Huy v. Commissioner of Social Security Adminstration

Filing 22

Memorandum Opinion and Order affirming the final decision of the Commissioner. Magistrate Judge Nancy A. Vecchiarelli on 7/12/2012. (G,W)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

ROBERT S. HUY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

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CASE NO. 5:11-cv-1851

MAGISTRATE JUDGE
VECCHIARELLI

MEMORANDUM OPINION AND
ORDER

Plaintiff, Robert S. Huy (“Plaintiff”), challenges the final decision of Defendant,
Michael J. Astrue, Commissioner of Social Security (“the Commissioner”), denying his
applications for a Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and
Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act,
42 U.S.C. §§ 416(i), 423, 1381 et seq. (“the Act”). This Court has jurisdiction pursuant
to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate
Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. §
636(c)(2). For the reasons set forth below, the Commissioner’s final decision is
AFFIRMED.
I.

PROCEDURAL HISTORY

On August 10, 2009, Plaintiff filed applications for a POD, DIB, and SSI and

alleged a disability onset date of February 14, 2003. (Tr. 10.) The applications were
denied initially and upon reconsideration, so Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Tr. 10.) On March 15, 2011, an ALJ held Plaintiff’s
hearing. (Tr. 10.) Plaintiff appeared, was represented by counsel, and testified. (Tr.
10.) A vocational expert (“VE”) also appeared and testified. (Tr. 10.) On April 1, 2011,
the ALJ found Plaintiff not disabled. (Tr. 23.) On August 11, 2011, the Appeals Council
declined to review the ALJ’s decision, so the ALJ’s decision became the
Commissioner’s final decision. (Tr. 1.)
On September 1, 2011, Plaintiff filed his complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) On February 10, 2012, Plaintiff filed his
Brief on the Merits. (Doc. No. 15.) On May 9, 2012, the Commissioner filed his Brief
on the Merits. (Doc. No. 18.) On May 23, 2012, Plaintiff filed a brief in reply. (Doc. No.
19.)
Plaintiff asserts several assignments of error that may be summarized as one
general contention: the ALJ’s determination is not supported by substantial evidence
because he “either omitted any analysis of or erred in his analysis of most of the
opinions of record.” (Pl.’s Br. 15.)
II.
A.

EVIDENCE

Personal and Vocational Evidence

Plaintiff was 14 years old on the alleged disability onset date (Tr. 21) and 23
years old on the date of his hearing (Tr. 35). He had a “marginal” education and was
able to communicate in English. (Tr. 21.) He had no past relevant work experience.

2

(Tr. 21.)
B.

Medical Evidence

On February 14, 2003, a car struck Plaintiff while he was riding his bicycle. (Tr.
232.) Plaintiff had not been wearing a helmet, lost consciousness, suffered a
tibiofibular fracture, and was admitted to the hospital. (Tr. 232.)
On April 29, 2003, Plaintiff underwent a clinical interview with Dr. Candice P.
Hitchcock, Ph.D. (Tr. 225-27.) Dr. Hitchcock indicated the following. Plaintiff retained
“relatively good verbal abilities” but exhibited “severely impaired new problem solving
and abstract reasoning.” (Tr. 226.) Plaintiff “also was impaired in attention and
memory, and he had constructional dyspraxia.” (Tr. 226.) Plaintiff’s “attention/
concentration,” however, “may have been premorbid.” (Tr. 226.)
On June 20, 2003, Plaintiff underwent a neuropsychological evaluation with Dr.
DeAnna Frye, Ph.D. (Tr. 423-28.) Dr. Frye indicated the following. Plaintiff was fifteen
years old. (Tr. 423.) He had a past medical history of Attention Deficit Hyperactivity
Disorder (“ADHD”) and had been treated with Ritalin. (Tr. 424.) He was enrolled in the
ninth grade and was in the process of receiving services for possible learning
disabilities at the time he suffered the automobile accident. (Tr. 424.) Plaintiff reported
that, since his accident, he noticed “changes” in his short term memory and required
additional time to process information; but that he did not notice any changes in his
“attentional abilities.” (Tr. 424.)
Plaintiff exhibited a Verbal IQ score of 79, a Performance IQ score of 74, and a
Full Scale IQ score of 75. (Tr. 425.) Dr. Frye diagnosed Plaintiff with a cognitive
disorder not otherwise specified, borderline intellectual functioning, and traumatic brain
3

