IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tasha K. Rudolph, :

Plaintiff, :

v. : Case No. 2:13-cv-0057

 : JUDGE GREGORY L. FROST

Commissioner of Social Security, Magistrate Judge Kemp

Defendant. :

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Tasha K. Rudolph, filed this action seeking

review of a decision of the Commissioner of Social Security

denying her application for supplemental security income. That

application was filed on April 24, 2009, and alleged that

plaintiff became disabled on April 1, 1999.

After initial administrative denials of her application,

plaintiff was given a hearing before an Administrative Law Judge

on August 28, 2011. In a decision dated October 20, 2011, the

ALJ denied benefits. That became the Commissioner’s final

decision on November 30, 2012, when the Appeals Council denied

review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on April 1, 2013. Plaintiff filed her

statement of specific errors on April 30, 2013. The Commissioner

filed a response on August 9, 2013. Plaintiff did not file a

reply brief, and the case is now ready to decide.

II. Plaintiff’s Testimony at the Administrative Hearing

Plaintiff, who was 34 years old at the time of the

administrative hearing and who has a tenth grade education,

testified as follows. Her testimony appears at pages 26-40 of

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the administrative record.

Plaintiff last worked in 2008 for a temporary service

agency. She worked only 40 days, assembling posters. 

Previously, she had worked for almost three months in a call

center receiving calls and placing orders. She lost that job

when she walked out after she and her supervisor had words.

Plaintiff said she currently was unable to work because she

was afraid of dealing with people and could not handle stress. 

She had problems daily getting out of bed and ordering her

thoughts. She could not concentrate on television shows and was

typically nervous, lonely and afraid. She also experienced mood

swings. She did not go out by herself due to conflicts with

others. She also suffered from crying spells. She did not sleep

well.

Additionally, plaintiff said that she used to have auditory

hallucinations frequently, but more recently it was only two or

three times a month. She used to have a cocaine problem but had

only relapsed twice in the past three years. She did not have

any physical limitations at all.

In a typical day, plaintiff stayed in bed for all but three

hours. She did clean her house and would go to the mailbox. She

cooked, usually by using the microwave. She did laundry although

sometimes her aunt helped her with that chore. Her aunt did the

grocery shopping. She attended counseling at Southeast Mental

Health Center twice a month. She was on medication but it did

not seem to be helping her.

III. The Medical Records

The medical records in this case are found beginning on page

167 of the administrative record. The Court summarizes the

pertinent records as follows.

Plaintiff underwent screening at Netcare, a mental health

provider, on September 3, 2003. She was brought in by her

grandmother. Plaintiff’s main complaint at that time was

decreased sleep, but she also reported other symptoms of

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depression, which had increased since the murder of her

boyfriend. She was assessed as suffering from anxiety and

depression, and was to be treated with medication and counseling.

Netcare’s records from about that time also show a GAF of 28.

The next Netcare records are dated in 2009. They show that

plaintiff reported a long history of panic attacks and also a

prior diagnosis of bipolar disorder. She was using alcohol to

excess in order to sleep. She also had cocaine dependence but it

was in full remission. At that time, her GAF was rated at 58.

Dr. Donaldson, a psychologist, saw plaintiff on August 18,

2009 for a consultative examination. She reported problems

getting along with others. She was agitated during the

examination and stated she did not know why it was being

conducted. Her affect was flat. She reported manic episodes

several times per week and she also experienced feelings of

hopelessness and worthlessness. She had said she had difficulty

concentrating and that she worried excessively. Dr. Donaldson

evaluated plaintiff’s intelligence as in the borderline range and

thought she had limited judgment. She had a full-scale IQ of 72. 

His diagnoses included generalized anxiety disorder, bipolar II

disorder, and borderline intellectual functioning. He rated her

GAF at 50-55 and thought she could deal with simple instructions

and perform repetitive tasks without any impairment. However,

her ability to attend to relevant stimuli was moderately

impaired, as was her ability to relate to others and to withstand

ordinary work stress. (Tr. 202-07).

A state agency reviewer, Dr. Waddell, also expressed

opinions about plaintiff’s mental impairments and limitations. 

