Opinion

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

:

Devin J.,1 :

: Case No. 2:24-cv-03082

Plaintiff, :

: Judge Graham

v. :

:

Commissioner of Social : Magistrate Judge Litkovitz

Security, :

:

Defendant. :

OPINION & ORDER

Plaintiff Devin J. (“Plaintiff”) initiated this action for judicial review of the final

decision of the Commissioner of Social Security (“Commissioner”) denying Plaintiff’s

applications for disability insurance benefits (“DIB”) and supplemental security

income (“SSI”). See Statement of Errors, doc. 9. The Magistrate Judge issued a Report

and Recommendation (“R&R”) which found Plaintiff’s Statement of Errors

unpersuasive and recommended that the Commissioner’s final decision be affirmed.

Doc. 13. Plaintiff’s objections to the R&R are now before the Court and ripe for ruling.

Doc. 14. For the reasons that follow, the Court OVERRULES Plaintiff’s objections,

ADOPTS the R&R, in full, and therefore AFFIRMS the Commissioner’s final

decision and DISMISSES this case.

1 Pursuant to General Order 22-01, due to significant privacy concerns in social security

cases, any opinion, order, judgment, or other disposition in social security cases in the

Southern District of Ohio shall refer to plaintiffs only by their first names and last initials.

LEGAL FRAMEWORK & STANDARD OF REVIEW

Social Security

The Magistrate Judge accurately set forth the general standards which guide

the benefit determination decisions of the Commissioner:

To qualify for disability benefits, a claimant must suffer from

a medically determinable physical or mental impairment that can be

expected to result in death or that has lasted or can be expected to

last for a continuous period of not less than 12 months. 42 U.S.C.

§§ 423(d)(1)(A) (DIB), 1382c(a)(3)(A) (SSI). The impairment must

render the claimant unable to engage in the work previously

performed or in any other substantial gainful employment that

exists in the national economy. 42 U.S.C. §§ 423(d)(2),

1382c(a)(3)(B).

Regulations promulgated by the Commissioner establish a

five-step sequential evaluation process for disability

determinations:

1) If the claimant is doing substantial gainful activity, the

claimant is not disabled.

2) If the claimant does not have a severe medically

determinable physical or mental impairment – i.e., an impairment

that significantly limits his or her physical or mental ability to do

basic work activities – the claimant is not disabled.

3) If the claimant has a severe impairment(s) that meets or

equals one of the listings in Appendix 1 to Subpart P of the

regulations and meets the duration requirement, the claimant is

disabled.

4) If the claimant’s impairment does not prevent him or her

from doing his or her past relevant work, the claimant is not

disabled.

5) If the claimant can make an adjustment to other work, the

claimant is not disabled. If the claimant cannot make an adjustment

to other work, the claimant is disabled.

Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir.

2009) (citing 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)).

The claimant has the burden of proof at the first four steps of the

sequential evaluation process. Id.; Wilson v. Comm’r of Soc. Sec.,

378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a

prima facie case by showing an inability to perform the relevant

previous employment, the burden shifts to the Commissioner to

show that the claimant can perform other substantial gainful

employment and that such employment exists in the national

economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289,

291 (6th Cir. 1999).

Doc. 13, # 3405-06.2

Judicial Review

Neither party objected to the Magistrate Judge’s recitation of the standards

which guide judicial review of the Commissioner’s determination:

Judicial review of the Commissioner’s determination is

limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry:

(1) whether the findings of the ALJ are supported by substantial

evidence, and (2) whether the ALJ applied the correct legal

2 Page numbers following the “#” symbol refer to the ECF PAGEID numbering system. Page

numbers following “Tr.” refer to the pagination of the administrative record.

standards. See Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405

(6th Cir. 2009); see also Bowen v. Comm’r of Soc. Sec., 478 F.3d

742, 745-46 (6th Cir. 2007).

