Anspach v. Social Security, Commissioner of
Filing
24
OPINION and ORDER DENYING PLAINTIFF'S 16 MOTION for Summary Judgment AND GRANTING DEFENDANT'S 21 MOTION to Remand pursuant to Sentence 4 of 42 USC § 405(g) (unassented) - Signed by Magistrate Judge R. Steven Whalen. (CCie)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHRISTOPHER M. ANSPACH,
Plaintiff,
Civil Action No. 14-13135
v.
Magistrate Judge R. Steven Whalen
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
/
OPINION AND ORDER
Plaintiff Christopher M. Anspach (“Plaintiff”) brings this action under 42 U.S.C.
§405(g), challenging a final decision of Defendant Commissioner denying his application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under the
Social Security Act. Plaintiff has filed a Motion for Summary Judgment [Doc. #16].
Defendant did not file a motion for summary judgment, but instead, filed a Motion to
Remand to the administrative level for further fact-finding [Doc. #21]. Plaintiff declines to
stipulate to a remand for further fact-finding, arguing that he is entitled to a remand for
benefits. For the reasons discussed below, Defendant’s Motion to Remand [Docket #21] is
GRANTED, remanding the case for further administrative proceedings. Plaintiff’s Motion
for Summary Judgment [Docket #16] is DENIED as to the request for an award of benefits
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and DENIED as MOOT as to the request to remand for further administrative proceedings.
PROCEDURAL HISTORY
On August 29, 2011, Plaintiff applied for DIB and SSI, alleging disability as of June
26, 2005 (Tr. 227-233, 234-239). After the initial claim denial, Plaintiff requested an
administrative hearing, held on February 6, 2013 in Mount Pleasant, Michigan (Tr. 125).
Administrative Law Judge (“ALJ”) Tammy A. Thames presided. Plaintiff, represented by
attorney Michael J. Plowman, testified (Tr. 129-143), as did Vocational Expert (“VE”)
Richard Riedl (Tr. 144-147). On April 5, 2013, ALJ Thames found that Plaintiff was not
disabled. Id. (Tr. 120). On July 11, 2014, the Appeals Council denied review (Tr. 1-7).
Plaintiff filed suit in this Court on August 14, 2014.
BACKGROUND FACTS
Plaintiff, born February 25, 1976, was 37 at the time of the administrative decision
(Tr. 120, 227). He graduated from high school and worked previously as a car washer,
dishwasher, inspector, and laborer (Tr. 275). He alleges disability as a result of social
anxiety, Attention Deficit Hyperactivity Disorder (“ADHD”), insomnia, social rage, and Post
Traumatic Stress Disorder (“PTSD”) (Tr. 274).
A. Plaintiff’s Testimony
Plaintiff offered the following testimony:
He graduated from high school and attended two semesters of college (Tr. 129, 131).
He completed a program in graphics communications (Tr. 129). The longest he had ever
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held a job was three years (Tr. 130). His last job, involving graphics communication and
screen printing, ended in 2010 (Tr. 130). He was discharged from the graphics job after four
days because he “destroyed too many shirts from not paying attention” and failed to perform
his job “correctly” (Tr. 131). His attempt to find work through Michigan Rehabilitation
Services was unsuccessful and his case was closed in 2011 (Tr. 131). He currently lived with
his grandfather and his girlfriend (Tr. 131). He received state disability assistance (Tr. 132).
His girlfriend was also on disability (Tr. 132).
Plaintiff was uncomfortable “being around people for extended periods of time” (Tr.
132). He experienced social anxiety including nervousness, sweating and fear (Tr. 133). He
coped with anxiety by removing himself from the stress-inducing situations (Tr. 133). He
had not found a medication that improved his symptoms of anxiety (Tr. 133). He was treated
for ADHD when he was a child and had been prescribed Ritalin (Tr. 133). He was diagnosed
with Asperger’s Syndrome in 2010 (Tr. 133). He treated the condition with counseling (Tr.
133). Symptoms of the condition included the obsessive need to finish a project before
focusing on anything else and concentrational problems when performing repetitive work
(Tr. 134-135). His biweekly counseling involved working on “behavioral traits,” “focus,”
and dealing with PTSD as a result of growing up in a high crime area (Tr. 136). He was
unable to interact with his friends for more than six hours, after which time he experienced
“nervousness” and “restlessness” (Tr. 137). He averaged four hours of sleep each night (Tr.
