IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Robert D. Hardy, :

 Plaintiff, :

 v. : Case No. 2:12-cv-0715

Commissioner of Social : JUDGE EDMUND A. SARGUS, JR.

 Security, Magistrate Judge Kemp

 :

Defendant. 

 

 REPORT AND RECOMMENDATION

 I. Introduction

 Plaintiff, Robert D. Hardy, filed this action seeking review

of a decision of the Commissioner of Social Security denying his

applications for disability insurance benefits and supplemental

security income. Those applications were filed on August 26, 2008

and September 15, 2008, and alleged that plaintiff became disabled

on December 21, 2007.

After initial administrative denials of his applications,

plaintiff was given a hearing before an Administrative Law Judge

on September 30, 2010. In a decision dated October 21, 2010, the

ALJ denied benefits. That became the Commissioner’s final

decision on June 11, 2012, when the Appeals Council denied review. 

After plaintiff filed this case, the Commissioner filed the

administrative record on December 11 and December 13, 2012. 

Plaintiff filed his statement of specific errors on January 8,

2013. The Commissioner filed a response on April 12, 2013. No

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

II. Plaintiff’s Testimony at the Administrative Hearing

 Plaintiff, who was 33 years old at the time of the

administrative hearing and who completed the eleventh grade,

testified as follows. His testimony appears at pages 35-53 of the

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administrative record.

The ALJ began by asking plaintiff about his marijuana use. 

Plaintiff stated he had not used since February of 2010 and that

he had been in a recovery program since then. Plaintiff testified

that he last worked in 2008 through a temporary services agency,

but only for a few days. In 2007 he worked in a warehouse loading

trucks. He did not think he could do that job any more because of

difficulties focusing and concentrating. 

Plaintiff stated he did not drive and did not have a driver’s

license. He stopped driving after being put on probation in 2005,

but he never had a license. He was also arrested for stealing

license plates.

In response to questions from his attorney, plaintiff stated

that he had been getting treatment for hearing voices. He was

taking medication for that problems as well as for anxiety and

depression. Even with the medication, he was still hearing voices

and having visual hallucinations. He also had nightmares which

prevented him from sleeping. He was always tired, which was also

a side effect of his medications. He did not often leave his

apartment and did not like being around people.

III. The Medical Records

The medical records in this case are found beginning on page

253 of the administrative record. All of the issue raised by

plaintiff relate to his psychological condition, so the Court’s

review of the medical evidence will focus on those records.

Plaintiff was admitted to Twin Valley Behavioral Healthcare

on June 20, 2008, with symptoms of depression, thoughts of

suicide, and auditory hallucinations. He reported having been

increasingly anxious and depressed since the death of his fianceé

in 2005, and also stated he had been hearing voices since he was

17. He had no history of psychiatric treatment. He admitted to

daily marijuana use since age 17 and to some use of alcohol. The

diagnoses included major depressive disorder, recurrent, with

psychotic features, cannabis dependence, and alcohol abuse in

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early partial remission. He was started on various medications

and on supportive psychotherapy. (Tr. 253-56). He had been seen

at NetCare shortly before that, reporting essentially the same

symptoms and receiving essentially the same diagnosis. 

Plaintiff then began seeing Dr. Nahar. In a note signed on

September 11, 2008, Dr. Nahar diagnosed a schizoaffective disorder

as well as chronic PTSD. He rated plaintiff’s GAF at 50. At that

time, plaintiff’s medications were changed. 

Based on these records, Dr. Finnerty, a state agency

reviewer, concluded that the file did not contain enough

information to make a disability determination. He suggested

obtaining third party information and noted that plaintiff had not

responded to calls or letters. (Tr. 307).

The file contains additional progress notes from Dr. Nahar

from 2008 and 2009. For the most part, the notes indicate some

response to medications, but otherwise the continuation of the

same type of symptoms. 

A state agency reviewer, Dr. Hoyle, expressed an opinion

about plaintiff’s condition in a report dated January 22, 2009. 

