1

IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

LESLIE B. JACOB, 

 Plaintiff, 

 Civil Action 2:12-cv-253 

 v. Judge Michael H. Watson 

 Magistrate Judge Elizabeth P. Deavers 

COMMISSIONER OF SOCIAL SECURITY, 

 

 Defendant. 

REPORT AND RECOMMENDATION 

 Plaintiff 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 (“Commissioner”) denying her application for 

social security disability insurance benefits.1 This matter is before the United States Magistrate 

Judge for a Report and Recommendation on Plaintiff’s Statement of Errors, the Commissioner’s 

Memorandum in Opposition to Plaintiff’s Statement of Errors, Plaintiff’s Reply brief, and the 

administrative record. (ECF Nos. 9, 11, 12 and 8.) For the reasons that follow, it is 

RECOMMENDED that Plaintiff’s Statement of Errors be OVERRULED and that the 

Commissioner’s decision be AFFIRMED. 

I. BACKGROUND

 Plaintiff filed her application for benefits on February 28, 2008, alleging that she has 

been disabled since December 31, 2007, at age 50. (R. at 121, 131.) Plaintiff’s date of last 

insured (“DLI”) was March 31, 2010. (R. at 17.) Plaintiff alleges disability as a result of bipolar 

disorder; arthritis, sciatica, fibromyalgia, and posttraumatic stress disorder (“PTSD”). (R. at 

 

1

 Although Plaintiff alleges in her Complaint that she applied for both disability benefits and 

supplemental security income, (Compl. ¶ 4, ECF No. 3), the record contains only an application 

for disability benefits. (R. at 121.) 

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135.) Plaintiff’s applications were denied initially and upon reconsideration. Plaintiff sought a 

de novo hearing before an administrative law judge (“ALJ”). ALJ John R. Montgomery held a 

hearing on September 9, 2010, at which Plaintiff, represented by counsel, appeared and testified. 

(R. at 37-77.) Richard Oestreich, a Vocational Expert, also appeared and testified at the hearing. 

(R. at 64-77.) On March 1, 2011, the ALJ issued a decision finding that Plaintiff was not 

disabled within the meaning of the Social Security Act. (R. at 15-36.) On January 20, 2012, the 

Appeals Council denied Plaintiff’s request for review and adopted the ALJ’s decision as the 

Commissioner’s final decision. (R. at 1-3.) Plaintiff thereafter timely commenced the instant 

action. 

II. HEARING TESTIMONY 

A. Plaintiff’s Testimony 

 During the September 9, 2010 administrative hearing, Plaintiff testified that she lives in a 

house with her husband and two children, ages fifteen and eighteen. (R. at 42.) She indicated 

that she and her husband were in the midst of getting divorced. She testified that she drives 

when she has to, such as to the store to get milk. She also drove herself to the hearing that day. 

Id. 

 Plaintiff testified that she has a high school diploma, and that she has received a 

certificate from a vocational school which allowed her to work as a travel agent in the past. (R. 

at 43.) Plaintiff stated that she has not worked nor looked for work since 2007. (R. at 44.) She 

last worked as a supervisor at a drug store. She testified that she quit that job because it required 

lifting and because she did not get along with anyone, including her manager. (R. at 44.) Prior 

to that Plaintiff worked as a manager at a hardware store. 

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 Plaintiff testified that she is unable to work due to bipolar, depression, PTSD and 

agoraphobia. (R. at 48.) She stated that she experiences days in which she cries all day. She 

testified that although she had not experienced a manic episode in a few months, she has had 

manic episodes that last anywhere from fifteen minutes to a week. Plaintiff testified that, in the 

week prior to the hearing, she experienced two full days in which she cried all day. She stated 

that she has bipolar depression and situational depression due to her impending divorce. Plaintiff 

denied avoiding people besides her husband. She stated that she has always had a problem 

getting along with coworkers. (R. at 50.) 

 Plaintiff testified that rather than eat meals she drinks smoothies made from fresh fruits 

and vegetables. (R. at 53.) She stated that she prepares the smoothies herself using fresh 

ingredients. She also reported that she watches television during the day. (R. at 54.) She 

testified that she has experienced problems with her memory in the “few months” prior to the 

hearing. Id. She described bouts of agoraphobia, which cause her to not want to go to the store. 

(R. 58.) She estimated that she remained indoors seven months out of the previous year. (R. at 

58.) She stated that she does not take her dog for walks. (R. at 61.) 

 Plaintiff testified that she went to Florida the March prior to the hearing date. (R. at 62.) 

She stated that although she did not experience symptoms related to her condition during her trip, 

her doctor said that a lack of symptoms during vacation is normal. (R. at 62.)

B. Vocational Expert Testimony

 Richard Oestreich, Ph.D. testified at the administrative hearing as the vocational expert 

(“VE”). (R. at 64.) Dr. Oestreich classified Plaintiff’s past work experience as medium 

unskilled, light and semiskilled, and unskilled light. (R. at 65.) The ALJ asked the VE to 

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assume an individual had a series of hypothetical limitations. He asked the VE to assume that a 

person with Plaintiff’s education was physically limited in a number of ways. He asked the VE 

to further assume that the person was limited to simple, repetitive tasks that would be performed 

in a low-stress environment. Specifically, the environment would include no strict production 

quotas, no strict time requirements, and infrequent and superficial contact with others. (R. at 66.) 

