Opinion
Case No. 1:14-cv-448
11-05-2014
LAUREN WEISS o.b.o. ROBERT WEISS JR., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
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 supplemental security income ("SSI") and disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 19-33) (ALJ's decision)).
I.
Plaintiff Lauren Weiss seeks judicial review of the Social Security Administrator's final decision denying her applications for DIB and SSI, on behalf of the deceased Claimant, Robert Weiss Jr. The Claimant filed applications for DIB and SSI in September 2011, and alleged disability due to bipolar disorder beginning December 31, 2007. (Tr. 19, 172, 179, 185, 213). The Commissioner denied the Claimant's claims initially and on reconsideration. (Tr. 56-91).
Robert Weiss Jr. died on August 8, 2013 of a heart attack. (Tr. 19, 22, 206). His daughter, Lauren Weiss, substituted herself as a party to the suit on August 26, 2013 and indicated her intention to appear at the administrative hearing. (Tr. 169).
An administrative hearing was held in September 2013 before an ALJ, but Plaintiff decided not to attend and it was noted at the hearing that she was estranged from her father. (Tr. 41-55). However, Plaintiff's non-attorney representative was in attendance representing her interests. (Id.) The ALJ rendered her decision in November 2013, finding that despite severe impairments, the Claimant has the residual functional capacity ("RFC") to perform a reduced range of unskilled, medium level work, with certain non-exertional limitations. (Tr. 24). Although the Claimant would not have been able to perform his past work, there were a significant number of local jobs that were available, and accordingly, he was not found to be disabled. (Tr. 31-33). The Appeals Council denied Plaintiff's request for review. (Tr. 1-6). This Court has jurisdiction pursuant to 42 U.S.C. Section 405(g) and 1383(c)(3).
The Agency defines RFC to mean "the most you can still do despite your limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1).
"Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 CFR §§ 404.1567(b) and 416.967(b).
Plaintiff was 48 years old on his alleged disability onset date. (Tr. 32). Plaintiff had at least a high school education (Tr. 32) and past relevant work as a sales person (Tr. 31).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant met the insured status requirements of the Social Security Act through December 31, 2013.(Tr. 21-33).
2. The claimant did not engage in substantial gainful activity after December 31, 2007, the alleged onset date (20 CFR 404.1571-1576 and 416.971-976).
3. The claimant had the following severe impairments: bipolar disorder and polysubstance abuse (alcohol and marijuana) (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant did not have an impairment or combination of impairments that met or medically equaled the severity of 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 had the residual functional capacity to perform a full range of medium work, but with the following nonexertional limitations: unable to climb ladders, ropes, or scaffolds; occasional stooping, crouching, crawling, kneeling, and climbing of ramps and stairs; avoid concentrated exposure to heat and cold temperature extremes; simple, routine, repetitive non-tandem tasks without strict production demands; occasional interaction with supervisors and superficial interaction with co-workers and the general public.
6. The claimant was unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on December 24, 1959 and was 48 years old, which is defined as an individual closely approaching advanced age, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant had at least a high school education and was able to communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant was "not disabled," whether or not the claimant had
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that existing [sic] in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, from December 31, 2007, through his date of death on August 8, 2013 (20 CFR 404.1520(g) and 416.920(g)).
In sum, the ALJ concluded that the Claimant was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI or DIB. (Tr. 33).
On appeal, Plaintiff argues that: (1) the ALJ erred by improperly placing more weight on the opinion of a non-examining source rather than the opinion of the treating psychiatrist; and (2) the ALJ erred in abusing her discretion by engaging in selective evidence citation regarding the Claimant's daily living activities. The Court will address each error 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:
On forms completed in connection with his applications for benefits, the Claimant explained that he stopped working in December 2007 because the business he had been working at since 1996, a landfill, had closed down because it lost its license to operate. (Tr. 209, 213-214). The Claimant reported that he was independent in self-care, cared for pets, was able to prepare food for himself on a daily basis, did his own cleaning, laundry, and yard work daily and weekly, drove a car, and shopped for household goods and food on a weekly basis. (Tr. 220-223). The Claimant stated that he did not need reminders regarding his personal hygiene or taking his medications. (Tr. 222). He saw his family a few times a week, and also called them on the phone. (Tr. 224, 226). The Claimant indicated that he got along well with authority figures, had never been fired from a job, and was "ok" at handling stress or changes in routine. (Id.)
