IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Carolyn S. Lawson, :

Plaintiff : Civil Action 2:12-cv-00323

v. : Judge Marbley

Carolyn Colvin, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Carolyn S. Lawson brings this action under 42 U.S.C. §§405(g) for

review of a final decision of the Commissioner of Social Security denying her

application for Social Security Disability benefits. This matter is before the Magistrate

Judge for a report and recommendation on the parties’ cross-motions for summary

judgment.

Summary of Issues. Plaintiff Lawson maintains that she became disabled in

2006, at age by, by depression and anxiety. The administrative law judge found that

plaintiff Lawson retained the physical ability to perform work at all exertional levels.

Mentally, she could understand, remember, and carry out simple as well as some multistep tasks, concentrate on simple tasks, and perform work that is not fast paced and

does not have strict production quotas. The work could involve no more than

superficial or occasional interactions with others; and a non-public work setting with

minimal social demands was preferable. Finally, plaintiff was able to cope with

common changes in a familiar work setting. Given these limitations, the administrative

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law judge found--based on a vocational expert's testimony--there were a significant

number of jobs in the national economy that Lawson could perform. 

Plaintiff argues that the decision of the Commissioner denying benefits should be

reversed because:

• The administrative law judge improperly evaluated the medical opinions by

giving little to weight to Lawson's treating therapist;

• The administrative law judge violated plaintiff's due process rights by

prohibiting her counsel to fully inquire into matters at issue; and,

• The administrative law judge failed to apply the grid rules properly.

Procedural History. Plaintiff Carolyn S. Lawson filed her application for

disability insurance benefits on February 27, 2009, alleging that she became disabled on

July 4, 2006, at age 51, by depression, panic attacks and high blood pressure. (R. 125,

130.) The application was denied initially and upon reconsideration. Plaintiff sought a

de novo hearing before an administrative law judge. On May 5, 2011, an administrative

law judge held a hearing at which plaintiff, represented by counsel, appeared and

testified. (R. 31.) A vocational expert also testified. On June 28, 2011, the

administrative law judge issued a decision finding that Lawson was not disabled within

the meaning of the Act. (R. 85.) On February 17, 2012, the Appeals Council denied

plaintiff’s request for review and adopted the administrative law judge’s decision as the

final decision of the Commissioner of Social Security. (R. 1-3.)

Age, Education, and Work Experience. Carolyn S. Lawson was born May 16,

1955. (R. 125.) She has a high school education. She also completed training in

cosmetology and cake decorating (R. 135.) She has worked as a bartender, debt

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collector, delivery driver, dispatcher, cashier, driving instructor, and as a stay at home

mom. She last worked August 5, 2008. (R. 130-31.) 

Plaintiff’s Testimony. Plaintiff testified that she still limped as a result of an

injury to her ankle. She had a tendency to sway. She could not walk in a straight line.

Her orthopedist told her that her bones had completely healed and that she needed to

wear good support shoes. 

Lawson testified that she did not know why she listed July 4, 2006 as the date she

became disabled. In 2008, she worked for Weltman, Weinberg & Reese, a law firm. She

worked for Harry & David in January of 2009. 

Plaintiff’s depression started in 1984 after her husband committed suicide. In

1987, her home burned down. When she was working at MRS, a collection agency, she

had panic attacks and started breaking out in hives from the anxiety. In March 2008, she

quit her job because of stress. After she stopped working, her stress stayed about the

same. She continued to have panic attacks. For instance, when she went to the grocery

store, she could only handle a few aisles at a time. She felt as through things were

closing in on her and she would break out into a sweat. She was unable to go grocery

shopping by herself. At times she had to leave the store before she was finished with

her shopping. She stopped engaging in a lot of activities because of her panic attacks.

For instance, she used to play euchre three or four times a week. 

Plaintiff lived with her husband. Her husband was bedridden since having a

stroke. A person from the senior citizen’s building cared for him at their house. Her

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neighbor cooked for them and ran the sweeper. Her son’s girlfriend had been helping

them. Lawson had difficulty doing these tasks because she could not stand for very long

due to osteoporosis in her tailbone and lower back. In 1992, she was in an accident in

which she was rear-ended by a truck.

Lawson reported difficulty concentrating. She could not take the stress of

working in collections. She had panic attacks when she was around other people. She

seldom had panic attacks when she was at home. She felt that her therapist was helping

her. 

Lawson testified that she was asked to leave Weltman because of the way she

spoke to her supervisor. (R. 34-54.) 

Medical Evidence of Record. The administrative law judge’s decision fairly sets

out the relevant medical evidence of record. This Report and Recommendation will

only briefly summarize that evidence. 

Donald A. DeShetler, M.D.. On July 23, 2004, plaintiff reported increased stress to

Dr. DeShelter, her primary care physician. Her son was in prison. Lawson was not

sleeping well. She felt on edge. She reported crying all the time and eating too much. (R.

