IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Angela Young, :

Plaintiff, :

v. : Case No. 2:10-cv-960

Commissioner of Social Security, JUDGE GREGORY L. FROST

 Magistrate Judge Kemp

 Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Angela Young, filed this action seeking review of

a decision of the Commissioner of Social Security denying her

applications for a period of disability and social security

disability benefits and for supplemental security income. Those

applications (her second set of applications) were filed on July

25, 2007, and alleged that plaintiff became disabled on January

1, 2000. That onset date was later amended to July 25, 2007,

which is after plaintiff’s last insured date for disability

purposes, meaning that only the SSI claim remained for

adjudication. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on January

26, 2010. In a decision dated May 13, 2010, the ALJ denied

benefits. That became the Commissioner’s final decision on

August 26, 2010, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on December 27, 2010. Plaintiff filed her

statement of specific errors on February 9, 2011. The

Commissioner filed a response on March 11, 2011. No reply brief

has been filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

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at pages 37 through 63 of the record. The following is a summary

of the facts to which plaintiff (who was 32 years old at the time

of the hearing and has a tenth grade education) testified.

Plaintiff had used drugs at one time in her life. She was

convicted of a theft offense in 1997 subsequently sent to jail

for violating her probation. At the time of the hearing, she was

no longer using drugs and did not drink alcohol. Since the date

she filed her applications for benefits, she had not traveled

outside the Columbus area. She received financial support from

her grandfather and also got food stamps. She had worked

previously as a bakery clerk, deli clerk, and fast food worker,

all light, unskilled jobs.

Plaintiff testified that anger was her most serious

impairment. She yells and curses on a daily basis, and did so at

her last job. There is nothing in particular which triggers

these outbursts. She also is unable to concentrate and does not

pay attention at work. Additionally, she had some kind of tremor

which causes her to drop objects. 

Physically, plaintiff had pain in her shoulder for about

fifteen years. She also had back pain since 2002, starting in

the mid-back and radiating upward. That pain is aggravated by

bad weather. She was taking a number of medications and used

three inhalers on a daily basis. She could sit for half an hour,

stand for twenty minutes, and walk for twenty minutes to half an

hour. She could lift up to ten pounds. 

On a daily basis, plaintiff testified that she might or

might not dress and bathe, and might or might not make her bed or

prepare meals. She washed dishes but did not do laundry. 

However, she did dust, sweep, vacuum, and take out the trash. 

She could do her own grocery shopping. She watched television

but did very little reading. She also provided care for her

grandfather when he was not well. 

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III. The Medical Records

The medical records in this case are found beginning on page

244 of the administrative record. They can be summarized as

follows. Because the issues in this case revolve around

plaintiff’s mental impairments, the Court will focus its summary

on records relating to those conditions.

Plaintiff was seen at Netcare, Inc., on February 22, 2005. 

At that time, she reported anger arising from her belief that her

daughter had been sexually abused. She said she had experienced

symptoms of depression and anxiety for more than five years and

also suffered from impulsivity. She related a history of daily

use of cocaine and marijuana from 1992 to 2000. She had been

fired from several jobs because she did not like being told what

to do. She was diagnosed with a major depressive disorder, an

anxiety disorder, and post traumatic stress disorder, and her GAF

was rated at 48. (Tr. 246-49). At that time, it appeared that

the only doctor treating her for these problems was Dr. Kistler,

her family doctor. He expressed the opinion on September 10,

2007, that plaintiff was disabled from a combination of bipolar

disorder, degenerative joint disease of the lumbar spine, chronic

obstructive pulmonary disease, acromioclavicular joint disease in

her shoulders, and dysfunctional uterine bleeding. (Tr. 306). A

counselor from North Community Counseling expressed a similar

opinion on the same date. (Tr. 307-08).

The record contains multiple treatment notes from Dr.

Farooqui, plaintiff’s treating psychiatrist. The first of those

appears to be dated in June of 2006. At that time, plaintiff

reported difficulty sleeping as well as irritability. By October

of that year, she agreed to try lithium to control some of her

symptoms, although at that time she denied any hallucinations or

paranoia and her thought process was coherent. The following

month she reported some relief from her symptoms. She missed a

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number of appointments with Dr. Farooqui in 2006 and 2007. 

In June, 2007, Dr. Farooqui saw plaintiff again and

restarted her on lithium. He also started her on Risperdal and

Trazadone. At that time, she reported feeling that someone was

following her. Her counselor’s notes from earlier in 2007 showed

that she was preoccupied with child custody issues, and also

seemed unwilling to help herself overcome depression. At an

appointment on August 31, 2007, plaintiff reported hearing her

name called, and Dr. Farooqui started her on Thorazine. In

November, 2007, plaintiff told Dr. Farooqui that she was upset by

not getting to see her younger daughter and that her anxiety had

increased. He discontinued her prescription for Inderal because

she reported that it was not helping her.

