Opinion
Case No. 3:13cv00305
09-09-2014
ROBERT K. WINKLE, Plaintiff, v. CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.
(by full consent of the parties)
DECISION AND ORDER
I. Introduction
Plaintiff Robert K. Winkle has worked in the past as a video store clerk, guest services manager, and fast food crew trainer. On November 3, 2010, he filed applications with the Social Security Administration for Disability Insurance Benefits and Supplemental Security Income. He asserted that he had been unable to work beginning on February 10, 2005 due to his disabilities - most prominently, bipolar disorder, depression/dysthymia, emotional instability, problems sleeping and seeing images, and obesity. (Doc. #7, pageID at 341). He has at least a high school education and was age 25 on the date he allegedly became disabled.
The Social Security Administration denied Plaintiff's applications for benefits based mainly on Administrative Law Judge (ALJ) Thomas McNichols, II's, determination that Plaintiff was not under a benefits-qualifying disability. Plaintiff brings the present case challenging the ALJ's decision. The case is before the Court upon Plaintiff's Statement of Errors (Doc. #11), the Commissioner's Memorandum in Opposition (Doc. #14), the administrative record (Doc. #7), and the record as a whole. Plaintiff seeks a judicial award of benefits or, alternatively, an Order remanding the case for further administrative proceedings. The Commissioner seeks an Order affirming the ALJ's decision on the grounds that substantial evidence supports it and the ALJ applied the correct legal standards.
This Court has jurisdiction to review the ALJ's non-disability decision. See 42 U.S.C. §405(g).
II. Background
A. Plaintiff and His Testimony
During a hearing held by the ALJ, Plaintiff testified that after earning his high school GED, he obtained a one-year certificate in business management at Columbus State. He attempted to earn a bachelor's degree "but never finished." (Doc. #7, PageID at 112). In 1999, he served a very brief time (22 days) in the Navy after which he was medically separated "for depression disorder." Id. His is unmarried, has no dependent children, and lives with his father. His mother passed away in 2009.
In 2008, Plaintiff attempted to return to school in a part-time work study program but was unable to focus and withdrew from classes. Id., PageID at 113-14. Over the course of several years, he attempted to umpire softball games "just a couple of times a year ...." Id., PageID at 114. By 2009, he could no longer umpire softball because he could not focus on what he was doing "and any arguments or comments that any coaches or anybody made, [he] would lash out or be real quick to eject them from the game ...." (Doc. #7, PageID at 114-15).
When asked what health problems prevented him from working, he testified that he has "pseudo Parkinson's disease," which causes him tremors in his hand and prevents him from writing or typing on a computer. He can use his hands to drive, to grip something to eat or drink, to write a number, and to button or zip his clothing. Id., PageID at 115-16. He takes Neurontin for this problem. He also takes Trazodone, which puts him to sleep. Id., PageID at 128.
Plaintiff also suffers from depression and "bipolar II disorder." Id., PageID at 116. He described the depression as follows:
I don't enjoy things I used to enjoy such as walking the dog, playing video games, exercising, going out with my friends. I can't focus or concentrate. Some of my past jobs were in computers and in information technology and I had certifications which required tests and since this condition, I have been unable to take those tests because I can't focus for the amount of time it takes to take those recertification tests. My sleep habits are just completely out of whack. I don't have a set sleep schedule. Sometimes I sleep in the day, stay up at night. Sometimes I don't sleep at all. Sometimes it reverses and I'm on medication to help me sleep but sometimes it will put me to sleep.Id. When asked if the medication helps, he answered:
It helps put me to sleep but then if I wake up in the middle of the night, I have trouble getting back to sleep and sometimes I get woken up with visions of my mom that I see. I see my mon who passed away in 2009. [sic] Says things to me and I just see her like she's actually there and that's woke me up out of sleep a couple of times.(Doc. #7, pageID at 117). Plaintiff testified that he experiences auditory hallucinations about four or five times a week on average. Id., PageID at 131.
Plaintiff also has difficulties with anxiety. He described himself as "very anxious" [and] very giddy." Id., PageID at 118. He cannot sit still for long periods of time. Although he used to watch baseball games with his father, he cannot sit still long enough to watch those anymore. Id. Anxiety contributes to his sleep problems, which occur nightly. At time of the ALJ's hearing, Plaintiff was in mental health counseling with a therapist every two weeks and psychiatrist Dr. Mark Smith one a month.
