IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Marsha L. Driggs, :

Plaintiff, :

v. : Case No. 2:11-cv-0229

Commissioner of Social Security, JUDGE JAMES L. GRAHAM

 Magistrate Judge Kemp

 Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Marsha L. Driggs, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her applications for disability benefits and supplemental

security income. Those applications were filed on January 18,

2007, and alleged that plaintiff became disabled on March 19,

2002, but that date was later amended to October 11, 2007. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on

November 25, 2009. In a decision dated January 28, 2010, the ALJ

denied benefits. That became the Commissioner’s final decision

on January 14, 2011, when the Appeals Council denied review.

After plaintiff filed this case, the Commissioner filed the

administrative record on May 26, 2011. Plaintiff filed her

statement of specific errors on July 29, 2011. The Commissioner

filed a response on September 1, 2011. Plaintiff filed a reply

brief on September 19, 2011, and the case is now ready to decide.

II. The Lay Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

at pages 32 through 47 of the record. Plaintiff, who was 50

years old at the time of the hearing and attended school only

through the eighth grade, testified as follows.

Plaintiff’s employment history consisted of only two jobs,

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both of which involved cleaning hotel rooms. She testified that

she stopped working due to hip problems, and then developed some

mental health issues. 

At the hearing, she stated that she was having pain in the

L4-L5 area which was a steady, stabbing pain which averaged nine

on a scale of one to ten. It is helped by medication. She saw

her back doctor on a monthly basis but received no other

treatment for that condition.

She also was seeing Dr. Hamill for her psychological

condition. She met with him once every two or three months, and

with a counselor more often. Being around people would make her

nervous.

On a typical day, she got up, made coffee, sat until her

back began to hurt, and then went back to lie down. On a good

day she could sit in a recliner and watch television. She did

little in the way of household chores other than washing some

dishes. Her back condition prevented her from driving. She

could sit about twenty minutes and stand about five minutes. She

could not walk more than twenty feet nor lift more than five

pounds. She also could not add or subtract well without a

calculator. She told the Administrative Law Judge that she was

essentially bed-ridden and had been for a year.

After plaintiff testified in response to questions from her

attorney and from the ALJ, the medical expert asked her some

questions about alcohol use. She generally denied any use except

for a single incident in 2008, even though the medical records

appeared to say otherwise. (Tr. 47-50).

III. The Medical Records

The medical records in this case are found beginning on page

216 of the administrative record. They can be summarized as

follows.

Well prior to her alleged onset date, plaintiff received

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mental health treatment from Dr. Shy. In 2003, Dr. Shy completed

a form stating that plaintiff had fifteen marked impairments in

her ability to do work-related functions, and one extreme

limitation, that being in the area of completing a normal workday

and work week without interference from psychologically-based

symptoms. No treatment notes accompanied that assessment. 

Treatment notes from the Scioto Paint Valley Mental Health Center

for later years showed that plaintiff was being seen for anxiety

and depression but had trouble articulating what she meant by

being anxious, including being unable to identify when her

symptoms began or even what they were. She did describe feeling

depressed every day and getting little sleep. In 2006, she

denied any auditory hallucinations but did ask to change doctors

to get a more favorable evaluation for disability purposes. The

doctor who saw her at that time, Dr. Yezuita, thought her report

of daily depression was “more facetious than real” and he rated

her GAF at 55-60. 

Plaintiff saw Dr. Schneider for back and hip pain in early

2007. She had some diffuse tenderness over the lumbosacral area

and some decreased range of motion secondary to pain. She was

given a prescription for Vicodin. A prior emergency room note

described her as “clearly opiate seeking” and the ER doctor

refused to write a prescription for such medication.

Dr. Demuth, a state agency reviewer, completed a mental

residual functional capacity assessment form in March, 2007. At

that time, he thought plaintiff’s mental condition had not

changed from the date that a prior ALJ had considered this issue,

and he adopted that evaluation, which indicated plaintiff

suffered from either depression or a bipolar disorder, borderline

intellectual functioning, and generalized anxiety, and that her

impairments resulted in only mild restrictions of her activities

of daily living or social functioning, in moderate difficulty

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maintaining concentration, persistence and pace, and in no

episodes of decompensation.

Dr. Perencevich, also a state agency reviewer, evaluated

plaintiff’s physical capacity on July 9, 2007, and found that she

had the residual functional capacity to perform light work but

could only occasionally climb ladders, ropes or scaffolds. He

thought that plaintiff was credible as to the impairments she

reported, i.e. back pain due to degenerative arthritis, but not

as to their severity.

