Dyamond v. Comm'r of Soc. Sec.

Full title: ANTHONY R. DYAMOND, SR., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

Date published: Jan 27, 2014

Case No. 3:13-cv-117 (S.D. Ohio Jan. 27, 2014)

Opinion

Case No. 3:13-cv-117

01-27-2014

ANTHONY R. DYAMOND, SR., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

Timothy S. Black

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 where Plaintiff is proceeding pro se. 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 ("PageID") (PageID 45-57) (ALJ's decision)).

I.

Plaintiff filed for DIB and SSI on April 30, 2009, alleging disability beginning on January 1, 2005 due to anxiety disorders, diabetes, and right foot problems. (PageID 45, 214, 218, 292). His applications were denied initially and upon reconsideration. (PageID 114-117). Following hearings in June 2011 and January 2012, where Plaintiff appeared with an attorney, the ALJ issued a decision concluding that Plaintiff was not disabled and retained the residual functional capacity ("RFC")¹ to perform a limited range of light work.² (PageID 42-57).

1 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).

2 "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." 20 C.F.R. § 404. 1567(b), 416.967(b).

Plaintiff was 42 years old on the alleged disability onset date. (PageID 55). Plaintiff completed eleventh grade and lived with his mother. (PageID 71-72). Plaintiff's past relevant work experience includes short order cook and fry cook.³ (PageID 55).

3 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). Plaintiff was last employed in February 2008. (PageID 72).

The ALJ's "Findings," which represent the rationale of her decision, were as follows:

1. The claimant meets the insured status requirements of the Social Security Act through June 30, 2005.
2. The claimant has not engaged in substantial gainful activity since January 1, 2005, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: osteoarthritis of the knees bilaterally; obesity; diabetes mellitus; status post right knee repair; status post left hernia repair; status post bunion repair on the right foot; depressive disorder, NOS; anxiety disorder, NOS; panic disorder (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 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 has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) subject to the following limitations: must be able to alternate between sitting and standing at thirty-minute intervals provided that this person is not off task more than 10% of the work period; no climbing ladders, ropes, or scaffolds; occasional balancing; avoid concentrated exposure to moving machinery and unprotected heights; reads at the sixth grade level; work limited to simple and detailed tasks; no fast paced work or high production quotas; only occasional interaction with the public and coworkers; no teamwork; no direct contact with the public.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on July 27, 1961 and was 43 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (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. 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 is "not disabled," whether or not the claimant has 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 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 January 1, 2005, through the date of this decision (20 CFR 404.1520(g) and 416.920(g)).

(PageID 47-56).

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 SSI or DIB. (PageID 57).

On November 18, 2013, Plaintiff filed a short letter and 16 pages of additional evidence that the Court construed as his Statement of Specific Errors. (Doc. 20). Plaintiff argues that the ALJ overlooked several exhibits in his case, but did not provide any explanation regarding why he disagrees with the ALJ's determination that he was not disabled. ⁴ (Id.) While courts construe an unrepresented litigant's filings more liberally, Plaintiff's "argument" consisted solely of two exhibits he believed were overlooked by the ALJ. See, e.g., Provident Savings Bank v. Popovich, 71 F.3d 696, 699-700 (7th Cir. 1995) (explaining that pro se litigants are generally subject to the same waiver rules that apply to parties who are represented by counsel and waive arguments by failing to raise them). ⁵ The Court will address these exhibits, Plaintiff's reply memorandum, and the ALJ's decision in general.

4 In his reply memorandum, Plaintiff argues in more detail that: (1) the Court should have adopted the opinion of his treating physician, Dr. Walters, who had treated him since 1998, instead of Dr. Firmin, the consultative examiner, who saw him for approximately 20-25 minutes; (2) the Court should consider his hospitalization in 2000 as evidence of a period of decompensation; (3) the ALJ's reliance on the fact that he took care of his mother was misplaced because he was aided by multiple agencies and was able to take breaks, sit, and lay down when required. (Doc. 24 at 1-3).

5 Failure to raise an issue in the Statement of Errors constitutes waiver of any additional claim. Heston v. Comm'r of Soc. Sec., 245 F.3d 528 (6th Cir. 2001). However, given Plaintiff's pro se status, the Court will nonetheless consider the arguments he raises in his reply memorandum.

