IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

HEIDI McMONIGAL

Plaintiff,

vs. Civil Action 2:11-CV-156

Judge Smith 

Magistrate Judge King

MICHAEL J. ASTRUE, Commissioner

of Social Security,

Defendant.

REPORT AND RECOMMENDATION

This is an action instituted under the provisions of 42

U.S.C. §405(g)for review of a final decision of the Commissioner

of Social Security denying plaintiff’s application for a period of

disability and disability insurance benefits. This matter is now

before the Court on plaintiff’s Statement of Specific Errors, Doc.

No. 16, and the Commissioner’s Memorandum in Opposition, Doc. No.

24.

Plaintiff Heidi McMonigal filed her application for

benefits in May 2006, alleging that she has been disabled since

February 18, 2005 as a result of depression and problems with her

neck, lower back and knees. Page ID# 158. The application was

denied initially and upon reconsideration, and plaintiff requested

a de novo hearing before an administrative law judge.

A hearing was held on October 30, 2008, at which

plaintiff, represented by counsel, appeared and testified, as did 

Steven S. Rosenthal, who testified as a vocational expert. In a

decision dated January 6, 2009, the administrative law judge

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 denied

review on March 18, 2011.

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 1 of 10 PAGEID #: <pageID>
Plaintiff was 37 years old at the time the administrative

law judge issued his decision. Page ID## 57, 144. She has a high

school education, Page ID# 165, and prior relevant work experience

as a home health attendant and service station attendant and

manager. Page ID## 147-155, 159.

Plaintiff alleges and the administrative law judge found

that plaintiff suffers both physical and mental severe impairments. 

Plaintiff does not challenge the administrative law judge’s

evaluation of the medical evidence relating to her alleged

exertional impairments. Statement of Errors, pp. 12-16. Rather, 1

plaintiff challenges the administrative law judge’s evaluation of

the medical evidence relating to her mental impairment.

Accordingly, the Court will focus its review of the medical

evidence on plaintiff’s mental impairment.

Plaintiff’s primary care physician, Sudesh S. Reddy,

M.D., treated plaintiff from at least September 2001 through

February 2008. Page ID## 248-69, 354-57. In October 2005, Dr. Reddy

prescribed Wellbutrin for complaints of depression, increased

stress and “flying off the handle”. Page ID# 258. Dr. Reddy

prescribed Ambien in November 2005 for sleep problems. Page ID#

256. Plaintiff continued to complain of nervousness, anxiety and

depression throughout early to mid-2006. Page ID## 250-54.

Plaintiff first saw psychiatrist Bipin Desai, M.D., on

June 9, 2006. Page ID## 307-09 (duplicated at Page ID## 327-31 and

337-39). Plaintiff reported incidents of sexual abuse and two prior

abusive relationships; she claimed that she had battled depression

since 1987. Page ID## 307-08. She characterized her depression as

a 2 or 3 on 1-10 depression scale (where 1=severe depression and

Because resolution of the issues presented in this case turn on a

1

single legal issue, the Court will not summarize the testimony presented at

the administrative hearing.

2

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 2 of 10 PAGEID #: <pageID>
10=free of depression). She also reported longstanding difficulty

with irritability (“I’m always angry and snappy”), and episodes of

racing thoughts, distractability and increased energy. Most days

she does not want to be around anybody or do anything. Page ID#

307. On clinical examination, Dr. Desai characterized plaintiff’s

mood as depressed, anxious and irritable and her affect as blunted.

Page ID# 308. Her thought processes were goal directed; there was

no evidence of psychosis. Id. Plaintiff was alert and oriented and

she had adequate insight and judgment. Plaintiff denied suicidal or

homicidal thoughts. Id. Dr. Desai diagnosed bipolar disorder, type

2, r/o major depressive disorder, recurrent, r/o bipolar disorder,

type 1, and post traumatic stress disorder. Id. He assigned a

Global Assessment of Functioning (“GAF”) score of 52, which is

suggestive of moderate dysfunction. Dr. Desai prescribed Cymbalta,

continued her on Xanax and Ambien and referred plaintiff for

cognitive behavioral therapy. Id.

On June 23, 2006, plaintiff reported that she was feeling

better, and Dr. Desai noted an improvement in plaintiff’s mood and

affect. Plaintiff continued to complain of irritability. Dr. Desai

prescribed Lamictal in addition to plaintiff’s other medications.

Page ID# 306.

On July 17, 2006, state agency psychologist Melanie

Bergsten, Ph.D., reviewed the file and concluded that plaintiff

“remain[ed] capable of work activity that does not require strict

time constraints or complex instruction.” Page ID# 287. Dr.

