Opinion
3:23-cv-676
11-30-2023
Patrick A. Frisbie, Plaintiff, v. Commissioner of Social Security, Defendant.
JAMES G. CARR, DISTRICT JUDGE
REPORT & RECOMMENDATION
James E. Grimes Jr., U.S. Magistrate Judge
Plaintiff Patrick A. Frisbie filed a complaint against the Commissioner of Social Security seeking judicial review of its decision denying disability insurance benefits. This Court has jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). The Court referred this matter to a Magistrate Judge under Local Rule 72.2(b)(1) for the preparation of a Report and Recommendation. Following review, and for the reasons stated below, I recommend the District Court affirm the Commissioner's decision.
Procedural background
In August 2020, Frisbie filed an application for disability insurance benefits alleging a disability onset date of January 1, 2017. Tr. 72, 215. Frisbie alleged that he was disabled due to “acute pancreatitis, pulmonary emboli, deep vein thrombosis, bipolar disorder, chronic depression, diabetes, high blood pressure, obesity, [and] chronic fatigue syndrome.” Tr. 73, 238. The Commissioner denied Frisbie's applications at the initial level and on reconsideration. Tr. 72-80, 81-89. In December 2021, an Administrative Law Judge (ALJ) held a hearing at which Frisbie and a vocational expert testified. Tr. 32-70. The ALJ issued a written decision in December 2021 finding that Frisbie was not disabled. Tr. 12-31. The ALJ's decision became final in February 2023, when the Appeals Council declined further review. Tr. 1-6; see 20 C.F.R. § 404.981.
“Once a finding of disability is made, the [agency] must determine the onset date of the disability.” McClanahan v. Comm'r of Soc. Sec., 193 Fed.Appx. 422, 425 (6th Cir. 2006).
Frisbie filed this action in March 2023. Doc. 1. In it, he asserts the following assignments of error:
1. The ALJ incorrectly and inappropriately relied on Plaintiff's lack of treatment to support a finding of “not disabled.”
2. The ALJ's decision relies on the opinion of an unqualified examiner as defined by the SSA rules.Doc. 6, at 1.
Factual background
1. Personal and vocational evidence
Frisbie was born in December 1968 and was 48 years old on the alleged disability onset date. Tr. 73. He was last insured on December 31, 2020. Tr. 72. Frisbie has a bachelor's degree and an MBA. See Tr. 43, 239, 279. He previously worked as a materials engineer, a global change manager at a solar panel manufacturer, and an engineering specialist. See Tr. 65, 239.
To be entitled to Disability Insurance Benefits, a claimant must be a wage-earner who accumulated sufficient earning credits and became disabled before the end of his or her insured date. See, e.g., 42 U.S.C. § 423(c)(1); see also Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988); Soc. Sec. Disab. Claims Prac. & Proc. § 5:3 (2nd ed. 2022). The relevant time period here is from Frisbie's alleged onset date, January 1, 2017, to his last insured date, December 31, 2020. See Tr. 72.
This recitation of medical evidence is not intended to be exhaustive. It is limited to relevant facts that were submitted by the parties in their briefs.
Frisbie saw primary care physician Eleanor Host, M.D., in January 2017. Tr. 683. At 6 feet, 2 inches tall, Frisbie weighed 330 pounds and had a body mass index (BMI) of 42.5. See id. He had not been exercising or watching his diet. Id. He was smoking five cigarettes per day. Id. Frisbie denied chest pain, had no difficulty breathing, and had no swelling. See id. His blood pressure was elevated at 140/90. Id. Dr. Host assessed Frisbie with hypertension, restless legs, depression, and insomnia. Id.
In June 2017, Frisbie saw Dr. Host again. Tr. 685. Frisbie reported fatigue and lower back pain. Id. He described vomiting after working in the sun and not eating all day. See Tr. 685. Frisbie said that his hands shook when he didn't eat regularly. Id. Dr. Host assessed Frisbie with diabetes mellitus type 2, hypertension, “bipolar/depression,” obesity, and smoking. Tr. 685. Frisbie's blood pressure was 128/78, he weighed 343 pounds, and he had a BMI of 44.1. Id. Dr. Host prescribed Metformin, which is a diabetic medication. Id.
Frisbie next saw Dr. Host in July 2018. Tr. 677-78. He reported dislocating his pinky finger two weeks earlier when he fell off of a ladder into a tree. Tr. 677. Frisbie had sought emergency medical care for the finger but hadn't used a prescribed splint, taken any pain medication, or iced his finger. Tr. 677. He was “back to working on his sister's house repairs” with a full range of motion and no pain. Id. Dr. Host prescribed Prednisone and Levaquin. Id.
Frisbie saw Dr. Host again in November 2018. Tr. 675-76. He complained of dysphagia, chest pain, and ongoing swelling in his pinky finger. Id. Frisbie's blood pressure was 165/114, he weighed 341 pounds, and he had a BMI of 43.88. Id. Frisbie reported that occasionally, he felt as if food were stuck in his throat. Id. Frisbie reported that almost daily for “the last few months,” he felt a sharp pain in his chest along the right side of his sternum. Id. Frisbie's chest pain worsened with stress and wasn't affected by physical exertion. Id. He had some shortness of breath, which he “attribute[d] ... to being overweight.” Tr. 675.
Dysphagia means difficulty swallowing. Dorland's Illustrated Medical Dictionary 573 (33rd ed. 2020).
Frisbie next saw Dr. Host in November 2019. Tr. 668-89. Frisbie reported spasms and pain in his thoracic regionthat prevented him from sleeping comfortably. Tr. 668. Dr. Host found tightness in Frisbie's mid-back on the right side. Tr. 669. Frisbie described unsuccessful efforts to relieve his pain and discomfort such as taking Flexeril, using myofascial release techniques, resting, and applying heat and ice. See Tr. 668-69. Dr. Host injected Frisbie's “thoracic and trapezius areas” with Lidocaine and Depo-Medrol. Tr. 668. She prescribed Percocet as needed and encouraged Frisbie to stretch, roll out his muscles, and apply heat to release active spasms. Tr. 669.
The spinal column is divided into cervical, thoracic, and lumbar vertebrae. See Thomas Scioscia, MD, Vertebrae in the Vertebral Column, Spine-health Resources, https://www.spine-health.com/conditions/spine-anatomy/vertebrae-vertebral-column[https://perma.cc/R9MM-TBZT]. Thoracic refers to the upper back, lumbar to the lower back, and cervical to the neck. Id.
In February 2021, x-rays of Frisbie's lumbar spine showed minimal degenerative changes. Tr. 717.
3. State agency and other medical opinion evidence
When a claimant applies for disability benefits, the state agency creates a record. The record includes the claimant's medical evidence. A state agency disability examiner and a state agency physician or psychologist review the claimant's record and determine whether and to what extent the claimant's condition affects his or her ability to work. If the state agency denies the claimant's application, the claimant can ask for reconsideration. On reconsideration, the state agency updates the record and a second disability examiner and doctor review the file and make a new determination. See, e.g., 20 C.F.R. § 404.1615.
