Dominick v. Commissioner of Social Security Administration
Memorandum Opinion and Order affirming the Commissioner's decision. Magistrate Judge Kathleen B. Burke on 7/23/2014. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL,
CASE NO. 1:13CV00975
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff David Dominick (“Plaintiff” or “Dominick”) challenges the final decision of
Defendant Carolyn M. Colvin, Acting Commissioner of Social Security (“Commissioner”),
denying his applications for supplemental social security income (“SSI”) and disability insurance
benefits (“DIB”) under Titles XVI and II, respectively, of the Social Security Act . Doc. 1. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the
undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 14.
For the reasons stated below, the Commissioner’s decision should be AFFIRMED.
I. Procedural History
Dominick filed applications for SSI and DIB on August 7, 2006, alleging disability as of
May 24, 2006. Tr. 214-221. Dominick alleged disability based on blindness in his left eye and
spinal damage resulting from a motorcycle accident. Tr. 247. His applications were denied by
the state agency initially (Tr. 136-141) and on reconsideration (Tr. 144-149). On February 9,
2009, a hearing was held before Administrative Law Judge Peter Beekman (“ALJ”). Tr. 75-101.
On April 2, 2009, ALJ Beekman determined that Dominick’s residual functional capacity
(“RFC”) did not prevent him from performing work existing in significant numbers in the
national economy, i.e., he was not disabled. Tr. 122-135. On April 23, 2009, Dominick
requested review of the ALJ’s decision by the Appeals Council (Tr. 161-63) and, on February
20, 2010, the Appeals Council remanded his claim. Tr. 117-121.
On September 16, 2011, a new hearing was held before ALJ Beekman. Tr. 44-74. On
December 28, 2011, the ALJ again denied Dominick’s claim for benefits and determined he was
not disabled. Tr. 17-43. Dominick requested review of the 2011 decision by the Appeals
Council. Tr. 7-13. On March 20, 2013, the Appeals Council denied Dominick’s request for
review, making the ALJ’s 2011 decision the final decision of the Commissioner. Tr. 1-6.
A. Personal and Vocational Evidence
Dominick was 45 years old on his alleged onset date and 50 years old on the date of the
hearing. Tr. 44, 241. He worked as a machine operator from 1996 until he was laid off from that
position in 2001. Tr. 28, 260, 493. Since at least 2006 through 2012, Dominick reported that he
volunteered 20 to 25 hours a month providing transportation to residents at a nursing home.1 Tr.
395, 403, 438, 467, 993, 1008.
At the September 16, 2011, administrative hearing, Dominick reported that he had stopped volunteering prior to
the hearing but did not recall when. Tr. 47-48. However, treatment notes from 2012 continued to reflect that he
worked 20-25 hours per month at the nursing home. Tr. 993, 1008.
B. Relevant Medical Evidence2
1. Treatment Notes
a. Metro Health Providers
Dr. Hitchcock. Prior to his alleged onset date, on September 7, 2005, Dominick was
referred to Candia Hitchcock, Ph.D. for a neuropsychological report. Tr. 354-59. He reported
to Dr. Hitchcock that he had experienced a traumatic brain injury (“TBI”) from a motorcycle
accident in 1982. Tr. 354. Dr. Hitchcock diagnosed TBI and Cognitive Disorder NOS. Tr. 358.
Neuropsychological test battery performances were described as “rather good.” Tr. 358. Dr.
Hitchcock noted that it was unknown to what extent pain medication and insomnia may have
affected Dominick’s test performance. Id. Dr. Hitchcock recommended that Dominick would
“likely need a job that was fairly repetitive, [with] a job coach, and a memory tickler system to
assist with learning job related activities. Tr. 358-59.
Ms. Markarian. In November 2006, Dominick presented to Nurse Practitioner Sally
Markarian. Tr. 441. Dominick reported a depressed mood, crying spells, poor sleep, and
emotional lability. Tr. 441. He further reported that “he believes if he became eligible for
social security his mood would improve.” Id. He was diagnosed with Organic Affective
Disorder secondary to traumatic head injury and was prescribed Lexapro. Tr. 442. In January
2007, Dominick returned to Ms. Markarian reporting that the Lexapro was helping to relieve
some of his depression but he was still stressed due to lack of income and not hearing about his
SSI/DIB claims. Tr. 450, 460. In February 2007, Dominick reported feeling more depressed due
to being turned down for social security disability and stated again that he believed his
depression would resolve once he got social security income. Tr. 464. On March 15, 2007, it
Plaintiff only challenges the ALJ’s findings with respect to his mental impairments. Accordingly, only the medical
evidence relating to his mental impairments is summarized herein.
was reported that Dominick’s care was being handed over to Board Certified Advanced Practice
Registered Nurse Tina Oney. Tr. 469.
