IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

TAMMY A. OWENS, 

Plaintiff,

vs. Civil Action 2:11-CV-102

Judge Economus

Magistrate Judge King 

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

REPORT AND RECOMMENDATION

This is an action institute under the provisions of 42 U.S.C. §§

405(g), 1383 for review of a final decision of the Commissioner of

Social Security denying plaintiff’s application for supplemental

security income. This matter is now before the Court on plaintiff’s

Statement of Specific Errors, Doc. No. 17, the Commissioner’s

Memorandum in Opposition, Doc. No. 20, and plaintiff’s Reply, Doc. No.

21.

Plaintiff Tammy A. Owens filed the current, her fourth,

application for benefits on November 10, 2005, alleging that she has

been disabled since November 1, 2005 by reason of physical and mental

impairments. The application was denied initially and on

reconsideration and plaintiff requested a de novo hearing before an

administrative law judge.

On June 30, 2009, plaintiff, represented by counsel, appeared and

testified at an administrative hearing, as did Steven S. Rosenthal,

who testified as a vocational expert. In a decision dated August 20,

2009, the administrative law judge found that, despite plaintiff’s

severe impairments, she nevertheless has the residual functional

capacity for a reduced range of medium work. Relying on the testimony

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of the vocational expert, the administrative law judge also found that

this residual functional capacity permitted the performance of

plaintiff’s past work as a fruit inspector or, alternatively, a

significant number of jobs in the national economy. The

administrative law judge therefore concluded that plaintiff was not

disabled within the meaning of the Social Security Act.

That decision became the final decision of the Commissioner of

Social Security when the Appeals Council declined review on December

13, 2010.

Plaintiff was 51 years of age at the time the administrative law

judge issued her decision. She has a high school education; she has

not worked since her alleged date of onset.

Plaintiff testified that she cannot work because of problems with

her back and because of anxiety and depression. A.R. 306. She

specifically complained of pain in her back, shoulders, legs and neck. 

A.R. 307. She characterized her pain as a 9 on a 10-point scale 

despite medication and physical therapy. A.R. 308.

Plaintiff has suffered mental impairments for almost 25 years. 

A.R. 309. She has seen psychiatrists “off and on” during that entire

period. A.R. 324. She feels that people are talking about her; she

is forgetful. A.R. 310. She experiences panic attacks twice per

week, during which she cries and her palms sweat. She calms herself

by lying down for an hour. A.R. 324. Her current treating

psychiatrist, Timothy Conrad, M.D., prescribes medication. She

acknowledged, however, that she has received Xanax from multiple

sources and that she has been discharged from treatment because of

misuse of the drug. A.R. 311.

Plaintiff also testified that she uses a nebulizer multiple times

per day for chronic obstructive pulmonary disease {“COPD”], A.R. 313,

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although plaintiff has apparently never undergone a pulmonary function

study. A.R. 307.

Plaintiff experiences no negative side effects from her

medications. A.R. 314.

According to plaintiff, she can sit for 30 minutes before having

to get up and move around. A.R. 316. She can stand for 20 minutes. 

Id. She cannot walk half a block. Id. She cannot lift 5 pounds. 

Id. Beginning 6 months prior to the administrative hearing, plaintiff

has relied on a home health care aide for help with her activities of

daily living. A.R. 317. She also goes shopping with the aide. A.R.

318-19. On a typical day, plaintiff works puzzles and reads. Id.,

A.R. 320. She has no friends and does not socialize with family

except her daughter. A.R. 321.

Plaintiff has been diagnosed and treated for generalized anxiety

disorder, depressive disorder, nos, and personality disorder, nos,

since at least July 2004. A.R. 134. Stewart Fern, M.D., a

psychiatrist at Six County, Inc., noted in November 2004 that

plaintiff was alert and oriented; there was no depresssion or evidence

of psychosis. Id. He prescribed Paxil and Xanax. Id. At

plaintiff’s next office visit four months later, Dr. Fern noted that

plaintiff was responding well to her medication. A.R. 133. She was

again alert and oriented; there were no signs of depression or

evidence of psychosis. Id. In February 2006, Dr. Fern commented

that, when plaintiff “is under stress she has panic attacks.” A.R.