In December 2020, consultative physician Ryan Lakin, M.D., conducted a physical evaluation. Tr. 695-702. Frisbie reported chronic fatigue syndrome as well as chronic lower back, hip, and knee pain which he attributed to obesity. Id. Frisbie reported a “history of psychiatric illness” and said that he'd received outpatient mental health treatment in the past. Tr. 695.
Dr. Lakin found that Frisbie had a normal range of motion in his cervical spine, shoulders, elbows, wrists, hands, fingers, and ankles and a decreased range of motion in his lumbar spine and knees. Tr. 696. Frisbie complained of pain with range of motion in his hips, knees, and lumbar region. Id. Dr. Lakin noted no redness, swelling, joint enlargement, muscle wasting, or anatomic deformity. Id. Frisbie had no scoliosis. Id. “[His] [h]ands appear[ed] normal.” Id. Frisbie had negative results from straight leg raise and Romberg tests. Tr. 702. He had no muscle spasms with passive range of motion. Tr. 695. Dr. Lakin found that Frisbie had normal upper extremities with normal fine and gross manipulative skills and normal pinching and grasping. Id. His grip strength was normal-“5” out of five-in both hands. Tr. 702. Frisbie had a slow, guarded, abnormal gait which was “secondary to bilateral hip and knee pain and morbid obesity.” Tr. 697. He wasn't able to perform “heel-to-toe or tandem walking” and could not stand on one leg alone. Id. Dr. Lakin found Frisbie's speech, thought process, affect, and mood normal and observed no “obvious psychiatric problems.” Tr. 696.
A Romberg test “is a simple physical test to see if [a person] has balance problems.” See https://my.clevelandclinic.org/health/diagnostics/22901-romberg-test [https://perma.cc/XMG2-6MUY].
Dr. Lakin found that in an eight-hour workday, Frisbie could lift and carry 5 to 10 pounds frequently, 10 to 20 pounds occasionally, and never more than 20 pounds. Id. As long as Frisbie was able to take regular breaks, he could sit continuously and stand and walk occasionally. Id. Long distance travel would be difficult. Id. Frisbie's ability to communicate was normal and his performance of the normal activities of daily living was “moderately affected” by his impairments. Id.
Consultative psychologist James Kelly, M.Ed., of Kelly Psychological Services conducted a psychological evaluation in January 2021. Tr. 705-12. Kelly noted that Frisbie arrived fifteen minutes early for his appointment and drove himself to the office without any difficulty. Tr. 708. When Kelly asked about Frisbie's chief psychological complaint, Frisbie responded, “It's hard to explain.” See Tr. 706. When Kelly asked why Frisbie was psychologically prevented from returning to work, Frisbie said, “It's hard to explain.” Id. Kelly noted that Frisbie had self-initiated the application for disability benefits. Id. Frisbie denied a family history of mental illness and reported that he got along well with his siblings and children. See Tr. 706.
Frisbie denied problems relating to neighbors, store clerks, or public agency officials. Id. Frisbie's appearance was age-appropriate and he was appropriately groomed with neatly combed hair. Tr. 708. Frisbie's clothes were clean and in good repair, however, he was “inappropriately dressed for the weather” in shorts and a sweatshirt. See id. Kelly found Frisbie cooperative and motivated to participate in the evaluation. Id. Frisbie “did not demonstrate significant eccentricities of manner or frequent impulsivity.” Id. His appetite was normal but he had trouble falling asleep. Id. Frisbie denied feelings of guilt, hopelessness, or worthlessness. Id. Although Frisbie reported a “disillusioned” mood and “loss of energy or persistence” during the previous week, Kelly found that Frisbie's energy level was within normal limits. Id. Kelly noted that Frisbie did not shake, fidget, or pace. Tr. 709. Frisbie denied being a nervous person and “wouldn't describe himself as a worrier.” Id. He denied a history of anxiety or panic attacks and denied strong fears or phobias. Id. Frisbie endorsed being overcompetitive and perfectionistic, which increased stress. Id. At home, Frisbie ran errands and did the laundry, cooking, grocery shopping, and yard work. Tr. 710. He said that he had been “okay” at meeting his household responsibilities during the previous week. Id. He was able to perform all of his usual activities of daily living. Id.
Kelly assessed Frisbie with “unspecified depressive disorder in partial remission.” Tr. 711. He found that Frisbie was able to understand, remember, and carry out one-step and complex workplace instructions. Tr. 712. He found that Frisbie had an average ability to maintain concentration, work persistently, and maintain pace. Id. Socially, Kelly found that Frisbie was cooperative and that he related in a friendly manner. Id. He found Frisbie open and conversational, though sometimes vague. Id. Kelly expected that Frisbie would respond appropriately to supervision and coworkers in a work setting. Id. Kelly noted that although Frisbie had “some mental health issues,” he expected Frisbie to respond in a psychologically appropriate manner to normal workplace pressure. Id. Kelly noted that Frisbie's competitiveness and perfectionism were potential limiting factors. Id.
State agency consulting physician Diane Manos, M.D., reviewed the medical evidence in January 2021. Tr. 72-80. Dr. Manos found that Frisbie had severe impairments including discogenic and degenerative back disorders, depressive, bipolar and related disorders, obesity, and osteoarthritis and allied disorders. Tr. 76. Dr. Manos opined that despite these impairments, Frisbie had unlimited abilities in pushing and pulling with his upper and lower extremities. Tr. 78. He could lift or carry 20 pounds occasionally and 10 pounds frequently. Id. Frisbie had the residual functional capacity (RFC) to frequently climb ramps and stairs but could never climb ladders, ropes, or scaffolds. Id. He was unlimited in his ability to balance but could only frequently stoop, kneel, crouch, and crawl. Id. Frisbie could stand, walk, or sit for a total of about six hours in an eight-hour workday. Tr. 78. According to Dr. Manos, Frisbie had no manipulative, visual, or communicative limitations, though he did have environmental limitations and should avoid all exposure to hazards such as machinery or heights. Tr. 79. Dr. Manos found that Frisbie was capable of performing unskilled labor with a light level of exertion with additional limitations. Tr. 80. In June 2021, state agency consulting physician Steve McKee, M.D., reconsidered the evidence. Tr. 82-89. Dr. McKee adopted Dr. Manos's findings, including that Frisbie retained the RFC to perform unskilled, light work with additional limitations. Tr. 89.
An RFC is an “assessment of”' a claimant's ability to work, taking his or his “limitations ... into account.” Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Circ. 2002). Essentially, it is the Social Security Administration's “description of what the claimant ‘can and cannot do.'” Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 631 (6th Cir. 2004) (quoting Howard, 276 F.3d at 239).
State agency consulting psychologist Janet Souder, Ph.D., reviewed the medical evidence in January 2021. Tr. 75-78. Dr. Souder found that Frisbie was not limited in his ability to understand, remember, or apply information. Tr. 76. She found that Frisbie was no more than mildly limited in the three remaining broad areas of mental functioning: (1) interacting with others; (2) concentrating, persisting, or maintaining pace; and (3) adapting or managing oneself. Id. State agency consulting psychologist Deryck Richardson, Ph.D., reconsidered the evidence in June 2021 and adopted Dr. Souder's mental RFC findings, including that Frisbie could understand, remember, and apply information without limitations and had only mild limitations in the three other areas of mental functioning. Tr. 84-85.