The VE indicated that the most significant issue with Plaintiff being able to perform her past 

work under those circumstances would be the inability to have contact with others. He 

nevertheless concluded that Plaintiff could still perform her past relevant work experience of 

retail clerk or deli clerk, because contact with others would be superficial. Id. The ALJ asked 

the VE to further assume that Plaintiff could have very little contact with others. The VE 

responded that she would be unable to perform her past work experience with that restriction. 

He testified, however, that she would be able to perform jobs that exist in the local and national 

economy with those restrictions. (R. at 67.) As examples, he testified that Plaintiff could work 

as an inspector, assembler or housekeeper. Id. The VE stated that if Plaintiff were required to 

miss more than one day per month, she would not be able to compete in the workforce. (R. at 

68.) 

III. MEDICAL RECORDS3

A. Pre-DLI Medical Records 

 1. Robert H. Perkins, M.D. 

 Although Dr. Perkins treated Plaintiff for numerous physical impairments, he also made 

various notations throughout his records that bear on Plaintiff’s mental health condition. For 

 

2 In her Statement of Errors, Plaintiff does not challenge the Commissioner’s findings with 

respect to her alleged physical impairments. Accordingly, the Court will focus its review of the 

evidence on Plaintiff’s alleged mental impairments. 

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example, on January 14, 2008, Dr. Perkins noted that Plaintiff “is walking on a regular basis . . . 

[s]he has three dogs she has to walk.” (R. at 213.) On February 15, 2008, Dr. Perkins noted that 

Plaintiff reported being “much more active around the house and [being able] to work around the 

house.” (R. at 208.) 

 2. Scott Merryman, M.D. 

Dr. Merryman is Plaintiff’s family physician. The earliest office note contained in the 

record is dated February 12, 2007. (R. at 253.) Dr. Merryman noted bipolar as a possible mood 

disorder, but without recent mania. Plaintiff reported her sleep as “fine,” and that her anxiety 

was well-controlled. 

 Plaintiff visited Dr. Merryman again on July 2, 2007. (R. at 251.) She reported feeling 

happy at work and that she likes to help people. She stated that her job requires a lot of physical 

activity. When she gets in her car to drive home, however, she reported that her attitude 

becomes negative. Plaintiff also reported experiencing marital problems for the last three years, 

which she characterized as a “big issue.” Id. Dr. Merryman’s notes indicate that Plaintiff could 

not respect her husband due to allegations that he sexually abused her daughter. Plaintiff 

described her relationship with her kids as “good.” Id. She and her husband get into yellingarguments a lot. She said she is fine when he is not home. Dr. Merryman noted an absence of 

unpredictable or inappropriate mood changes. He also noted a lack of observed mania. For 

assessments, Dr. Merryman noted a history of bipolar disorder and recent depression. 

 Plaintiff visited Dr. Merryman on October 4, 2007. (R. at 249.) She reported being 

“very tired lately,” and that “work is bad and she feels like she needs to act like she is happy 

there.” Id. She reported that she “always feels anxious.” Id. She further stated that has been 

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sleeping “fair.” Id. Dr. Merryman noted that Plaintiff was “recently always anxious,” and 

“worried,” but that it was “work related probably.” Id. Plaintiff stated that she does not know 

how to deal with people. She reported troubles at work, and was “tearful briefly” during the 

appointment. Id. 

 Dr. Merryman saw Plaintiff on October 20, 2007. (R. at 247.) Plaintiff reported that she 

was sleeping okay usually, but good overall. She stated that her energy, depression and anxiety 

were “better.” Id. She also reported that “last week was pretty good,” and that she “laughed a 

lot with kids.” Id. 

 Dr. Merryman saw Plaintiff again on December 6, 2007, at which time she reported 

feelings of guilt and worthlessness. (R. at 245.) She also indicated feeling lethargic, irritable 

and agitated. She denied feeling hyper, but reported thoughts of suicide. Dr. Merryman noted 

Plaintiff’s affect as “good,” but noted reports of slow concentration. Id. His assessments 

included bipolar and worsening depression. (R. at 246.) 

 Plaintiff saw Dr. Merryman again on February 16, 2008. (R. at 276.) She reported 

feeling bad about herself, down and depressed, and hopeless. She also reported having little 

energy and interest in doing things. Plaintiff denied current suicidal thoughts or thoughts of 

hurting others. She stated she has difficulty concentrating, falling asleep and staying asleep. 

Plaintiff also reported severe depression. Dr. Merryman noted her mood as normal but 

depressed. He reported diagnoses of bipolar disorder and general anxiety. (R. at 277.) 

 Plaintiff again saw Dr. Merryman on March 8, 2008. (R. at 273.) Plaintiff reported 

“[n]ot as much depression but some.” Id. She stated that at times she has memory problems. 

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She reported experiencing manic days approximately 20% of the time. She has had few normal 

days. She reported enjoying playing with her kids and watching movies with them. 

 Plaintiff next saw Dr. Merryman on April 7, 2008. (R. at 271.) She reported that she had 

not slept well in the three days prior. She reported racing and “horrible” thoughts that resembled 

obsessions more than mania. She reported that her concentration is okay most of the time, and 

that she carries out activities most of the time. 