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:⁶

6 Neither party recounted Plaintiff's medical history, so the Court adopts the evidence as presented by the ALJ.

July 2010 x-rays of the Plaintiff's knees revealed moderate osteoarthritis and osteopenia. There were suggestions of small joint effusion on the right side only. (PageID 47). Plaintiff testified that he is 6 feet tall and weighs 250 pounds. (Id.)

Plaintiff was found to have insulin dependent diabetes mellitus. (PageID 48). He testified that he takes insulin one time per day at night and checks his blood sugar three times per day. (Id.) He testified that it was relatively under control. (Id.)

Plaintiff complains of pain in his right lower extremity. (PageID 48). At his physical consultative exam, Plaintiff reported that he had right knee surgery in May 2011. (Id.) Range of motion testing was completely normal other than mild effusion of the right knee and mildly decreased range of motion with flexion to 100 degrees and extension to 0 degrees. (Id.) Plaintiff ambulated with a mildly antalgic gait favoring his right leg and he was able to transfer from sitting to standing and onto and off of the exam table with minimal difficulty. (Id.) The examiner diagnosed status post recent right medial meniscectomy and arthritis in the right knee. (Id.) A May 2008 MRI of the right foot showed post-surgical changes, but was otherwise unremarkable. (Id.)

In July 2011, Plaintiff attended a psychological consultative examination where he was diagnosed with panic disorder and depressive disorder. (PageID 48). Plaintiff's overall thought processes were characterized by pessimism. (Id.) He had thought preoccupations that were centered on his problems, but there was never a need to redirect him back to the topic being discussed. (Id.) His mood was generally nervous and pessimistic and his affect or emotional responsiveness was dysphoric. (Id.) He reported having some depression with reported symptoms including poor appetite, insomnia, fatigue, poor concentration, low self-esteem, and feelings of hopelessness. (Id.) He showed outward manifestations of fidgeting, lack of focus, and sighing. (Id.) He reported panic attacks. (Id.) There were no indications of the presence of delusions, compulsions, obsessive thoughts, phobias, or hallucinations. (Id.) He has had a recent history of loss of consciousness due to blackouts. (Id.) He was oriented in all spheres. (Id.) His abstraction ability and intellectual ability were both judged to be average. (Id.) His ability to articulate and formulate clear thoughts seemed relatively unimpaired. (Id.) Logic appeared to flow in a sequential manner and he evidenced reasonable abilities in connecting potential consequences with actions. (Id.)

Plaintiff attended his physical consultative examination in July 2011. Following the exam, the examiner concluded that Plaintiff would be incapable of any moderate or heavy lifting, carrying, pushing, or pulling. (PageID 52). However, he could still perform light lifting, carrying, pushing, or pulling. (Id.) His standing or walking needed to be limited to periods of time of no more than thirty minutes with adequate periods allowed for rest in light of his recent surgery on his right knee. (Id.) Sitting, handling objects, hearing, speaking, and traveling would be unaffected as a whole. (Id.) Plaintiff's psychological consultative examiner concluded that he had a GAF score of 55 at the time of the examination.⁷ (Id.)

7 The Global Assessment of Functioning ("GAF") is a numeric scale (0 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupations, and psychological functioning of adults. A score of 51-60 indicates moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work).

Dr. Mary Buban, a psychologist, testified at the hearing as a psychological expert. She testified that Plaintiff reported in January 2004 that he was able to work and was looking for a full time job. (PageID 52). In November 2004, it was noted that he continued to drink despite being told to quit. (Id.) In February 2005, he was doing well with medication. (PageID 52-53). In April 2007, Plaintiff was diagnosed with dysthymic disorder.⁸ (PageID 53). His affect was appropriate and his mood was dysphoric. (Id.) He had no suicidal or homicidal ideation and his insight and judgment were good. (Id.) In October 2007, Plaintiff had been working at Applebee's for six months and hoped to move to the Cheesecake Factory after acquiring transportation. (Id.) He had a GAF score of 55. (Id.)

8 Dysthymic disorder is a mood disorder consisting of the same cognitive and physical problems as in depression, with less severe but longer lasting symptoms.