216.) On February 14, 2005, plaintiff reported that her depression was well-controlled.

(R. 213.) On July 6, 2005, Dr. DeShetler described Lawson’s depression as pretty wellcontrolled. (R. 212.) On February 14, 2006, plaintiff complained of worsening

depression. She had gained weight and wanted to sleep all the time. She was emotional

and tearful. Plaintiff was not interested in therapy. (R. 211). On April 27, 2006, Dr.

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DeShetler adjusted her antidepressant medications due to complaints of diarrhea. (R.

209.) On September 18, 2006, plaintiff was seen for depression. Plaintiff was under a lot

of stress. Her son was in prison. Her husband was not very communicative. She had

problems with gambling. She had to fight for visitation rights to see her grandchild. Dr.

DeShetler indicated that she had significant depression. (R. 208.) On December 12, 2006,

plaintiff complained of having hives. She could not identify an environmental cause,

although she was under more stress at work. Dr. DeShetler believed that the hives were

related to her increased stress. (R. 207.) On January 16, 2007, plaintiff reported she

continued to have hives. (R. 206.) 

On March 5, 2008, Dr. Dr DeShetler noted that plaintiff had quit her job due to

stress. Although her bills were not being paid, she was taking her medications regularly

and felt better overall. (R. 203.) On February 19, 2009, plaintiff reported that her

depression was pretty well controlled and that she was happy with her medications.

She was described as being pretty active as a result of her move to a new apartment. (R.

202.) 

In November 16, 2010 letter, Dr. DeShetler noted that plaintiff’s ability to work

was limited by her depression. Despite medication, Lawson had significant depression

that caused her great difficulty in the workplace. Lawson had difficulty dealing with

pressure and criticism from her employer. She exhibited irritability, anger and

frustration that escalated when exposed to ordinary work stress. Her symptoms

improved after she stopped working. (R. 346.) 

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Dr. DeShetler opined that plaintiff could stand for 15 minutes at one time for two

hours total. She could walk for 15 minutes at a time for two hours total. She could sit for

six hours total. Dr. DeShetler opined that plaintiff could lift up to ten pounds. She could

occasionally lift. She could not squat or climb ladders. Dr. DeShetler believed that

plaintiff’s condition would likely deteriorate if she were placed under stress. (R. 347-

348.) 

Dr. DeShetler also completed a questionnaire concerning plaintiff’s mental

residual functional capacity. Dr. DeShetler opined that plaintiff was extremely limited

in her ability to accept instruction from or respond appropriately to criticism from

supervisors. She was markedly impaired in her ability to perform and complete work

tasks in a normal work day or work week at a consistent pace. She was moderately

limited in her abilities to work in cooperation with or in proximity to others without

being distracted by them or to maintain attention and concentration for more than brief

periods of time. She was extremely limited in her ability to perform at production levels

expected by most employers. Her abilities to respond appropriately to changes in the

work setting; to behave predictably, reliably and in an emotionally stable manner; and

to tolerate customary work pressures were extremely limited. She was moderately

limited in her ability to remember locations, workday procedures and instructions. Dr.

DeShetler believed that plaintiff’s condition would deteriorate if she were placed under

the stress of a job. (R. 349-51.)

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In January 7, 2010, Dr. DeShetler noted that plaintiff was tearful. She was going

to explore counseling. He increased her dose of Welbutrin. (R. 377.) On November 17,

2010, Dr. DeShetler changed plaintiff’s antidepressant. After completing plaintiff’s

disability forms, he concluded that her symptoms of depression and agitation might be

better characterized as hypomania or bipolar disorder 2. He concluded that if the

change in antidepressant was not successful, he would consider prescribing a mood

stabilizer. (R. 370.) 

Floyd Sours, M.A. On April 8, 2009, Mr. Sours, a consultative examiner,

completed an evaluation at the request of the Bureau of Disability Determination.

Plaintiff reported a history of panic attacks and depression. Her family doctor

prescribed her medication, but she had no other mental health treatment. On mental

status examination, plaintiff exhibited a minimal range of emotion. She reported

experiencing depression everyday for the past two weeks. She reported social

withdrawal, poor concentration, loss of interest, fatigue, and irritability. She slept too

much. She had no history of suicide attempts, but she has had suicidal ideation. He

appetite was adequate to poor. Her anxiety was manageable when she was in her

apartment. She had anxiety attacks when she was away from home. During an attack,

she experienced rapid heartbeat, sweats, nausea, shortness of breath, and hot flashes. 

Lawson was oriented in all four spheres. Her memory functioning was intact.

Her cognitive functioning was in at least the low average category. Her insight and

judgment were at least marginal. On a typical day, Lawson woke up at noon, took care

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of her personal hygiene and drank coffee. She only got dressed if she was going out.

