IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Pamela Sue Lunsford, :

 Plaintiff, :

 v. : Case No. 2:11-cv-308

Michael J. Astrue, : JUDGE MICHAEL H. WATSON

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. : 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Pamela Sue Lunsford, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her application for supplemental security income. That

application was filed in December, 2006, and alleged that

plaintiff became disabled on June 21, 2003, although plaintiff

later amended her onset date to December 28, 2006, and also

withdrew an application for disability insurance benefits which

she had filed. 

After initial administrative denials of her claim, plaintiff

was given a hearing before an Administrative Law Judge on

December 16, 2009. In a decision dated February 24, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on February 17, 2011, when the Appeals Council denied

review.

After plaintiff filed this case, the Commissioner filed the

administrative record on July 11, 2011. Plaintiff filed her

statement of specific errors on September 9, 2011. The

Commissioner filed a response on December 12, 2011. No reply

brief was filed, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff’s testimony at the administrative hearing is found

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 1 of 12 PAGEID #: <pageID>
-2-

at pages 31 through 53 of the record. Plaintiff, who was 48

years old at the time of the hearing and is a high school

graduate with some college, testified as follows.

Plaintiff last worked in 2003 at a job which was classified

as part-time, although she usually worked between 37 and 39 hours

per week. She was a check-out person at a department store. 

Before that, she worked at a candle factory. She had also done

some data entry at an AT&T warehouse.

Plaintiff testified that she had a bicycle accident in which

she injured her head. She also injured her back in a trampoline

accident and had a foot injury which continues to affect her. 

Additionally, she has throbbing in her hip.

From an emotional standpoint, plaintiff stated that she has 

“shakiness” and social anxiety. She finds it difficult to sleep

due to both physical pain and depression. She can do light

household chores and walk to stores close to her home. She

thought that she could not work due to mood swings. She had

difficulty walking, standing, and lifting and carrying heavy

objects, but on a good day could stand for half an hour, and

could sit for an hour at a time. She had few hobbies other than

playing games on a computer, and did not socialize much.

III. The Medical Records

The medical records in this case are found beginning on page

197 of the administrative record. Because plaintiff raises

issues related only to her psychological impairments, the Court

will focus its summary of the medical records on that evidence.

On October 9, 2006, plaintiff underwent a mental health

assessment. The diagnoses at that time included major depressive

disorder as well as migraines and poor vision. Her GAF was rated

at 52, and individual counseling was recommended. (Tr. 214-24).

Dr. Weaver examined plaintiff on February 12, 2007 at the

request of the Social Security Administration. The results of

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 2 of 12 PAGEID #: <pageID>
-3-

the physical examination are not particularly relevant here,

although plaintiff told Dr. Weaver that she had been having

headaches since her bicycle accident two-and-one-half years

before. She said she never had been diagnosed or treated for

depression and anxiety, but reported frequent mood swings and

being stressed when around crowds of people or in public places. 

She exhibited a blunted affect and an anxious irritated mood

during the examination and did not make eye contact frequently. 

Dr. Weaver thought she would be limited to working in

environments without extensive social interaction or

interpersonal communication. (Tr. 228-32).

Dr. Roach performed a consultative psychological examination

on February 28, 2007. Plaintiff reported anxiety and depression. 

She was working at that time as a requirement to obtain food

stamps. She appeared nervous but could carry on a conversation

adequately. Her memory was adequate and she was functioning

within the average range of intelligence. She did, however, meet

the criteria for a borderline personality. The diagnostic

impressions included major depressive disorder, moderate to

severe, and borderline personality disorder. Her GAF was rated

at 60. She understood and responded appropriately to the

examiner’s questions and maintained satisfactory attention, but

her work pace was slow and she could deal with the public only in

a limited manner. Dr. Roach thought she was moderately impaired

in those three areas, but markedly impaired in her ability to

withstand work-related stress. (Tr. 239-44).

