Opinion
Case No. 1:10CV486.
September 26, 2011
MEMORANDUM OPINION
This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 22). The issue before the undersigned is whether the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Brenda Watkins's ("Plaintiff" or "Watkins") applications for a Period of Disability and Disability Insurance Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, and Supplemental Security Income Benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the Court AFFIRMS the decision of the Commissioner.
I. INTRODUCTION PROCEDURAL HISTORY
In June of 2005, Plaintiff filed applications for a Period of Disability and Disability Insurance Benefits and Supplemental Security Income Benefits, alleging a disability onset date of January 15, 1998. (Tr. 46-48). Watkins's applications were denied initially and upon reconsideration. (Tr. 25-26). Subsequently, Plaintiff timely requested and was granted an administrative hearing. (Tr. 27-31, 39). On July 11, 2008, Plaintiff appeared with counsel and testified at a hearing held before Administrative Law Judge Alfred Lucas (the "ALJ" or "ALJ Lucas"). (Tr. 218-59). Medical expert, Dr. Martin Macklin (the "ME"), also appeared and testified. (Tr. 243-56). On September 15, 2008, the ALJ issued an unfavorable decision, in which he applied the five-step sequential evaluation, and concluded that Plaintiff had not established that she was disabled, and therefore, was not entitled to benefits. (Tr. 13-21). Watkins requested review of the ALJ's decision from the Appeals Council. (Tr. 9). However, on January 14, 2010, the council denied Plaintiff's request, thereby making the ALJ's decision the final decision of the Commissioner. (Tr. 5-7).
The List of Exhibits sheet located in the front of the transcript states that all of the exhibits related to Plaintiff's Supplemental Security Income Benefits application (Exhibits SSI 1 through 5) were not available for inclusion in the record before the Court. (Tr. 1). Plaintiff did not object to the Commissioner's filing of the transcript without the inclusion of this information, and the Court finds that its omission does not substantially inhibit its review of the record. Therefore, the undersigned's review is limited to the portions of the record before it.
The Social Security Administration regulations require an ALJ to follow a five-step sequential analysis in making a determination as to "disability." See 20 C.F.R. §§ 404.1520(a),416.920(a). The Sixth Circuit has summarized the five steps as follows:
(1) If a claimant is doing substantial gainful activity — i.e., working for profit — she is not disabled.
(2) If a claimant is not doing substantial gainful activity, her impairment must be severe before she can be found to be disabled.
(3) If a claimant is not doing substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and her impairment meets or equals a listed impairment, claimant is presumed disabled without further inquiry.
(4) If a claimant's impairment does not prevent her from doing her past relevant work, she is not disabled.
(5) Even if a claimant's impairment does prevent her from doing her past relevant work, if other work exists in the national economy that accommodates her residual functional capacity and vocational factors (age, education, skills, etc.), she is not disabled.Abbott v. Sullivan , 905 F.2d 918, 923 (6th Cir. 1990).
Plaintiff, born on May 18, 1963, was 34 years old on her alleged onset date, and considered a younger person for Social Security purposes. (Tr. 49, 220); 20 C.F.R. §§ 404.1563(c) 416.963(c). Watkins graduated from high school and has prior experience working as a sales clerk in a retail store, an office worker in her husband's company and as a machine operator in a factory. (Tr. 20, 222, 224-26). Her date last insured was September 30, 2005. (Tr. 49).
II. MEDICAL EVIDENCE
Plaintiff's applications for benefits are based upon her diagnosis with various mental impairments. The record reflects that Plaintiff began treatment with Dr. Aaron Billowitz, a psychiatrist, in 1998. (Tr. 200-01). On July 27, 1998, Dr. Billowitz noted that Watkins reported feeling very good about her life and was in good spirits; he refilled her prescription for Prozac. (Tr. 200). In March of 2000, Dr. Billowitz diagnosed Plaintiff with depression and changed her prescription from Prozac to Wellbutrin due to her complaining about the side effects of Prozac and experiencing feelings of boredom and loss of enthusiasm. (Tr. 198). When Watkins presented back to Dr. Billowitz one month later, he noted that she was doing better on Wellbutrin, but was reluctant to participate in counseling therapy. (Tr. 197). Watkins's treatment relationship with Dr. Billowitz terminated in May of 2000, when he recommended that she seek treatment elsewhere, due to the fact that her husband was also receiving treatment from him. (Tr. 196). In Dr. Billowitz's termination summary notes, he indicated that Plaintiff had depression, but was stable and doing well with her prescription medication. (Tr. 195).
Between June of 2000 and May of 2003, Plaintiff regularly treated with a psychiatrist(s) at Community Health Partners. (Tr. 168-94). On July 12, 2000, her psychiatrist changed her medication to Effexor, after Watkins complained of not feeling good and having problems with concentration. (Tr. 193). Weeks later, Plaintiff reported feeling better and having an increased energy level. (Tr. 192). In July of 2001, Plaintiff's medication was changed again, and thereafter, she reported that she was doing well. (Tr. 186-190). Watkins's doctors later diagnosed her with Attention Deficit Disorder ("ADD"), Attention Deficit Hyperactivity Disorder ("ADHD") and dysthymic disorder, and prescribed her additional medication. (Tr. 168-71, 176, 178-84). Despite these diagnoses, her psychiatrist(s) often described her as euthymic and coherent. Id.
The Court cannot discern whether Watkins treated with one or several doctors at Community Health Partners either because there is no doctor's name listed on the face of the treatment note, or because the signature appearing on the note is illegible.
