Pascua v. Commissioner of Social Security
Filing
22
OPINION AND ORDER AFFIRMING the decision of the Commissioner. Signed by Magistrate Judge Norah McCann King on 12/15/2014. (pes1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
CHRISTOPHER PASCUA,
Plaintiff,
vs.
Civil Action 2:14-cv-364
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
OPINION AND ORDER
I.
Background
This is an action instituted under the provisions of 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s applications for a period of disability,
disability insurance benefits, and supplemental security income.
This
matter is before the Court, with the consent of the parties pursuant
to 28 U.S.C. § 636(c), for consideration of Plaintiff’s Statement of
Specific Errors (“Statement of Errors”), Doc. No. 16, and Defendant’s
Memorandum in Opposition, Doc. No. 21.
Plaintiff has not filed a
reply.
Plaintiff Christopher Pascua filed his applications for benefits
on June 6, 2011, alleging that he has been disabled since June 16,
2009.
PAGEID 52, 195-205.
The claims were denied initially and upon
reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on February 5, 2013, at which
plaintiff, represented by counsel, appeared and testified, as did
Steven Rosenthal, who testified as a vocational expert.
PAGEID 69.
In a decision dated February 15, 2013, the administrative law judge
concluded that plaintiff was not disabled from June 16, 2009, through
the date of the administrative decision.
PAGEID 61-62.
That decision
became the final decision of the Commissioner of Social Security when
the Appeals Council declined review on February 26, 2014.
PAGEID 36-
38.
Plaintiff was 30 years of age on the date of the administrative
decision.
See PAGEID 62, 1999.
Plaintiff is insured for disability
insurance purposes through December 31, 2014.
PAGEID 54.
Plaintiff
has past relevant work as an office clerk, technical support
representative, driver – sales route, and insurance clerk.
PAGEID 61.
He has not engaged in substantial gainful activity since his alleged
date of onset of disability.
II.
PAGEID 54.
Medical Evidence
X-rays of plaintiff’s knees in May 2008 revealed questionable
mild medial compartment joint space narrowing on the left and mild
medial compartment joint space narrowing on the right.
PAGEID 319-20.
Plaintiff underwent a mental health evaluation by Robyn Aumou,
LISW, at Netcare Corporation on July 24, 2009, upon referral by a
court “to evaluate his substance abuse, mental health and
socioeconomic status.”
PAGEID 322-33.
2
Plaintiff was assigned a
global assessment of functioning score (“GAF”) of 551 and diagnosed
with mood disorder, NOS, by history; cocaine abuse; alcohol dependence
in sustained partial remission; cannabis dependence in sustained full
remission; and attention deficit/hyperactivity disorder, hyperimpulsive type.
PAGEID 328-39.
David D. Brill, M.D., has been plaintiff’s primary care physician
since at least 2008 and has treated plaintiff for, among other things,
depression and knee pain.
PAGEID 334-60.
On December 16, 2011, Dr.
Brill noted continued complaints of knee pain, greater on the left
than on the right.
PAGEID 400.
Dr. Brill also commented that
plaintiff “can’t work” and “is disabled.” Id.
On June 13, 2012,
plaintiff’s weight was recorded at almost 400 pounds; he complainted
of knee pain with walking and physical activity.
Brill suggested right knee surgery. Id.
PAGEID 402.
Dr.
On September 11, 2012, Dr.
Brill noted that plaintiff moved slowly, walked with a limp, and had
decreased range of motion, crepitus, and swelling in the left knee.
PAGEID 424.
Plaintiff requested a knee injection which, Dr. Brill
noted, allows plaintiff to function “in terms of [activities of daily
living].” PAGEID 425.
On December 6, 2012, Dr. Brill again noted that
plaintiff walked slowly and with a limp; plaintiff also had a flat
affect, bilateral edema, and “TTP jointspace” bilaterally.
PAGEID
1
“The GAF scale is a method of considering psychological, social, and
occupational function on a hypothetical continuum of mental
health.
The GAF scale ranges from 0 to 100, with serious
impairment in
functioning at a score of 50 or below. Scores between 51 and 60 represent
moderate symptoms or a moderate
difficulty in social, occupational, or
school
functioning . . . .”
Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 436 n.1 (6th Cir. 2012).
3
422.
