Henry v. Commissioner of Social Security
Filing
25
Memorandum Opinion and Order affirming the Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli on 9/23/2013. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JAMES B. HENRY,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
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CASE NO. 1:12-cv-2374
MAGISTRATE JUDGE
NANCY A. VECCHIARELLI
MEMORANDUM OF OPINION
This case is before the magistrate judge by consent. Plaintiff, James B. Henry
(“Plaintiff”), challenges the final decision of the Commissioner of Social Security
(“Commissioner”) denying Henry’s application for Supplemental Security Income (“SSI”)
under Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423, 1381(a). This court
has jurisdiction pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, the
Commissioner’s final decision is AFFIRMED.
I. Procedural History
On August 10, 2009, Plaintiff filed an application for SSI. (Tr. 17.) His
application was denied initially and upon reconsideration. (Id.) Plaintiff timely
requested an administrative hearing, and, on June 28, 2011, an administrative law
judge (“ALJ”), conducted an administrative hearing. (Id.) Plaintiff was represented by
counsel and testified on his own behalf at the hearing. (Id.) A vocational expert (“VE”)
also testified. (Id.) On July 20, 2011, the ALJ issued a decision in which she
determined that Plaintiff is not disabled. (Tr. 17-38.) Plaintiff requested a review of the
ALJ’s decision by the Appeals Council, and when the Appeals Council declined further
review on July 25, 2012, the ALJ’s decision became the final decision of the
Commissioner. (Tr. 1.)
On September 21, 2012, Plaintiff filed a complaint challenging the
Commissioner’s final decision. (Doc. No. 1) The parties have completed briefing in this
case. (Doc. Nos. 19, 23, 24.) Plaintiff alleges that, for various reasons, substantial
evidence does not support the ALJ’s decision in this case.
II. Evidence
A.
Personal and Vocational Evidence
Plaintiff was born on November 20, 1987 and was 21 years old at the time of his
application. (Tr. 37.) He completed high school, and had past relevant work as a stock
clerk. (Id.)
B.
Medical Evidence
1.
Plaintiff’s Reports to the Agency
In a September 15, 2009 Adult Disability Report, Plaintiff reported that he
“severe depression,” and “trouble getting along with other people.” (Tr. 200.) He
complained of difficulty concentrating and following directions, as well as “poor reading
and writing skills.” (Id.)
In a September 21, 2009 Adult Function Report, Plaintiff stated that he lived in
an apartment with his girlfriend. (Tr. 209.) He indicated that, during the day, he
watched television, played with his dog, ran errands, relaxed and bathed. (Tr. 210.)
With the assistance of his girlfriend, he fed and watered his pets, which included a
2
lizard, a turtle, a dog and an unspecified number of cats. (Id.) Plaintiff reported that he
could attend to his personal needs without difficulty. (Tr. 211.) Plaintiff reported that he
required reminders to brush his teeth and take his medication, and that his girlfriend
helped him prepare meals. (Tr. 211) He mowed the lawn and cleaned, but indicated
that, “I get down [and] don’t wanna do it so people have to help me do it.” (Tr. 212.)
Plaintiff stated that he drove a car and grocery shopped, and was able to go out alone.
(Id.) He was able to count change, but could not pay bills, handle a savings account or
use a checkbook or money orders. (Tr. 213.) He regularly watched television with his
family. (Id.) According to Plaintiff, he could pay attention for five minutes “or more,” did
not finish what he started, had problems following written instructions because he had
“trouble remembering” and could not follow spoken instructions because he had
“problem[s] remembering and paying a[ttention].” (Tr. 214.)
2.
Plaintiff’s Education Records
Plaintiff’s school records reflect that, in April 2002, a Weschler Intelligence Scale
for Children, Third Edition (“WISC-III”), revealed that Plaintiff had a verbal IQ of 80, a
performance IQ of 102 and a full-scale IQ of 89. (Tr. 225.) Plaintiff was the subject of
an individualized education plan (“IEP”) and, in May 2005, a school psychologist opined
that Plaintiff’s “behavior significantly hinders his academic functioning,” but observed
that Plaintiff “appears to continue to show general intelligence within the average
range.” (Tr. 225, 226.) A May 2005 IEP re-evaluation report indicated that Plaintiff
“needs to develop social skills to interact appropriately with peers and adults.” (Tr.
218.) The school psychologist noted that Plaintiff had been diagnosed with attention
3
deficit hyperactivity disorder (“ADHD”) and depression, for which he was taking
medication. (Tr. 230.) The psychologist noted that Plaintiff “often responds negatively
when asked to do his work. He can get very angry and will not cooperate with
reasonable teacher/staff requests.” (Id.) The re-evaluation team determined that
Plaintiff had “significant emotional/behavioral problems which makes [sic] him unable to
participate in regular classes and in the general curriculum. He continues to be a youth
with a disability.” (Tr. 232.)
During his twelfth grade year, Plaintiff was home-schooled and received C’s in all
subjects except Art, in which he received an A. (Tr. 217, 233.) In prior years of high
school, he had received varied marks, ranging from C’s and D’s in math and English to
B’s in science and social studies, and A’s in physical education. (Tr. 233.)
3.
Treatments and Examinations
On December 3, 2008, Plaintiff sought assistance at the Center for Individual
and Family Services (“CIFS”) in Mansfield, Ohio, where he was examined by a social
worker. (Tr. 358.) He reported feeling chronically depressed and angry, with angry
outbursts. (Tr. 358.) Plaintiff indicated that he used marijuana – as recently as the day
before – and that he drank alcohol. (Tr. 362.) Plaintiff grew agitated during the
examination because he was “bored.” (Tr. 363.) The social worker noted that Plaintiff
was unable to sit still during the examination. (Tr. 364.) The social worker diagnosed
Plaintiff with mood disorder, ADHD, cannabis abuse and personality disorder. (Tr. 367.)
The social worker recommended counseling. (Tr. 368.) With respect to Plaintiff’s
mental status, the social worker noted that his thought processes were logical, his
mood was angry and his affect was inappropriate. (Tr. 370.)
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On June 22, 2009, psychiatrist Rashad Pervez, M.D., examined Plaintiff. (Tr.
356-57.) Dr. Pervez noted that Plaintiff had a history of bipolar disorder and ADHD.
(Tr. 356.) Plaintiff reported feeling depressed, lack of motivation and appetite, and
difficulty sleeping. (Id.) Plaintiff reported working and having a girlfriend for the prior
nine months. (Id.) Dr. Pervez described Plaintiff as cooperative with decreased
psychomotor activity, and characterized his responses to questions as “slow and low in
volume” and “coming with pauses.” (Tr. 357.) Dr. Pervez opined that Plaintiff had fair
concentration, memory, insight and judgment. (Id.) He diagnosed Plaintiff with bipolar
disorder and ADHD, and prescribed Depakote, Remeron and Concerta. (Id.)
On October 7, 2009, Dr. Pervez completed a mental functional capacity
assessment for the Richland County Department of Jobs and Family Services. (Tr.
