McCOMBS v. COMMISSIONER OF SOCIAL SECURITY

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Docket Number

Civil Action 2:09-cv-332.

Acts

The Public Health And Welfare — Social Security — Federal Old-Age, Survivors, And Disability Insurance Benefits — Evidence, Procedure, And Certification For Payments

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MARY M. McCOMBS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION

COMBS, Judge:

Elliot Electric/Kentucky, Inc., appeals an opinion and order of the Franklin Circuit Court dismissing for lack of jurisdiction its appeal of a decision of the Kentucky Occupational Safety and Health Review Commission (the Commission). After our review, we affirm.

Following its investigation of a work-place fatality, the Kentucky Department of Labor, Environmental and Public Protection Cabinet, issued a citation and notification of penalty to the employer, Elliot Electric, on September 13, 2304. Elliot Electric contested the issuance of the citation and the imposition of a penalty. Pursuant to the provisions of Kentucky Revised Statutes (KRS) Chapter 338, the Kentucky Occupational Safety and Health Review Commission conducted a hearing to consider the employer's challenge.

After reviewing "he pleadings, testimony. and exhibits, the Commission's hearing officer concluded that Elliot Electric had indeed violated an established federal workplace standard that tragically resulted in the electrocution and death of its employee. The hearing officer also concluded that the penalty proposed by tie Department of Labor should be affirmed. Finally, the hearing officer recited that her recommended order "may be called for further review by the Commission within a forty day period following issuance." Findings of Fact, Conclusions of Law, and Recommended Order, Notice of Appeal Rights at 10.

803 KAR 50:010 § 48 provides in part that the "[f]ailure to act on any petition for discretionary review in the review period shall be deemed a denial thereof."

The recommended order of the hearing officer was conditionally affirmed by the Commission and was served on the parties on May 30, 2006. In its separate order, the Commission described a fourth-day review period and advised the parties that any petition for discretionary review had to be submitted within 25 days; any opposition to a petition for discretionary review was to be filed within 35 days. The Commission's order specifically provided that the hearing officer's recommended order "is adopted and affirmed as the Decision, Findings of Fact, Conclusions of Law and Final Order of this Commission unless it is called for review and further consideration . . . within 40 days of [May 30, 2006]" (Emphasis added).

On June 26, 2006, Elliot Electric filed a timely petition for discretionary review of the recommended order. On July 5, 2006, the Department of Labor filed a timely response in opposition to the petition. However, the Commission did not act, and the forty-day review period expired.

On August 1, 2006, the Commission suddenly issued an order purporting to grant Elliot Electric's petition for review. The Department of Labor declined to comply with the Commission's request for briefs, arguing that the Commission lacked jurisdiction over the matter since the forty-day review period had expired. The Department of Labor contended that the hearing officer's decision had duly become the Commission's final order.

In response, Elliot Electric conceded that the forty-day review period had expired before the Commission decided to act. However, it observed as follows:

if the Department of Labor is correct in its position that the Commission lacks jurisdiction over this matter and [the employer's] time for appeal of the decision has passed, [the employer] will be left without a mechanism to challenge the hearing officer's erroneous decision.

Motion for Waiver of Rules at 2. On September 12, 2006, the employer requested the Commission to waive the forty-day review period and to reopen the matter.

On October 3, 2006, the Commission withdrew its decision to grant the employer's petition for review as having been improvidently granted. After reviewing its own regulations, the Commission concluded that it lacked the jurisdiction necessary to grant the employer's petition for discretionary review because the petition had been denied by operation of law as of July 10, 2006.

On October 10, 2006, Elliot Electric filed an appeal in Franklin Circuit Court, alleging that the decisions of the Department of Labor and the Commission were arbitrary and capricious and were otherwise not in accordance with the law. Elliot Electric contended that its appeal was filed pursuant to the provisions of KRS 338.091, requiring an appeal within thirty days of the Commission's final order, and it sought dismissal of the citation and penalty.

The Commission answered the complaint and alleged that Elliot Electric had failed to state a claim upon which relief could be granted. The Department of Labor filed a motion pursuant to Kentucky Rules of Civil Procedure (CR) 12.02 to dismiss for lack of subject matter jurisdiction.

In its memorandum in support of the motion to dismiss, the Department of Labor argued that the Commission's failure to act on the employer's petition for discretionary review within the forty-day review period necessarily meant that the hearing officer's recommended decision had become the Commission's final order by operation of law on July 10, 2006. "The intervening order of the Commission granting discretionary review had no legal effect because the hearing officer's decision had already become a final order nearly a month earlier." Memorandum in Support of Motion to Dismiss at 6. The Department of Labor argued that the employer's only recourse after the review period had ended was to file a timely appeal to the Franklin Circuit Court. Referring to the provisions of KRS 338.091, which permits an appeal within thirty days of the Commission's final order, the Department of Labor contended that the employer's appeal should have been filed on or before August 9, 2006 (30 days following the finality of the order by operation of law on July 10, 2006).