Sometimes she did housework or the dishes. In the evening she watched television or

played cards with her husband. She had no hobbies. 

Mr. Sours diagnosed depressive disorder, not otherwise specified and panic

disorder with agoraphobia. He assigned a Global Assessment of Functioning (“GAF”)

score of 61. Mr. Sours opined that plaintiff had no impairment in her abilities to

understand or follow instructions. Lawson’s ability to attend to tasks was mildly

impaired. She was mildly impaired in her ability to withstand the stress and pressures

associated with day-to-day work activities. (R. 194-97.)

Kevin Edwards, Ph.D. On May 4, 2009, Dr. Edwards, a state agency reviewing

psychologist, completed a psychiatric review technique. Dr. Edwards noted the

presence of depressive symptoms and an anxiety disorder. Dr. Edwards concluded that

plaintiff had mild restriction of activities of daily living, mild difficulties in maintaining

social functioning, and mild difficulties in maintaining concentration, persistence or

pace. She had no episodes of decompensation. Dr. Edwards concluded that plaintiff’s

statements concerning her mental health were not consistent with the evidence in the

file and that her credibility was limited. (R. 236-49.) 

R. Kevin Goeke, Ph.D. On July 16, 2009, Dr. Goeke, a state agency reviewing

psychologist, completed a psychiatric review technique. Dr. Goeke noted that plaintiff

was diagnosed with depression, not otherwise specified, and panic disorder without

agoraphobia. He noted that plaintiff exhibited moderate restriction of daily activities,

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moderate difficulties in maintaining social functioning, and moderate difficulties in

maintaining concentration, persistence or pace. She had no episodes of decompensation.

(R. 251-64.)

Dr. Goeke also completed a mental residual functional capacity assessment. Dr.

Goeke opined that plaintiff was moderately limited in her ability to understand and

remember detailed instructions. With respect to sustained concentration and

persistence, plaintiff was moderately limited in her abilities to carry out detailed

instructions; to maintain attention and concentration for extended periods; to perform

activities within a schedule, maintain regular attendance, and be punctual within

customary tolerances; and to complete a normal workday and workweek without

interruptions from psychologically based symptoms and to perform at a consistent pace

without an unreasonable number and length of rest periods. With respect to social

interaction, plaintiff was moderately limited in her abilities to interact appropriately

with the general public and to get along with coworkers or peers without distracting

them or exhibiting behavioral extremes. Dr. Goeke opined that plaintiff was moderately

impaired in her ability to respond appropriately to changes in the work setting. 

Dr. Goeke noted that plaintiff was prescribed psychotropic medication by her

primary care physician, but she had not history of psychiatric treatment. Dr. Goeke

opined that plaintiff’s cognitive functioning was sufficient to understand, remember,

and carry out simple and some multi-step tasks. She could concentrate on simple tasks

and make basic work-related decisions. She could also sustain superficial or occasional

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interactions with others. Her ability to interact frequently with the public was limited

by her depression and anxiety. She should not be required to meet strict production

quotas or cope with a fast-paced environment. (R. 265-68.) 

On February 16, 2010, plaintiff underwent ankle surgery. (R. 272-309.) 

J. Scott Craig, M.S., PCC-S. Mr. Craig, a professional clinical counselor, saw

Lawson nine times from September 28, 2010 through March 7, 2011. Lawson either

missed or canceled five appointments. Mr. Craig indicated that the lack of consistency

in attending appointments was a barrier to a more effective assessment and treatment.

Lawson’s presenting problem was depression, but Mr. Craig ruled out major depressive

disorder. Testing revealed that plaintiff had moderate depression, but it was not severe.

She had no diagnosable anxiety disorder despite symptoms of agoraphobia and panic

attacks. 

Mr. Craig noted that Lawson’s prominent clinical feature was a pervasive pattern

of distrust and suspiciousness of others. She assumed others would exploit, harm, or

deceive her. She was not able to offer evidence for these beliefs. Mr. Craig indicated that

plaintiff met the criteria for paranoid personality disorder and that it would be difficult

for her to maintain employment. Her ability to manage interpersonal relationships was

greatly impaired. Mr. Craig diagnosed depressive disorder, not otherwise specified, and

paranoid personality disorder. Mr. Craig assigned a GAF score of 50. (R. 352-53.)

Mr. Craig completed a questionnaire as to plaintiff’s mental residual functional

capacity. Mr. Craig opined that plaintiff was markedly limited in her abilities to accept

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instruction from or respond appropriately to criticism from supervisors; to respond

appropriately to co-workers or peers; and to relate to the general public and maintain

socially appropriate behavior. She was moderately limited in her ability to work in

coordination with or in proximity to others without distracting them or exhibiting

behavioral extremes. Lawson was moderately limited in her abilities to process

subjective information accurately and to use appropriate judgment and to perform at

production levels expected by most employers. With respect to adaption, plaintiff was

moderately limited in her abilities to respond appropriately to changes in the work

setting and to tolerate customary work pressures. She was markedly limited in her

ability to behave predictably, reliably and in an emotionally stable manner. Mr. Craig

believed that stress could increase her suspiciousness and hostility. (R. 354-56.)