Plaintiff returned for treatment in 2009 due to excess stress caring for his mother who required 24/7 care as a result of early onset dementia and a fall. (PageID 53). Despite the stress, Plaintiff reported being stable and handling things as they came. (Id.) In December 2009, he reported that in addition to caring for his mother he continued to cook meals, clean the house, and run errands. (Id.) In April 2010, Plaintiff had a GAF score of 65⁹ and was discharged from treatment. (Id.)

9 A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships.

Two separate psychologists evaluated Plaintiff's functional capacity based upon the evidence of record without examining Plaintiff on behalf of the Bureau of Disability Determination ("BDD"). (PageID 53). The first BDD psychologist concluded that Plaintiff would have mild limitations in activities of daily living, mild limitations in social functioning, and mild limitations in concentration, persistence, and pace. (Id.) The second BDD psychologist agreed with the mild limitations in activities of daily living, but went on to find moderate limitations in the other two areas. (Id.) The second BDD psychologist went on to conclude that the claimant was capable of simple, repetitive tasks, in a stable environment with limited social interaction. (Id.)

Three different reports found that Plaintiff is disabled. In June 2010 a source with the Greene County Department of Job and Family Services concluded that Plaintiff was unable to work. (PageID 53). However, Family Services provided no objective evidence to support such a claim. In May 2011, a social worker concluded that Plaintiff was disabled and had multiple severe limitations in his functional abilities. (Id.) A similar report was filed by Plaintiff's family physician at approximately the same time. (Id.)

Plaintiff appeared in front of the ALJ, with counsel present, in June 2011. (PageID 104-111). No testimony was given, as there was only discussion between counsel and the ALJ regarding Plaintiff's alleged onset date, and whether he was proceeding with only a Title XVI claim, or whether he intended to pursue a Title II claim as well. (PageID 104-111). The hearing was adjourned so that the ALJ could resolve these issues. (PageID 111).

At the next hearing in January 2012, Plaintiff again appeared with counsel. (PageID 66). Clinical psychologist, Mary Buban, Psy.D., testified as the medical expert regarding Plaintiff's mental health. (PageID 75). She discussed Plaintiff's mental health treatment records at length. (PageID 76-81). Dr. Buban summarized that the records showed that Plaintiff had mild limitations in activities of daily living; mild-to-moderate limitations maintaining social functioning; mild-to-moderate limitations maintaining concentration, persistence or pace; and no episodes of decompensation. (PageID 80). When asked to provide specific functional limitations, Dr. Buban stated that while Plaintiff was "capable of simple and detailed tasks, [and] probably some complex [tasks]," she recommended limiting him to just simple and detailed tasks due to his anxiety. (PageID 80). Dr. Buban also opined that Plaintiff should have only superficial contact with the public, no team work, and that he should generally work alone, although others could be in the area. (PageID 80). Dr. Buban also recommended that Plaintiff not have "fast paced work [or] high production quotas" because of his anxiety. (PageID 81).

B.

Plaintiff seeks DIB which requires, among other things, that an applicant be insured under Section 423(c)(1) and be under a disability. 42 U.S.C. § 423(a). A "period of disability can commence only while an applicant is fully insured." 42 U.S.C. § 416(i)(2)(c). To be entitled to DIB, Plaintiff must establish that he was disabled prior to his date last insured ("DLI"), which was June 30, 2005. (PageID 47, 232). See 20 C.F.R. §§ 404.315(a)(1), 404.320(b)(2). Plaintiff alleged that he became disabled beginning January 1, 2005. Therefore, Plaintiff must prove that he became disabled during the six month relevant period between January 1, 2005 and June 30, 2005.

The record reflects that Plaintiff did not receive any significant treatment during the relevant six month period. Strong v. Soc. Sec. Admin., 88 F. App'x 841, 846 (6th Cir. 2004) ("in the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt on a claimant's assertions of disabling pain."). Most of the treatment records are from after 2005 and the medical opinion evidence cited in Plaintiff's brief is from 2011. (PageID 1518).¹⁰ "Evidence of disability obtained after the expiration of insured status is generally of little probative value." Strong, 88 F. App'x at 846. The Sixth Circuit has previously found that a report written eight months after the expiration of insured status was "minimally probative," in assessing a claimant's health status prior to his date last insured. Siterlet v. Sec'y of HHS, 823 F.2d 918, 920 (6th Cir. 1987).