On October 31, 2007, Dr. Donaldson saw plaintiff for

purposes of a psychological evaluation. He noted that she seemed

agitated and withdrawn and appeared to be intimidated by the

process. She denied any previous addiction to illicit

substances. Dr. Donaldson described plaintiff’s hygiene and

grooming as “inadequate.” Her affect was flat and her mood was

depressed with agitated features. She reported daily anxiety and

depression. Dr. Donaldson stated that plaintiff’s intelligence

was in the borderline range and she had limited insight and

judgment. He diagnosed a bipolar disorder and a generalized

anxiety disorder and rated her GAF at 50-60. Her ability to

carry out simple job instructions was “weak, but not impaired.” 

She had mild limitations on her ability to perform repetitive

tasks and was moderately impaired in her ability to interact with

others and her ability to withstand ordinary work stress. (Tr.

380-83).

Dr. Chambly, a psychologist, reviewed plaintiff’s records

and essentially reached the same conclusion as Dr. Donaldson,

noting that plaintiff could “understand, remember and carry out

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instructions. She can perform simple, routine tasks. She is not

well-suited for working closely with others but could interact on

a superficial basis.” (Tr. 387).

Plaintiff saw Dr. Farooqui again on February 8, 2008. At

that time, she reported hearing her name called out and stated

that Thorazine was not helping. She was also depressed and still

had trouble sleeping. Dr. Farooqui prescribed Cymbalta and

increased her prescription for Trazadone. On the same date, he

completed a form indicating that plaintiff had either poor or no

ability to perform fifteen different work-related activities, and

only a fair ability to perform others. He did not provide any

specific support for his findings. (Tr. 456-57).

Dr. Demuth also reviewed the records concerning

psychological disability and, on May 9, 2008, expressed the view

that plaintiff suffered from depression [bipolar], borderline

intellectual functioning, and anxiety. He rated the severity of

plaintiff’s work-related impairments as moderate and adopted the

mental residual functional capacity finding made by the ALJ who

adjudicated plaintiff’s prior application for benefits, noting

that there were not any significant changes in function or

diagnosis since that date. He also expressed some doubts about

plaintiff’s credibility. (Tr. 487-505).

More treatment notes from Dr. Farooqui are found at pages

535-563 of the record. In March, 2008, plaintiff reported that

the Cymbalta had made her more anxious. Her mood, however, was

described as euthymic and reactive and she denied any

hallucinations. In May, 2008 she was somewhat more symptomatic. 

The following month, her hygiene had deteriorated and she was

seeing some visions at night. In September, she reported that

her medications were of little help and she was continuing to

feel paranoid and was sleeping only sporadically. The following

month, however, she was improved. By December, she was reporting

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increased irritability and stress over child custody matters. By

January, 2009, she was calmer and in February, her mood was

better. By March, although she was still having mood swings,

they were not as pronounced, and she was sleeping better. 

Additional treatment notes from 2009 are found later in the

record and do not show any significant changes except that an

additional medication had helped her calm down a lot.

 IV. The Vocational Expert’s Testimony

A vocational expert, Dr. Walsh, also provided testimony

during the administrative proceedings (Tr. 63-67). The parties

agreed that plaintiff’s past work was all light and unskilled. 

If she had those physical limitations described by Dr. Cho, and,

in addition, could not engage in repetitive movements with her

left shoulder, could do only simple tasks, and could have only

superficial or minimal contact with others, she could not do any

of her past work. If, in addition to those limitations, she also

could not reach overhead with her left arm more than

occasionally, she could still do a fair number of light and

sedentary jobs, such as cleaner, sorter or packer. However, if

she was as limited as Dr. Farooqui stated, or if she were as

limited as she testified, she could not work. That would be true

even if her testimony about physical limitations were not taken

into account.

 V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 26 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured status requirements of the Social Security Act up

to March 31, 2001. The ALJ next found that plaintiff had not

engaged in substantial gainful activity from her earlier alleged

onset forward, and not since her amended onset date of January

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25, 2007.

As far as her impairments are concerned, the ALJ found that

plaintiff had severe impairments including shoulder impingement,

chronic obstructive pulmonary disease/asthma, a history of

uterine fibroids, pelvic pain due to ovarian cysts and torsion,

fatigue due to anemia cause by abnormal uterine bleeding,

affective and anxiety disorders, borderline intellectual

functioning, and a history of substance abuse in reported

remission. She also found that these impairments did not meet or

equal the requirements of any section of the Listing of

Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).