Dr. Hoyle thought that plaintiff suffered from a schizoaffective

disorder, anxiety, and substance addiction, and that he had

moderate difficulties in social functioning and in maintaining

concentration, persistence and pace. The form completed by Dr.

Hoyle notes a moderate impairment in maintaining concentration and

attention for extended periods, keeping a schedule, sustaining an

ordinary routine, working around others, completing a workday and

work week without interruption from psychologically-based

symptoms, and several other moderate restrictions. In the

narrative portion of the report, Dr. Hoyle identifies some concern

about whether plaintiff was disabled based on the fact that he had

been able to work for several years with these symptoms. Dr.

Hoyle also noted that plaintiff performed activities of daily

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living such as making meals, doing household chores, paying bills,

reading, and visiting with family, and concluded that plaintiff

could do simple tasks in a static environment without strict time

or production quotas and could interact with others occasionally

and superficially but would work best on his own. (Tr. 340-57). 

Dr. Nahar, however, was of a different opinion, describing

plaintiff as having either marked or extreme limitations in

fifteen separate areas of work-related activities. (Tr. 358). As

an explanation for his opinion, he referred to office notes. 

Those notes showed some improvement in plaintiff’s symptoms and

that he was attending job classes, but they still reflected a good

deal of depression. Dr. Nahar also filled out a different form

indicating that plaintiff had marked restrictions in three of four

work-related areas (behaving in an emotionally stable manner,

relating predictably in social situations, and demonstrating

reliability). (Tr. 384-85). He also indicated that all of

plaintiff’s symptoms were caused by his schizoaffective disorder

and not by substance abuse. (Tr. 517). 

The only other significant records are, first, a NetCare note

from 2010 indicating that plaintiff was having issues after having

been off his medication for three weeks, and, second, a letter

dated October 1, 2010 stating that plaintiff had been sober for

seven months. (Tr. 520-28, 529). 

 IV. The Vocational Testimony

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

administrative hearing. His testimony begins at page 53 of the

record. 

Mr. Brown confirmed, through questioning plaintiff, that

plaintiff had worked as a fast food restaurant cook for a number

of years. That job is light and semi-skilled. Plaintiff’s other

work was described as stores laborer, which is usually performed

at the medium exertional and is unskilled. Plaintiff performed

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the job at the heavy exertional level, however.

Mr. Brown was asked to assume that plaintiff could work at

all exertional levels and was able to understand, remember and

carry out simple tasks and instructions, was able to maintain

concentration and attention for two-hour segments over an eighthour work period, could respond appropriately to supervisors and

coworkers in a task-oriented setting where contact with others was

casual and infrequent, and could adapt to simple changes and avoid

hazards in a setting without strict production standards. With

those restrictions, plaintiff could, in Mr. Brown’s view, both do

his past work as a stores laborer and could also perform a number

of unskilled medium jobs such as machine tender, hand packager,

and cleaner. Over 5,000 such jobs existed locally, and almost

900,00 nationally. However, if plaintiff were as limited as Dr.

Nahar indicated, he could not work. 

V. The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 8

through 21 of the administrative record. The important findings

in that decision are as follows.

The Administrative Law Judge found, first, that plaintiff met

the insured requirements for disability benefits through March 31,

2011. Next, plaintiff had not engaged in substantial gainful

activity from his alleged onset date of December 21, 2007 through

the date of the decision. As far as plaintiff’s impairments are

concerned, the ALJ found that plaintiff had only one severe

impairment, namely depression. The ALJ also found that

plaintiff’s impairment 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 could work at all exertional levels

and was able to understand, remember and carry out simple tasks

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and instructions, was able to maintain concentration and attention

for two-hour segments over an eight-hour work period, could

respond appropriately to supervisors and coworkers in a taskoriented setting where contact with others was casual and

infrequent, and could adapt to simple changes and avoid hazards in

a setting without strict production standards. The ALJ found

that, with these restrictions, plaintiff could still perform his

past relevant work as a stores laborer, and could also perform

jobs identified by the vocational expert such as machine tender,

hand packager, and cleaner. Consequently, the ALJ concluded that

plaintiff was not entitled to benefits.