According to Dr. Brill, injections had helped reduce plaintiff’s
knee pain.
Id.
Plaintiff began counseling sessions with Chris Fraser, LISW, at
Positive Path Counseling in February 2012.
On February 29, 2012, Mr.
Fraser assigned a GAF of 50 and diagnosed bipolar II disorder and
ADHD.
PAGEID 405-06.
Plaintiff attended counseling sessions with Mr.
Fraser approximately once or twice per month through January 2013.
PAGEID 405-12, 432-37.
On December 6, 2012, Dr. Brill and Mr. Fraser jointly completed a
medical source statement.
PAGEID 414-15.
They opined that
plaintiff’s ability to function was “poor” (which was defined as a
“significantly limited” ability to function) in all areas related to
making occupational adjustments, intellectual functioning, and making
personal and social adjustments.
Id.
According to Dr. Brill and Mr.
Fraser, severe anxiety attacks have caused agoraphobia and plaintiff’s
depression has created “such low energy and isolation that [plaintiff]
struggles to take care of daily living skills.”
Id.
Plaintiff was evaluated by Sudhir Dubey, Psy.D., on October 20,
2011.
PAGEID 384-90.
On examination, plaintiff was measured as 6’ 2”
with a weight of 370 pounds.
PAGEID 387.
His hygiene, grooming,
posture, motor activity and interactions were appropriate.
Id.
His
gait was within normal limits, and his affect was appropriate, but he
manifested tense emotional reactions.
concentration or memory were noted.
Id.
Id.
No problems with
Plaintiff’s reported general
activities included showering, changing clothes, driving, shopping for
4
his personal needs, paying bills, and caring for pets.
Id.
He also
reported regular activities with friends and regular interactions with
family.
Id.
Dr. Dubey noted that plaintiff was performing most of
his activities of daily living and managing his money properly.
PAGEID 387-88.
According to Dr. Dubey, plaintiff’s symptoms were
stable and unlikely to change.
PAGEID 388.
Dr. Dubey assessed a GAF of 65. He diagnosed alcohol abuse in
partial remission, polysubstance dependence in remission, and
depression, NOS.
PAGEID 389.
According to Dr. Dubey, plaintiff would
be able to understand, remember, and carry out simple and multi-step
instructions in a work setting.
Id.
Plaintiff could maintain
attention, concentration, persistence, and pace sufficient to perform
simple and multi-step tasks.
his own benefits.
PAGEID 389-90.
Plaintiff could manage
PAGEID 388.
Plaintiff was consultatively evaluated by Robert D. Whitehead,
M.D., on October 21, 2011.
PAGEID 391-98.
Plaintiff’s chief
complaint was bilateral knee pain stemming from a 2003 motor vehicle
accident.
PAGEID 391.
Plaintiff had undergone right knee
arthroscopic surgeries in 2004 and 2009.
PAGEID 392.
On examination,
plaintiff was found to be morbidly obese with a normal, stable gait.
Id.
Plaintiff’s knees showed “painful range of motion, mild crepitus
with passive range of motion,” peripatellar tenderness, and medial
joint line tenderness.
the right knee.
Id.
PAGEID 393.
There was also mild effusion in
Dr. Whitehead assessed bilateral knee pain
consistent with chondromalacia, possible meniscus tear; psychiatric
5
illness; and morbid obesity.
Id.
According to Dr. Whitehead,
plaintiff
would be best suited for modified light duties where he did
not do repetitive or frequent kneeling or squatting.
He
would need the ability to sit and stand as needed for
comfort. He would not do well if he had to stand for more
than 2-3 hours at a time.
He certainly would be best
suited for a more sedentary job.
Id.
Jennifer Swain, Psy.D., reviewed the record and, on October 27,
2011, opined that plaintiff has only mild limitations in activities of
daily living and is otherwise unimpaired psychologically.
03.
PAGEID 102-
Tonnie Hoyle, Psy.D., reviewed the record and, on January 30,
2012, affirmed Dr. Swain’s opinion.
PAGEID 135-36.
Kourosh Golestany, M.D., reviewed the record and completed a
residual functional capacity evaluation on November 2, 2011.
104-05.
PAGEID
According to Dr. Golestany, plaintiff could lift and/or carry
50 pounds occasionally and 25 pounds frequently.
