Opinion
Case No. 3:12-cv-160
08-05-2013
JAMES W. MCCUDDY, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits and Supplemental Security Income. (See Administrative Transcript ("Tr.") (Tr. 11-22) (ALJ's decision)).
I.
Plaintiff filed for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on October 19, 2007, alleging disability beginning May 30, 2006, due to three physical impairments: chronic headaches, cysts on the brain, and chronic obstructive pulmonary disease ("COPD"). (Tr. 11, 142, 149, 171). His claims were initially denied on February 19, 2008, and on reconsideration June 5, 2008. (Tr. 67-70).
Administrative Law Judge, David A. Redmond (the "ALJ"), held a hearing on July 28, 2010. (Tr. 28). On December 8, 2010, he issued a decision finding that Plaintiff was not disabled, and retained the residual functional capacity ("RFC") to perform a reduced range of light work. (Tr. 8-28). Although the ALJ determined that Plaintiff was unable to perform his past work, the ALJ determined that a person with Plaintiff's age, education, work experience, and RFC could perform approximately 10,000 unskilled light level jobs and 3,800 sedentary jobs in the regional economy. (Tr. 25-27).
An RFC is the most one can still do despite one's limitations. It is assessed based on the relevant evidence in the case record. 20 C.F.R. § 404.1545.
As defined by the Department of Labor, light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 404.1567(b).
If the ALJ determines that a party can perform light work, s/he can also do sedentary work, unless there are additional limiting factors. 20 C.F.R. § 404.1567(b).
Plaintiff timely filed an Administrative Request for Review of the ALJ's decision. (Tr. 6-7). By decision dated April 6, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-5). Plaintiff now seeks judicial review pursuant to 42 U.S.C. §§ 405(g) and 1383(c).
Plaintiff is 38 years old and dropped out of school in the eleventh grade to get his GED. (Tr. 44-45). He is divorced, lives alone in an apartment, and shares the parental responsibilities of his five-year-old daughter. (Id.)He last worked as an auto mechanic in 2006, but has since ceased employment after a car jack slipped out of place and pinned his head beneath the car he was working on. (Tr. 46).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2011.(Tr. 13-22).
2. The claimant has not engaged in substantial gainful activity since May 30, 2006, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: chronic obstructive pulmonary disease; history of headaches; and lumbar strain (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: a limitation to lifting 10 pounds maximum, the latitude to sit for 15 minutes each hour; temperature controlled environment; and limited to simple tasks featuring minimal personal contacts and no production quotas.
6. The claimant is unable to perform any past relevant work (20 CFR 404.156 and 416.965).
7. The claimant was born on September 25, 1974, and was 31 years old, which defined him as a younger individual, age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. The claimant's acquired job skills do not transfer to other occupations within the residual functional capacity defined above (20 CFR 404.1568 and 416.968).
10. Considering the claimant's age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 30, 2006, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability, as defined by the Social Security Regulations, and was therefore not entitled to DIB or SSI. (Tr. 22).
On appeal, the Plaintiff alleges that: (1) the ALJ erred in finding that Plaintiff did not have a severe mental health impairment; and (2) the Appeals Council should have considered Dr. Ward's opinion. The Court will address each argument in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). 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). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a 'zone of choice' within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
At the administrative hearing, Plaintiff testified that the primary issues preventing him from working were: anxiety, panic attacks, depression, mood swings, and COPD. (Tr. 46). Plaintiff first complained of anxiety in 2002. (Tr. 295). His anxiety led to panic attacks, which worsened after he was pinned beneath a car. (Tr. 46, 52). As a result of these panic attacks, Plaintiff avoided driving (id.), could not attend his daughter's school events (Tr. 53), and avoided grocery shopping (Tr. 48). Additionally, his anxiety triggered irritable and aggressive behavior, which caused him to either quit or be fired from many jobs. (Tr. 46, 50, 53-55, 427, 431, 439). Plaintiff had both homicidal and suicidal thoughts. (Tr. 50-51, 336, 431).
Plaintiff was examined by psychologist Howard Lee, Ph.D., at the request of the state Bureau of Disability Determination ("BDD"), in January 2008 at the age of 33. (Tr. 331). Upon examination, Dr. Lee assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 50, indicating severe impairments, but found no evidence of psychosis or hallucination; no obsessive-compulsive behaviors; goal-directed, coherent, and relevant speech; normal associations; fair insight and judgment; and a below normal to normal fund of knowledge. (Tr. 337). Dr. Lee opined that Plaintiff's mental ability to relate to others, including co-workers and supervisors, was mild due to his report of some mild mood swing tendencies; his ability to understand, remember, and follow instructions was not impaired; he had mild to perhaps moderate impairment in his ability to maintain attention, concentration, persistence and pace to perform routine tasks; and he had mild to low moderate impairment in his ability to withstand the stress and pressure associated with day-to-day work activities. (Tr. 340).