138). He and his girlfriend “ate out” around three times a month (Tr. 138). He left the house
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only to grocery shop and attend doctors’ appointments (Tr. 139).
Plaintiff believed that he was unable to work full time because he was “a
perfectionist,” was “always worried” that he would not “do a good enough job,” and he lost
concentration easily (Tr. 139). He also experienced severe depression around three times a
week, at which time he would not communicate with others (Tr. 139). He had been with his
girlfriend for two years (Tr. 140). In his first semester of college, he did not experience
problems understanding the material and received A’s and B’s (Tr. 140). However, he would
sit in the back of the classroom to distance himself from others (Tr. 140). He did not
experience problems following simple instructions but might forget “steps” of a multi-step
task (Tr. 141).
In response to questioning by his attorney, Plaintiff reiterated that he did not sleep
more than four hours a night and was “physically tired” during the day (Tr. 142). He
experienced problems following social cues (Tr. 142).
B. Medical Evidence1
1. Treating Records
July, 2005 records by Gratiot County Community Mental Health Services state that
Plaintiff enjoyed video games, riding his bike, fishing, swimming, and shopping at the mall
(Tr. 331). He exhibited a normal thought process (Tr. 332). Notes sent to treating physician
1
Plaintiff does not dispute the ALJ’s assessment of the physical conditions. As
such, the discussion is limited to records pertaining to his treatment for psychological
problems.
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James K. Hall, M.D. state that Plaintiff was diagnosed with agoraphobia (Tr. 359). Plaintiff
was assigned a GAF of 50 to 552 (Tr. 332, 347, 376, 575). Plaintiff was prescribed an
increased dose of Zoloft (Tr. 360). August, 2005 records state that Plaintiff experienced
depression, insomnia, suicidal ideation, and social anxiety (Tr. 334). Plaintiff reported five
previous suicide attempts (Tr. 334). He denied hallucinations (Tr. 334). He currently
worked part-time as a car part inspector, but noted that he had quit or been terminated from
several jobs after failing to get along with coworkers (Tr. 335). He was assigned a GAF of
45 (Tr. 336, 340, 380, 579). The same month, Dr. Hall opined that Plaintiff was disabled due
to a “crowd phobia” (Tr. 358, 372, 470). September, 2005 counseling notes state that he
anticipated traveling to the Philippines to marry his girlfriend (Tr. 586).
An October, 2005 treatment summary states that Plaintiff experienced reduced
symptoms of depression with a medication change and therapy (Tr. 361). Plaintiff reported
that he would “need to be considering other options” if the “disability thing doesn’t work
out” (Tr. 643). In an October, 2005 “employment planning checklist,” Plaintiff denied
physical limitations, stating that he wanted to work outside, and avoid jobs where he became
bored (Tr. 341, 582). The following month, Plaintiff told his counselor that he was not upset
when his application for disability was denied, stating it was “‘no big deal . . . I only wanted
2
A GAF score of 41-50 indicates "[s]erious symptoms ... [or] serious impairment in
social, occupational, or school functioning," such as inability to keep a job. Diagnostic and
Statistical Manual of Mental Disorders--Text Revision (“DSM-IV-TR”), 34 (4th ed. 2000).
A GAF score of 51-60 indicates moderate symptoms OR moderate difficulty in social,
occupational, or school functioning. DSM-IV-TR at 34.
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it for an income while I got things together . . . now I’ll just have to figure out how to find
a job I can stand which will pay the bills . . .” (Tr. 647)(punctuation in original). In
December, 2005, Plaintiff admitted that he declined several job opportunities that were
inconsistent with his long-term goals (Tr. 652). January, 2006 records state that Plaintiff was
currently taking Zoloft and had a GAF of 55 (Tr. 468). Plaintiff reported in March, 2006 that
he was actively seeking employment (Tr. 660). In July, 2006, Plaintiff was enrolled in a
program to obtain training and procure employment (Tr. 598).
In September, 2006, mental health discharge records note a GAF of 653 and no need
for follow-up services (Tr. 581). The same month, Plaintiff sought emergency treatment
after injuring himself “throwing a frisbee and football” (Tr. 425). In March, 2010, Troy
Novak, PA-C opined that Plaintiff did not experience any mental limitations (Tr. 448). In
June, 2010, Gregg J. Stefanek, D.O. noted the conditions of depression, ADHD, insomnia,
and anxiety (Tr. 441-442). He noted that Plaintiff’s affect was “appropriate” and that he
followed directions well (Tr. 438, 442).