4. Testimonial evidence
Frisbie and a vocational expert testified during the hearing in November 2021. Tr. 32-70. Frisbie was represented by attorney Theodore Bowman, who submitted correspondence in advance of the hearing advocating that the ALJ find Frisbie disabled. See Tr. 279-82. Near the beginning of the hearing, the ALJ asked Bowman whether he had any objection to the admission of records that had been submitted. Tr. 37. Counsel said that he had “no objections,” and the ALJ “admit[ted] Exhibits 1A through 10F.” Id. Relevant to Frisbie's current issues, the admitted exhibits included Exhibit 5F, which is Kelly's report discussed above. See Tr. 704-13.
At the hearing, Attorney Bowman made an opening statement. Tr. 3839. Frisbie expressed concern about the “report from County Psychological Services,” which he said was “completely not accurate.” See Tr. 37-38. The ALJ responded that Frisbie's “lawyer ha[d] agreed to admit those” records and that Frisbie's concerns went to the weight of the evidence, not its admissibility. Tr. 37. The ALJ, however, told Frisbie that he could discuss his concerns with Bowman and “submit a letter.” Tr. 37. Frisbie then testified. Tr. 39-64.
Frisbie said that he and his ex-wife owned the home where they had lived for 12 years. Tr. 39-40. They divorced in 2006 but continued their romantic relationship as it was when they were married. Tr. 41. Frisbie did not have health insurance. Tr. 43. His primary care provider, Dr. Host, was a direct care provider who didn't accept insurance. Id. Frisbie paid a monthly membership fee and could see Dr. Host as often as he needed. Id.
Frisbie testified about his depression, mania, and bipolar disorder. Tr. 50-52. He said that he had previously collected short-term disability on two occasions due to mental stress. Id. Frisbie hadn't seen a counselor for several years but recently established care with a psychiatrist. Tr. 51-52. Frisbie had been receiving psychiatric medication from his primary care physician. Tr. 51. He said that “[p]robably once a month,” he had a manic episode where he would be “awake for 72 hours or more.” Tr. 57. Other times, Frisbie had depressive episodes during which he couldn't get up from the couch or get out of bed. Tr. 58. Frisbie said that he thought about suicide “probably every day of [his] life” due to childhood sexual trauma. Tr. 59.
Frisbie discussed his physical issues. See, e.g., Tr. 40, 53-56, 60. He stopped working in 2015 after he slipped on his porch and “ripped [his] ankle up.” Tr. 40. There was “something wrong with his left ankle” but he hadn't “been able to get any treatment or diagnosis of it.” Tr. 40. Frisbie denied needing a boot or the assistance of a cane but said that “if [he] step[ped] wrong on anything, [his] ankle [would be] shot for a couple of weeks.” Tr. 53-54. Frisbie discussed his back and knee problems, which he attributed to playing football, baseball, and wrestling from a young age through high school. Tr. 54. That morning, he had only been able to walk for six minutes on the treadmill. Tr. 63-64. His legs felt as if they were filled with concrete. Tr. 64. His ankle and lower back prevented him from standing for more than five minutes at a time and he couldn't carry things up or down the stairs. Id.
Frisbie had neuropathy in his feet due to diabetes. Tr. 60-64. He said that his feet felt “prickly” like a “pins and needles kind of thing” all the time. Tr. 59-60. The neuropathy prevented him from being able to walk for longer than five minutes. Tr. 60. Frisbie had restless leg syndrome which primarily affected him at night. Tr. 61. He reported “horrendous” sleep and said that once or twice per day, he was able to sleep for three hours to three and a half hours at a time. Id.
Frisbie left his house approximately twice a week, mainly to go grocery shopping, and was able to drive himself and his ex-wife wherever they needed to go. Tr. 42-43, 57. He did chores and cooked occasionally while his ex-wife generally cleaned up and did the dishes. Tr. 54-55. Frisbie did laundry, vacuumed, and took care of the couple's two 20-pound dogs. Tr. 55-56. He was able to bathe and shower himself, though he showered only twice monthly. Tr. 55-56. He could dress himself. Id.
Frisbie testified about interpersonal issues at previous jobs and said that he had been fired in the past due to attendance and interpersonal conflicts. Tr. 48, 62-63.
After Frisbie, vocational expert Robert Breslin testified. Tr. 64-69. Breslin said that a hypothetical individual with the same age, education, and work experience as Frisbie, with the limitations assessed in Frisbie's RFC, described below, could not perform Frisbie's past work. Tr. 66. According to Breslin, however, such an individual could perform light, unskilled jobs such as a house cleaner, merchandise marker, or deli clerk. Tr. 66-67. A limitation to only sedentary jobs would not preclude such an individual from all work, as he or she could still perform jobs such as a document preparer, assembly worker, or surveillance monitor. Tr. 67. Being absent two times per month or more on a consistent basis or being off task more than eight percent of the workday would be preclusive of all work. Tr. 67-68. A limitation to no more than occasional contact with supervisors and coworkers, no group or tandem work, and no contact with the general public, would eliminate the position as a deli worker but would not preclude such an individual from performing all work. Tr. 68-69.
The ALJ's decision
The ALJ made the following findings of fact and conclusions of law:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2020.
2. The claimant did not engage in substantial gainful activity during the period from his alleged onset date of January 1, 2017 through his date last insured of December 31, 2020 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: depression, osteoarthritis of the knees, obesity, and degenerative disc disease of the lumbar spine (20 CFR 404.1520(c)).
4. Through the date last insured, 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 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except can frequently climb ramps and stairs, never climb ladders, ropes or scaffolds; frequently stoop, kneel, crouch and crawl; avoid all exposure to unprotected heights and heavy moving machinery; can understand, remember, and carry out simple instructions; perform simple, routine, and repetitive tasks but
not at a production rate pace such as an assembly line; claimant can tolerate few changes in the work setting, defined as routine job duties that remain static and are performed in a stable, predictable work environment, and can adapt to routine changes in the workplace that are infrequent and easily explained.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 20, 1968 and was 52 years old, which is defined as a younger individual age 18-49, on the date last insured. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563).
8. The claimant has at least a high school education (20 CFR 404.1564).
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. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569a).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from January 1, 2017, the alleged onset date, through December 31, 2020, the date last insured (20 CFR 404.1520(g)).Tr. 17-27.
Standard for disability
Eligibility for benefit payments depends on the existence of a disability. 42 U.S.C. §§ 423(a, 1382(a). “Disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” 42 U.S.C. § 423(d)(1)(A); see also 42 U.S.C. § 1382c(a)(3)(A).
An ALJ is required to follow a five-step sequential analysis to make a disability determination:
1. Is the claimant engaged in substantial gainful activity? If so, the claimant is not disabled.
2. Does the claimant have a medically determinable impairment, or a combination of impairments, that is “severe”? If not, the claimant is not disabled.
