IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Nicholas Baehr, :

Plaintiff : Civil Action 2:11-cv-01076

v. : Judge Sargus

Michael J. Astrue, : Magistrate Judge Abel

Commissioner of Social Security,

Defendant :

REPORT AND RECOMMENDATION

Plaintiff Nicholas Baehr brings this action under 42 U.S.C. §§405(g) and

1383(c)(3) for review of a final decision of the Commissioner of Social Security denying

his application for Disability Insurance Benefits and Supplemental Security Income

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 alleges that he is disabled due to depression and

anxiety. The administrative law judge concluded that plaintiff could perform his past

relevant work as a stocker and a landscaping grounds maintenance worker. 

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

reversed because:

• The administrative law judge failed to properly consider all medical source

opinions pursuant to SSR 96-2p, 20 C.F.R. §§ 404.1527(d) and 416.927(d); and,

• The administrative law judge failed to properly assess the plaintiff's credibility

in evaluating his symptoms and determining the functionally limiting effects

of his impairments. 

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Procedural History. Plaintiff Nicholas Baehr filed his application for disability

insurance benefits on May 18, 2009, alleging that he became disabled on May 15, 2008,

at age 25, by depression, severe anxiety, panic attacks, agoraphobia, and stunted

emotional development. (R. 116, 156.) The application was denied initially and upon

reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. 

On April 14, 2011, an administrative law judge held a hearing at which plaintiff,

represented by counsel, appeared and testified. (R. 22.) A vocational expert also

testified. On May 27, 2011, the administrative law judge issued a decision finding that 

Baehr was not disabled within the meaning of the Act. (R. 17.) On October 31, 2011, 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. Nicholas Baehr was born January 16,

1983. (R. 116.) He completed his GED in 2001. (R. 163.) He has worked as a crew

leader, a customer service representative, a damage prevention specialist, a laborer, a

maintenance worker, a package handler, and a stocker. He last worked April 25, 2009. 

(R. 156-57.) His employment between 1996 and 2009 was sporadic. (R. 124 and 165.)

Plaintiff’s Testimony. Plaintiff testified that he saw his psychiatrist, Dr,

Williams, every two weeks. He was prescribed Subutex for opiate dependence,

Klonopin for anxiety, and Zoloft for depression.

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Baehr testified that he 6'1" and weighed around 200 pounds. His weight had

increased over the past two years due to laying around and not doing anything. He had

no motivation to do anything. Although he had a driver’s license, he did not drive

often. He received his GED and attended college, but he did not complete his degree.

He had no income and was supported by his father. His last attempt at working was in

April 2009. He only lasted a couple of days. His depression and anxiety prevented him

from working.

Baehr testified that he began using opiates when he was 18. He was incarcerated

for 11 months in 2004-2005. After he was released from prison, he was clean for a few

months before he starting using again. He has not used heroin since 2008. 

He reported that he had difficulty sleeping. During a typical day he played

music, played video games, or watched television. He was a DJ and mixed records, but

it required a lot of concentration and could only do it for about 20 minutes. He played

an online roleplaying game with other people on their schedule. He typically played

from around 8-9:00 p.m. until 1-2:00 a.m. He did not do well in public, with face-to-face

interaction, but he enjoyed interacting with people on the computer. 

He watched a little bit of everything on television, such as the Discovery

Channel, the History Channel, TNT, and sometimes Comedy Central if his dad was

around to watch with him. 

He and his dad attempted to fix the car if it needed work. He also tried to

exercise with his brother. He could take care of his own hygiene, although he only took

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a shower every few days due to a lack of motivation. He has never lived

independently. Prior to living with his father, he lived with his mother. (R. 26-42.)

Medical Evidence of Record. 

