IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

THOMAS LUCAS, ON BEHALF OF 

IVY MCCOY,

Plaintiff,

v.

MICHAEL J. ASTRUE, 

COMMISSIONER OF SOCIAL 

SECURITY,

Defendant.

Case No. 2:11-cv-429

Judge Peter C. Economus

MEMORANDUM OPINION AND ORDER

This matter is before the Court for consideration of two claims, addressed separately in 

two Reports and Recommendations by the Magistrate Judge. Claimant Ivy McCoy applied for 

(1) supplemental security income and (2) disability insurance benefits, both of which were 

denied by the Administrative Law Judge (“ALJ”). McCoy died while her request for review was 

pending, and her son, Plaintiff Thomas Lucas, became the substitute party. For the reasons set 

forth below, Plaintiff’s claim for supplemental security income is DISMISSED for lack of 

jurisdiction, and the ALJ’s decision denying disability insurance benefits is AFFIRMED.

I.

On January 6, 2012, Defendant filed a motion to dismiss Plaintiff’s claim for 

supplemental security income. (Dkt. 15.) Because supplemental security income cannot be paid 

to a claimant’s surviving child, Defendant asserts that Plaintiff lacks standing to assert the claim, 

and the Court therefore lacks subject matter jurisdiction. In his March 7, 2012 Report and 

Recommendation, the Magistrate Judge recommended that the motion be granted. (Dkt. 19.) No 

objections have been filed. The Court hereby ADOPTS the Magistrate Judge’s March 7, 2012 

Report and Recommendation (Dkt. 19) and GRANTS Defendant’s motion to dismiss (Dkt. 15).

Claim for Supplemental Security Income

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II.

Plaintiff alleges that McCoy became disabled and unable to work on February 2, 2006, at 

age 42, due to degenerative disc disease of the cervical spine, diabetes mellitus, obesity, posttraumatic stress disorder, and generalized anxiety disorder. (Compl. ¶ 4; R. 34.) The ALJ

determined that McCoy suffered from those conditions (R. 21–22) but retained the residual 

functional capacity to perform light work (R. 27–28) and therefore was not disabled (R. 35).

Claim for Disability Insurance Benefits

Plaintiff asserts that the ALJ’s determination should be overturned for two reasons: 

(A) the ALJ failed to follow the treating physician rule and (B) the ALJ failed to properly 

evaluate McCoy’s credibility. (Dkt. 10.) In a Report and Recommendation dated March 30, 

2012, the Magistrate Judge recommended that the Commissioner’s decision be affirmed as to 

Plaintiff’s claim for disability insurance benefits, finding that substantial evidence supports the 

ALJ’s determination that McCoy was not disabled within the meaning of the Social Security Act. 

(Dkt. 20.) Plaintiff filed objections. (Dkt. 22.) 

Having reviewed the record de novo, the Court determines that substantial evidence 

supports the ALJ’s determination that McCoy was not disabled within the meaning of the Act.

A.

Plaintiff asserts that the ALJ failed to follow the treating physician rule when he rejected 

the opinions of McCoy’s treating psychiatrist, Dr. Heather Rohrer, and McCoy’s treating 

primary care physician, Dr. Edward Tribuzio.

Treating Physician Rule

Under the treating physician rule, the ALJ must give controlling weight to a treating 

source’s opinion if that opinion “is well-supported by medically acceptable clinical and 

laboratory diagnostic techniques and is not inconsistent with the other substantial evidence” in 

the record. 20 CFR § 404.1527(c)(2). 

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The ALJ must “always give good reasons” for the weight he gives a treating source's 

opinion. 20 C.F.R. § 404.1527(c)(2), and “[t]hose good 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.’” Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (quoting Soc. Sec. 

Rul. No. 96-2p, 1996 SSR Lexis 9, at *12 (Soc. Sec. Admin. July 2, 1996)).

If the ALJ declines to give a treating source's opinion controlling weight, he must then 

balance the following factors to determine what weight to give it: “the length of the treatment 

relationship and the frequency of examination, the nature and extent of the treatment 

relationship, supportability of the opinion, consistency of the opinion with the record as a whole, 

and specialization of the treating source.” 20 CFR § 404.1527(c)(2); see also Cole, 661 F.3d at

937; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

The Sixth Circuit has noted that “[b]alancing the Wilson factors is required to satisfy the 

second prong of the treating physician rule.” Cole, 661 F.3d at 938. A remand is not required, 

however, if the ALJ “[meets] the goal of § 1527(d)(2)—the provision of the procedural

safeguard of reasons—even though [he] has not complied with the terms of the regulation.” See

Wilson, 378 F.3d at 547 (noting that some violations of the procedural requirement of 20 C.F.R. 

§ 404.1527(d)(2) may constitute harmless error).

1. Treating Psychiatrist

The Magistrate Judge’s Report & Recommendation sets forth a detailed description of the 

records of McCoy’s treating psychiatrist, Dr. Rohrer, which are briefly summarized here. Dr. 