424-25.) He assigned Plaintiff moderate limitations in the ability to: understand and
remember detailed instructions; carry out detailed instructions; maintain attention and
concentration for extended periods; sustain an ordinary routine without special
supervision; work in coordination with or proximity to others without being distracted by
them; make simple, work-related decisions; accept instructions and respond
appropriately to criticism from supervisors; get along with coworkers or peers without
distracting them or exhibiting behavioral extremes; maintain socially appropriate
behavior and adhere to basic standards of neatness and cleanliness; respond
appropriately to changes in the work setting; and be aware of normal hazards and take
appropriate precautions. (Tr. 424.) He concluded that Plaintiff was “not significantly
limited” in his ability to: remember locations and work-like procedures; understand and
remember very short and simple instructions; carry out very short and simple
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instructions; perform activities within a schedule, maintain regular attendance, and be
punctual within customary tolerances; and complete a normal workday and workweek
without interruptions from psychologically-based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. (Id.)
During a November 10, 2009 meeting with the Richland County Bureau of
Vocational Rehabilitation (“BVR”), Plaintiff reported that he had gotten along well with
his coworkers at his previous job operating a forklift at School Specialty. (Tr. 539.)
During the meeting, Plaintiff “became angry with the [vocational counselor] and
mumbled some inappropriate comments including some profane language,” and
“became agitated, though he kept his actions under control.” (Tr. 540.)
On November 20, 2009, Richard Litwin, Ph.D., examined Plaintiff at the request
of the BVR. (Tr. 444-49.) He noted that Plaintiff was living with his girlfriend “of the
past year.” (Tr. 444.) The Weschler Adult Intelligence Scale, Third Edition, (“WAISCIII”) revealed a verbal IQ of 63, a performance IQ of 68 and a full-scale IQ of 62, which
Dr. Litwin characterized as being in the mild mental retardation range. (Tr. 445.) Dr.
Litwin noted that it was “unclear” why there was such a disparity between those scores
and Plaintiff’s prior IQ test scores. (Id.) The Woodcock Johnson Tests of Achievement,
Third Edition, (“Woodcock Johnson”) revealed that Plaintiff achieved scores placing him
at a second-grade level in spelling, word recognition, math, and reading
comprehension; a first-grade level in oral comprehension; and below a first-grade level
in picture vocabulary, reading rate, reading accuracy and comprehension. (Id.) Plaintiff
demonstrated a severe impairment in the controlled oral word fluency test. (Id.) Dr.
Litwin described Plaintiff as “essentially a non-reader with profound phonological
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dyslexia,” who was able to read or spell only common two or three syllable words. (Id.)
Dr. Litwin noted Plaintiff’s complaints of depression, auditory hallucinations and
concern that “there is something wrong with his mind.” (Tr. 446-47.) Plaintiff reported
being self-conscious, mistrustful of others and uneasy in crowds. (Tr. 447.) Dr. Litwin
diagnosed Plaintiff with bipolar disorder, mixed, severe with psychotic features; reading
disorder; mathematics disorder; expressive language disorder; and ADHD-combined
type, as well as mild mental retardation with depressive personality traits. (Id.)
Dr. Litwin opined that Plaintiff would be unable to make change or work with
money in the workplace. (Id.) He noted that Plaintiff had trouble sustaining attention
and retaining information in the future, and would likely demonstrate rapid forgetting
and very poor organizational skills. (Tr. 447-48.) According to Dr. Litwin, if Plaintiff
made “good progress,” he would be best suited for “working outdoors or doing very
simple, entry-level manual work. [Plaintiff] appears best suited for short term training
with extensive job coaching and mentoring. He will need a rigid daily routine and strong
use of organizational strategies to overcome deficits due to ADHA and weakness in
memory.” (Tr. 449.)
In April 2010, staff at the Ohio Department of Mental Retardation and
Developmental Disabilities (“MRDD”) assessed whether Plaintiff was eligible to receive
services from that agency. (Tr. 492-512.) The evaluator, Angie Mollette, whose
credentials are not included in the record, determined that Plaintiff had significant
functional limitations in receptive and expressive language, self care, self direction,
capacity for independent living, learning and economic self-sufficiency, and, thus was
eligible for services through the MRDD. (Tr. 493.) Ms. Mollette noted that Plaintiff did
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not talk to strangers or initiate conversations, and required reminders to brush his teeth,
shave and take his medication. (Tr. 499-502.) She noted that Plaintiff initiated
activities, such as fishing, with his brother and girlfriend, and was able to maintain
meaningful relationships. (Tr. 502.) Ms. Mollette indicated that Plaintiff “can
independently make decisions,” but does not “follow through w[ith] decisions. He has a
short attention span [and] can be easily inpatient [sic] or easily distracted.” (Tr. 503.)
She noted that Plaintiff took longer than two minutes to read a 103-word passage,
opining that he read at “around a first grade level.” (Tr. 508.) Plaintiff answered all of
the questions about the contents of the document incorrectly. (Id.)
On May 5, 2010, Dr. Pervez examined Plaintiff, noting Plaintiff’s report that he
was living with a girlfriend despite having ended the relationship some weeks prior. (Tr.
475.) Plaintiff was lethargic and complained of difficulty sleeping. (Id.) Plaintiff stated
that he went out with his siblings and other people. (Id.) Dr. Pervez noted that Plaintiff
was irritable and arguing with his mother, who attended the examination with Plaintiff.
(Id.)
On January 14, 2011, Plaintiff a counselor at CIFS noted Plaintiff’s report that he
had recently left a job interview because he felt anxious. (Tr. 483.) On April 21, 2011,
Plaintiff reported to a counselor that he was living with his girlfriend, who had children,
and that he enjoyed being around her children. (Tr. 482.)
4.
Agency Reports
on October 1, 2009, agency consulting psychologist Paul Tangeman, Ph.D.,
completed a mental residual functional capacity (“RFC”) assessment and a psychiatric
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review technique. (Tr. 405-08, 409-22.) Dr. Tangeman opined that Plaintiff was
moderately limited in his ability to: understand and remember detailed instructions;
carry out detailed instructions; maintain attention and concentration for extended
periods; work in coordination with others without being distracted by them; accept
instructions and respond appropriately to criticism from supervisors; get along with
coworkers or peers without distracting them or exhibiting behavioral extremes; and
respond appropriately to changes in the work setting. (Tr. 405-06.) Dr. Tangeman
opined that Plaintiff’s allegations were “partially credible,” noting that, although Plaintiff
reported problems with concentration and attention, he was “completing tasks which
require[d] . . . attention span [of] 1-2 hours” and that another psychiatrist had reported
that Plaintiff had fair concentration. (Tr. 408.) Dr. Tangeman opined that Plaintiff was
“capable of simple, repetitive tasks which do not require him to have more than
occasional contact with public or to meet strict production quota.” (Id.) In the
psychiatric review technique, Dr. Tangeman assigned Plaintiff mild limitations in
activities of daily living and maintaining social functioning; and moderate limitations in
maintaining concentration, persistence and pace. (Tr. 419.)
On February 24, 2010, agency consulting psychiatrist David Demuth, M.D.,
performed a mental RFC assessment and psychiatric review technique. (Tr. 450-63,
464-67.) Dr. Demuth assigned Plaintiff moderate limitations in activities of daily living;
maintaining social functioning; and maintaining concentration, persistence and pace.