PAGEID 104.
Plaintiff could stand and/or walk for about six hours in an eight-hour
workday and sit for about six hours in an eight-hour workday.
104-05.
PAGEID
Plaintiff could frequently climb ramps/stairs and could
occasionally kneel, crouch, crawl, and climb ladders/ropes/scaffolds.
PAGEID 105.
Nick Albert, M.D., reviewed the record and completed a physical
functional capacity evaluation on January 31, 2012.
PAGEID 137-39.
Dr. Albert affirmed Dr. Golestany’s assessment with regard to
plaintiff’s lifting, standing, and sitting limitations.
Id.
Golestany also opined that plaintiff could frequently climb
6
Dr.
ramps/stairs, occasionally crouch, and never crawl or climb
ladders/ropes/scaffolds.
PAGEID 137-38.
Plaintiff would also have to
avoid moderate exposure to hazards and concentrated exposure to
extreme cold, wetness, and humidity.
PAGEID 138.
III. Administrative Hearing
Plaintiff testified at the administrative hearing that he is
unable to work because of depression, problems with his memory and
concentration, fluctuating mood, discomfort in going out in public,
anxiety, and inability to maintain his bank account.
PAGEID 76.
He
is unable to get out of bed two or three days per week because of his
depression.
PAGEID 76, 83.
He underwent electro-convulsive therapy
in 2008 for depression and attributes his memory loss to this
procedure.
PAGEID 86-87.
Plaintiff testified that he takes Percocet and ibuprofen for knee
pain and receives injections every three to six months.
The injections help control the pain.
PAGEID 77.
PAGEID 76-77.
His surgeon, who is
not covered by Medicaid, recommended surgery but a referral surgeon
did not agree with that recommendation.
Id.
Plaintiff also testified that he struggled to remove a 20 to 25
pound case of water from the trunk of his mother’s car.
Id.
He can
stand for ten minutes, id., and can sit for up to an hour before
needing to change positions and lie down, PAGEID 78.
12 to 14 hours a day.
He must lie down
Id.
Plaintiff is able to bathe, dress himself, and shave, but
performs these function infrequently.
7
PAGEID 80.
He can do laundry,
heat simple meals, wash dishes, vacuum, and clean his bathroom.
PAGEID 80-81.
He occasionally goes grocery shopping, but he
experiences a lot of pain after 10 or 15 minutes.
Id.
On a typical
day, plaintiff completes paperwork for Social Security and Medicaid,
goes to doctor appointments; he also plays video games but he loses
interest “real quick.”
PAGEID 81-82.
Plaintiff testified that he
“hang[s] out” with friends once every couple of weeks.
PAGEID 85-86.
The vocational expert was asked to assume a claimant with
plaintiff’s vocational profile and the residual functional capacity
(“RFC”) eventually found by the administrative law judge.
82.
PAGEID 79-
According to the vocational expert, such an individual could
perform plaintiff’s past relevant work as an office clerk and could
perform such other jobs as mail clerk, folder, and order teller.
PAGEID 91-93.
IV.
Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of depression, anxiety, arthritis, and obesity.
PAGEID 54.
The administrative law judge also found that plaintiff’s
impairments neither meet nor equal a listed impairment and leave
plaintiff with the RFC to
lift/carry
and
push/and
pull
up
to
twenty
pounds
occasionally and up to ten pounds frequently, stand/walk
for six hours within an eight-hour workday, and sit for six
hours within an eight-hour workday.
He can occasionally
balance,
stoop,
kneel,
crouch,
crawl,
and
climb
ramps/stairs, but can never climb ladders, ropes, or
scaffolds.
The claimant must avoid temperature extremes,
humidity, unprotected heights, hazardous machinery, and
vibration. The claimant can understand, remember and carry
out simple and some detailed (up to four steps) tasks and
8
job instructions. He can sustain attention, concentration,
and persistence for minimum two-hour periods.
He is
limited
to
occasional
interaction
with
supervisors,
coworkers and the general public.
He can respond
appropriately to basic changes in the workplace.
PAGEID 55-56.
Relying on the testimony of the vocational expert, the
administrative law judge found that this RFC does not preclude the
performance of plaintiff’s past relevant work as an office clerk.
PAGEID 61.