10 The evidence attached to Plaintiff's reply memorandum is irrelevant to this appeal. Plaintiff cites evidence of a psychiatric hospitalization in 2000, five years before the alleged onset date (Doc. 24 at PageID 1564-1566), and documents post-dating the ALJ hearing, specifically October-December 2013 (Id. PageID 1567-1574). Listing 12.00(B)(4) requires three such episodes within a year, in addition to at least one functional area of marked limitations.

Accordingly, the ALJ's determination that Plaintiff was not entitled to DIB is supported by substantial evidence.

C.

Plaintiff appears to argue generally that the ALJ's decision was not supported by substantial evidence.

The ALJ relied on the testimony of the medical expert, Dr. Buban, that Plaintiff's mental impairments were not disabling and did not meet or medically equal a Listing. (PageID 80-81).¹¹ Dr. Buban recommended that Plaintiff was limited to jobs with simple tasks and only superficial contact with the public and co-workers, no team work, and no work that was fast paced or had high production quotas. (PageID 80-81). The ALJ gave Dr. Buban's opinion great weight because she was in the position to see all of the medical evidence in its entirety. (PageID 53). Hale v. Sec'y of Heath & Human Servs., 816 F.2d 1078, 1083 (6th Cir. 1987) (a medical expert's "testimony, based on the evidence of record, represents substantial evidence to support the Secretary's decision").¹² Dr. Buban is a clinical psychologist, so her opinion was given more weight than other types of doctors. See 20 C.F.R. § 404.1527(d)(5), 416.927(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.").

11 Plaintiff references a period of decompensation when he was hospitalized for eight days in 2000. (Doc. 24 at 3). However, evidence pre-dating the disability onset date of January 1, 2005 is not helpful in determining if Plaintiff was disabled on January 1, 2005.

12 See, e.g., Atterberry v. Sec'y of HHS, 871 F.2d 567, 570 (6th Cir. 1989) ("While the Court recognizes that [the medical expert] did not actually treat or physically examine the claimant, his opinion was based upon the objective evidence of medical reports made by the claimant's treating physician and testimony given by the claimant himself. Similarly, the ALJ reviewed and interpreted this evidence individually as part of the entire record.").

Additionally, Dr. Buban's testimony was consistent with the record as a whole. (PageID 53). Dr. Buban testified that the record showed that in 2004, Plaintiff was looking for full time work even though he was under house arrest and that he continued to drink against medical advice. (PageID 52, 732, 747). In 2007, Plaintiff had a job at Applebee's for at least six months. (PageID 53, 902). Dr. Buban noted that in 2007, Plaintiff had appropriate affect, adequate memory, good insight, good judgment,¹³ no suicidal or homicidal ideation, and no psychosis. (PageID 53, 945). Plaintiff was able to taper himself off Xanax because his anxiety improved and he even got married. (PageID 53, 945).

13 In fact, this Court was impressed with Plaintiff's reasoning and insight as articulated in his reply memorandum. (Doc. 24). Plaintiff clearly read and understood the Commissioner's arguments and specifically rebutted (albeit unsuccessfully) those arguments in his reply memorandum. (Id.)

Dr. Buban testified that Plaintiff had no mental health treatment in 2008, which undermined his allegations of disabling mental impairments. See SSR 96-7p ("On the other hand, the individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints, or if the medical reports or records show that the individual is not following the treatment as prescribed and there are no good reasons for this failure."). When he returned to mental health counseling in 2009, it was because he was stressed out by having to care for his mother with dementia. (PageID 53). However, the ALJ noted that Plaintiff "was complemented on his ability to quickly set up respite and home health care" for his mother, and he reported being stable and able to handle things as they came up. (PageID 53, 880). In fact, in December 2009, Plaintiff reported that he was able to cook meals, clean the house, run errands, and take care of his elderly and sick mother.¹⁴ (PageID 53, 877). Plaintiff reported that despite these responsibilities he was not "as stressed taking care of his mother as he originally thought he would be." (PageID 53, 877). Plaintiff's mental health continued to improve and in April 2010 he was assigned a GAF score of 65, indicating only mild symptoms and limitations. (PageID 53). Accordingly, the ALJ's decision to give Dr. Buban's testimony the most weight was supported by the record.