128. Office notes also reflect issues of requests by plaintiff for

early refills of medication, see, e.g., A.R. 129, 131, and in April

2006, plaintiff was terminated from treatment at Six County, Inc., and

referred to another community mental health agency or private

psychiatrist. A.R. 127.

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In May 2006, a state agency specialist reviewed the psychiatric

evidence and concluded that the record did not evidence a severe

mental impairment. A.R. 135. That assessment was affirmed by another

state agency psychologist in November 2006 after plaintiff had failed

to appear for a consultative examination. A.R. 150-53.

In July 2006, plaintiff presented to an emergency room for what

was diagnosed as anxiety and “possibly Xanax withdrawal.” A.R. 138. 

An x-ray of the lumbar spin performed in July 2006 revealed some

minor degenerative changes. A.R. 143.

In August 2006, plaintiff re-instituted treatment at Community

Mental Health Center after her family physician discontinued her

psychiatric medication. Plaintiff requested psychiatric services but

did not request counseling. A.R. 149. At the initial assessment,

plaintiff reported a history of depression and mental health services

and complained of nightmares and anxiety. A.R. 245. She also

reported good support by her boyfriend and a good relationship with

her daughter. Id. Although Antonia Fitzgerald, M.D., a psychiatrist,

apparently indicated that plaintiff was “[d]isabled unable to work,” 

A.R. 242, she also rated plaintiff’s current GAF at 55 and her highest

GAF in the past year at 65. Id.

In December 2006, a state agency physician reviewed the evidence

and concluded that the record documented a back disorder and obesity.

Referring to the July 2006 findings that plaintiff’s gait, strength

and neurological examination were normal, this physician opined that

plaintiff had the residual functional capacity for medium exertion. 

A.R. 155. However, in light of the documented minor degenerative

changes and limited range of motion, she should never climb ladders,

ropes or scaffolds. A.R. 156, 159.

In February 2007, plaintiff underwent a consultative

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psychological evaluation, upon referral from the Department of Job and

Family Services, by Gary Wolfgang, Ph.D. Plaintiff complained of

insomnia and anxiety and reported a history of panic attacks. A.R.

257. Dr. Wolfgang noted a euthymic mood and an appropriate affect. 

There were no delusions. Dr. Wolfgang diagnosed a panic disorder

without agoraphobia, r/o anxiolytic dependence, and a histrionic

personality. Id. He rated plaintiff’s GAF at 35 and indicated that

plaintiff was “unemployable.” Id. In a mental function capacity

assessment, Dr. Wolfgang opined that plaintiff was “markedly limited”

or “extremely limited” in a number of work-related areas of

functioning. A.R. 256.

In a December 2007 office visit at Community Mental Health

Center, plaintiff was oriented to all spheres, exhibited a euthymic

mood and normal affect, was cognitively intact and evidenced no

psychosis. A.R. 231. Although medication and individual counseling

were recommended, plaintiff was “currently only participating in

pharmacological services to maintain her current level of stability. .

. .” Id. Her GAF was rated 55. Id. At a March 2008 office visit,

plaintiff was again alert and oriented. Her mood was mildly dysphoric

and her affect was normal. She was cognitively intact and manifested

no psychotic symptoms. Her insight and judgment were fair. A.R. 226. 

She was warned again of the consequences of benzodiazepine abuse. Id.

In September 2008, plaintiff’s mood was euthymic and her affect was

normal. She had no psychotic symptoms and her insight and judgment

were good. A.R. 222.

Plaintiff also treated with psychiatrist George Moses, D.O., in

late 2008. A.R. 162-66. Issues with plaintiff’s use of Xanax

continued during that period of time. Id.