Ms. Oney. On March 30, 2007, Dominick complained to Ms. Oney of continued
depression but stated that he was not willing to take any new medications or change medications
at that time. Tr. 470. Dominick was diagnosed with Organic Brain Syndrome and Depression
NOS. Tr. 471. In April 2007 it was reported that Dominick had gone off Lexapro due to
unpleasant side effects. Tr. 478. He reported that Elavil was helping him sleep. Tr. 483. Ms.
Oney noted that Dominick did not want antidepressant medications and stated, “[H]is high level
of anxiety and refusal to take medications other than Elavil are making it difficult to treat him.”
Id. Dominick appeared very upset due to his physical disability evaluation. Id. In August 2007,
Dominick returned to Ms. Oney and was irritable due to his social security appeal. Tr. 521. Ms.
Oney stated that Dominick is “indecisive and very easily frustrated.” Tr. 522. She encouraged
him to return when he is able to decide whether he wants medications. Id. It does not appear
that Dominick returned to Ms. Oney.
Ms. Roll. Beginning in June 2007, Dominick began seeing Margaret Roll, LISW,
MSSA, for regular individualized counseling. Tr. 497-98, 502. In August and September 2007,
Ms. Roll reported that Dominick had an irritable, anxious, and labile mood. Tr. 513, 525. She
also noted that he reported difficulty with attention and concentration. Id. In October 2007,
Dominick reported he was better but still feeling depressed because of his situation. Tr. 542. He
stated that his inability to work and support himself is a major factor in his depression. Tr. 544.
He reported that his mood was a 1-2 on a sale of 0-10 (with 10 being the best). Tr. 545.
In January 2008, Dominick again reported his mood at a 1-2 out of 10. Tr. 606. In
March 2008, Ms. Roll reported that Dominick was anxious and constricted. Tr. 594, 599. In
April 2008, Ms. Roll reported that Dominick was angry and ranting about “the system as a
whole.” Tr. 585. He stated that his mood was “up and down” and he found it easier to express
himself through anger. Id. In June 2008, Ms. Roll reported that Dominick was easily frustrated
and discouraged. Tr. 560. He reported that he felt helpless and felt that his problems were being
minimized by various providers. Id. Dominick also reported continued depression and poor
concentration. Tr. 568. Ms. Roll noted that Dominick discontinued his psychiatric medications
and declined to take new medications. Tr. Id. In July 2008, Dominick reported that he was
seeing psychiatrist Dr. Matthews from the Cleveland Clinic who started him out on Depakote.
Tr. 637. In August and September 2008, Dominick reported he was doing better on the
Depakote. Tr. 623, 631. Ms. Roll stated that his mood and affect seemed somewhat improved
and less agitated. Id. In October 2008, it was reported that Dominick’s Depakote increased and
he was less irritable and less depressed. Tr. 681. In November 2008, Dominick stated that he
was becoming more irritable and depressed since his Depakote had been increased. Tr. 678.
Dominick stated that he felt better by the end of the counseling session. Id.
In January 2009, Dominick stated that he was in the best mood since starting treatment
although he still gets “bummed out.” Tr. 667. His concentration and attention span were noted
as poor. Tr. 670. In February 2009, Dominick reported that he was depressed. Tr. 760. In
March 2009, Dominick reported that, since his Depakote has been further increased, he was less
depressed, calmer, and his sleep was improved. Tr. 756. In April 2009, Dominick stated that he
felt helpless and hopeless after receiving an unfavorable determination from Social Security. Tr.
752. He rated his mood as a 4/10. Tr. 753. In May 2009, Dominick reported that he was doing
“OK,” was sleeping better, and was less edgy. Tr. 748. He rated his mood as an 8/10. Tr. 748.
In August 2009, Dominick stated that Depakote was helping his mood and he was calmer, less
irrational. Tr. 730. In November 2009, Dominick presented to Ms. Roll tearful and depressed.
He stated that his Depakote was further increased. Tr. 707.
In January and March 2010, Dominick reported that his mood was “OK” but stated that
he had been more depressed during the winter. Tr. 695, 699. In April 2010, Dominick stated
that he no longer lashes out since starting Depakote but continues to experience episodes of
sadness and depression. Tr. 798. Dominick also reported his attention and concentration were
poor. Id. In 2010, it was noted that Dominick referenced his “neurotic paradox’s [sic].” Tr.