Administrative Law Judge’s Findings. 

1. The claimant meets the insured status requirements of the Social

Security Act through December 31, 2013.

2. The claimant has not engaged in substantial gainful activity since

August 6, 2008, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: depression and

anxiety (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of

impairments that meets or medically equals one of the listed

impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR

404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned

finds that the claimant has the residual functional capacity to

perform a full range of work at all exertional levels but with the

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following nonexertional limitations: Mentally, the claimant is able

to understand, remember, and carry out simple, and some multi

step tasks, concentrate on simple tasks, and make basic work

related decisions in a work setting that does not have strict

production quotas, and is not fast paced. The claimant could

sustain superficial or occasional interactions with others. A nonpublic work setting with minimal social demands would be

preferable. The claimant can cope with common changes in a

familiar work setting.

6. The claimant is unable to perform any past relevant work (20 CFR

404.1565).

7. The claimant was born on May 16, 1955 and was 53 years old,

which is defined as an individual closely approaching advanced

age, on the alleged disability onset date (20 CFR 404.1563).

8. The claimant has at least a high school education and is able to

communicate in English (20 CFR 404.1564).

9. Transferability of job skills is not material to the determination of

disability because using the Medical-Vocational Rules as a

framework supports a finding that the claimant is “not disabled,”

whether or not the claimant has transferable job skills (See SSR 82-

41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Considering the claimant’s age, education, work experience, and

residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform (20

CFR 404.1569 and 404.1569(a)).

11. The claimant has not been under a disability, as defined in the

Social Security Act, from August 6, 2008, through the date of this

decision (20 CFR 404.1520(g)).

(R. 78-85.) 

Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he

findings of the Commissioner as to any fact, if supported by substantial evidence,

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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 (1950)); Wages v.

Secretary of Health and Human Services, 755 F.2d 495, 497 (6th Cir. 1985).

Plaintiff’s Arguments. Plaintiff argues that the decision of the

Commissioner denying benefits should be reversed because:

• The administrative law judge improperly evaluated the medical

opinions by giving little to weight to plaintiff's treating sources. Plaintiff

argues that the administrative law judge erred by failing to accord

weight to plaintiff’s treating therapist and by giving greater weight to

the state agency reviewing psychologists. Plaintiff maintains that the

administrative law judge failed to give good reasons for rejecting the

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opinions of two treating sources in favor of the state agency reviewers.

Plaintiff argues that “other sources” provide many of the evaluation

and treatment functions handled by “acceptable medical sources” and

that their opinions must be evaluated on issues concerning impairment

severity and functional effects. Opinions from “other sources” can be

accorded great weight. Plaintiff maintains that the administrative law

judge failed to address the opinion of Mr. Craig because he was not an

acceptable medical source. Mr. Craig is a supervising professional

clinical counsel. He had an ongoing treatment relationship with

plaintiff. His opinion was supported by a diagnosis obtained by using

observed psychological signs, objective scales, and the American

Psychiatric Association standards. His opinion was consistent with the

opinions of Dr. DeShetler and Dr. Goeke. As a result, Mr. Craig’s

opinion was entitled to significant weight. Plaintiff argues that the

administrative law judge misinterpreted the regulations and record in

concluding that Mr. Craig was entitled to little weight. Plaintiff

maintains that the administrative law judge failed to mention Social

Security Ruling 06-3p or analyze Mr. Craig’s opinion in accordance

with 20 C.F.R. § 404.1527(d). Plaintiff further argues that the

administrative law judge violated Social Security Ruling 96-6p by

giving greater weight to the state agency reviewing consultants.

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Plaintiff maintains that Dr. Goeke’s opinion was not entitled to great

weight because approximately 120 pages of additional medical records

were submitted after his review, including 40 pages of treatment notes

from Dr. DeShetler and Mr. Craig. After further treatment, Dr.

DeShetler concluded that plaintiff was more severely impaired than he

first believed and changed his diagnosis from depression to bipolar

disorder type 2. Plaintiff further argues that even if plaintiff’s treating

sources were not entitled to controlling weight, the opinions were still

entitled to deference and should be weighed according to the factors ser

forth in 20 C.F.R. § 404.1527(d). An administrative law judge is required

to give specific, good reasons fro rejecting the opinion of a treating

physician, and a broad assertion that the opinion is not supported by

the record is inadequate. 