Next, the record contains 41 pages of treatment notes from

the Scioto Paint Valley Mental Health Center, dated from 2003 to

2007. Generally, they show that initially plaintiff’s GAF was

rated at 55-60 notwithstanding a diagnosis of generalized anxiety

disorder, which had been exacerbated by psychosocial stress. In

2004, the notes show that she was insistent on being prescribed

Xanax and was taking that medication from a neighbor, that she

was resistant to suggestions that she see a counselor, that she

showed some improvement after medication adjustments, that she

was not always feeling depressed, that she refused to quit

smoking, that she discontinued anti-anxiety medication at one

point for fear of gaining weight, that she reported being

chronically anxious and fearful, that she occasionally took more

medication than prescribed, that she had a lot of social

stressors in her life, that she tended to give up on tasks like

psychological testing, and that her condition was generally

unchanged from one visit to the next. A longer progress note was

made on March 19, 2007, which was the first time she was seen by

Dr. Hamill. At that time, she denied any depressive episodes or

any history of panic attacks as well as any history of psychotic

symptoms. She was visibly anxious but also irritable and

demanding. Dr. Hamill refused to prescribe Xanax despite

plaintiff’s request for that medication, but did prescribe Valium

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and Seroquel. A note from June, 2007 indicated that her

condition had improved somewhat, and she reported to Dr. Hamill

that she was “doing fine with the Valium,” although she asked for

a higher dose. He saw her again three months later and she

described her racing thoughts and mood swings as “not too bad.” 

There are additional treatment notes concerning her back

pain as well. At one time, she was diagnosed with spinal

stenosis of the lumbar region as well as degenerative disc

disease at L4-L5. Straight leg raising was positive on the right

side. Tests showed some disc space narrowing.

Dr. Hamill completed a residual functional capacity form on

October 11, 2007, which is one of the treating source opinions

that plaintiff believes was not given appropriate weight. He

generally described plaintiff as having shown some improvement on

medications, but as suffering from “racing thoughts, poor

concentration, and borderline intellectual functioning.” Her

prognosis was poor, and she was unable to meet competitive

standards in the areas of maintaining regular attendance or being

punctual, completing a workday or workweek without interruptions

from psychologically-based symptoms, and dealing with work

stress. He also thought she would have a marked impairment in

the areas of concentration, persistence and pace, and that she

had suffered four or more episodes of decompensation, each of at

least two weeks’ duration. In addition, she would miss more than

four days of work each month due to her impairments. 

Approximately a year later, he completed a similar form but

imposed even more restrictions.

Plaintiff’s treating doctor for her hip and back pain, Dr.

North, apparently requested a physical therapist to evaluate

plaintiff’s physical capabilities. That report showed that she

could lift only five pounds, could stand, sit and walk for less

than a full workday, had to lie down four or five times in a

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workday, and had a large number of both postural and

environmental limitations. Dr. North later signed off on this

evaluation.

Finally, there are some additional mental health treatment

notes. They show that by 2008, plaintiff was being prescribed

Xanax, and that in 2009 she was doing well with her medication

and did not want to make any changes. That note described her as

“pleasant and cooperative and looks like she is doing well.” 

(Tr. 493).

 IV. The Medical Expert Testimony

A medical expert, Dr. Madden, testified at the

administrative hearing. See Tr. 47-51. Dr. Madden identified

plaintiff’s mental impairments as borderline intellectual

functioning, alcohol abuse, depressive disorder not otherwise

specified, and anxiety disorder not otherwise specified. None of

the mental impairments met the criteria of the Listing of

Impairments. Due to her borderline intellectual functioning,

plaintiff would be limited to the performance of routine tasks

not involving strict time production requirements. Dr. Madden

thought she should have only limited contact with the public. He

did not see the need for any other limitations.

 V. The Vocational Testimony

Mr. Keiger, a vocational expert, also testified at the

administrative hearing. See Tr. 52-54. He characterized

plaintiff’s past work as a housekeeper as light and unskilled. 

He was asked to assume that plaintiff had the mental limitations

described by Dr. Madden and the physical restrictions described

in Exhibit 8F, the evaluation done by Dr. Perencevich, which

generally restricted plaintiff to work at the light exertional

level with only occasional climbing of ropes, scaffolds and

ladders. In response, Mr. Keiger stated that plaintiff could

still perform her past housekeeper job. However, if she were

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required to miss work more than four days per month, she was not

employable. 

 VI. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 11

through 22 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

met the insured requirements of the Social Security Act, and

particularly the requirements for widow’s disability benefits

(plaintiff’s husband had died after she submitted her original

applications), through August 31, 2015. Next, he found that she

had not engaged in substantial gainful activity from her amended

onset date of October 11, 2007 through the date of the decision. 