The GAF Scale reports a clinician's judgment of an individual's overall level of functioning, and is used in planning, measuring the impact, and predicting the outcome of treatment. Diagnostic and Statistical Manual of Mental Disorders at 32-34 (4th ed. 2000) ("DSM-IV-TR"). GAF scores of 41-50 indicate serious symptoms or impairments, including suicidal ideation, no friends, and the inability to hold a job. DSM-IV-TR at 34. GAF scores of 51-60 indicate moderate symptoms or limitations. Id.
In May 2008, state agency reviewing psychologist Karla Voyten, Ph.D., reviewed Plaintiff's record for the state BDD. (Tr. 368-81). After examining Plaintiff's record, Dr. Voyten opined that Plaintiff had mild limitations in activities of daily living; mild limitations maintaining social functioning; mild limitations maintaining concentration, persistence, or pace; and no episodes of decompensation. (Tr. 378). Therefore, she concluded that Plaintiff did not have a severe impairment within the meaning of the Social Security Act and non-extertional limitations were not warranted. (Tr. 368).
From June 2008 to August 2008, Plaintiff received treatment from clinical psychologist H. Owen Ward, Ph.D. (Tr. 457-59). Dr. Ward diagnosed Plaintiff with a mood disorder and the possibility of bi-polar characteristics, stemming from substance use. (Tr. 459). In August 2008, Dr. Ward noted that Plaintiff inexplicably dropped out of treatment. (Tr. at 458).
Post hearing evidence indicates that Dr. Ward merely supervised Plaintiff's four sessions of psychotherapy with clinical counselor Larry Alexander, M.S. (Doc. 14 at 495).
Dr. Ward suspected the possibility of drug abuse, due to Plaintiff's history of marijuana use. (Tr. 458).
From June 2009 to January 2010, Plaintiff received mental health treatment at Clark County Mental Health. (Tr. 418-54). His initial diagnosis was a mood disorder, and he was assigned a GAF score of 55, indicating moderate symptoms and limitations. (Tr. 450-51). In July 2009, Plaintiff reported increased depression as a result of his recent divorce from his wife, but disclosed that he started dating a very nice person who encouraged him to stop isolating himself and seek treatment. (Tr. 441-42). In late July, Clark County Mental Health noted that Plaintiff's attention was focused; his speech and orientation were normal; his thought process was coherent; his mood was anxious; his affect appropriate; his insight and judgment were good; and he had no homicidal or suicidal ideation. (Tr. 432). Plaintiff did not attend his scheduled appointments in September and October of 2009. (Tr. 425-26). In November 2009, Plaintiff stated that he "actually felt pretty good," was sleeping like a baby, and described his overall mood as good. (Tr. 421). Plaintiff missed his final two appointments in December 2009 and January 2010. (Tr. 419-20). Post Hearing Evidence
The ALJ issued his decision denying disability on December 8, 2010. (Tr. 22). On August 30, 2011, Plaintiff sent additional material to the Appeals Council, including a letter and assessment form completed by Dr. Ward. (Doc. 14 at 494-502).
Dr. Ward's letter states that he saw Plaintiff a total of nine sessions between May 27, 2011, and July 14, 2011; however, his letter did not include specific treatment notes from each session. (Doc. 14 at. 495). Dr. Ward's letter explains that he saw Plaintiff as a boy, while he was treating Plaintiff's father, but he did not retain any records from these alleged sessions. (Id.)
The assessment form consists of seventeen functional areas. (Doc. 14 at 500-02). Dr. Ward checked boxes indicating Plaintiff would have a moderate impairment in two areas, marked impairment in thirteen areas, and extreme impairment in two areas. (Id.)Dr. Ward noted that he would change his opinions if only minimal contact and interaction with others was required in Plaintiff's employment settings, explaining that Plaintiff's sudden, angry, and impulsive explosiveness with co-workers and supervisors could be the cause of his inability to hold down a job. (Id. at 500). Based on the nine sessions Plaintiff attended since May 2011, Dr. Ward diagnosed: bipolar disorder; chronic, intermittent post-traumatic stress disorder; attention deficit disorder; cannabis abuse; cognitive disorder; unspecified drug dependence; and a personality disorder. (Id. at 497). Dr. Ward also stated that he hoped "[Plaintiff] will receive SSDI benefits" because he needed "the income to continue with our treatment plan." (Id.)