(Tr. 460.) He opined that Plaintiff was moderately limited in his ability to understand
and remember detailed instructions; carry out detailed instructions; maintain attention
and concentration for extended periods; sustain an ordinary routine without special
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supervision; work in coordination with or proximity to others without being distracted by
them; complete a normal workday and workweek without interruptions from
psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods; interact appropriately with the general
public; accept instructions and respond appropriately to criticism from supervisors; get
along with coworkers or peers without distracting them or exhibiting behavioral
extremes; respond appropriately to changes in the work setting; and set realistic goals
or make plans independently of others. (Tr. .464-65.)
Dr. Demuth opined that, with respect to understanding and memory, Plaintiff
could “do moderately detailed tasks only.” (Tr. 467.) With respect to sustained
concentration and persistence, he concluded that Plaintiff’s concentration was
“moderately reduced for concentration,” that Plaintiff required reduced stress and could
“carry out tasks in situations where duties are relatively static and changes can be
explained.” (Id..) According to Dr. Demuth, Plaintiff was capable of “tasks that do not
require independent prioritization or more th[a]n daily planning.” (Id.) With respect to
social interaction, Dr. Demuth opined that Plaintiff “works best in small groups or alone”
and could “sustain tasks as long as these involve only occasional and superficial
interaction with others. He cannot work in situations where he needs to resolve
conflicts or maintain a friendly and persuasive demeanor.” (Id.) Finally, Dr. Demuth
opined that Plaintiff was “dependent and needs structure.” (Id.)
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C.
Hearing Testimony
1.
Plaintiff’s Testimony
At his June 28, 2011 administrative hearing, Plaintiff testified as follows:
He generally lived with his mother and stepfather, although he had lived with two
different girlfriends for a few months at a time. (Tr. 47.) He had attended special
education classes since first grade. (Tr. 48-49.) Plaintiff was exempted from taking the
proficiency tests required to graduate from high school. (Tr. 49.) He had received oneon-one tutoring while in school. (Id.) Plaintiff did not get along well with other students
because he became “agitated very easy” and would “say things I shouldn’t say.” (Tr.
50.)
Plaintiff had worked at School Specialties, stocking school products, for two
months. (Tr. 51.) His older brother, who worked there when he was home from
college, helped Plaintiff get a job there. (Id.) Plaintiff had problems following directions,
staying on task and arriving to work on time. (Tr. 51-52.) Plaintiff quit his job at School
Specialties because he had only one point left in its progressive disciplinary system
before he would be fired. (Tr. 52.) Thereafter, he drove a service truck for a towing
company. (Tr. 53.) He worked at that job for two weeks, but was fired for making too
many mistakes. (Tr. 54.)
Plaintiff had problems following directions because he tended to forget what he
was supposed to do. (Tr. 55.) He had to be reminded to complete tasks like washing
the dishes, brushing his teeth or taking out the garbage. (Id.) Plaintiff had to be
reminded to take his medication. (Tr. 68.) His mother, stepfather and girlfriend
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reminded him to do things. (Tr. 55.) Plaintiff was easily distracted from tasks by noises
or other people. (Id.) Plaintiff generally got along well with his family, but did not get
along with people he did not know. (Tr. 56.) He saw his girlfriend a few times each
week. (Id.)
Plaintiff watched action movies on television, but generally had problems
following the story line. (Tr. 56.) He had difficulty staying asleep at night. (Tr. 56-57.)
Plaintiff did not read for enjoyment. (Tr. 57.) He felt that he read at about a fourth or
fifth grade level, and could only read small words. (Id.) He did not read documents
sent to him regarding his benefits applications, and “probably wouldn’t understand it if I
could read it.” (Id.) In response to the ALJ’s questions regarding how Plaintiff was able
to obtain a driver’s license, Plaintiff explained that he took the test on the computer, and
read some of the questions with assistance from the staff at the testing location. (Tr.
57-58.) The others, he read himself. (Tr. 58.)
Plaintiff cooked food in the microwave, but burned food when he tried cooking on
the stove. (Tr. 59.) He needed assistance doing laundry because he could not
remember how to operate the machine. (Id..) He seldom washed dishes because he
“didn’t get them very clean.” (Id.) He required assistance with grocery shopping, or
else he would only buy junk food. (Tr. 59-60.)
Plaintiff had lived with a previous girlfriend, but they broke up because they
argued about “simple stuff” and “just didn’t really click.” (Tr. 64-65.) He dated her for
about six to eight months. (Tr. 66.) At the time of the hearing, he had been dating his
then-current girlfriend for nine months. (Id.) She had two children; one was seven and
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the other was four. (Id.) Plaintiff got along well with them. (Id.)
Plaintiff played video games on his game console for an hour or two each day.
(Tr. 72-73.) He could complete the easier levels of the games, but “a lot of times [he]
got frustrated and just quit.” (Tr. 72.)
2.
Vocational Expert’s Testimony
The ALJ described the following hypothetical individual to the VE:
Assume that we have a younger individual with a high
school education and [Plaintiff’s past work]. Assume that
the person has no exertional restrictions but that the person
would be limited to performing simple, routine, repetitious
work with one- or two- step instructions; the person would be
limited to a supervised low-stress environment requiring few
decisions; and the person would be limited to only
occasional interaction with the public, coworkers and
supervisors.
(Tr. 76-77.) The VE opined that the hypothetical individual could perform Plaintiff’s past
relevant work as a stock person, “depending on the situation of the employer.” (Tr. 77.)
The VE also opined that the hypothetical individual could perform work as a janitor
(Dictionary of Occupational Titles (“DOT”) no. 323.687-014), an unskilled production
worker (DOT no. 726.687-042), and a hand packer (DOT no. 920.587-018). (Tr. 78,
81.)
During examination by Plaintiff’s counsel, the VE testified regarding how he had
determined that the positions he identified were low stress:
Generally speaking . . . the simpler a job is, the less
opportunity there is for complications in the job, the less
judgment is required, the less stress there is on the job.
There may be some of those jobs that have production
requirements in and of themselves that would create stress,
but generally speaking the lower level the job is in terms of
skill required, the less stress there on the position,
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particularly in those jobs where it’s just a one- or two-step
position.
(Tr. 85.) The VE conceded that he could not opine regarding how many of the positions
he identified would have a production demand or quota, but testified that, using a
“standard bell curve,” with a normal distribution, “then you’re looking at maybe [twelve
and one-half] or so percent of job[s] at the end of the bell curve that would be high
stress.” (Tr. 86.)
Plaintiff’s counsel asked the VE whether someone with the limitations described
in Dr. Demuth’s mental RFC assessment would be capable of working. (Tr. 86-87.)
The VE responded that, while one of the limitations by itself would not be sufficient to
preclude work, the cumulative effect of all of the limitations would preclude an individual
from retaining employment for an extended period. (Tr. 87.)
III. Standard for Disability
A claimant is entitled to receive benefits under the Social Security Act when he
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when he cannot perform “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.” 20 C.F.R. § 416.905(a).
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
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that he is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that he suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent him from doing his
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent him from doing his past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV. Summary of Commissioner’s Decision
In her July 20, 2011 decision, the ALJ made the following findings of fact and
conclusions of law:
1.
Plaintiff has not engaged in substantial gainful activity since August 10,
2009, the application date.
2.