March, 2011 treating notes by Troy Novak note Plaintiff’s reports of vertigo for the
past three months and a January, 2011 emergency room visit at which time Plaintiff was
prescribed Antivert (Tr. 413, 702). Treating notes state that “labs, EK and CT were all
normal” (Tr. 702). Novak found that the vertigo was “positional” (Tr. 702). He refused to
3
GAF scores in the range of 61-70 indicate "some mild [psychological] symptoms or
some difficulty in social, occupational, or school functioning." DSM-IV-TR at 32.
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prescribe medicine for ADHD (Tr. 703). Dr. Stefanek’s June, 2011 records note Plaintiff’s
report of semiweekly depression as a result of financial problems (Tr. 411, 704).
In August, 2011 Plaintiff sought renewed treatment with Gratiot County Community
Mental Health Services (Tr. 487-490). Intake records note an unremarkable appearance,
coordination, behavior, orientation, affect, mood, and judgment (Tr. 490-491, 607-608). His
limitation in interpersonal relationships and activities of daily living were deemed mostly
moderate (marked limitations in developing relationships), but “marked” as to educational
and employment issues (Tr. 492, 609). He was assigned a GAF of 46 due to depression,
“problems with primary support group,” and occupational problems (Tr. 493, 610). October,
2011 counseling records state that Plaintiff did not “seem to have any concerns about the fact
that he is both applying for disability while also applying for monies which would help him
start his own business” (Tr. 673). Social worker Eileen Wells noted that she was “not
successful” in getting Plaintiff to address the “inconsistencies” in the two goals (Tr. 673).
In February, 2012, Dr. Stefanek’s notes state that Plaintiff believed that he was
disabled because of right shoulder pain, ADHD, and insomnia (Tr. 714). In March, 2012,
Plaintiff told social worker Wells that he would use his anticipated DIB award money to start
a business (Tr. 679). March and July, 2012 records state a diagnosis of mild to moderate
sleep apnea (Tr. 541-542). In April, 2012, Dr. Stefanek stated that he concurred with Dr.
Mike’s finding of disability due to Asperger’s Syndrome (Tr. 719). Plaintiff was encouraged
to exercise and diet (Tr. 560). He sought treatment for anxiety in July, 2012 (Tr. 567). In
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August, 2012, he sought treatment for vertigo (Tr. 529). A CT of the head was unremarkable
(Tr. 535-536). The same month, therapy notes state that he relied on friends and family for
support (Tr. 624). He did not exhibit any unusual behaviors (Tr. 628-629).
2. Non-Treating Records
In February, 2008, Janette S. Caputo Ph.D. performed a consultative psychological
examination on behalf of the SSA, noting Plaintiff’s report of depression, social anxiety,
anxiety in crowded places, sleep difficulties, racing thoughts, and unsuccessful relationships
with women (Tr. 382). Plaintiff reported that he had “a dozen or so friends” (Tr. 385). Dr.
Caputo observed that Plaintiff was “socially appropriate and very pleasant” (Tr. 385). She
noted good judgment and mathematical skills (Tr. 387). She assigned him a GAF of 38 with
a fair prognosis, noting diagnoses of major depression, “severe with psychotic features,” and
social phobia (Tr. 388). She found that he could handle his own benefit funds (Tr. 388).
A July, 2009 psychological evaluation by Robert Cooper, MA/LLP states that Plaintiff
appeared adequately groomed and friendly (Tr. 395). Wechsler Adult Intelligence Scale,
Third Edition (“WAIS-III”) revealed an average IQ (Tr. 395-397). May, 2011 notes by a job
procurement service state that Plaintiff was provided with, but did not follow through on
multiple job leads (Tr. 399-401).
In November, 2011, Dr. Caputo reexamined Plaintiff on behalf of the SSA, noting
Plaintiff’s claims that symptoms of ADHD, insomnia, chronic suicidal depression, social
anxiety and PTSD had worsened in recent years (Tr. 478). He also reported an Obsessive
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Compulsive Disorder (“OCD”) characterized by the need to put “everything . . . in its place”
(Tr. 479). He attended a “trading card game tournament” on Friday nights (Tr. 479). He
reported “temporary vertigo with loud sounds” (Tr. 479). He socialized with friends and
shared the household chores with his girlfriend (Tr. 481). Dr. Caputo diagnosed him with
depression, ADHD, and OCD, assigning him a GAF of 49 (Tr. 483). She found that he could
manage his own benefit funds (Tr. 483).