3. Does the claimant's impairment meet or equal one of the listed impairments and meet the duration requirement? If so, the claimant is disabled. If not, the ALJ proceeds to the next step.
4. What is the claimant's residual functional capacity, and can the claimant perform past relevant work? If so, the claimant is not disabled. If not, the ALJ proceeds to the next step.
5. Can the claimant do any other work considering the claimant's residual functional capacity, age, education, and work experience? If so, the claimant is not disabled. If not, the claimant is disabled.20 C.F.R. §§ 404.1520, 404.1520. Under this sequential analysis, the claimant has the burden of proof at steps one through four. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the Commissioner at step five to establish whether the claimant has the vocational factors to perform available work in the national economy. Id. If a claimant satisfies each element of the analysis and meets the duration requirements, the claimant is determined to be disabled. Id.
Standard of review
A reviewing court must affirm the Commissioner's conclusions unless it determines “that the ALJ has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record.” Jordan, 548 F.3d at 422. “‘[S]ubstantial evidence' is a ‘term of art'” under which “a court ... asks whether” the “existing administrative record ... contains ‘sufficien[t] evidence' to support the agency's factual determinations.” Biestek v. Berryhill, 139 S.Ct. 1148, 1154 (2019) (citations omitted). The substantial evidence standard “is not high.” Id. Substantial evidence “is ‘more than a mere scintilla'” but it “means only[] ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Id. (citations omitted). The Commissioner's “findings . as to any fact if supported by substantial evidence [are] conclusive.” 42 U.S.C. § 405(g); Biestek, 139 S.Ct. at 1152.
A court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if substantial evidence or a preponderance of the evidence supports a claimant's position, a reviewing court cannot overturn the Commissioner's decision “so long as substantial evidence also supports the conclusion reached by the ALJ.” Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). This is so because there is a “‘zone of choice within which'” the Commissioner can act, without fear of court “‘interference.'” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984).
Discussion
1. Whether the ALJ incorrectly and inappropriately relied on Frisbie's lack of treatment to support a finding of “not disabled.”
Frisbie begins his first argument by observing that “there is no firm requirement in the SSA's rules regarding how often a claimant must see a physician or how many times a claimant must be hospitalized to be found disabled.” Doc. 6, at 11. He then opines that with the cost of healthcare rising, individuals seeking disability benefits under the Social Security Act “face an uphill battle in proving the existence of their impairments and conditions” and “must provide mountains of evidence regarding their symptoms and conditions” to “stand even a remote chance of receiving a favorable decision.” Id. Frisbie also complains that “the SSA provides minimal assistance in obtaining this evidence,” and instead leaves “the responsibility of obtaining and providing such treatment” to “the claimant.” Id.
Having laid out this foundation, Frisbie notes that Dr. Host had been his physician for over seven years. Id. at 12. Frisbie then says that despite a “long track record of treatment,” the ALJ found Dr. Host's opinion “entirely unpersuasive.” See id. at 12. According to Frisbie, the ALJ ignored “all evidence of [Frisbie's] physical impairments” in finding Dr. Lakin's opinion “mostly unpersuasive.” Id. Frisbie concludes by arguing, without specificity, that the ALJ's decision “was not supported by substantial evidence” in that it was “not supported by any evidence.” See id. at 13.
Frisbie says that “[t]hroughout his decision, [the] ALJ ... stressed that [Frisbie's] sparse history of treatment led to most evidence imposing limitations on [Frisbie's] physical capabilities being found unpersuasive.” See Doc. 6, at 10. Frisbie cites page 23 of the transcript to support this assertion. Id. Frisbie later returns to this idea, saying that the ALJ “[specifically ... decided that Plaintiff had not seen enough doctors or been hospitalized enough to be consistent with Dr. Lakin's testimony.” Id. at 12; see also id. at 11 (“While the presence of medical records and documentation is necessary to support a disability finding, an artificial and arbitrary requirement regarding the requisite amount of medical records, doctor's visits, and specialists seen should not be imposed by an ALJ.”). But Frisbie doesn't cite the record in support of this “specific[]” assertion. Moreover, he mischaracterizes the ALJ's decision.
At the page Frisbie cites, the closest the ALJ came to saying what Frisbie claims that he said was when he observed that “[p]rior to the consultative examination [Frisbie] engaged in very minimal treatment and required no emergent medical care.” Tr. 23. Based on this observation, the ALJ deduced “that [Frisbie's] impairments d[id] not rise to the level of being disabled nor to the sedentary exertional level.” Tr. 23. Rather than saying that Frisbie “had not seen enough doctors or been hospitalized enough,” the ALJ merely inferred from the minimal evidence that Frisbie wasn't disabled or restricted to sedentary exertion. In other words, the ALJ said that Frisbie hadn't carried his burden. See Tr. 17-27.
Moreover, while it is difficult to quarrel with Frisbie's observations about the cost of healthcare, Doc. 6, at 10-12, Frisbie's assertion that the Social Security Administration should provide more than “minimal assistance in obtaining . . . evidence,” id. at 11, is (1) contrary to the applicable regulation that he cites, see 20 C.F.R. § 404.704, and (2) a policy argument that is more properly directed to Congress or the Social Security Administration. See Wright v. Morris, 111 F.3d 414, 422 (6th Cir. 1997). Absent an argument- which Frisbie doesn't make-that the regulation violates the Constitution or a statute, Frisbie's observations and assertions are not relevant. Further, Frisbie doesn't argue that the ALJ misapplied the regulation.
Moving past Frisbie's policy observations and somewhat hyperbolic claims about what the ALJ said, Frisbie argues that the RFC should have limited him to sedentary rather than light labor and that this change would have led to a disability determination. See Doc. 6, at 13. He claims without specificity or citation that the ALJ's decision was “not supported by substantial evidence to the extent that it [was] not supported any evidence” and that the ALJ ignored “all evidence of [Frisbie's] physical impairments” in crafting the RFC. See Doc. 6, at 12-13. As discussed below, these claims simply aren't true.
The RFC is the “most [an individual] can still do despite the physical and mental limitations resulting from [his] impairments.” Poe v. Comm'r of Soc. Sec., 342 Fed.Appx. 149, 155 (6th Cir. 2009); see 20 C.F.R. § 404.1545(a). Under 20 C.F.R. § 404.1546(c), the ALJ is responsible for developing the RFC. 20 C.F.R. § 404.1546(c) (“If [a] case is at the administrative law judge hearing level ..., the administrative law judge ... is responsible for assessing [the] residual functional capacity.”); see also Rudd v. Comm'r of Soc. Sec., 531 Fed.Appx. 719, 728 (6th Cir. 2013). An ALJ is required to determine the RFC “based on all of the relevant evidence in the case record, including information about the individual's symptoms and any ‘medical source statements'-i.e., opinions about what the individual can still do despite his or her impairment(s)- submitted by a ... treating source or other acceptable medical source.” Soc. Sec. R. 96-8p, 1996 WL 374184, *2 (footnote omitted). An RFC “is not a medical opinion, but an administrative determination reserved to the Commissioner.” McWhorter, 2023 WL 5353139, at *11 (citing Golden v. Berryhill, No. 1:18-cv-636, 2018 WL 7079506, at *17 (N.D. Ohio Dec. 12, 2018), report and recommendation adopted, 2019 WL 415250 (N.D. Ohio Feb. 1, 2019). The ALJ “is only required to include in the [RFC] those limitations [that] he finds credible and supported by the record.” Lipanye v. Comm'r of Soc. Sec., 802 Fed.Appx. 165, 170 (6th Cir. 2020) (citing Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). “The determination of disability is ultimately the prerogative of the Commissioner, not the treating physician.” Warner v. Comm'r of Soc., Sec., 375 F.3d 387, 390 (6th Cir. 2004) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)) (alterations omitted).