Plaintiff has the following severe impairments: bipolar disorder; learning
delays including dyslexia and expressive language, reading and math
disorders; cognitive disorder; borderline intellectual functioning; attention
deficit hyperactivity disorder; adjustment disorder with disturbance of
emotion and conduct; depressive disorder; personality disorder; and
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polysubstance abuse including marijuana and alcohol.
3.
Plaintiff does not have an impairment or combination of impairments that
meets or medically equals one of the listed impairments in 20 CFR Part
404, Subpart P, Appendix 1.
4.
Plaintiff has the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional limitations:
limited to performing simple, routine repetitious work with 1 or 2 step
instructions; limited to a supervised, low-stress environment requiring few
decisions; and limited to only occasional interaction with the public, coworkers and supervisors.
5.
Plaintiff is unable to perform any past relevant work.
6.
Plaintiff was born on November 20, 1987 and was 21 years old, which is
defined as a younger individual age 18-49, on the date the application
was filed.
8.
Plaintiff has at least a high school education and is able to communicate
in English.
9.
Transferability of job skills is not material to the determination of disability
because the claimant’s past relevant work is unskilled.
10.
Considering Plaintiff’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform.
11.
Plaintiff has not been under a disability, as defined in the Social Security
Act, since August 10, 2009, the date the application was filed.
(Tr. at 19-38 (citations omitted).)
V. Law and Analysis
A.
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
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(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm’r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner’s conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
Plaintiff’s Arguments
Plaintiff argues that, for various reasons, substantial evidence does not support
either the ALJ’s determination of Plaintiff’s RFC or the ALJ’s conclusion that Plaintiff
was capable of performing work that was available in the national economy.
1.
Whether the RFC Was Inconsistent On its Face
Plaintiff argues that the ALJ’s finding of Plaintiff’s RFC was inconsistent on its
face because the RFC requires a supervised environment, but also limits Plaintiff to
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only occasional contact with supervisors and coworkers. According to Plaintiff, a
restriction that limits him to only occasional contact precludes him from working under
supervision.
This argument lacks merit. In describing the hypothetical individual whose
restrictions the ALJ ultimately adopted as Plaintiff’s RFC, the ALJ included both
restrictions at issue here. In response, the VE identified several positions that satisfied
both restrictions, and gave no indication that the two were contradictory or otherwise
irreconcilable. Clearly, the VE found no contradiction in characterizing a position as
supervised when that position includes only occasional contact with supervisors.
Moreover, although the two limitations at issue could be considered contradictory, such
a finding is not required as the two limitations also can be reconciled. The limitation to
occasional interaction does not entirely preclude contact with supervisors. Rather,
“‘occasionally’” means occurring from very little up to one-third of the time.” S.S.R. 8310, 1983 WL 31251, *5 (S.S.A. 1983). Given this, the VE could have determined that a
position qualifies as supervised where a worker spends up to one-third of the workday
in contact with his supervisor. Plaintiff points to nothing in the record suggesting that
the VE’s opinion or testimony on this issue was unfounded or otherwise inaccurate.
Accordingly, substantial evidence supports the ALJ’s determination on this point.1
1
Plaintiff notes that, in testing performed by Dr. Litwin, Plaintiff
demonstrated “severe inattention on the Digit Vigilance Test” (tr. 446), and
argues that “[a] person with severe inattention is likely to need special
supervision as indicated by Dr. Demuth.” (Plaintiff’s Brief (“Pl. Br.”) at 14.)
This conclusory assertion, unsupported by medical opinion in the record,
is not sufficient to demonstrate that ALJ erred in this context.
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2.
Whether the RFC Account for Plaintiff’s Reading and Math Disorders
The ALJ determined that Plaintiff’s severe impairments included reading and
math disorders. (Tr. 19.) Plaintiff argues that the ALJ failed to account for these
disorders in determining Plaintiff’s RFC. The Commissioner contends the opposite,
specifically arguing that the restriction to “simple, routine, repetitious work with 1 or 2
step instructions” adequately accounted for Plaintiff’s reading and math disorders.
Plaintiff’s argument is not well taken. Although the ALJ’s restrictions did not
explicitly address Plaintiff’s reading and math abilities, the RFC restricted Plaintiff to
simple, routine, repetitious work that involved only one or two steps. (Tr. 25.) Other
than asserting the conclusion that the RFC was insufficient to address these limitations,
Plaintiff does not explain how the non-exertional restrictions failed to address Plaintiff’s
reading and math disorders. Absent further explanation, this argument lacks merit.
Plaintiff contends that the Commissioner’s argument constitutes improper posthoc rationalization for the ALJ’s decision. This is not correct. This is not a situation
where the ALJ cited to one set of limitations as the basis for including the nonexertional restrictions and the Commissioner asserts that those restrictions address
additional limitations. Rather, the ALJ recognized that Plaintiff had reading and math
disorders and, thus, it is reasonable to conclude that he intended that the nonexertional limitations address those disorders. Accordingly, the Commissioner’s
argument is not improper post-hoc rationalization.
3.
Strict Production Quotas
In his decision, the ALJ acknowledged Dr. Tangeman’s opinion that Plaintiff
19
should be restricted to working in jobs without strict production quotas. (Tr. 31.)
However, he did not include that specific restriction in Plaintiff’s RFC, opining that other
restrictions addressed Plaintiff’s limitation in this area:
Notably, while the undersigned did not specifically prohibit
strict quotas in the [RFC], [the VE] testified that most jobs
described in [the RFC] would not result in stress. Thus, the
undersigned concluded that the [RFC] generally, but not
verbatim, accounted for [Plaintiff’s] need to avoid strict
quotas.
(Id.)
Plaintiff argues that substantial evidence does not support the ALJ’s reasons for
omitting Dr. Tangeman’s prohibition against strict production quotas in Plaintiff’s RFC
because the VE’s testimony on this issue was not reliable. The Commissioner
responds that such a restriction was not necessary because the VE identified simple,
routine jobs, the majority of which – according to the VE – did not have production
quotas.
Plaintiff’s argument is not well taken. While the ALJ’s hypothetical could have
been improved, it is not a material error. The ALJ asked the VE to assume “low stress
jobs” and assumed this would account for Plaintiff’s need to avoid strict production
quotas. This Court agrees – as the point of “no production quotas” is to avoid the
stress of jobs with a required pace. In fact, in many ways, the limitation of a “low stress”
job is a broader category of jobs than those with no production quotas.
Moreover, the testimony, taken as a whole and in context, does not support
Plaintiff’s allegations that the VE did not know whether most of the jobs involved
production quotas. The VE clearly testified that simple jobs generally do not have
20
production quotas or stresses. It is immaterial that the VE could not identify a specific
number of jobs that may deviate from that general principle.
4.
The ALJ’s Assessment of Medical Opinion Evidence
Plaintiff contends that the ALJ erred in various ways in assessing the opinions of
state agency consultants Drs. Tangeman and Demuth, and treating physician Dr.
Pervez.
A.
Opinion that Plaintiff Was Capable of Work
In her decision, the ALJ granted “significant weight . . . to [the] opinions of state
examiners, Dr. Tangeman and Dr. Demuth, both of whom found [Plaintiff] capable of
work.” (Tr. 34.) Plaintiff contends that neither state consultant opined that Plaintiff was
capable of working, but, rather, assigned him restrictions that, according to the VE,
would preclude work. Plaintiff asserts that this is an error that requires remand.