A state agency reviewer, Dr. Terry, reviewed the records and

offered the following opinions about plaintiff’s psychological

impairments. Dr. Terry thought plaintiff had an affective

disorder, an anxiety disorder, and a personality disorder. She

viewed plaintiff’s limitation in the area of activities of daily

living as mild, perceived moderate limitations in the areas of

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 3 of 12 PAGEID #: <pageID>
-4-

maintaining social functioning and maintaining concentration,

persistence, and pace, and saw no evidence of decompensation in a

work setting. The only marked limitation she noted was in

dealing with the general public; unlike Dr. Roach, Dr. Terry

thought plaintiff had only a moderate limitation of her ability

to complete a normal work day and work week without interruption

from psychologically-based symptoms. (Tr. 247-66). Dr. Demuth,

another state agency reviewer, concurred with this analysis. 

(Tr. 323).

In July of 2007, Dr. Wilcox did a psychological assessment

for Muskingum County Job and Family Services. At that time,

plaintiff’s mood was appropriate and she did not exhibit any

social discomfort. Her eye contact was also appropriate. She

had some general nervousness but no signs of anxiety. Testing

indicated both depression and anxiety. Dr. Wilcox’s impression

was a dysthymic disorder, early onset, chronic type; an

adjustment disorder with mixed anxiety and depressed mood; and

cannabis abuse in possible early full remission. He rated her

GAF at 60-65 and concluded that her only marked impairment was in

the area of setting realistic goals or making independent plans,

and that was not true all of time. He thought her ability to

withstand work stress varied from mildly to moderately impaired.

(Tr. 442-47).

Plaintiff underwent another psychological evaluation on

March 11, 2009. This evaluation was done by Dr. Yee. Plaintiff

reported depression and problems with attention. Her depression

began in early childhood. Her mood was depressed with a mildly

reactive and anxious affect, but she told Dr. Yee that her mood

improved with medication. She showed some signs of anxiety and

reported some post-traumatic flashbacks from her childhood. Dr.

Yee diagnosed PTSD and rated plaintiff’s GAF at 63. Referral to

a psychiatrist was recommended. Dr. Yee concluded that if

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 4 of 12 PAGEID #: <pageID>
-5-

plaintiff’s mood were stable, she would be a good candidate for

vocational retraining. Dr. Yee also found her to be markedly

limited in her ability to withstand ordinary work stress, but

only moderately limited (or less than moderately limited) in

other work-related functions. (Tr. 328-36).

IV. The Vocational Testimony

Ms. Kaufman, a vocational expert, also testified at the

administrative hearing. Her testimony begins at page 53. She

testified that plaintiff’s past relevant work as a sales clerk

was performed at the light exertional level, and that the candle

worker position was a medium strength job. The data entry job

was performed at the sedentary exertional level. Two of these

three jobs were semi-skilled.

Ms. Kaufman was asked to assume that plaintiff could work at

the medium exertional level and that she had the ability to

perform mildly complex tasks in a low-stress, routine,

predictable and static work setting that did not require frequent

changes. The assumptions about plaintiff’s ability also

included, optimally, working in a solitary position, but she

could work in a non-public setting that involved no more than

infrequent and superficial contact with coworkers and

supervisors. With these restrictions, Ms. Kaufman testified that

plaintiff could not return to any of her past jobs due to their

pace or the amount of public interaction they required. However,

a person with those restrictions could perform a number of

unskilled jobs, such as cleaner, laundry worker, and packer. Ms.

Kaufman provided numbers for these jobs in the regional economy. 

If plaintiff were limited as she testified, however, she could

not be employed, and the same would be true if she were off-task

or unable to function for at least a third of the work day or

work week. 

V. The Administrative Law Judge’s Decision

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 5 of 12 PAGEID #: <pageID>
-6-

The Administrative Law Judge’s decision appears at pages 11

through 21 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity from her amended

onset date of December 28, 2006 through the date of the decision. 