injury; and she assigned Plaintiff a Global Assessment of Functioning (“GAF”) score of
55.1 (Tr. 427.) Dr. Frye recommended, among other things, that Plaintiff obtain an
Individualized Education Plan (“IEP”) at school; undergo an evaluation to determine
whether he should continue medication for his “attentional concerns” and to assist with
his irritability and aggressive angry outbursts; present to the Bureau of Vocational
Rehabilitation when he became 16 years old for assistance with finding employment;
and continue to undergo 24-hour supervision, as his decreased judgment, memory, and
attention span created a higher risk of re-injury. (Tr. 427-28.)
On August 22, 2003, Plaintiff presented to Dr. Shu Que Huang2 for a follow-up
on his brain injury. (Tr. 210-11.) Dr. Huang indicated that Plaintiff reported the
following. Plaintiff suffered mild cognitive and behavioral problems, mild short-term
memory problems, and numbness and slight dis-coordination on his left side. (Tr. 210.)
He interacted with his peers appropriately; but he continued to suffer poor
concentration, earned C’s and D’s in school, and was planning to start a summer
tutoring program. (Tr. 210.) Dr. Huang further indicated the following. Aside from the
left tibiofibular fracture and residual memory problems, Plaintiff was making “a good
progress of functions.” (Tr. 210.) Plaintiff’s leg was healing well, and Dr. Huang did not
believe that Plaintiff needed medication for his ADHD. (Tr. 211.) Plaintiff’s “neuropsy”

1

A GAF score between 51 and 60 indicates moderate symptoms or moderate
difficulty in social, occupational, or school functioning. A person who scores in
this range may have a flat affect, occasional panic attacks, few friends, or
conflicts with peers and co-workers. See Diagnostic and Statistical Manual of
Mental Disorders 34 (American Psychiatric Association, 4th ed. rev., 2000).

2

Dr. Huang’s credentials are not clearly indicated in the record.
4

report indicated that Plaintiff had “a lot of deficits,” but Plaintiff continued to improve.
(Tr. 211.)
On September 18, 2003, Plaintiff underwent a re-evaluation of his cognitive
functioning with his school psychologist, Ms. Gail Porter,3 in relation to developing an
appropriate IEP. (Tr. 410-21.) Ms. Porter indicated that Plaintiff exhibited a Verbal IQ
score of 74, a Performance IQ score of 87, and a Full Scale IQ score of 78. (Tr. 412.)
Ms. Porter summarized that Plaintiff “may continue to have problems with memory
skills, including short and long term memory, visual/motor skills, and numerical
reasoning skills.” (Tr. 412.) Ms. Porter further indicated that: instructions and
directions would have to be repeated and would be better understood if explained in a
short and precise manner; more samples would have to be given when doing
something new and different; visual materials along with verbal explanations would be
helpful; and work may need to be checked to be sure that Plaintiff remained on task.
(Tr. 419.)
A September 15, 2005, IEP report indicates that Plaintiff “ha[d] difficulty staying
on task and may need a longer time than his peers to learn new information”; Plaintiff’s
oral expression and listening comprehension were in the low average range; Plaintiff
would require explanations to be short, precise, and repeated; and Plaintiff would
benefit from visual cues. (Tr. 433.)
On August 23, 2006, Plaintiff presented to Dr. Karman Radwan, M.D., for a
consultative psychological examination of his short term memory. (Tr. 591-92.) Dr.