Sudhir Dubey, PsyD. On July 20, 2009, Dr. Dubey performed a disability

assessment at the request of Bureau of Disability Determination. For the past three

years, he had been receiving psychiatric treatment from his primary care doctor. When

he was 15 years old, he was treated for depression and for “acting out.” He was

currently prescribed Zoloft, Subutex, and Vistaril. He abused heroin for four years, but

he quit three years ago. He was incarcerated for 11 months for drug possession. Baehr

last worked in April 2009 doing construction, but he only lasted three days. 

On mental status examination, his affect was appropriate and his emotional

reactions were within normal limits. He reported that he was feeling okay and that his

mood in general was okay. He denied mood swings. He denied crying or symptoms of

depression. He reported no appetite or weight changes. He had difficulty falling asleep.

He slept a total of eight to twelve hours on a daily basis. He denied feelings of guilt,

hopelessness, or helplessness. His energy level had decreased over the past two years.

He denied anhedonia. He denied suicidal or homicidal ideation. 

Baehr was oriented in all four spheres. He was alert and responsive. He reported

difficulty concentrating. He denied difficulty with his memory. He was able to recall six

digits forward and four numbers backwards. He was able to recall three objects after a

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five minute delay. Serial sevens were within normal limits. His ability to perform

simple calculations was average. 

Baehr reported that his daily activities included cooking, cleaning, doing

laundry, and watching television. He reported socially interacting with people on a

regular basis. He did not have any recreational activities or hobbies. 

Dr. Dubey diagnosed depressive disorder, not otherwise specified, and

hallucinogenic abuse in remission. (R. 256-62.)

Marva Dawkins, Ph.D. On August 20, 2009, Dr. Dawkins, a psychologist,

reviewed the evidence of record and completed a psychiatric review technique and

mental residual functional capacity assessment. She noted diagnoses of depressive

disorder, not otherwise specified, and hallucinogenic abuse in remission. Dr. Dawkins

opined that Baehr had mild restriction of activities of daily living, moderate difficulties

in maintaining social functioning, and moderate difficulties in maintaining

concentration, persistence or pace. He had no episodes of decompensation. 

With respect to understanding and memory, plaintiff was not significantly

limited. With respect to sustained concentration and persistence, plaintiff was

moderately limited in his ability 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, Baehr was moderately limited in his ability to get along with coworkers or

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peers without distracting them or exhibiting behavioral extremes. Plaintiff had no

significant limitations with respect to adaptation. (R. 263-80.)

Robert Polite, D.O. On December 8, 2009, Dr. Polite, a general practitioner, 

reported Bureau of Disability Determination that he began treating plaintiff Baehr in

October 2007. (R. 282-84.) He said that Baehr experienced decreased heart rate,

shortness of breath, chest discomfort, excessive sweating, feelings of worthlessness,

sadness and forgetfulness. Baehr exhibited lack of motivation, decreased concentration,

impaired long-term memory and periods of confusion. He was not able to concentrate

or focus without becoming frustrated. He experienced difficulty breathing when he was

in a large crowd. Approximately, three to four days per week, plaintiff did not shower,

get out of bed or complete self-care. With increased social interaction, plaintiff suffered

a loss in concentration and increased anxiety. Baehr experienced anxiety on a daily basis

and required medication to control his symptoms. Stress resulted in increased anxiety.

(R. 283.)

Plaintiff’s anxiety has continued to worsen since the age of 15. His medications

would not allow for increased anti-anxiety medications. Plaintiff tended to become

overly stressed, and he could not tolerate routine stress or workplace stress. Plaintiff

was diagnosed with depression, anxiety, and opiate dependence. (R. 284.)

Dr. Polite’s treatment notes for October 19, 2007 state that Baehr had full affect

and a euthymic mood. His memory and concentration were good. He had logical

thought processes. His thought content was clear. He had good insight and judgment.