Consideration of Physical Impairments. The ALJ demonstrated sufficient consideration of Frisbie's physical impairments and, in fact, determined that several-osteoarthritis of the knee, obesity, and degenerative disc disease of the lumbar spine-were severe. See Tr. 18. He found that Frisbie was nonetheless capable of light work as defined by 20 C.F.R. § 404.1567, with additional limitations.Tr. 20. In support of this determination, the ALJ explicitly addressed Frisbie's physical impairments.
Light work is defined at 20 C.F.R. § 404.1567(b) as:
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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.
For example, the ALJ noted that during Dr. Lakin's physical examination, Frisbie had a BMI of 44.3 and Level III obesity. See Tr. 21 (citing Tr. 693-703). The ALJ acknowledged Frisbie's complaints of chronic back and knee pain. Id. The ALJ considered Frisbie's “pain with prolonged sitting, standing and walking' and inability to “perform repetitive bending, twisting, or lifting/carrying heavy objects.” Id. The ALJ considered additional physical impairments including sleep issues, pancreatitis, pulmonary emboli, deep vein thrombosis, diabetes mellitus, hypertension, chronic fatigue syndrome, and restless leg syndrome. See, e.g., Tr. 20 (citing Tr. 245-46); Tr. 21 (citing Tr. 693-703), Tr. 22 (citing Tr. 717-19). The ALJ cited Bowman's submission of a brief which “further outlin[ed] [Frisbie's] impairments.” Tr. 21, (citing Tr. 27982). Bowman's brief, pertinently, highlighted physical impairments including diabetes, obesity, hypertension, lumbar issues, knee issues, pain, neuropathy, and fatigue. See Tr. 279-81.
The ALJ noted, however, that Frisbie was able to “get out of the house twice per week to go to the grocery store, ha[d] his driver's license, and was able to drive to his appointments.” Tr. 21. The ALJ considered that Frisbie did not need a “cane or walking boot for ambulation.” Id. Frisbie could “do laundry[,] ... occasionally cook[,] take showers[,] ... walk through a shopping mall” as long as he took frequent breaks, stand for up to 20 minutes, and climb up five stairs without difficulty. Tr. 21.
The record contains additional support for the ALJ's light-work RFC. For example, during Dr. Lakin's physical examination, Frisbie had normal hands and a normal range of motion in his neck, upper extremities, and ankles with decreased range of motion in his lumbar region and knees. See Tr. 696. He had no redness, swelling, joint enlargement, muscle wasting, or an anatomic deformity. Id. His muscles did not spasm with passive range of motion. Tr. 695. Frisbie had normal upper extremities with normal fine and gross manipulative skills and normal pinching and grasping abilities. Id. His grip strength was a “5” out of five in both hands. Tr. 702. Obesity led to Frisbie's abnormal gait and hip and knee pain. Tr. 697. He wasn't able to perform “heel-to-toe or tandem walking” and could not stand on one leg alone. Id. Frisbie's speech, thought process, affect, and mood were normal. Tr. 696.
And, as the ALJ noted, despite finding Dr. Lakin's medical opinions unpersuasive, the RFC “[nonetheless” incorporated many of Dr. Lakin's physical impairment concerns. Tr. 24. For example, the ALJ limited Frisbie to “work at the light exertion level with frequent climbing of ramps and stairs and no climbing of ladders, ropes or scaffolds” and found that Frisbie could frequently “stoop, kneel, crouch and crawl, but should avoid all exposure to unprotected heights and heavy moving machinery.” Id.
So the only way to conclude that, as Frisbie claims, the ALJ “ignored all evidence of Plaintiff's physical impairments,” Doc. 6 at 12, is to ignore what the ALJ said.
Consideration of Dr. Host's Medical Opinion Letter. In addition to treatment records, Dr. Host submitted a letter on Frisbie's behalf in May 2021. See Tr. 728-239. In it, Dr. Host stated that Frisbie had “chronic health conditions ... [that] ma[d]e it hard for him to work consistently for any length of time.” Tr. 728. She asserted that physical issues “limit[ed] his ability to do any manual labor regularly.” Id. She opined that Frisbie could not work parttime due to the potential for “weeks where he [was not] be unable to do any job duties.” Id. Dr. Host listed restless legs, neuropathy, and bipolar disorder as the “main limiting factors” that prevented Frisbie from attaining ongoing employment. Id. She said that Frisbie didn't sleep well due to his conditions and that the lack of sleep “exacerbate[d] his bipolar [disorder] and chronic fatigue ... [and] ... play[ed] a role in elevating his blood sugars.” Id.
Dr. Host described “the nature of [Frisbie's] bipolar disorder” and indicated that it “[led] to easy frustration, anger, and [an] inability to socialize appropriately at times.” Id. As a result, Dr. Host said, Frisbie “would likely contribute to a toxic work environment for other employees.” Id. Dr. Host said that Frisbie did not handle even mild stress in the same way that a person without bipolar disorder would, and that the amount of medication Frisbie would need to be sufficiently calm would make him “too sleepy and unable to think clearly enough to do any type of work.” Id. Dr. Host opined that even if Frisbie was able to work for a short period of time, “he would likely be fired or go on leave within a few weeks.” Id. She said that this cycle “continue[d] to create instability in [Frisbie's] life which . trigger[ed] his bipolar symptoms and ma[d]e it hard [for him] to look for work, get a job, and hold it.” Id. Dr. Host concluded by declaring Frisbie “not employable” and saying that he would be “much better off with the stability of disability payments.” Id.
Frisbie objects to the ALJ's assessment of the letter, see Doc. 6, at 12, after which the ALJ found Dr. Host's opinions, including her “significant limitations[,]” unpersuasive. Tr. 23-24. In addition to the assessment of physical abilities and limitations, Frisbie also seems to take issue with the ALJ's finding that Frisbie was no more than mildly limited in his ability to interact with others. See Doc. 6, at 10 (“Notably, ALJ Sher imposed no limitation on Plaintiff's ability to interact with supervisors, coworkers, or the general public in the workplace.); see also Doc. 6, at 12-13; Tr. 23-24. Frisbie essentially claims that the ALJ should have given Dr. Host's letter more weight and incorporated its opinions into the RFC. See Doc. 6, at 13.