In January, 2012, Joseph DeLoach, Ph.D. completed a non-examining assessment of
the treating and consultative findings, noting the diagnoses of social anxiety, ADHD,
insomnia, social rage, and PTSD (Tr. 151). He found mild restriction in activities of daily
living, and moderate limitation in social functioning and concentration, persistence, or pace
(Tr. 158). Dr. DeLoach found Plaintiff’s allegations of disability “partially credible,” noting
Plaintiff’s good academic history and conservative psychological treatment (Tr. 159).
In February, 2012, Edward J. Mike performed a one-time consultative examination
at the recommendation of Dr. Stefanek, noting Plaintiff’s poor hygiene and reports of
traumatic childhood events (Tr. 502, 618). Dr. Mike diagnosed Plaintiff with Asperger’s
Syndrome, PTSD, depression, and anxiety and found him “socially alienated” (Tr. 506, 623).
He assigned him a GAF of 50 (Tr. 506).
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3. Material Submitted After the April 5, 2013 Administrative Decision4
In February, 2013, Plaintiff was referred to neurosurgeon David D. Udehn, M.D. after
an MRI showed abnormalities (Tr. 764). Plaintiff reported about two episodes each year of
nausea, vomiting, and blackouts since the Spring of 2010 (Tr. 764-765). A neurological
exam was unremarkable (Tr. 767-768). April, 2013 treating records note Plaintiff’s report
of side effects from Celexa (Tr. 745). The same records note an “abnormal MRI” earlier the
same year (Tr. 750). The same month, Plaintiff reported recent lightheadedness and
headaches (Tr. 750). Dr. Stefanek’s August, 2013 treating notes state that an MRI of the
brain was negative for abnormalities (Tr. 742).
C. Vocational Expert Testimony
VE Richard Riedl characterized Plaintiff’s past work as a dishwasher/kitchen helper
as unskilled and exertionally medium5 (Tr. 144). ALJ Thames then posed the following set
4
Where the Appeals Council denies a claimant's request for a review of an application
based on material submitted after the administrative decision, the district court cannot
consider that new evidence in deciding whether to “uphold, modify, or reverse the ALJ's
decision.” Cotton v. Sullivan, 2 F.3d 692, 696–696 (6th Cir.1993). Sentence six of 42 U.S.C.
§ 405(g) states that the court “may at any time order additional evidence to be taken before
the Commissioner of Social Security, but only upon a showing that there is new evidence
which is material and that there is good cause for the failure to incorporate such evidence into
the record in a prior proceeding ...” (emphasis added). Plaintiff did not rely on the newly
submitted evidence in support of his motion for summary judgment or provide “good cause”
for failure to timely submit the evidence. However, Defendant concedes that the newer
material contains grounds for remand for consideration of the condition of vertigo.
Defendant’s Brief at 4, Docket #21.
5
20 C.F.R. § 404.1567(a-d) defines sedentary work as “lifting no more than 10 pounds
at a time and occasionally lifting or carrying articles like docket files, ledgers, and small
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of hypothetical limitations to the VE, describing a hypothetical individual of Plaintiff’s age,
education, and work experience:
[Consider a hypothetical individual . . . with the following limitations: having
the physical capacity to perform work at all exertional levels; having the ability
to understand, remember and carry out simple instructions, and perform simple
tasks with no production-rate pace work, but rather goal-oriented work; and no
more than occasional interaction with the public or coworkers. Would an
individual with these limitations be capable of performing any of the
claimant’s past work? (Tr. 145).
The VE testified that given the above limitations, the individual would be unable to perform
any of Plaintiff’s past relevant work, but could perform the exertionally medium, unskilled
work of a laundry laborer (3,100 positions in the lower peninsula of Michigan); cleaner
(11,000); or automobile detailer (5,500) (Tr. 146). The VE stated that if the same individual
were unable to follow simple instructions, required frequent supervision, or, needed to take
“frequent, unscheduled rest breaks,” all work would be precluded (Tr. 146).