3

The record does not clearly indicate Ms. Porter’s credentials.
5

Radwan indicated the following. Plaintiff presented friendly, attentive, fully
communicative, casually groomed, with a normal weight, and relaxed. (Tr. 591.) His
language skills were intact: his speech was fluent and at a normal rate, volume, and
articulation; and he was coherent and spontaneous. (Tr. 591.) However, his
vocabulary and fund of knowledge indicated cognitive functioning in the borderline
range. (Tr. 592.) Dr. Radwan assigned Plaintiff a GAF score of 40.4
On May 21, 2007, Plaintiff presented to Dr. Scott F. Brown, M.D., for a “disability
physical.” (Tr. 442, 506-07.) Dr. Brown indicated that “neuropsychiatry testing from
June 2003 revealed severe cognitive impairment with borderline intellectual functioning
and impairment of his memory,” and that “[a]t this point I do feel that he is
unemployable because of his previous brain injury and resulting decrease in his
intellectual functioning and memory.” (Tr. 442.)
On September 29, 2009, Dr. Branden Weisgarber, Ph.D., authored a medical
source statement and indicated the following. (Tr. 550-51.) Plaintiff’s sitting, standing,
and walking were not affected by his impairments. (Tr. 551.) He could lift and carry up
to 25 pounds frequently and 50 pounds occasionally. (Tr. 551.) He was moderately
limited in his ability to perform repetitive foot movements because he had “balance
issues.” (Tr. 551.) Otherwise, Plaintiff had no physical limitations. (See Tr. 551.)
Plaintiff required a psychological assessment. (Tr. 550.) Nevertheless, Plaintiff was
4

A GAF score between 31 and 40 indicates some impairment in reality testing or
communication or major impairment in several areas such as work or school,
family relations, judgment, thinking, or mood. A person who scores in this
range may have illogical or irrelevant speech, and may avoid friends, neglect
family, and be unable to work. See Diagnostic and Statistical Manual of Mental
Disorders, supra note 1, at 34.
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unemployable for 12 months or more. (Tr. 551.)
On October 23, 2009, Plaintiff underwent a mental functional capacity
assessment with Dr. Ralph Huhn, Ph.D. (Tr. 555.) Dr. Huhn indicated the following.
Plaintiff was markedly limited in his abilities to: understand and remember detailed
instructions; carry out very detailed instructions; and maintain attention and
concentration for extended periods of time. (Tr. 555.) He was moderately limited in his
abilities to: remember locations and work-like procedures; understand, remember, and
carry out very short and simple instructions; perform activities within a schedule,
maintain regular attendance, and be punctual within customary tolerances; 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; complete
a workday and workweek without interruptions from psychologically based symptoms
and perform at a consistent pace without an unreasonable number and length of rest
periods; interact appropriately with the general public; get along with coworkers or peers
without distracting them or exhibiting behavioral extremes; respond appropriately with
the general public; travel in unfamiliar places or use public transportation; and set
realistic goals or make plans independently of others. (Tr. 555.) He was not
significantly limited in his abilities to: ask simple questions or request assistance;
accept instructions and respond appropriately to criticism from supervisors; maintain
socially appropriately behavior and adhere to basic standards of neatness and
cleanliness; and be aware of normal hazards and take appropriate precautions. (Tr.
555.)
On October 30, 2009, Plaintiff underwent a clinical interview with Dr. Curt Ickes,
7

Ph.D., at the request of the Bureau of Disability Determination. (Tr. 525-29.) Dr. Ickes
indicated the following. Plaintiff was mildly impaired in his abilities to relate with others,
including fellow workers and supervisors; and understand, remember, and follow
instructions. (Tr. 528.) He was moderately impaired in his abilities to maintain
attention, concentration, persistence, and pace to perform simple, repetitive tasks; and
withstand the stress and pressures associated with day-to-day work activities. (Tr.
529.)
On November 19, 2009, state agency reviewing psychologist Leslie Rudy, Ph.D.,
performed a Psychiatric Review Technique, as well as a mental residual functional
capacity (“RFC”) assessment. (Tr. 531-47.) Dr. Rudy indicated the following in her
Psychiatric Review Technique. Dr. Rudy assessed Plaintiff under Listing 12.02
regarding organic mental disorders and found that Plaintiff suffered borderline
intellectual functioning, a history of ADHD, a learning disorder, and a history of
traumatic brain injury. (See Tr. 535.) Plaintiff was moderately restricted in his activities
of daily living and in maintaining concentration, persistence, or pace. Further, he was
mildly restricted in maintaining social functioning, and he had no episodes of
decompensation of extended duration. (Tr. 545.)
Dr. Rudy indicated the following in her mental RFC assessment. Plaintiff was
moderately impaired in his abilities to: understand, remember, and carry out detailed
instructions; maintain attention and concentration for extended periods of time; 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 perform at a consistent pace without an unreasonable number and
8