Dr. Diab Almhana treated Plaintiff from 2003 through 2007. (Tr. 154-67). On October 14, 2003, Watkins presented to Dr. Almhana; he noted that Plaintiff described her mood as euthymic and stable. (Tr. 167). Dr. Almhana diagnosed Watkins with dysthymic disorder and ADHD, adult type, and prescribed her Adderall, Celexa and Wellbutrin. Id. His notes also show that Plaintiff was socially appropriate and that her thought processes were intact. Id. Dr. Almhana's treatment notes from December of 2003 and June of 2004 reflect that Plaintiff was stable, compliant with medication, and had no side effects from her medication. (Tr. 165-66).
On August 4, 2004, Dr. Almhana opined that Plaintiff's problems with inattention and hyperactivity were improving, and that her depression was stable (Tr. 164). He also noted that she was having problems with her marriage and difficulty accepting her "illness/medication/therapy". Id. Dr. Almhana encouraged Watkins to better manage her time and priorities, vent her feelings and seek emotional support. Id. On her next two office visits, Dr. Almhana reported that Plaintiff was stable and improving. (Tr. 162-63).
On April 13, 2005, Plaintiff presented to Dr. Almhana complaining of being irritable and having racing thoughts. (Tr. 161). She stated that she was experiencing elevated stress levels due to the closure of her husband's business. Id. Dr. Almhana diagnosed her with bipolar disorder and hypertension. Id. Again, his notes instructed Watkins to regularly take her medication, vent her feelings, seek emotional support and monitor her sleep and mood patterns throughout the day. Id.
On August 30, 2005, state agency psychiatrist, Dr. Jennifer Swain, performed a review of Plaintiff's medical records and completed a Mental Residual Functional Capacity Assessment form evaluating Plaintiff's mental health. (Tr. 120-23). Dr. Swain opined that Watkins was moderately limited in several areas of mental functioning. Specifically, Dr. Swain noted that Plaintiff had a moderate limitation in her ability to perform the following tasks: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; work in coordination with or proximity to others without being distracted by them; complete a normal workday or workweek without interruptions and to perform at a consistent pace without an unreasonable number of rest periods; interact appropriately with the general public; and respond appropriately to changes in the work setting. (Tr. 120-21). However, Dr. Swain concluded that Plaintiff was not significantly limited in the remaining 13 areas of mental functioning listed in the evaluation form. Id. After offering a brief summary of Plaintiff's diagnoses, treatment history and daily activities, Dr. Swain opined that Watkins was "able to comprehend, remember, and carry out simple task instructions." (Tr. 122). Furthermore, although Dr. Swain noted that Watkins had some difficulties with concentration, she ultimately found that Plaintiff could make simple decisions and work in a position which involved only routine predictable tasks and minimal interaction with others. Id. On January 20, 2006, Dr. V. Casterline, a psychologist, affirmed Dr. Swain's findings as written. Id.
Dr. Swain opined that Watkins's abilities were not significantly limited in the following areas: remembering locations and work-like procedures; understanding and remembering very short and simple instructions; carrying out very short and simple instructions; sustaining an ordinary routine without special supervision; making simple work-related decisions; asking simple questions or requesting assistance; accepting instructions and responding appropriately to criticism from supervisors; getting along with coworkers or peers without distracting them or exhibiting behavioral extremes; maintaining socially appropriate behavior and adhering to basic standards of neatness and cleanliness; being aware of normal hazards and taking appropriate precautions; traveling in unfamiliar places or using public transportation; setting realistic goals or making plans independently of others. (Tr. 120-21).
In July of 2005, Watkins presented to Dr. Almhana and expressed feeling sadness, helplessness and hopelessness from her depression. (Tr. 160). She also complained of feeling a sense of guilt, fatigue, excessive worry, and difficulty sleeping. Dr. Almhana noted that Watkins experienced some difficulty with concentration, but that her insight and judgment was fair. Id. He also changed her medication. Id. On Plaintiff's subsequent visit to Dr. Almhana, he noted improvement in Plaintiff's reported symptoms, but commented that she had an increase in suicidal thinking since starting to take antidepressant medication. (Tr. 159). He further commented that Watkins had a normal attention span, exhibited no signs of hyperactivity and that her insight and judgment were intact. Id. Finally Dr. Almhana remarked, "[B]renda's prognosis is good based on today's evaluation." Id.
Dr. Almhana's treatment notes from April 6, 2006, show that Watkins had problems with mood changes, feelings of sadness, worthlessness, guilt, worrying, difficulty concentrating and irritability. (Tr. 158). Dr. Almhana observed that Watkins had mild psychomotor slowing, but that she retained "fair insight and judgement and intact cognition, except [for] difficulty with concentration." Id. Dr. Almhana further commented that her prognosis was fair. Id. By July of 2006, Dr. Almhana reported that Plaintiff symptoms were improving and that she was stable. (Tr. 157). In September of 2006 and January of 2007, Dr. Almhana remarked that Plaintiff's main issues were centered around marital and familial problems. (Tr. 155-56). He noted that she needed to seek light therapy. (Tr. 156). The final treatment note from Dr. Almhana was from Plaintiff's visit on April 3, 2007. (Tr. 154). Dr. Almhana's notes show that Watkins continued to show slow improvement, but that her symptoms still affected her social, academic and occupational function. Id. Yet, he found that Plaintiff had "no serious mental status abnormalities", a normal attention span, and that her insight and judgement were intact. Id.