As far as plaintiff’s limitations were concerned, the ALJ

found that plaintiff had the residual functional capacity to

perform a full range of light work except that she could only

occasionally reach overhead with her left arm, needed to avoid

repetitive movement of her left shoulder, and could do only low

stress work in a nonpublic environment with minimal superficial

contact with others. With these limitations, although plaintiff

could not do her past relevant work, she could do those jobs

which Dr. Walsh identified. The ALJ further found that they

existed in substantial numbers in the regional economy. As a

result, the ALJ concluded that plaintiff had not demonstrated an

entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises three

errors. She contends: (1) that the ALJ did not give appropriate

consideration to the opinion of her treating psychiatrist; (2)

that the ALJ should have had the complete medical record reviewed

by a medical expert or called a medical expert to testify at the

hearing; and (3) that the record filed with Court is incomplete

and, as a result, plaintiff has been unable to address all of the

evidence considered by the ALJ. The Court reviews the

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administrative decision under this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff’s first assignment of error deals with the ALJ’s

decision to discount the opinion of Dr. Farooqui to the effect

that plaintiff is totally disabled from psychological symptoms. 

The applicable regulation (20 C.F.R. §404.1527(d)) and the case

law make clear that, although a treating source’s opinion need

not necessarily be given controlling weight, when it is not

accepted, an ALJ must both cite to acceptable reasons for

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rejecting or discounting the opinion, and state clearly and

adequately why that was done. See Wilson v. Comm’r of Social

Security, 378 F.3d 541, 544 (6th Cir. 2004); see also Rogers v.

Comm’r of Social Security,486 F.3d 234, 242 (6th Cir. 2007). If

there is no countervailing evidence and no basis for disregarding

the treating source’s opinion, however, the ALJ is required to

accept it. Harris v. Heckler, 756 F.2d 431 (6th Cir. 1985).

Here, the ALJ did not give Dr. Farooqui’s opinion “any great

weight” for several reasons. First, she noted that he had seen

plaintiff only a handful of times before reaching his

conclusions, and those conclusions were inconsistent with the

ones reached by the state agency reviewing psychologists. 

Second, it appeared that he relied heavily on plaintiff’s own

self-report of psychological symptoms. (Tr. 20). Later in the

administrative decision, the ALJ found plaintiff not to be fully

credible, and plaintiff does not challenge this finding in her

statement of errors. Specifically, the ALJ noted that

plaintiff’s work history, her non-compliance with treatment, her

failure to keep appointments, and her tendency to exaggerate

called into doubt the severity of her symptoms. These are

validly articulated reasons for giving Dr. Farooqui’s opinion

less than controlling weight.

Because the ALJ found the state agency reviewers more

credible that Dr. Farooqui, it is also important to review her

analysis of those opinions when determining if an adequate basis

exists for discounting his opinion. In that regard, the ALJ

noted that plaintiff performed various adaptive activities on a

daily basis, such as cleaning, shopping, cooking, taking public

transportation, paying bills, and maintaining a residence. The

ALJ found, as the state agency reviewers concluded, that any

limitations in these areas were no more than moderate. (Tr. 13-

14). She also found, based on plaintiff’s testimony and the

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opinions of those reviewers, that any difficulty in social

functioning could be accommodated by limiting plaintiff to no

more than superficial contact with others. Finally, she found

that the record lacked evidence that plaintiff was easily

distracted or had to be redirected, and she could do a variety of

mental activities such as answer questions appropriately,

remember things, and take her medications. Again, this indicated

no more than moderate inability to work with the required degree

of concentration, persistence and pace. All of these findings

are supported by citations to evidence in the record, and they

are all inconsistent with Dr. Farooqui’s opinion that plaintiff

has little or no ability to do any of the things necessary to

hold a job.

Plaintiff argues that psychiatrists must accept a patient’s

subjective description of symptoms because that forms the primary

basis for treatment, and that is true. Certainly, a treating

mental health provider’s opinion may not be disregarded or

discounted on that basis alone. However, where, as here, the

plaintiff is found to be less than credible, an ALJ may

reasonably conclude that self-reported symptoms are not as

reliable as they might be if no credibility issues existed. See,

e.g., Tonapetyan v. Halter, 242 F.3d 1144, 1149 (9th Cir. 2001);

see also Stevenson v. Astrue, 2010 WL 3034018 (M.D. Tenn. August

3, 2010). Plaintiff also contends that no evidence after

October, 2007 contradicted Dr. Farooqui’s opinion, but, as the

above discussion of the ALJ’s decision reveals, that is simply

not so. The ALJ relied on, among other things, Dr. Demuth’s

assessment from 2008 and plaintiff’s testimony of her activities. 