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. 531-32.) Plaintiff otherwise was not significantly limited. (Tr. 531-32.) Dr.
Rudy concluded that Plaintiff “can work in an environment without demands for fast
pace, high production or frequent changes in assigned tasks[,] . . . interact on a
superficial level but would not tolerate demands from sustained interactions with the
general public[, and] . . . adapt to routine changes”; and that Plaintiff “remains capable
of simple, repetitive work done when changes and directions can be explained
verbally.” (Tr. 534.)
On September 7, 2010, Plaintiff underwent a neuropsychological evaluation with
Dr. Richard Litwin, Ph.D. (Tr. 558-62.) Dr. Litwin indicated the following. Plaintiff
exhibited a Verbal IQ score of 80, a Performance IQ score of 80, and a Full Scale IQ
score of 78. (Tr. 559.) Plaintiff’s “IQ scores fell within the uniform low average range.”
(Tr. 559.) Dr. Litwin diagnosed Plaintiff with a reading disorder, a mathemetics
disorder, a cognitive disorder not otherwise specified, ADHD combined type, an
adjustment disorder with depressed features, and a traumatic brain injury; and Dr.
Litwin assessed Plaintiff with a GAF score of 64.5 (Tr. 561.)
5

A GAF score between 61 and 70 indicates some mild symptoms or some
difficulty in social, occupational, or school functioning. A person who scores in
this range may have a depressed mood, mild insomnia, or occasional truancy,
but is generally functioning pretty well and has some meaningful interpersonal
relationships. See Diagnostic and Statistical Manual of Mental Disorders,
supra note 1, at 34.
9

Dr. Litwin further indicated the following. Plaintiff “would need to commit to a
rigorous course of study to pass the GED test.” (Tr. 561.) Dr. Litwin recommended
testing accommodations including extended time, the use of a calculator and a spellchecking device, a distraction-free environment, and frequent rest breaks. (Tr. 561.)
Plaintiff expressed an interest in construction work, and such work “would seem a fair fit
for him.” (Tr. 561.) However, he would need to work with his hands, move around on
the job, and have ongoing access to visual cues to guide his work effort. (Tr. 561.)
Further, tasks would need to be action-oriented to grab and hold his attention. (Tr.
561.) Dr. Litwin opined that Plaintiff “may be able to compensate for his memory loss
by developing a simple skill set with strong body memories”; and he recommended that
Plaintiff use a simple day planner to keep track of tasks and use a programmable
cellular telephone for reminders. (Tr. 561.) Finally, Dr. Litwin opined that Plaintiff
should “avoid tasks that require [him] to work under pressure, stress, or in close
quarters with a lot of other people.” (Tr. 562.)
C.

Hearing Testimony
1.

Plaintiff’s Hearing Testimony

Plaintiff testified at his hearing as follows. Plaintiff was able to read and write.
(Tr. 40.) He had no problems sitting, standing, and walking except that he had a slight
limp in his walk. (Tr. 41.) He was terminated from prior jobs for reasons including that
he did not have transportation to get to work, and he failed to obtain a doctor’s note
when he was absent with pneumonia. (Tr. 37-39.) He quit one job as a dish washer
because he was unable to maintain the pace of the work and his employer was not

10

pleased with him. (Tr. 39.) He believed he was unable to work because “everyone
piles everything on top of [him] all at once” and he becomes “overwhelmed.” (Tr. 40.)
He also suffered short-term memory loss. (Tr. 41.) He agreed with the ALJ that it
would be helpful if work were limited to simple tasks that were explained to him. (Tr.
40-41.)
2.