819, 822, 825, 833. In November 2010, Dominick stated that he was taking his medication but it
was not helping. Tr. 803. In March 2011, it was noted that Dominick had missed his last three
counseling sessions due to severe weather. Tr. 861. He reported his depression as a 4/10. Id. In
April 2011, Dominick reported difficulty concentrating and stated he could only concentrate on
television for 20 minutes at a time. Tr. 881.
b. Cleveland Clinic
On June 27, 2008, Dominick sought a second opinion from psychiatrist Dr. Manu
Matthews at the Cleveland Clinic. Tr. 649-652. Dr. Matthews noted that Dominick was angry
and paranoid about the treatment he received from Metro Health. Tr. 649, 651. Dr. Matthews
diagnosed Dominick with Organic Brain Syndrome, Mood Disorder secondary to medical
condition and Personality Disorder NOS. Tr. 651. He prescribed Depakote. Id.
In August 2008, Dominick reported that Depakote calmed him down and his irritability
was markedly improved but he continued to feel depressed. Tr. 646. It was recommended that
he continued Depakote and start Cymbalta. Tr. 647. In December 2009, it was recommended
that Dominick continue with the same dose of Depakote because his levels are good and he was
doing much better. Tr. 795. It was noted that he continued to have “poor frustration tolerance”
but that it was “much improved from before.” Id. In March 2009, Dominick stated that he was
still sad from time to time. Tr. 784. In July 2009, Dominick reported that he felt depressed
because he was unable to be as physically active as he had been in the past. Tr. 788. In October
2009, it was reported that Dominick was doing “fairly well.” Tr. 791.
In January 2011, it was noted that Dominick’s behavior was appropriate and brighter as
compared to previous visits but he reported ongoing anxiety and continued depressive episodes
lasting a few days. Tr. 850-51. It was recommended that Dominick continue Depakote and start
Celexa. Tr. 852. In April 2011, Dominick reported that he was still down at times but was
feeling better. Tr. 888.
2. Medical Opinion Evidence
Metro Health. Dominick received three opinions from medical professionals at Metro
Health. On April 30, 2007, Nurse Practitioner Tina Oney completed a mental medical source
statement (“MMSS”) on Dominick’s behalf. Tr. 455-56. Ms. Oney opined that Dominick has a
fair or poor ability to function in all workplace mental abilities. Tr. 455-56. Ms. Oney expressed
her opinion through X’s on a form and did not provide additional explanation for her
On or after August 17, 2007,3 both Ms. Oney and Dr. Karen Brocco, M.D.4 signed a
mental functional capacity assessment opining that Dominic is “extremely limited” in all
workplace mental abilities. Tr. 133, 487-88. The opinion also noted:
This person suffers from multiple head injuries with cognitive deficits, emotional
dysregulation, and chronic depression with very minimal impulse control. He is
The opinion does not list a date on which it was signed. Tr. 487-88. The only date listed on the opinion is “Date
of Last Exam” which is noted as August 17, 2007. Tr. 488. Accordingly, it can be assumed that the opinion was
signed sometime on or after August 17, 2007.
There are no treatment notes in the record from Dr. Brocco.
extremely indecisive and has limited ability to complete a task without verbal assistance.
He has emotional outbursts and difficulty with patience. He is very repititious [sic] in his
thinking patterns and has chronic underlying frustrations.
The third opinion is another mental medical source statement dated February 5, 2009, and
signed by both social worker Margaret Roll and Dr. Brocco. Tr. 686-87. In the February 2009
opinion Dominick was rated at a fair or poor level of functioning in all workplace mental
abilities, with the exception of his ability to maintain his appearance which was rated as good.
Id. It was noted that chronic depression, organic brain syndrome, labile mood, and obsessing
make him unable to tolerate stress. Tr. 687. It was further noted that Dominick’s daily level of
function remains very limited to poor and that he was not employable. Id.
Consultative Exam – Dr. Felker. On October 16, 2006, Dominick attended a
consultative examination with Sally Felker, Ph.D. Tr. 401-405. Dr. Felker diagnosed Dominick
with Cognitive Mental Disorder NOS (with depressive symptoms noted); Mixed Substance
Abuse in Remission; and Adult Antisocial Behavior. Tr. 404. Dr. Felker opined that Dominick
is mildly restricted in his ability to concentrate but stated that his ability to “understand and
follow one and two step tasks is not impaired.” Id. She further opined that Dominick is mildly
limited in his ability to relate to others and deal with the general public; and “mildly to possibly
moderately” restricted in his ability to relate to work peers and supervisors and to tolerate the
stress of employment because of cognitive limitations and depressive symptoms. Id.