As to pain, Plaintiff has migraines once every couple of weeks. When he experiences a migraine, he wants to lay down in a dark room with no noise or lights. It takes 30 to 45 minutes for medication to start helping, then about one hour before he could start functioning again. Id., PageID at 130. Neurontin helps alleviate or control the migraines as does Imitrex. Id., PageID at 119.
Plaintiff's testified that his medication side effects include weight gain, lack of energy, "sometimes too much energy" that he calls "the ants in my pants feeling where I'm giddy and I can't sit down and I can't sit still." Id. At the time of his testimony, he was undergoing changes in his medications to find the right combination. Evidence of record confirms that over time, Plaintiff has been treated with various prescription medications, including Ziprasidone, Trazodone, Wellbutrin, Abilify, Cymbalta. Id., PageID at 429, 548, 571, 728.
Plaintiff acknowledged that he had no difficulty walking, standing, or sitting. He could lift about 85 pounds (the weight of his dog) at one time. And he could climb steps. Id.
Plaintiff reported that he spent two years in prison due to unlawful sexual conduct with a minor. Id., PageID at 121. He was released in 2003. While he was incarcerated, he received mental health services. Id., PageID at 541-722.
Plaintiff emphasized that he could no longer work because he could not focus. He explained, "I can't concentrate for long periods of time and with my irritability, I know that if a supervisor or even a customer or somebody I was working with said something that just happened to catch me the wrong way, I would lash out and probably, you know, go off." (Doc. #7, PageID at 122). When he was employed, he would lash out at other employees because they made a small mistake. Id., PageID at 129. When asked for examples of tasks he tended to start but not finish, he testified:
The computer certifications. I've started cutting the grass before and stopped and came back later and finished it. Building the computer was one where I got the parts for the computer and I couldn't stay focused long enough to build it so I ended up stopping and having somebody else finish it for me. Starting laundry, stopping.... I don't do any housework or anything so I've never had any problems there because I just don't do it ....Id., PageID at 130. B. Medical Evidence
Plaintiff relies on the opinions and information provided by psychiatrist Dr. Smith, nurse practitioner Amanda Rush, and counselor Walter Foltys.
On November 4, 2010, Mr. Foltys (and another counselor Don Amos) examined Plaintiff and completed a Crisis Assessment form. (Doc. #7, PageID at 458-66). Mr. Foltys indicated that Plaintiff reported an exacerbation of chronic depression due to his inability "to establish independent occupational and living arrangements due to his legal status." Id., PageID at 458. Upon mental status examination, Mr. Foltys observed that Plaintiff's was oriented times four (person, place, time, circumstances), his motor activity/energy level was normal, speech was normal, attitude was cooperative, memory was intact, thought process was coherent, thought content was unremarkable, mood was depressed, affect was appropriate, insight and judgment were good. He denied suicidal ideation. Under a column labeled "Current Symptoms," Mr. Foltys noted only two severe symptoms: helplessness and anxiety, with anxiety being chronic and involving excessive worry. Id., PageID at 461. Mr. Foltys also noted that both family and friends were "Protective/Supportive Factors." Id., PageID at 462. Diagnostic impression was Dysthymia Disorder. Id., PageID at 464. Mr. Foltys further indicated that Plaintiff was not taking prescription medications, although his past prescription medications had included three antidepressants: Zoloft, Prozac, and Citalopram.
On November 17, 2010, Mr. Foltys assessed Plaintiff's mental health on follow-up from Emergency Services. (Doc. #7, PageID at 495). Plaintiff's diagnoses were Major Depression, recurrent, severe without psychotic features. His GAF was 40, generally indicating "some impairment in reality testing or communication or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood ...." Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision at p. 34. Mr. Foltys observed that Plaintiff "appeared to be verbal, intelligent, and capable of insight." (Doc. #7, PageID at 497). His attitude was cooperative; his behavior was "calm and directable"; his memory seemed good; his affect was pleasant, but his mood was "somewhat depressed"; his thought processes were logical; there were indications of delusions or hallucinations, and he was oriented times four (person, place, time, situation). Id. And, Mr. Foltys reported that Plaintiff "saw his own needs as being able to sleep, having more energy, not losing interest in his day-to-day activities, [and] showing motivation to follow through." Id., pageID at 497-98.
The "GAF" (Global Assessment of Functioning) scale estimates a person's psychological, social, and occupational functioning on a hypothetical continuum of mental illness. It is, in general, a snapshot of a person's "overall psychological functioning" at or near the time of the evaluation. See Martin v. Commissioner, 61 Fed.Appx. 191, 194 n.2 (6th Cir. 2003); see also Diagnostic and Statistical Manual of Mental Disorders, 4th ed., Text Revision at 32-34.