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

that plaintiff had severe impairments including head trauma,

depression, and social anxiety 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 a reduced range of medium work as long as

that work involved no more than mildly complex routine tasks that

were low stress and which could be performed in a static work

setting that was solitary in nature with no productions quotas or

fast paced work, and as long as the work did not involve contact

with the public or more than infrequent or superficial contact

with co-workers or supervisors. These restrictions precluded

plaintiff from performing any of her past relevant work. 

However, the ALJ accepted the vocational expert’s testimony that

someone with such limitations could perform a variety of jobs in

the regional economy, such as cleaner, laundry worker, and

packer. As a result, the ALJ concluded that plaintiff had not

demonstrated an entitlement to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff raises the

following issue. She argues that the ALJ erred in the way in

which he evaluated the mental health examination reports. 

Included in this statement of error is a claim that the ALJ did

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 6 of 12 PAGEID #: <pageID>
-7-

not state sufficient reasons to reject the examination reports,

and that adopting the state agency reviewer’s opinion as to her

residual functional capacity, while rejecting that of the

consultative examiners, was reversible error. The Court

generally 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).

In support of her first assignment of error, plaintiff notes

that the reasons given by the ALJ for discounting the opinions of

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 7 of 12 PAGEID #: <pageID>
-8-

the examining sources which, if accepted, would preclude all work

activity, were that those opinions were based on only a one-time

examination, were not supported by objective medical evidence,

were internally inconsistent, and appear to have been based on

plaintiff’s own self-report of symptoms. She asserts that these

reasons, examined in more detail, do not support the rejection of

those opinions because mental health evaluations are necessarily

supported by a subjective report of symptoms; because a

consultative report is necessarily based on a one-time

examination; and that there is no objective evidence in the

record which contradicts the examiners’ findings. If these

rationales are insufficient, plaintiff argues that the ALJ was

required to accept the views of the examiners and to have found

plaintiff to be disabled.

Plaintiff’s description of the reasons why the ALJ chose not

to credit fully the opinions of those examiners who found the

most significant restrictions in her ability to do work-related

activities - particularly Drs. Roach and Yee - does not reflect

the entirely of the ALJ’s reasoning process on that subject,

however. Rather, the ALJ reviewed the treatment notes concerning

plaintiff’s psychological impairments and observed that those

notes showed a good response to treatment and that her GAF was

consistently rated at 60 or above, which the ALJ interpreted to

be an indicator that “if symptoms are present, they are transient

and expectable reactions to psychosocial stressors, imposing no

more than moderate impairments in social functioning and ability

to maintain concentration, persistence and pace.” (Tr. 17). The

ALJ also found that plaintiff was described “as being able to

relate adequately, follow instructions, persist at tasks and

avoid getting distracted.” Id. Additionally, the ALJ relied on

testimony and evidence that plaintiff was able, if motivated, to

do a wide range of household tasks and that she was able to care

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 8 of 12 PAGEID #: <pageID>
-9-

for herself. Finally, the ALJ concluded that her testimony about

disabling symptoms was not entirely credible, noting that at one

point she had reported that she could probably work but simply

had not been able to find a job and that she stopped working

because her boyfriend at the time was supporting her. It was

only after the ALJ made these findings that he articulated, as

part of the reason for rejecting the views of Drs. Roach and Yee,

that they were based on plaintiff’s subjective complaints, which

the ALJ had found to be not entirely credible. Even though much

of the process of arriving at a diagnosis and evaluation of

psychological conditions is based on subjective reports of

symptoms, if an ALJ finds those subjective reports to be unworthy

of complete belief, any medical opinion based on such complaints

may also be discounted. See, e.g., Allen v. Comm’r of Social

Security, 561 F.3d 646, 652 (6th Cir. 2009).