State Agency Opinions. On October 23, 2006, state agency reviewing psychologist
Melanie Bergsten, Ph.D., completed a psychiatric review technique and mental residual
functional capacity. Tr. 407-23. Dr. Bergsten reviewed the evidence of record and determined
that Dominick does not meet Listing 12.025 for Organic Mental disorders. Tr. 408. Dr. Bergsten
opined that Dominick had mild limitations in his activities of daily living; moderate limitations
in maintaining social functioning; and moderate difficulties in maintaining concentration,
persistence, or pace. Tr. 417. Dr. Bergsten determined that Dominick’s memory was “intact for
simple tasks.” Tr. 423. She also opined that he can complete tasks without strict time quotas, in
a public setting and that he “can function in predictable settings at this time.” Id.
On February 17, 2007, state agency reviewing psychologist Karen Stailey-Steiger, Ph.D.,
also reviewed the record and affirmed the conclusions of Dr. Bergsten. Tr. 661.
C. Relevant Testimonial Evidence
At the administrative hearing, Dominick was represented by counsel and testified that, on
a typical day, he watches television, takes care of his personal hygiene, and does household
chores. Tr. 49. Dominick stated that he has difficulty cleaning the tub due to pain. Tr. 49-50.
He also stated he receives help grocery shopping. Tr. 50. Dominick testified he has back pain
from bulging discs that radiates down to his arm. Tr. 51. Dominick stated that he has problems
with balance and would fall off of a ladder. Tr. 53-54. He also testified that he sees a
psychiatrist at the Cleveland Clinic and counselor Margaret Roll at Metro Health for depression.
Tr. 51, 56-57.
2. Medical Expert’s Testimony
Medical Expert Dr. Hershel Goren testified at the hearing. Tr. 57-62. Dr. Goren opined
that Dominick did not have a condition or combination of conditions that met or equaled a
The Listing of Impairments (commonly referred to as Listing or Listings) is found in 20 C.F.R. pt. 404, Subpt. P,
App. 1, and describes impairments for each of the major body systems that the Social Security Administration
considers to be severe enough to prevent an individual from doing any gainful activity, regardless of his or her age,
education, or work experience. 20 C.F.R. § 404.1525.
Listing. Tr. 57. Dr. Goren further opined that Dominick had the following residual functional
Lift or carry 20 pounds occasionally, 10 pounds frequently. No other exertional
restrictions. Never ladder, rope, or scaffold; never balance; occasional ramp or stairs;
[occasional] stooping, kneeling, crouching, and crawling; occasional fingering with either
hand; occasional feeling with the right hand. No depth perception, because he’s oneeyed. Decreased field of vision to the left…No dangerous machinery, no unprotected
heights, no workplace driving. Noncomplex tasks, by which I mean more than simple
one- and two-step routine, repetitive tasks.6
Tr. 58. Dominick’s attorney asked Dr. Goren to square his RFC finding with the opinion of Dr.
Brocco supporting extreme limitations in Dominick’s mental functioning. Tr. 59-60. Dr. Goren
stated that there was nothing in the record that supported the extreme limitations assigned by Dr.
Brocco. Tr. 60-61. Dr. Goren summarized that the treatment notes from Metro Health were
inconsistent with the treatment notes from Cleveland Clinic. Id. (“To me, it looks like the
Cleveland Clinic people think [he’s] doing great, and the Metro people think [he’s] got real
problems.”) Dr. Goren opined that Dominick does not meet the B criteria of Listing 12.02. Tr.
3. Vocational Expert’s Testimony
Vocational Expert Mark Anderson (“VE”) also testified at the hearing. Tr. 63-70. The
VE testified that Dominick’s past work as a machine operator was performed at a medium level
of exertion and was a skilled occupation. Tr. 63. The ALJ then asked the VE whether there
were any jobs in the national or regional economy for a hypothetical individual of Dominick’s
age, education, and work experience, who is male, right dominant, able to occasionally lift and
carry 20 pounds; frequently carry 10 pounds; walk, stand, and sit six out of eight hours a day; is
not limited in his ability to push/pull; should not use a left foot pedal but can frequently use a
The ME clarified that noncomplex tasks meant that Dominick could perform more than simple routine work but
not highly complex tasks. That Dominick could perform noncomplex tasks “consistent with his educational
accomplishments.” Tr. 58.
right foot pedal; can occasionally use ramps or stairs, but never a ladder, rope, or a scaffold;
never balance; can occasionally stoop, kneel, crouch, and crawl; no limits on handling or
reaching but is limited to occasional bilateral fingering and occasional right feeling; no work
which requires binocular vision or depth perception; no extensive reading on a frequent basis;
should avoid hazards such as unprotected heights, slippery or uneven surfaces, and driving; can
perform simple, routine one to two-step tasks in a low-stress environment with no high
production quotas and no piece rate work. Tr. 63-64. The VE stated that such a hypothetical
individual would be able to perform work as a housekeeper (916,000 national jobs; 38,000 Ohio
jobs; 7,500 Northeast Ohio jobs). Tr. 64-65.