14 Plaintiff argues that he had a lot of help caring for his mother from different agencies. (Doc. 24 at 3). However, even ignoring the fact that Plaintiff helped to care for his elderly mother, the Court finds sufficient facts in the record to undermine Plaintiff's allegations of disability.

Plaintiff specifically argues that the ALJ overlooked two exhibits. First, Exhibit 14F is a Supplemental Questionnaire dated March 31, 2011, which was completed by Dr. Walters. (PageID 1103-1106). Plaintiff essentially disputes the manner in which the ALJ decided to weigh differing opinions. However, the Commissioner's determination must stand if it is supported by substantial evidence regardless of whether the reviewing court would resolve conflicts in the evidence differently. Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). The ALJ provided "good reasons" for discounting the assessment form completed by Dr. Walters. Specifically, the ALJ gave Dr. Walters' opinion, that Plaintiff was unemployable, no weight. The determination of whether a person is disabled requires application of law to fact and is therefore an issue "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.").

The ALJ also discounted Dr. Walters' questionnaire because Dr. Walters "provided no objective evidence to support" the extreme functional limitations he indicated through circling mostly "moderately-severe" and "severe" responses in most functional areas. (PageID 1103-1106, 1531-1534). "[W]here conclusions regarding a claimant's functional capacity are not substantiated by objective evidence, the ALJ is not required to credit those conclusions." Cutlip v. Sec'y of Heath & Human Servs., 25 F.3d 282, 287 (6th Cir. 1994). In fact, as the ALJ noted, Dr. Walters' treatment notes actually undermine the opinions in his assessment form. (PageID 54). For example, in November 2009, Plaintiff saw Dr. Walters for a 20 minute session at which he reported good sleep and good appetite. (PageID 888-889). Plaintiff had normal speech, normal grooming and hygiene, normal thought process and content, good insight and judgment, and no feelings of hopelessness. (PageID 888-891). Plaintiff's GAF score was 55, indicating moderate symptoms and limitations. (PageID 891). In discounting Dr. Walters' opinion, the ALJ noted that "most of [Plaintiff's] GAF scores have been in the mid-50s and some have even been in the 60s" which only indicate mild to moderate symptoms and limitations. (PageID 54). Additionally, Plaintiff reported improvement to Dr. Walters (including a reduction in panic attacks), which was inconsistent with the extreme limitations recommended. (PageID 893). While the Court acknowledges that Dr. Walters was Plaintiff's treating physician, "[t]reating physicians' opinions are only given such deference when supported by objective medical evidence." Warner v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009).¹⁵

15 Plaintiff attached Dr. Walters's October 10, 2013 letter to his reply memorandum. (Doc. 24 at 1573-1574). While the letter expressly states that Plaintiff is disabled, it is devoid of any objective evidence. Moreover, it was drafted after the date of the hearing, and thus cannot be considered by this Court. See Section II.D, infra.
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The second exhibit Plaintiff references is two pages from a consultative examination with Michael Firmin, Ph.D, taken in July 2011. (PageID 1115-1123). Dr. Firmin noted that Plaintiff had a history of mental impairments since he was a teenager, but that counseling and medication has been helpful. (PageID 116). While Plaintiff reported to Dr. Firmin that he did leave past jobs due to an inability to focus, Plaintiff reported elsewhere in the record that he lost his last job "as a result of not having transportation to and from the job." (PageID 895, 1117). Upon exam, Plaintiff had the "ability to articulate and formulate clear thoughts ... and he evidenced reasonable abilities in connecting potential consequences with actions." (PageID 1118). He also had adequate insight and judgment and remained coherent and focused in the interview. (PageID 1118). Plaintiff was pessimistic, nervous, and dysphoric, but had average intelligence and reported being able to participate in many activities of daily living. (PageID 1118-1119). For example, Dr. Firmin noted that Plaintiff was able to go shopping, handle money, and cook. (PageID 118-229). He was also able to clean the house, do laundry, and manage his personal hygiene without assistance. (PageID 1118-1119). Plaintiff reported to Dr. Firmin that he liked to listen to music, watch tv, play with children, engage in conversation, go to church, and use the phone to call friends and family. Meyer v. Comm'r of Soc. Sec., 1:09cv814, 2011 U.S. Dist. LEXIS 30490, at *11 (S.D. Ohio Feb. 11, 2011) ("As a matter of law, the ALJ may consider [the claimant's] household and social activities in evaluating her assertions of pain or limitations"). Plaintiff could follow cooking instructions, take his medications properly, read his mail, check voicemail, read books, and return phone calls. (PageID 1119). Dr. Firmin also noted that Plaintiff had normal speech, answered questions well, and was 100% intelligible. (PageID 1119).