The Commission observed that strict compliance with a statute is required in order to confer jurisdiction in a matter involving a court's review of an administrative action. Where the conditions for the exercise of power by a court have not been met, judicial power cannot be lawfully invoked. Apparently in recognition of the harshness of the outcome that it proposed, the Commission noted that the employer had been on notice that the hearing officer's decision would become final unless it was called for review by the Commission within the forty-day review period. Once the forty-day review period had expired on July 10, 2006, the Commission observed, the employer knew that its right to appeal to the circuit court would expire in thirty days' time. Since the employer had failed to appeal within thirty days following July 10, 2006, the circuit court's jurisdiction could not now be invoked.

On November 30, 2006, Elliot Electric filed a memorandum in opposition to the Department of Labor's motion to dismiss. While the employer conceded that the provisions of KRS 338.091 grant any party adversely affected or aggrieved by a final order of the Commission thirty days within which to appeal to the Franklin Circuit Court, it observed that the Kentucky Occupational Safety and Health Act "does not specify or impose any requirements pertaining to when an order of the [Commission] shall be deemed to be final or when [the Commission] loses jurisdiction over a case." Memorandum in Opposition to Dismiss at 7

Elliot Electric argued that its petition for discretionary review prevented the hearing officer's recommended order from becoming a final order of the Commission and contended that the Commission did not intend (nor was it at liberty) to divest itself of jurisdiction following tie forty-day review period. Elliot Electric argued that the Commission was within its authority to reconsider the hearing officer's recommended order by virtue of its inherent power to review its own orders and that it was empowered by the provisions of 803 KAR 50:010 § 59 to waive it own 40-day review rule. The employer argued further that it had been barred from appealing to the circuit court during the period before the Commission withdrew its decision to grant its petition for discretionary review because it. had not yet exhausted its administrative remedy. Finally, Elliot Electric argued. hat the statutory thirty-day period for appeal to the Franklin Circuit Court is not jurisdictional and had been equitably tolled by the Commission's decision to grant the petition for discretionary review.

On December 21, 2006, the Commission responded to the Department of Labor's motion to dismiss. The Commission conceded that the hearing officer's recommended order had become the Commission's final order on July 10, 2006 — before the Commission purported to grant the employer's petition for discretionary review and that it had lost jurisdiction over the matter before it attempted to grant the petition. It agreed that the circuit court's jurisdiction had not been properly invoked because of the untimeliness of Elliot Electric's appeal. However, the Commission conceded that its "untimely call for review may have led [the employer] to decide it need not file a timely appeal of the recommended order." Response to Motion to Dismiss at 14. Consequently, it requested the court to deny the Department of Labor's motion to dismiss "on the narrow point that [the employer] may not have known its time to appeal to Franklin [Circuit [Court] was running out." Id. In the alternative, the Commission requested that the court remand the matter "to enable the commission to review the recommended order entered by the hearing officer." Id.

On September 29, 2009, the Franklin Circuit Court's opinion and order were entered. The court concluded that pursuant to the Commission's regulations, its hearing officer's recommendation became the Commission's final order on July 10, 2006. The court observed that the employer had plainly failed to file its appeal within the allotted thirty days thereafter. Finally, the circuit court noted that an appeal from an administrative agency is a matter of legislative grace and that strict compliance with the statute providing for an appeal is required. The court held that its jurisdiction had not been properly invoked, and it dismissed the proceeding. This appeal followed.

The Commission is specifically directed by the General Assembly to hear and rule upon appeals from citations issued by the Department of Labor. KRS 338.071. It was also specifically directed by the General Assembly "to adopt and promulgate rules and regulations with respect to the procedural aspect of its hearings." KRS 338.071(4). Pursuant to these duly adopted rules and regulations:

The recommended order of the hearing officer may be called for review by any Commission member or by the Commission as a whole at any time within a forty (40) day period. If the recommended order is not ordered for further review, it shall become the final order of this Commission forty (40) days after the date of issuance.

803 KAR 50:010 § 47. (Emphasis added).

In this case, the hearing officer's recommended order was adopted and affirmed by the Commission, and it became the Commission's "final order" forty days after it was issued on May 30, 2006 — as Elliot Electric acknowledges. However, Elliot Electric argues that the final order "ceased to be a final order . . . when the [Commission] issued its [order granting discretionary review]" and that "the new final order date was now the date that the [Commission] withdrew its direction for review [October 3, 2006]." Appellant's Brief at 15 and 16. We disagree.