Dominick’s attorney then asked the VE if the housekeeping job would be affected by a
further limitation requiring that the hypothetical individual could not have a job with vibrations.
Tr. 66. The VE responded that the housekeeping job would still be available with that additional
limitation. Id. Dominick’s attorney then asked what effect a further limitation of only four hours
of standing and walking would have on the available jobs. Tr. 67. The VE testified that the
housekeeping job would be eliminated with a four hour standing/walking limitation. Id.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any substantial
gainful activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a continuous
period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
If the claimant is doing substantial gainful activity, he is not disabled.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
20 C.F.R. §§ 404.1520, 416.9207; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 96 L. Ed. 2d
119, 107 S. Ct. 2287 (1987). Under this sequential analysis, the claimant has the burden of proof
at Steps One through Four. Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997).
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
The burden shifts to the Commissioner at Step Five to establish whether the claimant has the
vocational factors to perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his December 28, 2011, decision, the ALJ made the following findings:
The claimant meets the insured state requirements of the Social Security
Act (the “Act”) through December 31, 2006. Tr. 23.
The claimant has not engaged in substantial gainful activity since May
24, 2006, the alleged onset date. Tr. 23.
The claimant has the following severe impairments: disorders of the
back, discogenic and degenerative; carpal tunnel syndrome; organic
mental disorder; and he is blind in the left eye. Tr. 23.
The claimant does not have an impairment or combination of
impairments that met or medically equaled the severity of the one of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 23.
The claimant has the residual functional capacity (“RFC”) to perform less
than the full range of light work as defined in 20 C.F.R. 404.1567(b) and
416.967(b). Specifically, he can lift/carry 20 pounds occasionally and 10
pounds frequently. He can walk for 6 hours of an 8-hour work day. He
can stand for 6 hours of an 8-hour work day. He can sit for 6 hours of an
8-hour work day. He can push/pull. He cannot operate a left foot pedal
but can frequently operate a right foot pedal. He can occasionally climb
ramps or stairs but can never claim ladders, ropes, or scaffolds. He
cannot balance. He can occasionally stoop, crouch, kneel, or crawl. He
can reach and handle without limitation but fingering is limited to
occasionally bilaterally, and only occasional feeling with the right hand.
He is functionally blind in the left eye with a decreased field of vision on
the left. The work cannot involve binocular vision, depth perception, no
extensive reading on a frequent basis, and no reading of small print on a
frequent basis. He should avoid hazards, unprotected heights, slippery or
uneven surfaces, and he cannot drive. He can perform simple, routine
tasks that are one or two steps. The work must be low stress meaning no
high production quotas or piece rate work. Tr. 25.
The claimant is unable to perform any past relevant work. Tr. 33.
The claimant was born [in 1961] and was 45 years old, which is defined
as a younger individual age 18-49, on the alleged disability onset date.
The claimant subsequently changed age category to closely approaching
advanced age. Tr. 33.
The claimant has at least a high school education and is able to
communicate in English. Tr. 33.
Transferability of job skills is not material to the determination of
disability as using the Medical-Vocational rules as a framework supports
a finding that claimant is “not disabled,” whether or not he has
transferable job skills. Tr. 34.
Considering the claimant’s age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the national economy
that he can perform. Tr. 34.
The claimant has not been under a disability, as defined in the Social
Security Act, from May 24, 2006, the alleged onset date, through the date
of this decision. Tr. 34.
V. Parties’ Arguments
Dominick presents two issues for review. First, he argues that the ALJ failed to abide by
the treating physician rule by failing to provide “good reasons” for rejecting the opinions of Dr.
Brocco, Tina Oney, and Margaret Roll. Doc. 18, pp. 10-15. Second, Dominick argues that the
ALJ erred by failing to find that Dominick met the requirements of Listing 12.02 Organic Mental
Disorders. Id. at pp. 15-18. In response, the Commissioner argues that the ALJ’s decision is
supported by substantial evidence. Doc. 19, pp. 8-15.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Secretary of Health and Human Services, 889 F.2d
679, 681 (6th Cir.1989) (per curiam) (citations omitted)). A court “may not try the case de novo,
nor resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745
F.2d 383, 387 (6th Cir. 1984).