On October 29, 2007, Dr. Almhana completed a Medical Source Statement assessing Plaintiff's mental functional abilities. (Tr. 151-53, 208-10). In it, Dr. Almhana opined that Watkins had several limitations on her ability to work. Specifically, he indicated that she had mild restrictions in her ability to understand, remember and carry out simple instructions; a moderate limitation in her ability to make judgments on simple work-related decisions and interacting appropriately with supervisors and co-workers; and a marked limitation in her ability to understand, remember and carry out complex instructions, make judgments on complex work-related decisions and respond appropriately to usual work situations and to changes in a routine work setting. (Tr. 151-52). He also noted that she had a history of alcohol abuse, but that she had been sober for ten years. (Tr. 152).
On March 4, 2008, state agency psychologist, Dr. Dave Sanford reviewed Plaintiff's medical record. (Tr. 202-06). Dr. Sanford opined that Plaintiff suffered from an affective disorder, but stated that there was insufficient evidence in the record to determine the extent to which this condition affected Plaintiff. (Tr. 202-05). Dr. Sanford found that there was no current mental status exam within Plaintiff's record. He concluded that Dr. Almhana's Medical Source Statement showing moderate to marked limitations was not consistent with the objective evidence in the record. (Tr. 206). Finally, Dr. Sanford commented that there was "[i]nsufficient evidence to determine the current severity of [Plaintiff's] condition." Id.
III. MEDICAL EXPERT TESTIMONY
Medical expert, Dr. Martin Macklin, testified during the hearing. (Tr. 243-57). He confirmed Plaintiff's diagnosis of dysthymic disorder, but challenged Plaintiff's diagnosis with ADD because there was nothing in the record to support this diagnosis aside from the fact that Watkins was prescribed medication to treat this condition. (Tr. 243-44). Dr. Macklin also questioned Plaintiff's diagnosis of bipolar disorder as he did not note any manic episodes reported within her file. (Tr. 244).Additionally, Dr. Macklin pointed out that Dr. Almhana's progress notes did not support his conclusions reached within the Medical Source Statement ("MSS") he completed. (Tr. 245). Dr. Macklin commented that he believed that Dr. Almhana was improperly using his electronic medical record keeping program, causing Dr. Almhana's notes to be duplicated from one office visit note to the next. Id. The ME also testified that Dr. Almhana's notes were not individualized and reflected conclusions rather than symptoms. (Tr. 254). Dr. Macklin indicated that Dr. Almhana's alleged improper use of the electronic medical record keeping program made it "very difficult to really know what [Dr. Almhana] [wa]s thinking" and difficult to interpret his MSS assessment of Plaintiff. (Tr. 245, 248). Aside from these perceived flaws in Dr. Almhana's record-keeping system, Dr. Macklin concluded that Dr. Almhana's progress notes did not support a listing and varied extremely from Plaintiff's testimony during the hearing. Id. Based upon the ME's review of the record, he opined that Plaintiff, a person who was chronically unhappy, would have difficulty dealing with the public, but that Watkins could perform work requiring only routinized interaction with co-workers. (Tr. 246).
During Plaintiff's cross-examination of Dr. Macklin, Plaintiff's counsel asked Dr. Macklin whether he saw anything in Plaintiff's record showing where the Social Security Administration had contacted Dr. Almhana to explain the alleged discrepancies between his progress notes and his Medical Source Statement. (Tr. 252-53). Dr. Macklin responded in the negative. Id. Dr. Macklin admitted that given the contradiction between Dr. Almhana's treatment notes and MSS findings, he could not tell whether Dr. Almhana's progress notes or MSS findings were correct. (Tr. 254). Upon further questioning by counsel, Dr. Macklin confirmed that requiring Plaintiff to undergo a consultative examination would help resolve the alleged inconsistencies between Dr. Almhana's statements in the conflicting records. (Tr. 256).
IV. ALJ'S DECISION
After completing a review of the record, ALJ Alfred Lucas determined that Watkins was not disabled under the Social Security regulations. (Tr. 13-21). At step one of the sequential evaluation analysis, the ALJ found that Watkins had not engaged in substantial gainful activity from her alleged onset date through March of 2004, and beginning again from June of 2005 through September 15, 2008, the date of his decision. (Tr. 15). At step two, ALJ Lucas ruled that Plaintiff suffered from the following severe impairments: bipolar disorder, ADD (adult type) and dysthymic disorder. (Tr. 16). However, at step three, the ALJ concluded that Plaintiff's severe impairments did not individually or in combination meet or equal one of the listed impairments set forth in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 16-17). Before moving to step four, the ALJ found that Watkins retained the residual functional capacity ("RFC") to perform a full range of work at all the exertional levels. (Tr. 17). However, the ALJ noted that Watkins had the following nonexertional limitations: she could only comprehend, remember, and carry out simple instructions, maintain attention and concentration to make simple decisions, and have no more than superficial interaction with the public. Id. At step four, ALJ Lucas ruled that Watkins was unable to return to any of her past relevant work because they required abilities which exceeded her RFC. (Tr. 20). Lastly, at step five, the ALJ followed the framework listed in section 204.00 of the Medical-Vocational Guidelines (the "grids") and concluded that there was work existing in the national economy which Plaintiff could perform. Id. ALJ Lucas found that neither Plaintiff's restriction to simple routine work, nor her restriction to having only superficial interaction with the public significantly eroded the occupational base of work available to her to preclude use of the grids. Id.