The recommended order of the Commission's hearing officer was the Commission's final order after the passage of forty days. Following expiration of the forty-day review period, the issues were regarded as finally disposed of and nothing remained for any future determination. See Hubbard v. Hubbard, 303 Ky. 411, 197 S.W.2d 923 (1946). Pursuant to its regulations, the Commission's failure to call for a review of the hearing officer's recommended order within the forty-day period indicated to the parties that the administrative proceeding had come to its end.

We are not aware of any provision in the enabling statutes that authorizes the Commission to reconsider its final decision or to extend the period of time for taking an appeal of its final order. Once the Commission's order became final, it did not retain jurisdiction to withdraw any previous orders and issue new ones. See Secretary, Labor Cabinet v. Boston Gear, Inc., 25 S.W.3d 130 (Ky. 2000). The employer refers to the provisions of 803 KAR 50.010 § 49(1), which permits any party aggrieved by a final order of the commission to file a motion for stay, "while the matter is within the jurisdiction of the commission."

However, this regulation speaks only to the powers of an agency "to enforce its validly entered orders, and its standing authority to retain enforcement jurisdiction of the same." Brighty v. Brighty, 883 S.W.2d 494, 496 (Ky. 1994). We do not interpret this rule to confer any authority upon the Commission to modify or alter its final order. "An administrative agency does not have any inherent or implied power to reopen or reconsider a final decision . . . ." Kentucky Bd. of Medical Licensure v. Ryan, 151 S.W.3d 778, 780 (Ky. 2004) (citing Phelps v. Sallee, 529 S.W.2d 361, 365 (Ky. 1975)). Finality cannot become anything other than finality for purposes of additional litigation or adjudication. The Commission's putative granting of Elliot Electric's petition for discretionary review did not repeal its final order because it lacked any authority necessary to do so.

In the alternative, Elliot Electric argues that the doctrine of equitable tolling should have been applied to suspend the running of the thirty-day period for the filing of an appeal in Franklin Circuit Court. The employer contends that the limitations period created by the provisions of KRS 338.091 is non-jurisdictional and can be set aside under the unusual circumstances presented by this case.

KRS 338.091(1) provides the exclusive means for contesting the Commission's final decisions. It provides as follows:

Any party adversely affected or aggrieved by a final order o? the review commission may appeal within thirty (30) days to the Franklin Circuit Court on the record for a review o:? such order.

It is well settled that "[w]hen grace to appeal [a decision of an administrative body to the. circuit court] is granted by statute, a strict compliance with its terms is required." Board of Adjustment* of City of Richmond v. Flood, 581 S.W.2d 1, 2 (Ky. 1978). "Where the conditions for the exercise of power by court are not met, the judicial power is not lawfully invoked." id. (citing Kentucky Utils. Co. v. Fanners Rural Elec Co-op. Corp., 361 S.W.2d 300 (Ky. 1962); Roberts v. Watts, 258 S.W.2d 513 (Ky. 1953)). The Supreme Court of Kentucky has recently reaffirmed this principle in the strongest of terms. See Belsito v. U-Haul Co. of Kentucky, 313 S.W.3d 549 (Ky. 2010); Sajko v. Jefferson Co. Bd. of Ed., 314 S.W.3d 290 (Ky. 2010); and Louis mile Gas and Electric Co. v. Hardin Meade Co. Property Owners for Co-Location, 319 S.W.3d 397 (Ky. 2010) (where court held that circuit court lacked jurisdiction to enlarge the time for filing the designation of the record beyond the ten-day period prescribed for the timely filing of the action despite the fact that KRS 278, 120(2) permitting the enlargement of time does not contain an express time limit within which the motion must be made).

When Elliot Electric appealed the Commission's decision to the Franklin Circuit Court three months after it became final rather than within the allotted thirty days, it failed to meet the single condition precedent to the court's jurisdiction. Because the appeal failed to comply with the requirements of KRS 338.091(1), jurisdiction of the circuit court could not be invoked. Consequently, the appeal was properly dismissed

The order of the Franklin Circuit Court is affirmed

ALL CONCUR.

y to authority. Tri-County did not, and a facility cannot, author an opinion. Rather, Social Security Ruling 06-03p provides that "only `acceptable medical sources' can be considered treating sources, as defined in 20 C.F.R. §§ 404.1502 and 416.902, whose medical opinions may be entitled to controlling weight." SSR 06-03p (citing 20 C.F.R. §§ 1527(d) and 416.927(d)). "Acceptable medical sources" include only licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. See 20 C.F.R. §§ 404.1513(a) and 416.913(a). Thus, only these sources, not treatment facilities, can render medical opinions that may be entitled to controlling weight.