On January 20, 2011, Mr. Foltys completed a daily activities questionnaire. He observed that Plaintiff had "slow thoughts, lack of concentration [and] focus, [and] gives up easily." Id., PageID at 472. Mr. Foltys reported that he first saw Plaintiff on November 17, 2010 and last saw him on the same day he completed the questionnaire.
On January 24, 2011, Ms. Rush completed a questionnaire, noting that Plaintiff was first seen on November 10, 2010 and last seen on January 20, 2011. Id., PageID at 479. Ms. Rush diagnosed Plaintiff with "major depression, single episode severe [and] dysthymia." Id., PageID at 470. She opined, in part, that Plaintiff would react to work situations by shutting down and withdrawing. Id. She noted, "Recently [Plaintiff] cannot concentrate, focus, walks away from projects once started"; and he "gives up if any task becomes hard [and] finds himself having to do things over and over." Id.
In a very brief letter on February 7, 2011, Ms. Rush and Mr. Foltys opined that Plaintiff "remains disabled at this time and unable to tolerate the stress of any competitive work. It is our opinion this disability will last longer that twelve (12) months." Id., PageID at 476. The letter referenced no medical evidence and provided no supporting explanation. See id.
Psychologist George Schultz, Ph.D. examined Plaintiff in February 2011 at the request of the Ohio Bureau of Disability Determinations. Dr. Schultz diagnosed Plaintiff with Bipolar Disorder NOS (not otherwise specified in the DSM). (Doc. #7, PageID at 482). Dr. Schultz opined that Plaintiff was mildly impaired in his mental ability to relate to others, including co-workers and supervisors; mildly impaired in his ability to understand, remember, and follow instructions; not impaired in his ability to maintain concentration, to perform simple repetitive tasks with adequate pace and perseverance; and mildly impaired in his ability to withstand the stress and pressure associated with day-to-day work activity. Id.
Referring to the Diagnostic and Statistical Manual of Mental Disorders, which is now in its fifth edition (since 2013).
In August 2011, Mr. Foltys, wrote a letter concerning Plaintiff that both Ms. Rush and Dr. Smith also signed. At that time, Plaintiff's symptoms consisted of (1) feeling depressed all day, every day over a period of longer than 6 months; (2) sleep issues, not being able to fall asleep, and at times waking in the middle of the night; (3) inability to concentrate, focus, or complete tests, [and] losing train of thought; and (4) inability to maintain interest, rather severe anhedonia, and lack of pleasurable activities. Id., PageID at 522. Mr. Foltys wrote:
It is our opinion that he would not be able to work at this time and has not been able to work for at least the time he has been in treatment because of the severity of symptoms. He could not focus through an entire day, complete a day without either withdrawing or becoming somewhat more agitated. He not be able to complete a days work due to not focusing, concentrating and making some careless types of mistakes because of interruptions of his own depression. He would continue to have intrusive thoughts about the things wrong with his life and the things that have gone wrong in the past.(Doc. #7, PageID at 522-23). An attached questionnaire, also signed by these three mental health sources, rated his degree of impairment as either marked or extreme in each listed area. Id., PageID at 524-26.
It is our opinion that Mr. Winkle remains disabled at this time and it is expected that this disability will last longer than one year.
In September 2011, Mr. Foltys wrote another letter that Ms. Rush and Dr. Smith signed. He reported that Plaintiff was still an active client and that his "diagnosis remained that of Major Depression." Id., PageID at 528. He explained:
Despite [Plaintiff's] education, he cannot tolerate even minimal stress of day-to-day activities, let alone the stressors of competitive work. He is unable to stay focused on even minimal tasks for five minutes. He would not be able to tolerate even minimum supervision without becoming irritable or verbally lashing out. He also remains impulsive to the point where he does not consider the consequences of his behavior.Id.
It is expected that this disability will last longer than twelve (12) months.
III. The Social Security Administration's Review
To be eligible for Disability Insurance Benefits (DIB) or Supplemental Security Income (SSI) a claimant must be under a "disability" within the definition of the Social Security Act. See 42 U.S.C. §§423(a), (d), 1382c(a). The definition of the term "disability" is essentially the same for both DIB and SSI. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986). A "disability" consists only of physical or mental impairments that are both "medically determinable" and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. See Bowen, 476 U.S. at 469-70. In addition, the impairment must "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.