He thought she suffered from bipolar II disorder, borderline

intellectual functioning, and generalized anxiety disorder, all

of which caused her to suffer moderate difficulties in social

functioning and in maintaining concentration, persistence and

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pace. He concluded that she was moderately impaired in nine

different areas of functioning, although two of them related to

dealing with detailed instructions. The rest had to do with

maintaining attention and concentration for extended periods,

keeping a schedule and being punctual, working around others,

dealing with changes in the workplace, and handling ordinary work

stress. In the narrative portion of his report, Dr. Waddell said

that “[c]laimant remains able to complete simple, routine tasks. 

She would work best in settings where interaction with others is

minimal and superficial and in settings that did not require

meeting strict time or production schedules.” (Tr. 209-26). 

Those opinions were subsequently confirmed by Dr. Semmelman,

another state agency reviewer. (Tr. 227).

The balance of the medical records show sporadic assessments

and treatment, much of it for substance abuse. One note from

February 11, 2011, indicates that plaintiff was referred to a Dr.

Ahmed, who “found no mood disorder or psychosis of any kind.” 

(Tr. 274). That note also lists the diagnosis of bipolar

disorder as questionable. Plaintiff had said that after she lost

a baby in November, 2010, she wanted to go back to work and was

going to ask her case manager for assistance. She was attending

group counseling and twelve-step meetings and she was having some

group anxiety issues there, but she was relating well to others

in her counseling group. For some of the time she was in

counseling, she was either an inpatient at Maryhaven or living at

Faith Mission. GAF ratings from that time period appear to range

from 45 to 50. (Tr. 254, 321). 

 IV. The Vocational Testimony

A vocational expert, Mr. Hartung, also testified at the

administrative hearing. His testimony begins at page 40 of the

record. 

Mr. Hartung classified plaintiff’s past work as an order

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clerk as semi-skilled and sedentary, although plaintiff performed

it at the unskilled level. There was no other past relevant

work.

Mr. Hartung was asked questions about someone who could work

at any exertional level but who could do only simple, routine

tasks, could work only in settings where interaction with others

was minimal and superficial, and did not have to meet strict

time-work production schedules. He responded that such a person

could not do plaintiff’s past work, but that such a person could

do a wide variety of unskilled jobs such as freight and stock

handler, janitorial cleaner, grounds-keeping worker, and stock

clerk. If the same person were limited as plaintiff testified,

or had to be off task 20 to 25% of the typical work day, she

could not work. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 17 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff

had not engaged in substantial gainful activity after her

application date of April 24, 2009. As far as plaintiff’s

impairments are concerned, the ALJ found that plaintiff had

severe impairments including borderline intellectual functioning,

a generalized anxiety disorder, a bipolar II disorder, alcohol

dependence in remission, cocaine dependence in remission, and a

mood disorder. The ALJ also found that plaintiff’s impairments

did not, at any time, meet or equal the requirements of any

section of the Listing of Impairments (20 C.F.R. Part 404,

Subpart P, Appendix 1).

Moving to the next step of the sequential evaluation

process, the ALJ found that plaintiff had the residual functional

capacity to perform a full range of work at all exertional levels

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but was limited to jobs which could be done in settings where

interaction with others is minimal and superficial and with no

tight time deadlines or heavy production quotas. The ALJ found

that, with these restrictions, plaintiff could perform those jobs

identified by the vocational expert such as freight and stock

handler, janitorial/cleaner, and stock clerk (including order

filler) and that such jobs existed in significant numbers in the

regional economy. Consequently, the ALJ concluded that plaintiff

was not entitled to benefits. 

VI. Plaintiff’s Statement of Specific Errors

 In her statement of specific errors, plaintiff asserts that

the ALJ’s residual functional capacity finding was erroneous

because it did not factor in the opinions of the consultative

examiner, Dr. Donaldson, and it improperly weighed and credited

the opinions of the state agency reviewer, Dr. Waddell. The

Court reviews the ALJ’s decision using this legal standard:

Standard of Review. Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

Commissioner] as to any fact, if supported by substantial

evidence, shall be conclusive. . . ." Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion'" Richardson v. Perales, 402

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.

NLRB, 305 U.S. 197, 229 (1938)). It is "'more than a mere

scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

Cir. 1976). The Commissioner's findings of fact must be based

upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th

Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.

1984). In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into

account whatever in the record fairly detracts from its weight.'" 

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Beavers v. Secretary of Health, Education and Welfare, 577 F.2d

383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,

340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human

Services, 755 F.2d 495, 497 (6th Cir. 1985). Even if this Court

would reach contrary conclusions of fact, the Commissioner's

decision must be affirmed so long as that determination is

supported by substantial evidence. Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).