This argument lacks merit. As a preliminary matter, the ALJ’s assessment of the
opinions of Drs. Tangeman and Demuth is not erroneous. Rather, Dr. Tangeman
opined that Plaintiff was “capable of simple, repetitive tasks that do not require him to
have more than occasional contact with [the] public or meet strict production quota[s].”
(Tr. 408.) Dr. Demuth opined that Plaintiff was capable of performing tasks that were
moderately detailed, with static duties and that did not require independent prioritization
or more than daily planning. (Tr. 467.) Although neither consultant used the phrase
“capable of work” to describe Plaintiff, each consultant described tasks that Plaintiff
would be capable of performing. Although the ALJ may have broadly characterized
their opinions, this characterization is not so inaccurate as to constitute error.
21
Further, Plaintiff fails to explain how, if the ALJ did err in describing the
consultants’ opinions, that error prejudiced him. The record does not support any such
claim, particularly as the ALJ did not depend on her characterization of the state
consultants’ opinions to avoid her obligation to determine the ultimate issue of whether
Plaintiff was disabled. Rather, the ALJ discussed their opinions, along with other
evidence in the record, as evidence on which she had relied in determining that issue,
and included in the RFC restrictions that addressed the limitations assigned by the
consultants.
B.
Circular Reasoning
In her decision, in assigning significant weight to the opinions of Drs. Tangeman
and Demuth, the ALJ noted that their opinions were “supportive of the [RFC] above and
of the finding below of not disabled, and thus afforded significant weight.” (Tr. 35.)
Plaintiff contends that the ALJ erred in assigning significant weight to medical opinions
because they supported her conclusion regarding the RFC and the ultimate disposition
fo the case. Plaintiff argues that the ALJ relied on circular reasoning by determining the
weight to afford a particular opinion based on the extent to which it was consistent with
her conclusions.
Had the ALJ concluded her analysis of the state consultants’ opinions with the
statement highlighted by Plaintiff, this argument might have some merit. However,
Plaintiff again singles out and challenges one isolated phrase of the ALJ’s opinion
without addressing the context of the ALJ’s entire analysis of the issue. After assigning
significant weight to the opinions in the sentence at issue here, the ALJ continued:
Both opinions were well supported by the evidence,
22
including [Plaintiff’s] admission that he had friends and that
he could perform his activities of daily living. In addition,
[Plaintiff] testified that he had a girlfriend and got along well
with his girlfriend’s children. Moreover, [Plaintiff’s]
psychiatrist’s assessment generally supported moderate
deficits consistent with [the RFC] held above and with the
state examiners’ conclusions. In sume, these opinions were
consistent with the record as a whole and well-supported by
the medical evidence, and thus afforded significant weight.
(Tr. 35.) Accordingly, although, when considered in isolation, the ALJ’s statement could
suggest circular reasoning, a review of the ALJ’s entire discussion of this issue reveals
that she did not assign weight to these opinions based on the extent to which they were
consistent with her conclusions. This argument lacks merit.
C.
Evidence in Support of the Medical Opinions
Next, Plaintiff contends that the ALJ mischaracterized some of the evidence she
cited to support her assessment of the consultants’ opinions. Specifically, Plaintiff
asserts that: (1) Exhibit 3E, to which the ALJ cited in support of her statement that
Plaintiff had friends, demonstrated only that Plaintiff lived his girlfriend; (2) Plaintiff did
not ever testify that he had friends; (3) Plaintiff had broken up with one girlfriend after
six to eight months because they didn’t get along and argued about chores, and, at the
time of his hearing, had been dating his then-current girlfriend for nine months; and
(4) there was evidence in the record that Plaintiff required reminders to perform chores
and brush his teeth, burned food when he tried to cook more than simple meals,
required assistance with shopping in order to avoid buying junk food, did not get along
well with others, was easily distracted, and had never paid bills or handled a bank
account.
With respect to his first three arguments, Plaintiff fails to explain how, to the
23
extent the ALJ erred in assessing the evidence, these errors caused him prejudice.
Although the evidence cited by the ALJ does not explicitly support her statement that
Henry had friends other than his girlfriend, Plaintiff does not explain how his RFC would
have been different had the ALJ properly described the evidence, particularly in light of
the fact that the ALJ limited Plaintiff to occasional interaction with others. Similarly,
Plaintiff does not explain how his dating and relationship history was significant with
respect to this RFC. Accordingly, these arguments clearly lack merit.
There is also no merit to Plaintiff’s argument that the ALJ ignored evidence that
Plaintiff was limited in performing certain activities of daily living, such as chores and
shopping. The ALJ discussed the evidence regarding this issue as follows:
In terms of his activities of daily living, [Plaintiff’s] reports
suggested little limitation. Specifically, [Plaintiff] testified that
he prepared simple meals, helped with the dishes, took out
the trash and took his medications, both with reminders,
managed his personal care needs, shopped with some
assistance and drove a vehicle independently. [Plainitff] then
asserted that he was unsure of how to do laundry, forgot to
brush his teeth and had poor eating habits. Still, [Plaintiff]
testified that he watched TV, played with the dog and ran
errands. In addition, [Plaintiff] reported that he played video
games, spending hours at the Playstation each day. The
record further noted that [Plaintiff] helped care for his pets.
Moreover, while [Plaintiff] testified that he lived with his
parents currently, he admitted that he had lived with a
previous girlfriend for many months. Overall, while the
undersigned recognized that [Plaintiff] needed reminders to
perform certain tasks and alleged being unable to do his
own laundry, [Plaintiff’s] overall reports suggested mainly
intact and broad activities of daily living with very little
limitation. Thus, only a mild limitation was afforded in this
domain, consistent with the finding of one state examiner.
(Tr. 26.) Although Plaintiff’s description of his daily activities may contain slightly
greater restrictions than those imposed by the ALJ in her determination of Plaintiff’s
24
RFC, Plaintiff does not explain how these differences require additional or more
substantial limitations in his RFC.
D.
Opinion of Dr. Pervez
In her decision, the ALJ afforded “some weight” to the opinion of Dr. Pervez,
noting that it was not entirely consistent with the record:
Some weight was afforded to the opinion of treating
psychiatrist Dr. Pervez. Dr. Pervez noted mainly moderate
limitations in multiple areas, including the ability to: maintain
attention and concentration for extended periods, to sustain
an ordinary routine without special supervision, to work in
coordination or proximity to other[s] without being distracted,
to make simple work-related decisions, to accept instructions
and respond appropriately to criticism from supervisors, to
get along with coworkers or peers without distracting them,
to respond appropriately to change and be aware of normal
hazards and to take precautions. While the undersigned
generally concurred that [Plaintiff] had moderate deficits in
concentration, persistence or pace and social functioning,
the two areas covered in the limitations above, the record
did not support all of the above deficits. Specifically,
[Plaintiff ] testified that he played video games for hours
daily, evidence of an ability to maintain attention and
concentration for extended periods.
In addition, the record lacked credible support for the
conclusion that [Plaintiff] required special supervision.
Rather, [Plaintiff] was able to drive a car independently, mow
the lawn and manage many other activities of daily living.