D.
The ALJ’s Decision
Citing the medical records, ALJ Thames found that Plaintiff experienced the severe
impairments of “major depressive disorder, [PTSD] . . . social phobia, [ADHD]
predominantly hyperactive-impulsive type, and [OCD]” but that none of the conditions met
or equaled any impairment listed in 20 CRF Part 404, Subpart P, Appendix 1 (Tr. 97-98).
tools; light work as “lifting no more than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds;” medium work as “lifting no more than 50
pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;” and
that exertionally heavy work “involves lifting no more than 100 pounds at a time with
frequent lifting or carrying of objects weighing up to 50 pounds.
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She found that Plaintiff experienced mild limitation in daily living and moderate limitation
in social functioning and concentration, persistence, or pace (Tr. 99-100). The ALJ found
that Plaintiff retained the residual functional capacity (“RFC”) for work at all exertional
levels with the following limitations:
[Plaintiff] has the ability to understand, remember, and carry out simple
instructions and perform simple tasks with no production rate pace work, but
rather goal oriented work. He must have no more than occasional interaction
with the public (Tr. 102).
Citing the VE’s testimony, the ALJ found that although Plaintiff was unable to perform his
past relevant work, he could work as a laundry laborer, cleaner, or auto detailer (Tr. 119120).
The ALJ discounted Plaintiff’s allegations of disability, noting that he was able to
ride his bike, fish, swim, shop, care for his cat, perform household chores, and handle the
finances of his disabled girlfriend (Tr. 113). She cited an occupational counselor’s
observation that Plaintiff was not “motivated” to find employment (Tr. 114). She assigned
“considerable weight” to Dr. DeLoach’s findings and adopted Dr. Caputo’s assessment “[t]o
the extent it [was] consistent” with the RFC (Tr. 115). She accorded “little weight” to the
opinions of Drs. Hall, Mike, and Stefanek on the basis that their findings were not consistent
with the treating and consultative records (Tr. 116).
STANDARD OF REVIEW
The district court reviews the final decision of the Commissioner to determine
whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of
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Health and Human Services, 757 F.2d 803, 804 (6th Cir. 1985). Substantial evidence is more
than a scintilla but less that a preponderance. It is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, S. Ct. 206, 83 L.Ed.126 (1938)). The standard of review is deferential and
“presupposes that there is a ‘zone of choice’ within which decision makers can go either way,
without interference from the courts.” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986)(en banc). In determining whether the evidence is substantial, the court must “take into
account whatever in the record fairly detracts from its weight.” Wages v. Secretary of Health
& Human Services, 755 F.2d 495, 497 (6th Cir. 1985). The court must examine the
administrative record as a whole, and may look to any evidence in the record, regardless of
whether it has been cited by the ALJ. Walker v. Secretary of Health and Human Services,
884 F.2d 241, 245 (6th Cir. 1989).
FRAMEWORK FOR DISABILITY DETERMINATIONS
Disability is defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than 12 months.” 42 U.S.C. §423(d)(1)(A). In
evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence,
whether the claimant: 1) worked during the alleged period of disability; 2) has a severe
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impairment; 3) has an impairment that meets or equals the requirements of an impairment
listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she
can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has
the burden of proof at steps one through four, but the burden shifts to the Commissioner at
step five to demonstrate that, “notwithstanding the claimant's impairment, he retains the
residual functional capacity to perform specific jobs existing in the national economy.”
Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
ANALYSIS
In response to Plaintiff’s motion for summary judgment, Defendant filed a motion
to remand for further fact-finding for consideration of whether the condition of vertigo
created work-related impairments. Docket #21. Plaintiff declined to stipulate to a remand
for further fact-finding, arguing instead that he is entitled to a remand for benefits. Plaintiff’s
Response, Docket #22. He argues generally that the evidence overwhelmingly supports a
disability finding. First, he contends that Dr. DeLoach’s non-examining findings, citing by
the ALJ in support of the administrative determination, do not reflect the totality of medical
evidence. He argues further that while the ALJ ostensibly assigned “considerable weight”
to Dr. Caputo’s consultative opinion, the RFC does not reflect the bulk of Dr. Caputo’s
findings.