The ALJ introduced the psychological medical opinion section by first discussing Kelly's consultative opinion, which the ALJ found “mostly persuasive.” Tr. 23 (citing Tr. 704-13). He found Kelly's opinion “consistent with the claimant's limited symptoms and treatment history prior to the ... date last insured” while noting that Kelly issued findings after that date. Id. The ALJ adopted many of Kelly's mental impairment opinions when crafting the RFC. See Tr. 23 (citing 704-13).
The ALJ next addressed the statements in Dr. Host's letter. Tr. 23. He explained that he found Dr. Host's opinions unpersuasive because they lacked internal support, addressed issues outside of Dr. Host's practice area, addressed issues reserved to the Commissioner, and were otherwise inconsistent with the record as a whole. Tr. 23 (citing Tr. 728-29). Notably, Frisbie offers no direct challenge to the ALJ's reasons for finding Dr. Host's opinions unpersuasive.
As to the ALJ's discount of Dr. Host's opinions “on issues reserved to the Commissioner” and her designees, Dr. Host made several statements-e.g., that it was “hard for [Frisbie] to work consistently for any length of time” and that he was “limit[ed] in his ability to do any manual labor regularly,” “not employable,” “too sleepy and unable to think clearly enough to do any type of work” when medicated, and “[un]able to hold even a part time job on a regular basis”-that are “neither inherently valuable nor persuasive” because they are statements on issues reserved to the Commissioner. See Tr. 24; 20 C.F.R. § 404.1520b(c), (c)(3) (i)-(viii).
Section 404.1520b(c) defines “[e]vidence that is inherently neither valuable nor persuasive.” Among this evidence are “[statements on issues reserved to the Commissioner.” These statements include those “about whether [a claimant] [is] or [is] not disabled, ... able to work, or able to perform regular or continuing work;” whether [he] has or does not have a severe impairment; whether an impairment meets or does not “meet the duration requirement,” whether [an] impairment “meets or medically equals any listing[;]” and “whether or not [his] residual functional capacity prevents [him] from doing past relevant work.” 20 C.F.R. § 404.1520b(c)(3)(i)-(viii).
Further, much of Dr. Host's opinions are not “medical opinions” under the regulations. See 20 C.F.R. § 404.1513(a)(2) (defining a “medical opinion” as “a statement from a medical source about what [the claimant] can still do despite [his] impairment(s) and whether [he] ha[s] one or more impairment-related limitations or restrictions” in the ability to perform the physical, mental, and sensory or other demands of work or to adapt to environmental conditions). In her letter, Dr. Host did not submit a statement about what Frisbie could still do despite his impairments or a statement about whether Frisbie had one or more impairment-related limitations or restrictions in the areas of ability listed in 20 C.F.R. § 404.1513(a)(2)(i)-(iv). See Tr. 728; see also Brandon M. v. Comm'r of Soc. Sec. Admin., No. 3:22-cv-167, 2023 WL 6348406, at *6 (S.D. Ohio Sept. 29, 2023) (holding that an ALJ formulating an RFC isn't required to weigh an observation from a medical opinion letter that does not contain a statement about what the claimant can do despite his impairments or a statement about whether the claimant has one or more impairment-related limitations in the abilities listed in 20 C.F.R. § 404.1513(a)(2)(i)-(iv)).
Given their inherent lack of probative value and persuasive weight, the ALJ was not required to analyze Dr. Host's opinions, let alone incorporate them into the RFC. See 20 C.F.R. § 404.1520b(c) (stating that for “[e]vidence that is inherently neither valuable nor persuasive[,] ... [the Commissioner] will not provide any analysis about how [she] considered such evidence in [her] determination or decision.”); see also 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.”); Brandon M., 2023 WL 6348406, at *6 (“regarding Dr. Gronbeck's conclusions that Plaintiff is ‘totally disabled' and will never ‘be able to hold down gainful employment[,]' these findings are determinations reserved for the Commissioner, and ALJ Kenyon was not required to analyze Dr. Gronbeck's opinion in that regard.”). Accordingly, the ALJ had no obligation to consider, let alone adopt, Dr. Host's suggested limitations when crafting the RFC. His finding them unpersuasive was thus not error.
To the extent that portions of Dr. Host's letter were, as Frisbie argues, medical opinions, see Doc. 6, at 13, the ALJ sufficiently considered the factors of supportability and consistency in finding Dr. Host's opinions unpersuasive, see Tr. 23-24 (citing Tr. 728). The Commissioner is required to evaluate the persuasiveness of medical opinions using the following factors: supportability; consistency; treatment relationship, including the length, frequency, purpose, extent, and examining relationship; specialization; and other factors. 20 C.F.R. § 416.920c(a), (c)(1)-(5). Supportability and consistency are the most important factors. 20 C.F.R. § 416.920c(a). The Commissioner must explain the supportability and consistency factors when discussing a medical opinion. 20 C.F.R. § 416.920c(b)(2). “[A]n ALJ need not,” however, “specifically use the terms ‘supportability' or ‘consistency' in his analysis.” Cormany v. Kijakazi, No. 5:21-cv-933, 2022 WL 4115232, at *3 (N.D. Ohio Sept. 9, 2022) (citing cases). The Commissioner is not required to discuss the remaining factors. Id. “A reviewing court evaluates whether the ALJ properly considered the factors as set forth in the regulations to determine the persuasiveness of a medical opinion.” Toennies v. Comm'r of Soc. Sec., 2020 WL 2841379, at *14 (N.D. Ohio June 1, 2020) (internal quotation marks and citation omitted).
As far as supportability and consistency are concerned, the ALJ, for example, cited Dr. Host's statement that Frisbie was “not employable” and wasn't able to work. See Tr. 23, 728. Dr. Host attributed the unemployability to Frisbie's restless leg syndrome, neuropathy, and bipolar disorder. Tr. 23, 728. The ALJ noted, however, that there was no evidence of treatment for any of these conditions during the relevant time period. Tr. 23. In her letter, Dr. Host claimed that Frisbie “experience[d] frustration, anger, and an inability to socialize.” Tr. 23, 728. The ALJ pointed out, however, that Frisbie hadn't reported these symptoms during his psychological examination. Tr. 23; 70413; 728. The ALJ found that there was “no evidence to suggest that [Dr. Host's] assessment of [Frisbie's] mental health impairments [was] consistent with the significant limitations [Dr. Host] advance[d].” Tr. 23. He considered the extent to which Dr. Host's suggested limitations “[stood] in stark contrast to” Kelly's “minimal [findings of] psychological symptoms and impairments.” Tr. 23-24 (citing Tr. 704-13; 728-29). As to the area of Dr. Host's expertise, the ALJ cited her credentials as a board-certified family physician and pointed out that this meant that Dr. Host was someone who specialized in mental health such as a psychologist or a psychiatrist. See Tr. 23 (citing Tr. 728). As such, Dr. Host was opining “on issues outside of [her] area of practice.” See Tr. 23.