Plaintiff began treatment for a variety of impairments by David

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Klein, M.D., in August 2008. She asked for and was prescribed Xanax. 

A.R. 177, 168. In August 2008, Dr. Klein diagnosed hypertension,

hyperlipidemia, GERD, depression and anxiety. A.R. 176. The following

month, noting wheezing, Dr. Klein also diagnosed COPD. A.R. 171-72. 

Plaintiff also asked that Dr. Klein refer her to a psychiatrist. A.R.

177. 

In November 2008, plaintiff saw Timothy Conrad, D.O., a

psychiatrist at Community Mental Healthcare. A.R. 180-81. Plaintiff

asked that her Xanax be increased. A.R. 180. On clinical

examination, Dr. Conrad noted that plaintiff’s affect was restricted

and her mood was dysphoric. She manifested no psychotic symptoms. 

Dr. Conrad diagnosed major depression, recurrent and moderate, and an

anxiety disorder, nos. Although her current GAF was 50, which is

suggestive of serious symptomotology, her highest GAF in the past year

was 55, which is suggestive of moderate symptomotology. A.R. 219. See

also A.R. 231. Dr. Conrad prescribed Xanax, but required that

plaintiff sign a “Benzodiazepine contract,” and warned plaintiff that

there would be no early refills. A.R. 180. In December 2008, it was

specifically noted that plaintiff had no problems related to her

social environment, nor did she have educational or occupational

problems. A.R. 219. In June 2009, plaintiff reported that her “meds

are working at this time.” A.R. 214. Dr. Conrad diagnosed major

depression disorder, recurrent and moderate, anxiety disorder, nos,

hypertension, gastric reflux and “chronic bronchitis from smoking in

the past.” Id.

In June 2009, Dr. Klein indicated that he based his diagnosis of

COPD on plaintiff’s “vital signs” and history. A.R. 280. According

to Dr. Klein, plaintiff was limited to low stress jobs by reason of

her “limited ability to cope.” A.R. 281. In an assessment of

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plaintiff’s residual functional capacity, Dr. Klein indicated that

plaintiff could walk one block, could sit for 20 minutes at a time,

for a total of at least six hours, and could stand for 20 minutes at a

time, for less than 2 hours in a workday. A.R. 282. She could only

occasionally lift less than 10 pounds. Id. She must avoid all

environmental pollutants. A.R. 283.

In her decision, the administrative law judge found that

plaintiff’s severe impairments consist of obesity, minor degenerative

disc disease, hyperlipidemia, hypertension, anxiety, depression and a

history of a personality disorder. A.R. 16. The administrative law

judge expressly excluded COPD because the record contains to objective

testing to support the diagnosis and GERD because the condition, even

if it had been supported by objective testing, would have had no more

than a minimal effect on plaintiff’s ability to work. A.R. 18 n.2. 

The administrative law judge went on to find that plaintiff’s

mental impairments neither met nor equaled an impairment under

Listings 12.04 (affective disorders), 12.06 (anxiety disorders) or

12.08 (personality disorders) because the record did not establish

that plaintiff’s mental impairments met the “B” criteria of those

Listings, A.R. 20, nor did they meet the “C” criteria of Listings

12.04 or 12.06. Id.1

Relying on the assessment of the state agency physician, the

administrative law judge found that plaintiff has the residual

functional capacity to perform a reduced range of medium work. 

Specifically, plaintiff could not climb ladders, ropes or scaffolds

and must avoid concentrated exposure to respiratory irritants. She

would be limited to low stress work, i.e., simple, non-public tasks

1

Listing 12.08 does not include “C” criteria.

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requiring no more than occasional, superficial interaction with

others. A.R. 22. The administrative law judge rejected Dr. Klein’s

June 2009 residual functional capacity assessment as “inconsistent

with the medical evidence of record, including his own treatment

notes. A.R. 24.