In addition, an individual does not automatically qualify as a treating source simply because they are employed at a facility where the claimant regularly receives treatment. To qualify as a treating source, the acceptable medical source must have "examined the claimant . . . [and have] an `ongoing treatment relationship' with [the claimant] consistent with accepted medical practice." Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1502). Accordingly, the Court now considers whether the ALJ erred in the weight he assigned to Tri-County employees, Dr. Messerly, Counselor Serna, and Dr. Colburn.

The Magistrate Judge set forth the standards for evaluating medical opinions as follows:

The ALJ must consider all medical opinions that he or she receives in evaluating a claimant's case. 20 C.F.R. §§ 404.1527(d), 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. §§ 404.1527(a)(2), 416.927(a)(2). Some opinions, such as those from examining and treating physicians, are normally entitled to greater weight. 20 C.F.R. §§ 404.1527(d), 416.927(d). For example, the ALJ will generally "give more weight to the opinion of a source who has examined [the patient] than to the opinion of a source who has not examined [the patient]." 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1). Nevertheless, in considering an examining source opinion, the ALJ will consider other factors including supportability, consistency, and the nature of the relationship between the claimant and the source. See 20 C.F.R. §§ 404.1527(d), 416.927(d).

In addition to examining sources, 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. §§ 404.1527(d)(2), 416.927(d)(2); Blakley, 581 F.3d 399, 408 (6th Cir. 2009). To qualify as a treating source, a physician must have "examined the claimant . . . [and have] an `ongoing treatment relationship' with [the claimant] consistent with accepted medical practice." Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1502). 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), 416.927(d)(2).

Even if the ALJ does not afford controlling weight to a treating physician's opinion, the ALJ must still 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] [the claimant's] treating source's opinion." 20 C.F.R. §§ 404.1527(d)(2); 404.927(d)(2). The United States Court of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement:

"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."

Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).

Finally, the Commissioner reserves the power to decide certain issues, such as whether a patient is disabled. 20 C.F.R. §§ 404.1527(e), 416.927(e). The opinions of treating physicians on such issues are generally not entitled to special significance. Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007); 20 C.F.R. §§ 404.1527(e)(3), 416.927(e)(3). Nevertheless, "[w]hile controlling weight will not be provided to a treating physician's opinion on an issue reserved to the Commissioner, the ALJ must `explain the consideration given to the treating source's opinion(s).'" Bass, 499 F.3d at 511 (quoting SSR 96-5: Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed.Reg. 34471, 34474 (Soc. Sec. Admin. July 2, 1996)).

(Report and Recommendation 15-17.)

1. Dr. Messerly

The Magistrate Judge analyzed the appropriateness of the weight the ALJ assigned to Dr. Messerly as follows:

In May 2006, Dr. Messerly completed a mental residual functional capacity evaluation. (R. at 625-26A.) She opined that Plaintiff had some disabling mental limitations. ( Id.) The ALJ considered Dr. Messerly's assessment, but did not give it "significant weight other than to the extent of the restrictions assessed in the residual functional capacity." (R. at 30-31.) The ALJ explained that:

Dr. Messerly's assessment is not given controlling weight because she does not explain in any detail the basis for such degree of mental incapacity. Her medical notes do not show any objective testing done, particularly with regard to [Plaintiff's] allegation of memory problems. Mostly, the record revolves around the [Plaintiff's] complaints and especially with regard to her physical conditions (of which there are no "severe" ones other than obesity).

The record suggests that [Plaintiff] only saw Dr. Messerly for a few visits just starting two months before the December 2003 hearing in the prior decision and that she stopped in April 2004, with the unfavorable decision issued in May 2004 and she did not return again until after the Appeals Council found no basis for review. Then, in September 2004 she alleged having hallucinations to a counselor when she called asking to get back into seeing Dr. Messerly, yet she denied any hallucinations when she did get to see Dr. Messerly again. Thus, there is a significant issue of credibility in the timing of her seeking treatment and misrepresentation of her mental condition (alleging hallucinations).

(R. at 30.)

The undersigned finds that the ALJ did not err in assigning Dr. Messerly's assessment insignificant weight outside of the restrictions assessed in Dr. Messerly's RFC. Because Dr. Messerly qualifies as a treating source, the ALJ was required to "give good reasons" for the weight he assigned to her opinions. See 20 C.F.R. §§ 404.1527(d)(2); 404.927(d)(2); Wilson, 378 F.3d at 544. The ALJ's explanation satisfies the good-reason requirement. ( See R. at 30.) In addition, substantial justification exists for crediting Dr. Messerly's assessment little weight. As the ALJ noted, Dr. Messerly fails to support her opinion with clinical exam findings or otherwise explain the basis for her opinion. (See id.); see also 20 C.F.R. §§ 404.1527(d)(3) ("The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion."). Substantial evidence also supports the ALJ's assertion that Dr. Messerly's records consist primarily of Plaintiff's allegations and diagnoses. (R. at 627-41, 643-48, 669-72, 674-75.). As such, these records are not considered medical opinions and reveal little about the severity of Plaintiff's alleged impairments. See Bass, 499 F.3d at 510; Higgs v. Bowen, 880 F.2d at 863. Finally, the ALJ noted issues of credibility in Plaintiff's representation of her mental condition. (R. at 30.) Accordingly, the undersigned finds that the ALJ did not commit reversible error with regard to the weight he assigned to Dr. Messerly's opinion.