• The administrative law judge violated plaintiff's due process rights by

prohibiting her counsel to fully inquire into matters at issue. Plaintiff

maintains that a claimant is entitled to conduct questioning as needed

to inquire fully into the matters at issue, and an administrative law

judge should provide broad latitude in counsel’s ability to question

witnesses. Plaintiff argues that it was improper for the administrative

law judge to cut off her attorney when he was questioning her about

how her last job ended. Plaintiff maintains that the administrative law

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judge made erroneous findings concerning alleged inconsistencies in

Lawson’s testimony and that these alleged inconsistencies would have

been resolved had her attorney been permitted to continue his

questioning. Lawson’s counsel was also not permitted to fully question

the vocational expert. 

• The administrative law judge failed to apply the grid rules properly.

Plaintiff argues that individuals of advanced age (55 or older) who are

limited to light work, cannot perform their past work, and who do not

have skills transferable to a significant range of semi-skilled or skilled

work, are to be found disabled. If a claimant is within a few months of

reaching an older age category and using the older age category would

result in a decision that the claimant is disabled, the older age category

will be considered after evaluating all of the factors in the case. Lawson

turned 55 on May 16, 2010. At the time of the hearing, Lawson was less

than two weeks from turning 56. As a result, Lawson was of advanced

age. The administrative law judge incorrectly applied the grid rules for

an individual approaching advanced age. Plaintiff maintains that under

grid rule 202.00(c), a person of advanced age with only a high school

education that is limited to light work and has no transferable skills is

disabled. The administrative law judge elicited no testimony on the

issue of transferability.

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Analysis. A treating doctor's opinion1

 on the issue of disability is

entitled to greater weight than that of a physician who has examined plaintiff on

only one occasion or who has merely conducted a paper review of the medi-cal

evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d 53, 55

(6th Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048,

1054 (6th Cir. 1983). The Commissioner’s regulations explain that Social Security

generally gives more weight to a treating doctors’ opinions because treators are

usually “most able to provide a detailed, longitudinal picture” of the claimant’s

medical impairments. 20 C.F.R. § 404.1527(d)(2). When the treating doctor’s

opinion “is well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other substantial evidence

in your case record” the Commissioner “will give it controlling weight. “ Id.

1

The Commissioner’s regulations define “medical opinions” as “statements from

physicians and psychologists or other acceptable medical sources that reflect judgments

about the nature and severity of your impairment(s), including your symptoms,

diagnosis and prognosis, what you can still do despite impairment(s), and your

physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often

express more than one medical opinion, including “at least one diagnosis, a prognosis

and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at

*2. When an administrative law judge fails to give a good reason for rejecting a treator’s

medical opinion, remand is required unless the failure does not ultimately affect the

decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not

committed where the treator’s opinion “is patently deficient that the Commissioner

could not possibly credit it;” the administrative law judge’s findings credit the treator’s

opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.

§ 1527(d)(2) but does not technically meet all its requirements. Id. See, Grayheart v.

Commissioner of Social Security, F.3d , , 2013 WL 896255, *14 (6th Cir.

March 12, 2013).

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Even though a claimant's treating physician may be expected to have a

greater insight into his patient's condition than a one-time examining physician

or a medical adviser, Congress specifically amended the Social Security Act in

1967 to provide that to be disabling an impairment must be "medically

determinable." 42 U.S.C. §423(d)(1)(A). Consequently, a treating doctor's opinion

does not bind the Commissioner when it is not supported by detailed clinical and

diagnostic test evidence. Warner v. Commissioner of Social Security, 375 F.3d 387,

390 (6th Cir. 2004); Varley v. Secretary of Health and Human Services, 820 F.2d 777,

779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir. 1983); Halsey v.

Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v. Califano, 558 F.2d

253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d), 404.1526(b), and

404.1527(a)(1)2

.

The Commissioner's regulations provide that she will generally "give

more weight to the opinion of a source who has examined you than to the

opinion of a source who has not examined you." 20 C.F.R. § 404.1527(d)(1). 

When a treating source's opinion "is well-supported by medically acceptable

2

Section 404.157(a)(1) provides:

You can only be found disabled if you are unable to do any substantial

gainful activity by reason of any medically determinable physical or

mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than 12

months. See §404.1505. Your impairment must result from anatomical,

physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. See

§404.1508.

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clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in your case record, we will give it controlling

weight." 20 C.F.R. § 404.1527(d)(2). 

When the treating source’s opinion is well-supported by objective medical

evidence and is not inconsistent with other substantial evidence, that ends the

analysis. 20 C.F.R. § 404.1527(c)(2); Social Security Ruling 96-2p3

. Grayheart v.

Commissioner of Social Security, 710 F.3d 365, 375 (6th Cir. 2013). The

Commissioner’s regulations require decision-makers “to provide ‘good reasons’

for discounting the weight given to a treating-source opinion. [20 C.F.R.] §

404.1527(c)(2).”4 Grayheart, 710 F.3d at 375.