For example, as of June 16, 2009, the date of

this opinion, Dr. Klein had last seen the

claimant on April 14, 2009, and the physical

examination from that day revealed no complaints

of an no clinical findings of respiratory

problems. In addition, it is noted that Dr.

Klein had only a limited picture of the

claimant’s longitudinal history, as he had only

seen her on four occasions and thus did not have

a long term treatment relationship. Dr. Klein

also clearly based his findings on the clamant’s

subjective complaints, which have not been found

fully credible . . . . Further, Dr. Klein

completed a “pulmonary” functional capacity form,

yet the diagnosis of COPD is not supported by any

objective testing and thus is not even a

medically determinable impairment.

A.R. 24 (citations to record omitted). Instead, the administrative

law judge attributed weight to Dr. Klein’s assessment only to the

extent that he suggested that plaintiff could perform simple work. Id.

The administrative law judge also expressly rejected Dr.

Wolfgang’s opinion of disability as “inconsistent with the evidence of

record as a whole, including any analysis of the ‘B’ and ‘C’ criteria

and this doctor’s own report.” A.R. 24. 

It appears that this assessment was based

primarily on the claimant’s subjective

complaints, which cannot be found to be fully

credible . . . . Further, it appears that Dr.

Wolfgang considered the claimant’s alleged

physical impairments, which a psychologist is not

qualified to do. Dr. Wolfgang also only examined

the claimant on one occasion for a welfare

consultative examination and did not have a long

term treating relationship. Last, his opinion

that the claimant was unemployable addresses an

area that is reserved to the Commissioner. 

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A.R. 25 (citations to record omitted).

Finally, the administrative law judge found that the objective

evidence does not support plaintiff’s subjective allegations.

The record does contain complaints of back and

leg pain and evidence of minor degenerative

changes; nevertheless, physical examinations have

been remarkable primarily for the lack of

objective findings. Examinations have revealed

essentially normal results with no neurological

deficits, no atrophy, and normal gait and normal

sensation . . . . [C]laimant has had entirely

conservative and non-aggressive treatment with

only medications and a brief course of physical

therapy. Further, despite the claimant’s reports

of level 9 pain at the time of the hearing, she

was able to attend the hearing proceedings

closely and fully without any observable

difficulty or interference from her alleged

severe pain level.

Id. In considering plaintiff’s subjective complaints of mental

impairments, the administrative law judge found:

 . . . the claimant also infrequently reported

any psychological problems. This seems to

confirm that her psychotropic medications

adequately control her symptoms. Further, it

appears that the claimant’s self-referrals to

mental health providers were related to her

seeking the medication Xanax and/or to bolster

her disability claim rather than solely due to

the severity of her anxiety or depression.

A.R. 26. The administrative law judge also considered the substantial

evidence of plaintiff’s drug-seeking behavior and non-compliance with

treatment recommendations. A.R. 28. Finally, in finding that

plaintiff’s subjective complaints were not fully credible, the

administrative law judge recounted plaintiff’s numerous inconsistent

and/or exaggerated statements throughout the record. A.R. 28-29.

Plaintiff challenges each of these findings and conclusions.

Pursuant to 42 U.S.C. §405(g), judicial review of the

Commissioner’s decision is limited to determining whether the findings

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of the administrative law judge are supported by substantial evidence

and employed the proper legal standards. Richardson v. Perales, 402

U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595

(6th Cir. 2005). Substantial evidence is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion. 

Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003); Kirk

v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir.

1981). This Court does not try the case de novo, nor does it resolve

conflicts in the evidence or questions of credibility. Bass v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007). 

In determining the existence of substantial evidence, this Court

must examine the administrative record as a whole. Kirk, 667 F.2d at

536. If the Commissioner's decision is supported by substantial

evidence, it must be affirmed even if this Court would decide the

matter differently, Tyra v. Sec’y of Health & Human Servs., 896 F.2d

1024, 1028 (6th Cir. 1990)(citing Kinsella v. Schweiker, 708 F.2d 1058,

1059 (6th Cir. 1983)), and even if substantial evidence also supports

the opposite conclusion. Longworth, 402 F.3d at 595.