V. DISABILITY STANDARD
A claimant is entitled to receive Disability Insurance and/or Supplemental Security Income benefits only when she establishes disability within the meaning of the Social Security Act. See 42 U.S.C. §§ 423, 1381. A claimant is considered disabled when she cannot perform "substantial gainful employment by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve (12) months." See 20 C.F.R. §§ 404.1505, 416.905.VI. STANDARD OF REVIEW
Judicial review of the Commissioner's benefits decision is limited to a determination of whether, based on the record as a whole, the Commissioner's decision is supported by substantial evidence, and whether, in making that decision, the Commissioner employed the proper legal standards. See Cunningham v. Apfel , 12 F. App'x 361, 362 (6th Cir. 2001); Garner v. Heckler , 745 F.2d 383, 387 (6th Cir. 1984); Richardson v. Perales , 402 U.S. 389, 401 (1971). "Substantial evidence" has been defined as more than a scintilla of evidence but less than a preponderance of the evidence. See Kirk v. Sec'y of Health Human Servs. , 667 F.2d 524, 535 (6th Cir. 1981). Thus, if the record evidence is of such a nature that a reasonable mind might accept it as adequate support for the Commissioner's final benefits determination, then that determination must be affirmed. Id. The Commissioner's determination must stand if supported by substantial evidence, regardless of whether this Court would resolve the issues of fact in dispute differently or substantial evidence also supports the opposite conclusion. See Mullen v. Bowen , 800 F.2d 535, 545 (6th Cir. 1986); Kinsella v. Schweiker , 708 F.2d 1058, 1059 (6th Cir. 1983). This Court may not try this case de novo, resolve conflicts in the evidence, or decide questions of credibility. See Garner , 745 F.2d at 387 . However, it may examine all evidence in the record in making its decision, regardless of whether such evidence was cited in the Commissioner's final decision. See Walker v. Sec'y of Health Human Servs. , 884 F.2d 241, 245 (6th Cir. 1989).VII. ANALYSIS
Watkins objects to the ALJ's decision on three grounds. First, Plaintiff argues that the ALJ failed to fully and fairly develop the record by neglecting to order that Plaintiff undergo a consultative examination. Second, Watkins submits that the ALJ's RFC finding was not supported by substantial evidence because he failed to properly weigh the medical opinion evidence in the record, and impermissibly made determinations regarding Plaintiff's mental health. Third, Watkins asserts that the ALJ's step five finding warrants remand because it was erroneously based on an application of the Medical-Vocational Guidelines.
A. Duty To Develop The Record
It is well-established that the ALJ carries the responsibility for ensuring "that every claimant receives a full and fair hearing . . ." Simpson v. Comm'r of Soc. Sec. , 344 F. App'x 181, 189 (6th Cir. 2009) ( citing Lashley v. Sec'y of Health Human Servs. , 708 F.2d 1048, 1051 (6th Cir. 1983)). Yet, "[t]he burden of providing a complete record, defined as evidence complete and detailed enough to enable the Secretary to make a disability determination, rests with the claimant." Landsaw v. Sec'y of Health Human Servs. , 803 F.2d 211, 214 (6th Cir. 1986). It is only under special circumstances when the claimant is unrepresented by council that the ALJ has a special duty to develop the record. See Lashley , 708 F.2d at 1051-52 83. Ultimately, it is the claimant's burden to prove that she is disabled and entitled to benefits. Moon v. Sullivan , 923 F.2d 1175, 1181 (6th Cir. 1990). "She is responsible for furnishing evidence that can be used to reach the conclusion that she is disabled." Rise v. Apfel , No. 99-6164, 2000 WL 1562846, at *2 (6th Cir. Oct. 13, 2000) (Table). Watkins contends that ALJ Lucas's failure to order a consultative, psychological examination, amounted to a failure of the ALJ to fully and fairly develop the record regarding the severity of Plaintiff's mental impairments. She argues that a consultative examination was warranted in this case due to the ME's perceived contradictions between the findings proffered in Dr. Almhana's Medical Source Statement — suggesting that Plaintiff had moderate to marked limitations in her ability to understand, remember and carry out instructions and interact appropriately with others, and his observations of Plaintiff recorded in his progress notes — which routinely showed that Plaintiff's judgment and mental functioning was intact. Plaintiff also argues that the ME's criticisms of the way in which Dr. Almhana maintained and transcribed his notes, using an electronic medical record keeping program, support her request for a consultative examination. In addition, Watkins implies that certain statements made by the ME highlighted the necessity of a consultative examination, statements such that: 1) "it [was] very difficult to really know what [Dr. Almhana] was thinking"; 2) the inconsistencies between the progress notes and the MSS "ma[de] it difficult to interpret [Dr. Almhana's] assessment"; 3) it is "possible" within a reasonable degree of medical certainty that Dr. Almhana did not know how to properly use the electronic medical record system; and 4) to a reasonable degree of medical certainty, a consultative examination would have certainly helped "fair out [sic]" the difference between Dr. Almhana's progress notes and MSS findings.
In support of this argument, Plaintiff asserts that pursuant to applicable regulations, an ALJ should purchase a consultative examination "when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision on [the claimant's] claim." 20 C.F.R. § 404.1519a(b). The regulation also lists examples of situations under which a consultative examination is normally required. Id . Watkins intimates that two of the enumerated situations listed in 20 C.F.R. § 404.1519a(b) applied in her case, such as: 1) where evidence that may have been available from the claimant's treating source or other medical sources is unavailable for reasons beyond the claimant's control, 20 C.F.R. § 404.1519a(b)(2); and when there is a "conflict, inconsistency, ambiguity or insufficiency in the evidence" which must be resolved and the ALJ is unable to do so by recontacting the claimant's treating source,20 C.F.R. § 404.1519a(b)(4).