[Plaintiff] had also been able to live independently with his
girlfriend until they broke up, further suggestive of an ability
to function on his own. The undersigned concluded that
while [Plaintiff] required supervision given his noted deficits,
a restriction requiring special supervision was simply
unmerited. Moreover, [Plaintiff] was noted within the record
to be able to make decisions, thus discrediting Dr. Pervez’s
conclusion that [Plaintiff] would be moderately unable to
make simple work-related decisions. Furthermore, [Plaintiff]
reported that he had gotten along with his past co-workers.
Notably, Dr. Pervez found no significant limitations in
[Plaintiff’s] ability to maintain attendance and punctuality,
25
contrary to his testimony. Overall, Dr. Pervez’s assessment
was afforded some weight as it generally supported
moderate deficits in social functioning and concentration,
persistence or pace. Yet, as all conclusions were not fully
supported as discussed above, only some weight was
merited.
(Tr. 36.)
There is no dispute that Dr. Pervez was Plaintiff’s treating psychiatrist. An ALJ
must give the opinion of a treating source controlling weight if she finds the opinion
well-supported by medically acceptable clinical and laboratory diagnostic techniques
and not inconsistent with the other substantial evidence in the case record. Wilson v.
Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)) (internal quotes omitted). Conversely, a treating source’s opinion may
be given little weight if it is unsupported by sufficient clinical findings and is inconsistent
with the rest of the evidence. Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993).
If an ALJ decides to give a treating source’s opinion less than controlling weight, she
must give “good reasons” for doing so that are sufficiently specific to make clear to any
subsequent reviewers the weight given to the treating physician’s opinion and the
reasons for that weight. See Wilson, 378 F.3d at 544 (quoting S.S.R. 96-2p, 1996 WL
374188, at *5 (S.S.A.)).
Here, Plaintiff argues that substantial evidence does not support the ALJ’s
reasons for rejecting portions of Dr. Pervez’s opinion, for four reasons. First, Plaintiff
asserts that the ALJ exaggerated the significance of Plaintiff’s testimony that he played
video games. Specifically, Plaintiff notes that he testified that he played for one or two
hours each day, and usually became frustrated and quit. (Tr. 72-73.) He also notes
26
that, although Drs. Tangeman and Demuth also assigned Plaintiff moderate limitations
in maintaining attention and concentration (tr. 405-06, 464-65), the ALJ did not explicitly
reject this element of their opinions. To the extent that the ALJ may have overstated
the meaning of Plaintiff’s testimony regarding video games, Plaintiff again fails to
explain how that error caused him prejudice. Although the ALJ did not entirely accept
Dr. Pervez’s opinion regarding Plaintiff’s limitations in this context, she included
restrictions in Plaintiff’s RFC that addressed his limited ability to maintain attention and
concentration. Specifically, the ALJ limited Plaintiff to simple, routine, repetitious work
involving one or two-step instructions. Plaintiff does not explain how, if the ALJ had
accepted Dr. Pervez’s opinion regarding his limitations in this context, Plaintiff’s RFC
would have changed.
Second, Plaintiff argues that the record does not support the ALJ’s reasons for
rejecting Dr. Pervez’s opinion that Plaintiff required special supervision. Specifically,
Plaintiff points to evidence that Plaintiff lived with a girlfriend, and required assistance
with shopping, mowing, handling his finances, taking his medication and completing
chores. This argument lacks merit, as the ALJ’s characterization of the evidence was
not unreasonable. Evidence in the record revealed that, although he required
reminders and assistance with some tasks – such as taking his medication and
shopping – he was also able to complete other tasks without assistance – such as his
personal care, driving, cleaning and mowing the lawn. (Tr. 210-11, 212.) Further,
although there was evidence in the record that his girlfriend reminded him to perform, or
assisted him with, some tasks – such as brushing his teeth, feeding their pets and
preparing meals – there is no evidence in the record that her assistance rose to the
27
level of “special supervision.” Indeed, the ALJ could – and did – reasonably construe
the evidence that Plaintiff was able to maintain a live-in relationship with someone other
than family as supporting her conclusion that Plaintiff did not require special
supervision. Accordingly, this argument lacks merit.
Plaintiff’s third basis for challenging this portion of the ALJ’s decision arises out
of the ALJ’s rejection of Dr. Pervez’s opinion that Plaintiff “would be moderately unable
to make simple work-related decisions.” (Tr. 36.) In rejecting this portion of Dr.
Pervez’s opinion the ALJ cited to evidence that Plaintiff “was able to make decisions.”
(Id.) Plaintiff argues that the ALJ failed to consider all of the relevant evidence
regarding this issue. Specifically, Plaintiff notes that, in making this observation, the
ALJ was likely referring to the MRDD evaluator’s statement that Plaintiff was able to
“independently make decisions.” (Tr. 503.) Plaintiff points out that the remainder of the
evaluation reflected the evaluator’s opinion that, although Plaintiff was capable of
making decisions, he generally failed to follow through with them, was easily distracted
and did not learn from past mistakes. (Id.) Although Plaintiff accurately characterizes
the entirety of the MRDD evaluation on this point, he once again fails to explain how he
was prejudiced by any error by the ALJ. Plaintiff does not describe how the RFC in this
case would have changed had the ALJ accepted Dr. Pervez’s opinion that Plaintiff was
moderately limited in his ability to make simple work-related decisions. Plaintiff does
not explain how the limitation to simple, routine, repetitious work with one or two-step
instructions fails to address this limitation. Nor does he describe what additional or
different restrictions the ALJ would have included in the RFC had she accepted this
28
portion of Dr. Pervez’s opinion. Accordingly, this argument is not well taken.2
Plaintiff’s fourth argument on this issue arises out of the ALJ’s observation that
Plaintiff “reported that he had gotten along with his past co-workers.” (Tr. 36.) Plaintiff
contends that the significance of this observation is unclear, and asserts that it reflects
that the ALJ was inconsistent in her criticism of the medical opinions in this case. A
review of the record reveals that, in making this observation, the ALJ was likely rejecting
– or at least questioning – Dr. Pervez’s opinion that Plaintiff would have moderate
difficulties getting along with coworkers or peers without distracting them or exhibiting
behavioral extremes. (Tr. 424.) As with several of his other arguments in this context,
Plaintiff fails to explain how, if the ALJ erred in relying on Plaintiff’s own statement
regarding his ability to get along with co-workers (tr. 539), this error caused him
prejudice, particularly in light of the ALJ’s decision to restrict him to occasional
interaction with the public, coworkers and supervisors (tr. 25). Accordingly, this
argument lacks merit.
E.
Opinion of Dr. Demuth
In her decision, the ALJ noted that, during questioning by Plaintiff’s counsel, the
VE opined that an individual with all of the limitations assigned in Dr. Demuth’s mental
RFC assessment would be unable to work. (Tr. 32-33, 87.) However, the ALJ
determined that not all of Dr. Demuth’s conclusions were supported by the record:
2
Plaintiff also asserts that, because the findings of the MRDD evaluation
contradicted the ALJ’s determination of Plaintiff’s RFC, the ALJ was
required to explain her decision not to adopt those findings. However, in
her decision, the ALJ afforded the MRDD report “some weight” and
detailed multiple ways in which some of those conclusions contradicted
other evidence in the record. (Tr. 33-34.)