Plaintiff first complains that the administrative law judge

failed to include COPD, GERD and urinary incontinence among

plaintiff’s severe impairments. As noted supra, the administrative

law judge expressly considered COPD and GERD but found that the record

contained no objective documentation of those conditions. In any

event, the residual functional capacity found by the administrative

law judge – which restricted exposure to respiratory irritants –

reasonably accommodated a pulmonary impairment, regardless of the

diagnosis of that impairment. Moreover, plaintiff points to no

evidence that either GERD or urinary incontinence “significantly

limits [plaintiff’s] physical or mental ability to do basic work

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activities, ... ." See 20 C.F.R. §416.920(c). The findings of the

administrative law judge in this regard are supported by substantial

evidence.

Plaintiff next complains that the administrative law erred in

finding that plaintiff’s mental impairments neither meet nor equal

Listings 12.04 or 12.08. The administrative law judge exhaustively

considered plaintiff’s claimed mental impairments by reference to

Listings 12.04, 12.06 and 12.08, but concluded that plaintiff’s

impairments neither met nor equaled any of those Listings. A.R. 20-

22. Plaintiff’s conclusory argument in this regard offers no detail

whatsoever why the findings of the administrative law judge lack

substantial support in the record. The Court concludes that this

claim is without merit.

Plaintiff also complains that the administrative law judge

improperly rejected the opinions of the consultative psychological

examiner, Dr. Wolfgang, who assigned a GAF of 35 and who opined that

plaintiff is “unemployable.” A.R. 257. As noted supra, however, Dr.

Wolfgang’s specific findings included a euthymic mood and an

appropriate affect. There were no delusions. Id. The administrative

law judge rejected Dr. Wolfgang’s opinion of disability as

“inconsistent with the evidence of record as a whole, including any

analysis of the ‘B’ and ‘C’ criteria and this doctor’s own report.” 

A.R. 24. The administrative law judge also found that the opinion of

this one-time examining psychologist was based primarily on

plaintiff’s subjective complaints, took into account medical

complaints beyond his area of expertise and addressed an area reserved

to the Commissioner. A.R. 25. An administrative law judge is not

required to accept the opinions of a medical source where those

opinions are not accompanied by sufficient clinical and diagnostic

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findings. See 20 C.F.R. §416.927(d)(3). Moreover, treatment notes

from Community Mental Health Center often noted minimal symptoms and

GAF scores of 55 or higher, despite plaintiff’s diagnoses. This Court

concludes that the administrative law judge did not err in rejecting

Dr. Wolfgang’s extremely restrictive opinions.

Plaintiff also complains that the administrative law judge

improperly disregarded the medical opinions of plaintiff’s treating

physician, Dr. Klein. To be afforded controlling weight, the opinion

of a treating physician must be well-supported by medically acceptable

clinical and laboratory diagnostic techniques, and must not be

inconsistent with other substantial evidence in the record. Rogers v.

Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); 20

C.F.R. § 416.927(d)(2). In weighing the opinions of a treating

physician, an administrative law judge is required to consider factors

such as the length, nature and extent of the treatment relationship,

the frequency of examination, the medical specialty of the treating

physician, the opinion's supportability by evidence, and its

consistency with the record as a whole. 20 C.F.R. § 416.927(d)(2) -

(6); Wilson v. Commissioner of Social Security, 378 F.3d 541, 544 (6th

Cir. 2004). Even where the administrative law judge declines to

accord controlling weight to the opinion of a treating physician, the

administrative law judge “must still determine how much weight is

appropriate. . . .” Blakley v. Commissioner of Social Security, 581

F.3d 399, 406 (6th Cir. 2009). Moreover, an administrative law judge

must provide “good reasons” for discounting the opinions of a treating

physician, i.e., “reasons that are “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.” Rogers, at 242, citing Soc. Sec. Rul. 96-2p, 1996 WL 374188,