The Commissioner’s findings must stand if they are

supported by “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” Biestek v. Berryhill,

587 U.S. 97, 103 (2019) (quoting Consolidated Edison Co. v.

N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists

of “more than a scintilla of evidence but less than a preponderance.

. . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir.

2007). In deciding whether the Commissioner’s findings are

supported by substantial evidence, the Court considers the record

as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).

The Court must also determine whether the ALJ applied the

correct legal standards in the disability determination. Even if

substantial evidence supports the ALJ’s conclusion that the plaintiff

is not disabled, “a decision of the Commissioner will not be upheld

where the SSA 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, 478

F.3d at 746). See also Wilson, 378 F.3d at 545–46 (reversal required

even though ALJ’s decision was otherwise supported by substantial

evidence where ALJ failed to give good reasons for not giving weight

to treating physician’s opinion, thereby violating the agency’s own

regulations).

Doc. 13, # 3408-09

Objections to a Report and Recommendation

If a party raises timely objections to the report and recommendation of a

magistrate judge, the court “shall make a de novo determination of those portions of

the report or specified proposed findings or recommendations to which objection is

made.” 28 U.S.C. § 636(b)(1); see also Fed. R. Civ. P. 72(b). Upon review, the court

“may accept, reject, or modify, in whole or in part, the findings or recommendations

made by the magistrate judge.” 28 U.S.C. § 636(b)(1). Hardy v. Comm'r of Soc. Sec.,

554 F. Supp. 3d 900, 904 (E.D. Mich. 2021) “The filing of objections provides the

district court with the opportunity… to focus attention on those issues-factual and

legal-that are at the heart of the parties’ dispute.” Hardy v. Comm'r of Soc. Sec., 554

F. Supp. 3d 900, 904 (E.D. Mich. 2021) (quoting United States v. Walters, 638 F.2d

947 (6th Cir. 1981) and Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d

435 (1985)). Therefore, “only those specific objections to the magistrate's report made

to the district court will be preserved for appellate review.” Smith v. Detroit Fed'n of

Tchrs. Loc. 231, Am. Fed'n of Tchrs., AFL-CIO, 829 F.2d 1370, 1373 (6th Cir. 1987).

SUMMARY OF ADMINISTRATIVE RECORD

Neither party raises any issues with the Magistrate Judge’s recitation of the

ALJ’s findings of fact and conclusions of law in the R&R:

The ALJ applied the sequential evaluation process and made

the following findings of fact and conclusions of law:

1. [Plaintiff] meets the insured status requirements of the

Social Security Act through December 31, 2020.

2. [Plaintiff] has not engaged in substantial gainful activity

since April 5, 2015, the alleged onset date (20 CFR 404.1571 et seq.,

and 416.971 et seq.).

3. Since the alleged onset date of disability, April 5, 2015,

[plaintiff] has had the following severe impairments: cervical

degenerative disc disease; lumbar strain; generalized osteoarthritis

(osteoarthritis/enthesopathy right knee, mild right foot osteoarthritis,

osteoarthritis bilateral first metatarsophalangeal joint); obesity;

depressive disorder, anxiety disorder, and trauma or stressor

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

4. Since April 5, 2015, [plaintiff] has not had 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 [ALJ]

finds that since April 5, 2015, [plaintiff] has the residual functional

capacity to perform light work as defined in 20 CFR 404.1567(b) and

416.967(b) except standing is limited to 75% of the day or 6 hours

of an 8 hour day; foot control operation with the left is limited to the

frequent level; never climb ladders, ropes, scaffolds; occasional for

crawling; frequent for climbing ramps or stairs, stooping, kneeling

and crouching; no exposure to unprotected heights; goal based

production where work is measured by end result, no fast paced

work, no strict production quotas; work in a low stress job defined

as only occasional changes in the work setting; occasional

interaction with the public, coworkers, and supervisors.

6. Since April 5, 2015, [plaintiff] has been unable to perform

any past relevant work (20 CFR 404.1565 and 416.965).

