UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JOHN VRABEL, JR.

Plaintiff,

v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

_____________________________________/

Case No. 14-12673

Sean F. Cox

United States District Judge

Michael Hluchaniuk

United States Magistrate Judge

REPORT AND RECOMMENDATION

CROSS-MOTIONS FOR SUMMARY JUDGMENT (Dkt. 14, 15)

I. PROCEDURAL HISTORY

A. Proceedings in this Court

On July 8, 2014, plaintiff filed the instant suit seeking judicial review of the

Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to

28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Sean F. Cox

referred this matter to the undersigned for the purpose of reviewing the

Commissioner’s decision denying plaintiff’s claim for benefits. (Dkt. 4). This

matter is before the Court on cross-motions for summary judgment. (Dkt. 14, 15).

B. Administrative Proceedings

Plaintiff filed the instant claims for a period of disability, disability

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insurance, and benefits on May 26, 2011, alleging disability beginning March 30,

2006. (Dkt. 11-2, Pg ID 47). Plaintiff later filed an application for supplemental

security income benefits alleging the same onset date. Id. Plaintiff’s claims were

initially disapproved by the Commissioner on October 13, 2011. Id. Plaintiff

requested a hearing and on November 19, 2012 plaintiff appeared, along with his

attorney, before Administrative Law Judge (“ALJ”) Gregory Holiday, who

considered the case de novo. (Dkt. 11-2, Pg ID 47-59). In a decision dated

February 12, 2013, the ALJ found that plaintiff was not disabled. Id. Plaintiff

requested a review of this decision on March 21, 2013. (Dkt. 11-2, Pg ID 38). 

The ALJ’s decision became the final decision of the Commissioner when the

Appeals Council, on May 7, 2014, denied plaintiff’s request for review. (Dkt. 11-

2, Pg ID 32-36); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir.

2004).

For the reasons set forth below, the undersigned RECOMMENDS that

defendant’s motion for summary judgment be DENIED, that plaintiff’s motion for

summary judgment be GRANTED, and that this matter be REMANDED for

further proceedings under Sentence Four.

II. FACTUAL BACKGROUND

A. ALJ Findings

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Plaintiff was born in 1967 and was 45 years old at the time of the

administrative hearing, and 39 years old the alleged onset date of disability. 

(Dkt.3 11-2, Pg ID 49). The ALJ applied the five-step disability analysis to

plaintiff’s claim and found at step one that plaintiff had not engaged in substantial

gainful activity since the alleged onset date. Id. At step two, the ALJ found that

plaintiff’s hearing disorder, lumbago, right wrist disorder, left shoulder disorder,

insulin-dependent diabetes mellitus, mood disorder, depression, and cognitive

disorder were “severe” within the meaning of the second sequential step. (Dkt. 11-

2, Pg ID 50). Plaintiff’s hypertension, cervical spine disorder, headaches, vision

disorder and post-traumatic stress disorder (PTSD) were considered nonsevere

impairments. Id. At step three, the ALJ found no evidence that plaintiff’s

combination of impairments met or equaled one of the listings in the regulations. 

(Dkt. 11-2, Pg ID 50-52). The ALJ determined that plaintiff had the following

residual functional capacity (“RFC”):

After careful consideration of the entire record, I find

that the claimant has the residual functional capacity to

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

and 416.967(b) except the claimant can only

occasionally climb ladders, ropes or scaffolds; can only

frequently climb ramps and stairs; can only occasionally

stoop, kneel or crawl; can only frequently balance or

crouch; can only occasionally perform overhead reaching

and handling with the left upper extremity; can only

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perform occasional fine manipulation with the right

upper extremity; must avoid noise levels above

moderate; must avoid concentrated exposure to hazards

like dangerous machinery and unprotected heights; is

limited to jobs that do not require fine hearing capability

or call for complex written or verbal communication; is

limited to simple, routine tasks; must be employed in

low-stress job defined as requiring no more than

occasional decision-making with no more than

occasional changes in work setting; and should have no

more than occasional interaction with the general public

and with co-workers.

(Dkt. 11-2, Pg ID 52-53). At step four, the ALJ concluded that plaintiff could not

perform his past relevant work as a postal carrier. (Dkt. 11-2, Pg ID 57). At step

five, the ALJ denied plaintiff benefits because plaintiff could perform a significant

number of jobs available in the national economy. (Dkt. 11-2, Pg ID 57-58).