Accordingly, the administrative law judge concluded that
plaintiff was not disabled within the meaning of the Social Security
Act from June 16, 2009, through the date of the administrative
decision.
IV.
PAGEID 61-62.
Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.
Richardson v. Perales, 402
U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).
Substantial evidence is more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).
This
Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.
See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
9
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.
Kirk, 667
If the Commissioner's decision is supported by
substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.
Longworth, 402 F.3d at 595.
Plaintiff argues that the administrative law judge erred in
evaluating the medical opinions of record.
Plaintiff argues, first,
that the administrative law judge erred in failing to grant
controlling weight to Dr. Brill’s December 16, 2011 and December 6,
2012 opinions and in failing to provide good reasons for discounting
those opinions.
Statement of Errors, pp. 9-13.
The opinion of a treating provider must be given controlling
weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case
record.”
20 C.F.R. §§ 404.1527(c)(2); 416.927(c)(2).
Even if the
opinion of a treating provider is not entitled to controlling weight,
an administrative law judge is nevertheless required to evaluate the
opinion by considering such factors as the length, nature and extent
of the treatment relationship, the frequency of examination, the
medical specialty of the treating physician, the extent to which the
opinion is supported by the evidence, and the consistency of the
opinion with the record as a whole.
10
20 C.F.R. §§ 404.1527(c)(2)-(6),
416.927(c)(2)-(6); Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406
(6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004).
Moreover, an administrative law judge must provide “good
reasons” for discounting the opinion of a treating provider, i.e.,
reasons that are “‘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.’”
Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting SSR
96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
This special treatment
afforded the opinions of treating providers recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] 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, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
As noted supra, plaintiff has treated with Dr. Brill since at
least 2008.
PAGEID 334-60.
On December 16, 2011, Dr. Brill noted
that plaintiff “can’t work” and “is disabled.” PAGEID 400.
On June
13, 2012, Dr. Brill noted that plaintiff weighed almost 400 pounds and
complained of knee pain with walking and physical activity.
402.
PAGEID
On December 6, 2012, Dr. Brill, acting jointly with Mr. Fraser,
opined that plaintiff’s mental ability to function was “poor” or
“significantly limited” in all areas related to making occupational
adjustments, intellectual functioning, and making personal and social
adjustments.
PAGEID 414-15.
According to Dr. Brill and Mr. Fraser,
11
severe anxiety attacks have caused agoraphobia and plaintiff’s
depression has resulted in “such low energy and isolation that
[plaintiff] struggles to take care of daily living skills.”
Id.
Plaintiff challenges the administrative law judge’s evaluation of
Dr. Brill’s December 6, 2012 medical source statement and December 16,
2011 opinion of disability.
Statement of Errors, pp. 9-11.
The
administrative law judge categorized Dr. Brill as a treating physician
and evaluated his opinions as follows:
The
undersigned
gives
little
weight
to
the
mental
functional capacity assessment of Dr. Brill (10F).
An
[sic] medical opinion is entitled to controlling weight
when the person giving the opinion is a “treating source”,
the opinion is well supported by medically acceptable
clinical findings and laboratory diagnostic techniques, and
the opinion is not inconsistent with other substantial
evidence in the case record (20 CFR 404.1537, 416.927).
Although a treating source, Dr. Brill’s opinion does not
meet the criteria.
The undersigned finds the claimant is
not capable of unrestricted work; however, the entirety of
the record does not substantiate the restrictive mental
capacity assessment provided by Dr. Brill.
Additionally,
along with the fact that Dr. Brill is not a mental health
specialist, his treatment notes show the claimant’s mental
health is generally stable with medication (13F/1).
His
opinion is also inconsistent with the opinion/findings of
psychologist Sudhir Dubey.
Dr. Dubey completed an
extensive evaluation which provided detailed explanations
regarding inter alias the claimant’s mental content; GAF
score, sensorium and cognitive functioning; appearance and
behavior; flow of conversation and thought; along with
affect and mood.
Dr. Dubey is a mental health specialist
and his evaluation is consistent with his opinion, which
further supports affording Dr. Dubey’s opinion considerable
weight (20 CFR 404.1527(d)(5) and 416.927(d)(2)).
Dr.