VI. Plaintiff’s Statement of Specific Errors

 In his statement of specific errors, plaintiff raises three

issues. He argues that the ALJ improperly rejected Dr. Nahar’s

opinions and also failed to incorporate those limitations into the

questions posed to the vocational expert. Further, he requests

that, if the case is remanded for further proceedings, the Court

should order the Commissioner to retain a medical expert. The

Court generally reviews these contentions under this legal

standard: 

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

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

Commissioner] as to any fact, if supported by substantial

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

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

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

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

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

Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976). 

The Commissioner's findings of fact must be based upon the record

as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985);

Houston v. Secretary, 736 F.2d 365, 366 (6th Cir. 1984); Fraley v.

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Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining

whether the Commissioner's decision is supported by substantial

evidence, the Court must "'take into account whatever in the

record fairly detracts from its weight.'" Beavers v. Secretary of

Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)

(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488

(1951)); Wages v. Secretary of Health and Human Services, 755 F.2d

495, 497 (6th Cir. 1985). Even if this Court would reach contrary

conclusions of fact, the Commissioner's decision must be affirmed

so long as that determination is supported by substantial

evidence. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.

1983).

In any case where the plaintiff challenges the ALJ’s analysis

of the opinion of a treating physician (which is entitled to

deference if properly supported and consistent with the other

evidence of record, see 20 C.F.R. §404.1527), the Court begins by

describing in some detail the reasons given by the ALJ for

discounting the treating source’s opinion. Here is what the ALJ

in this case said about Dr. Nahar’s views on disability:

As to the opinion evidence, the claimant’s treating

physician, Shamsun Nahar M.D., issued two opinions

regarding the claimant’s ability to perform work

related activities, one in February 2009 and one in

February 2010. These opinions were given in the form

of a checklist and indicated that the claimant was at

least “Markedly Limited” in nearly all work related

activities (Ex. 10F, 11F/1-2). Additionally, Dr. Nahar

stated that the claimant had “Extreme” limitations in

his activities of daily living and episodes of

deterioration (Ex 11F/4). Although Dr. Nahar is the

claimant’s treating physician, I give these opinions

little weight, as they are inconsistent with the

medical record of evidence and the claimant’s

activities of daily living. The claimant has admitted

at the hearing and in the record that his activities of

daily living are relatively unaffected by his

impairment. He plays basketball, writes poetry, reads,

watches television, and performs housework (Ex. 14E.5). 

He also reported that he is able to care for his

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children, which includes picking them up, feeding them,

and taking them home (Ex 4F/4). This shows that the

claimant is not as limited as Dr. Nahar indicates in

her opinions. The record also shows that the claimant

has had no extended episodes of decompensation. 

Additionally, Dr. Nahar issued both opinions in the

form of a checklist, which is not as persuasive as a

written analysis which discusses the basis behind the

opinion. 

Tr. 24-25. The ALJ went on to discuss Dr. Hoyle’s opinion,

describing its findings and giving it “great weight, as it is

consistent with the medical record of evidence and the claimant’s

activities of daily living.” (Tr. 25). 

It has long been the law in social security disability cases

that a treating physician's opinion is entitled to weight

substantially greater than that of a nonexamining medical

advisor or a physician who saw plaintiff only once. 20 C.F.R.

§404.1527(d); see also Lashley v. Secretary of H.H.S., 708 F.2d

1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,

1113 (S.D. Ohio 1981). However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to

which that physician’s own objective findings support or

contradict that opinion. Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.

1990). The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations

performed by non-treating medical sources, and may consider the

claimant’s activities of daily living. Cutlip v. Secretary of

HHS, 25 F.3d 284 (6th Cir. 1994). No matter how the issue of the

weight to be given to a treating physician’s opinion is finally

resolved, the ALJ is required to provide a reasoned explanation

so that both the claimant and a reviewing Court can determine why

the opinion was rejected (if it was) and whether the ALJ

considered only appropriate factors in making that decision. 