B. Plaintiff’s Claims of Error

According to plaintiff, the ALJ’s decision, specifically the RFC and

credibility determination, does not comply with Social Security Rules and

Regulations. (Dkt. 14, Pg ID 697). Plaintiff accuses the ALJ of “cherry-picking”

the evidence to plaintiff’s detriment and basing his decision of non-disability on

plaintiff’s “non-compliance” contrary to the dictates of SSA rules and regulations.

Id. 

Plaintiff argues that the RFC does not accurately portray plaintiff’s physical

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and mental impairments, namely his depression and cognitive disorder. Citing

Green v. Comm’r of Soc. Sec, 2009 WL 2365557 at *10 (E.D. Mich. July 28,

2009) and Edwards v. Barnhart, 383 F.Supp.2d 920, 930 (E.D. Mich 2005),

plaintiff asserts that the RFC’s limitation of plaintiff to simple, routine tasks in a

low-stress job with no more than occasional changes in work setting and no more

than occasional interaction with the general public and co-workers was

insufficient to address his severe deficiencies in concentration, persistence and

pace, as well as his deficits in memory and anxiety and panic attacks. (Dkt. 14, Pg

ID 698-699.)

Plaintiff also argues that the ALJ’s credibility determination was flawed.

Plaintiff contends the ALJ erred in finding plaintiff was not wholly credible in part

because he became enraged and created a disturbance requiring police

involvement over a 40¢ dispute at a gas station. (Dkt. 14, Pg ID 699). Plaintiff

urges that this April 2012 incident supports plaintiff’s position that he is unable to

withstand the everyday stress found in any job setting and does nothing to impugn

his credibility. Id.

Plaintiff also argues that the ALJ erred in disregarding the opinion of

consulting psychiatrist, Leonard Lachover, M.D., who examined plaintiff on

behalf of the Commissioner. (Dkt. 14, Pg ID 699). Dr. Lachover opined that

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“because of the severity of his symptomatology, the [plaintiff] is subject to

relapses and I suspect the pressure of employment could be a major factor that

would result in decompensation on his part.” Id (citing Dkt. 11-7, Pg ID 300).

Plaintiff argues that Dr. Lachover’s opinion is due more deference than the limited

weight assigned to it by the ALJ, particularly given the April 2012 gas station

incident. Id. Plaintiff notes the ALJ’s inconsistency in relying heavily on Dr.

Lachover’s opinion for his “Paragraph B” [Listed Impairment] analysis, yet giving

it only limited weight in developing plaintiff’s RFC. Id.

Finally, plaintiff asserts the ALJ made a reversible error by failing to

consider, discuss or evaluate plaintiff’s subjective complaints pursuant to 20

C.F.R. §416.929(c). (Dkt. 14, Pg ID 700). Plaintiff suggests the ALJ ignored or

misconstrued evidence regarding plaintiff’s daily activities, medication sideeffects and pain symptoms in determining that plaintiff’s complaints were

inconsistent with the medical evidence of record. Id. According to plaintiff, the

ALJ did not comply with Social Security Ruling 96-8p, which requires the ALJ to

discuss and not ignore these issues when assessing RFC. (Dkt. 14, Pg ID 701).

C. The Commissioner’s Motion for Summary Judgment

In addressing plaintiff’s arguments that the ALJ improperly assessed his

credibility, the Commissioner emphasizes that the ALJ is not required to accept

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plaintiff’s subjective complaints and may properly consider the plaintiff’s

credibility in making a disability determination. (Dkt. 15, Pg ID 710). The

Commissioner asserts that the ALJ’s finding that plaintiff was less than fully

credible was appropriate in light of his mild objective medical findings, his lack of

compliance with medication, and gaps in treatment. Id. Additionally, the

Commissioner counters plaintiff’s argument that the ALJ erred by failing to recite

and discuss the credibility factors listed in SSR 96-7p by noting that failure to

discuss each of these factors does not mean they were not considered. (Dkt. 15, Pg

ID 711(citing Thacker v. Comm’r of Soc. Sec., 99 Fed.App’x 661, 664 (6 Cir.

th

2004)). The Commissioner notes that the ALJ states in his decision that he

considered the evidence based upon the requirements of SSRs 96-4 and 96-7p. Id.

