Diemer v. Commissioner of Social Security

Filing 17

ORDER ADOPTING the REPORT AND RECOMMENDATION 12 and this case is DISMISSED. Signed by Judge Gregory L Frost on 7/31/13. (sem1)

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

MICHAEL R. DIEMER,
Plaintiff,
Civil Action 2:12-cv-610
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.

CAROLYN COLVIN,
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

ORDER
Plaintiff, Michael R. Diemer, brings this action under 42 U.S.C. § 405(g) for review of a
final decision of the Commissioner of Social Security (“Commissioner”) denying his application
for social security disability insurance benefits and supplemental security income. This matter is
before the Court for consideration of Diemer’s Objections (ECF No. 13) to the Magistrate
Judge’s June 19, 2013 Report and Recommendation (ECF No. 12), the Commissioner’s response
to Diemer’s objections (ECF No. 15), and Diemer’s reply to the Commissioner’s response (ECF
No. 16.) The Magistrate Judge recommended that the Court affirm the decision of the
Commissioner and dismiss this case. For the reasons stated below, the Court OVERRULES
Diemer’s Objections, ADOPTS the Magistrate Judge’s Report and Recommendation, and
DISMISSES this case.
I. Background
Neither party objects to the Magistrate Judge’s summary of the facts as set forth in her
Report and Recommendation. (ECF No. 12, at Page ID # 484-91.) The Court consequently

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adopts the fact summary and repeats only those facts relevant to the resolution of Diemer’s
Objections.
Plaintiff, Michael R. Diemer, filed his current application for disability insurance benefits
on January 29, 2009, and his current application for supplemental security income on February 2,
2009. Diemer alleges that he has been disabled since November 19, 1985, mostly on the basis of
mental impairments. After an administrative hearing, the administrative law judge concluded
that Diemer was not disabled from December 30, 2004, through the date of decision. The
decision became final on May 14, 2012, when the Appeals Council declined review.
The record contains an extensive medical history including treatment, examinations,
and/or review and opinions by Dennis A. Marikis, Ph. D., John S. Reece, Psy. D., Karla Voyten,
Ph. D., Tonnie Hoyle, Psy. D., Scott Allen Gatton, M. Div., LSW., Carol Crane, QMHS, Suseela
Nalluri, M.D., Jessica Wade, M.A., and Claire Robitaille, Ph. D. The relevant assessments of
Diemer by these individuals all occurred between January 2009 and November 2010. In his
objections, Diemer objects to the treatment of evidence provided by Dr. Nalluri, Drs. Voyten and
Hoyle, and Dr. Marikis.
Dr. Nalluri saw Diemer for treatment purposes on two occasions, August 1 and 4, 2010.
During this time, Dr. Nalluri found that Diemer’s thought process was logical, that his mood was
euphoric, that he was non-aggressive and had a full affect, that his behavior was impulsive and
hyperactive, and that he demonstrated poor judgment. On October 30, 2010, Dr. Nalluri filled
out a mental RFC questionnaire on Diemer’s behalf. Dr. Nalluri opined that Diemer had marked
limitations in 16 of 16 areas of social interaction, sustained concentration and persistence, and
adaptation. Further, Dr. Nalluri stated that Diemer’s condition would likely deteriorate if he
were under stress, that Diemer could not manage his own funds, and that he would likely have

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marked limitations in social interaction even where only minimal contact or interaction with
others is required.
Drs. Voyten and Hoyle provided non-examining source opinions. Dr. Voyten reviewed
Diemer’s medical record in May 2009 on behalf of a state agency and completed a Psychiatric
Review Technique form. Dr. Voyten opined that Diemer had a mild limitation in maintaining
social functioning and concentration, persistence, or pace, and no limitation in his daily living
activities. Dr. Hoyle reviewed the medical record in July 2009 and affirmed Dr. Voyten’s
conclusions.
Dr. Marikis evaluated Diemer on February 17, 2009, for purposes of determining
Medicaid eligibility and offered an extensive evaluation of Diemer at that time. Dr. Marikis’s
findings are set out fully in the Report and Recommendation. The only statement of opinion
made by Dr. Marikis that is relevant to the objections before the Court is that Diemer “does not
have the social capacity and interpersonal ability to manage the world of work. However, there
very well may be aspects in which he could be affectively trained in the future to do.” (ECF No.
12, at Page ID # 486.)
Based on the evidence, the administrative law judge concluded that Diemer had severe
impairments consisting of attention deficit hyperactivity disorder, Asperger’s syndrome,
borderline personality disorder with antisocial features, bipolar I mania, chronic dysthmic
disorder also diagnosed as depression, and obsessive compulsive disorder. The administrative
law judge concluded, however, that Diemer was not disabled within the meaning of the Social
Security Act.