The Commissioner has issued a policy statement, Social Security Ruling

92-6p, to guide decision-makers’ assessment of treating-source opinion. It

emphasizes:

1. A case cannot be decided in reliance on a medical opinion

without some reasonable support for the opinion.

2. Controlling weight may be given only in appropriate

circumstances to medical opinions, i.e., opinions on the

3

Social Security Ruling 96-2p provides, in relevant part:

. . .

6. If a treating source’s medical opinion is well-supported and not

inconsistent with the other substantial evidence in the case record, it

must be given controlling weight; i.e., it must be adopted.

4

Section 404.1527(c)(2) provides, in relevant part: "We will always give good reasons in

our notice of determination or decision for the weight we give your treating source's opinion."

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issue(s) of the nature and severity of an individual’s

impairment(s), from treating sources.

3. Controlling weight may not be given to a treating source’s

medical opinion unless the opinion is well-supported by

medically acceptable clinical and laboratory diagnostic

techniques.

4. Even if a treating source’s medical opinion is well-supported,

controlling weight may not be given to the opinion unless it

also is “not inconsistent” with the other substantial evidence

in the case record.

5. The judgment whether a treating source’s medical opinion is

well-supported and not inconsistent with the other substantial

evidence in the case record requires an understanding of the

clinical signs and laboratory findings and what they signify.

6. If a treating source’s medical opinion is well-supported and

not inconsistent with the other substantial evidence in the case

record, it must be given controlling weight; i.e., it must be

adopted.

7. A finding that a treating source’s medical opinion is not

entitled to controlling weight does not mean that the opinion

is rejected. It may still be entitled to deference and be adopted

by the adjudicator.

The focus at this step is solely on whether the treating-source opinion is wellsupported by objective medical evidence and not inconsistent with other

substantial evidence. In making this determination the factors for assessing the

weight to give to the medical opinions of any medical source, 20 C.F.R. §

404.1527(c), are not used. These come into play only when there are good reasons

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not to give the treating-source opinion controlling weight. 20 C.F.R. §

404.1527(c)(2)5; Grayheart, above,710 F.3d at 376, 2013 WL 896255, *10.

If there are good reasons to find that the treating-source opinion is not

controlling, then the decision-maker turns to evaluating all the medical source

evidence and determining what weight to assign to each source, including the

treating sources6

. The Commissioner’s regulations require the decision-maker to

considers the length of the relationship and frequency of examination; nature

5

Section 404.1527(c)(2) provides, in relevant part:

 If we find that a treating source's opinion on the issue(s) of the nature and

severity of your impairment(s) is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with

the other substantial evidence in your case record, we will give it

controlling weight. When we do not give the treating source's opinion

controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and

(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through

(c)(6) of this section in determining the weight to give the opinion

(Emphasis added.)

6

Even when the treating source-opinion is not controlling, it may carry sufficient

weight to be adopted by the Commissioner:

Adjudicators must remember that a finding that a treating source medical

opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial

evidence in the case record means only that the opinion is not entitled to

"controlling weight," not that the opinion should be rejected. Treating

source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In

many cases, a treating source's medical opinion will be entitled to the

greatest weight and should be adopted, even if it does not meet the test for

controlling weight.

SSR 96-2p.

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and extent of the treatment relationship; how well-supported the opinion is by

medical signs and laboratory findings; its consistency with the record as a whole;

the treating source's specialization; the source's familiarity with the Social

Security program and understanding of its evidentiary requirements; and the

extent to which the source is familiar with other information in the case record

relevant to decision. 20 C.F.R. § 404.1527(c)(1) through (6). Subject to these

guidelines, the Commissioner is the one responsible for determining whether a

claimant is disabled. 20 C.F.R. § 404.1527(e).

The case law is consistent with the principals set out in Social Security

Ruling 96-2p. A broad conclusory statement of a treating physician that his

patient is disabled is not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir.

1984). For the treating physician's opinion to have controlling weight it must

have "sufficient data to support the diagnosis." Kirk v. Secretary of Health and

Human Services, 667 F.2d 524, 536, 538 (6th Cir. 1981); Harris v. Heckler, 756 F.2d

431, 435 (6th Cir. 1985). The Commissioner may reject the treating doctor's

opinions when "good reasons are identified for not accepting them." Hall v.

Bowen, 837 F.2d 272, 276 (6th Cir. 1988); Wilson v. Commissioner of Social Security,

378 F.3d 541, 544 (6th Cir. 2004). Even when the Commissioner determines not to

give a treartor’s opinion controlling weight, the decision-maker must evaluate

the treator’s opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). 