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He was described as doing well on Suboxone and Klonopin. The diagnosis was opiate

addiction. (R. 286.) Baehr continued to have unremarkable findings on mental status

examination from December 2009 through September 2010. (R. 292-301, 305-33.) The

diagnosis throughout was opiate dependence. On two visits, there was the additional

diagnosis of anxiety (R. 288 and 331) and one time depression. (R. 315.) On October 5,

2010, plaintiff was described as doing well for the most part. (R. 291.) On November 2,

2010, plaintiff had full affect and euthymic mood. He was described as doing well. (R.

290.) On November 30, 2010, plaintiff’s mental status examination was unremarkable.

He was doing well with no complaints of side effects. (R. 288.) On December 22, 2010,

plaintiff’s affect was full with euthymic mood. He was described as “doing well for

most part.” (R. 287.) On January 25, 2011, plaintiff was described as having full affect

and euthymic mood. His speech was coherent. His memory and concentration were

good. (R. 286.) From February through March 2011, plaintiff continued to have full

affect with euthymic mood. His was doing well and did not complain of any side

effects. (R. 345-46.) 

Kristen Haskins, Psy.D. On February 27, 2010, Dr. Haskins reviewed additional

evidence filed on reconsideration. Dr. Haskins concluded that the clinical evidence did

not support a material change to the initial decision. The initial mental residual

functional capacity assessment was affirmed as written. (R. 285.)

Gary A. Williams, Ph.D., L.P.C.C. On February 8, 2011, Dr. Williams, a

psychologist who worked in Dr. Polite’s office, evaluated plaintiff. Plaintiff was

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unemployed and reported a long history of sporadic unemployment due to anxiety

related to people, social situations, and general fears of being judged. He adopted

avoidant behaviors and isolated himself. He reported worrying and panic attacks, but

these symptoms did not meet criteria for generalized anxiety disorder or panic disorder.

He had no desire to improve or increase his social interaction. He had a history of a

mood disorder with sadness, irritability, poor sleep, isolation, and fatigue. He had no

long term plans for employment, school, or planning a family. His anxiety appeared to

be resistant to treatment, which might be indicative of a personality disorder with

avoidant and antisocial traits. Dr. Wilson also indicated that malingering for personal

gain should be ruled out. (R. 336-38.) 

Dr. Wilson also completed a biopsychosocial evaluation. Dr. Wilson indicated

that plaintiff had a degree from Columbus State in auto mechanics. Plaintiff began

using marijuana at age 14. At age 16, he was selling club drugs. He began using heroin

at age 18. Plaintiff reported sadness and depression. He did not have difficulty

concentrating. He had problems with his sleep and his appetite. He had difficulty with

his anger and his nerves. Dr. Wilson diagnosed opioid dependence; major depression

disorder, recurrent, moderate; anxiety disorder, not otherwise specified with a history

of panic attacks; personality disorder not otherwise specified with antisocial and

avoidant traits. He assigned Baehr a Global Assessment of Functioning (“GAF”) score

of 65 (R. 339-43), that is he had mild symptoms. DSM-IV.

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On March 22, 2011, plaintiff reported that he followed through on finding an

exercise program. He had no problems with his medications. He had no cravings and

was staying clean. He still was not motivated to work. On April 12, 2011, plaintiff’s

mood seemed improved. He still was not participating in an exercise program. (R. 348.) 

Administrative Law Judge’s Findings. 

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

Security Act through December 31, 2011.

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

May 15, 2008, the alleged onset date (20 CFR 404.1571 et seq., and

416.971 et seq.).

3. The claimant has the following severe impairments : Major

Depressive Disorder; Opioid Dependence (20 CFR 404.1520(c) and

416.920(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, 404.1526, 416.920(d), 416.925 and 416.926.

5. After careful consideration of the entire record , I find that the

claimant has the residual functional capacity to perform a full range

of work at all exertional levels but with the following nonexertional

limitations: He is limited to simple, routine, and repetitive tasks,

with brief and superficial, coworkers, and the general public.

6. The claimant is capable of performing past relevant work as a

stocker and landscaping grounds maintenance worker. This work

does not require the performance of work-related activities

precluded by the claimant's residual functional capacity (20 CFR

404.1565 and 416.965).