Rohrer diagnosed McCoy with post-traumatic stress disorder, generalized anxiety disorder,

dysthymia, and dependent personality disorder (R. 331); and assigned her Global Assessment of 

Functioning (“GAF”) scores between 45 and 62. Dr. Rohrer opined that McCoy’s methadone 

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use adversely affected her cognitive functioning (R. 336), and that her “physical illnesses have 

major impact on her emotional status” (R. 338 (emphasis in original).) Dr. Rohrer opined that 

McCoy had marked limitations, defined as effectively precluding her from performing the 

activity in a meaningful way, in (1) completing a workweek without symptom-based 

interruptions and performing at a consistent pace without an unreasonable number and length of 

breaks, (2) interacting appropriately with the public, and (3) getting along with peers without 

distracting them or exhibiting behavioral extremes. (R. 335.) McCoy had moderate limitations, 

defined as significantly affecting but not totally precluding her from performing the activity, in 

(1) understanding and remembering one or two step instructions, (2) carrying out simple one or 

two step instructions, (3) maintaining attention and concentration for extended periods, 

(4) making simple work related decisions, and (5) setting realistic goals or making plans 

independently. (R. 334–36.) 

The ALJ reported that he “did not attach any significant weight to” Dr. Rohrer’s opinions

(R. 32), for the following reasons.

i. Alleged failure to define terms. Although the above terms 

“marked” and “moderate” are defined on the form used by Dr. Rohrer (R. 333–34), the ALJ 

indicated that Dr. Rohrer had not defined those terms (R. 32–33). The Magistrate Judge

acknowledged this error in his Report & Recommendation. 

ii. Reliance on McCoy’s physical complaints. Apparently relying on 

McCoy’s own reports regarding her physical condition, Dr. Rohrer opined that McCoy’s 

“physical illnesses have major impact on her emotional status” and that “physical pain [is a] 

major problem” for McCoy. (R. 338, 353 (emphasis in original).) Because the ALJ found 

McCoy’s reports regarding her physical condition to be unreliable, he determined that Dr. 

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Rohrer’s reliance was misplaced. (R. 32.) Plaintiff maintains that Dr. Rohrer provided detailed 

opinions only on McCoy’s mental limitations, and asserts that “mental health issues are often 

inextricably intertwined with physical complaints of pain.” (Dkt. 22 at 2.) While McCoy’s 

mental and physical health may have been connected, substantial evidence supports the ALJ’s 

determination that Dr. Rohrer’s reliance on McCoy’s reports was misplaced.

iii. Recommended course of treatment. The ALJ found that “Dr.

Rohrer’s recommended course of treatment does not support a conclusion that the claimant has 

been limited to the extent that her assessment suggests.” Dr. Rohrer recommended only one 30 

minute session monthly for medication management and one 15 minute monthly clinic visit. The 

ALJ noted that “the record establishes treatment on a less frequent basis. In fact, Dr. Rohrer saw 

the claimant in May 2008, after not seeing her for seven months and reported that she did not 

need to be seen until two months later.” (R. 32-33 (citations omitted).) Plaintiff mistakenly 

focuses on the ALJ’s apparent reference to McCoy’s failure to adhere to Dr. Rohrer’s 

recommended treatment plan. The ALJ’s reason was based on “Dr. Rohrer’s recommended 

course of treatment,” not on McCoy’s failure to adhere to that course of treatment. 

iv. Inconsistency between complaint and opinion. Dr. Rohrer reported 

in November 2008 that McCoy’s primary symptom was “poor sleep” (R. 741), but McCoy

denied being tired during the day and denied taking naps (R. 736). The ALJ found that such 

treatment records were inconsistent with Dr. Rohrer’s opinion that McCoy would require an 

unreasonable number and length of rest breaks. (R. 33, 741.) This reason was not addressed in 

Plaintiff’s objections.

Plaintiff also asserts that remand is required because the ALJ allegedly failed to consider 

any of the factors set forth in 20 C.F.R. § 404.1527(d)(2)-(6) before rejecting the treating 

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physicians’ opinions. (Dkt. 10 (citing Cole, 661 F.3d 931.) Plaintiff maintains that an 

examination of the factors set forth in § 404.1527(d)(2) would have revealed that the factors 

weigh in favor of crediting Dr. Rohrer’s opinion. While the ALJ did not explicitly consider all 

of the factors, he did identify several reasons for rejecting Dr. Rohrer’s opinion, including 

reasons relating to two of the factors: supportability of the opinion and consistency of the 

opinion with the record as a whole. While one of the ALJ’s reasons, Dr. Rohrer’s alleged failure 

to define terms, was incorrect, the Court finds that the other reasons were supported by

substantial evidence in the record. Because the ALJ provided several reasons for rejecting Dr. 

Rohrer’s opinion, the Court finds that the ALJ’s failure to consider all of the factors constitutes 

harmless error. See Wilson, 378 F.3d at 547.