29
Yet, the undersigned observed that, like Dr. Pervez’s earlier
conclusions, only some of the above restrictions had support
within the record. Notably, Dr. Pervez, [Plaintiff’s] treating
psychiatrist, had found no significant deficits in [Plaintiff’s]
ability to complete a normal workday or workweek or to
interact with the public. . . . Furthermore, also as discussed
above, the record failed to establish a need for “special”
supervision. Thus, while Dr. Demuth’s opinion and
corresponding Psychiatric Review Technique Analysis (PR)
were generally consistent with the [RFC] and a finding of not
disabled, they were not accepted in totality. Thus, given that
some of Dr. Demuth’s conclusions lacked support or were
simply contradicted by other sources, this opinion was
afforded only some weight. Moreover, the conclusion of [the
VE] was not applicable, as the record did not establish
moderate deficits in all of the areas posed in the question by
counsel.
(Tr. 33.)
Where, as here, the ALJ declines to give controlling weight to a treating
physician’s opinion, the relevant regulation requires the ALJ to “explain in the decision
the weight given to the opinions of a State agency medical or psychological consultant
or other program physician, psychologist, or other medical specialist, as the [ALJ] must
do for any opinions from treating sources, nontreating sources, and other nonexamining
sources who do not work for us.” 20 C.F.R. § 404.1527(e)(2)(ii). Plaintiff contends that
substantial evidence does not support the ALJ’s reasons for rejecting Dr. Demuth’s
opinion that Plaintiff was moderately limited in his ability to complete a normal workday
and workweek without interruptions from psychologically based symptoms. Specifically,
Plaintiff points to evidence in the record that Plaintiff left a job interview because he
grew anxious, finished high school at home due to behavior problems, and grew
agitated during an interview with the BRV.
Although Plaintiff points to evidence in the record that supports Dr. Demuth’s
30
opinion that Plaintiff was moderately limited in his ability to complete a normal workday
and workweek, substantial evidence also supports the ALJ’s decision to reject that
opinion on this point. See . Ealy, 594 F.3d at 512 (“If the Commissioner’s decision id
based upon substantial evidence, we must affirm, even if substantial evidence exists in
the record supporting a different conclusion.”) Specifically, as noted by the ALJ, Dr.
Pervez opined that Plaintiff was not significantly limited in that area, or in his ability to
perform activities within a schedule, maintain regular attendance, and be punctual
within customary tolerances. (Tr. 424.)
Plaintiff argues that the ALJ erred in relying on Dr. Pervez’s opinion to discredit
Dr. Demuth’s opinion because she had previously discredited several aspects of Dr.
Pervez’s opinion. This argument lacks merit, as there is no legal authority requiring an
ALJ to reject or accept every facet of a medical source’s opinion merely because she
accepts or rejects one element of that opinion. Rather, an ALJ must base her
determination of a claimant’s RFC “upon consideration of all relevant evidence in the
case record.” S.S.R. 96-5p, Policy Interpretation, 1996 WL 374183 at *5 (S.S.A.).
Here, the ALJ identified reasons for rejecting certain portions of Dr. Pervez’s opinion,
and for accepting others. Nothing precluded her from relying on those portions of Dr.
Pervez’s opinions that she had not rejected to explain her decision not to adopt portions
of Dr. Demuth’s opinion.
F.
Dr. Tangeman’s Opinion
In her decision, the ALJ assigned “significant weight” to Dr. Tangeman’s opinion,
noting that it was “well supported by [Plaintiff’s] intact and broad range of activities of
daily living.” (Tr. 31.) Plaintiff argues that the ALJ erred in assigning this weight to Dr.
31
Tangeman’s conclusions, and points to evidence in the record that Plaintiff required
assistance with activities such as cooking, shopping, laundry and mowing the lawn, and
that he required reminders to brush his teeth and take his medications. Plaintiff also
contends that “Dr. Tangeman had less information available to him than Dr. Demuth,”
because Dr. Demuth “had the benefit of Dr. Pervez’s opinion as the treating
psychiatrist.” (Pl. Br. at 15.)
Plaintiff’s arguments lack merit. In finding that Plaintiff was capable of a “broad
range” of activities of daily living, the ALJ pointed to evidence that Plaintiff prepared
simple meals, helped with household chores, managed his personal needs, drove a
vehicle, played with his pets, ran errands, and lived with a girlfriend. (Tr. 26.) The ALJ
concluded that, although Plaintiff “needed reminders to perform certain tasks and
alleged being unable to do his own laundry,” the evidence “suggested mainly intact and
broad activities of daily living with very little limitation.” (Id.) The bases for the ALJ’s
conclusion in this regard are evident in the record and, thus, substantial evidence
supports the ALJ’s decision to assign significant weight to Dr. Tangeman’s opinion on
this issue. Accordingly, Plaintiff is not entitled to remand on the basis of the ALJ’s
assessment of the medical source opinions in the record.
5.
Reasoning Level of the Jobs Identified by the VE
In response to the VE’s hypothetical limiting the hypothetical individual to, inter
alias, jobs consisting of one or two-step instructions, the VE identified the positions of
janitor (DOT 323.687-014), production worker (DOT 726.687-042), and hand packer
(DOT 920.587-018). (Tr. 77.) Plaintiff contends that the ALJ erred in relying on these
32
occupations to determine that he was not disabled because the reasoning level of two
of the occupations – production worker and hand packer – exceed the reasoning level
permitted by the hypothetical.
In addition to listing the duties of numerous occupations, the DOT also describes
various characteristics of each occupation. Included in these characteristics is the
General Educational Development level (“GED”), which “embraces those aspects of
education (formal and informal) which are required of the worker for satisfactory job
performance.” See DOT, Appendix C, available at
www.oalj.dol.gov/public/dot/references/dotappc.htm (last visited Sept. 10, 2013). An
occupation’s GED level consists of three measures: reasoning development;
mathematical development; and language development. Id.
Here, Plaintiff’s sole argument is that the reasoning development level for the
production worker and hand packer positions exceeds the level permitted by the
hypothetical. Plaintiff notes that the restriction to one and two-step instructions limited
the hypothetical individual to occupations with a level 1 reasoning level. The DOT
describes a level 1 reasoning level as follows:
Apply commonsense understanding to carry out one- or -two
step instructions. Deal with standardized situations with
occasional or no variables in or from these situations
encountered on the job.
DOT, Appendix C, available at www.oalj.dol.gov/public/dot/references/dotappc.htm (last
visited Sept. 10, 2013). The DOT assigns the production worker and hand packer
occupations a level 2 reasoning level, see DOT 726.687-042 and 920.587-018, which is
defined as:
33
Apply commonsense understanding to carry out detailed but
uninvolved written or oral instructions. Deal with problems
involving a few concrete variables in or from standardized
situations.
See Dictionary of Occupational Titles, Appendix C, available at
www.oalj.dol.gov/public/dot/references/dotappc.htm (last visited Sept. 10, 2013).
Plaintiff is arguably correct in asserting that, given the restriction to one or two-step
instructions in the ALJ’s hypothetical, the VE’s testimony that such an individual could
perform work as a production worker or hand packer was not consistent with the DOT.