Dr. Ward indicated that Plaintiff was making progress with his therapy and that he was "much less emotionally unstable now that he is receiving psychiatric medication management." (Doc. 14 at 498). Dr. Ward also noted that while Plaintiff "claims to be sober and not using any form of recreational drugs," he was not "actively in chemical dependency treatment," nor has he ever followed through with such treatment, even though it has been referred by Dr. Ward since the start of therapy. (Id. at 498-99). Dr. Ward stated that Plaintiff had limited activities of daily living, but could "push himself to get some activities accomplished, especially [those] related to caring for his children." (Id. at 499). Plaintiff was "less depressed since he has gotten out of the relationship with his ex-wife, and . . . is no longer suicidal." (Id.) Dr. Ward concluded that "[i]n spite of his progress, I believe this man is still unable to work in any form of employment at this time and into the foreseeable future." (Id.)
B.
First, Plaintiff claims that the ALJ erred at step two of the sequential evaluation analysis, finding that his mental health impairments were non-severe. Plaintiff's argument is flawed because the ALJ properly incorporated Plaintiff's mental health impairments when determining his RFC.
The regulations provide a five-step sequential evaluation for evaluating disability claims: (1) whether the claimant is engaged in substantial gainful activity; (2) whether the claimant has "severe" impairments; (3) whether the claimant's conditions meet or medically equal any listed impairment; (4) whether the claimant can return to his past relevant work; and (5) whether a significant number of other jobs exist in the national economy that he could perform. 20 C.F.R. §§ 404.1520, 416.920.
The ALJ determined that Plaintiff only had the following severe impairments: chronic obstructive pulmonary disease, history of headaches, and lumbar strain. (Tr. 13).
When an ALJ considers a claimant's severe and non-severe impairments throughout the steps of the sequential evaluation, the failure to classify certain impairments as severe, at step two, does not constitute reversible error. Maziarz v. Sec. of Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987). Here, the ALJ took into consideration Plaintiff's "irritability with others," and limited his RFC to include jobs with minimal personal contacts. (Tr. 19). The ALJ also considered Plaintiff's anxiety, and further limited his RFC to include jobs without production quotas. (Tr. 19). Therefore, because the ALJ properly incorporated Plaintiff's mental health impairments throughout the remaining steps of the sequential evaluation, failure to do so at step two does not constitute reversible error.
See also Castile v. Astrue, 617 F.3d 923, 927 (7th Cir. 2010) (holding that the particular determination of an impairment was of no consequence with respect to the outcome of the case because the ALJ had already categorized other impairments as severe, which obligated the ALJ to proceed with the evaluation process); Pompa v. Comm. of Soc. Sec.,73Fed. Appx. 801, 803 (6th Cir. 2003) (because the ALJ already found a severe impairment at step two of the analysis, the question of whether the ALJ characterized any other alleged impairments as severe or non-severe was of little consequence).
Moreover, the ALJ properly conferred the appropriate amount of weight to each source's opinion in finding Plaintiff's mental health impairments to be non-severe. With regard to non-treating examining sources, an ALJ will "[g]enerally give more weight to the opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined" him. 20 C.F.R. § 404.1527(d)(1). Because Dr. Lee and Clark County Mental Health were non-treating sources, in order to determine how much weight should be given to each of their opinions, the ALJ must consider the following factors: the length and nature of the treatment relationship; the evidence that the physician offered in support of his own opinion; how consistent the opinion is with the record as a whole; and whether the physician was a specialist. 20 C.F.R. § 404.1527(d).
The record reflects that the ALJ did consider these relevant factors when conferring more weight to Dr. Voyten's opinion than to the opinions of Dr. Lee and Clark County Mental Health. The ALJ found that Dr. Lee's GAF score of 50, indicating severe symptoms, was entirely inconsistent with his own findings. Specifically, Dr. Lee opined that Plaintiff's mental ability to relate to others was mild; his ability to understand, remember, and follow instructions was not impaired; he had mild to perhaps moderate impairments in his ability to maintain attention, concentration, persistence, and pace; and he had mild to low moderate impairments in his ability to withstand the day-to-day stress and pressure associated with work activities. (Tr. 340). Accordingly, because Dr. Lee's findings indicate that Plaintiff only had mild to moderate impairments, yet he concluded that Plaintiff had severe symptoms, Dr. Lee's opinion is inconsistent with the medical evidence and should be given little weight.
Further, the ALJ found that although Clark County Mental Health initially gave Plaintiff a GAF score of 55, indicating moderate symptoms, the most recent mental health reports stated that Plaintiff's attention was focused; his speech and orientation were normal; his thought process was coherent; his mood was anxious; his affect appropriate; his insight and judgment were good; he had no homicidal or suicidal ideation; and Plaintiff stated that he "actually felt pretty good," was sleeping like a baby, and described his overall mood as good. (Tr. 421, 432). Accordingly, a finding of moderate symptoms is inconsistent with the medical evidence, and thus was properly given little weight.