The Commissioner notes that plaintiff does not cite to the record in connection

with his argument that the ALJ ignored plaintiff’s complaints of severe fatigue,

pain and medication side-effects in assessing his credibility and asserts that, as a

result, plaintiff’s argument should be deemed waived. Id. The Commissioner also

suggests that the plaintiff concedes that the ALJ rightfully considered his noncompliance in assessing his credibility. (Dkt. 15, Pg ID 712).

The Commissioner counters plaintiff’s assertion that the ALJ impermissibly

“cherry-picked” the evidence to find plaintiff not disabled by noting that an

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allegation of “‘cherry-picking’ the record...is seldom successful because crediting

it would require the court to re-weigh record evidence.” DeLong v. Comm’r of

Soc. Sec. Admin., 748 F.3d 723, 726 (6 Cir. 2014). (Dkt. 15, Pg ID 711). th

Additionally, the Commissioner argues that plaintiff does not cite any medical

evidence that the ALJ purportedly overlooked. Id.

Regarding plaintiff’s argument that the ALJ’s RFC did not adequately

address plaintiff’s depression and cognitive disorder, the Commissioner maintains

that the RFC’s limitation of simple, routine tasks in a low-stress job with only

occasional changes in work setting and interaction with the public and co-workers

sufficiently accommodates plaintiff’s impairments. (Dkt. 15, Pg ID 713).

According to the Commissioner, more specific restrictions relating to plaintiff’s

moderate limitations in concentration, persistence and pace were not necessary.

See Roberts v. Comm’r of Soc. Sec. Admin., 2011 WL 4407221 at *8 (E.D.Mich.

Aug. 8, 2011). (Dkt. 15, Pg ID 713-714).

Finally, the Commissioner contends the ALJ properly evaluated the opinion

of Dr. Lachover. (Dkt. 15, Pg ID 715). The Commissioner argues that the ALJ’s

conclusion that Dr. Lachover’s opinion was inconsistent with plaintiff’s lack of

compliant, consistent mental health treatment and his own notes that plaintiff had

logical and goal-directed speech. Id.

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III. DISCUSSION

A. Standard of Review 

In enacting the social security system, Congress created a two-tiered system

in which the administrative agency handles claims, and the judiciary merely

reviews the agency determination for exceeding statutory authority or for being

arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The

administrative process itself is multifaceted in that a state agency makes an initial

determination that can be appealed first to the agency itself, then to an ALJ, and

finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is

not found during this administrative review process, the claimant may file an

action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).

This Court has original jurisdiction to review the Commissioner’s final

administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this

statute is limited in that the court “must affirm the Commissioner’s conclusions

absent a determination that the Commissioner has failed to apply the correct legal

standard or has made findings of fact unsupported by substantial evidence in the

record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding

whether substantial evidence supports the ALJ’s decision, “we do not try the case

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de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,

387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to

evaluate the credibility of witnesses, including that of the claimant.” Rogers v.

Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.

Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a

claimant’s subjective complaints and may ... consider the credibility of a claimant

when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502

F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the

claimant are to be given great weight, particularly since the ALJ is charged with

observing the claimant’s demeanor and credibility.”) (quotation marks omitted);

Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is

appropriate where an ALJ finds contradictions among medical reports, claimant’s

testimony, and other evidence.”). “However, the ALJ is not free to make

credibility determinations based solely upon an ‘intangible or intuitive notion

about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec.

Rul. 96-7p, 1996 WL 374186, *4.

 If supported by substantial evidence, the Commissioner’s findings of fact

are conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the

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Commissioner’s decision merely because it disagrees or because “there exists in

the record substantial evidence to support a different conclusion.” McClanahan v.

Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800

F.2d 535, 545 (6th Cir. 1986) (en banc). Substantial evidence is “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; Jones, 336 F.3d at 475. “The substantial evidence standard

presupposes that there is a ‘zone of choice’ within which the Commissioner may

proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,

1035 (6th Cir. 1994) (citations omitted), citing, Mullen, 800 F.2d at 545. 

The scope of this Court’s review is limited to an examination of the record

only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.

