is

made. See Fed. R. Civ. P. 72(b)(2); Local Rule 72.02(a). Failure to file specific written

objections within the specified time can be deemed to be a waiver of the right to appeal the

District Court’s order. See Thomas v. Arn, 474 U.S. 140 (1985); Cowherd v. Milton, 380 F.3d

909, 912 (6th Cir. 2004) (en banc). Any responses to objections to this Report and

Recommendation must be filed within 14 days of the filing of the objections. See Fed. R. Civ. P.

72(b)(2); Local Rule 72.02(b).

Respectfully submitted,

fee D. oD

United States Magistrate Judge

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