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II. Standard Involved
If a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
The Court’s review “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 (6th Cir. 2010) (quoting Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be
conclusive.”). Put another way, a decision supported by substantial evidence is not subject to
reversal, even if the reviewing court might arrive at a different conclusion. Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986). “Substantial evidence exists when ‘a reasonable mind could
accept the evidence as adequate to support a conclusion [and] . . . presupposes that there is a
zone of choice within which the decision-makers can go either way, without interference by the
courts.’ ” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (internal citation
omitted). Even if supported by substantial evidence, however, “ ‘a decision of the Commissioner
will not be upheld where the [Commissioner] fails to follow its own regulations and where that
error prejudices a claimant on the merits or deprives the claimant of a substantial right.’ ”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen v. Comm’r of
Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

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III. Discussion
As an initial matter, this Court rejects Diemer’s reply to the Commissioner’s response.
(ECF No. 16.) Diemer did not seek leave to file a reply, and there is no allowance for a reply in
either the Federal Rules of Civil Procedure or the Report and Recommendation. See Fed. R. Civ.
P. 72(b)(2) (“Within 14 days after being served with a copy of the recommended disposition, a
party may serve and file specific written objections . . . [a] party may respond to another party's
objections within 14 days after being served with a copy.”); ECF No. 12, at Page ID # 503.
Because Diemer did not ask for leave to file a reply in this case, the Court will not consider the
filing or any arguments contained therein. (ECF No. 16.)
Diemer raises objections to both the conclusions of the administrative law judge and the
Magistrate Judge in regards to the weighing and interpretation of evidence presented by Drs.
Nalluri, Voyten, Hoyle, and Marikis. First, Diemer objects to the administrative law judge’s
failure to apply greater weight to Dr. Nalluri’s opinion because the doctor is a treating source,
and Diemer argues that the Magistrate Judge impermissibly substituted a basis for decision that
the administrative law judge did not rely on in making his decision on the weight to give Dr.
Nalluri’s opinion. Second, Diemer objects to the Magistrate Judge’s conclusion that the
administrative law judge properly explained how much weight he accorded to the opinions of
Drs. Voyten and Hoyle. Finally, Diemer objects on the grounds that the Magistrate Judge and
the administrative law judge both failed to accord proper weight to Dr. Marikis’s vocational
conclusion about Diemer’s ability to work.
This Court finds Diemer’s objection that the Magistrate Judge “substituted a basis for
decision upon which the [administrative law judge] did not rely,” (ECF No. 13, at Page ID #
507), to be without merit. This Court agrees with the Magistrate Judge’s conclusion that Dr.

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Nalluri was not a treating source. Under Sixth Circuit case law, a doctor is generally not a
treating physician after only two examinations. See Kornecky v. Comm’r of Soc. Sec., 167 F.
App’x 496, 506-07 (6th Cir. 2006) (internal citations omitted) (“[A] plethora of decisions
unanimously hold that a single visit does not constitute an ongoing treatment relationship . . .
[i]ndeed, depending on the circumstances and the nature of the alleged condition, two or three
visits often will not suffice for an ongoing treatment relationship.”). Under these circumstances,
two visits within four days was not adequate to give Dr. Nalluri a “longitudinal” picture of
Diemer’s mental health or to develop “an ongoing treatment relationship.” Because no treatment
relationship existed, Dr. Nalluri’s reports are not entitled to the increased deference and required
statement of findings on the weight such opinions should garner that is afford to the opinions of a
treating source. 20 C.F.R. §§ 404.1527(c)(2)-(6), 416.927(c)(2)-(6).
Diemer’s second and third objections to the treatment of the opinions of Drs. Voyten,
Hoyle, and Marikis are not objections to the Report and Recommendation, but are more properly
characterized as objections to the findings of the administrative law judge. The objections,
indeed, resemble the issues raised by Diemer in his Statement of Specific Errors. (ECF No. 9, at
Page ID # 453-57.) This Court concludes that these are not new objections and agrees with the
Magistrate Judge’s thorough analysis on these points. (ECF No. 12, at Page ID # 496-502.)

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IV. Conclusion
For the reasons stated above, this Court OVERRULES Diemer’s Objections
(ECF No. 13), ADOPTS the Magistrate Judge’s Report and Recommendation (ECF No. 12), and
DISMISSES this case. The Clerk shall enter judgment accordingly and terminate this action on
the docket records of the United States District Court for the Southern District of Ohio, Eastern
Division.
IT IS SO ORDERED.

/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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