A. The ALJ did not violate the treating physician rule
Dominick argues that the ALJ violated the treating physician rule by failing to provide
“good reasons” for rejecting the opinions of Dr. Brocco, Tina Oney, and Margaret Roll. Doc. 18,
pp. 10-15. Under the treating physician rule, opinions of treating sources must be given
“controlling weight” if: (1) the opinion “is well-supported by medically acceptable clinical and
laboratory diagnostic techniques”; and (2) the opinion “is not inconsistent with the other
substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004). The regulations require the ALJ to “always give good
reasons in [the] notice of determination or decision for the weight” given to the claimant's
treating source's opinion. 20 C.F.R. § 404.1527(d)(2). Those good reasons must be “supported by
the evidence in the case record, and must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating source's medical opinion and the
reasons for that weight.” Soc. Sec. Rul. 96–2p, 1996 WL 374188, at *5. The Sixth Circuit has
held that an ALJ's failure to follow the “good reasons rule” by identifying the reasons for
discounting the opinions and explaining precisely how those reasons affected the weight given
“denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified
based upon the record.” Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009)
(citing Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.2007)).
There are three opinions at issue which are described below. The first is an April 30,
2007, opinion signed by Tina Oney, Advanced Practice Registered Nurse, Board Certified, in
which Ms. Oney opines that Dominick has a fair or poor ability to function in all workplace
mental abilities. Tr. 455-56.
The second opinion is signed8 by both Ms. Oney and Dr. Brocco.
In it, they opine that Dominic is “extremely limited” in all workplace mental abilities. Tr. 48788. The third opinion is dated February 5, 2009, and signed by both Margaret A. Roll, licensed
social worker, and Dr. Brocco. Tr. 686-87. In that opinion Dominick was rated at a fair or poor
level of functioning in all workplace mental abilities, with the exception of his ability to maintain
his appearance, which was rated as good. Id.
The ALJ assigned little or no weight to the opinions of Dr. Brocco, Ms. Oney, and Ms.
Roll. Tr. 31-32. The ALJ pointed out that Ms. Oney’s April 2007 opinion provided no medical
or clinical findings to support her assessment. Tr. 31. With regard to the opinion signed by Ms.
Oney and Dr. Brocco, the ALJ stated that this opinion was inconsistent with the evidence as a
whole, including reports of Dominick’s daily activities, which provide support for the
determination that he can perform simple, routine tasks. Id. Finally, as to the February 2009
opinion signed by Ms. Roll and Dr. Brocco, the ALJ found that this opinion was again
inconsistent with evidence that showed that Dominick’s mood, irritability, and poor frustration
tolerance improved significantly with Depakote. Tr. 32.
As noted above, the opinion does not list a date on which it was signed. Tr. 487-88. The only date listed on the
opinion is “Date of Last Exam” which is noted as August 17, 2007. Tr. 488. Accordingly, it can be assumed that
the opinion was signed sometime on or after August 17, 2007.
To judge compliance with the treating source rule, we first determine if any of those three
providers are treating sources. Cole v. Astrue, 661 F.3d 931, 938 (6th Cir. 2011) (citing Smith v.
Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.2007)). A treating source is an acceptable
medical source who provides, or has provided, a claimant with medical treatment or evaluation
and who has had an ongoing treatment relationship with the claimant. 20 C.F.R. § 404.1502
(emphasis added). The Commissioner will generally consider there to be an “ongoing treatment
relationship” when the medical evidence establishes that a claimant is or has been seen with a
frequency consistent with accepted medical practice for the type of treatment or evaluation
required for a claimant’s medical condition. Id. “The treating physician doctrine is based on the
assumption that a medical professional who has dealt with a claimant and his maladies over a
long period of time will have a deeper insight into the medical condition of the claimant than will
a person who has examined a claimant but once . . . .” Kornecky v. Comm’r of Soc. Sec., 167
Fed. Appx. 496, 507 (6th Cir. 2006) (quoting Barker v. Shalala, 40 F.3d 789, 794 (6th Cir.
1994). In those instances where a physician is not a treating source, Wilson has been found to be
inapplicable. See Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007); see also
Kornecky, 167 Fed. Appx. at 507; see also Daniels v. Comm’r of Soc. Sec., 152 Fed. Appx. 485,
490 (6th Cir. 2005).
The agency’s regulations limit treating sources to “acceptable medical sources.” 20
C.F.R. § 404.1502. The definition of “acceptable medical sources” does not include social
workers or nurse practitioners. 20 C.F.R. § 404.1513(d)(1) (explaining that a nurse practitioner
is not acceptable medical source); Winning v. Comm'r of Soc. Sec., 661 F. Supp. 2d 807, 819
(N.D. Ohio 2009) (citing SSR 06-03p) (stating that licensed clinical social workers are “other
sources” who are not acceptable medical sources). Thus, Ms. Oney and Ms. Roll are not
acceptable medical sources and are not treating sources under the regulations.
On the other hand, Dr. Brocco is an acceptable medical source. 20 C.F.R. §404.1513(a).