(Report and Recommendation 23-24.)

The Court agrees with the Magistrate Judge's analysis and conclusion. The ALJ satisfied Wilson's good-reason requirement, sufficiently setting forth the reasons he declined to afford Dr. Messerly's opinion controlling weight. In addition, in determining what weight to afford Dr. Messerly's opinion, the ALJ considered appropriate factors, namely, the length of Plaintiff's treatment relationship with Dr. Messerly; the nature and extent of the treatment relationship; the supportability of Dr. Messerly's opinion, and the consistency of her opinion with the record as a whole. See Wilson, 378 F.3d at 544. Upon a de novo review of the record, the Court concludes that the reasons the ALJ set forth for the weight he assigned to Dr. Messerly's opinion are supported by substantial evidence. Finally, contrary to Plaintiff's assertions, the ALJ did not reject Dr. Messerly's opinion in its entirety. Instead, even though he did not afford Dr. Messerly's opinion controlling weight, the ALJ he did give significant weight to Dr. Messerly's opinions that Plaintiff's ability to deal with the public, coworkers, and supervisors was limited. Consequently, in considering Plaintiff's RFC, the ALJ determined that Plaintiff was limited to working in positions in which she would have no contact with the public and only minimal contacts with supervisors and coworkers. Likewise, he gave significant weight to Dr. Messerly's opinion that Plaintiff was limited in the area of sustained concentration and persistence. Consequently, the ALJ limited Plaintiff to low-stress jobs that do not involve inherently stressful or hazardous activities or fast-paced work.

In her Objections, Plaintiff makes much of the ALJ's reliance on a non-examining doctor's opinion. Plaintiff asserts that the ALJ's reliance on this "outdated, non-examining opinion . . . mocks the very notion of basing a decision upon the substantial evidence provided by the record as a whole." (Pl.'s Objection 9.) Plaintiff is referencing Dr. Lewin's November 2004 opinion. A review of that opinion demonstrates that the ALJ, in relying on this opinion, does not mock, but rather embraces the notion that a decision must be based upon consideration of all relevant evidence in the case record. The reliability of Dr. Messerly's opinion, like the opinions of Drs. Colburn, Sarver, and Schreck, depends heavily upon the veracity of Plaintiff's presentation. Dr. Lewin, unlike Drs. Messerly, Colburn, Sarver, and Schreck, was able to review the entire file, enabling him to identify numerous inconsistencies in Plaintiff's presentation. For instance, although Plaintiff reported to these physicians that she did not socialize and rarely rode in cars because of her extreme fear and anxiety, Dr. Lewin noted that both Plaintiff and her brother reported on questionnaires that Plaintiff socialized daily at her aunt's house and that Plaintiff went out daily, and would ride in cars to do so. Dr. Lewin also noted inconsistencies in Plaintiff's reports to these physicians regarding her abilities to handle simple instructions; her ability to concentrate; and her ability to handle simple instructions. Although Plaintiff reported to Dr. Yee that a stroke had impaired her memory, Dr. Lewin pointed out that there was no medical evidence that Plaintiff ever suffered a stroke. Social Security Ruling 06-03p explicitly recognizes that "there is a requirement to consider all relevant evidence in an individual's case record," including evidence from "non-medical sources . . . such as spouses, parents, friends and neighbors." SSR 06-3p. Thus, Dr. Lewin and the ALJ properly considered Plaintiff's and her brothers' representations in evaluating the veracity of Plaintiff's presentation.

2. Counselor Serna

Plaintiff asserts that both the ALJ and the Magistrate Judge failed to evaluate Counselor Serna's opinion in light of Social Security Ruling 06-3p. Plaintiff also asserts that both the ALJ and the Magistrate Judge wrongfully concluded that Counselor Serna had not seen Plaintiff.