The Claimant was treated by psychiatrist David Leonard, M.D., who indicated that the Claimant recounted a 16-year history of bipolar disorder, and said he previously had a successful career as a drug sales representative. (Tr. 384). In December 2007, Dr. Leonard noted that the Claimant had been doing pretty well, was sleeping well, and said his energy was pretty good. (Tr. 383). The Claimant denied medication side effects, he was well-groomed, pleasant and cooperative, appeared bright and calm, had organized thoughts with no delusions or paranoia, and denied hallucinations. (Id.) Dr. Leonard noted that the Claimant had good insight and good judgment. (Id.) Dr. Leonard diagnosed bipolar disorder in partial remission, as the Claimant was well oriented and described his mood as "pretty good, a little irritable." (Id.) Dr. Leonard assessed a global assessment of functioning ("GAF") score of 85, which indicates absent or minimal symptoms, with good functioning in all areas, interest and involvement in a wide range of activities, a person who is socially effective and generally satisfied with life, and who has no more than everyday problems or concerns. (Id.)
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults. A score of 81-90 indicates absent or minimal symptoms, good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns.
The Claimant alleges that he became disabled at the end of 2007. (Tr. 19, 172, 179, 185, 213). However, in July 2008, the Claimant told Dr. Leonard that he was working with King Demolition and Trucking, trying to re-vamp their policies, and he felt that his mood had been stable. (Tr. 380). In February 2009, the Claimant said that he had been doing well overall and that his mood had been relatively stable. (Tr. 379). He appeared bright and calm but was distracted, and he reported that his difficulties with attention/focus and disorganization were causing problems with his new business. (Id.) Dr. Leonard prescribed the Claimant Ritalin in addition to his other medications, and in March 2009, the Claimant said his attention and focus had been under better control, and he was becoming more organized. (Tr. 378-379). In June 2009, the Claimant reported some increase in stress, stating that mechanical problems with his Toyota Prius were limiting his ability to work, but he was otherwise "doing pretty well," reported that his "attention/focus [were] under good control," and that he had good insight and judgment. (Tr. 377). His GAF score remained at 85. (Id.)
In August 2009, the Claimant reported additional stress over a breakup with his girlfriend. (Tr. 376). Dr. Leonard noted that the Claimant appeared somewhat agitated, looked thinner, and had mildly pressured, slightly more rambling speech. (Id.) The Claimant appeared calmer during a December 2009 follow up, and said he was doing better, with good energy, and was feeling more organized. (Tr. 374). Dr. Leonard noted that the Claimant demonstrated pleasant and cooperative behavior. (Id.) In November 2010, Dr. Leonard noted that the Claimant had cut back on his Depakote because he was running out of medication, but said that overall his mood had been pretty stable and he was sleeping well. (Tr. 370). Dr. Leonard's records indicate that the Claimant missed his January 2011 appointment and did not respond to a follow up call. (Tr. 369). In September 2011, Dr. Leonard contacted the Claimant's sister, who reported that he had stopped his medications in April/May, and had progressively worsened to the point of paranoia and irritability. (Id.)
Depakote is used to treat acute manic episodes associated with bipolar disorder.
In September 2011, the Claimant was referred by the police to Psychiatric Emergency Services ("PES") for acute mental status changes and combative behavior. (Tr. 344). The Claimant tested positive for marijuana and alcohol, and was non-compliant with his mental status exam. (Tr. 344-345). His sister reported his declining behavior over the past three months, with medication noncompliance, and stated she was concerned about the Claimant's ability to maintain activities of daily living. (Tr. 345). He was hospitalized for 10 days, but after his medication was restarted, he was generally functional. (Tr. 25-26, 484-490). At discharge, the Claimant was dressed appropriately, had good hygiene, had normal speech in volume, tone, and rate, and was able to have a linear conversation. (Tr. 483). He said his mood was good and he was ready to go home. (Id.)
Social work notes from November 28, 2011 at Central Community Health Board ("CCHB") stated that the Claimant seemed to minimize his substance abuse and psychotic behavior, and that his "central theme was his need for medication." (Tr. 535). The Claimant agreed to therapy in order to get medications, and CCHB felt that his health could stabilize within three months if he took his medication as prescribed, abstained from active substance use, used therapy to resolve issues involved with his mental illness, and developed effective coping skills. (Tr. 535). His social worker noted that "substance use seemingly worsened his mental condition." (Tr. 537).
