Bulick v. Commissioner of Social Security Administration

Filing 22

Memorandum Opinion and Order: The Report and Recommendation of Magistrate Judge Vernelis K. Armstrong (Doc. 18 ) is REJECTED to the extent it recommends remand for an analysis of the treating physician rule as it applies to Dr. Dang. The remainder of the R&R is ACCEPTED for the reasons stated therein. The decision of the Commissioner is AFFIRMED. Judge Patricia A. Gaughan on 5/13/14. (LC,S)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

Nancy Lee Bulick,
Plaintiff,
Vs.
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant.

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CASE NO. 5:13 CV 1432
JUDGE PATRICIA A. GAUGHAN

Memorandum of Opinion and Order

INTRODUCTION
This matter is before the Court upon the Report and Recommendation (“R&R”) of
Magistrate Judge Vernelis K. Armstrong (Doc. 18) recommending that the decision of the
Commissioner be reversed and this matter remanded to defendant for further proceedings. The
government objects to the R&R. For the following reasons, the decision is REJECTED in PART
and ACCEPTED in PART. The decision of the Commissioner is AFFIRMED.
ANALYSIS

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The government objects1 to the Magistrate Judge’s determination that the
Administrative Law Judge (“ALJ”) erred in determining that the ALJ erroneously applied the
treating physician rule to Dr. Dang’s opinion. According to the government, Dr. Dang’s
treatment notes are not medical “opinions” and, therefore, the treating physician rule does not
apply. In response, plaintiff argues that while Dr. Dang did not submit a treating source medical
opinion in a traditional form, the treatment notes show that the ALJ should have considered
plaintiff’s mental limitations when calculating plaintiff’s residual functional capacity.
Upon review, the Court agrees with the government. 20 C.F.R. § 404.1527(a)(2) defines
“medical opinions” as “statements from physicians and psychologists or other acceptable
medical sources that reflect judgments about the nature and severity of your impairment(s),
including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s),
and your physical or mental restrictions.” See also, Dunlap v. Commission of Social Security,
509 Fed. Appx. 472 (6th Cir. Dec. 27, 2012)(statements made by treating physician did not
constitute an “opinion”as that term is defined in 20 C.F.R. § 404.1527(a)(2)); Messina v.
Commissioner of Social Security, 2013 WL 1196597 (S.D. Ohio March 25, 2013)(records
containing treatment notes only are not “medical opinions” and, therefore, the treating source
rule does not apply). Here, plaintiff points to no medical opinion provided by Dr. Dang. Rather,
plaintiff simply points out the symptoms she reported to Dr. Dang. For example, plaintiff argues

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Although plaintiff purports to object to the Magistrate Judge’s
conclusion that the ALJ properly applied the treating physician
rule to the opinion of Dr. Ahmad, this objection is untimely. The
purported objection appears only in response to the government’s
objection. Because the objection is not timely filed and plaintiff
never sought leave to file her untimely objection, it will not be
considered by the Court.
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as follows:
However, Dr. Dang’s treatment notes show that [plaintiff] has anxiety and depression
which causes her to be easily irritated. She is crying all the time. She has mood swings,
sleep problems, and is unable to concentrate. She has increasing anxiety. And, she has
experienced suicidal and homicidal ideations.
These statements all appear under the heading “symptoms” in the treatment notes.
Although it appears that Dr. Dang diagnosed plaintiff with depression and anxiety, there is no
statement of “nature and severity” of the symptoms or impairments, the prognosis, or any
restriction Dr. Dang believes the depression or anxiety would cause plaintiff in a work setting.
Therefore, the treatment notes do not constitute “opinion” evidence. As such, the ALJ did not
err in failing to discuss the factors relevant to the treating physician rule as the rule applies only
to opinion evidence. See, 20 CFR § 404.1527 (entitled “Evaluating opinion evidence”); 20 CFR
§ 404.1527(“Treatment relationship. Generally, we give more weight to opinions from your
treating sources, since these sources are likely to be the medical professionals most able to
provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique
perspective to the medical evidence that cannot be obtained from the objective medical findings
alone or from reports of individual examinations....”). Accordingly, because plaintiff points to
no medical opinion offered by Dr. Dang, the ALJ did not err in failing to apply the treating
physician rule. As such, the government’s objection is well-taken.
Although not directly responsive to defendant’s objection, plaintiff argues that the ALJ
wholly failed to consider Dr. Dang’s treatment notes as evidence in plaintiff’s case. The
argument is rejected. As the Magistrate Judge carefully noted, the ALJ expressly referred to this
evidence in her opinion:
The claimant does not seek treatment with a psychologist or a psychiatrist, nor does she
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attend counseling sessions. Her only mental health treatment is a prescribed medicinal
regimen through her primary care provider, Son N. Dang MD. Dr. Dang’s notes
indicated that the claimant complained of feeling sad, nervous, tired, having difficulty
sleeping, and a lack of energy.
Thus, contrary to plaintiff’s argument, it is apparent from the face of the opinion that the
ALJ did in fact consider this evidence. Accordingly, plaintiff’s argument is not well-taken.
CONCLUSION
For the foregoing reasons, the Report and Recommendation of Magistrate Judge Vernelis
K. Armstrong (Doc. 18) is REJECTED to the extent it recommends remand for an analysis of the
treating physician rule as it applies to Dr. Dang. The remainder of the R&R is ACCEPTED for
the reasons stated therein. The decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

/s/ Patricia A. Gaughan
PATRICIA A. GAUGHAN
United States District Judge
Dated: 5/12/14

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