As far as plaintiff’s impairments are concerned, the ALJ found

that plaintiff had severe impairments including back pain with

evidence of lumbar degenerative disc disease, hip pain with

evidence of osteoarthritis, alcohol abuse, anxiety disorder, and

depressive disorder. The ALJ 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).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform light work but could only occasionally climb

ladders, ropes or scaffolds and was limited to the performance of

routine tasks with no strict time requirements and with limited

contact with the public. The ALJ accepted the vocational

expert’s testimony that someone with such limitations could

perform plaintiff’s past work as housekeeper. As a result, the

ALJ concluded that plaintiff had not demonstrated an entitlement

to benefits.

VII. Plaintiff’s Statement of Specific Errors

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 In her statement of specific errors, plaintiff raises three

issues. She argues that the ALJ erred by not affording

controlling weight to the opinions of Drs. Hamill and North; that

the ALJ did not properly evaluate whether her mental impairment

satisfied sections 12.04(B) and (C) of the Listing of

Impairments; and that the ALJ improperly determined that her

testimony was not credible. The Court reviews the 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).

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Because the way in which the ALJ dealt with Dr. Hamill’s

opinions affects both the issue of whether he gave appropriate

weight to those opinions generally, and whether those opinions

should have been followed to the extent that they describe an

impairment of sufficient severity to satisfy the Listing of

Impairments, the Court will deal with those two questions

together. It will separately analyze the way in which the ALJ

weighed Dr. North’s opinion and plaintiff’s credibility.

A treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. Lashley

v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983);

Estes v. Harris, 512 F.Supp. 1106, 1113 (S.D. Ohio 1981). A

summary by an attending physician made over a period of time

need not be accompanied by a description of the specific

tests in order to be regarded as credible and substantial.

Bull v. Comm’r of Social Security, 629 F.Supp. 2d 768, 780-81

(S.D. Ohio 2008), citing Cornett v. Califano, No. C-1-78-433

(S.D. Ohio Feb. 7, 1979). 

A physician's statement that plaintiff is disabled is not

determinative of the ultimate issue. The weight given

such a statement depends on whether it is supported by

sufficient medical data and is consistent with other evidence

in the record. 20 C.F.R. §404.1527; Harris v. Heckler, 756 F.2d

431 (6th Cir. 1985). In evaluating a treating physician’s

opinion, the Commissioner may consider the extent to which that

physician’s own objective findings support or contradict that

opinion. Moon v. Sullivan, 923 F.2d 1175 (6th Cir. 1990); Loy v.

Secretary of HHS, 901 F.2d 1306 (6th Cir. 1990). The

Commissioner may also evaluate other objective medical evidence,

including the results of tests or examinations performed by nontreating medical sources, and may consider the claimant’s

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activities of daily living. Cutlip v. Secretary of HHS, 25 F.3d

284 (6th Cir. 1994).

If not contradicted by any substantial evidence, a treating

physician's medical opinions and diagnoses are afforded complete

deference. Harris, 756 F.2d at 435. The Commissioner may have

expertise in some matters, but cannot supplant the medical

expert. Hall v. Celebrezze, 314 F.2d 686, 690 (6th Cir. 1963).

The "treating physician" rule does not apply to a one-time

examining medical provider, and the same weight need not be given

to such an opinion even if it favors the claimant. Barker v.

Shalala, 40 F.3d 789 (6th Cir. 1994). Additionally, the

Commissioner is required to provide a meaningful explanation for

failing to accord controlling weight to the opinion of a treating

source, with reference to the various factors set forth in 20

C.F.R. §404.1527(d). Wilson v. Comm’r of Social Security, 378

F.3d 541, 544 (6th Cir. 2004).

Here, the ALJ apparently concluded that plaintiff’s mental

impairment did not satisfy the Listing because, contrary to Dr.

Hamill’s views, she did not have marked impairments in the area

of concentration, persistence and pace, and had not had multiple

episodes of decompensation. He reached the former conclusion by

giving more weight to the views of the state agency reviewers,

and the latter by noting that there was absolutely no evidence of

any episodes of decompensation, nor any mental health-related

hospitalizations. When arriving at the residual functional

capacity assessment, the ALJ first discounted Dr. Shy’s opinion

as to extreme limitations because it was rendered years before

plaintiff’s alleged onset date, plaintiff had shown improvement

since that time, and the opinion was inconsistent with later

evidence and Dr. Shy’s own notes. Second, in a section of the

administrative decision that is more than one-and-one-half pages

long, the ALJ determined that Dr. Hamill’s opinions were

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“inconsistent with the record as a whole as well as his own

treatment notes and those of the other mental health

professionals at the Scioto Paint Valley Mental Health Center.” 