On December 2, 2011, Deryck Richardson, Ph.D, reviewed the Claimant's file for the state agency and determined that he had mild limitations in activities of daily living; moderate limitations maintaining social functioning; moderate limitations maintaining concentration, persistence or pace; and one or two episodes of decompensation. (Tr. 60). Dr. Richardson concluded that the Claimant "retains the capacity for normal, superficial, intermittent social interaction and is capable of work in a setting in which duties are routine, predictable, and without high production requirements." (Tr. 63).
The Claimant was seen by Nandinin Khosia, M.D. for the first time on December 28, 2011 at CCHB for psychiatric intake. (Tr. 26, 529). The Claimant stated that he had "a lot" of DUIs, that his family was "well to do," but that he had run out of his trust fund ten years ago and was now working at McDonald's. (Tr. 529). Dr. Khosia's mental status notes indicated that the Claimant presented as quiet, unassuming, and defensive, with dysphoric affect. (Tr. 530). The Claimant slept okay, had normal thought processes, denied hallucinations, and was not suicidal. (Tr. 529-539). Dr. Khosia prescribed Lithium. (Tr. 530). At a follow-up appointment on January 12, 2012, the Claimant said that he was doing janitorial work at McDonald's, and was losing the house he was renting, but was looking for a room to rent. (Tr. 528). Dr. Khosia prescribed Celexa and Seroquel. (Id.)
The Claimant was seen in the emergency department at University Hospital on January 17, 2012 for a complaint of depression. (Tr. 585). He reported that he had recently stopped taking his Risperdal. (Tr. 590). The Claimant denied active plans of suicide or homicide, but reported poor sleep, energy level, and concentration. (Tr. 587). The Claimant was evaluated by a social worker, who did not feel he was at risk for acute suicidal or homicidal ideation, had intact reality testing, and retained decision-making capacity, so he was discharged. (Tr. 586).
Risperdal is used to treat mental/mood disorders such as schizophrenia and bipolar disorder.
After discharge, the Claimant stated that he did not want to live and wanted to be in the hospital to get on the right medication. (Tr. 571). The Claimant reported that he had lost his job as a janitor at McDonald's for missing work. (Tr. 579). The Claimant's sister thought he had missed a few Lithium doses and she indicated that her brother could be manipulative. (Tr. 571). He tested positive for marijuana and was diagnosed with marijuana abuse. (Tr. 569-570). The Claimant was restarted on Lithium as well as Celexa. (Tr. 570). He was cooperative in the hospital, and gradually became less withdrawn and reclusive. (Tr. 569). He requested discharge, and left the hospital on January 23, 2012; it was noted that he had goal directed thoughts, fair insight, fair judgment, and an "ok" mood. (Id.)
Celexa is used to treat depression.
In February 2012, the Claimant told Dr. Khosia that he felt much better since restarting medication and discussed the need for continued sobriety. (Tr. 526). In March 2012, the Claimant told Dr. Khosia that he was working on a probationary basis at a parts manufacturer for Toyota, and his mood swings were under control despite the fact that he was not taking his Seroquel. (Tr. 523). In April 2012, the Claimant explained that the Toyota job did not work out, but he was working for Fine Tool, and was pleased with the change. (Tr. 521). The Claimant indicated that he felt good, his medications were fine, and he was stable. (Tr. 521-522). In June 2012, the Claimant said he had been working the last three months, his mood was better, his sleep was good, and he was stable and not manic. (Tr. 519).
Seroquel is an antipsychotic used to treat schizophrenia.
In July 2012, state agency reviewing physician Leslie Rudy, Ph.D, wrote to the Claimant informing him that the agency found him not disabled upon reconsideration because "while we were trying to gather evidence you informed us that you returned to work and did not want to pursue your disability claim. Therefore your claim has been closed without further evaluation." (Tr. 83). The Claimant was hospitalized at University Hospital from September 10-16, 2012 after police brought him to psychiatric emergency services. (Tr. 594). He was delusional and paranoid, and had not been taking his medications. (Id.) The Claimant also admitted that he had been manic and had not been eating or sleeping recently. (Tr. 594-595). On October 18, 2012, Dr. Khosia saw the Claimant, and noted his recent psychiatric hospitalization. (Tr. 516-518). Dr. Khosia referred the Claimant to crisis stabilization since he was unreliable at taking his medication. (Id.)