 Plaintiff saw Dr. Merryman again on June 5, 2008. (R. at 268.) She reported feeling 

depressed with very few moments of happiness. She stated that she can force herself to look 

happy, but she thinks too much about “sad stuff.” Id. Plaintiff stated that she thinks about 

suicide, but stated she “can’t do it because of her kids.” Id. She stated that usually her thoughts 

last only a couple minutes. Plaintiff reported getting more exercise than usual. Dr. Merryman 

noted his belief that Plaintiff’s “marriage and it[s] issues” contribute to the way she is feeling. 

 Plaintiff saw Dr. Merryman on June 23, 2008. (R. at 265.) Plaintiff reported that she 

feels like crying a lot, and that her anxiety and sadness were both still present. She reported 

sleeping better. She denied manic symptoms and suicidal thoughts. Dr. Merryman reported that 

Plaintiff was tearful at times. He stated that she looks sad and anxious because she was caught 

filling prescriptions from two different doctors at two different pharmacies, which is prohibited. 

 Plaintiff next saw Dr. Merryman on July 26, 2008. (R. at 262.) Plaintiff reported that her 

anxiety has increased at times. Plaintiff reported her mood as okay, but noted that a long-time 

friend of hers had died the week before. (R. at 263.) Plaintiff denied recent bouts of mania. Dr. 

Merryman cautioned her that she was not on a mood stabilizer (due to cost), which posed a risk 

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of mania. Plaintiff reported poor daily functioning with low motivation. Plaintiff stated that she 

does not feel she can work due to mood and anxiety issues. 

 Plaintiff saw Dr. Merryman again on August 8, 2008. (R. at 260.) Plaintiff reported her 

energy and mood as “better,” and that she had been sleeping “good.” She indicated that she was 

getting things done and functioning well, which caused her to wonder if she is manic. Dr. 

Merryman doubted that she was, noting “I suspect that she may just be feeling normal.” (R. at 

260-61.) Plaintiff reported that she “enjoys her parenting job and things are going well.” (R. at 

261.) 

 Plaintiff next saw Dr. Merryman on October 11, 2008. (R. at 258.) She described her 

last month as “even” with no crying spells. Id. She reported that she has been trying to talk 

respectfully to her husband, which has helped. She previously treated him in a mean way due to 

allegations of sexual abuse concerning her daughter. Plaintiff reported her interactions with 

others as fine, and stated that she enjoys most activities with her kids. Dr. Merryman noted that 

Plaintiff’s general anxiety disorder was well-controlled. He noted that her borderline features 

have lessened. 

 Plaintiff visited Dr. Merryman on February 2, 2009. (R. at 365.) She reported more 

difficulty sleeping due to running out of medication. She stated that she has less motivation and 

interest as well since running out of medication. She stated she was under stress because her 

former friend has been calling while intoxicated and screaming at her. Otherwise, Plaintiff 

reported that “the home situation is about the same.” (R. at 365.) She stated that she enjoys her 

kids activities on a regular basis. Dr. Merryman noted that Plaintiff’s general anxiety disorder is 

under “pretty good control” with a new medication. 

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 Plaintiff saw Dr. Merryman again on April 2, 2009. (R. at 359.) She reported that she 

has been sleeping okay, but that her mood has been “less than happy lately.” (R. at 360.) 

Although she has gone outside sometimes, she has trouble making herself leave the house. She 

reported feeling that she has no purpose and nowhere to go. She denied having friends. She 

reported that she may start to walk her dogs one at a time because they recently knocked her 

down during a walk. Plaintiff denied thoughts of suicide. She stated that she has not sought 

counseling in some time. 

 Plaintiff next saw Dr. Merryman on June 1, 2009. (R. at 357.) Plaintiff reported having 

some counseling, but stated that she has not found it to be helpful. She stated that she continues 

to have negative thoughts that she cannot get out of her mind. She stated that she is “better about 

going out now.” (R. at 357.) She reported that she goes out more in spring and summer but less 

during the winter months. She stated that she fears something terrible will happen to her or her 

children. She reported having a good relationship with each of her children. Plaintiff stated that 

she thought she may have experienced manic symptoms recently because she was up until 4:00 

a.m. She stated she has racing thoughts of “what ifs?”. Dr. Merryman noted that “[s]ome of this 

relates to marital situation and sounds like a normal consequence of the past marital issues.” (R. 

at 358.) He noted that he is “not convinced that she really is bipolar.” (R. at 358.) He indicated 

that obsessive compulsive disorder and anxiety are “big issues now.” Id. 

 Plaintiff saw Dr. Merryman again on July 11, 2009. (R. at 354.) Plaintiff reported that 

her mood had been depressed, partly due to instances in which she tripped or fell down, but it 

“has improved some.” (R. at 355.) She stated that she has been waking up at night and cleaning 

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for a number of days. She believes this constitutes manic episodes, and also reported feeling 

hyper and talking fast and loud. 

