IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Larry L. Shafer, :

Plaintiff, :

v. : Case No. 2:10-cv-1181

Commissioner of Social Security, : JUDGE ALGENON L. MARBLEY

 Magistrate Judge Kemp

 Defendant. :

OPINION AND ORDER

Plaintiff, Larry L. Shafer, filed this action seeking review of a decision of the

Commissioner of Social Security denying his application for a period of disability and social

security disability benefits. In a Report and Recommendation filed on October 20, 2011, the

Magistrate Judge recommended that the Commissioner’s decision be affirmed. Plaintiff has filed

objections to that recommendation, and the Commissioner has responded. For the following

reasons, the objections will be overruled and this case will be dismissed.

I.

If a party objects within the allotted time to a report and recommendation, 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).

The Court's review of the underlying decision “is limited to determining whether the

Commissioner's decision ‘is supported by substantial evidence and was made pursuant to proper

legal standards.’” Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (quoting

Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g)

(“The findings of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive”). Put another way, a decision supported by substantial evidence is

not subject to reversal, even if the reviewing court might arrive at a different conclusion. Mullen

v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable

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mind could accept the evidence as adequate to support a conclusion [and] ... presupposes that

there is a zone of choice within which the decision-makers can go either way, without

interference by the courts.’” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009)

(internal citation omitted). Even if supported by substantial evidence, however, “‘a decision of

the Commissioner will not be upheld where the [Commissioner] 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 v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009), quoting

Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007).

II.

 Plaintiff does not take issue with the way in which the hearing testimony, medical records, or

ALJ’s decision was summarized in the Report and Recommendation, and the Court will repeat

that information only briefly. Plaintiff, who was 43 years old when his insured status expired on

December 31, 2007, is a high school graduate. His most recent employment was as a driveway

paver and tire mechanic, but he had also worked for a long time manufacturing Air Stream

trailers.

Plaintiff claims a psychological disability. The records show that he had been treated for

bipolar disorder for some time. His treating health care provider, Dr. Rhee, reported that

plaintiff had a number of psychologically-based conditions, including bipolar disorder with

mixed features, a history of ADHD, an anxiety disorder, a history of heavy drinking, and a

history of marijuana use. He described plaintiff’s attention and concentration as “short” and

noted that plaintiff had no motivation. Dr. Schulz, a consultative examiner, found that plaintiff

had some moderate psychological limitations, but none which would prevent him from working. 

Other treating sources provided a more pessimistic view of his abilities, but their opinions

related to time periods well after plaintiff’s insured status lapsed.

The ALJ concluded that as of December 31, 2007, plaintiff suffered from bipolar disorder

and borderline intellectual functioning. These impairments limited him to performing only

simple, unskilled, low stress work without assembly line production quotas and with only

minimum contact with the general public, coworkers, and supervisors. A vocational expert

testified that someone with plaintiff’s ability could do a fair number of different jobs. Based on

that, the ALJ did not find him to have been disabled as of December 31, 2007. The Magistrate

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Judge recommends upholding that decision on the basis that it is supported by substantial

evidence.

III.

Plaintiff’s objection focuses on the way in which the ALJ treated Dr. Rhee’s opinion. To

put this objection in context, on December 19, 2006, the Social Security Administration sent Dr.

Rhee a letter noting that his patient had applied for benefits on the basis of a number of claimed

impairment, and asking that Dr. Rhee submit either a report or copies of his office records. In

response, Dr. Rhee completed a report form stating that he had treated plaintiff between the dates

of May 27, 2005 and August 5, 2006. He listed plaintiff’s diagnoses as “1. Bipolar/Mixed; 2. Hx

of ADHD; 3. Anxiety Disorder, NOS; 4. History of heavy drinking; 5. History of smoking pot.” 

As symptoms, he recited that plaintiff was “Depressed, angry, short tempered, very irritable, no

interest, no motivation, hypersomnia, very anxious, paranoid feelings, insomnia, crying spells,

mood swings, racing thoughts, can’t focus, decreased appetite.” The report left blank a question

where Dr. Rhee was to describe any pertinent findings about plaintiff’s condition, and Dr. Rhee

stated that the file did not contain any consultative or diagnostic test results. Dr. Rhee listed

plaintiff’s medications, noting that the effectiveness of these medicines and plaintiff’s

compliance with taking them both fluctuated; indicated that plaintiff had turned down a

suggestion of counseling because it was too far to drive; and said that plaintiff’s wife was

demanding that Dr. Rhee prescribe other medication. 

The last question on the form asked Dr. Rhee to describe how plaintiff’s impairment

limited his work ability. The answer, quoted verbatim, is: “Orientation x 3 memory intact;

cognitive ability fund of knowledge > Average; attention and concentration - short; No

motivation.” Plaintiff’s prognosis was “Guarded.” Administrative Record, at 287.

Plaintiff argues that this opinion “supports a finding of disability.” Objection, Doc. #17,

at 1. He contends that the ALJ’s failure either to mention it, or give reasons for discounting it,

was error. Although plaintiff concedes that Dr. Rhee’s response to the Social Security

Administration’s inquiry did not state specifically that plaintiff was unable to work, he argues

that the symptoms listed by Dr. Rhee would prevent plaintiff from maintaining the type of

regular attendance, attention, concentration, and independent functioning that are needed to work

competitively. He concludes that the only adequate remedy for the ALJ’s failure to comment on

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this report is to remand the case so that the ALJ can properly consider it.