Plaintiff’s request for a remand for benefits on this record is unwarranted. He
contends that Dr. DeLoach’s findings do not accurately reflect the treating records created
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before the January, 2012 non-examining assessment. However, as noted by the ALJ, the
records created prior to Dr DeLoach’s evaluation contain substantial evidence that Plaintiff
could perform a significant range of work. As early as October, 2005, Plaintiff stated that
an earlier denial of benefits was “no big deal” because he “only wanted it for an income
while [he] got things together . . .” (Tr. 647). The same month, Plaintiff reported reduced
symptoms of depression with a medication change and therapy (Tr. 361). In September,
2006, Plaintiff’s psychological limitations were deemed mild (Tr. 581). In June, 2010, Dr.
Stefanek noted that Plaintiff followed directions well and had an appropriate affect (Tr. 438,
442). October, 2011 counseling records note that Plaintiff intended to use his anticipated
DIB funds to start his own business (Tr. 673).
Plaintiff notes that Dr. DeLoach did not have benefit of an Asperger’s Syndrome
diagnosis made by an examining source in March, 2012 (Tr. 506).
He is correct that
generally, “updated” medical records are to be accorded more weight than older ones. See
Hamblin v. Apfel, 7 Fed.Appx. 449, 451, 2001 WL 345798, *2 (6th Cir. March 26, 2001)
(affirming an ALJ's rejection of an “outdated” opinion on the basis that another physician had
performed a more recent appraisal with contradicting findings). However, the ALJ did not
err in discounting Dr. Mike’s non-treating diagnosis of Asperger’s Syndrome, noting that the
diagnosis “was made based on [Plaintiff’s] self-reported subjective complaints, rather than
objective findings, the treating records, or Plaintiff’s previous statements to others” (Tr. 116).
Further, the treating records created after January, 2012 generally do not support the finding
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that Plaintiff was disabled by psychological conditions or that the conditions worsened after
Dr. DeLoach made his recommendation. Plaintiff again stated in March, 2012 that he
intended to use his disability payments to fund a business (Tr. 679). August, 2012 treating
records state that Plaintiff did not exhibit any unusual behaviors (Tr. 628-629).
While
Plaintiff contends that Dr. DeLoach did not have benefit of the later records showing
abnormal MRI findings, the more recent records show that the imaging studies were made
in response to Plaintiff’s report of physical rather than psychological symptoms.
Likewise, the ALJ’s partial adoption of Dr. Caputo’s November, 2011 assessment
does not provide grounds for remand. Plaintiff faults the ALJ for adopting Dr. Caputo’s
opinion “[t]o the extent it is consistent with the assessed residual functional capacity” (Tr.
115). While Plaintiff argues that Dr. Caputo’s findings ought to have been adopted in full,
the ALJ permissibly concluded that Dr. Caputo’s finding that “impulsive behaviors” would
preclude gainful employment (Tr. 115) were contradicted by other portions of the record
showing that Plaintiff’s disinterest in finding a job, rather than psychological problems, were
responsible for his spotty employment history. The ALJ cited a vocational counselor’s
finding that Plaintiff was not motivated to find work (Tr. 114) and December, 2005 records
stating that Plaintiff rejected a job offer because “he believed it was in his best interests to
be selective” (Tr. 114). As noted above, Plaintiff’s plan to use his future disability funds to
finance a business startup stands at odds with his claim that he was disabled from all work.
Because the evidence supporting a disability finding is not “overwhelming,” a remand
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for an award of benefits is not appropriate. Faucher v. Secretary of Health and Human
Services, 17 F.3d 171, 176 (6th Cir.1994). The Court notes however that while the
psychological treating records do not justify a remand for benefits, the ALJ is directed to
consider whether the present records, along with newer evidence of possible physical
restriction, support a disability finding.
CONCLUSION
For these reasons, Defendant’s Motion to Remand [Docket #21] is GRANTED,
remanding the case for further administrative proceedings consistent with this Opinion.
Plaintiff’s Motion for Summary Judgment [Docket #16] is DENIED as to the request for an
award of benefits and DENIED as MOOT as to the request to remand for further
administrative proceedings.
IT IS SO ORDERED.
/s/R. Steven Whalen
R. STEVEN WHALEN
UNITED STATES MAGISTRATE JUDGE
Dated: September 30, 2015
Certificate of Service
I certify that a copy of this document was served upon parties of record on
September 30, 2015 via electronic or postal mail.
/s/C. Ciesla
CASE MANAGER
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