Bergsten opined that plaintiff was moderately limited in her

ability to understand and remember detailed instructions, carry out

detailed instructions, maintain attention and concentration for

extended periods, complete a normal workday and workweek without

interruptions from psychologically based symptoms, perform at a

consistent pace without an unreasonable number and length of rest

periods and to respond appropriately to changes in the work

3

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 3 of 10 PAGEID #: <pageID>
setting. Page ID# 286. In October 2006, state agency psychologist

Roy Shapiro, Ph.D., affirmed Dr. Bergsten’s assessment. Page ID#

312.

At a July 28, 2006 office visit with Dr. Desai, plaintiff

was depressed and tearful and admitted to continued difficulty with

irritability. Page ID# 324. Plaintiff spoke “at length about

current stressors.” Dr. Desai adjusted plaintiff’s medication. 

Id. At her next appointment in August, plaintiff reported feeling

better, and Dr. Desai noted an improved mood and affect. Page ID#

323.

In November 2006, Dr. Desai saw plaintiff for an

emergency appointment at which she complained of depression,

excessive sleeping and weight gain. Page ID# 319. Her mood was

depressed and her affect was blunted. Id. Her medications were

again adjusted. Id. At an office visit later that month,

plaintiff reported feeling better, but “by evening she’s dragging

again.” Page ID# 318. Dr. Desai increased plaintiff’s medication.

Id.

In December 2006, plaintiff reported difficulties with

anxiety and insomnia; Dr. Desai prescribed Vistaril and Ambien.

Page ID# 316. In an assessment of plaintiff’s mental residual

functional capacity, Dr. Desai opined that plaintiff’s abilities

were “poor or none” in all areas. Page ID# 333.

In early 2007, Dr. Desai reported that plaintiff’s mood

varied and that her affect was appropriate. Page ID## 347-49. Her

medications were again adjusted to help with weight gain and

anxiety. At an emergency appointment on May 22, 2007, plaintiff

reported that she was “stressed out,” was feeling overwhelmed and

was having trouble with her son. Page ID# 346. Dr. Desai

characterized plaintiff’s mood as depressed and anxious. Id. She

was re-prescribed Risperdal. Id. In June 2007, plaintiff reported

that she was depressed and anxious and having difficulties with her

4

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 4 of 10 PAGEID #: <pageID>
son. Her medications were again adjusted. Page ID# 345-46. In

July 2007, she presented to Dr. Desai as depressed, anxious and

tearful. Page ID# 344. She had been car-jacked a week earlier and

was prescribed Xanax by Dr. Reddy. Page ID## 344, 354. Dr. Desai

continued her on Cymbalta, Seroquel, Lamictal and Xanax. Page ID#

344.

Dr. Desai completed another mental capacity assessment on

August 23, 2007 in which he reported that plaintiff was depressed,

anxious and overwhelmed, had a poor attention span and had

difficulty with short term memory. Page ID## 335-36. According to

Dr. Desai, plaintiff had poor or no useful ability to follow work

rules, use judgment, maintain attention and concentration for

extended periods of 2 hour segments, respond appropriately to

changes in routine setting, maintain regular attendance and be

punctual within customary tolerances, deal with the public, relate

to co-workers, interact with supervisor(s), function independently

without special supervision, work in coordination with or proximity

to others without being unduly distracted or distracting, deal with

work stresses, complete a normal workday and work week without

interruptions from psychologically based symptoms and perform at a

consistent pace without an unreasonable number and length of rest

periods, understand, remember and carry out job instructions

(complex, detailed and simple), socialize, behave in an emotionally

stable manner, relate predictably in social situations, manage

funds/schedules and leave home on her own. Id.

In November 2007, plaintiff reported to Dr. Desai that

she was “feeling pretty good.” Page ID# 343. Dr. Desai found

plaintiff’s mood mildly anxious and her affect appropriate. Id. 

In February 2008, Dr. Desai reported plaintiff was “doing

adequately.” Page ID# 342. Plaintiff was “feeling good” in April

2008 but required an increase in her medications in June 2008 in

light of her father’s recent cancer diagnosis. Page ID## 340-41.

5

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 5 of 10 PAGEID #: <pageID>
On October 21, 2008, Dr. Desai opined that plaintiff ‘s

mental work abilities were “poor or none” in three areas: in her

ability to deal with the public, in her ability to understand,

remember and carry out complex job instructions and in her ability

to understand, remember and carry out detailed, but not complex,

job instructions. According to Dr. Desai, plaintiff had “fair”

abilities in nine areas: judgment, maintain attention and

concentration for extended periods of 2 hour segments, work in

coordination with or proximity to others without being unduly

distracted or distracting, understand, remember and carry out

simple job instructions, socialize, behave in an emotionally stable

manner, relate predictably in social situations, manage

funds/schedules and leave home on her own. Plaintiff was found to

have “good” mental work abilities in four areas: in her ability to

maintain appearance, to respond appropriately to changes in routine

setting, to maintain regular attendance and be punctual within

customary tolerances and to function independently without special

supervision. He did not rate plaintiff in five areas, but instead

simply noted, “don’t work.” Page ID## 352-53. 