The Court is unpersuaded by Plaintiff's arguments. The regulations governing Social Security claims specify that "[a]n ALJ has discretion to determine whether further evidence, such as additional testing or expert testimony, is necessary." Foster v. Halter , 279 F.3d 348, 355 (6th Cir. 2001) ( citing 20 C.F.R. §§ 404.1517, 416.917). While the ALJ has the responsibility make a full inquiry into the issues before rendering a decision,20 C.F.R. § 416.1444, in expounding upon this duty, the Sixth Circuit adopted the following statement from the Fifth Circuit in explaining how this responsibility impacts an ALJ's decision whether to request a consultative examination:
"Full inquiry" does not require a consultative examination at government expense unless the record establishes that such an examination is necessary to enable the administrative law judge to make the disability decision. In appellant's case, the evidence in the record upon which the administrative law judge based his denial of benefits fully developed the facts necessary to make that determination. The evidence supports the conclusion that appellant is not disabled . . .Landsaw , 803 F.2d at 214 ( citing Turner v. Califano , 563 F.2d 669, 671 (5th Cir. 1977)) (emphasis in original). This statement reasonably addresses the argument raised by Watkins.
In the instant case, the ALJ was not compelled to seek a consultative examination because such an examination was not necessary in order for ALJ Lucas to make a decision regarding Watkins's disability applications. The medical opinion evidence offered by Drs. Billowitz and Swain and the ME provide substantial support for the ALJ's decision. Thus, despite the absence of a consultative examination, the record supported ALJ Lucas's decision. The two enumerated examples upon which Plaintiff relies do not necessitate remand. To begin, the regulation itself expressly states that these are examples of situations which normally require a consultative examination to be performed. But, there is no mandate requiring the ALJ to order a consultative examination under any special circumstance. Regardless, the first example Plaintiff cites, describing circumstances where additional evidence cannot be obtained from the claimant's treating source or other medical sources for reasons beyond the claimant's control,20 C.F.R. § 404.1519a(b)(2), is not applicable to the facts before the Court. Watkins has not alleged that there is any medical evidence supporting her claim which she was unable to obtain for reasons beyond her control. Therefore, this enumerated example is not reflective of the facts in Plaintiff's case and consequently, does not lend support to her argument that a consultative examination was necessary.
Second, although there is some ambiguity in the record regarding the inconsistencies in Dr. Almhana's opinions, and the example listed in 20 C.F.R. § 404.1519a(b)(4) addresses such situations, the ALJ was not obliged to order a consultative examination in order to resolve this ambiguity. Essentially, Watkins is asking the Court to overturn the ALJ's decision because the ALJ chose to discount Dr. Almhana's credibility rather than order a consultative examination to resolve the conflicts between the doctor's treatment notes and MSS conclusions. Yet, ALJ Lucas was not obligated to seek a consultative examination in order to resolve the conflicts between Dr. Almhana's opinions. Instead, it was permissible for the ALJ to resolve the conflict by discounting the findings contained within Dr. Almhana's MSS. Cf. Littlepage v. Chater , No. 96-6618, 1998 WL 24999, at *2-3 (6th Cir. Jan. 14, 1998) (Table) (ruling that the ALJ was not obligated to recontact the treating physician pursuant to 20 C.F.R. § 416.912(e)(1) even though the doctor's office visit notes did not comport with the level of functioning he indicated in his Medical Assessment form; instead, the ALJ was free to resolve the conflict by discounting the doctor's findings, which were unsupported by objective medical evidence, and "rely[] instead upon the [d]octor's actual treatment notes"). The facts in the instant case are very similar to those in Littlepage and further persuades the Court that ALJ Lucas's failure to use his discretionary authority to order a consultative examination does not warrant remand.
Although not raised by Plaintiff, the undersigned deems it necessary to briefly address the nature of the ambiguity the ME noted regarding Dr. Almhana's findings. The gravamen of the ME's criticisms of Dr. Almhana's use of his electronic medical recording system, was that the doctor's notes did not sufficiently describe Plaintiff's symptoms. (Tr. 245, 254). The ME explained that this failure could have been because Dr. Almhana did not know how to properly use the system, or because the ALJ was simply selecting phrases to insert into his notes without making the records more individualized. (Tr. 245, 253-54). The ME noted that Dr. Almhana's treatment notes should have been better individualized by showing more symptoms rather than merely stating conclusions. (Tr. 254).
On the other hand, the ME never suggested that Dr. Almhana's notes reflected something other than what the doctor intended his notes to state. In other words, the ME never alluded to the fact that it was possible that Dr. Almhana's notes were not an accurate portrayal of what the doctor was thinking. Rather, the ME stated that it was difficult for him (the ME) to know what Dr. Almhana truly thought about the severity of Plaintiff's illnesses because of the inherent conflicts between what Dr. Almhana's notes showed and the conclusions reached in his MSS. Although the distinction is fine, it is very important to point out. Had the ME suggested that Dr. Almhana's treatment notes did not accurately reflect what the doctor thought about Plaintiff's ailments, then the Court may have agreed with Plaintiff, that the ALJ should have sought a consultative examination or contacted Dr. Almhana to clarify his findings. But, this is not the case. There was no suggestion by the ME, nor Plaintiff, that Dr. Almhana's alleged misuse of the electronic medical recording program, caused his records to show false or inaccurate diagnoses or findings which Dr. Almhana did not intend. Instead here, the was merely an issue of whether the findings contained within Dr. Almhana's MSS are credible, given the contradictory opinions he offered in his treatment notes.