Wilson, 378 F.3d at 544; Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There

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remains a rebuttable presumption that the treating physician's opinion "is

entitled to great deference." Rogers v. Commissioner of Social Security, 486 F.3d 234,

242 (6th Cir. 2007); Hensley, above. The Commissioner makes the final decision

on the ultimate issue of disability. Warner v. Commissioner of Social Security, 375

F.3d at 390; Walker v. Secretary of Health & Human Services, 980 F.2d 1066, 1070

(6th Cir. 1992); Duncan v. Secretary of Health and Human Services, 801 F.2d 847, 855

(6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d

954, 958 n.1 (11th Cir. 1982). 

Treating Doctor: Discussion. The administrative law judge stated:

Little weight is given to the opinion of the treating physician, Dr.

DeShetler (Exhibit 12F), with regards to claimant’s mental impairments as

Dr. DeShetler was treated the claimant for her physical complaints, and

responded to the claimant’s complaints of mental impairments and

problems with medications while she was still working. Furthermore, it is

noted that Dr. DeShetler is not a trained specialist in the field of mental

health. He is neither a psychologist nor a psychiatrist. Therefore, his

opinion with regards to the diagnosis of mental impairments and the

severity and limitations imposed by the mental impairments are given

little weight.

(R. 83.) He also gave little weight to the opinions of Lawson's mental health

counselor because they appeared to be based primarily on her subjective

complaints and were "inconsistent with and unsupported by the objective

medical evidence . . . ." Id. The administrative law judge read the counselor's

treatment notes to state that Lawson was "basically back to normal with

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treatment, with her depression having quickly resolved after treatment, and after

a period of time, her anxiety as well (Exhibit 13F)." Id.

To be entitled to controlling weight, the opinion of a treating physician

must be well-supported by medically acceptable clinical and laboratory

diagnostic techniques and not inconsistent with the other substantial evidence in

the record. Here, the administrative law judge failed to provide “good reasons”

regarding either prong of the test for controlling weight. Instead, he

administrative law judge skipped this two prong test altogether.

Although plaintiff was treated by Dr. DeShetler for physical complaints,

he also treated her for depression and was the sole source of mental health

treatment for a significant time. Dr. DeShetler’s treatment notes document his

objective findings concerning plaintiff’s symptoms of depression. He noted

Lawson’s report of increased stress, poor sleep, complaints of edginess, crying

episodes, and increased appetite. (R. 216.) On February 14, 2006, Lawson

complained of worsening depression. Her symptoms included weight gain,

excessive sleep, and tearfulness.(R. 211). Dr. DeShetler asked her if she would

seek counseling. Additionally, he made several adjustments to her

antidepressant medications. Dr. DeShetler noted in his treatment notes when

plaintiff under a lot of stress and indicated that she suffered from significant

depression. (R. 208.) Dr. DeShetler believed that plaintiff’s hives were related to

her increased stress. (R. 207.) In his November 16, 2010 letter, Dr. DeShetler

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noted that Lawson exhibited irritability, anger and frustration that escalated

when exposed to ordinary work stress, although her symptoms improved after

she stopped working. (R. 346.) In January 2010, Dr. DeShetler considered

whether plaintiff’s symptoms were accurately characterized as bipolar disorder 2

rather than depression. (R. 370.) 

The administrative law judge provided no analysis of Dr. DeShetler’s

objective findings, nor did he identify what conflicting substantial evidence he

relied on to reject Dr. DeShetler’s opinion. Because the administrative law judge

failed to provide good reasons for rejecting the opinion of Dr. DeShetler, I

RECOMMEND that this case be REMANDED.

Plaintiff also argues that the administrative law judge failed to properly

evaluate the opinion of Mr. Craig, plaintiff’s counsel. A counselor or therapist

working for a mental health care provider is not an acceptable medical source. 

20 C.F.R. § 404.1513(a). Nonetheless, the Commissioner will consider evidence

from other sources “to show the severity of your impairment(s) and how it

affects your ability to work.” 20 C.F.R. § 404.1513(d). Social Security Ruling 06-

03p, 2006 WL 2329939, provides that the same factors used to evaluate the

opinions of “acceptable medical sources,” see 20 C.F.R. §§ 404.1427(d) and

416.927(d), “can be applied to opinion evidence from ‘other sources.’” See,

Grayheart, 710 F.3d at 378-79. Those factors include: 

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• How long the source has known and how frequently the source

has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to

support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to

the individual's impairment(s), and

• Any other factors that tend to support or refute the opinion.

SSR 06-03p. These factors “represent basic principles that apply to the

consideration of all opinions from medical sources . . . who have seen the

individual in their professional capacity.” Id.

With respect to Mr. Craig, the administrative law judge stated:

The opinions provided by the claimant’s mental health counselor (Exhibits

14F, 16F) with regards to the claimant’s mental impairments, their

severity, and the limitations they impose are given little weight because

they appear to be based primarily on the claimant’s subjective complaints,

and they are inconsistent with and unsupported by the objective medical

evidence of record, to include the counselor’s own letter of explanation

which said, in effect, that the claimant is basically back to normal with

treatment, with her depression having quickly resolved shortly after

treatment, and after a period of time, and her anxiety as well (Exhibit 13F).