7. Prior to the established disability onset date, [plaintiff] was

a younger individual age 18-49 and an individual closely

approaching advanced age. Applying the age categories non-

mechanically, and considering the additional adversities in this case,

on December 31, 2020, [plaintiff]’s age category changed to an

individual of advanced age (20 CFR 404.1563 and 416.963).

8. [Plaintiff] has at least a high school education (20 CFR

404.1564 and 416.964).

9. Prior to December 31, 2020, 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

[plaintiff] is “not disabled” whether or not [plaintiff] has transferable

job skills. Beginning on December 31, 2020, [plaintiff] has not been

able to transfer job skills to other occupations (See SSR 82-41 and

20 CFR Part 404, Subpart P, Appendix 2).

10. Prior to December 31, 2020, the date [plaintiff]’s age

category changed, considering [plaintiff]’s age, education, work

experience, and residual functional capacity, there were jobs that

existed in significant numbers in the national economy that [plaintiff]

could have performed (20 CFR 404.1569, 404.1569a, 416.969, and

416.969a).

11. Beginning on December 31, 2020, the date [plaintiff]’s

age category changed, considering [plaintiff]’s age, education, work

experience, and residual functional capacity, there are no jobs that

exist in significant numbers in the national economy that [plaintiff]

could perform (20 CFR 404.1560(c), 404.1566, 416.960(c), and

416.966).

12. [Plaintiff] was not disabled prior to December 31, 2020,

but became disabled on that date and has continued to be disabled

through the date of this decision (20 CFR 404.1520(g) and

416.920(g)).

Doc. 13, # 3407-08 (footnotes omitted).

DISCUSSION

Plaintiff argues that the Administrative Law Judge (“ALJ”) erred in his

analysis of the treating source opinion evidence provided by Dr. Angela Gannon.

Doc. 9. Specifically, Plaintiff argues that the ALJ violated 20 C.F.R. § 404.1527(c) by

assigning Dr. Gannon’s opinion “little weight” without articulating good reasons for

that conclusion. Id. at # 3378-80. The Magistrate Judge found no error. In his

objections, Plaintiff largely reiterates the arguments raised in the Statement of

Specific Errors for the purposes of de novo review. Upon such review, the Court

likewise finds no error.

Treating Source Opinions

The central issue in this matter is the consideration of a treating source opinion

in a benefits determination. Neither party objected to the Magistrate Judge’s

statement of the legal standard guiding consideration of treating source medical

opinions:

For claims filed prior to March 27, 2017, a treating source’s

medical opinion must be given controlling weight if it is “well

supported by medically acceptable clinical and laboratory diagnostic

techniques” and “is not inconsistent with the other substantial

evidence” in the record. 20 C.F.R. § 404.1527(c)(2); see also

Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013)

and Hargett v. Comm’r of Soc. Sec., 964 F.3d 546, 552 (6th Cir.

2020). If the ALJ declines to assign a treating source opinion

controlling weight, the ALJ must balance the following factors in

determining what weight to give the opinion: the length of the

treatment relationship and the frequency of examination; the nature

and extent of the treatment relationship; the supportability of the

opinion; the consistency of the opinion with the record as a whole;

and the specialization of the treating source. Wilson, 378 F.3d at 544;

Hargett, 964 F.3d at 552 (citing 20 C.F.R. § 404.1527(c)(2)-(6)).