 Plaintiff again saw Dr. Merryman on September 14, 2009. (R. at 351.) She reported 

feeling less anxious, and stated that things “are going better at home.” Id. She indicated that her 

children are getting up and going to school with less trouble, which helps the rest of the day go 

smoother. She reported seeing a counselor a total of four times in the prior six months, but said 

she thinks she needs to see someone else. She reported having difficulty getting over the issues 

of sexual abuse related to her husband and daughter. Dr. Merryman noted that he “think[s] she 

has problems that are quite logical and relate to the marriage and the previous sexual abuse of 

[her daughter] by her husband.” (R. at 352.) He stated that Plaintiff “cannot get over this, which 

is understandable.” Id. He noted the importance of counseling, stating that it is more important 

than medication for her at this point. Id. 

 Plaintiff next saw Dr. Merryman on October 29, 2009. (R. at 348.) Plaintiff reported that 

she has experienced periods in which she cannot sleep and is “running around in the middle of 

the night cleaning.” Id. She reported racing thoughts, crying, and moodiness over the previous 

months. She thinks these episodes may be related to the fact that her daughter has moved back 

in, “which has promoted chaos.” (R. at 349.) Plaintiff stated that she has an appointment to 

meet with a new counselor the following month. Dr. Merryman noted that Plaintiff’s depression 

and anxiety are worse, and that she may be manic. 

 Plaintiff saw Dr. Merryman on November 14, 2009. (R. at 346.) She reported better 

sleep and relaxation with the increased dose of medication she was given during her last visit. 

She reported that she still worries a lot. She stated that she has seen her new counselor twice. 

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She reported feeling more energy in the daytime, and that her focus and concentration were 

okay. She indicated that she “enjoys things briefly with the kids.” (R. at 347.) She reported 

difficulty getting outside without fear and anxiety unless one of her kids accompanies her. 

 Plaintiff saw Dr. Merryman again on December 26, 2009. (R. at 344.) She stated that 

she and her family played board games that they received as Christmas gifts. She indicated that 

her children have not been treating her nicely. She reported memory problems, including 

instances in which she would forget conversations and shopping trips that she had. She reported 

experiencing less sadness. (R. at 345.) She naps 1-2 hours per day while the kids are at school. 

 3. Frank Orosz, Ph.D./ Dr. Nick Alberts 

 Dr. Frank Orosz reviewed Plaintiff’s medical records on behalf of the state agency on 

June 2, 2008. (R. at 309-334.) Dr. Orosz noted that Plaintiff is alleged to suffer from bipolar 

disorder and PTSD. (R. at 325.) In terms of daily activities, he noted previous reports by 

Plaintiff that she takes care of her children. She gets them up and off to school. She also cares 

for three dogs and three cats. Although she stated that some days she has problems leaving her 

house, other days she is fine. She reported that she shops for groceries, does chores, watches 

television, and reads. She gardens in the summer, and spends time on the computer. (R. at 325.) 

 Dr. Orosz also noted Plaintiff’s reports that she gets so depressed three to four days per 

month that she does not want to get out of bed. She reported uncontrolled manic phases in which 

she could not control her spending. She reported that these phases are more controlled recently, 

but that she still has issues managing money. She reported difficulty “being under people’s 

control.” (R. at 325.) 

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 Based on his review of the records, Dr. Orosz concluded that Plaintiff is moderately 

limited in the areas of being able to understand and remember detailed instructions, and carrying 

out detailed instructions. Other than that, Dr. Orosz determined that Plaintiff suffers no 

significant limitations. (R. at 323-26.) 

 In January 2009, Dr. Nick Alberts affirmed Dr. Orosz’s assessment. (R. at 78.) 

 4. Mount Carmel Hospital 

Plaintiff presented to the emergency room at Mount Carmel Hospital on March 24, 2010. 

(R. at 375.) She complained of anxiety. She stated that she and her husband had gotten into a 

fight the night previous night and she flushed her medication down the toilet.2

 Plaintiff was 

described as presenting “very anxious and tearful.” Id. She denied suicidal thoughts. 

B. Post-DLI Medical Records 

 1. Scott Merryman, M.D. 

 The record reflects that Plaintiff next saw Dr. Merryman on April 10, 2010. (R. at 448.) 

She reported that she took a trip to Florida in late February of that year. (R. at 449.) She 

reported the trip as “good.” Id. She and her husband talked about separating, but decided they 

cannot afford to live separately. Plaintiff indicated that they have been going to counseling for 

the past three weeks. Plaintiff stated that she has been manic for the last week and half. Dr. 

Merryman, however, noted that “she does not seem manic here today.” Id. Plaintiff reported 

that she had not been pursuing individual counseling. Dr. Merryman noted Plaintiff’s maritial 

issues as “the biggest factor” to her symptoms. 

 

2

 The hospital records indicate that Plaintiff threw out her medication three days earlier. (R. at 376.) 

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 Plaintiff next saw Dr. Merryman on May 21, 2010. (R. at 446.) She reported that she 

enjoys activities with her youngest son, and that she does mostly cleaning but it is difficult to 

clean around all the animals. (R. at 447.) She reported feeling sad and crying daily. 

 Plaintiff saw Dr. Merryman again on June 9, 2010. (R. at 443.) She reported that her 

medication has helped her to “remain calm and functional.” (R. at 444.) She stated that her 

energy and mood are better. Dr. Merryman noted that her “[a]nxiety and worrying are big 

problems now and a lot of it is situational.” Id. Plaintiff stated that she “is not sure that she 

wants [her marriage] to continue which complicates things and she is not sure that she could 

survive financially on her own.” Id. 