Vocational Expert’s Hearing Testimony

The ALJ posed the following hypothetical to the VE:
[A]ssume an individual with the same vocational profile as the claimant in
terms of age, education and work experience, who is able to perform simple,
repetitive work . . . in a low stress environment, without demands for fast
paced, high production or frequent changes in assigned tasks. Where
changes in directions can be explained verbally.
Also, this individual would be able to interact on a superficial level, and would
be able to adapt to routine changes that are explained.
(Tr. 51-52.) The VE testified that such a person would be able to perform other work in
the national economy as a cleaner or janitor (for which there were 85,000 jobs in Ohio
and 2.1 million jobs in the nation), hand packer such as a shoe packer (for which there
were 51,000 jobs in Ohio and 778,000 jobs in the nation), and automatic car wash dryer
(for which there were 12,000 jobs in Ohio and 331,000 jobs in the nation). (Tr. 52-53.)
The ALJ posed additional limitations to the hypothetical person: the hypothetical
person would be limited to lifting 25 pounds frequently and 50 pounds occasionally;
could perform no more than occasional repetitive foot movements; and was limited to
occasional use of the non-dominant, left upper extremity. (Tr. 53-54.) The VE testified
that such a person could still perform the hand packer job if he could use his left
extremity as a “helper”; could still perform the car wash dryer job, except that the total
11

number of jobs in the national economy would be reduced by half; and could still
perform the janitor or cleaner job, except that the total number of jobs in Ohio would be
reduced to 21,000 and the total number of jobs in the national economy would be
reduced to 500,000. (Tr. 54-55.)
The ALJ then asked whether the hypothetical person could work if, because of
difficulties with concentration, he were off task up to 10 percent of the time. (Tr. 55.)
The VE responded that such a person would be able to work, but if he were off task for
15 percent of the time or more he “would have difficulty in sustaining [substantial gainful
activity].” (Tr. 56.)
The VE further testified upon Plaintiff’s counsel’s questioning that an individual
who was off task 20 percent of the time would be precluded from performing work; and
that an individual who was required to have instructions repeated to him on a daily
basis in order to remain on task would require a “special accommodation.” (Tr. 57.)
III.

STANDARD FOR DISABILITY

A claimant is entitled to receive benefits under the Social Security Act when she
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 she 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

12

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
that she 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 she 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 her from doing her
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 her from doing her 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

The ALJ made the following findings of fact and conclusions of law:
1.

The claimant meets the insured status requirements of the Social
Security Act through June 30, 2010.

2.

The claimant has not engaged in substantial gainful activity since
February 14, 2003, the alleged onset date.

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3.

The claimant has the following severe impairments: borderline
intellectual functioning secondary to status post brain trauma,
learning disability, attention deficit hyperactivity disorder[,] and left
upper extremity dysfunction.

4.

The claimant does not have an impairment of combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1.

5.

After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform
medium work . . . with the following nonexertional limitations: The
claimant is limited to only occasional use of his left, non-dominant
upper extremity and only occasional repetitive foot movements. In
addition, the claimant is limited to simple, routine work in a low stress
environment without demands for fast pace, high production quotas
or frequent changes in assigned tasks. The claimant is also limited
to work where changes in directions can be explained verbally.
Further, the claimant is limited to superficial interaction with others.
Lastly, due to difficulties with concentration, the claimant can be
expected to be off task up to fifteen percent (15%) of the time.

.....
9.

Transferability of job skills is not an issue because the claimant does
not have past relevant work.

10.

Considering the claimant’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.

The claimant has not been under a disability, as defined in the Social
Security Act, from February 14, 2002, through the date of this
decision.

(Tr. 12-22.)
V.
A.

LAW & ANALYSIS

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
14

pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(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.
The burden of showing that an error is harmful normally falls upon the party
attacking the agency’s determination. Shinseki v. Sanders, 556 U.S. 396, 129 S. Ct.
1696, 1706 (2009).
B.

Plaintiff’s Assignments of Error

Plaintiff takes issue the ALJ’s analysis of several medical and other sources, as
follows:

15

•

•

The ALJ failed to consider Dr. Radwan’s opinions that Plaintiff suffered
poor insight and that Plaintiff’s vocabulary and fund of knowledge were
in the borderline range.6

•

Although the ALJ discussed Dr. Litwin’s opinions, it is “not clear” whether
the ALJ considered Dr. Litwin’s opinion “in their entirety” because the ALJ
did not discuss Dr. Litwin’s opinions that Plaintiff may be able to pass the
GED test with accommodations such as extended time and frequent
breaks; or that construction work would be a “fair fit” for Plaintiff provided
that he could work with his hands, move around on the job, have ongoing
access to visual cues to guide his work effort, be assigned tasks that are
“action oriented to grab and hold his attention,” be able to use a day
planner to keep track of tasks, be able to use a programmable cellular
telephone for reminders, and possibly obtain counseling if interpersonal
problems and negative relationships with co-workers threatened his job
security.