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at *5. As the administrative law judge noted, Dr. Klein’s restrictive

assessment of plaintiff’s condition and ability to engage in workrelated employment were undermined by his own treatment notes and the

other objective evidence of record. For example, his diagnosis of

COPD lacks any objective support in the record and it appears, as the

administrative law judge found, that Dr. Klein based much of his

assessment – not on clinical findings – but on plaintiff’s subjective

complaints. Moreover, plaintiff’s mild degenerative changes and

normal neurological findings do not support his restrictive assessment

of plaintiff’s ability to engage in work-related activities. In

short, the Court concludes that, in not fully adopting Dr. Klein’s

opinions, the administrative law judge applied all appropriate

standards and based her decision on substantial evidence.

In a somewhat related argument, plaintiff contends that the

administrative law judge failed to develop a full and fair record as

to the opinions of Drs. Wolfgang and Klein: 

Of course, an ALJ is not required to discuss

every piece of medical evidence, but the ALJ must

discuss enough of that evidence to enable the

reviewing court to determine whatever substantial

evidence supports the determination that

claimant’s impairments do not render a claimant

disabled. 

Statement of Specific Errors, p. 15. For the reasons state supra, the

Court concludes that the administrative law judge did not, in

considering the opinions of Drs. Wolfgang and Klein, fail to fully

develop the record.

Next, plaintiff argues that the finding that plaintiff is able to

perform a “full range” of medium work is not supported by substantial

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evidence.2 To the contrary, the opinion of the state agency physician,

upon which the administrative law judge expressly relied in making

this determination, provides substantial support for this finding.

Finally, plaintiff challenges the administrative law judge’s

credibility determination. An administrative law judge is not

required to accept a claimant’s subjective complaints, but may instead

properly consider the credibility of a claimant. See Walters v.

Commissioner of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). Because

the administrative law judge has the opportunity to observe a witness’

demeanor while testifying, her credibility determinations are accorded

great weight and deference. Buxton v. Halter, 246 F.3d 762, 773 (6th

Cir. 2001). However, credibility determinations must be clearly

explained. Auer v. Secretary of Health and Human Servs., 830 F.2d

594, 595 (6th Cir. 1987). If the administrative law judge’s

credibility determinations are explained and enjoy substantial support

in the record, the Court is without authority to revisit those

determinations. See Beavers v. Secretary of Health, Educ. and

Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978). See also Felisky v.

Bowen, 35 F.3d 1027 (6th Cir. 1994). In the case presently before the

Court, the administrative law judge exhaustively considered the issues

surrounding plaintiff’s credibility and her subjective symptoms. A.R.

25-29. She applied the appropriate standards and clearly explained

her credibility findings, which enjoy substantial support in the

record. This Court is without authority to reject those findings.

In short, and having carefully reviewed the entire record, the

Court concludes that the decision of the Commissioner is supported by

substantial evidence and must therefore be affirmed.

2

The administrative law judge actually found that plaintiff has the

residual functional capacity for a reduced range of medium work. A.R. 22.

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It is therefore RECOMMENDED that the decision of the Commissioner

be affirmed and that this action be dismissed.

If any party seeks review by the District Judge of this Report

and Recommendation, that party may, within fourteen (14) days, file

and serve on all parties objections to the Report and Recommendation,

specifically designating this Report and Recommendation, and the part

thereof in question, as well as the basis for objection thereto. 28

U.S.C. §636(b)(1); F.R. Civ. P. 72(b). Response to objections must be

filed within fourteen (14) days after being served with a copy

thereof. F.R. Civ. P. 72(b). 

The parties are specifically advised that failure to object to

the Report and Recommendation will result in a waiver of the right to

de novo review by the District Judge and 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); Smith v. Detroit Federation

of Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United

States v. Walters, 638 F.2d 947 (6th Cir. 1981).

 s/Norah McCann King 

 Norah McCann King

 United States Magistrate Judge

February 8, 2012

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