As the Court will address later in its opinion, when considering how much weight to afford to a treating source's opinions, it is essential that the ALJ consider whether the source's opinions are both consistent with other evidence in the record and supported by acceptable medical data. See Wilson v. Comm'r of Soc. Sec. , 378 F.3d 541, 544 (6th Cir. 2004). Moreover, Plaintiff has not come forward with any case law or regulation, and the undersigned is unaware of any, mandating that an ALJ request a consultative examination to resolve conflicts between the findings listed in a treating source's treatment notes and the findings the treating source submits to the Social Security Administration. Instead, when such conflicts arise, the regulations direct the ALJ to apply a number of factors in deciding how much weight to afford to the treating physician's opinion. See id .
B. Medical Opinion Evidence
Plaintiff's second assignment of error contains a number of under-developed arguments which mostly criticize the ALJ's treatment of the medical opinion evidence in the record. It is wellestablished that the ALJ must give special attention to the findings of the claimant's treating sources. See Wilson , 378 F.3d at 544 . Under the Social Security Regulations, opinions from such physicians are entitled to controlling weight if the opinion (1) "is well supported by medically acceptable clinical and laboratory diagnostic techniques," and (2) "is not inconsistent with the other substantial evidence in [the] record."20 C.F.R. § 404.1527(d)(2). A treating source's opinions are not entitled to such deference, however, if they are unsupported by the medical data in the record, or are inconsistent with the other substantial evidence in the record. See Miller v. Sec'y of Health Human Servs. , No. 91-1325, 1991 WL 229979, at *2 (6th Cir. Nov. 7, 1991) (Table). Even when the treating physician's opinions are not entitled to controlling weight, the ALJ must apply specific factors to determine how much weight to give the opinion. Wilson , 378 F.3d at 544 . These factors include the length of the treatment relationship, the supportability of the opinion, and the physician's specialization. 20 C.F.R. § 404.1527(d)(2)-(5). The regulations also mandate that the ALJ must articulate "good reasons" for the weight accorded to a treating source's opinion.20 C.F.R. § 404.1527(d)(2).
In the case sub judice, there were two named treating physicians who managed Plaintiff's mental health care, Drs. Billowitz and Almhana. ALJ Lucas reasonably discounted Dr. Almhana's opinions because they were inconsistent with other evidence in the record, namely, the doctor's own treatment notes. Under this circumstance, it was permissible for the ALJ to limit the weight given to Dr. Almhana's MSS findings. The ALJ's written opinion illustrated how the conclusions listed in Dr. Almhana's MSS differed greatly from his observations of Plaintiff reflected in his treatment notes, and thereby the ALJ satisfied the "good reasons" rule. Although the ALJ's opinion is devoid of any discussion explaining how he evaluated the factors listed in 20 C.F.R. § 404.1527(d)(2) to determine how much weight to afford to Dr. Almhana's treatment notes, it is apparent that ALJ Lucas considered these factors because the ALJ did not completely disregard all of Dr. Almhana's opinions. See Friend v. Comm'r of Soc. Sec. , 375 F. App'x 543, 551 (6th Cir. 2010) (finding harmless error "where the Commissioner has met the goal of § 1527(d)(2) — the provision of the procedural safeguard of reasons-even though she has not complied with the terms of the regulation"). Here, ALJ Lucas credited Dr. Almhana's treatment records, as they were consistent with state agency physician, Dr. Jennifer Swain's findings. Thus, the ALJ's treatment of Dr. Almhana's findings was proper.
Contrary to Plaintiff's contentions, the ruling in Dues v. Commissioner of Social Security, No. 1:09-CV-01951,2010 WL 1855763 (N.D. Ohio 2010) (White, J.), does not bolster her request for remand. The ALJ's decision in Dues was reversed because the ALJ's decision "contain[ed] no explanation as to why he credited the opinion of the ME while rejecting the opinions of [the plaintiff's treating physicians]." Dues , 2010 WL 1855763, at *5. However, unlike the ALJ in Dues, ALJ Lucas provided an adequate explanation of why he did not credit Dr. Almhana's MSS findings. It is appropriate for an ALJ to give more weight to the opinions of a medical expert or state agency physician than to the opinions of the claimant's treating source when the treating source's opinions are conclusory and inconsistent with other evidence in the record. See Cutlip v. Sec'y of Health Human Servs. , 25 F.3d 284, 286-87 (6th Cir. 1994).
In regards to Dr. Billowitz, the record shows that he maintained a treatment relationship with Plaintiff prior to her establishing care with Dr. Almhana. While the ALJ's opinion acknowledged Dr. Billowitz's treatment of Plaintiff, the ALJ failed to blatantly state how much weight he gave to Dr. Billowitz's opinion. Nevertheless, this short-coming was harmless because the ALJ's findings are consistent with Dr. Billowitz's opinions, which routinely noted that Plaintiff was stable and doing well with medication. Wilson , 378 F.3d at 547 (explaining that when the ALJ makes findings consistent with the treating source's opinion, "it may be irrelevant that the ALJ did not give weight to the treating physician's opinion, and the failure to give reasons for not giving such weight is correspondingly irrelevant."). Therefore, the ALJ's failure to candidly announce the amount of weight he gave to Dr. Billowitz's opinion caused no harm to Plaintiff.