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

Social Security Act, from May 15, 2008, through the date of this

decision (20 CFR 404.1520(f) and 416.920(f)).

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(R. 12-17.) 

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, 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 failed to properly consider all medical source

opinions pursuant to SSR 96-2p, 20 C.F.R. §§ 404.1527(d) and 416.927(d).

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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.

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Plaintiff argues that the administrative law judge failed to articulate any basis

for rejecting the opinion of Dr. Polite. 

• The administrative law judge failed to properly assess the plaintiff's credibility

in evaluating his symptoms and determining the functionally limiting effects

of his impairments. The administrative law judge failed to explain the weight

given to plaintiff’s testimony. 

Analysis. 

Treating Doctors’ Opinions. Plaintiff argues that the administrative law judge

erred in rejecting the opinion of Dr. Polite outlined in the December 8, 2009

questionnaire. See 282-84.

Treating Doctor: Legal Standard. A treating doctor's opinion1 on the issue of

disability is entitled to greater weight than that of a physician who has examined

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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.

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.

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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.

13

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 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). In determining

the weight to assign a treating source's opinion, the Commissioner considers the length

of the relationship and frequency of examination; nature 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. Id. Subject to these guidelines, the

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Commissioner is the one responsible for determining whether a claimant is disabled. 20

C.F.R. § 404.1527(e)(1).

Social Security Ruling 96-2p provides that "[c]ontrolling weight cannot be given

to a treating source's medical opinion unless the opinion is well-supported by medically

acceptable clinical and laboratory diagnostic techniques." Consequently, the decisionmaker must have “an understanding of the clinical signs and laboratory findings and

what they signify." Id. When the treating source's opinion “is well-supported and not

inconsistent with the other substantial evidence in the case record, it must be given

controlling weight . . . .” The Commissioner’s regulations further provide that the

longer a doctor has treated the claimant, the greater weight the Commissioner will give

his or her medical opinion. When the doctor has treated the claimant long enough “to

have obtained a longitudinal picture of your impairment, we will give the source’s

[opinion] more weight than we would give it if it were from a non-treating source.” 20

C.F.R. §404.1527(d)(2)(I). 

The Commissioner has issued a policy statement about how to assess treating

sources’ medical opinions. Social Security Ruling 96-2p. 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 issue(s) of the nature and

severity of an individual’s impairment(s), from treating sources.

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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 wellsupported 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.

Even when the treating source’s 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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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); 20 C.F.R. § 404.1527(d)(2)("We

will always give good reasons in our notice of determination or decision for the weight

we give your treating source's opinion"); Wilson v. Commissioner of Social Security, 378

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

treator’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 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). 

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Treating Doctor: Discussion. The administrative law judge summarized Dr.

Polite’s treatment records as follows:

In terms of claimant’s alleged mental impairments, he was treated for

opiate dependence from as early as October 19, 2007. (Exhibit 6F/48) He

took Suboxone and Klonopin, and later switched to Methadone for the

condition as of June 2008. (Exhibit 6F/40, 42, 48)

He was still being followed for opiate dependence as late as January 2011,

and a February 2011 evaluation concluded that he still met the DSM-VI

criteria for opioid dependence. (Exhibit 6F/6; 7F/2) There were also

statements in the record concerning the claimant’s affective disorder, as he

took Zoloft for the condition as early as January 2008. (Exhibit 6F/45)

However, subsequent mental status examinations were consistently

normal. (Exhibits 6F; 7F/8)

(R. 15.) The administrative law judge explained her rationale for adopting the opinions

of Drs. Dubey, Dawkins, and Haskins:

As for the opinion evidence, I gave great weight to the opinions of the

State agency psychological consultants and psychological consultative

examiner. They were accompanied by detailed explanations, after a full

review of the entirety of the medical evidence. Additionally, the medical

evidence of record substantiates the agency examiner’s findings, and, as

medical consultants with the Administration, the examiners are certainly

well versed in the assessment of functionality as it pertains to the

disability provision of the Social Security Act, as amended. 