Social Security Regulations required ALJ McNichols to resolve Plaintiff's disability applications through a five-Step sequential evaluation of the evidence. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a); see also Gayheart v. Comm'r of Social Sec., 710 F.3d 365, 374-375 (6th Cir. 2013). Under the sequential evaluation, a dispositive finding at any Step terminates the ALJ's review. See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
Remaining citations to the Regulations focus on the DIB Regulations without citation to the corresponding SSI Regulations.
At Step 1 of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 10, 2005, the date his claimed disability began. At Step 2, the ALJ determined that Plaintiff had the severe impairments of "bipolar disorder; depression/dysthymia; and obesity." (Doc. #7, PageID at 89)(citations omitted). The ALJ concluded at Step 3 that Plaintiff did not have an impairment or combination of impairments that met or equaled the criteria in the Commissioner's Listing of Impairments.
At Step 4 the assessed Plaintiff residual functional capacity as follows:
A social security claimant's "residual functional capacity" is an assessment of the most the claimant can do in a work setting despite his or her physical or mental limitations. 20 C.F.R. § 404.1545(a); see Howard v. Commissioner of Social Sec., 276 F.3d 235, 239 (6th Cir. 2002).
[T]he claimant has the residual functional capacity to perform medium work ... with the following limitations: no climbing of ladders, ropes, or scaffolds, due to concentration deficits; simple 1- or 2-step tasks (requiring little, if any, concentration); low stress jobs (defined as no production quotas and no fast-pace work); and no direct dealing with the general public.Id., PageID at 92. Also at Step 4, the ALJ concluded that Plaintiff cannot perform his past relevant work.
At Step 5, the ALJ determined that there are a significant number of jobs in the national economy that Plaintiff can perform, including, for instance, machine packager, laundry worker, and sorting machine operator.
The ALJ sequential evaluation led to his ultimate conclusion that Plaintiff was not under a benefits-qualifying disability and thus not eligible for DIB or SSI.
IV. Discussion
A. Issues
Plaintiff frames his arguments as follows:
I. This Court should reverse the administrative decision because it failed to follow Social Security Ruling 06-03P;B. Judicial Review
II. This Court should reverse the administrative decision because it violated the treating source rule;
A. The decision should be reversed because the ALJ's backwards analysis unreasonably denied controlling weight to the treating source opinion; and
B. The decision should be reversed because the ALJ erroneously assigned weight to the opinions which he himself acknowledged were inaccurate in light of the record as a whole.
The ALJ's decision is subject to judicial review along two lines: "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley v. Comm'r of Social Sec., 581 F.3d 399, 405 (6th Cir. 2009); see Bowen v. Comm'r. of Social Sec., 478 F3d 742, 745-46 (6th Cir. 2007). Reviewing the ALJ's legal criteria for correctness may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Social Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F3d at 746.
The substantial-evidence review does not ask whether the Court agrees or disagrees with the ALJ's factual findings or whether the administrative record contains evidence contrary to those factual findings. Rogers v. Comm'r of Social Sec., 486 F.3d 234, 241 (6th Cir. 2007); see Her v. Comm'r of Social. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met - that is, "if a 'reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Blakley, 581 F.3d at 406 (quoting Warner v. Comm'r of Social Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance..." Rogers, 486 F.3d at 241. C. Ruling 06-03P and Medical Source Opinions
Plaintiff contends that the ALJ's decision fails to follow Social Security Ruling 06-03P, 2006 WL 2329939, which addresses how ALJs evaluate opinions from sources who are not "acceptable medical sources." He reasons, "Nowhere did the ALJ set forth any of the content of 06-03P and nothing in the written decision suggests that any of the procedural directives described in that Ruling ever crossed the ALJ's mind." (Doc. #11, PageID at 841-42). Plaintiff further contends that reading the ALJ's decision, "one might reasonably assume that the record consisted of nothing but the checked off markeds [sic] and extremes plus the smattering of progress notes cited by the ALJ...." Id., PageID at 843.