 As the Commissioner points out, the ALJ was also entitled

to give the lack of a treating relationship between plaintiff and

Drs. Roach and Yee some weight. While that might not be a

sufficient reason, standing alone, for discounting a consultative

examiner’s report, at the same time, the absence of a treating

relationship is a factor which, under 20 C.F.R. §404.1527(c), may

be taken into account in evaluating opinion evidence. The Court

of Appeals has also held that the presumption that, absent

reasons to the contrary, a treating source’s opinion is accorded

controlling weight, is inapplicable to the opinions of nontreating sources. See Coldiron v. Comm’r of Social Security, 391

Fed. Appx. 435, *6 (6th Cir. Aug. 12, 2010), citing Atterberry

v. Sec'y of Health & Human Servs., 871 F.2d 567, 572 (6th Cir.

1989). Thus, the ALJ did not err in taking this factor into

account even though it is the nature of a consultative

examination to be a “one-time” event.

The ALJ’s opinion also points out valid inconsistencies in

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 9 of 12 PAGEID #: <pageID>
-10-

the opinions of these examiners. They did not report any

findings, supported by testing or even strongly supported by

their observations during the clinical interview, which

correlated with their conclusion that plaintiff would be unable

to withstand ordinary work stress. In this regard, it is also

useful to note that Dr. Wilcox, whose opinion plaintiff appears

to wish to characterize in the same way as she does the views of

Drs. Roach and Yee, did not share their view on this issue, and

as the Commissioner points out, he felt plaintiff was employable

despite her symptoms. (Tr. 447). 

Plaintiff’s second argument, which follows logically from

her first, is that if the Commissioner erred in the way in which

the opinions of Drs. Roach and Yee were evaluated, it was not

proper to credit the conclusions reached by the state agency

reviewer, Dr. Terry, over their contrary views. She also argues

that Dr. Terry’s opinion is contrary to, and not supported by,

the evidence she reviewed, that her conclusions are not

buttressed by sound methodology, and that they are rendered

somewhat less reliable because they did not take into account Dr.

Yee’s later report. The Court finds this argument similarly

unavailing.

First, as noted, the Court has found that the ALJ advanced

valid reasons for not viewing plaintiff’s psychological condition

quite as pessimistically as did Drs. Roach and Yee. At the same

time, the ALJ found that plaintiff had severe psychological

impairments, and he imposed significant restrictions on her

ability to perform work-related functions arising from those

impairments. Thus, even absent Dr. Terry’s report, there would

have been a good correlation between a modest discounting of the

views of Drs. Roach and Yee (and acceptance of the views of Dr.

Wilcox) and the residual functional capacity determination made

by the ALJ.

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 10 of 12 PAGEID #: <pageID>
-11-

Second, although plaintiff argues that Dr. Terry’s opinion

is not supported by the evidence of record, she does not identify

with any precision which evidence contradicts what Dr. Terry had

to say. Presumably, because Dr. Terry disagreed with Dr. Roach

as to plaintiff’s ability to withstand the stress and pressure of

work activity, plaintiff is contending that Dr. Roach’s opinion

is the evidence which contradicts Dr. Terry’s opinion. But both

opinions are just that - opinions - and both are based on the

same set of underlying findings and observations, because Dr.

Roach’s report was reviewed by Dr. Terry and she commented on the

accuracy of some of his conclusions. Especially given the

Court’s finding that the ALJ did not have to credit in full the

views expressed by Dr. Roach, it is difficult to conclude that

his assessment of plaintiff’s ability to deal with work stress is

the type of contradictory evidence that would make the ALJ’s

reliance on Dr. Terry’s opinions unreasonable. See, e.g., Helm

v. Comm’r of Social Security, 405 Fed. Appx. 997, 1002 (6th Cir.

Jan. 4, 2011), citing SSR 96-6p and 20 C.F.R. §404.1527(d), and

noting that an ALJ need “only to provide ‘good reasons’ for

giving greater weight to the opinions of agency sources.” The

ALJ did so here, and the Court finds no error which would warrant

either reversal or remand.

 VII. 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.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

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

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 11 of 12 PAGEID #: <pageID>
-12-

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

Case: 2:11-cv-00308-MHW-TPK Doc #: 21 Filed: 04/16/12 Page: 12 of 12 PAGEID #: <pageID>