 Plaintiff saw Dr. Merryman on July 2, 2010. (R. at 441.) Plaintiff indicated that she had 

not been managing things very well lately. She discovered that her husband has been having an 

affair. She is considering divorce but indicated that the financial aspect is the “biggest issue” of 

concern. Id. 

 On August 19, 2010, Dr. Merryman completed a Medical Statement for Social Security 

Disability Claim. (R. at 486-490.) In the statement, he noted that Plaintiff suffers from frequent 

loss of interest in activities; appetite disturbance; sleep disturbance; decreased energy; feelings of 

worthlessness; and difficulty concentrating or thinking. He noted that her manic symptoms had 

been infrequent that year. (R. at 486.) He further noted that Plaintiff suffers from generalized 

persistent anxiety; motor tension; apprehensive expectation; and recurrent obsessions or 

compulsions causing marked distress. (R. at 487.) He denied that Plaintiff had suffered recent 

panic attacks and stated that “agoraphobia is a problem at times.” Id. He opined that Plaintiff 

suffers no restrictions in daily activities, and moderate restrictions in maintaining social 

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functioning. Id. He noted by checking boxes on the standard form, without elaboration, 

deficiencies of concentration, persistence or pace resulting in frequent failure to complete tasks 

in a timely manner, as well as repeated episodes of deterioration or decompensation. (R. at 488.) 

He found Plaintiff to suffer marked impairment with respect to the following abilities: remember 

locations and work-like procedures; understand and remember detailed instructions; carry-out 

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

activities within a schedule; work with others; make work-related decisions; accept instruction 

and respond to criticism; get along with coworkers; respond to changes in work setting; travel to 

unfamiliar places or use public transportation; and set realistic goals. (R. at 488-90.) He found 

Plaintiff to be moderately impaired in all other categories, except he found no significant 

impairment in her ability to maintain socially appropriate behavior and to adhere to basic 

standards of neatness and cleanliness. Id. 

 On September 22, 2010, Dr. Merryman authored a letter to the ALJ, in which he set forth 

his credentials with respect to the field of psychiatrics. (R. at 497.) Dr. Merryman stated that he 

had been in family medicine for thirty years, with a practice “heavily weighted” toward 

behavioral medicine or psychiatric cases. Id. Dr. Merryman also indicated that he had been 

teaching behavioral medicine and patient communications at The Ohio State University (“OSU”) 

Family Medicine Department at the OSU College of Medicine for the previous ten years. He 

further indicated that he had been the Co-Director of the Behavioral Medicine Curriculum for the 

OSU Family Medicine Residency for the previous five years. Finally, Dr. Merryman stated that 

he participates in “psychopharmacology consult patient visits” with residents at the medical 

school as part of their education in psychiatry. Id. 

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 2. Robert H. Perkins, M.D. 

Plaintiff reported to Dr. Perkins, her pain management doctor, on July 21, 2010 that she 

was “very happy . . . as she is able to function more and she is able to do her activities of daily 

living around the house including cleaning at times.” (R. at 460.) 

IV. THE ADMINISTRATIVE DECISION 

 On March 1, 2011, the ALJ issued his decision. (R. at 12-36.) At step one of the 

sequential evaluation process,3 the ALJ found that Plaintiff had not engaged in substantial 

gainful activity since December 31, 2007, the alleged onset date. (R. at 17.) At step two, the 

ALJ concluded that Plaintiff had the severe impairments of degenerative disc disease lumbar 

spine; fibromyalgia; bipolar disorder; and generalized anxiety disorder. Id. At step three, the 

ALJ further concluded that Plaintiff did not have an impairment or combination of impairments 

that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, 

Subpart P, Appendix 1. (R. at 18.) The ALJ evaluated Plaintiff’s residual functional capacity 

(“RFC”) at step four of the sequential evaluation process as follows: 

 

3 Social Security Regulations require ALJs to resolve a disability claim through a five-step 

sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive 

finding at any step terminates the ALJ’s review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th 

Cir. 2007), if fully considered, the sequential review considers and answers five questions: 

 1. Is the claimant engaged in substantial gainful activity? 

 2. Does the claimant suffer from one or more severe impairments? 

 3. Do the claimant’s severe impairments, alone or in combination, meet or 

equal the criteria of an impairment set forth in the Commissioner’s Listing of 

Impairments, 20 C.F.R. Subpart P, Appendix 1? 

 4. Considering the claimant's residual functional capacity, can the claimant 

 perform his or her past relevant work? 

 5. Considering the claimant's age, education, past work experience, and residual 

functional capacity, can the claimant perform other work available in the national 

economy? 

See 20 C.F.R. §416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); 

Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).

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After careful consideration of the entire record, the undersigned finds that, 

through the date last insured, the claimant had the residual functional capacity to 

perform light work as defined in 20 C.F.R. 404.1567(b) but with no more than 

occasional stooping. Mentally, the claimant was further limited to simple 

repetitive tasks in a low stress environment defined as no fast paced work and no 

strict time requirements; and only infrequent and superficial contact with others. 