Ruling 06-03P "notes that information from 'other sources' cannot establish the existence of a medically determinable impairment, [but] the information 'may provide insight into the severity of the impairment(s) and how it affects the individual's ability to function." Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 541 (6th Cir. 2007) (quoting 06-03p, 2006 WL 2329939 at *3). Factors that apply to an ALJ's consideration of opinions by non-acceptable medical sources, when they have seen the claimant in their professional capacity, include "how long the source has known the individual, how consistent the opinion is with other evidence, and how well the source explains the opinion." Id. (citing Martin v. Barnhart, 470 F. Supp.2d 1324, 1328-29 (D. Utah 2006)). Additionally, the factors applicable to evaluating opinions provided by treating and other "acceptable medical sources" - supportability, consistency, and specialization, see 20 C.F.R. §404.1527(c)(3)-(5) - "can be applied to opinion evidence from 'other sources.' These factors represent basic principles that apply to the consideration of all opinions from medical sources who are not 'acceptable medical sources' ...." Ruling 06-03P, 2006 WL 2329939 at *4; see, e.g., Simpson v. Comm'r of Soc. Sec., 1:13-CV-640, 2014 WL 3845951 at *5-*6 (S.D. Ohio Aug. 5, 2014); Gray v. Comm'r of Soc. Sec., 3:13-CV-211, 2014 WL 1382544 at *7 (S.D. Ohio Apr. 8, 2014).
Ruling 06-03P further provides:
Although there is a distinction between what an adjudicator must consider and what the adjudicator must explain in the disability determination or decision, the adjudicator generally should explain the weight given to opinions for these "other sources," or otherwise ensure thatCruse, 502 F.3d at 541 (quoting 06-03P, 2006 WL 2329939 at *6).
the discussion of the evidence in the determination or decision allows a claimant or subsequent reviewer to follow the adjudicator's reasoning, when such opinions may have an effect on the outcome of the case.
Contrary to Plaintiff's contentions, the ALJ's decision complied with Ruling 06-03P and the Regulations applicable to evaluating non-acceptable medical source opinions, and the ALJ reviewed and evaluated the opinions and evidence of record, rather than a smattering of progress notes. The ALJ considered and addressed Mr. Foltys' evaluation of Plaintiff in November 2010 by noting that the GAF assessment of 40 was entitled to little weight in part because Mr. Foltys reported that Plaintiff "exhibited only a 'somewhat' depressed mood and pleasant affect." (Doc. #7, PageID at 93). The ALJ observed that Mr. Foltys "documented normal motor activity, calm and directable behavior, normal speech, logical thought processes, no evidence of hallucinations or delusions, good insight and judgment, and good memory." Id. Review of Mr. Foltys' assessment confirms the presence of these observations. Substantial evidence thus supports the ALJ's reasoning. See id., PageID at 495-98. In addition, Mr. Foltys' observations were consistent with Dr. Smith's, who noted in late November 2010 - as the ALJ recognized - "a depressed mood and some impairment. Mental status findings were otherwise normal and included appropriate affect, good insight and judgment, and focused attention." Id., PageID at 93; see id., PageID at 509-10. And, in November 2010, Mr. Foltys had not yet started treating/counseling Plaintiff. Consequently, his opinions expressed at that time appear to be based mainly on his initial crisis assessment and one interview with Plaintiff rather than an extended course of treatment. See Ruling 06-03p, 2006 WL 2329939 at *4 (one factor applicable to evaluating non-acceptable medical source opinions is "[h]ow long the non-acceptable medical source has known and how frequently the source has seen the individual ....").
The ALJ also reviewed the course of Plaintiff's treatment history. He correctly observed that nurse practitioner Ms. Rush noted, in January 2011, "a depressed mood but with otherwise normal mental status findings, including an appropriate affect, good insight and judgment, [and] intact memory." (Doc. #7, PageID at 93; see PageID at 507). Additionally, the ALJ discussed Mr. Foltys' January 2011 daily activities questionnaire. The information provided at these times was based on the medical sources' knowledge of Plaintiff's condition over the course of about two months, rather than over a lengthier course of treatment. As a result, their short-term information and observation are not, without more, probative of whether Plaintiff met the one-year durational requirement needed to establish a benefits-qualifying disability. See 42 U.S.C. §423(d)(1)(A). The ALJ also considered the brief letter signed in February 2011 by Ms. Rush and Mr. Foltys in which they stated that Plaintiff was under a disability and that his "disability will last longer than twelve (12) months." (Doc. #7, PageID at 96, 476). This letter, however, contained no supporting explanation or reference to evidence of record. And, like their other early-treatment opinions, these February 2011 opinions were based on the short-term treatment they had provided Plaintiff since November 2010.
The ALJ correctly recognized that information in August 2011 from Ms. Rush, Mr. Foltys, and Dr. Smith showed Plaintiff with depressed and/or anxious mood, impulsivity, and some memory and attention difficulty. Id., PageID at 93-94, 522-26. Yet, Plaintiff's progress notes had otherwise noted normal mental status findings - for instance, appropriate hygiene, full orientation, normal speech, no abnormalities of thought content, appropriate affect, and good insight and judgment. Id., PageID at 94; see PageID at 499506. The ALJ further reviewed similar disability opinions that Dr. Smith, Ms. Rush, and Mr. Foltys provided in September 2011 and May 2012. Id.; see supra, §II(B).