What's more, the “somewhat persuasive” findings of the state agency consultative psychologists, Tr. 25 (citing Tr. 73-80; 82-89), support the ALJ's RFC. Initial state agency consulting physician Diane Manos, M.D., found that Frisbie had unlimited abilities in pushing and pulling with his upper and lower extremities. Tr. 78. He could lift or carry 20 pounds occasionally and 10 pounds frequently. Id. He had the RFC to frequently climb ramps and stairs but never ladders, ropes, or scaffolds. Id. She found Frisbie's ability to balance unlimited but limited him to only frequent stooping, kneeling, crouching, and crawling. Id. He could stand, walk, or sit for a total of about six hours in an eight-hour workday. Tr. 78. Dr. Manos found no manipulative, visual, or communicative limitations, though she did find that Frisbie needed to avoid all exposure to hazards. Tr. 79. Dr. Manos found that Frisbie was capable of performing unskilled, light work with additional limitations. Tr. 80. During reconsideration, consulting physician Steve McKee, M.D., adopted Dr. Manos's findings in full. Tr. 89.
Initial state agency consulting psychologist Janet Souder, Ph.D., found that Frisbie had no limitations in the ability to understand, remember, or apply information. Tr. 76. Dr. Souder found that he was no more than mildly limited in the three remaining broad areas of mental functioning: (1) interacting with others; (2) concentrating, persisting, or maintaining pace; and (3) adapting or managing oneself. Id. On reconsideration, state agency consulting psychologist Deryck Richardson, Ph.D., fully endorsed Dr. Souder's mental RFC findings. Tr. 84-85.
The ALJ's mental RFC was notably more limiting that the state agency doctors in that the ALJ found Frisbie's depression a severe impairment while Doctors Souder and Richardson classified it as non-severe. Tr. 25. The ALJ acknowledged that the doctors' found Frisbie's depression “cause[d] no more than a mild limitation on [Frisbie's] ability to perform work related actives.” Id. The ALJ determined, however, that the objective medical evidence and a finding from Kelly-that competitiveness and a perfectionistic approach may limit Frisbie's ability to respond appropriately to workplace stress-supported instead the finding that depression caused a moderate effect on Frisbie's ability to adapt or manage himself. See Tr. 25. The ALJ thus determined that Frisbie's depression was a severe impairment. Id.
So substantial evidence in the record supports the ALJ's RFC and Frisbie hasn't show that the ALJ failed to support his findings with the supportability or consistency factors as required. And “[s]o long as substantial evidence supports the conclusion reached by the ALJ,” it doesn't matter if substantial evidence also supports a claimant's position. See Key, 109 F.3d at 273. So whether substantial evidence exists to support a more restrictive RFC is irrelevant because substantial evidence also supports the light-work RFC that the ALJ adopted. See Tr. 23-24, 728-29. The ALJ explained his decision adequately, and was not obligated to adopt the opinion of a medical source. See Wright v. Colvin, No. 1:15-cv-01931, 2016 WL 5661595, at *10 (N.D. Ohio Sept. 30, 2016); Jefferson v. Colvin, No. 1:14-cv-01851, 2015 WL 4459928 at *6 (N.D. Ohio July 21, 2015). Frisbie has not demonstrated any flaw in the ALJ's logic or otherwise shown that the ALJ's conclusions were based on less than substantial evidence. Frisbie may not agree with the ALJ, but disagreement does not “provide a basis for remand.” Steed v. Colvin, No. 4:15-cv-1269, 2016 WL 4479485, at *10 (N.D. Ohio Aug. 25, 2016).
It is worth noting that, as he did with Dr. Lakin's concerns, the ALJ incorporated many of Dr. Host's mental impairment concerns into the RFC. Id. The RFC, for example, limited Frisbie “to understanding, remembering, and carrying out simple instructions and ... simple, routine, and repetitive tasks but not at a production rate pace such as an assembly line.” Id. Frisbie could tolerate “few changes in the work setting, defined as routine job duties that remain[ed] static and [were] performed in a stable, predictable work environment.” Id. Workplace changes were limited to those that were routine, infrequent, and easily explained. Tr. 24. Contrary to Frisbie's claims, the ALJ considered Dr. Host's observations in crafting the RFC.
In addition to ignoring the ALJ's decision, Frisbie ignores the standard of review. He asks this Court to reweigh the evidence, which it cannot do. Rottmann v. Comm'r of Soc. Sec., 817 F. App'x. 192, 196 (6th Cir. 2020). Supportability and consistency are the only two factors the ALJ was required to articulate, and he did so here with citations to substantial evidence in the record. See, e.g., Tr. 20-25. Frisbie argues, at base, that because he believes substantial evidence in the record exists to support Dr. Host's opinions, the ALJ's finding that those opinions were unpersuasive-yet nonetheless incorporating them into the RFC-was not supported by substantial evidence. See Doc. 6, at 12-13. But “[s]o long as substantial evidence supports the conclusion reached by the ALJ,” it doesn't matter if substantial evidence also supports a claimant's position. See Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). Substantial evidence supports the ALJ's analysis and determination that although Frisbie had impairments, the record did not support the limitations Dr. Lakin placed on Frisbie's abilities or the significant limitations asserted by Dr. Host. See Tr. 23-24; see also Tr. 696; 728.
2. Whether the ALJ relied on the opinion of an unqualified examiner as defined by the SSA rules.
Frisbie claims that the Dr. Host's mental impairment opinions should have controlled the mental RFC because Kelly's opinions were “the only opinions that controvert[ed] Dr. Host's findings” and Kelly's “exact credentials” were “unknown from a review of the evidence.” Id. at 14. His counsel affirmatively states that Kelly “holds no suchdegree or certification. A review of Ohio's Board of Psychology website confirms the same - no person by the name James Bruce Kelly has ever held a license with the Board in the state.” Doc. 6, at 14. This argument fails for a few reasons.
The antecedent to the pronoun “such” is unclear. In the preceding sentence, Frisbie references a psychologist, a psychiatrist, and a medical doctor. Given the context, it likely that such refers to a psychologist or a psychiatrist.
First, on the merits, Frisbie continues to ignore the plain language of the ALJ's decision. The ALJ assessed Frisbie's mental functioning not within a binary of medical opinion evidence from either Dr. Host or Kelly, but rather in consideration of multiple sources. See Tr. 19 (citing Tr. 668, 671, 710, and “Hearing Testimony”). So while the ALJ considered Kelly's medical opinions, he also relied heavily on Frisbie's hearing testimony and Dr. Host's objective medical records. See Tr. 19 (citing Tr. 668, 671, 710, and “Hearing Testimony”).
In finding that Frisbie had a mild limitation in interacting with others, the ALJ acknowledged Frisbie's testimony regarding a “history of difficulty dealing with coworkers in his past work” in a “very stressful position” and his “ability to live with his ex-wife for numerous years.” See Tr. 19 (citing Hearing Testimony). The ALJ recited Dr. Host's findings “upon examination” that Frisbie was “alert, fully oriented with good eye contact, no mania, flights of ideas, delusions or hallucinations and ... in no acute distress.” Tr. 19 (citing Tr. 668, 671). The ALJ noted that Dr. Host found Frisbie had normal psychomotor activity, no expression of “any feelings of guilt, hopelessness, or worthlessness[,]” and an energy level within normal limits. Id.