Dr. Firmin diagnosed a depressive disorder and assigned a GAF of 55, indicating moderate symptoms and limitations. (PageID 1119). The ALJ referred to Dr. Firmin's evaluation in detail when he determined that Plaintiff had mild limitations in activities of daily living; mild-to-moderate limitations maintaining social functioning; mild-to-moderate limitations maintaining concentration, persistence or pace; and no episodes of decompensation. (PageID 49-50, 52, 1120-1121). Upon review, Dr. Firmin's assessment actually supports the ALJ's finding that Plaintiff had only mild to moderate limitations. (PageID 49-50). Dr. Firmin never opined that Plaintiff was disabled or that he would be unable to work at a job that accommodated his mild to moderate limitations.

Also attached to Plaintiff's statement of errors was an evaluation completed by his social worker. (PageID 1527-1530). A social worker is not considered an acceptable medical source. 20 C.F.R. § 404.1513(a), 416.913(a). Therefore, the ALJ was not permitted to assign "controlling" weight to his non-medical opinions. Soc. Sec. Rul. 96- 2p. In fact, unlike a medical source statement, the ALJ is not even required to mention the opinion of a social worker. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 514 (6th Cir. 2010) (requirement to provide good reasons for the weight given to opinions "only applies to treating sources").

Accordingly, the Court finds that the ALJ did not commit reversible error in her weighing of the evidence. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 2999) ("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.").

D.

Plaintiff attached five pages of additional evidence in support of his brief that was not in the record before the ALJ. These records consist of a one page record where Plaintiff stated that he was hearing voices in October 2000 (PageID 1519), a two page record from October 2000 in which he was diagnosed with depressive disorder (PageID 1520-1521), and a two page letter from 2013 authored by Dr. Walters opining that Plaintiff was disabled (PageID 1525-1526). This evidence may not be considered for purposes of determining whether substantial evidence supports the ALJ's decision. "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." Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir. 1993).

Evidence submitted for the first time to the Appeals Council may be considered only for purposes of determining whether remand is appropriate under the sixth sentence of 42 U.S.C. Section 405(g), which provides: "The Court may...at any time order additional evidence to be taken before the Commissioner of Social Security, 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 the failure to present the evidence to the ALJ have been defined by this Court as follows:

For the purposes of a 42 U.S.C. Section 405(g) remand, evidence is new only if it was "not in existence or available to the claimant at the time of the administrative proceeding"....Such evidence is "material" only furthers "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).

First, some of the additional evidence is not new. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). The records from October 2000 are clearly not new. Second, Plaintiff has not established that good cause exists for his failure to submit this evidence to the ALJ. The good cause requirement is satisfied if there is a "valid reason" for the failure to submit evidence at a prior hearing. Oliver v. Sec'y of Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986). Plaintiff has not provided any explanation for why he waited until 2013 to submit evidence from 13 years earlier. Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 485 (6th Cir. 2006) (claimant who fails to identify obstacles to timely submission of evidence fails to demonstrate good cause). Moreover, the record from October 16, 2000 clearly states that Plaintiff was "encouraged to return to work" and had "no physical...restrictions" which further undermines his argument. (PageID 1521).

With respect to Dr. Walters's 2013 letter, Plaintiff failed to carry his burden of showing that it is material. To satisfy the materiality requirement, the party seeking sentence six remand must 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 Heath & Human Serv., 865 F.2d 709, 711 (6th Cir. 1988). Additional evidence is material only if it concerns the claimant's condition prior to the ALJ's hearing decision. Id. Evidence of the aggravation or deterioration of a condition is not relevant since it "does not demonstrate the point in time that the disability itself began." Oliver v. Sec'y of Heath & Human Services, 804 F.2d 964, 966 (6th Cir. 1986).

Accordingly, a sentence six remand is improper.

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 Anthony Dyamond was not entitled to supplemental security income or disability insurance benefits, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED in this Court.

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Timothy S. Black

United States District Judge