Having thus examined all the above information and opinions, the ALJ turned to the standards applicable under the treating medical source rule, then to the factors otherwise applicable - "examining relationship, the treatment relationship in terms of its frequency and duration, supportability, consistency, and specialization." (Doc. #7, PageID at 96). The ALJ correctly recognized that Ms. Rush and Mr. Foltys were not "acceptable medical sources." (Doc. #7, PageID at 96; see 20 C.F.R §404.1513(d)(1); Ruling 06-03P, 2006 WL 2329939 at *3). The ALJ then applied the legal criteria required by Ruling 06-03P when he considered their opinions along with the fact that Dr. Smith "signed off on most" of their assessments. (Doc. #7, PageID at 96). The ALJ explained:
The undersigned gives little weight to these opinions as their findings of marked to extreme limitations are unsupported by objective signs and findings in the mental health treatment notes. [T]he ... progress notes show some depressed or anxious moods and some impulsivity and difficulty withId., PageID at 96-97. Substantial evidence supports these reasons for discounting the opinions of Mr. Foltys, Ms. Rush, and Dr. Smith by, in part, repeatedly noting Plaintiff's unremarkable mood, affect, and thought process/orientation. See Doc. #7, PageID at 456, 461, 499-507, 730-45, 748-56.
attention and memory. However, other mental status findings were normal, and these sources documented appropriate affectation, euthymic moods, and focused attention on several occasions. The preponderance of the mental status findings in these notes, and in the consultative psychological report, support the conclusion ... that the claimant experiences no more than moderate difficulty in work-related mental functioning....
Progress notes post-dating the ALJ's July 20, 2012 decision continued to indicate unremarkable mood, affect, and thought process/orientation, and he continued to work on issues. (Doc. #7, PageID at 800-08).
--------
Plaintiff contends that the ALJ relied solely upon a single questionnaire "with its check-marked degrees of limitation." (Doc. #11, PageID at 842). He further contends:
In reading the written decision, one might reasonably assume that the record consisted of nothing but the checked off marks and extremes plus a smattering of progress notes. But that impression comes about only because the ALJ elided completely from his discussion that the sources in question had repeatedly proffered observations which address the basic work-related functions at issue, and that those observations consistently identified a degree of impairment either unlikely, or not at all likely, to comport with sustained, full-time competitive work.(Doc. #7, PageID at 843).
These contentions fail to show either legal error in the ALJ's decision or an absence of substantial supporting evidence. It was not error for the ALJ to omit mention of the repeated consistency of Mr. Foltys' and Ms. Rush's opinions about Plaintiff's functional limitations because the ALJ focused on the weight due their opinions under the supportability factor - namely, the evidence underlying their opinions that appears in their evaluation reports and progress notes. See Doc. #7, PageID at 93-97. Although some information in the evaluation reports and progress notes indicates that Plaintiff suffers from serious stressors and resulting mental-health impairments, other information concerning Plaintiff's signs and symptoms in those same materials does not support the marked and severe limitations or disability opinions provided by Ms. Foltys and Ms. Rush. The evidence thus presented the ALJ with "a zone of choice" within which he could have credited, or not, the opinions Mr. Foltys and Ms. Rush. In this situation, "if substantial evidence supports the ALJ's decision, ... [the courts] defer[] to that finding 'even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley, 581 F.3d at 406 (citations omitted). Because the materials contain information supporting the ALJ's reason for not attributing to Plaintiff the marked and severe impairments identified by Mr. Foltys and Ms. Rush, the ALJ's rejection of their opinions was reasonable and within the zone of choice.
The ALJ noted that counselor Dan Amos evaluated Plaintiff in November 2010 and reported, in part, that Plaintiff presented with a depressed mood. (Doc. #7, PageID at 93, 461, 466). Mr. Amos otherwise reported normal mental status findings, including an appropriate affect, good insight and judgment, unremarkable thought content, normal speech, a cooperative attitude, no evidence of suicidal ideation, and intact memory. Id. When Mr. Foltys evaluated Plaintiff in November 2010, he reported that Plaintiff felt "hopeless as far as his job situation...," and his "[a]ffect was pleasant, but mood was somewhat depressed." Id., PageID at 497. Yet, Mr. Foltys, like Mr. Amos, reported mostly normal mental status findings such as cooperative attitude, calm and directable behavior, logical thought processes, no evidence of hallucinations, good insight and judgment, and no suicidal thoughts. Id. By way of strengths and assets, Mr. Foltys wrote that Plaintiff "appeared to be verbal, intelligent, and capable of insight...." Id. Under the category, "Vocational Screening," Mr. Foltys indicated, "[Plaintiff] is constantly interested in working and states he consistently feels that it is impossible for him to find a job simply due to his history of a sexual offense..." id., PageID at 497, rather than due to a mental impairment or disability.