Plaintiff’s first argument is that the ALJ was required by

regulation (20 C.F.R. §416.927(c)) to evaluate all of the medical

evidence and medical opinions in the record. However, she claims

that he did not evaluate Dr. Donaldson’s opinion at all or

discuss how much weight, if any, to assign to it, and that this

failure was prejudicial error. She contends that she was

deprived of an important procedural right, namely the right to

have that evidence weighed under §416.927(c), and that this

failure was prejudicial since the record does not reflect how Dr.

Donaldson’s opinions were evaluated (if they were evaluated at

all). In response, the Commissioner argues, rather bluntly, that

plaintiff’s claim that the ALJ did not consider Dr. Donaldson’s

opinion is “false” and that even though Dr. Donaldson was not a

treating source, “the ALJ appropriately considered and addressed

Dr. Donaldson’s findings.” Memorandum in Opposition, Doc. 17, at

3. Obviously, a close review of the ALJ’s decision is needed in

order to resolve this issue.

At page 12 of the record, the ALJ made the blanket statement

that he “considered opinion evidence in accordance with the

requirements of 20 CFR 416.927 and SSRs 96-2p, 96-5p, 96-6p and

06-3p.” On the following page, he described the evaluation done

by Dr. Donaldson (whom he refers to as a DDS consultant) and he

devoted a full paragraph to describing the observations made by

Dr. Donaldson at that examination and some of the conclusions he

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reached. (Tr. 13-14). After reviewing additional medical

evidence, including the form filled out by Dr. Waddell, the ALJ

reached his conclusion as to plaintiff’s residual functional

capacity, which he based on both that evidence and “the opinions

of the DDS consultants.” (Tr. 15). Given the earlier reference

to Dr. Donaldson as a DDS consultant, this reference appears to 

include Dr. Donaldson as well as Dr. Waddell. The ALJ’s decision

makes that even clearer by concluding with another reference to

“medical records from treating sources, examination and

evaluation by consulting doctors, and opinions from non-examining

state agency medical consultants.” Id. Dr. Donaldson was the

only consulting doctor who performed an examination. Therefore,

plaintiff’s claim that the ALJ made no reference to Dr.

Donaldson’s report or findings is refuted by the record.

Plaintiff appears to be arguing, however, that the ALJ

failed to comply with the applicable regulations by not citing to

the various factors found in §416.927(c) and by not making an

explicit finding as to the weight given to Dr. Donaldson’s

opinions. Apart from the fact that Dr. Donaldson and Dr. Waddell

appeared to agree that plaintiff suffered from, at most, moderate

limitations in some areas of work-related function, and that Dr.

Donaldson did not express the opinion that plaintiff was

disabled, the Commissioner is correct that an ALJ need not

provide a detailed rationale citing to all of the factors listed

in the applicable regulation in order for the record to show that

he performed the analysis mandated by that regulation. This

Court has held as much. See, e.g., Nolan v. Commissioner of

Social Sec., 2013 WL 1787386, (S.D.Ohio Apr. 25, 2013), adopted

and affirmed 2013 WL 4831029 (S.D.Ohio Sept. 10, 2013). There,

the Court, quoting Smith v. Comm'r of Social Security, 482 F.3d

873, 876 (6th Cir.2007), concluded that “although the record must

contain substantial evidence supporting the rejection or

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discounting of a consultative examiner's opinion, social security

regulations ‘require[] ALJs to give reasons for only treating

sources.’” It is only “when an ALJ completely ignores evidence

from non-treating sources that is inconsistent with the ALJ's

residual functional capacity assessment [that] a remand may be

required.” Id. at *6. And that is not what happened here,

because the ALJ’s assessment of plaintiff’s residual functional

capacity is fairly consistent with Dr. Donaldson’s evaluation.

Plaintiff, however, argues for a different result, relying

on the Court of Appeals’ decision in Cole v. Astrue, 661 F.3d 931

(6th Cir. 2011). In Cole, however, the court was dealing with

evidence from a treating source, not an examining consultant. So

while it true that, with respect to a treating source, the ALJ

must always give a statement of good reasons, supported by the

evidence, for failing to afford that source’s opinion controlling

weight, the same is simply not true for consultative examiners

like Dr. Donaldson. Cole is simply inapplicable to this case. 

There was no regulatory violation with respect to Dr. Donaldson’s

opinion, and certainly no prejudice to plaintiff from the absence

of more detailed discussion of Dr. Donaldson’s findings.