In finding that Frisbie had a mild limitation in the ability to concentrate, persist, or maintain pace, the ALJ cited Dr. Host's treatment of Frisbie for depression and bipolar disorder. Tr. 19 (citing Tr. 666-87). The ALJ referenced Frisbie's testimony about monthly manic episodes. Id. (citing Hearing Testimony). He considered Kelly's opinion that Frisbie was able to “understand, remember, and carry out one-step and complex workplace instructions[,] ... maintain concentration, work persistently and maintain pace[,] and ... respond appropriately to supervision and to coworkers in the work setting.” Tr. 19 (citing Tr. 704-13). The ALJ returned to Dr. Host's records once again, noting that Dr. Host found that Frisbie was “alert [and] fully oriented with good eye contact[,]” and that he was not in any “acute distress.” Tr. 19 (citing Tr. 668, 671).
In finding that Frisbie had a moderate limitation in adapting or managing oneself, the ALJ cited Frisbie's testimony that he “experience[d] manic episodes once per month and ... [left] the house twice per week to go to the grocery [store].” Tr. 19 (citing Hearing Testimony). The ALJ referenced Kelly's finding that perfectionist and overcompetitive tendencies increased Frisbie's stress. Tr. 19 (citing Tr. 704-13). The ALJ also considered Frisbie's physical impairments in finding that Frisbie was moderately limited in this area of mental functioning. Tr. 19.
The ALJ thus supported the mental RFC with substantial evidence. And, moreover, as discussed, the ALJ accounted for Dr. Host's concerns regarding stress, social interaction, and self-management. See Tr. 20; 24. It is evidence that the ALJ did not base Frisbie's mental RFC solely on Kelly's findings at the expense of most everything else. See Doc. 6, at 12.
Second, as the Commissioner notes, Frisbie cannot point to any medical opinion that suggests mental abilities and limitations more restrictive than those set forth by the ALJ. See Doc. 9, at 10; see also Tr. 19-20, 24. Even if the ALJ erred in analyzing Dr. Host's medical opinion evidence, the error-which benefitted Frisbie-is harmless at best. See Pistole v. Kijakazi, No. 3:20-cv-00249, 2021 WL 5238777, at *7 (E.D. Tenn. Nov. 10, 2021) (finding “harmless error at most” where an ALJ discounted medical opinion evidence but determined an RFC that was more restrictive than the medical opinion recommended); see also Laney v. Comm'r of Soc. Sec., No. 5:21-cv-1290, 2022 WL 2176539, at *7 (N.D. Ohio June 16, 2022) (“The Court will not fault the ALJ for finding more restrictions” in the RFC than were suggested in the opinions of the state agency consultative examiners) (citations omitted); Berrier v. Comm'r of Soc. Sec., No. 3:20-cv-01655, 2021 WL 6881246, at *9 (N.D. Ohio Sept. 10, 2021), report and recommendation adopted, 2022 WL 189855 (N.D. Ohio Jan. 21, 2022); Ferris v. Comm'r of Soc. Sec., No. 5:16-cv-2459, 2017 WL 5187796, at *11 n.4 (N.D. Ohio Nov. 9, 2017).
Third, Frisbie failed to raise the issue of Kelly's allegedly absent credentials below. Indeed, when his counsel was given the chance to object to Kelly's report, counsel said that he had “no objections.” Tr. 37. As another court has aptly put it in a similar circumstance when counsel made no argument to an ALJ about an issue when it could have been addressed:
Plaintiff's attorney allowed the matter to proceed to a decision on the merits. Now, after the claims were denied, plaintiff raises an issue on appeal in this Court that should have been raised and preserved long ago during the administrative process. Courts generally do not tolerate sandbagging.Garza v. Comm'r of Soc. Sec., No. 1:14-cv-1150, 2015 WL 8922011, at *6 (W.D. Mich. Nov. 25, 2015), report and recommendation adopted, 2015 WL 8958469 (W.D. Mich. Dec. 15, 2015). Either Frisbie, through his counsel, waived this issue or he has sandbagged the Commissioner. Either way, he should not now be heard to complain about Kelly's credentials. Cf. Frederick v. Comm'r of Soc. Sec., No. 10-11349, 2011 WL 1518966, at *9 (E.D. Mich. Mar. 25, 2011) (“While counsel's failure object to the testimony at the hearing does not per se bar him from raising the issue here, the courts frown upon ‘sandbagging' administrative decisions by presenting evidence or issues for the first time upon judicial review which could have been raised before the ALJ.”), report and recommendation adopted, 2011 WL 1518913 (E.D. Mich. Apr. 20, 2011).
At the hearing, but before Frisbie testified, Frisbie expressed concern over Kelly's findings. See Tr. 37-38. The ALJ specifically advised Frisbie that he and his lawyer could discuss objections to the report and submit a letter. See Tr. 37. Bowman was present at that time thus knew of Frisbie's disagreement with aspects of Kelly's report. See id. The record does not reflect, however, that Frisbie ever submitted a letter in opposition.
Moreover, indulging Frisbie's argument would necessarily countenance relying on information from outside the record that counsel boldly presents based on counsel's investigation. The Sixth Circuit has, however, held that it is improper to introduce outside evidence of a medical provider's credentials and base a court's conclusion on that evidence. See Miller v. Comm'r of Soc. Sec., 811 F.3d 825, 839 (6th Cir. 2016). If outside evidence of credentials can't be considered to support a decision, it must also be that outside evidence about an alleged lack of credentials can't be considered to attack a decision.
Further, there is reason to doubt Frisbie's counsel's extra-record assertion. The Commissioner counters that, at least during the relevant time period, Kelly was a licensed psychologist in Ohio. Doc. 9, at 11.
The Commissioner says that the fact that Kelly is a licensed psychologist in Ohio is a fact that “has been acknowledged ... in multiple cases in the Northern District of Ohio.” Doc. 9, at 11 (citing Hahn v. Comm'r of Soc. Sec., No. 3:17-cv-897, 2018 WL 4510112, at *2 (N.D. Ohio Sept. 20, 2018); Thayer v. Colvin, No. 3:15-cv-00003, 2015 WL 13730923, at *6 (N.D. Ohio Sept. 30, 2015)). In Hahn, the Court said that “Plaintiff saw psychologist James Kelly, M.Ed.,” whom it later referred to as “Dr. Kelly.” 2018 WL 4510112, at *2. And in Thayer, the court referred to “psychologist James Kelly, M.Ed.” and to “Mr. Kelly.” 2015 WL 13730923, at *6. These references in cases where Kelly's status was not disputed, however, do not amount to acknowledgment of his status.
Conclusion
For the reasons explained above, I recommend that the Court affirm the Commissioner's decision.
OBJECTIONS
Any objections to this Report and Recommendation must be filed with the Clerk of Court within 14 days after the party objecting has been served with a copy of this Report and Recommendation. 28 U.S.C. § 636(b)(1). Failure to file objections within the specified time may forfeit the right to appeal the District Court's order. See Berkshire v. Beauvais, 928 F.3d 520, 530-531 (6th Cir. 2019)