Watkins also broadly claims that the ALJ failed to explain what weight he assigned to the remaining medical opinions in the record in accordance with 20 C.F.R. § 404.1527(d). But, aside from this general assertion, Plaintiff neglected to specify which doctors she was referencing or to set forth any specific arguments addressing how this failure was harmful. Even so, the undersigned's review of the record revealed that the ALJ acknowledged the treatment records from Plaintiff's psychiatrist(s) at Community Health Partners, state agency physicians, Drs. Swain and Casterline, and the ME who testified at the hearing, all of whom's findings are consistent with the ALJ's ruling. In fact, the only medical opinion in the record, which the Court finds that ALJ Lucas neglected to explicitly acknowledge was that of state agency psychiatrist, Dr. Dave Sanford. Although Dr. Sanford remarked that there was insufficient evidence in the record for him to determine the severity of Plaintiff's condition, he agreed that the conclusions reached in Dr. Almhana's MSS contradicted the objective evidence in Plaintiff's record. Because Plaintiff failed to present any argument expressing how the ALJ's failure here amounted to reversible error, the Court declines to issue a remand in order for the ALJ to expressly indicate how much weight he afforded to Dr. Sanford's opinion. Although it is certainly helpful for an ALJ to articulate his reasons for crediting or discrediting each medical opinion in the record, it is well-recognized that the ALJ does not have to directly address every piece of evidence in his decision. Kornecky v. Comm'r of Soc. Sec. , 167 F. App'x 496, 507-08 (6th Cir. 2006). This is particularly true in cases such as the one now pending before the Court, where there is little chance that remand will lead to a different result given the vast amount of objective evidence reflecting that Plaintiff retained the capability of performing substantial gainful activity. See Bollenbacher v. Comm'r of Soc. Sec. , 621 F. Supp.2d 497, 502 (N.D.Ohio 2008) ( citing Kornecky , 167 F. App'x at 507) ("No principle of administrative law or common sense requires us to remand a case in quest of a perfect opinion unless there is reason to believe that remand might lead to a different result.").
Additionally, Watkins made conclusory arguments accusing the ALJ of improperly making judgments regarding the seriousness of Plaintiff's mental condition without offering any facts to substantiate these allegations. Plaintiff's argument on this issue is terse and overwhelmingly consists of citations to and quotes from non-binding case law. Accordingly, Plaintiff waived any argument on these issues. Hall v. Astrue , No. 1:09-CV-2514, 2010 WL 5621291, at *6 (N.D. Ohio Dec. 23, 2010) ("Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.") (citing McPherson v. Kelsey , 125 F.3d 989, 995-96 (6th Cir. 1997)). Moreover, the ALJ is charged with the duty of evaluating the medical evidence in the record and determining the claimant's RFC. See 20 C.F.R. § 404.1546(c) . Although an ALJ may not substitute his/her opinions for that of a physician, "an ALJ does not improperly assume the role of a medical expert by assessing the medical and non-medical evidence before rendering a residual functional capacity finding." Poe v. Comm'r of Soc. Sec. , 342 F. App'x 149, 157 (6th Cir. 2009).
Plaintiff also attached several excerpts from the Hearings, Appeals and Litigation Law manual ("HALLEX"). (Pl.'s Br. at 9-15). Although this manual provides guidance to adjudicators, it is not binding on this Court. See Bowie v. Comm'r of Soc. Sec. , 539 F.3d 395, 399 (6th Cir. 2008).
C. Medical-Vocational Guidelines
Plaintiff's final assignment of error attacks the ALJ's application of the Medical-Vocational Guidelines at step five of the sequential evaluation process due to Plaintiff's diagnoses of nonexertional impairments. Once it is determined that a claimant does not have the RFC to perform her past relevant work, the burden shifts to the Commissioner to show that the claimant possesses the capacity to perform other substantial gainful activity existing in the national economy. See Cole v. Sec'y of Health Human Servs. , 820 F.2d 768, 771 (6th Cir. 1987). "To meet this burden, there must be a finding supported by substantial evidence that [the claimant] has the vocational qualifications to perform specific jobs." Varley v. Sec'y of Health Human Servs. , 820 F.2d 777, 779 (6th Cir. 1987) (citations and quotations omitted). The Commissioner, in determining whether a claimant can perform a significant number of jobs in the national economy, can rely on either the Medical-Vocational Guidelines or the testimony of a vocational expert as to the availability of jobs. See Damron v. Sec'y of Health Human Servs. , 778 F.2d 279, 281-82 (6th Cir. 1985). Where a claimant has "a nonexertional limitation that significantly limits the range of work permitted by his [or her] exertional limitations," the Commissioner may not rely solely on the Medical-Vocational Guidelines to satisfy this burden. Collins v. Comm'r of Soc. Sec. , 357 F. App'x 663, 670 (6th Cir. 2009) ( quoting Cole , 820 F.2d at 771 ). But, "[b]efore reaching the conclusion that the grid will not be applied because of the alleged nonexertional limitations, those limitations must be severe enough to restrict a full range of gainful employment at the designated level." Id .( citing Mullins v. Sec'y of Health Human Servs. , 836 F.2d 980, 985); see Moon , 923 F.2d at 1182 .
The question, therefore, is whether the substantial evidence in the record supports the ALJ's decision that Plaintiff's nonexertional limitations were not severe enough to significantly diminish the occupational base of unskilled work available to Watkins. Where the claimant is only plagued by nonexertional limitations, her occupational base is made up of unskilled jobs at all exertional levels. Id. ( citing SSR 85-15). Social Security Ruling 85-15 addresses the application of the Medical-Vocational Guidelines as a framework for claimants with solely nonexertional mental impairments. SSR 85-15. This ruling states in pertinent part:
The basic mental demands of competitive, remunerative, unskilled work include the abilities (on a sustained basis) to understand, carry out, and remember simple instructions; to respond appropriately to supervision, coworkers, and usual work situations; and to deal with changes in a routine work setting.