2001). When reviewing the Commissioner’s factual findings for substantial

evidence, a reviewing court must consider the evidence in the record as a whole,

including that evidence which might subtract from its weight. Wyatt v. Sec’y of

Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of

appeals and the district court may look to any evidence in the record, regardless of

whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc.

Sec., 245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that

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either the ALJ or the reviewing court must discuss every piece of evidence in the

administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed. Appx. 496, 508

(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly

addressing in his written decision every piece of evidence submitted by a party.”)

(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,

198 Fed. Appx. 521, 526 (6th Cir. 2006).

B. Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.” 

Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);

accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed. Appx. 515, 524 (6th Cir. 2003). 

There are several benefits programs under the Act, including the Disability

Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the

Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et

seq.). Title II benefits are available to qualifying wage earners who become

disabled prior to the expiration of their insured status; Title XVI benefits are

available to poverty stricken adults and children who become disabled. F. Bloch,

Federal Disability Law and Practice § 1.1 (1984). While the two programs have

different eligibility requirements, “DIB and SSI are available only for those who

have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). 

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“Disability” means:

inability to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment which can be expected to result in death or

which 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), 1382c(a)(3)(A) (DIB); see also 20 C.F.R. § 416.905(a)

(SSI).

The Commissioner’s regulations provide that disability is to be determined

through the application of a five-step sequential analysis:

Step One: If the claimant is currently engaged in

substantial gainful activity, benefits are denied without

further analysis.

Step Two: If the claimant does not have a severe

impairment or combination of impairments, that

“significantly limits ... physical or mental ability to do

basic work activities,” benefits are denied without

further analysis.

Step Three: If plaintiff is not performing substantial

gainful activity, has a severe impairment that is expected

to last for at least twelve months, and the severe

impairment meets or equals one of the impairments listed

in the regulations, the claimant is conclusively presumed

to be disabled regardless of age, education or work

experience.

Step Four: If the claimant is able to perform his or her

past relevant work, benefits are denied without further

analysis.

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Step Five: Even if the claimant is unable to perform his

or her past relevant work, if other work exists in the

national economy that plaintiff can perform, in view of

his or her age, education, and work experience, benefits

are denied.

Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing,

20 C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner

makes a dispositive finding at any point in the five-step process, the review

terminates.” Colvin, 475 F.3d at 730. 

“Through step four, the claimant bears the burden of proving the existence

and severity of limitations caused by her impairments and the fact that she is

precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited

with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step

without a finding that the claimant is not disabled, the burden transfers to the

Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006). 

At the fifth step, the Commissioner is required to show that “other jobs in

significant numbers exist in the national economy that [claimant] could perform

given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).

If the Commissioner’s decision is supported by substantial evidence, the

decision must be affirmed even if the court would have decided the matter

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differently and even where substantial evidence supports the opposite conclusion. 

McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where

substantial evidence supports the ALJ’s decision, it must be upheld.

C. Analysis and Conclusions

1. Credibility

Plaintiff argues that the ALJ erred in concluding that his testimony as to the

intensity and persistence of his symptoms associated with his impairments was not

entirely credible. As the relevant Social Security regulations make clear; however,

a claimant’s “statements about his pain or other symptoms will not alone establish

that [he is] disabled.” 20 C.F.R. §§ 404.1529(a), 416.929. Instead, the Sixth

Circuit has repeatedly held that “subjective complaints may support a finding of

disability only where objective medical evidence confirms the severity of the

alleged symptoms.” See Workman v. Comm’r of Soc. Sec., 105 Fed. Appx. 794,

801 (6th Cir. 2004); see also Moon v. Sullivan, 923 F.2d 1175, 1182-83 (6th Cir.

1990) (“[T]hough Moon alleges fully disabling and debilitating symptomology,

the ALJ, may distrust a claimant’s allegations . . . if the subjective allegations, the

ALJ’s personal observations, and the objective medical evidence contradict each

other.”).

“It [i]s for the [Commissioner] and his examiner, as the fact finders, to pass

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upon the credibility of the witnesses and weigh and evaluate their testimony.”

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) (quoting Myers

v. Richardson, 471 F.2d 1265, 1267 (6th Cir. 1972)). As the Sixth Circuit has

held, determinations of credibility related to subjective complaints of pain rest

with the ALJ because “the ALJ’s opportunity to observe the demeanor of the

claimant ‘is invaluable, and should not be discarded lightly.’” Kirk v. Sec’y of

Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981) (citation omitted). 