(R. 15.) 

Dr. Polite’s treatment notes consistently stated that plaintiff was doing well.

There were no significant findings on mental status examination. Dr. Polite’s opinion

was inconsistent with his own treatment notes and the medical evidence of record. As a

result, remand would be “an idle and useless formality.” Wilson v. Commissioner of Social

Security, 378 F.3d 541, 547 (6th Cir. 2004) (“[I]f a treating source's opinion is so patently

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deficient that the Commissioner could not possibly credit it, a failure to observe §

1527(d)(2) may not warrant reversal.”).

Credibility Determinations: Controlling Law. Pain is an elusive phenomena. 

Ultimately, no one can say with absolute certainty whether another person's

subjectively disabling pain and other symptoms preclude all substantial gainful

employment. The Social Security Act requires that the claimant establish that he is

disabled. Under the Act, a "disability" is defined as "inability to engage in any

substantial gainful activity by reason of any medically determinable or mental impairment

which can be expected . . . to last for a continuous period of not less than 12 months. . .

." 42 U.S.C. §423(d)(1)(A) (emphasis added).

Under the provisions of 42 U.S.C. §423(d)(5)(A), subjective symptoms alone

cannot prove disability. There must be objective medical evidence of an impairment

that could reasonably be expected to produce disabling pain or other symptoms :

An individual's statement as to pain or other symptoms shall not

alone be conclusive evidence of disability as defined in this section;

there must be medical signs and findings, established by medically

acceptable clinical or laboratory diagnostic techniques, which show

the existence of a medical impairment that results from anatomical,

physiological, or psychological abnormalities which could

reasonably be expected to produce the pain or other symptoms

alleged and which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and persistence of such

pain or other symptoms which may reasonably be accepted as

consistent with the medical signs and findings), would lead to a

conclusion that the individual is under a disability. Objective

medical evidence of pain or other symptoms established by

medically acceptable clinical or other laboratory techniques (for

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example, deteriorating nerve or muscle tissue) must be considered in

reaching a conclusion as to whether the individual is under a

disability.

The Commissioner’s regulations provide a framework for evaluating a claimant’s

symptoms consistent with the commands of the statute:

(a) General. In determining whether you are disabled, we consider

all your symptoms, including pain, and the extent to which your

symptoms can reasonably be accepted as consistent with the

objective medical evidence and other evidence. By objective medical

evidence, we mean medical signs and laboratory findings as defined

in §404.1528(b) and (c). By other evidence, we mean the kinds of

evidence described in §§404.1512(b)(2) through (6) and

404.1513(b)(1), (4), and (5) and (e). These include statements or

reports from you, your treating or examining physician or

psychologist, and others about your medical history, diagnosis,

prescribed treatment, daily activities, efforts to work and any other

evidence showing how your impairment(s) and any related

symptoms affect your ability to work. We will consider all of your

statements about your symptoms, such as pain, and any description

you, your physician, your psychologist, or other persons may

provide about how the symptoms affect your activities of daily living

and your ability to work. However, statements about your pain or

other symptoms will not alone establish that you are disabled; there

must be medical signs and laboratory findings which show that you

have a medical impairment(s) which could reasonably be expected to

produce the pain or other symptoms alleged and which, when

considered with all of the other evidence (including statements about

the intensity and persistence of your pain or other symptoms which

may reasonably be accepted as consistent with the medical signs and

laboratory findings), would lead to a conclusion that you are

disabled. In evaluating the intensity and persistence of your

symptoms, including pain, we will consider all of the available

evidence, including your medical history, the medical signs and

laboratory findings and statements about how your symptoms affect

you. (Section 404.1527 explains how we consider opinions of your

treating source and other medical opinions on the existence and

severity of your symptoms, such as pain.) We will then determine

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the extent to which your alleged functional limitations and

restrictions due to pain or other symptoms can reasonably be

accepted as consistent with the medical signs and laboratory findings

and other evidence to decide how your symptoms affect your ability

to work.