However, to the extent that the VE erred in identifying the hand packer and
production worker occupations, the error does not require remand in this case. In
response to the ALJ’s hypothetical, the VE identified a third position – janitor (DOT
323.687-014) – which has a reasoning level of 1. DOT 323.687-014. The VE testified
that “[t]here would be about 14,000 of these positions in Ohio and about 360,000
nationwide.” (Tr. 77.) Plaintiff does not dispute that the janitor occupation comports
with the requirements of the hypothetical. Rather, Plaintiff contends that the VE’s
testimony about the occupation does not substantially support the ALJ’s decision on
disability because the ALJ failed to make a separate finding that the janitor occupation
– by itself – existed in significant numbers in the national economy. Further, he argues
– without reference to any legal authority – that the issue of whether there are a
significant number of positions in the national economy is for the ALJ, rather than this
Court.
Plaintiff’s argument lacks merit. In her decision, the ALJ recited the number of
available positions for each occupation identified by the VE. (Tr. 38.) She then
34
determined that, based on, inter alias, his RFC, Plaintiff was capable of performing
“work that exists in significant numbers in the national economy.” (Id.) She did not
indicate that her conclusion regarding whether there were a sufficient number of
positions was contingent upon adding together the number of positions of each
occupation identified by the VE. Nothing in the decision suggests that to be the case.
Further, Plaintiff points to no legal authority precluding this Court from determining
whether substantial evidence supports the ALJ’s conclusion on this point. Indeed, this
Court frequently addresses this issue, and has concluded that occupations with fewer
positions than the janitor position – 14,00 positions in Ohio and 360,00 nationally –
existed in significant numbers in the national economy. See, e.g., Williamson v.
Comm’r of Soc. Sec., 55 F. App’x 287, 288 (6th Cir. 2003) (8,600 jobs constituted a
significant number); Lewis v. Sec’y of Health & Human Servs., 51 F.3d 272 (6th Cir.
1995) (unpublished opinion) (finding that 14,000 jobs constitute a significant number of
jobs in the economy); Girt v. Astrue, No. 5:09-cv-1218, 2010 WL 908663, at *4 (N.D.
Ohio Mar. 12, 2010) (finding that 600 jobs state-wide and 35, 000 jobs nationally
constituted significant number of jobs). Accordingly, although substantial evidence
does not support the conclusion that Plaintiff was capable of working as a production
worker or hand packer, substantial evidence does support the ALJ’s conclusion that
Plaintiff was capable of working as a janitor, and that the janitor occupation existed in
significant numbers in the national economy.
Plaintiff contends that this Court should not rely on any portion of the VE’s
testimony regarding the relevant occupations because the ALJ failed to ask the VE
35
whether his testimony was consistent with the DOT. Social Security Ruling 00-4p
requires an ALJ to “inquire, on the record,” whether the VE’s testimony was consistent
with the DOT. S.S.R. 00-4p, 2000 WL 1898704, *2 (Dec. 4, 2000); see Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009) (“[T]he Social Security
Administration has imposed an affirmative duty on ALJs to ask the VE if evidence that
he or she has provided conflicts with the information provided in the DOT.”) (internal
quotation marks and alteration omitted). Plaintiff notes, correctly, that the ALJ failed to
inquire whether the VE’s testimony was consistent with the DOT, and argues that,
accordingly, the VE’s testimony was not reliable.
Plaintiff’s argument lacks merit. Rather than treat an ALJ’s failure to make the
required inquiry as per se reversible error, “courts in this circuit have generally
concluded that the ALJ’s failure to inquire about consistency with the DOT is not
reversible error unless a potential conflict actually exists, thereby undermining the
reliability of the VE’s testimony and the ALJ’s ability to rely upon it.” Goulette v. Comm’r
of Soc. Sec., No. 12-11353, 2013 WL 2371695, *11 (E.D Mich. May 30, 2013); see also
Miller v. Comm’r of Soc. Sec., No. 4:10-cv-2852, 2012 WL 398650, * 15 (N.D. Ohio
Feb. 7, 2012) (Knepp, M.J.) (“Though the Sixth Circuit has not definitely resolved the
issue, courts within this circuit tend to hold that the technical error of failing to inquire
does not constitute reversible error.”) Here, although Plaintiff has identified a conflict
between the DOT and the VE’s testimony regarding the hypothetical individual’s ability
to perform the work of a production worker and a hand packer, he has not identified any
inconsistency between the VE’s testimony that the hypothetical individual described by
36
the ALJ could work as a janitor and the DOT listing for that occupation. Accordingly, in
this case, the ALJ’s failure to inquire as required by S.S.R. 00-4p does not constitute
reversible error, and Plaintiff is not entitled to remand on this basis.
6.
Plaintiff’s Education Level
In her decision, the ALJ determined that Plaintiff had “at least a high school
education.” (Tr. 37.) Plaintiff contends that substantial evidence does not support this
conclusion. Specifically, Plaintiff points to educational and other records in evidence
that, although he completed high school, he did not obtain the same level of ability as
other high school graduates.
The relevant regulations provide that, although the grade level a claimant
achieved is relevant, it is not necessarily dispositive of the issue of that individual’s
education abilities:
[T]he numerical grade level that you completed in school
may not represent your actual educational abilities. These
may be higher or lower. However, if there is no evidence to
contradict it, we will use your numerical grade level to
determine your educational abilities.
20 C.F.R. § 404.1564(B). Plaintiff points to the fact that he completed high school at
home – as well as to more recent testing demonstrating that his language and
mathematics skills were at or below the second grade level – to argue that the ALJ
erred in concluding that he had a high school education, and, thus, that he is entitled to
remand.
Although there is evidence in the record that arguably supports his contention
that his educational abilities do not correspond with those of a high school graduate,
Plaintiff’s argument lacks merit. The relevant regulation assumes that an individual who
37
has completed high school “can do semi-skilled through skilled work.” 20 C.F.R.
§ 404.1564(b)(4). In this case, the janitor occupation identified by the VE has a specific
vocational profile (“SVP”) of 2, see DICOT 323.687-014, which corresponds to unskilled
work, see S.S.R. 00-4p, 2000 WL 1898704 at *3. Accordingly, although the ALJ may
have assumed an educational level that exceeded Plaintiff’s abilities, she concluded
that he was capable of performing work that fell below the skill level attributed to high
school graduates. Plaintiff fails to explain how – particularly in light of the occupation
identified by the ALJ – the ALJ’s conclusion on this issue caused him prejudice. He is
not entitled to remand on this basis.3
VI. Conclusion
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: September 23, 2013
3
The Court notes that many of Plaintiff’s arguments, while arguably
accurate in pointing to technical or other errors in the ALJ’s decision,
failed to explain how those errors actually prejudiced the outcome of his
case. Counsel is reminded of the necessity of demonstrating that an error
caused harm in order to prevail on review. A remand is not predicated
upon the number of errors raised; rather it is based upon errors that are
material and significant that affect the outcome of the case and the
reliability of the ALJ’s decision. It is counsel’s obligation to fully brief the
errors presented to the Court, as this Court can deem waived those
issues that are raised in only a perfunctory manner. See Rice v. Comm'r
of Soc. Sec., 169 F. App’x 452, 454 (6th Cir.2006) (“It is well-established
that ‘issues averted to in a perfunctory manner, unaccompanied by some
effort at developed argumentation, are deemed waived.’”) (quoting
McPherson v. Kelsey, 125 F.3d 989, 995–996 (6th Cir.1997)).
38
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