A University Hospital discharge summary indicates that the Claimant was hospitalized from October 18-23, 2012 for chronic mental illness with mood and psychotic features, recent unsafe behavior, and medication noncompliance. (Tr. 549550). The Claimant improved on medication over the next three days, with decreased confusion, brightened affect, and improved concentration and memory. (Id.) He was discharged on Lithium and Risperdal with a GAF score of 65. (Tr. 549-550). At discharge, the Claimant displayed adequate hygiene and grooming, was cooperative, was able to sustain eye contact, his mood was good, and his affect appeared congruent. (Id.) The Claimant was able to display a social smile, respond with humor, and showed no emotional lability. (Id.) His speech was not pressured and his thought process was organized and linear. (Id.) The Claimant denied hallucinations and delusions, was alert and oriented, and had satisfactory memory and concentration. (Id.)
A GAF score of 65 indicates some mild symptoms or some difficulty in social, occupational, or school functioning, but generally functioning pretty well, has some meaningful interpersonal relationships.
In November 2012, the Claimant's mood was even, and he told Dr. Khosia that he had enough medication for a month, he had a new roommate, and was looking for a job. (Tr. 514-515). In March 2013, Dr. Khosia noted that the Claimant's mood was even, he was medication compliant, he was working part-time, and was living on his own, (although his mother helped him with rent). (Tr. 509-510).
In a letter to the Claimant's lawyer dated April 17, 2013, Dr. Khosia and social worker, Larry Barr, LISW, stated that the Claimant's diagnosis was bipolar disorder I and alcohol abuse in remission with a GAF score of 55. (Tr. 506). Dr. Khosia noted that between December 2011 and March 2012, the Claimant had found four jobs and lost all four due to his mental health issues and had been hospitalized on three occasions. (Id.) Dr. Khosia stated that the Claimant was distractible, was unable to maintain concentration, and had poor judgment. (Id.) Dr. Khosia and Mr. Barr stated that when the Claimant was feeling better, he had difficulty incorporating the fact that his chronic condition required strict adherence to a medication regimen. (Tr. 506-507). They stated that the Claimant had difficulty engaging in therapy and his typical affect was one of denial and nervous laughter, but he was pleasant, non-threatening, and neat in his appearance. (Tr. 507). Dr. Khosia and Mr. Barr stated that they supported the Claimant's application for disability and considered his condition chronic and long-term. (Id.)
A GAF score of 51-60 indicates moderate symptoms or moderate difficulty in social, occupational, or school functioning.
B .
First, Plaintiff alleges that the ALJ improperly gave more weight to the opinion of a non-examining source that the opinion of the treating psychiatrist. Specifically, Plaintiff argues that the ALJ should have given more weight to the assessment of the Claimant's treating psychiatrist, Dr. Khosia, and the Claimant's counselor, Mr. Barr, who jointly wrote a letter opining that the Claimant's mental health impairments were disabling.
A counselor is not considered an acceptable medical source, so an ALJ is not permitted to assign "controlling" weight to it. 20 C.F.R. §§ 404.1513(a), 416.913(a).
The Regulations clearly state that a treating doctor's opinion must be given "controlling weight" if "well-supported" by objective evidence. 20 C.F.R. § 1527(d)(2). More weight is generally given to treating sources because they can provide a detailed, longitudinal picture of one's medical impairments and may bring a unique perspective to the medical evidence that cannot be obtained from objective findings alone or from reports of individual examinations such as consultative examinations. Id. "If the opinion of a treating source is not accorded controlling weight, an 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, the supportability of the opinion, consistency of the opinion with the record a as whole, and the specialization of the treating source - in determining what weight to give the opinion." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (discussing 20 C.F.R. § 1527(d)(2)).
The ALJ properly gave no weight to Dr. Khosia and Mr. Barr's proclamation of support for the Claimant's application for disability, because the determination of whether a person is disabled requires application of law to fact, and therefore is a matter reserved to the Commissioner. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) ("The determination of disability is ultimately the prerogative of the Commissioner, not the treating physician."). See also 20 C.F.R. §§ 404.1527(e)(1), 416.927(e)(1) ("A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will find that you are disabled.").
Dr. Khosia and Mr. Barr both opined that the Claimant was unable to maintain concentration. However, the Claimant stated that he was able to do activities requiring concentration, such as handle his finances, including bill paying and managing checking and savings accounts, and he reported that he enjoyed reading as a leisure activity. (Tr. 30, 224). The fact that the Claimant was able to do activities requiring concentration further supports a finding that the ALJ properly rejected Dr. Khosia and Mr. Barr's conclusions about his ability to concentrate, because their opinions were inconsistent with the evidence as a whole. See 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) ("Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion"). Moreover, the evidence overwhelmingly supports a finding that when the Claimant was compliant with his medication, he was able to concentrate and maintain attention. For example, in March 2009, Dr. Leonard stated that after starting the Claimant on Ritalin, his attention and focus was under better control and he was becoming more organized. (Tr. 378-379). In June 2009, the Claimant reported that he was "doing pretty well" and that his "attention/focus [were] under good control." (Tr. 377). Accordingly, the evidence supports the ALJ's finding that when the Claimant was medication compliant, he was able to look for work and find jobs, but in an unmedicated state, he deteriorated and lost jobs.