Thus, an ALJ’s credibility determination will not be disturbed “absent compelling

reason.” Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001). The ALJ is not

required to accept the testimony of a claimant if it conflicts with medical reports,

the claimant’s prior statements, the claimant’s daily activities, and other evidence

in the record. See Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.

1997). Rather, when a complaint of pain or other symptoms is in issue, after the

ALJ finds a medical condition that could reasonably be expected to produce the

claimant’s alleged symptoms, he must consider “the entire case record, including

the objective medical evidence, statements and other information provided by

treating or examining physicians . . . and any other relevant evidence in the case

record” to determine if the claimant’s claims regarding the level of his pain are

credible. SSR 96-7p, 1996 WL 374186, at *1 (July 2, 1996); see also 20 C.F.R.

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§ 404.1529. Consistency between the plaintiff’s subjective complaints and the

record evidence ‘tends to support the credibility of the [plaintiff], while

inconsistency, although not necessarily defeating, should have the opposite

effect.” Kalmbach v. Comm’r of Soc. Sec., 409 Fed. Appx. 852, 863 (6th Cir.

2011). 

Here, the undersigned agrees with the Commissioner that the ALJ’s

conclusions regarding plaintiff’s credibility are supported by substantial evidence.

As permitted by the regulations, the ALJ considered plaintiff’s activities of daily

living in assessing the credibility of his subjective complaints. The ALJ

considered his significant activities of preparing meals, cleaning, doing laundry,

doing some yard work, and shopping for groceries. (Dkt. 11-2, Pg ID 57). An

ALJ may reasonably view such daily activities as inconsistent with subjective

complaints of disabling limitations. 20 C.F.R. § 404.1529(c)(3)(I); see also

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) (recognizing

that in nearly all cases, an evaluation of a claimant’s daily activities is relevant to

the evaluation of subjective complaints and ultimately, to the determination of

disability); Heston, 245 F.3d at 536 (an ALJ may consider claimant’s testimony of

limitations in light of other evidence of claimant’s ability to perform tasks such as

walking, going to church, going on vacation, cooking, vacuuming and making

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beds). Thus, it was appropriate for the ALJ to consider plaintiff’s activities of

daily living as one factor in assessing his credibility. The ALJ also appropriately

considered statements from examining neuropsychologist, Dr. Schutte, suggesting

that plaintiff exaggerated his symptoms. See Lane v. Comm’r of Soc. Sec., 100

Fed. App’x 90, 96 (3d Cir. 2004). 

Plaintiff argues that the ALJ inappropriately considered plaintiff’s 2012

outburst at a gas station and his erratic mental health treatment and compliance in

assessing his credibility. Nevertheless, even if the plaintiff’s non-compliance with

his mental health treatment and the April 2012 episode at the gas station were

inappropriately considered by the ALJ in his credibility determination, because

other substantial evidence supported the ALJ’s credibility finding, any error is

harmless and does not require remand. See Ulman v. Comm’r of Soc. Sec., 693

F.3d 709, 714 (6 Cir. 2012)(harmless error analysis applies to credibility

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determinations).

2. Medical Opinion

An ALJ is required to evaluate every medical opinion of record, and set

forth a valid basis for rejecting any. 20 C.F.R. §404.1527; see Shelman v. Heckler,

821 F.2d 316, 321 (6 Cir. 1987). The Commissioner is to weigh these opinions

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based on the examining relationship (or lack thereof), specialization, consistency,

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and supportability. 20 C.F.R. § 404.1527(c); see Gayheart v. Comm’r of Soc. Sec.,

710 F.3d 365, 376 (6 Cir. 2013). Other factors “which tend to support or

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contradict the opinion” may be considered in assessing any type of medical

opinion. Id. § 404.1527(c)(6). The Commissioner may not disregard opinions of a

consulting physician which are favorable to a claimant. See Lashley v. Sec’y, 708

F. 2d 1048, 1054 (6 Cir. 1983). “In weighing medical evidence, ‘ALJs must not th

succumb to the temptation to play doctor and make their own independent medical

findings.’” Allen, 2013 WL 5676254, at *15(citing Simpson v. Comm’r of Soc.