. . .
Where there is no exertional impairment, unskilled jobs at all levels of exertion constitute the potential occupational base for persons who can meet the mental demands of unskilled work. These jobs ordinarily involve dealing primarily with objects, rather than with data or people, and they generally provide substantial vocational opportunity for persons with solely mental impairments who retain the capacity to meet the intellectual and emotional demands of such jobs on a sustained basis.SSR 85-15, at *4.
The undersigned concludes that the ALJ's reliance upon the Medical-Vocational Guidelines was proper. The Sixth Circuit's ruling in Collins is instructive on this issue as the facts in that case are analogous to the facts now before the Court.357 F. App'x 663. In Collins, the ALJ found that the claimant's depression and personality disorder constituted as severe impairments at step two of the sequential evaluation analysis. Id . at 666. Next, the ALJ found that Collins retained the RFC to remember and carry out simple instructions, to intermittently interact with the general public, and to respond to routine changes in work. Id . After concluding that Collins could not perform his past relevant work, the ALJ applied the Medical-Vocational Guidelines to determine that there were jobs in the economy which would accommodate Collins's RFC and vocational profile. Id. at 670. On appeal, Collins argued that the ALJ improperly relied upon the grids, and should have sought the testimony of a vocational expert to carry his burden at step five. Id .
The Sixth Circuit affirmed the district court's rejection of Plaintiff's argument holding that it was proper for the ALJ to rely upon the grids because the claimant's nonexertional impairments did not "significantly limit the range of work permitted by his exertional limitations." Id. at 671 ( citing Cole , 820 F.2d at 771 ). In so finding, the Sixth Circuit explained that although the ALJ "did not extensively evaluate SSR 85-15," the ALJ's RFC determination tracked the language used in Social Security Ruling 85-15 describing the mental demands of unskilled work. Id . For example, the ALJ's determination that Collins could remember and carry out simple instructions was consistent with the ruling's description of unskilled work as only requiring one to understand, carry out and remember simple instructions. Id . Additionally, while the claimant's doctors noted that he had some difficulty with interacting with others, the claimant admitted that he still visited with other people. Id . Accordingly, the court found that the substantial evidence in the record "support[ed] the ALJ's determination that [the] claimant's mental impairments did not preclude any of the mental demands of unskilled work" and therefore application of the grids was permissible. Id .
In applying the ruling in Collins to Plaintiff's case, the undersigned finds that ALJ Lucas did not err by utilizing the Medical-Vocational Guidelines at step five of his decision. Similarly to the facts in Collins, the record supports the ALJ's RFC determination concluding that Watkins was capable of performing simple work. Both the ME's testimony and the Mental Functional Capacity Assessment completed by state agency psychiatrist, Dr. Jennifer Swain, substantiate the ALJ's determination that Watkins retained the ability to perform simple or unskilled work. Likewise, the ALJ's ruling that Plaintiff could maintain superficial interaction with the public is also supported by the record, as both Dr. Swain and the ME opined that Plaintiff could handle minimal interaction with the public. In fact, during the hearing Watkins testified that she attended church almost every week and regularly visited with her grandmother and two elderly friends. Finally, with regard to Plaintiff's ability to deal with changes in a routine work setting, Dr. Swain opined that Watkins had a moderate limitation in this area. Nevertheless, Watkins testified that she performed differing tasks for her husband's company during the time that she worked for him depending upon the business' needs for that day. (Tr. 222-23). Therefore, it was reasonable for ALJ Lucas to conclude that Watkins could deal with minimal changes in her work duties. Accordingly, Plaintiff's abilities mirrored the description of the mental demands necessary to perform unskilled work listed in Social Security Ruling 85-15. Therefore, because substantial evidence supports the ALJ's finding that Plaintiff's nonexertional impairments did not significantly diminish the number of jobs available at any exertional level, the Court finds that the ALJ's reliance upon the grids was proper. See Collins , 357 F. App'x at 670-71 .
Although Plaintiff cites to Abbott v. Sullivan , 905 F.2d 918 (6th Cir. 1990) and Damron v. Secretary of Health and Human Services , 778 F.2d 279 (6th Cir. 1985) in support of her argument, those cases are distinguishable from the case now before the Court. In Abbott, the Court reversed the ALJ's decision because the ALJ "erroneously applied the grid to direct a finding of not disabled despite the presence of significant nonexertional impairments." 905 F.2d at 927 (emphasis added). Unlike in the present case, the physicians treating Abbott opined that he had impaired memory and concentration and below average intelligence, so much so that he could not make change for a dollar. Id . at 921. Thus, because Abbott suffered from a significant nonexertional impairment, application of the grid was improper. Likewise, the ruling in Damron is inapposite because the ALJ in that case completely failed to consider Damron's nonexertional limitations restricting him from exposure to dust, gases, fumes and marked changes in temperature. 778 F.2d at 281-82. Despite the lack of any contradictory evidence on this point, the ALJ improperly applied the Medical-Vocational Guidelines to determine that Damron was not disabled. Id . Conversely, ALJ Lucas specifically addressed Watkins's nonexertional limitations and explained why they did not preclude his use of the grid. Thus, neither Damron nor Abbott reflect that remand is necessary.
VIII. CONCLUSION
For the reasons stated herein, the Magistrate Judge orders that the Commissioner's final decision be AFFIRMED, and that judgment be entered in favor of the Commissioner.
IT IS SO ORDERED.