In December 2008, plaintiff reported “experiencing some

difficulties with anxiety and limited symptom attacks.” Page ID#

373. Dr. Desai noted that plaintiff’s mood was mildly anxious, her

affect was appropriate and there was “[n]o evidence of any mania or

psychosis.” Id. Dr. Desai increased plaintiff’s dosage of Xanax,

and directed her to return in two to three months. Id.

In his decision, the administrative law judge found that

plaintiff’s severe impairments consist of degenerative disc

disease, degenerative joint disease and affective disorder. 

However, the administrative law judge found that plaintiff 

nevertheless has the residual functional capacity to lift and/or

carry 20 pounds occasionally and 10 pounds frequently, sit for at

least 6 hours in an eight-hour day and stand and/or walk for at

6

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 6 of 10 PAGEID #: <pageID>
least 6 hours in an eight-hour day. She could frequently climb

stairs, but is precluded from climbing ladders or scaffolds. She

could occasionally balance, stoop, kneel, crouch and crawl and

would be limited to simple repetitive tasks. She could maintain

concentration and pace sufficient to complete tasks in the time

expected. She would be precluded from fast-paced, strict time

sensitive or high quota tasks. She could interact with co-workers

and supervisors intermittently and could tolerate occasional

contact with the general public. Page ID# 54. Relying on the

testimony of the vocational expert, the administrative law judge 

found that this residual functional capacity would permit plaintiff

to perform a significant number of jobs in the national economy,

including such unskilled light jobs as cafeteria attendant and mail

clerk, and such unskilled sedentary jobs as order clerk, security

monitor and addresser. Page ID# 58. Accordingly, the

administrative law judge concluded that plaintiff is not disabled

within the meaning of the Social Security Act. Page ID## 50-59.

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

Commissioner’s decision is limited to determining whether the

findings 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 more than a scintilla of evidence but less than a preponderance;

it 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).

7

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 7 of 10 PAGEID #: <pageID>
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.

In her Statement of Errors, plaintiff contends that the

administrative law judge should have accorded controlling weight to

the opinions of Dr. Desai, her treating psychiatrist, in

determining plaintiff’s residual functional capacity and that, in

any event, the administrative law judge failed to give “good

reasons” for discounting Dr. Desai’s opinions. 

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 (6 Cir. th

2007); 20 C.F.R. § 404.1527(d)(2). In weighing the opinions of the

treating physicians, 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. § 404.1527(d)(2)-(6); Wilson v. Commissioner of Social

Security, 378 F.3d 541, 544 (6 Cir. 2004). Even where the th

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

8

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 8 of 10 PAGEID #: <pageID>
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, at *5.

As was more fully discussed supra, Dr. Desai opined on

two occasions that plaintiff was extremely limited in her ability

to perform work related activities from a mental standpoint. See

Page ID## 333; 335-36. On a third occasion, Dr. Desai provided,

without any explanation, a much more optimistic assessment. Page

ID## 352-53. After correctly describing the legal standards

applicable under the treating physician rule, see 20 C.F.R.

§404.1527(d),(f); SSRs 96-2p, 96-5p, 96-6p and 06-3p, the

administrative law judge considered Dr. Desai’s assessments as

follows:

As for the opinion evidence, the opinions of Dr. Desai,

as provided at Exhibits l2F and 13F, have been considered

and are rejected. The opinions do not appear to be

consistent with the evidence of record and appear to be

primarily based on the claimant's subjective complaints.

Further, the opinion of Dr. Desai as provided at Exhibit

l5F has also been considered and is given little weight.

The opinion is incomplete as he notes that the claimant

“does not work” instead of providing an opinion; however,

portions of the opinion which were completed would

suggest that the claimant would be able to perform some

work.

Page ID# 56. Instead, the administrative law judge relied on the

assessment of the state agency psychologists in formulating

plaintiff’s residual functional capacity. Page ID# 54.

This Court rejects plaintiff’s contention that Dr.

Desai’s assessments are uncontroverted. As the administrative law

judge noted, Dr. Desai’s extremely restrictive assessments were

9

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 9 of 10 PAGEID #: <pageID>
inconsistent with those of the state agency psychologists and with

his own office notes. Indeed, Dr. Desai’s earlier assessments were

in many respects inconsistent with his own assessment of October

2008, Page ID## 352-53. Because the administrative law judge

applied the appropriate factors to Dr. Desai’s opinions, and

provided good reasons for the weight that he gave those opinions,

the administrative law judge did not err as a matter of law in his

evaluation of the treating psychiatrist’s opinions.

It is therefore RECOMMENDED that the decision of the

Commissioner of Social Security 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, 18 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

January 25, 2012

10

Case: 2:11-cv-00156-GCS-NMK Doc #: 25 Filed: 01/25/12 Page: 10 of 10 PAGEID #: <pageID>