However, this does not end the inquiry. A treating source must also have had “an ongoing
treatment relationship with the claimant.” 20 C.F.R. § 404.1502. Medical expert Dr. Goren
testified that there were no treatment records from Dr. Brocco. Tr. 92-93. Further, this Court’s
review of the record similarly reveals no treatment records from Dr. Brocco. Thus, Dr. Brocco
was not in a position “to provide a detailed, longitudinal picture of [Dominick’s] medical
impairment(s).” Kornecky, 167 F. App'x at 506; See 20 C.F.R. §§ 404.927(c)(2)(i),
416.927(c)(2)(i) (defining a treating physician as one who “has seen you a number of times and
long enough to have obtained a longitudinal picture of your impairment”). As Dr. Brocco’s
relationship with Dominick did not rise to the level of an ongoing treatment relationship, Dr.
Brocco was not a treating source under the regulations.
Since Ms. Oney, Ms. Roll, and Dr. Brocco are not treating sources under the regulations,
the ALJ did not violate the treating physician rule. Murray v. Comm'r of Soc. Sec., 1:13-CV215, 2013 WL 5428734 (N.D. Ohio Sept. 26, 2013) (“the procedural ‘good reasons’ requirement
does not apply to non-treating physicians.”); Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876
(explaining that “[i]mportantly ... this reasons giving requirement exists only for §
404.1527(d)(2), and not for the remainder of § 404.1527” and concluding: “[i]n the absence of
treating-source status for these doctors, we do not reach the question of whether the ALJ violated
Wilson by failing to give reasons for not accepting their reports”). Therefore, Dominick’s
argument that the ALJ violated the treating physician rule is without merit.
B. The ALJ’s determination that Dominick does not meet Listing 12.02 is
supported by substantial evidence
Dominick next argues that the ALJ failed to properly evaluate his claim under Listing
12.02. Doc. 18, pp. 15-18. Dominick argues that he met both the A and B criteria under Listing
12.02. Id. Listing 12.02(A) and (B) provide:
Organic Mental Disorders: Psychological or behavioral abnormalities associated with a
dysfunction of the brain. History and physical examination or laboratory tests
demonstrate the presence of a specific organic factor judged to be etiologically related to
the abnormal mental state and loss of previously acquired functional abilities.
The required level of severity for these disorders is met when the requirements in both A
and B are satisfied....
A. Demonstration of a loss of specific cognitive abilities or affective changes and the
medically documented persistence of at least one of the following:
1. Disorientation to time and place; or
2. Memory impairment, either short-term (inability to learn new information),
intermediate, or long-term (inability to remember information that was known
sometime in the past); or
3. Perceptual or thinking disturbances
4. Change in personality; or
5. Disturbance in mood; or
6. Emotional lability (e.g., explosive temper outbursts, sudden crying, etc.) and
impairment in impulse control; or
7. Loss of measured intellectual ability of at least 15 I.Q. points from premorbid
levels or overall impairment index clearly within the severely impaired range on
neuropsychological testing, e.g., the Luria–Nebraska, Halstead–Reitan, etc.;
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
2. Marked difficulties in maintaining social functioning; or
3. Marked difficulties in maintaining concentration, persistence, or pace; or
4. Repeated episodes of decompensation, each of extended duration;
The ALJ specifically considered Listing 12.02 and determined that Dominick does not meet the
paragraph B criteria. Tr. 23- 24. The ALJ determined that Dominick did not meet the
“paragraph B” criteria because the ALJ concluded that Dominick has only mild difficulties in his
activities of daily living and maintaining social functioning and only moderate difficulties in
maintaining concentration, persistence, or pace. Tr. 24. The ALJ also found that Dominick
experienced no episodes of decompensation of an extended duration. Id.
Dominick asserts that the opinions of Dr. Brocco, Ms. Oney, and Ms. Roll support a
finding of marked limitation in the areas of social functioning and concentration, persistence, and
pace. Doc. 18, p. 17. The following substantial evidence supports the ALJ’s determination that
Dominick did not have marked limitations in the areas of social functioning and concentration,
persistence, and pace: the opinions of Dr. Goren, Dr. Felker, Dr. Bergsten, and Dr. StaileySteiger; treatment notes from the Cleveland Clinic; and Dominick’s reported daily activities.
Opinions of Dr. Goren, Dr. Felker, Dr. Bergsten, Dr. Stailey-Steiger. The ALJ gave
considerable weight to the opinions of Dr. Goren, Dr. Felker, Dr. Bergsten, and Dr. StaileySteiger.9 Tr. 31, 33. All four of these sources found that Dominick exhibited no greater than
moderate limitations in the areas of social functioning and concentration, persistence, and pace.
The consultative examiner, Dr. Felker, opined that Dominick was only mildly limited in his
ability to concentrate and in his ability to relate to others and deal with the general public. Tr.