•

6

Although the ALJ mentioned Dr. Frye’s opinions, the ALJ failed to discuss
Dr. Frye’s opinions in significant detail—specifically that Plaintiff would
need double the average time to complete school work in a quiet
environment with minimized distractions, written copies of classroom
lectures, open-book examinations, and individualized tutoring; and that
Plaintiff would need 24-hour supervision.

The ALJ failed to address the opinions of Plaintiff’s school psychologist,
Ms. Porter, and incorporate her opinions into Plaintiff’s RFC—namely,
that instructions and directions would have to be repeated and would be

Plaintiff argues for the first time in his Reply Brief that Dr. Radwan’s opinion
that Plaintiff exhibited a GAF score of 40 was supported by the record. Plaintiff
is cautioned that substantive arguments should not be presented for the first
time in a reply brief, as such untimely arguments may be deemed waived. See
United States v. Moore, 376 F.3d 570, 576 (6th Cir. 2004) (declining to
consider issues not raised in the appellant’s opening brief); Winnett v.
Caterpillar, Inc., 553 F.3d 1000, 1007 (6th Cir. 2009) (“These waiver and
forfeiture rules ensure fair and evenhanded litigation by requiring parties to
disclose legal theories early enough in the case to give an opposing party time
not only to respond but also to develop an adequate factual record supporting
their side of the dispute.”). Further, the ALJ found Dr. Radwan’s GAF score
unreliable because it appeared to be based solely on Plaintiff’s subjective
reports and was inconsistent with the rest of Dr. Radwan’s notes; and because
Dr. Radwan’s treatment relationship with Plaintiff was not clear. These were
valid reasons to reject Dr. Radwan’s opinions, and Plaintiff had not taken issue
with them.
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better understood if explained in a short and precise manner; more
samples would have to be given when doing something new and
different; visual materials along with verbal explanations would be helpful;
and work may need to be checked to be sure that Plaintiff remained on
task.
•

The ALJ failed to discuss Plaintiff’s September 15, 2005, IEP report,
which indicates that Plaintiff needed more time than his peers to learn
new information and required short, precise, repetitive explanations.

•

The ALJ inaccurately cited Dr. Huang’s August 22, 2003, notes by finding
that Dr. Huang opined Plaintiff had only mild cognitive, behavioral, and
memory problems. Plaintiff reported his impairments were mild, not Dr.
Huang; and Dr. Huang opined that Plaintiff had “a lot of deficits” and
should pursue tutoring over the summer “when he can concentrate
better.” In other words, Dr. Huang’s notes support the conclusion that
Plaintiff suffered limitations that are more severe than mild. Further, this
“misinterpretation of . . . evidence . . . contributed to [the ALJ’s] improper
rejection of Dr. Brown’s opinion.”

•

“[T]he ALJ’s analysis of Dr. Huhn’s opinion is ambiguous at best, and it
does not appear that he, in fact, gave the opinion any weight.” (Pl.’s Br.
18.) “[E]ither the ALJ improperly rejected Dr. Huhn’s opinion without
sufficient analysis or explanation, or he erred by giving his opinion great
weight yet finding Plaintiff not disabled.” (Pl.’s Br. 18.) Further, Dr.
Huhn’s opinions support the conclusion that Plaintiff is disabled.