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Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.

2004).

Here, plaintiff makes the related arguments that the ALJ’s

decision, although it states in conclusory fashion that Dr.

Nahar’s opinion is “inconsistent with the medical record of

evidence,” does not adequately explain that alleged inconsistency

- in plaintiff’s words, it does not “provide citations to the

record in support of this conclusion” (Statement of Errors, Doc.

16, at 9), and, in any event, Dr. Nahar’s treatment notes (which

make up most of the medical evidence) “consistently indicate

abnormal motor activity, affect, mood, thought content (including

auditory and/or visual hallucinations); and memory.” Id. The

Court agrees that the ALJ did not adequately articulate the bases

for rejecting Dr. Nahar’s opinion.

One of the reasons why an ALJ must articulate the basis of

his or her rejection of a treating source’s opinion is to allow

the reviewing Court to determine if the rejection is properly

based upon the evidence of record. See Wilson, supra; see also

Bowen v. Comm’r of Social Security, 478 F.3d 742, 749 (6th Cir.

2007)(“the goals of § 1527(d)(2) cannot be satisfied by bald

speculation”). As the Court of Appeals has observed, “it is not

enough to dismiss a treating physician's opinion as

‘incompatible’ with other evidence of record; there must be some

effort to identify the specific discrepancies and to explain why

it is the treating physician's conclusion that gets the short end

of the stick.” Friend v. Comm’r of Social Security, 375 Fed.

Appx. 543, 552 (6th Cir. Apr. 28, 2010). See also Blackburn v.

Colvin, 2013 WL 3967282, *7 (N.D. Ohio July 21, 2013)(finding the

ALJ’s articulation of this factor inadequate because “[w]hile the

ALJ concluded that the treating physician's opinions were

inconsistent with the medical evidence, he does not offer any

explanation for his conclusion”). The same is true here; the

purported inconsistency with the plaintiff’s description of his

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activities of daily living will be discussed below, but there is

absolutely nothing in the ALJ’s decision which would allow either

the plaintiff or this Court to determine what part of the medical

record the ALJ found to be inconsistent with Dr. Nahar’s

opinions. 

Further, as the Friend decision explains, “even when an ALJ

correctly reaches a determination that a treating source's

medical opinion is inconsistent with the other substantial

evidence in the record, such a determination ‘means only that the

opinion is not entitled to ‘controlling weight,’ not that the

opinion should be rejected.’” Id. at 551, quoting Blakley v.

Comm’r of Social Security, 581 F.3d 399, 408 (6th Cir. 2009). 

This Court has held that even if a treating source opinion is not

consistent with other evidence of record or not well-supported,

an “ALJ err[s] as a matter of law by omitting from his analysis a

discussion or consideration of whether ... any weight was due

these medical source opinions under any of the remaining factors

of the Regulations.” Lewis v. Astrue, 2009 WL 689052, *7 (S.D.

Ohio Feb. 24, 2009), citing Wilson, supra. The conclusory

statement that the ALJ assigned “little weight” to Dr. Nahar’s

opinions without discussing any of the other regulatory factors

also falls short of what Wilson and its progeny require.

The other significant issue in this case is the ALJ’s

determination that plaintiff’s activities of daily living were

inconsistent with marked or extreme psychological limitations. 

Relying primarily on the information in Exhibit 14E, the ALJ

found that those activities included household chores, cooking,

driving, lifting weights, playing sports, and shopping for

groceries. That document (Tr. 238-43), which includes a

background questionnaire completed by plaintiff, consists of

questions which simply ask whether the plaintiff is “able” to do

certain physical activities. There is no dispute in this case

that plaintiff’s physical capabilities are essentially unlimited. 