Accordingly, the ALJ's decision to confer more weight to the opinion of Dr. Voyten, state reviewing psychologist, who concluded that Plaintiff's mental impairments did not cause more than minimal limitations, is supported by the medical evidence.
Dr. Voyten opined that Plaintiff had mild limitations in activities of daily living; mild limitations maintaining social functioning; mild limitations maintaining concentration, persistence, or pace; and no episodes of decompensation. (Tr. 378).
C.
Next, Plaintiff alleges that the Appeals Council should have considered Dr. Ward's post hearing opinion because it was new, material, and there was good cause for not initially submitting it to the ALJ.
The Appeals Council refused to consider Dr. Ward's opinion because it pertained to a period after the ALJ's December 8, 2010 decision. Evidence submitted for the first time to the Appeals Council or the Court may be considered only for purposes of determining whether remand is appropriate under the sixth sentence of 42 U.S.C. § 405(g), which provides:
The Court may . . . at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding . . .42 U.S.C. § 405(g)
The requirements that the evidence be "new" and "material," and that "good cause" be shown for failure to present the evidence to the ALJ, has been defined by this Court as follows:
[E]vidence is new only if it was 'not in existence or available to the claimant at the time of the administrative proceeding.' . . . evidence is 'material' only if there is 'a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with the new evidence.' . . . A claimant shows 'good cause' by demonstrating a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ . . . [T]he burden of showing that a remand is appropriate is on the claimant.Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 276 (6th Cir. 2010) (quoting Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001)).
Here, Plaintiff failed to carry his burden of showing that remand is warranted. First, Plaintiff failed to show that any of the evidence is material. Evidence is material if the Plaintiff can show that there was a "reasonable probability" that the Commissioner would have reached a different conclusion on the issue of disability had he been presented with the additional evidence. Sizemore v. Sec'y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). However, "[e]vidence of a subsequent deterioration or change in condition after the administrative hearing is deemed immaterial." Wyatt v. Sec. of Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992). The bulk of Dr. Ward's opinion is based on the nine sessions attended by Plaintiff in 2011, after the ALJ's December 2010 decision. Accordingly, because the additional evidence describes the deterioration of Plaintiff's condition after the ALJ's decision, Plaintiff has failed to prove that the additional evidence is material.
In November 2009, Plaintiff described his overall mood as good, yet in late December 2010 and April 2011, after the ALJ rendered its decision, Plaintiff had suicidal ideations. (Tr. 421; Doc. 14 at 495).
Further, Plaintiff failed to prove that any of the additional evidence is "new." Plaintiff claims that "Dr. Ward's report clearly relates to the period of time before the date of the Judge's decision." (Doc. 17 at 3). However, the few paragraphs in Dr. Ward's letter that do address Plaintiff's condition prior to the ALJ's decision are merely examinations of evidence that was already considered by the ALJ. Evidence is not new and material if it is cumulative of the evidence already considered by the ALJ. Fazio v. Heckler, 750 F.2d 541, 543 (6th Cir. 1984).
Specifically, Dr. Ward only describes his impressions of Plaintiff's treatment with Dr. Lee. (Doc. 14 at 457).
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Finally, Plaintiff has not established that good cause exists for his failure to timely submit the additional evidence to the ALJ. To establish good cause, a plaintiff must give a "valid reason" for failing to obtain evidence prior to the hearing. Willis v. Sec. of Health & Human Servs., 727 F.2d 551, 554 (6th Cir. 1984). Plaintiff alleges that he could not have sought this treatment from Dr. Ward prior to the ALJ's decision because his mental health impairment "created a cycle of [him] being aware of his needs and limitations briefly followed by periods where he was unaware or unable to seek treatment." (Doc. 10 at 15). This explanation is unsupported by the evidence. Further, Plaintiff's failure to obtain mental health treatment from Dr. Ward in 2008 supports the ALJ's determination that his mental limitations were not disabling. See 20 C.F.R. § 404.1530(a) ("in order to get benefits, you must follow treatment prescribed by your physician"). Had Plaintiff not inexplicably dropped out of treatment in 2008, he could have timely obtained an opinion from Dr. Ward, before the ALJ issued his decision. Hence, Plaintiff has no "valid reason" for failing to timely acquire the additional evidence.
Ultimately, Plaintiff has failed to demonstrate that the post hearing evidence is new and material, and that good cause exists for its untimely submission. Therefore, remand is not appropriate.
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that James W. McCuddy was not entitled to disability insurance benefits and supplemental security income is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, and, as no further matters remain pending for the Court's review, this case is CLOSED.
___________
Timothy S. Black
United States District Judge