(Tr. 18). He also noted that the increased limitations in the

2008 report were not supported by any increase in symptoms or

were not explained. The ALJ then described a number of

activities reflected in the record which plaintiff had engaged

in, such as helping her son apply for benefits and helping a

friend with legal problems, and concluded that these also cast

doubt on the extreme limitations imposed by Dr. Hamill. Finally,

the ALJ observed that despite the seeming extreme severity of

plaintiff’s symptoms, Dr. Hamill continued to see her only once

every four months and did not make any medication changes from

2007 to 2008. For these reasons, the ALJ gave Dr. Hamill’s

opinions less weight, gave the state agency reviewers’ opinions

some weight, and gave the most weight to Dr. Madden’s testimony.

Plaintiff argues in her statement of errors and in her reply

that Dr. Hamill’s opinion was entitled to controlling weight

because of his status as a treating source, the length of the

treating relationship, and the absence of other evidence to

contradict his findings. She specifically asserts that his

treatment notes do not, as the ALJ suggested, fail to support his

evaluation of the severity of plaintiff’s symptoms, and that

matters referred to by the ALJ as examples of plaintiff’s ability

to function above the level described by Dr. Hamill “hardly

substantiate a competitive work profile.” Plaintiff’s Statement

of Errors, Doc. #14, at 20. She also questions how thoroughly

Dr. Madden reviewed the record given his questioning of her at

the administrative hearing about alcohol use or abuse.

In the Court’s view, the ALJ both had, and articulated,

valid reasons for affording less than controlling weight to the

opinions of Dr. Hamill. It is certainly true that there is

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nothing in this record, even in Dr. Hamill’s treatment notes, to

support the occurrence of four or more episodes of

decompensation, but Dr. Hamill reported that these existed. 

Further, an ALJ may reject the opinion of a treating source

“where the treating physician's opinion is inconsistent with

[that source’s] own medical records.” Jackson v. Astrue, 2011 WL

854877, *5 (M.D. Ala. March 10, 2011); see also Smith v. Astrue

2009 WL 2733827 (S.D. Ohio August 26, 2009) (sustaining ALJ’s

decision to afford less weight to treating mental health source

due to inconsistencies between treatment notes and an opinion of

disabling symptoms). The various notes do not indicate symptoms

of such severity, and, as recited above, plaintiff had expressed

a desire to change doctors simply in order to enhance her ability

to obtain disability benefits. The notes paint a picture of a

patient who demanded certain medications, used her neighbor’s

medications when she did not obtain the ones she wanted from her

own mental health treatment provider, and who vaguely and

inconsistently reported symptoms, but who managed to obtain an

opinion of total disability from Dr. Hamill only a few months

after she began to see him. These and the other criticisms which

the ALJ made of Dr. Hamill’s opinion are appropriate and could

have led a reasonable person to find that Dr. Madden’s view was

more objective and more grounded in the medical record as a

whole, notwithstanding plaintiff’s attack on his credibility

based on his concern about there being an untreated alcohol

problem - something that did find support in some of the medical

records. For these reasons, the Court finds that the ALJ was

entitled to discount Dr. Hamill’s views both on whether

plaintiff’s impairment met the Listing and whether it was

completely disabling.

Similarly, the ALJ did not err in the way that plaintiff’s

physical capacity was determined. Neither Dr. North nor the

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physical therapist, Mr. Banks, provided any support for the

residual functional capacity finding which they either developed

or approved. The medical records do not, as the ALJ pointed out,

appear to support such drastic limitations. There is other

evidence supporting a finding that plaintiff can do light work,

and a reasonable person could have relied on it.

Finally, plaintiff argues that her credibility was not

properly assessed. This issue is uniquely within the province of

the ALJ to determine, and unless the reasons given for

disbelieving a claimant’s testimony are wholly invalid or

unsupported in the record, the Court has little discretion to

make a contrary finding. See, e.g., 20 C.F.R. §404.1529(c)(3);

Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994).

Here, the ALJ based his credibility findings on these

factors: that her claim that she needed to lie down for most of

the day was inconsistent with the course of treatment she pursued

for her physical impairments; that her telephone reports to the

Social Security Administration contained inconsistencies; that

her activities are inconsistent with someone who is essentially

bedridden; and that her reported symptoms are not supported by

the medical records. Plaintiff attempts to characterize these

inconsistencies as minimal, but the ALJ’s decision shows that he

fully considered the record and had support for the credibility

determination which was made. When this occurs, the Court must

defer to that determination, and it should do so here.

 VIII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that judgment be

entered in favor of the defendant Commissioner of Social

Security.

IX. Procedure on Objections

If any party objects to this Report and Recommendation,

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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).

/s/ Terence P. Kemp 

United States Magistrate Judge

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