Sec., 344 F. App’x 181, 194 (6th Cir. 2009) (citations omitted)). This is so even

though the final responsibility for the RFC determination is an issue reserved to

the Commissioner. Id.

Here, the ALJ noted that Dr. Lachover’s opinion was considered, but given

“limited weight” because it was “inconsistent with plaintiff’s lack of consistent

and compliant mental health treatment”. (Dkt. 11-2, Pg ID 56; Dkt. 11-7, Pg ID

480-482). Nevertheless, plaintiffs suffering from mental impairments should not

be penalized for failure to seek psychiatric treatment. See Kangail v. Barnhart,

454 F.3d 627, 631 (7 Cir. 2006)(bipolar disorder may prevent the sufferer from

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taking her prescribed medications or otherwise submitting to treatment); see also,

Blankenship v. Bowen, 874 F.2d 1116, 1129 (6th Cir. 1989)(“Appellant may have

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failed to seek psychiatric treatment for his mental condition, but it is a

questionable practice to chastise one with a mental impairment for the exercise of

poor judgment in seeking rehabilitation.”). Accordingly, the undersigned does not

believe that plaintiff’s erratic mental health treatment is a valid reason to discount

or discredit Dr. Lachover’s opinion.

The ALJ also discounted Dr. Lachover’s opinion because he found it to be

inconsistent with Dr. Lachover’s own notes that plaintiff had logical and goal

directed speech. (Dkt. 11-2, Pg ID 56; Dkt. 11-7, Pg ID 481). In reaching this

conclusion, however, the ALJ overlooks many of Dr. Lachover’s other notes

indicating that the plaintiff had low self-esteem, was tense and anxious during the

interview, demonstrated constricted affect within the depressed range and

decreased tone and modulation to his vocal inflections. Dr. Lachover also noted

that plaintiff’s affect was consistent with the depressed cognitive thoughts plaintiff

expressed. (Dkt. 11-7, Pg ID 481). It is generally recognized that an ALJ "may not

cherry-pick facts to support a finding of non-disability while ignoring evidence

that points to a disability finding." Smith v. Comm’r of Soc. Sec., 2013 WL

943874, at *6 (N.D. Ohio 2013), citing Goble v. Astrue, 385 Fed. Appx. 588, 593

(7th Cir. 2010) (citation omitted). Moreover, such disregard for opinions favorable

to plaintiff is not permitted and is not a valid basis to reject the consulting

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examiner’s opinion. See Lashley, 708 F. 2d at 1054. 

Finally, the ALJ discounted Dr. Lachover’s opinion because it appeared to

rely almost exclusively on plaintiff’s subjective complaints. Nevertheless, a review

of Dr. Lachover’s report indicates that he based his findings on plaintiff’s

“disclosed and observed conditions and impairments.” (Dkt. 11-7, Pg ID

482)(emphasis added).

In the area of mental impairments, clinical interviews have long been

accepted as a legitimate diagnostic technique, and subjective complaints elicited

during such interviews may be relied upon by doctors in formulating their

opinions and functional restrictions. Warford v. Astrue, 2010 WL 3190756, at *6

(E.D. Ky. Aug. 11, 2010)(citing Blankenship v. Bowen, 874 F.2d 1116, 1121 (6th

Cir. 1989)). 

A psychiatric impairment is not as readily amenable to substantiation

by objective laboratory testing as a medical

impairment...consequently, the diagnostic techniques employed in the

field of psychiatry may be somewhat less tangible than those in the

field of medicine...In general, mental disorders cannot be ascertained

and verified as are most physical illnesses, for the mind cannot be

probed by mechanical devices [sic] in order to obtain objective

clinical manifestations of medical illness...When mental illness is the

basis of a disability claim, clinical and laboratory data may consist of

the diagnosis and observations of professionals trained in the field of

psychopathology. The report of a psychiatrist should not be rejected

simply because of the relative imprecision of the psychiatric

methodology or the absence of substantial documentation, unless

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there are other reasons to question the diagnostic technique.

Id at *5-6(quoting Blankenship, 874 F.2d at 1121). 