Overall, therefore, the record contains enough credible evidence

to support the ALJ’s rejection of Dr. Farooqui’s opinion as

controlling on the issue of disability.

Plaintiff’s second claimed error relates to the ALJ’s

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failure to call a medical expert to testify or to have such an

expert review the entire record, including Dr. Farooqui’s reports

after 2007 and the combination of plaintiff’s physical and

psychological impairments. The short answer to this argument is

that it was within the ALJ’s discretion, on this record, to call

or not to call a medical expert, and the Court cannot reverse an

ALJ’s reasonable exercise of that discretion.

The Court addressed the legal standard applicable to this

issue in Smith v. Comm’r of Social Security, 2010 WL 6303884, *6

(S.D. Ohio Nov. 24, 2010), adopted 2011 WL 1125031 (S.D. Ohio

March 24, 2011), noting that:

As the court observed in Griffin v. Astrue, 2009 WL

633043 *10 (S.D. Ohio March 6, 2009), “[t]he primary

function of a medical expert is to explain, in terms

that the ALJ, who is not a medical professional, may

understand, the medical terms and findings contained in

medical reports in complex cases.” Whether to call

such an expert to testify is generally left to the

discretion of the ALJ, see id., quoting Haywood v.

Sullivan, 888 F.2d 1463, 1467–68 (5th Cir. 1989), and

the Court may overturn the exercise of that discretion 

only if it appears that the use of a medical consultant

was necessary—rather than simply helpful—in order to

allow the ALJ to make a proper decision. See Landsaw v.

Secretary of Health and Human Services, 803 F.2d 211,

214 (6th Cir. 1986), quoting Turner v. Califano, 563

F.2d 669, 671 (5th Cir. 1977). 

There is no showing in this case that the use of a medical

consultant was necessary. Dr. Farooqui’s reports from 2008 and

2009 are not significantly different from those of 2006 and 2007,

which were reviewed by the state agency reviewers. In fact, if

anything, they show that plaintiff’s condition improved over time

with different medications and changes in her family situation. 

There was no need for the ALJ to have a medical expert consider

these additional records. Further, the ALJ did take both

psychological and physical limitations into account in developing

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the plaintiff’s residual functional capacity, and plaintiff does

not explain, in her statement of errors, how a medical expert

might have added information to that analysis. The vocational

expert was clearly asked to take both physical and psychological

limitations into account in his testimony, and plaintiff does not

suggest that either of these types of limitations was

inadequately described except for her argument that Dr.

Farooqui’s opinion about the extent of her psychological

impairment should have been fully credited by the ALJ. For these

reasons, the Court finds no merit in this second argument.

Plaintiff’s third and final argument is that the record

before the Court is inadequate because, in her opinion, the ALJ

referred to some IQ testing done in connection with the prior

denial of benefits, but that testing is not in the current

administrative record. This argument merits little discussion. 

 As the Commissioner’s memorandum points out, the only

relevance of that testing would be in relationship to whether

plaintiff’s limitations coincided with those set forth in section

12.05(C) of the Listing of Impairments, which deals with mental

retardation. Although there are no IQ scores in the present

record (and if plaintiff thought she met this section of the

Listing, she may well have had the burden of submitting evidence

as to each of its requirements), there is also no evidence

suggesting she could meet other aspects of the Listing. None of

the various treating, examining or reviewing mental health

professionals suggested she suffered from mental retardation,

variously stating that her cognitive functioning was normal or

that she may have borderline intelligence, and there is no

evidence of any deficits in adaptive functioning manifesting

themselves prior to age 22, which is one of the requirement of

this particular section. See Foster v. Halter, 279 F.3d 348, 354

(6th Cir. 2001). Under these circumstances, if there was any

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error in not including the prior IQ test scores in the record,

that error had no effect on the Court’s ability to review the

ALJ’s decision on the issue concerning section 12.05(C) and would

therefore be harmless.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Clerk

be directed to enter judgment in favor of the defendant

Commissioner of Social Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to

those specific proposed findings or recommendations to which

objection is made, together with supporting authority for the

objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which objection is

made. Upon proper objections, a judge of this Court may

accept, reject, or modify, in whole or in part, the findings

or recommendations made herein, may receive further evidence

or may recommit this matter to the magistrate judge with

instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

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/s/ Terence P. Kemp 

United States Magistrate Judge

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