Plaintiff’s other argument focuses on the way in which the

ALJ treated Dr. Waddell’s findings. The first part of the

argument points out a seeming inconsistency between findings made

by the ALJ as part of his use of the psychiatric review technique

form and those made by Dr. Waddell. Plaintiff contends that the

ALJ actually found her to be more limited, at least in the area

of social functioning, than Dr. Waddell did, and the ALJ’s

statement that Dr. Waddell’s views were supported by the record

simply cannot be true in the face of this contrary finding.

There are a number of fatal flaws in this argument. The

Commissioner correctly notes that the ALJ makes the final

decision as to residual functional capacity and need not accept

in its entirety the opinion of a state agency reviewer. Further,

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plaintiff’s argument actually seems to suggest that if the ALJ

made a finding that was more favorable to her than those

expressed in Dr. Waddell’s report, it is the ALJ’s more favorable

finding that lacks support in the record. That argument hardly

supports a remand. Lastly, the express purpose of the

psychiatric review technique form is to evaluate the severity of

a mental impairment and to compare its severity, if it is severe,

to the Listing of Impairments. See 20 C.F.R. §416.920a. It is a

different inquiry than the residual functional capacity

evaluation, and is pertinent only at steps two and three of the

five-step sequential process for evaluating disability claims. 

See Rabbers v. Comm’r of Social Security, 582 F.3d 647, 652 (6th

Cir. 2009)(“The regulations provide a ‘special technique’ for

evaluating the severity of a mental impairment at steps two and

three”). 

Plaintiff does argue that, to the extent that the ALJ

accepted Dr. Waddell’s findings in determining her residual

functional capacity (which is step four of the process), he erred

because Dr. Waddell’s opinion was inconsistent with the record as

a whole. She points to some differences in his views and those

of Dr. Donaldson and to some other facts - her homelessness or

dependence on relatives, and her aunt’s third-party report - as

additional inconsistencies. She also argues that mere

consistency between Dr. Waddell’s findings and the record is not

enough to support the ALJ’s reliance on those findings.

The inconsistencies between Drs. Donaldson and Waddell are,

at best, minor ones. Dr. Donaldson did see a moderate limitation

in plaintiff’s motivation to complete work-related tasks, but

that is not necessarily a psychological impairment, and not one

noted on the residual functional capacity form which Dr. Waddell

was required to complete. In any event, Dr. Waddell found

several moderate limitations on plaintiff’s ability to function

but nonetheless concluded that she could work with restrictions -

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restrictions which, according to the vocational expert, did not

preclude substantial gainful employment. Additionally, it is not

error for an ALJ to accept a medical opinion over third-party

evidence, nor to find a claimant less than credible, and

plaintiff has not argued any error with respect to the ALJ’s

credibility determinations. Finally, although plaintiff suggests

that even if Dr. Waddell’s finding were consistent with the

record, the ALJ erred by not going explicitly through the other

factors found in §416.927(c), as noted above, there is no

requirement that the ALJ do so, nor has plaintiff argued

persuasively that if he had done so, he might have assigned less

weight to Dr. Waddell’s views. The Court finds no error in the

ALJ’s decision to rely heavily upon both Dr. Waddell and Dr.

Donaldson - and, contrary to plaintiff’s argument, he considered

both sets of opinions - in reaching his residual functional

capacity determination. Consequently, there is no basis for

remanding the case.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be overruled and that the Court

enter judgment in favor of the defendant Commissioner of Social

Security.

VIII. Procedure on Objections

If any party objects to this Report and Recommendation,

that party may, within fourteen (14) days of the date of this

Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection

is made, together with supporting authority for the objection(s). 

A judge of this Court shall make a de novo determination of those

portions of the report or specified proposed findings or

recommendations to which objection is made. Upon proper

objections, a judge of this Court may accept, reject, or modify,

in whole or in part, the findings or recommendations made herein,

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may receive further evidence or may recommit this matter to the

magistrate judge with instructions. 28 U.S.C. §636(b)(1).

 The parties are specifically advised that failure to

object to the Report and Recommendation will result in a

waiver of the right to have the district judge review the

Report and Recommendation de novo, and also operates as a

waiver of the right to appeal the decision of the District

Court adopting the Report and Recommendation. See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d

947 (6th Cir. 1981).

/s/ Terence P. Kemp 

 United States Magistrate Judge

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