The ALJ considered Counselor Serna's opinion, but rejected it as follows:

The claimant stopped going [for appointments with Dr. Messerly] for a time but called in June 2004 about having the doctor write a letter about her ability to work. . . . There is no letter from the doctor related to that issue. However, in June 2004, a counselor, Ms. Serna, said that "in her strong opinion" the client could not be gainfully employed. . . . There is actually no evidence that Ms. Serna had even seen this person. The intake assessment was done by Ms. de Lange. There is only a memo from Ms. Serna about a referral to Dr. Messerly at the apparent request of her family doctor. . . . Ms. Serna's opinion is given no weight as she is not a medically-acceptable source on the issue for purposes of Social Security. She has rarely, if ever, seen this client, and inability to work is not consistent with the record as a whole.

(R. at 30.)

The Court finds that the ALJ did not err in rejecting Counselor Serna's opinions. As the Magistrate Judge noted, Counselor Serna is not an "acceptable medical source." Thus, contrary to Plaintiff's assertions, her opinions are not entitled to controlling weight. See C.F.R. §§ 404.1513(a), 404.1502, 404.1527(d), 416.913(a), 416.902, and 416.927(d). Plaintiff correctly notes that Social Security Ruling 06-03p supplies guidance on the factors to consider when evaluating opinion evidence from other sources. These factors include:

• How long the source has known and how frequently the source has seen the individual;

• How consistent the opinion is with other evidence;

• The degree to which the source presents relevant evidence to support an opinion;

• How well the source explains the opinion;

• Whether the source has a specialty or area of expertise related to the individual's impairment(s), and

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

SSR 06-3(p). Plaintiff also correctly notes that there is evidence in the record that Counselor Serna had seen Plaintiff. Plaintiff cites to a 1998 intake form. In addition, the Court has identified another two possible counseling sessions with Counselor Serna, one in September 2003 and one in October 2003. Nevertheless, this is consistent with the ALJ's statement that Counselor Serna "has rarely, if ever, seen this client." (R. at 30.) In addition, as the ALJ notes, Counselor Serna's opinion of disability is not entitled to weight because whether or not a claimant is disabled is a decision reserved for the Commissioner. See 20 C.F.R. §§ 404.1527(e) and 416.927(e). Finally, substantial evidence supports the ALJ's conclusion that Counselor Serna's opinion is not supported by the record.

The 1998 intake form lists the intake clinician as "j. serna." After intake, Plaintiff attended only one counseling session in 1998 with Counselor Pegge Riley before being terminated as a client due to Plaintiff's discontinuation of treatment. (R. at 171.) Plaintiff did not seek treatment at the Tri-County facility again until September 2003. Thus, Plaintiff's assertion that she had an ongoing treatment relationship with Tri-County for at least nine years misrepresents the record.

3. Dr. Colburn

The Magistrate Judge analyzed the appropriateness of the weight the ALJ assigned to Dr. Colburn as follows:

In May 2007, Kent A. Colburn, D.O., from Tri-County, drafted a letter stating that Plaintiff was receiving treatment for generalized anxiety disorder, OCD, and an eating disorder. (R. at 685.) He further noted that Plaintiff struggled with agoraphobia, riding in cars, and being in public places. (Id.) The ALJ considered Dr. Colburn's opinion, but gave it no weight. (R. at 32.) He explained that:

[T]here is no evidence that he has ever seen [Plaintiff] and there is no medical diagnosis of agoraphobia by Dr. Messerly, the only psychiatrist and mental health treating source of record. Dr. Colburn does not explain the basis for this letter. He does not state that she is disabled and, of course, there is no evidence that he has even seen her or is a treating source. He provided no visit records. He provided no objective findings or detailed evidence to seriously consider this letter as substantial evidence of anything.

( Id.)

Even though Dr. Colburn qualifies as an acceptable medical source, he does not qualify as a treating source because there is no evidence of an "ongoing treatment relationship." See 20 C.F.R. § 404.1502. Nevertheless, the ALJ properly rejected Dr. Colburn's statement as Dr. Colburn does not explain the basis for his statement and cites no clinical findings or treatment records. (R. at 32, 685.); 20 C.F.R. § 404.1527(d)(3). Accordingly, the undersigned finds that the ALJ's rejection of Dr. Colburn's opinion did not constitute reversible error.

(Report and Recommendation 25.)

Although Plaintiff objects generally to the ALJ's assignment of weight to Tri-County's opinions, she does not advance any specific objections relating to the ALJ's treatment of Dr. Colburn's opinion or the Magistrate Judge's analysis. Upon a de novo review of the record, the Court agrees with the Magistrate Judge's analysis and does not find error with the ALJ's assignment of weight to Dr. Colburn's opinion.