In November 2010, Dr. Smith noted that Plaintiff had a depressed mood and some memory impairment. But Dr. Smith further observed that Plaintiff's mental status was otherwise normal due to his appropriate affect, good insight and judgment, and focused attention. (Doc. #7, PageID at 456-57). The ALJ accurately found that treatment notes from Mr. Foltys and Ms. Rush showed depressed and/or anxious moods, impulsivity, and some memory and attention difficulties but also showed otherwise normal mental status findings, including appropriate hygiene, full orientation, normal speech, no abnormalities of though content, appropriate affect, good insight and judgment, and euthymic mood on some occasions. (Doc. #7, PageID # 93-94, 499-508, 531-48, 730-46).
In addition to discussing the treating sources' information, the ALJ concluded that Plaintiff's treatment was relatively effective in controlling his symptoms. The record contains substantial evidence in support of this conclusion. For instance, in September 2011, Plaintiff reported that he was doing okay and was happy with his medication. Id., PageID at 94, 541). In November 2011, Ms. Rush indicated that Plaintiff was "doing better overall." Id., PageID at 94, 535. In March 2012, Plaintiff reported that he loved Cymbalta (saying, "I'm loving it"). Id., PageID at 94, 734). And, in April 2012, Plaintiff mentioned that he was having "a lot of good days." Id., PageID at 94, 731.
* * *
Plaintiff next contends that the ALJ violated the treating source rule by conducting a backward analysis of the medical source opinions. Plaintiff reasons that ALJs must first consider the opinions provided treating physicians, and "[i]f and only if the ALJ finds that test [for controlling weight] not met and is able to articulate good reasons for denying controlling weight, then due consideration must be given to all medical opinions of record ...." (Doc. #11, PageID at 845). In support of these contentions, Plaintiff relies on the Regulations, specifically, 20 C.F.R. §404.1527(c)(1)-(6).
It is correct to say that when a treating source's opinions satisfies the criteria of the treating source rule, it is due "controlling weight." See 20 C.F.R. §404.1527(c)(2). "Controlling weight" in this context means that when the treating source rule is satisfied, the "medical opinion from a treating source must be adopted." Social Sec. Ruling 96-2p, 1996 WL 374188 at *2. Yet, neither the treating source rule itself nor its corresponding Regulations and Rulings, id., require an ALJ to start by evaluating a treating source's opinions under the treating source rule before evaluating other medical source opinions. The Regulations simply lack mandatory language requiring this. Instead, ALJs are free to evaluate what weight should be placed on medical source opinions, then compare their opinions to the treating source's opinions. This would not, as Plaintiff argues, constitute a backwards analysis given that the treating sources' and non-treating sources' opinions must be compared in order for an ALJ to determine whether or not the treating source rule applies. Indeed, Plaintiff's contentions overlook the treating source rule's requirement that the treating source's opinions must not be "inconsistent with the other substantial evidence ...." 20 C.F.R. §404.1527(c)(2). This creates the practical need for a comparison of non-treating and treating sources' opinions. Ruling 96-03P explains:
Whether a medical opinion is "not inconsistent" with the other substantial evidence is a judgment that adjudicators must make in each case. Sometimes, there will be an obvious inconsistency between the opinion and the other substantial evidence; for example..., when two medical sources provide inconsistent medical opinions about the same issue....1996 WL 374188 at *3. It simply does not matter under the Regulations or Ruling 96-03P which medical source's opinion is considered first when conducting this comparison. Consequently, the ALJ did not err as a matter of law to the extent he addressed the non-treating source's opinions first.