(R. at 21.) In reaching this determination, the ALJ concluded that Plaintiff suffers from an 

underlying medically determinable impairment that could reasonably cause some of the 

symptomology alleged. (R. at 22.) The ALJ found, however, that the “record does not disclose 

sufficient objective medical evidence to substantiate the severity of the symptoms and degree of 

functional limitations alleged by [Plaintiff].” Id. He found that “[w]hile the record indicates that 

the claimant had some mental impairments, there is no compelling evidence that she could not 

perform the mental demands of work as set forth [in the RFC].” (R. at 25.) Further, in reaching 

this conclusion, the ALJ afforded “little weight” to the August 19, 2010 medical statement of Dr. 

Merryman. (R. at 27.) The ALJ stated that although “Dr. Merryman is a treating source[,] he is 

a specialist in family practice rather than psychiatry, although he has reported that his practice is 

heavily weighted in behavioral medicine or psychiatric cases.” Id. The ALJ further elaborated 

as follows: 

Nonetheless, [Dr. Merryman’s] opinion has been considered, but must be 

discounted for a number of reasons. Most significantly, it is not supported by and 

is inconsistent with the greater weight of the medical evidence in this record. The 

assessment appears to express the claimant’s own allegations as to her disability 

rather than the doctor’s own findings. The marked limitations conflict with the 

source’s own internal records as discussed [earlier in the ALJ’s decision]. His 

records generally show that the claimant’s mental health was fairly controlled 

prior to the date last insured, when she took her medications as prescribed. 

. . . 

In assessing statements from treating sources, the possibility always exists that a 

doctor may express an opinion in an effort to assist a patient with whom he or she 

may sympathize for one reason or another. Another reality that should be 

mentioned is that patients can be quite insistent and demanding in seeking 

supportive notes or reports from their physicians, who might provide such a note 

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in order to satisfy their patients’ request and avoid unnecessary doctor/patient 

tension. While it is difficult to confirm the presence of such motives, they are 

more likely in situations where the opinion in question departs substantially from 

the rest of the evidence of record, as in the current case. Regardless, full credit 

cannot be given to these statements regarding the claimant functional ability when 

the clinical notes are at odds with the assessments. 

(R. at 27-28.) The ALJ next determined that Plaintiff was unable to perform any past relevant 

work through the date of her DLI, which was March 31, 2010. (R. at 28.) Finally, relying on 

the VE’s testimony, the ALJ concluded that there exist jobs in significant numbers in the local 

and national economy that Plaintiff can perform. (R. at 29.) Consequently, he concluded that 

Plaintiff was not disabled within the meaning of the Social Security Act prior to the DLI. (R. at 

30.) 

V. STANDARD OF REVIEW 

When reviewing a case under the Social Security Act, the Court “must affirm the 

Commissioner’s decision if it ‘is supported by substantial evidence and was made pursuant to 

proper legal standards.’” Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) 

(quoting Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 

U.S.C. § 405(g) (“[t]he findings of the Commissioner of Social Security as to any fact, if 

supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial 

evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such 

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” 

Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec’y of Health & Hum. Servs., 25 F.3d 284, 286 (6th 

Cir. 1994)). 

 Although the substantial evidence standard is deferential, it is not trivial. The Court must 

“‘take into account whatever in the record fairly detracts from [the] weight’” of the 

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Commissioner’s decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting 

Univ. Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial 

evidence supports the ALJ’s decision, this Court defers to that finding ‘even if there is 

substantial evidence in the record that would have supported an opposite conclusion.’” Blakley 

v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 

1997)). 

Finally, even if the ALJ’s decision meets the substantial evidence standard, “‘a decision 

of the Commissioner will not be upheld where the SSA fails to follow its own regulations and 

where that error prejudices a claimant on the merits or deprives the claimant of a substantial 

right.’” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th 

Cir. 2007)). 

VI. LEGAL ANALYSIS 

 Plaintiff raises a single challenge to the ALJ’s decision. Specifically, she contends that 

the ALJ committed reversible error in failing to accord greater deference to the opinion of her 

treating physician, Dr. Merryman, concerning her mental limitations. The Undersigned 

disagrees and concludes that substantial evidence supports the ALJ’s decision. 

A. Treating Physician’s Opinion 

 The ALJ must consider all medical opinions that he or she receives in evaluating a 

claimant’s case. 20 C.F.R. § 416.927(d). The applicable regulations define medical opinions as 

“statements from physicians . . . 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. § 416.927(a)(2). 

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 The ALJ generally gives deference to the opinions of a treating source “since these are 

likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a 

patient’s] medical impairment(s) and may bring a unique perspective to the medical evidence 

that cannot be obtained from the objective medical findings alone . . . .” 20 C.F.R. 

§ 416.927(d)(2); Blakley, 581 F.3d at 408. If the treating physician’s opinion is “well-supported 

by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with 

other substantial evidence in [the claimant’s] case record, [the ALJ] will give it controlling 

weight.” 20 C.F.R. § 404.1527(d)(2). 

 If the ALJ does not afford controlling weight to a treating physician’s opinion, the ALJ 

must meet certain procedural requirements. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 

(6th Cir. 2004). Specifically, if an ALJ does not give a treating source’s opinion controlling 

weight: 

[A]n ALJ must apply certain factors—namely, the length of the treatment 

relationship and the frequency of examination, the nature and extent of the 

treatment relationship, supportability of the opinion, consistency of the opinion 

with the record as a whole, and the specialization of the treating source—in 

determining what weight to give the opinion. 

Id.