For the following reasons, Plaintiff’s assignments of error are not well taken.
An ALJ can consider all the evidence without directly addressing in his written
decision every piece of evidence submitted by a party; and an ALJ need not make
explicit credibility findings as to each bit of conflicting testimony so long as his factual
findings as a whole show that he implicitly resolved such conflicts. Kornecky v. Comm’r
of Soc. Sec., 167 F. App’x 496, 508 (6th Cir. 2006) (per curiam) (quoting Loral Def.
Sys.-Akron v. N.L.R.B., 200 F.3d 436, 453 (6th Cir.1999)). Here, a review of the ALJ’s
opinion reveals that the ALJ adequately accounted for Dr. Frye’s, Dr. Radwan’s, Dr.
Litwin’s and Ms. Porter’s opinions, as well as Plaintiff’s IEP records. That evidence
17

supports the conclusion that Plaintiff suffered borderline intellectual functioning and was
moderately limited—particularly in maintaining attention, concentration, and pace. The
ALJ accounted for these impairments and limitations in his RFC assessment by finding
that Plaintiff suffered borderline intellectual functioning and was limited to: simple,
routine work in a low stress environment without the demands of a fast pace, high
production quotas, or frequent changes in assigned tasks; work where changes in
directions can be explained verbally; superficial interaction with others; and
environments where Plaintiff could be off task up to 15 percent of the time.
The additional limitations expressed by Dr. Frye, Dr. Litwin, Ms. Porter, and the
IEP report mostly were recommendations related to providing Plaintiff with a classroom
environment conducive to learning rather than vocational requirements; and Dr.
Litwan’s opinions about the extent to which Plaintiff could perform construction work are
irrelevant because the ALJ’s decision is not based on a finding that Plaintiff could
perform such work.
In short, Plaintiff has provided an inadequate basis to conclude that the ALJ
failed to consider all of the evidence and should have included additional limitations in
his RFC determination.
The ALJ reasonably concluded that Dr. Huang’s notes supported the conclusion
Plaintiff suffered only mild deficits. Dr. Huang’s observations that Plaintiff had “a lot of
deficits” and difficulty concentrating are not inconsistent with such a finding. Further,
any misinterpretation of Dr. Huang’s notes would be only harmless error, as the ALJ
nevertheless found Plaintiff moderately impaired—particularly in his activities of daily
living and in his concentration, persistence, or pace. (Tr. 13.)
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To the extent Plaintiff contends the ALJ improperly rejected Dr. Brown’s
opinions, that argument is waived, as Plaintiff suggests this argument in only one
segment of a sentence and presents no legal argument and explanation in support.
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)).
The ALJ’s assessment of Dr. Huhn’s opinions is sufficiently clear. The ALJ
noted Dr. Huhn opined, in part, that Plaintiff was markedly limited in his ability to
understand, remember, and carry out detailed instructions; that Plaintiff was markedly
limited in his ability to maintain attention and concentration for extended periods of time;
and that Plaintiff was “unemployable.” (Tr. 18-19.) The ALJ gave portions of Dr.
Huhn’s opinions “great weight” because Dr. Huhn had the opportunity to evaluate
Plaintiff; indeed, the ALJ accounted for Dr. Huhn’s opinions of marked limitations in his
RFC determination. The ALJ rejected Dr. Huhn’s opinion that Plaintiff was
“unemployable” because it was “internally inconsistent with the objective testing results”
and was an opinion of disability reserved for the Commissioner. (Tr. 19.) These are
valid reasons for rejecting that opinion, and Plaintiff has not explained how they are
insufficient.
Finally, Plaintiff’s suggests that Dr. Huhn’s opinion Plaintiff was markedly limited
supports the conclusion he is disabled because the VE testified that a person with such
marked limitations would be precluded from performing work. Plaintiff’s interpretation of
the VE’s testimony, however, is inaccurate. The VE testified that a person who was off
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task 20 percent of the time would be precluded from performing work. Plaintiff has
provided no basis to conclude that Dr. Huhn’s opinions shows Plaintiff would be off task
20 percent of the time.
Substantial evidence supports the ALJ’s decision, and “[n]o principle of
administrative law or common sense requires us to remand a case in quest of a perfect
opinion unless there is reason to believe that the remand might lead to a different
result.” Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir. 2005) (quoting Fisher v.
Bowen, 869 F.2d 1055, 1057 (7th Cir.1989)). Accordingly, and for the foregoing
reasons, Plaintiff’s assignments of error are not well taken.
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: July 12, 2012

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