“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, 964

F.3d at 552 (quoting 20 C.F.R. § 404.1527(c)(2)). The ALJ’s reasons

must be supported by the evidence in the case record and must be

sufficiently specific to make clear to any subsequent reviewers the

weight the adjudicator gave to the treating source’s medical opinion

and the reasons for that weight. Gayheart, 710 F.3d at 376 (quoting

SSR 96-2p, 1996 WL 374188, at *5). This “good reasons rule” helps

claimants understand the disposition of their case, especially “where

a claimant knows that his physician has deemed him disabled” and

“permits meaningful review of the ALJ’s application of the [treating-

source] rule.” Wilson, 378 F.3d at 544. Therefore, “an ALJ may not

summarily discount a treating-source opinion as not well-supported

by objective findings or being inconsistent with the record without

identifying and explaining how the substantial evidence is

purportedly inconsistent with the treating-source opinion.” Hargett,

964 F.3d at 552 (citing Gayheart, 710 F.3d at 376-77 and quoting

Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 552 (6th Cir. 2010)

(“[I]t is not enough to dismiss a treating physician’s opinion as

‘incompatible’ with other evidence of record; there must be some

effort to identify the specific discrepancies and to explain why it is

the treating physician’s conclusion that gets the short end of the

stick.”)).

Doc. 13, # 3410-11 (footnotes omitted).

Analysis

In her medical source opinion, Dr. Gannon indicated that Plaintiff had

“Marked” impairments in his ability to (1) relate to the general public and maintain

socially appropriate behavior, (2) respond appropriately to changes in his work

setting, and (3) tolerate customary work pressures. Tr. 1858-60. She indicated

“Moderate” impairments to other social and behavioral areas, as well as his attention

and concentration. Id. In all other areas, Dr. Gannon opined that Plaintiff had “Mild”

or no impairment. Id. She further opined that, “due to the diagnosed conditions and/or

side effects of medication,” Plaintiff was “likely to have partial or full day unscheduled

absences from work occurring 5 or more days per month,” thus making him incapable

of engaging in work activity on a regular and continuing basis. Id.

In assigning “little weight” to Dr. Gannon’s opinion, the ALJ articulated five

(5) reasons for such a conclusion: (1) Dr. Gannon’s opinion was based plaintiff’s

subjective self-reports; (2) “ample” evidence in the record “strongly suggest[s]” that

Plaintiff “overreported or exaggerated symptoms and limitations in connection with

mental health conditions”; (3) the evaluations conducted by Dr. Gannon consistently

found Plaintiff’s mental status to be “normal” and thus “contrary to [the] degree of

impairment” opined by Dr. Gannon; (4) Dr. Gannon does not cite to any “specific

objective evidence” in support of these limitations; and (5) Dr. Gannon’s opinion is

internally inconsistent. Tr. 1880. The Magistrate Judge found that these reasons

were supported by substantial evidence, and the Court agrees.

Plaintiff disputes this conclusion. He argues that both the ALJ and the

Magistrate Judge “place to[o] great an emphasis on the theory that Dr. Gannon’s

opinion was based primarily on [Plaintiff’s] subjective complaints,” because “by its

very nature, mental health treatment is going to be subjective.” Doc. 14, # 3423-24.

But Plaintiff also asserts that “[j]ust because Dr. Gannon treated [Plaintiff] does not

mean that her opinions are based on his statements rather than her expertise as a

mental health professional.” Id. at # 3424. As such, Plaintiff appears to concede that

Dr. Gannon’s opinion was necessarily based on Plaintiff’s self-reports, but instead of

addressing the evidence of his overreporting and exaggeration of symptoms, Plaintiff

simultaneously suggests that her opinion was actually based on “her expertise as a

mental health professional.” Id. This is either an irreconcilable contradiction or a

distinction without a difference. Presumably, Dr. Gannon’s “expertise” would be

exercised, at least in part, in her interpretation and evaluation of Plaintiff’s subjective

self-reports.3 But the ALJ thoroughly explained why he found Plaintiff’s subjective

self-reports to be unreliable. See Tr. 1880.

3 Plaintiff describes the basis of Dr. Gannon’s opinion as “her treatment and her treating

relationship” with Plaintiff, noting her explanation that Plaintiff “had previously lost jobs

due to problems with his mood” and that his “stress levels constricted his ability to function

appropriately.” Doc. 14, # 3424. These findings clearly derive from Plaintiff’s self-reports, not

the least because mental status examinations conducted by Dr. Gannon consistently yielded

normal results.