 Furthermore, an ALJ must “always give good reasons in [the ALJ’s] notice of 

determination or decision for the weight [the ALJ] give[s] your treating source’s opinion.” 20 

C.F.R. § 416.927(d)(2). Accordingly, the ALJ’s reasoning “must be sufficiently specific to make 

clear to any subsequent reviewers the weight the adjudicator gave to the treating source’s 

medical opinion and the reasons for that weight.” Friend v. Comm’r of Soc. Sec., No. 09-3889, 

2010 WL 1725066, at *7 (6th Cir. 2010) (internal quotation omitted). The United States Court 

of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement: 

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“The requirement of reason-giving exists, in part, to let claimants understand the 

disposition of their cases,” particularly in situations where a claimant knows that 

his physician has deemed him disabled and therefore “might be especially 

bewildered when told by an administrative bureaucracy that she is not, unless 

some reason for the agency’s decision is supplied.” Snell v. Apfel, 177 F.3d 128, 

134 (2d Cir.1999). The requirement also ensures that the ALJ applies the treating 

physician rule and permits meaningful review of the ALJ’s application of the rule. 

See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d Cir. 2004). 

Wilson, 378 F.3d at 544–45. Thus, the reason-giving requirement is “particularly important 

when the treating physician has diagnosed the claimant as disabled.” Germany-Johnson v. 

Comm’r of Soc. Sec., 312 F. A’ppx 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242). 

 Finally, the Commissioner reserves the power to decide certain issues, such as a 

claimant’s residual functional capacity. 20 C.F.R. § 404.1527(e). Although the ALJ will 

consider opinions of treating physicians “on the nature and severity of your impairment(s),” 

opinions on issues reserved to the Commissioner are generally not entitled to special 

significance. 20 C.F.R. § 404.1527(e); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007). 

B. Application 

 The ALJ did not err in according little weight to the opinion of Plaintiff’s treating 

physician, Dr. Merryman with respect to his determination as to Plaintiff’s mental impariments 

and accompanying restrictions. First, in assessing the weight to accord Dr. Merryman’s medical 

statement, the ALJ considered the appropriate factors as set forth in Wilson. For example, he 

noted that Dr. Merryman specializes in family practice rather than psychiatry. (R. at 27.) In 

doing so, he acknowledged that Dr. Merryman reported his practice as being heavily weighted 

toward behavioral medicine or psychiatric cases. Id. Nevertheless, the ALJ found Dr. 

Merryman’s opinion to be inconsistent with, and unsupported by, the record as a whole. Id. 

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Perhaps most importantly, the ALJ concluded that Dr. Merryman’s medical statement 

was inconsistent with and unsupported by Dr. Merryman’s own treatment notes. (R. at 27.) 

Specifically, although Dr. Merryman’s medical statement reported that Plaintiff suffered marked 

impairment in the majority of the listed categories, his treatment notes paint a different portrait of 

Plaintiff’s mental-health symptoms. For example, Plaintiff often reported that she enjoyed 

engaging in activities with her children. (R. at 258, 261, 273, 347, 344, 365, 447.) She reported 

partaking in other activities, such as walking her dogs. (R. at 359.) In addition, particularly from 

August 2008 forward, Plaintiff often reported that she felt good. See R. at 260 (Plaintiff 

reporting “better” energy and mood and “good” sleeping); 258 (reporting that her last month had 

been “even” with no crying spells); 354 (reporting an improved mood); 351 (reporting feeling 

less anxious, and stating that things at home had been better); 346 (reporting better sleep and 

increased relaxation); 345 (reporting feeling less sad). In June 2009, Plaintiff reported that she is 

“better about going out now.” (R. at 357.) That same month she stated that her medication helps 

her “remain calm and functional.” (R. at 444.) Indeed, in October 2008, Dr. Merryman 

described Plaintiff’s general anxiety disorder as “well[-]controlled.” (R. at 258.) Likewise, in 

February 2009 he noted her general anxiety as being under “pretty good control.” (R. at 365.) 

When Plaintiff commented on her concentration after her alleged onset date, she generally 

reported it as being “okay.” (R. at 271, 347.) In addition, Dr. Merryman repeatedly 

characterized the bulk of Plaintiff’s problems as situational due to her failing marriage. (R. at 

268, 352, 358, 444.) He also noted that he is “not convinced that she really is bipolar.” (R. at 

358.) Consequently, Dr. Merryman’s medical statement is inconsistent with his treatment notes. 

As the ALJ recognized in according little weight to the medical statement, “[t]he assessment 

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appears to express [Plaintiff’s] own allegations as to her disability rather than the doctor’s own 

findings.” (R. at 27.) 

The ALJ also found Dr. Merryman’s medical statement to be inconsistent with Dr. 

Perkins’ treatment notes. For example, as the ALJ pointed out, on January 14, 2008, he noted 

that Plaintiff reported “walking on a regular basis.” (R. at 24, 213.) She stated that she “has 

three dogs she has to walk.” (R. at 213.) Similarly, on February 15, 2008 Plaintiff reported to 

Dr. Perkins that she had been “much more active around the house,” and that she was able to 

complete household chores. (R. at 208.) 