Additionally, these opinions are by the claimant’s counselor, are by an

individual who is not an “accepted medical treatment source,” and do not

compare to the weight of a medical opinion.

(R. 83.) The administrative law judge failed to evaluate Mr. Craig’s opinion

according to the factors in SSR 06-03p. Additionally, the administrative law judge

description of Mr. Craig’s opinion is not a fair characterization of his opinion.

Mr. Craig noted that plaintiff’s depression and anxiety were moderate. Although

she did not meet the diagnostic criteria for either major depressive disorder or

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generalized anxiety disorder, Mr. Craig did note the presence of agoraphobia

and that her symptoms of depression and anxiety were clinically significant.

Additionally, he diagnosed plaintiff with depressive disorder, not otherwise

specified. The administrative law judge, however, completely ignored Mr.

Craig’s other findings:

Ms. Lawson’s most prominent clinical feature is a pervasive pattern of

distrust and suspiciousness of others, When asked about this, she agrees

that she assumes others will exploit, harm, or deceive her, but she is not

able to offer much in the way of credible evidence for these beliefs. She

meets the criteria for Paranoid Personality Disorder which the DSM-IV

describes as follows, “Individuals with Paranoid Personality Disorder are

generally difficult to get along with and often have problems with close

relationships. Their excessive suspiciousness and hostility may be

expressed on overt argumentativeness, in recurrent complaining, or by

quiet, apparently hostile aloofness. In general, the prognosis is not

promising for the treatment of the disorder, and, in my opinion,

employment has been and would be very difficult for Carolyn. There are

few, if any, jobs that did not require at least some interpersonal contact,

and her ability to manage interpersonal relationships is greatly impaired.

(R. 352.) 

Due Process. Plaintiff argues that her counsel was prohibiting from eliciting

further testimony from her and the vocational expert. The transcript demonstrates that

the administrative law judge rather abruptly terminated counsel’s examination of the

witnesses. Counsel, however, failed to note any objection on the record. As a result, it is

simply not clear whether or not the administrative law judge would have permitted

additional questioning by plaintiff’s counsel. Absent a clear indication in the record, I

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will not presume that the administrative law judge would have refused to permit

counsel to question the witnesses further.

Application of the Medical-Vocational Guidelines. Plaintiff argues that she

should have been found disabled under grid rule 202.00(c) as a person with only a high

education, limited to light work, and with no transferrable skills. Plaintiff, however,

was not limited to light work. The administrative law judge concluded that plaintiff had

the residual functional capacity to perform a full range of work at all exertional levels.

The administrative law judge formulated a residual functional capacity with only

nonexertional limitations. The vocational expert’s identification of jobs in the light

exertion category was not based on a restriction to light work.

In her reply, plaintiff further argues that the administrative law judge failed to

comply with Social Securing Ruling 85-15, which requires consideration of a claimant’s

vocational factors or age, education, and work experience in addition to her residual

functional capacity when evaluating solely nonexertional impairments. Under SSR 85-

15, the first issue is “how much the person’s occupational base–the entire exertional

span from sedentary work through heavy (or very heavy work)–is reduced by the

effects of the nonexertional impairment(s).” The reduction will vary depending on the

nature and extent of the individual’s impairments. The second is “whether the person

can be expected to make a vocational adjustment considering the interaction of his or

her remaining occupational base with his or her age, education, and work experience.”

Here, the administrative law judge failed to considered the impact of plaintiff’s age,

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education and work experience in determining whether jobs exist in significant

numbers in the national economy that Lawson could perform. On remand, the

administrative law judge should consider plaintiff’s vocational factors in accordance

with SSR 85-15.

From a review of the record as a whole, I RECOMMEND that this case be

REMANDED. On remand, the administrative law judge should determine if there are

good reasons to find that Dr. DeShetler’s opinion is not controlling, and if it is not, then

the administrative law judge should evaluate all the medical source evidence and

determine what weight to assign to each source, including the treating sources.

Grayheart, 710 F.3d at 375-76. The administrative law judge should also evaluate Mr.

Craig’s opinion in accordance with SSR 06-03p and consider plaintiff’s vocational

factors in accordance with SSR 85-15.

If any party objects to this Report and Recommendation, that party may, within

fourteen (14) days, file and serve on all parties a motion for reconsideration by the

Court, 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)(B); Rule 72(b),

Fed. R. Civ. P.

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 waiver of the right to appeal the judgment of the District Court. Thomas v.

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Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See

also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989). 

 s/Mark R. Abel 

United States Magistrate Judge 

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