Plaintiff also asserts that the ALJ was not permitted to rely exclusively on the 

contradictory opinion of the non-examining psychologist, Dr. Hamrick. According to Plaintiff, 

the Sixth Circuit has repeatedly downplayed the value of opinions from non-examining sources. 

The Magistrate Judge correctly decided that the ALJ did not err in adopting the opinions of Drs. 

Hamrick, Lucas, and Lyon. The findings of Drs. Lucas and Lyon did not support Dr. Rohrer’s 

opinion, and Dr. Hamrick, as the medical expert, had the opportunity to review the entire record. 

2. Treating Primary Care Physician

Plaintiff also argues that the Magistrate Judge erred when he concluded that the ALJ

properly rejected the opinions from McCoy’s treating doctor, Dr. Tribuzio. Plaintiff argues that 

the ALJ failed to fully and fairly develop the record and that he should have sought additional 

information from Dr. Tribuzio. However, the claimant has the burden of placing a “complete 

and detailed” record before the ALJ. Landsaw v. Sec’y of Health & Human Servs., 803 F.2d 

211, 214 (6th Cir. 1986).

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As the Magistrate Judge concluded, the ALJ properly considered Dr. Tribuzio’s treatment 

notes and the lack of any documented clinical findings. It was not improper to discount Dr. 

Trubuzio’s statement of disability when presented with treatment notes that failed to provide 

objective evidence to support that opinion. The ALJ’s decision is supported by substantial 

evidence. He properly relied on the reviewing physicians Drs. Morford, Bancks, and Green, in 

addition to the medical expert, Dr. Barquet.

B.

The ALJ found that McCoy’s “statements concerning the intensity, persistence and 

limiting effects of these symptoms are not credible to the extent they are inconsistent with the 

above residual functional capacity test.” (R. 29.) Citing this statement, Plaintiff asserts that the 

ALJ improperly compared McCoy’s statements with the residual functional capacity assessment 

rather than the evidence of record. (Dkt. 22 at 6.) A more careful review of the ALJ’s decision 

reveals that the above statement merely describes the ALJ’s conclusion, which is followed by the 

record-based reasons for the ALJ’s credibility determination. (R. 29–30.) 

Credibility Determinations

The ALJ stated that there was no physiological basis for McCoy’s back impairment, 

specifically her inability to work due to “constant” back pain. (R. 29.) Plaintiff points out that 

the ALJ concluded that there was sufficient evidence to find that her “history of degenerative 

disc disease” constituted a severe impairment. (R. 21.) It is not clear why the ALJ did not 

discuss the degenerative disc disease in the credibility section of his decision, but, considering 

his decision as a whole, he apparently found that McCoy’s history of degenerative disc disease

did not constitute a basis for “constant” back pain.

Plaintiff also asserts that the ALJ erred when he concluded that McCoy’s testimony was 

not supported by the documented clinical findings of Drs. Rohrer and Tribuzio. As to Dr. 

Tribuzio’s lack of documented clinical findings, Plaintiff maintains that “the ALJ failed to 

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develop the record.” (Dkt. 22 at 9.) As noted above, however, the claimant has the burden of 

creating a complete and detailed record. While Plaintiff points out that the record contains Dr. 

Rohrer’s clinical findings, the ALJ reasonably determined for credibility purposes that such 

findings did not support McCoy’s testimony concerning the severity of her symptoms.

According to Plaintiff, the ALJ also erred when he found McCoy to be not credible based 

on inconsistent statements made about her living situation and marijuana use. Plaintiff points out 

that the ALJ did not ask McCoy to clarify these statements. The ALJ also noted reports that 

McCoy presented as “histrionic” and was found to be an unreliable historian at times. Plaintiff 

states that histrionic personality disorder is a real medical condition and maintains that there is 

no evidence that McCoy purposefully exaggerated her symptoms. (Dkt. 22 at 10.) Even if 

McCoy did not purposefully exaggerate her symptoms, the ALJ reasonably considered Dr. 

Hamrick’s testimony that histrionic personality disorder involves a tendency to be overly 

dramatic or to exaggerate. (See R. 30.)

In conclusion, the Court finds that the ALJ “properly considered whether objective 

medical evidence supported [McCoy’s] allegations of disabling pain. Further, the [ALJ] 

considered [McCoy’s] inconsistent statements . . . in addition to statements made by treatment 

providers that [McCoy] exaggerated her symptoms. As a result, the [ALJ’s] credibility 

determination is supported by substantial evidence.” (Dkt. 20 at 36–37.) 

C.

Upon de novo review in accordance with the provisions of 28 U.S.C. § 636(b)(1)(B), the 

Court ADOPTS the Magistrate Judge’s March 30, 2012 Report and Recommendation (Dkt. 20)

and AFFIRMS the decision of the Commissioner. 

Conclusion

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The Clerk of Court is DIRECTED to enter JUDGMENT for Defendant. This action is 

hereby DISMISSED.

IT IS SO ORDERED.

UNITED STATES DISTRICT JUDGE

/s/ Peter C. Economus - July 2, 2012

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