This holds true even though Plaintiff also contends, relying on Gayheart: "To deny controlling weight to a treating source, the conflicting medical evidence 'must consist of more than the medical opinions of the nontreating and nonexamining doctors.'" (Doc. #11, PageID at 846) (quoting Gayheart, 710 F.3d at 377). Gayheart certainly says this. But Gayheart does not establish a procedural sequence that ALJs must follow when comparing nontreating or nonexamining medical sources' opinions with a treating source's opinions. Gayheart establishes an evidentiary threshold: to constitute substantial inconsistent evidence as a ground for not applying the treating source rule, an ALJ must identify more evidence in the record than the inconsistent opinions of nontreating and nonexamining medical sources. Gayheart, 710 F3d at 377. Plaintiff maintains, "Here the ALJ required that the treating source opinion somehow rebut the non-examining and non-treating opinions. As the ALJ had already established that those opinions are entitled to 'some weight,' any subsequent controlling weight analysis followed through to a foregone conclusion: there could be no finding of controlling weight if conflicting medical opinions were also entitled to some weight." (Doc. #7, PageID at 846-47). The ALJ's analysis was not so circumscribed. While the ALJ first found that some weight was due the opinions of the consulting and reviewing medical sources, he declined to credit the treating source opinions based on more than their opinions. The ALJ placed no controlling or deferential weight on the treating sources' opinion based in large part on lack of findings in Plaintiff's mental health treatment notes - what the ALJ characterized as the "preponderance of the mental status findings in these notes ..." Id., PageID at 97. Consequently, the ALJ's decision did not commit the Gayheart error or otherwise conflict with Gayheart
Plaintiff contends that there is no medical opinion that lines up with the ALJ's assessment of Plaintiff's mental residual functional capacity. There is, however, no requirement that a medical source opinion line up with the ALJ's assessment. The Regulations required the ALJ to assess Plaintiff's residual functional capacity "based on all the relevant evidence in [the] case record." 20 C.F.R. §404.1545(a)(1). This included "all of the relevant medical and other evidence." §404.1545(a)(3). This broad evidentiary review left the ALJ free to consider the medical opinions as well as other medical evidence, such as Plaintiff's progress notes or other evidence, when assessing his residual functional capacity. This, in turn, means that substantial evidence in support of the ALJ's assessment may consist of medical source opinions as well as progress notes or other evidence. See Divins v. Astrue, No. 11-33, 2012 WL 220246, *11 (S.D. Ohio Jan. 25, 2012) (Ovington, M.J.) ("there is no requirement that the ALJ adopt the precise language offered by a medical source, as long as the ALJ's conclusion as to a claimant's RFC is supported by substantial evidence"), R&R adopted, 2012 WL 639518 (Feb. 28, 2012); see also Hericks v. Astrue, No. 10-900, 2012 WL 161105, *7 (S.D. Ohio Jan. 19, 2012) (Bowman, M.J.), R&R adopted, 2012 WL 441169 (Feb. 10, 2012).
Balancing the above-noted record evidence, and giving some weight to Plaintiff's subjective complaints that he has difficulty concentrating and getting along with others, the ALJ found Plaintiff to have moderate limitations in activities of daily living, maintaining social functioning, and maintaining concentration, persistence, or pace (Doc. #7, PageID at 91), and found that Plaintiff had the residual functional capacity to perform a reduced range of medium work, limited in that Plaintiff could not climb ropes, ladders or scaffolds; and could only perform jobs requiring simple 1 of 2-step tasks, requiring little, if any, concentration; low stress jobs, defined by the ALJ as having no production quotas and no fast-paced work; and jobs requiring no direct dealing with the general public. Id., PageID at 92. The ALJ relied not only on the opinions and information provided by Dr. Schultz and the state-agency reviewer, he relied on the repeated indications of normal mental-status findings in Plaintiff's progress notes. Even assuming that some evidence provided a measure of support for certain of Plaintiff's claimed limitations, it does not follow that the evidence required the ALJ to accept the marked and extreme impairments opined by Plaintiff's treating sources. See Kelly v. Comm'r of Soc. Sec., 314 F. App'x 827, 832 (6th Cir. 2009). Moreover, even though the ALJ gave some credence to Plaintiff's mental allegations, he still found Plaintiff's conditions only so limiting that he was capable of performing work in accord with the ALJ's assessment of Plaintiff's residual functional capacity. (PageID # 92-97). The ALJ did exactly what the Regulations required - he considered the entirety of the record evidence and synthesized that evidence into his assessment of Plaintiff's residual functional capacity. Given this, and the ALJ's reasonable weighing of the opinion evidence was reasonable, which substantial evidence supports, Plaintiff's challenges to the ALJ's decision lack merit.
IT IS THEREFORE ORDERED THAT:
1. The Commissioner's non-disability finding is affirmed; and
2. The case is terminated on the docket of this Court. September 9, 2014
s/Sharon L. Ovington
Sharon L. Ovington
Chief United States Magistrate Judge