B. Dr. Sarver

The Magistrate Judge analyzed the appropriateness of the weight the ALJ assigned to Dr. Sarver as follows:

In January 2007, Dr. Sarver, a state agency psychologist, evaluated Plaintiff at the request of the Bureau of Disability Determination. (R. at 201.) The ALJ considered Dr. Sarver's assessment, but gave it "[n]o weight." (R. at 31.) The ALJ explained that:

While [Dr. Sarver] stated that "the veracity of claimant's performance is reliable," it clearly was not. There are many discrepancies in her presentation to Dr. Sarver and too many to be all discussed. Most significant, however, is that Dr. Sarver had examined this person before in March 2002 and there were no significant problems with cognitive functioning at that time, in terms of memory or other parameters. . . . There was no evidence of a personality disorder then, and she was forty nine years old at the time. Further, treating source records from Tri-County, where she saw Dr. Messerly, the psychiatrist, do not indicate any evidence of a personality disorder, borderline intellectual functioning (or other intellectual deficit), evidence of any reading or writing disorder, or social phobia.

(Id.) The ALJ then provided additional examples of discrepancies in Plaintiff's presentation to Dr. Sarver. (R. at 32.) For example, the ALJ noted that although Plaintiff presented with pain behaviors such as moaning and groaning and facial grimacing throughout the interview, there was no objective evidence of any disorder that would be causing such severity of pain. (Id.) The ALJ further noted that Plaintiff's presentation of difficulty reading and filling out the forms was not supported elsewhere in the record. (Id.) Because the record demonstrated that Plaintiff was able to do things that Dr. Sarver found Plaintiff incapable of doing, the ALJ opined that Plaintiff "apparently feigned" her limited presentation. (Id.) The ALJ therefore concluded that Dr. Sarver's "assessment cannot be accepted as adequately supported by the evidence of the record as a whole." (Id.)

The undersigned finds that the ALJ did not err in rejecting Dr. Sarver's opinion. First, although Dr. Sarver did examine Plaintiff twice, once in 2002 and once in 2007, he is not a treating source within the meaning of the Social Security Act. Instead, Dr. Sarver was a consultative examiner who Plaintiff saw twice for disability assessments. As such, he did not have an ongoing treatment relationship with Plaintiff. See 20 C.F.R. § 404.1502 (defining "treating source" as "your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you"); see also Boucher v. Apfel, No. 99-1906, 2000 WL 1769520, at *9 (6th Cir. Nov. 15, 2000) (concluding that although the physician examined the claimant on three occasions, he was not a treating source); Yamin v. Comm'r of Soc. Sec., 67 Fed. Appx. 883, 885 (6th Cir. 2003) ("These two examinations did not give [the physician] a long term overview of [the claimant's] condition."). Accordingly, although the ALJ was required to consider Dr. Sarver's opinions, those opinions were not entitled to the deference or procedural protections afforded to treating physician opinions. See 20 C.F.R. §§ 404.1527(d)(2); 404.927(d)(2).

Furthermore, the ALJ provided ample explanation for rejecting Dr. Sarver's opinions. He specifically indicated that based upon his review of the record, Plaintiff's presentation to Dr. Sarver was not credible, and therefore, Dr. Sarver's assessment was not adequately supported. (R. at 32.) The undersigned finds substantial justification for this conclusion. A review of Dr. Sarver's assessment demonstrates that the reliability of his assessment hinged upon the veracity of Plaintiff's presentation of her abilities and her reported complaints. ( See R. at 676-80.) For example, Dr. Sarver based his conclusion that Plaintiff lacked reading and writing functionality on Plaintiff's representation that she had difficulty filling out forms and her inability to recite the alphabet or count backwards from twenty to zero. . . . ( See id.) Likewise, Plaintiff's answers to Dr. Sarver's questions formed the basis for his assessment of her reading and writing abilities, abstract reasoning, common sense/judgment and insight. ( See id.) Providing numerous examples of documented discrepancies, both the ALJ and Dr. Lewin concluded that Plaintiff's presentation to Dr. Sarver was inconsistent with the record evidence. (R. at 31-32, 488.) In reaching this conclusion, the ALJ indicated that he considered the entire record, specifically citing Tri-County records from Dr. Messerly, Dr. Yee's report, and Plaintiff's own testimony. (R. at 31-32.) Because the ALJ's credibility assessment of Plaintiff's presentation to Dr. Sarver was based on consideration of the entire record and supported by substantial evidence, it is entitled to deference. See Sullenger v. Comm'r of Soc. Sec., 255 Fed.Appx. 988, 995 (6th Cir. 2007) (declining to disturb the ALJ's credibility determination, stating that: "[w]e will not try the case anew, resolve conflicts in the evidence, or decide questions of credibility" (citation omitted)); Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among the medical reports, claimant's testimony, and other evidence."). Accordingly, the undersigned finds that the ALJ's rejection of Dr. Sarver's opinion did not constitute reversible error.