Plaintiff offers minimal argument regarding the evidence which “strongly

suggest[s]” that he “overreported or exaggerated symptoms.” Id. He refers to this

evidence as “a single note suggesting that [he] exaggerated his symptoms.”4 Doc. 12,

# 3401. And he argues that it should be “rejected in the face of specific functional

opined limitations from a claimant’s long time treating source medical provider.” Id.

But, as Plaintiff himself concedes, the “specific functional opined limitations” from

Dr. Gannon are necessarily based on his self-reports. Id. Regardless of whether

Plaintiff in fact overreported or exaggerated symptoms, the ALJ sufficiently

supported his reasoning in discounting a treating source opinion “based largely on

the claimant’s self-reported symptoms and limitations.” Tr. 1880; see also Blakley,

581 F.3d at 406 (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (“The

substantial-evidence standard ... presupposes that there is a zone of choice within

which the decisionmakers can go either way, without interference by the courts.”).

The ALJ’s 3rd, 4th, and 5th reasons for assigning little weight to Dr. Gannon’s

opinion are related. The ALJ pointed to the mental status examinations conducted

by Dr. Gannon which did not yield results supporting her opinion. As the Magistrate

Judge summarized, Dr. Gannon’s examinations “consistently found [P]laintiff calm,

cooperative, alert, oriented, logical, organized, in no acute distress, with no speech or

thought abnormalities, and experiencing no suicidal or homicidal thoughts or plans.”

Doc. 13, # 3416 (citing Tr. 839, 1232-33, 1282, 1331, 1706). And while Plaintiff

contends that his mental health treatment with Dr. Gannon was inherently

4 The ALJ refers to “two invalid profiles and one source specifically noting the questionable

validity of [Plaintiff’s] self-report.” Tr. 1880.

subjective, the ALJ did not err by discounting the opinion based on a lack of “specific

objective evidence.” Tr. 1880. Notably, Dr. Gannon cited no treatment records at all

in support of her medical source opinion. Furthermore, the applicable regulations

(i.e., prior to amendments made effective March 26, 2017) state that “objective

medical evidence” includes “psychological abnormalities… shown by medically

acceptable clinical diagnostic techniques,” such as “abnormalities of behavior, mood,

thought, memory, orientation, development, or perception.” 20 C.F.R. § 404.1529; 20

C.F.R. § 404.1528. But, as noted, Dr. Gannon’s mental status examinations

consistently showed no such abnormalities, including the examination conducted on

the same day that she completed the medical source opinion. Tr. 1706-07.

Therefore, the objective medical evidence does not support Dr. Gannon’s

opinion as to Plaintiff’s areas of limitation. But even if it did, the limitations opined

by Dr. Gannon do not support her opinion that Plaintiff is incapable of engaging in

work activity on a regular and continuing basis. As discussed by the ALJ, Dr.

Gannon’s opinion indicated “marked limits only in dealing with the public and

tolerance to change and customary work pressure.” Tr. 1880. However, the ALJ

reasonably concluded that these areas of limitation are “adequately accommodated

by the mental residual functional capacity, which specifically limits interactions with

the public, changes in the work setting, and provides for low stress work.” Id.

In sum, the Court finds the ALJ’s conclusions as to the weight afforded Dr.

Gannon’s opinion are well-supported by substantial evidence in the record.

CONCLUSION

For the reasons set forth above, the Court finds no error in the ALJ’s benefits

determination. Therefore, Plaintiff’s objections are OVERRULED, the Magistrate

Judge’s R&R is ADOPTED, Plaintiff’s Statement of Specific Errors is

OVERRULED, the Commissioner’s finding that Plaintiff did not become disabled

until December 31, 2020 is AFFIRMED, and this case is DISMISSED.

IT IS SO ORDERED.

s/ James L. Graham

JAMES L. GRAHAM

United States District Judge

DATE: July 6, 2026