The agency regulations clearly state that in order to get disability benefits you must follow prescribed treatment if it can restore your ability to work. 20 C.F.R. §§ 404.1530(a), 416.930(a) ("What treatment you must follow. In order to get benefits, you must follow treatment prescribed by your physician if this treatment can restore your ability to work.). Even Dr. Khosia admitted that the Claimant would be able to work if he were compliant with his medication. (Tr. 506). If a claimant does not follow treatment orders, he is not entitled to benefits. 20 C.F.R. §§ 404.1530(b), 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled"). This is not a case where the ALJ determined that the Claimant was not disabled because he failed to seek treatment. See, e.g., White v. Comm'r of Soc. Sec., 572 F.3d 272, 283 (6th Cir. 2009) ("For some mental disorders, the very failure to seek treatment is simply another symptom of the disorder itself."). The ALJ determined that the Claimant was not disabled because when he was medication compliant, the record evidence supported a finding that he could sustain gainful employment.
Moreover, aside from implying that the Claimant was unemployable, Dr. Khosia and Mr. Barr did not opine that the Claimant had any specific functional limitations due to his impairments. Since Dr. Khosia and Mr. Barr did not make any medical judgments regarding what Claimant could or could not do, the ALJ had no obligation to assign any weight to their treatment notes or offer any explanation for not doing so. Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007) ("Since Dr. Naum made no medical judgments, the ALJ had no duty to give such observations controlling weight or provide good reasons for not doing so.").
Instead, the ALJ gave more weight to the opinions of the state agency psychologist, Deryck Richardson, Ph.D, who opined that the Claimant was not disabled and could work with certain non-exertional limitations. (Tr. 60-63). Wisecup v. Astrue, No. 3:10cv325, 2011 U.S. Dist. LEXIS 85455, at *7 (S.D. Ohio July 15, 2011) ("opinions of non-examining state agency medical consultants have some value and can, under some circumstances, be given significant weight"). In December 2011, Dr. Richardson concluded that the Claimant "retains the capacity for normal, superficial, intermittent social interaction and is capable of work in a setting in which duties are routine, predictable, and without high production requirements." (Tr. 63). Acknowledging Claimant's social limitations, Dr. Richardson limited him to only "occasional interaction with supervisors and superficial interaction with co-workers and the general public." (Tr. 24). Likewise, in order to accommodate the need for easier tasks, the ALJ limited the Claimant to unskilled work with "simple, routine, repetitive non-tandem tasks" and eliminated strict production demands as recommended by Dr. Richardson. (Tr. 24, 63).
Plaintiff alleges that Dr. Richardson's assessment is not supported by substantial evidence because it was rendered before the Claimant's inpatient hospitalization in October 2012. However, Plaintiff filed for disability with an alleged onset date of December 2007, making assessments from December 2011 (after the Claimant's first episode of decompensation in September 2011) highly relevant. (Tr. 59-63, 344-345, 549-550). In fact, the ALJ acknowledged that the record contained medical evidence that was acquired after Dr. Richardson's review, "including CCHB psychiatric records and University Hospital psychiatric inpatient records." (Tr. 31). The ALJ noted that the "additional evidence documents mild to moderate mental functional limitation, with periods of symptom exacerbation and episodes of decompensation associated with medication noncompliance." (Id.) Therefore, the ALJ explained that "Claimant's functioning with medication compliance indicates that he was able to sustain interpersonal interaction and demonstrate sufficient understanding, memory, concentration, and persistence and pace on task to perform simple, routine, repetitive work activity with limited interpersonal demands." (Id.) Accordingly, the ALJ properly considered Dr. Richardson's opinion in the context of the medical evidence as a whole.