The Commissioner’s response to this objection is that the ALJ’s decision shows that,

indeed, Dr. Rhee’s report was considered. Further, the Commissioner argues that it is not a

report of disability, but rather a listing of symptoms and limitations which is most significant for

its identification of two items which might impact the ability to work: short attention and lack of

motivation. The Commissioner argues that these limitations, to the extent that they were

relevant, were included in the ALJ’s determination of plaintiff’s residual functional capacity, and

that the ALJ therefore did not commit any error in determining that plaintiff was not entitled to

benefits.

It is true that Dr. Rhee’s report is summarized in the ALJ’s decision (Record, at 45). It

was one of the pieces of evidence the ALJ relied on in finding that plaintiff had severe

impairments. It is also mentioned in the section of the administrative decision in which the ALJ

concluded that plaintiff had the residual functional capacity to work at all exertional levels but

was limited to simple, unskilled, low stress work without assembly line quotas and with only

minimal contact with the general public, coworkers and supervisors. In particular, the ALJ had

this to say: “In January 2007 Dr. Rhee opined claimant had a short attention span and no

motivation .... This opinion has been given weight and has been considered when developing the

above residual functional capacity because it is consistent with the record as a whole.” (Record,

at 51). The ALJ then went on to discuss other aspects of Dr. Rhee’s report, including the

comments about the effectiveness of plaintiff’s medications and his compliance, the fact that

plaintiff had declined counseling, and the fact that his memory was intact and his cognitive

ability was average. Id. Taking this and other evidence, including the report of the consultative

examiner, Dr. Schulz, and the state agency reviewers into account, as well as notes from another

treating source, Dr. Kauffman, the ALJ arrived at his determination of plaintiff’s residual

functional capacity.

The record simply does not support plaintiff’s primary argument that the ALJ did not

mention Dr. Rhee’s report. It was mentioned, summarized, discussed, and weighed. The ALJ

did credit portions of it because they were consistent with other evidence in the record, and

imposed a functional limitation consistent with someone whose attention span is limited. The

ALJ did not believe plaintiff could work in an environment where the work was high stress,

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involved meeting production quotas, or required frequent interaction with others.

It is not clear how a remand to the ALJ for further consideration of Dr. Rhee’s report

would add anything to the administrative decision-making process. It appears that plaintiff’s

argument is not so much that the report was not read or considered by the ALJ, but that the ALJ

did not incorporate all of the symptoms described in the report into the residual functional

capacity finding, and did not explain why some of them were left out. However, as is evident

from the administrative decision, the ALJ did focus on the limitations section of the report (as

opposed to the more lengthy list of symptoms) in deciding how to factor it into the residual

functional capacity determination. That focus appears reasonable given that the last question on

the form was the only one which specifically asked Dr. Rhee to “describe any limitations his/her

[that is, the patient’s] impairment(s) imposes on the ability to perform sustained work activity.”

As the Commissioner’s response to plaintiff’s objection points out, quoting McClanahan

v. Commissioner of Social Sec., 2011 WL 691365, *10 (S.D. Ohio Jan, 20, 2011), adopted and

affirmed 2011 WL 672059 (S.D. Ohio Feb. 16, 2011), “a mere diagnosis or catalogue of

symptoms does not indicate functional limitations caused by the impairment.” In other words, as

the Court of Appeals observed in Young v. Sec’y of HHS, 925 F.2d 146, 151 (6th Cir. 1990),

which was cited in McClanahan, the mere diagnosis of a disorder is not the equivalent of having

a disability. Something more - that is, evidence of the way in which the disorder affects the

claimant’s ability to work - is needed. See also 20 C.F.R. §404.1513, indicating that the

Commissioner will consider, in deciding if an impairment is disabling, statements about “what

you can still do despite your impairment(s).” 

Here, plaintiff appears to argue that it is self-evident that someone with the symptoms

listed by Dr. Rhee could not work. The flaw in that argument is that Dr. Rhee did not say that. 

When he evaluated the severity, rather than the mere presence, of plaintiff’s symptoms, Dr. Rhee

imposed only certain limitations on plaintiff’s ability to work, and the ALJ accepted them along

with other evidence about plaintiff’s limitations. At bottom, plaintiff’s argument can be distilled

to the proposition that the only reasonable construction of Dr. Rhee’s report is that plaintiff

cannot work, and that the only reasonable option open to the ALJ was to accept such an opinion

at face value. The Court does not agree with either of these assertions. The objection therefore

lacks merit.

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IV.

For all of these reasons, and after a de novo review of those portions of the Report and

Recommendation to which plaintiff objected, the Court OVERRULES the objections (#17) and

ADOPTS AND AFFIRMS the Report and Recommendation (#16). The plaintiff's statement of

specific errors (#14) is OVERRULED and this case is DISMISSED. The Clerk is directed to

enter judgment in favor of the defendant.

IT IS SO ORDERED.

 s/Algenon L. Marbley 

Algenon L. Marbley

United States District Judge

DATED: February 3, 2012

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