404. She found his ability to relate to work peers and supervisors and to tolerate the stress of
employment was mildly to moderately limited because of cognitive limitations and depressive
symptoms. Id. She concluded that Dominick retained the mental ability to “understand and
follow instructions for one to two step tasks.” Tr. 404.
With regard to Dr. Goren, the ALJ stated that he gave considerable weight to the opinion of Dr. Goren with one
exception. Tr. 33. Dr. Goren found that, in addition to simple, routine tasks, Dominick retained the capacity to
perform “noncomplex tasks,” defined as “more than simple one- and two-step routine, repetitive tasks.” Tr. 58. The
ALJ found that other evidence in the record did not support this conclusion by Dr. Goren. Tr. 33.
ME Dr. Goren and state agency reviewing psychologist Dr. Bergsten specifically
reviewed Listing 12.02 and determined that Dominick did not meet the requirements for that
Listing. Tr. 62, 408. Dr. Goren specifically stated that Dominick does not meet the paragraph B
Tr. 62. Dr. Goren and Dr. Bergsten also opined that Dominick retained the capacity
for simple tasks without time or production quotas. Tr. 58, 423. Dr. Bergsten found that
Dominick was moderately limited in maintaining social functioning and maintaining
concentration, persistence, or pace. Tr. 417. State agency reviewing psychologist Dr. StaileyStaiger confirmed the opinion of Dr. Bergsten. Tr. 661.
Cleveland Clinic Treatment Notes. The ALJ also correctly noted that psychological
treatment notes from Dominick’s treating psychiatrists at the Cleveland Clinic showed
improvement in Dominick’s mental health impairments. Tr. 30. Psychiatrist Dr. Manu
Matthews diagnosed Dominick with Organic Brain Syndrome, Mood Disorder secondary to
medical condition, and Personality Disorder NOS. Tr. 651. He prescribed Depakote. Id. While
on Depakote, although noting he felt depressed at times, the Cleveland Clinic treatment records
generally reflected improvement in Dominick’s mood, irritability, and frustration tolerance. Tr.
646, 791, 795, 850-51, 888. Dominick’s treating psychiatrists at the Cleveland Clinic did not
assess any mental functional limitations.
Daily Activities. The ALJ further noted that Dominick lives alone without assistance,
takes care of his personal needs, performs household tasks, attends to his personal care, shops,
and takes the bus to appointments. Tr. 24, 31. The ALJ also stated that there is evidence that
Dominick’s lack of employment is due to reasons other than his physical or mental health. Tr.
28. He noted that Dominick maintained employment as a machine operator from 1996 through
2001 despite having most of the impairments that he now alleges. Id.
Based on all of the above, substantial evidence supports the ALJ’s determination that
Dominick did not meet Listing 12.02. More particularly, substantial evidence supports a finding
that Dominick does not exhibit marked limitations in the areas of social functioning and
concentration, persistence, or pace. Thus, Dominick’s argument to the contrary is without merit.
Dominick counters that the treatment notes and opinions of Dr. Brocco, Ms. Oney, and
Ms. Roll establish the 12.02B criteria. Doc. 18, p. 17. First, as explained in the prior section,
there are no treatment notes from Dr. Brocco in the record. Next, the ALJ gave little to no
weight to the findings of Dr. Brocco, Ms. Oney, and Ms. Roll. Tr. 31-32. The ALJ gave specific
examples for his assignment of weight supported by the evidence in the record. For example,
the ALJ noted that, although Ms. Oney and Dr. Brocco opined that Dominick has a limited
ability to complete a task without verbal assistance, Dominick’s reported daily activities (as
noted above) support the determination that Dominick can perform simple, routine tasks. Tr.
31. With regard to social functioning, the ALJ found that Ms. Roll and Dr. Brocco’s opinion that
Dominick was unable to tolerate stress was inconsistent with the treatment notes from the
Cleveland Clinic doctors who noted that Dominick’s mood, irritability, and poor frustration
tolerance improve significantly with Depakote. Tr. 32.
As noted above, substantial evidence supports the Commissioner’s decision that
Dominick does not meet Listing 12.02. As long as substantial evidence supports the
Commissioner's decision, the Court must defer to it “ ‘even if there is substantial evidence in the
record that would have supported an opposite conclusion....’ ” Wright v. Massanari, 321 F.3d
611, 614 (6th Cir.2003) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997)). Thus,
Dominick’s argument that the ALJ failed to properly evaluate him under Listing 12.02 is without
For the foregoing reasons, the Commissioner’s decision is AFFIRMED.
Dated: July 23, 2014
Kathleen B. Burke
United States Magistrate Judge
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