Further, the ALJ concluded that Dr. Merryman’s medical statement is inconsistent with 

the opinion of reviewing psychologist, Dr. Orosz. Dr. Orosz concluded that Plaintiff suufers 

only moderate limitations in the areas of being able to understand and remember detailed 

instructions, and carrying out detailed instructions. (R. at 323-26.) Other than that, Dr. Orosz 

found that Plaintiff does not suffer significant limitations. Moreover, according to the ALJ, Dr. 

Orosz is “well qualified because of training and experience in reviewing an objective record and 

formulating an opinion as to limitations.” (R. at 26.) The ALJ also found Dr. Orosz’s 

assessment to be “consistent with and well supported by the evidence of the record as a whole.” 

Id. 

Finally, the ALJ provided good reasons for giving less deference to Dr. Merryman’s 

medical statement, as he is required to do under 20 C.F.R. § 416.927(d)(2) and Wilson. As 

discussed above, the ALJ specifically referenced Dr. Merryman’s specialty, as well as the 

inconsistencies and lack of supportability related to his medical statement, in determining how 

much weight to accord the opinion. (R. at 27.) Furthermore, although he stopped short of 

asserting that Dr. Merryman provided the medical statement out of sympathy or a need to avoid 

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tension in his relationship with Plaintiff, the ALJ indicated that such a possibility is more likely 

where a medical statement “departs substantially from the rest of the evidence of record, as in the 

current case.” (R. at 27-28.) In light of the foregoing, the Undersigned concludes that the ALJ 

did not err in failing to give greater deference to Dr. Merryman’s medical statement. 

Plaintiff’s contrary arguments are not well taken. First, Plaintiff contends that the ALJ 

failed to both assess the requisite factors and provide good reasons for according little weight to 

Dr. Merryman’s medical statement. As discussed above, however, the ALJ complied with the 

necessary procedural requirements in determining how much weight to assign the various 

medical opinions. Second, Plaintiff contends that Dr. Orosz’s opinion is less reliable than that 

of Dr. Merryman because it covers a far shorter time span. (Reply 2, ECF No. 12.) Dr. Orosz 

reviewed Plaintiff’s treatment records on June 2, 2008. (R. at 309.) Dr. Merryman, as Plaintiff 

points out, treated Plaintiff through her DLI of March 31, 2010. The ALJ specifically considered 

the timing of Dr. Orosz’s review, however, and noted that “[t]he evidence received into the 

record after the reconsideration determination concerning the claimant’s status did not provide 

any credible or objectively supported new and material information that would alter the State 

Agency’s findings concerning the claimant’s limitations.”4

 (R. at 26-27.) 

Finally, the Undersigned concludes that substantial evidence supports the ALJ’s decision. 

Dr. Merryman’s treatment notes, as well as notations from Dr. Perkins’ treatment notes, 

 

4 The parties also dispute the importance of the timing of Dr. Merryman’s medical statement. Dr. 

Merryman generated the medical statement on August 19, 2010, which was nearly five months 

after Plaintiff’s DLI. (R. at 486.) Defendant asserts that Dr. Merryman’s medical statement is 

thus beyond the realm of consideration. (Op. 8, ECF No. 11.) Plaintiff counters that although 

the statement was generated five months after her DLI, it constitutes “evidence of a continuing 

disability,” rendering it appropriate for consideration. (Reply 2, ECF No. 12.) The Court need 

not determine the appropriateness of considering the medical statement in this case. The ALJ 

considered the statement despite its timing, see R. at 27 (citing to the medical statement in 

assigning little weight to Dr. Merryman’s opinion), and rejected it for the reasons set forth above. 

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combined with the opinion of state reviewing psychologist Dr. Orosz, constitute substantial 

evidence to support the ALJ’s RFC determination with respect to Plaintiff’s mental health. Not 

only did Dr. Orosz conclude that Plaintiff is only moderately impaired in the two categories 

noted above, but the records of Dr. Merryman demonstrate that Plaintiff is relatively stable when 

taking her medication. In making this determination, the Undersigned notes that Plaintiff cares 

for her children and her pets; cares for herself; finds enjoyment in activities; frequently reports 

positive progress to Dr. Merryman; has taken vacations; reports going to the grocery store on 

occasion; drives; and cleans her house. In addition, as Dr. Merryman points out several times in 

his treatment notes, any issues Plaintiff experienced prior to her DLI related to her mood are best 

attributed to her troubled marriage rather than a permanent mental health condition. 

Accordingly, the Undersigned concludes that the ALJ did not err in failing to accord 

greater deference to the medical statement of Dr. Merryman. Furthermore, substantial evidence 

supports the ALJ’s decision. It is, therefore, RECOMMENDED that Plaintiff’s Statement of 

Specific Errors be OVERRULED and that the Commissioner’s decision be AFFIRMED. 

VII. PROCEDURE ON OBJECTIONS 

 If any party seeks review by the District Judge of this Report and Recommendation, that 

party may, within fourteen (14) days, file and serve on all parties objections to the Report and 

Recommendation, specifically designating this Report and Recommendation, and the part in 

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). 

Response to objections must be filed within fourteen (14) days after being served with a copy. 

Fed. R. Civ. P. 72(b). 

 The parties are specifically advised that the 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 

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waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex 

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate 

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district 

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that 

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to 

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate 

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994 

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the 

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)). 

Date: July 17, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers 

 United States Magistrate Judge 

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