20 C.F.R. §404.1529(a). A claimant’s symptoms will not be found to affect his ability to

work unless there is a medically determinable impairment that could reasonably be

expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then

evaluates the intensity and persistence of the claimant’s pain and other symptoms and

determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In

making the determination, the Commissioner considers

all of the available evidence, including your history, the signs and

laboratory findings, and statements from you, your treating or nontreating

source, or other persons about how your symptoms affect you. We also

consider the medical opinions of your treating source and other medical

opinions . . . .

Id.

In this evaluation of a claimant’s symptoms, the Commissioner considers both

objective medical evidence and “any other information you may submit about your

symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:

Because symptoms, such as pain, are subjective and difficult to quantify,

any symptom-related functional limitations and restrictions which you,

your treating or nontreating source, or other persons report, which can

reasonably be accepted as consistent with the objective medical evidence

and other evidence, will be taken into account as explained in paragraph

(c)(4) of this section in reaching a conclusion as to whether you are

disabled. We will consider all of the evidence presented, including

information about your prior work record, your statements about your

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symptoms, evidence submitted by your treating or nontreating source,

and observations by our employees and other persons. Section 404.1527

explains in detail how we consider and weigh treating source and other

medical opinions about the nature and severity of your impairment(s) and

any related symptoms, such as pain. Factors relevant to your symptoms,

such as pain, which we will consider include:

(I) Your daily activities;

(ii) The location, duration, frequency, and intensity of your pain or

other symptoms;

(iii) Precipitating and aggravating factors;

(iv) The type, dosage, effectiveness, and side effects of any medication

you take or have taken to alleviate your pain or other symptoms;

(v) Treatment, other than medication, you receive or have received for

relief of your pain or other symptoms;

(vi) Any measures you use or have used to relieve your pain or other

symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes

every hour, sleeping on a board, etc.); and

(vii) Other factors concerning your functional limitations and

restrictions due to pain or other symptoms.

 20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s

symptoms limit his ability to work, the Commissioner considers whether the claimant’s

statements about the symptoms is supported by or inconsistent with other evidence of

record:

In determining the extent to which your symptoms, such as pain, affect

your capacity to perform basic work activities, we consider all of the

available evidence described in paragraphs (c)(1) through (c)(3) of this

section. We will consider your statements about the intensity, persistence,

and limiting effects of your symptoms, and we will evaluate your

statements in relation to the objective medical evidence and other

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evidence, in reaching a conclusion as to whether you are disabled. We will

consider whether there are any inconsistencies in the evidence and the

extent to which there are any conflicts between your statements and the

rest of the evidence, including your history, the signs and laboratory

findings, and statements by your treating or nontreating source or other

persons about how your symptoms affect you. Your symptoms, including

pain, will be determined to diminish your capacity for basic work

activities to the extent that your alleged functional limitations and

restrictions due to symptoms, such as pain, can reasonably be accepted as

consistent with the objective medical evidence and other evidence.

 20 C.F.R. § 404.1529(c)(4).

SSR 96-7p explains the two-step process established by the Commissioner’s regulations

for evaluating a claimant’s symptoms and their effects: 

First, the adjudicator must consider whether there is an underlying

medically determinable physical or mental impairment(s)--i.e., an impairment(s)

that can be shown by medically acceptable clinical

and laboratory diagnostic techniques--that could reasonably be

expected to produce the individual’s pain or other symptoms. The

finding that an individual’s impairment(s) could reasonably be

expected to produce the individual’s pain or other symptoms does

not involve a determination as to the intensity, persistence, or

functionally limiting effects of the individual’s symptoms. . . .