In finding plaintiff susceptible to relapse and decompensation from the

pressure of employment due to his severe symptomatology, Dr. Lachover

appropriately relied upon acceptable psychiatric diagnostic techniques and thus his

opinions were improperly rejected by the ALJ. See id; see also, Mullins v. Colvin,

2014 WL 1382552, at *8 (S.D. Ohio, April 8, 2014)(ALJ erred by downgrading

doctor’s clinical observations of Plaintiff’s psychological signs and symptoms to

valueless “subjective impressions”). 

Additionally, Dr. Lachover’s findings were consistent with those of

Plaintiff’s treating psychiatrist, Barbara Day, M.D. In April 2012, Dr. Day noted

that plaintiff’s mood and affect was anxious, he was hyperverbal and profane, his

behavior was noted to be agitated and he exhibited impulsivity. (Dkt. 11-8, Pg ID

668.) In 2010, Veterans Administration Staff Psychiatrist Thomas McCullough,

M.D. also noted plaintiff’s anxious mood and affect and PTSD symptoms,

diagnosing anxiety disorder, with possible PTSD and Panic Disorder. (Dkt. 11-7,

Pg ID 358). The clinical findings and assessments of Drs. Day and McCullough

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are all consistent with the opinions of Dr. Lachover. 

1

For all of the above reasons, the undersigned finds that the ALJ’s decision

to reject the consulting examiner’s opinion was not supported by substantial

evidence, and the case should be remanded under sentence four of 42 U.S.C. §

405(g) to give the ALJ an opportunity to conduct the proper evaluation of all of

the medical opinion evidence. Because this matter is being remanded for further

proceedings, and in the interests of judicial economy, the undersigned will not

consider Plaintiff’s remaining assignments of error.

IV. RECOMMENDATION

For the reasons set forth above, the undersigned RECOMMENDS that

plaintiff’s motion for summary judgment be GRANTED, that defendant’s motion

for summary judgment be DENIED, that the findings of the Commissioner be

REVERSED, and that this matter be REMANDED for further proceedings.

The parties to this action may object to and seek review of this Report and

 Although Drs. Day and McCullough assigned plaintiff a GAF score in the 50s, compared to Dr. 1

Lachover’s score of 30, the Commissioner “has declined to endorse the [GAF] score for ‘use in the

Social Security and SSI disability programs,’ and has indicated that [GAF] scores have no ‘direct

correlation to the severity requirements of the mental disorders listings.’” Kennedy v. Astrue, 247 Fed.

App’x 761, 766 (6th Cir. 2007) (citations omitted). Accordingly, any decision to disregard the GAF

score is of little consequence and would not undermine a decision supported by substantial evidence. 

See Oliver v. Comm’r of Soc. Sec., 2011 WL 924688, at *4 (6th Cir. Mar. 17, 2011) (upholding ALJ’s

decision not to rely on GAF score of 48 because it was inconsistent with other substantial evidence in

the record and noting that “GAF score is not particularly helpful by itself”).

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Recommendation, but are required to file any objections within 14 days of service,

as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule

72.1(d). Failure to file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of Health and

Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some

issues but fail to raise others with specificity will not preserve all the objections a

party might have to this Report and Recommendation. Willis v. Sec’y of Health

and Human Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed’n of

Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Pursuant to Local Rule

72.1(d)(2), any objections must be served on this Magistrate Judge.

Any objections must be labeled as “Objection No. 1,” “Objection No. 2,”

etc. Any objection must recite precisely the provision of this Report and

Recommendation to which it pertains. Not later than 14 days after service of an

objection, the opposing party may file a concise response proportionate to the

objections in length and complexity. Fed.R.Civ.P. 72(b)(2), Local Rule 72.1(d). 

The response must specifically address each issue raised in the objections, in the

same order, and labeled as “Response to Objection No. 1,” “Response to Objection

No. 2,” etc. If the Court determines that any objections are without merit, it may

rule without awaiting the response.

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Date: August 17, 2015 s/Michael Hluchaniuk

Michael Hluchaniuk

United States Magistrate Judge

CERTIFICATE OF SERVICE

I certify that on August 17, 2015, I electronically filed the foregoing paper

with the Clerk of the Court using the ECF system, which will send electronic

notification to all counsel of record.

s/Tammy Hallwood

Case Manager

(810) 341-7887

tammy_hallwood@mied.uscourts.gov

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