(Report and Recommendation 17-20) (footnote omitted).

Although Plaintiff objects generally to the ALJ's assignment of weight to Dr. Sarver's opinions, she does not assert any specific objections to the Magistrate Judge's analysis. Upon a de novo review of the record, the Court agrees with the Magistrate Judge's analysis and does not find error with the ALJ's assignment of weight to Dr. Sarver's opinion.

C. Dr. Schreck

The Magistrate Judge analyzed the appropriateness of the weight the ALJ assigned to Dr. Schreck as follows:

In April 2006, Dr. Schreck, Plaintiff's family practice physician, completed a mental functional capacity evaluation form, which noted marked limitations in all functional criteria. (R. at 556-58.) The ALJ considered Dr. Schreck's assessment, but gave it "no controlling or significant weight." (R. at 29.) The ALJ explained that:

Under diagnoses, [Dr. Schreck] cited obsessive compulsive disorder, generalized anxiety disorder, and eating disorder. These were actually diagnosed at Tri-County mental services and there are treating records from that facility, including records of psychiatrist, Dr. Messerly, which are considered below. Dr. Schreck is not a mental health professional. There is little indication of any significant discussion pertaining to [Plaintiff's] mental problems in his notes other than just general allegations by the patient. His records do not indicate any objective observations indicating that degree of severity of functioning, and he does not detail precise basis for the blanket marked findings.

( Id.)

The undersigned finds that the ALJ did not err in rejecting Dr. Schreck's assessment. Unlike Dr. Sarver, Dr. Schreck did have an ongoing treatment relationship with Plaintiff. ( See R. at 559-61, 563, 565-67, 570-71, 577, 664, 667). Consequently, Dr. Schreck qualifies as a § 404.1502 treating source, and the ALJ was required to "give good reasons" for the weight he assigned to Dr. Schreck's opinions. See 20 C.F.R. §§ 404.1527(d)(2); 404.927(d)(2); Wilson, 378 F.3d at 544. Dr. Schreck's mental RFC assessment, however, is not entitled to controlling weight or special significance because the determination of Plaintiff's RFC is an issue reserved to the Commissioner. See Bass, 499 F.3d at 511; SSR 96-5: Policy Interpretation Ruling Titles II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner, 61 Fed.Reg. 34471, 34472 (Soc. Sec. Admin. July 2, 1996)). Nevertheless, the ALJ's explanation satisfies the good-reason requirement. ( See R. at 29.) In addition, substantial justification exists for crediting Dr. Schreck's assessment little weight. It is undisputed that Dr. Schreck is not a mental health expert. See 20 C.F.R. § 404.1527(d)(5) ("We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist."). Indeed, Dr. Schreck repeatedly noted that Plaintiff's mental health issues were being handled by Dr. Messerly. (R. at 569, 570, 574, 578, 581, 665, 666.) As the ALJ noted, Dr. Schreck's mental diagnoses appear to merely parrot those of Dr. Messerly. ( See R. at 29, 574, 578.) Substantial evidence also supports the ALJ's assertion that Dr. Schreck's treatment notes are devoid of objective observations relating to Plaintiff's mental health. ( See R. at 29.) Instead, Dr. Schreck merely noted diagnoses and Plaintiff's general allegations. ( See 568-71, 573, 577, 580, 581, 583, 585, 586, 664, 666). These notations are not equivalent to a medical opinion subject to the good reason rule. See Bass, 499 F.3d at 510 (noting that to be considered a medical opinion, a treating physician's statement must be a medical judgment and more than a mere observation or restatement of Plaintiff's own testimony); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) ("The mere diagnosis of [the condition] . . . says nothing about the severity of the condition." (citation omitted)). Accordingly, the undersigned finds that the ALJ did not commit reversible error with regard to the weight he assigned Dr. Schreck's opinion.

(Report and Recommendation 20-22.)

Although Plaintiff objects generally to the ALJ's assignment of weight to Dr. Schreck's opinions, she does not advance any specific objections. Upon a de novo review of the record, the Court agrees with the Magistrate Judge's analysis and does not find error with the ALJ's assignment of weight to Dr. Schreck's opinions.

IV.

The Court, having reviewed the record de novo, determines that there is substantial evidence supporting the ALJ's determination that Plaintiff is not disabled, as defined in the Social Security Act. Accordingly, the Court OVERRULES Plaintiff's Objections (Doc. 16) and ADOPTS the Magistrate Judge's Report and Recommendation (Doc. 15). The Commissioner's decision is AFFIRMED, and this action is DISMISSED.

The Clerk shall enter final judgment pursuant to Sentence 4 of 42 U.S.C. § 405(g).

IT IS SO ORDERED.

Date: September 23, 2010

MARY M. McCOMBS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

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