 Second, once an underlying physical or mental impairment(s) that

could reasonably be expected to produce the individual’s pain or

other symptoms has been shown, the adjudicator must evaluate

the intensity, persistence, and limiting effects of the individual’s

symptoms to determine the extent to which the symptoms limit

the individual’s ability to do basic work activities. For this

purpose, whenever the individual’s statements about the intensity,

 persistence, or functionally limiting effects of pain or other

symptoms are not substantiated by objective medical evidence,

the adjudicator must make a finding on the credibility of the individual’s

statements based on a consideration of the entire case record. 

When additional information is needed to assess the credibility of

the individual’s statements about symptoms and their effects, the

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adjudicator must make every reasonable effort to obtain available

information that could shed light on the credibility of the

individual’s statements. In recognition of the fact that an

individual’s symptoms can sometimes suggest a greater level of

severity of impairment than can be shown by the objective

medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)

describe the kinds of evidence, including the factors below, that

the adjudicator must consider in addition to the objective

medical evidence when assessing the credibility of an

individual’s statements:

1. The individual’s daily activities;

2. The location, duration, frequency, and intensity of the

individual’s pain or other symptoms;

3. Factors that precipitate and aggravate the symptoms;

4. The type, dosage, effectiveness, and side effects of any

medication the individual takes or has taken to alleviate

pain or other symptoms;

5. Treatment, other than medication, the individual receives

 or has received for relief of pain or other symptoms;

6. Any measures other than treatment the individual uses

or has used to relieve pain or other symptoms (e.g. lying

flat on his or her back, standing for 15 to 20 minutes every

hour, or sleeping on a board); and

7. Any other factors concerning the individual’s functional

limitations and restrictions due to pain or other symptoms.

Case law interpreting the statute and regulations. At the outset, it is important to

keep in mind that symptoms are the claimant’s “description of [his/her] physical or

mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves

making credibility determinations about the reliability of the claimant’s self-report of

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his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed. Appx. 57, 62 (10th Cir. December.

5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”) 

“Where the symptoms and not the underlying condition form the basis of the

disability claim, a two-part analysis is used in evaluating complaints of disabling pain.” 

Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186

(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human

Services, 801 F.2d 847, 853 (6th Cir. 1986). First, the Court must determine "whether there

is objective medical evidence of an underlying medical condition." If so, the Court must

then

examine: (1) whether objective medical evidence confirms the

severity of the alleged pain arising from the condition; or (2)

whether the objectively established medical condition is of such a

severity that it can reasonably be expected to produce the alleged

disabling pain.

Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective

complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,

823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.

Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);

Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is

required to explain her credibility determination in her decision, which “‘must be

sufficiently specific to make clear to the individual and to any subsequent reviewers the

weight the adjudicator gave to the individual’s statements and the reasons for that

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weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249. 

Discussion of ALJ’s credibility determination. The administrative law judge

stated:

As for credibility, I find that the claimant’s alleged symptoms are not

consistent with the objective medical findings of record as a whole under

SSR 96-7p. Generally, the claimant’s testimony was forthright but not

credible to the extent that he claims to be unable to perform any work, and

because he proven to be far less restricted that he claims.

The claimant testified that he plays role-playing computer games that can

last as long as 6 hours at a time, which is contrary to his assertion that he

cannot concentrate, complete tasks, or pay attention. He also interacts

with other participants who play the computer games while online, and

lives with his father, which is also inconsistent with his assertion that he

does not get along with others.

(R. 16.)

The administrative law judge’s credibility determination is supported by

substantial evidence. Plaintiff’s allegations that he is unable to concentration or

complete tasks is contradicted by his ability to play computer games for significant

lengths of time. Additionally, plaintiff is able to interact and coordinate with other

players online, contradicting his allegations that he cannot get along with others. 

From a review of the record as a whole, I conclude that there is substantial

evidence supporting the administrative law judge's decision denying benefits. 

Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social

Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for

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summary judgment be DENIED and that defendant’s motion for summary judgment

be GRANTED.

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.

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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