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The only questions which appear to relate to his psychological

state are those which ask about his typical day; there, plaintiff 

said that his day consisted of getting up, going to treatment,

going home, lifting weights, reading, and going to bed. Nothing

in that statement is inconsistent with his testimony at the

administrative hearing that he leaves his house primarily to go

to treatment or to substance abuse counseling, that he suffers

from hallucinations, and that he could not concentrate in a work

setting or be around other people, nor is it inconsistent with

the observations made by Dr. Nahar. Further, plaintiff completed

another form (Ex. 11E, Tr. 219-27) dealing more specifically with

psychological limitations. He indicated there that he had

difficulty concentrating, remembering, finishing tasks, and

coping with anger, that he only left home twice a week, that he

needed to be reminded to go places, that he did not get along

with family or others, that he shopped for necessities no more

than two hours per month, and that his cooking consisted of

preparing TV or frozen dinners. The ALJ made no mention of that

document at all other than a brief reference to it in connection

with a comment that plaintiff identified inability to pay child

support as a stressor, but appeared to have the money to abuse

alcohol and drugs. It strongly appears that the ALJ engaged in a

selective reading of the record - choosing to credit certain

statements made by plaintiff about what he can do, but

disregarding his statements about what he cannot - instead of

considering the record as a whole. This, too, is error. See,

e.g, Rogers v. Comm’r of Social Security, 486 F.3d 234, 247 (6th

Cir. 2007)(“the ALJ must make a determination of the credibility

of the claimant in connection with his or her complaints ‘based

on a consideration of the entire case record,’” quoting Social

Security Ruling 96-7p); see also Callahan v. Astrue, 2012 WL

2931175, *8 (S.D. Ohio July 18, 2012), adopted and affirmed 2012

WL 3245523 (S.D. Ohio Aug 09, 2012)(the ALJ “may not selectively

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reference a portion of the record which casts Plaintiff in a

capable light to the exclusion of those portions of the record

which do not”), citing Howard v. Comm’r of Social Security, 276

F.3d 235, 240-41 (6th Cir. 2002). 

Plaintiff’s final argument is that, if the case is remanded,

the Commissioner be directed to retain a medical expert. He

cites no authority for this request. 

In Smith v. Comm’r of Social Security, 2010 WL 6303884, *6

(S.D. Ohio Nov 24, 2010), adopted and affirmed 2011 WL 1125031

(S.D. Ohio Mar 24, 2011), this Court said:

As the court observed in Griffin v. Astrue, 2009 WL

633043 *10 (S.D. Ohio March 6, 2009), “[t] he primary

function of a medical expert is to explain, in terms

that the ALJ, who is not a medical professional, may

understand, the medical terms and findings contained in

medical reports in complex cases.” Whether to call such

an expert to testify is generally left to the

discretion of the ALJ, see id., quoting Haywood v.

Sullivan, 888 F.2d 1463, 1467–68 (5th Cir. 1989), and

the Court may overturn the exercise of that discretion

only if it appears that the use of a medical consultant

was necessary — rather than simply helpful — in order

to allow the ALJ to make a proper decision. See Landsaw

v. Secretary of Health and Human Services, 803 F.2d

211, 214 (6th Cir.1986), quoting Turner v. Califano,

563 F.2d 669, 671 (5th Cir.1977).

Plaintiff bases his argument on the ALJ’s failure to give proper

weight to Dr. Nahar’s opinion, but that is not the same thing as

the inability to understand either the medical issues in the case

or the opinions expressed by the treating and non-treating

sources. There is nothing in this record to indicate such a lack

of understanding; to hold otherwise would be to require the

retention of a medical expert in any case where an ALJ erred in

her evaluation of the medical evidence, and that is clearly not

the law. The Court finds no merit in this last argument, but

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concludes, on the basis of the first two issues advanced in

plaintiff’s statement of errors, that a remand is necessary.

 VII. Recommended Decision

Based on the above discussion, it is recommended that the

plaintiff’s statement of errors be sustained to the extent that

the case be remanded to the Commissioner pursuant to 42 U.S.C.

§405(g), sentence four.

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,

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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