In sum, the assigned RFC assessment was supported by the Claimant's medical records and daily activity and accounts for all of his limitations established by the medical evidence. There is simply insufficient support for Plaintiff's allegations that the Claimant's conditions individually or in combination rendered him totally disabled. Although there are numerous medical records documenting the Claimant's bipolar disorder, other than Dr. Khosia and Mr. Barr's conclusory opinions, there are no other opinions that Plaintiff's bipolar disorder prevented him from working. Social Security regulations place the burden on the claimant to produce evidence to show the existence of a disability. 20 C.F.R. § 404.1512(a). Thus, given the lack of supporting treatment records, and/or functional limitations, the ALJ properly discounted Dr. Khosia and Mr. Barr's disability findings. White v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) ("Conclusory statements from physicians are properly discounted by ALJs."). Accordingly, even if the ALJ erred in failing to address each of the factors identified by the Regulations, such error was harmless. Wilson, 378 F.3d at 547.
"Discretion is vested in the ALJ to weight all the evidence," and she did not abuse that discretion in this instance. Collins v. Comm'r of Soc. Sec., 357 F. App'x 663, 668 (6th Cir. 2009). It is the Commissioner's function to resolve conflicts in the medical evidence. Hardaway v. Sec'y of HHS, 823 F.2d 922, 928 (6th Cir. 1987). "The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. This is so because there is a 'zone of choice' within which the Commissioner can act, without the fear of court interference." Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). "Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached." Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999).
C.
Next, Plaintiff alleges that the ALJ abused her discretion by selectively citing evidence regarding the Claimant's daily living activities. Specifically, Plaintiff alleges that the ALJ focused exclusively on the Claimant's function report and ignored Ms. Schweitzer's third party function report.
When determining whether the Claimant's bipolar disorder met the requirements of Listing 12.04, the ALJ found that the Claimant had only a "mild restriction" in his activities of daily living. (Tr. 22). Based on the Claimant's function report, he was able to live on his own with occasional financial help from his family, he was independent in self-care, cared for pets, was able to prepare food for himself on a daily basis, did his own cleaning, laundry, and yard, drove a car, and shopped for household goods and food. (Tr. 22-23). See Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir. 2004) ("The administrative law judge justifiably considered Warner's ability to conduct daily life activities."). Plaintiff argues that besides being nearly two years old at the time of the hearing, the function report was completed during a period of stability, just weeks after the Claimant's eleven-day inpatient psychiatric hospitalization from September 2-12, 2011. (Tr. 288-390). Although the report was two years old, it was the only testimony the ALJ had since the Claimant was deceased at the time of the hearing. Accordingly, the ALJ cannot have erred in having considered the Report.
Next, Plaintiff argues that the ALJ did not adequately consider the third party function report completed by the Claimant's sister, which contradicts the Claimant's own self-reports. However, the Regulations provide that "[i]n addition to evidence from the acceptable medical sources..., we may also use evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work." 20 C.F.R. §§ 404.1514(d); 416.913(d) (emphasis added). The plain language of this regulation makes it clear that an ALJ has the discretion to consider "other sources," but is not required to consider them. An ALJ's consideration of "other sources" is not mandatory in the same way that he or she is required to consider treating physicians or opinions from consultative or state agency doctors. Moreover, the Sixth Circuit has made it clear that an ALJ does not need to provide good reasons to reject lay witness statements. Mitchell v. Comm'r of Soc. Sec., 330 F. App'x 563, 569 (6th Cir. 2009) ("[T]he mere regurgitation of third-party statements concerning a Claimant's alleged symptoms does not constitute objective medical evidence subject to the protections of the good reasons rule.").
Ms. Schweitzer, Plaintiff's sister, stated that her brother needed verbal reminders to bathe and often required physical help in house and yard work. (Tr. 236). She reported that the Claimant had "lost all interest in most things," (Tr. 238) and "isolated himself from others" (Tr. 239). Ms. Schweitzer also claimed that her brother could be very "argumentative and not always rational." (Id.) Ms. Schweitzer's function report was later supplemented by her affidavit, which was submitted to the Appeals Counsel after the hearing. However, the information in the affidavit may not be considered for purposes of determining whether substantial evidence supports the ALJ's decision. Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993) ("The court is confined to review evidence that was available to the Secretary, and to determine whether the decision of the Secretary is supported by substantial evidence.").
These "other sources" include "other non-medical sources" such as friends, neighbors, and family. 20 C.F.R. §§ 404.1514(d)(4); 416.913(d)(4).
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Accordingly, the ALJ's failure to address the weight of lay witness testimony is harmless. Carlson v. Shalala, 999 F.2d 180 (7th Cir. 1993).
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 Lauren Weiss on behalf of Robert Weiss Jr., 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, whereupon this case is CLOSED in this Court. Date: November 5, 2014
s/ Timothy S. Black
Timothy S. Black
United States District Judge