Brill’s
opinion
that
the
claimant’s
physical
impairments rendered him “disabled” is similarly considered
(6F).
This opinion is inconsistent with the totality of
evidence and the claimant’s own testimony, which revealed
he is much more functional than alleged.
It is also
conclusory in that it does not give a function-by-function
analysis of the claimant’s purported limitations nor does
12
it provide a time-period.
The record does not support a
finding the claimant can never work again.
Based on the
above the undersigned affords very little weight to Dr.
Brill’s physical assessment.
PAGEID 60 (emphasis in original).
The administrative law judge did not violate the treating
physician rule in evaluating Dr. Brill’s December 6, 2012 medical
source statement regarding plaintiff’s mental impairments.
The
administrative law judge’s analysis is sufficiently specific as to the
weight given to the opinion and the reasons for assigning that weight.
The administrative law judge categorized Dr. Brill as a treating
physician, but discounted the medical source statement because it was
inconsistent with Dr. Brill’s treatment notes and other substantial
evidence in the record, including the “opinion/findings” of
consultative psychological examiner Dr. Dubey.
The administrative law
judge also noted that, unlike Dr. Dubey, Dr. Brill is not a mental
health specialist.
record.
These findings enjoy substantial support in the
Notably, Dr. Brill characterized plaintiff’s ability to
function as “poor” or “significantly limited,” PAGEID 414, but his
treatment notes from the same day indicate that plaintiff is stable on
medication.
PAGEID 429.
See also PAGEID 401 (September 2011: “Doing
OK”); 399 (March 2012: “ADD controlled;” “No adverse affects;” “No
concerning behaviors;” “ADD Rx allows him to be more productive @
home, thinks more cleanly, makes better life choices”); 431 (September
2012: “GAD stable;” on Klonopin a long time;” “no SE;” “ADD stable”).
The administrative law judge also did not err in evaluating Dr.
Brill’s December 16, 2011 opinion regarding plaintiff’s physical
13
impairments.
The administrative law judge found that Dr. Brill’s
opinion that plaintiff’s physical impairments rendered him “disabled”
is inconsistent with the evidence, including plaintiff’s own
testimony, and is impermissibly conclusory because it does not give a
function-by-function analysis of plaintiff’s limitations nor does it
indicate a time period for the purported disability.
are, again, supported by substantial evidence.
These findings
Dr. Brill’s December
16, 2011 opinion is contained in his treatment notes, which provide in
pertinent part as follows:
Here for follow-up
Cont’d knee pain L>R
Can’t work
MDD is terrible
He is disabled 2º this
Requests inject knee today
He and I have discussed risks of opiates. . . .
. . .
Signed agreement today
He takes opiates for chronic knee pain.
Helps control
enough to walk, work (when available). Otherwise he can’t
handle work at all. Needs to see ortho. But no insurance
PAGEID 400.
It is true that Dr. Brill’s treatment notes indicate that
plaintiff “Can’t work” and is disabled.
Id.
However, an opinion that
a claimant is unable to work “is tantamount to a disability opinion, a
matter reserved to the Commissioner for determination.”
See Sims v.
Comm’r of Soc. Sec., 406 F. App’x 977, 980 n.1 (6th Cir. 2011).
14
See
also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 112 (6th Cir.
2010) (“The applicable regulations provide that a statement by a
medical source that the claimant is ‘unable to work’ is not a ‘medical
opinion[;] rather, it is an opinion on an ‘issue[] reserved to the
Commissioner because [it is an] administrative finding[] that [is]
dispositive of a case, i.e., that would direct the determination or
decision of disability.’”) (quoting 20 C.F.R. § 404.1527(e)(1)).
Accordingly, Dr. Brill’s opinion that plaintiff “Can’t work” is, “as a
matter of law, ‘not given[n] any special significance.’”
402 F. App’x at 112.
See Payne,
Moreover, Dr. Brill indicated in the same
treatment notes that plaintiff’s pain medications permit him to work.
See PAGEID 400 (“He takes opiates for chronic knee pain.
Helps
control enough to walk, work (when available).”).
Plaintiff also argues that the administrative law judge erred in
evaluating Dr. Brill’s December 16, 2011 opinion by failing to
recognize Dr. Brill’s June 13, 2012 note that plaintiff’s “knee pain
increased with walking and any physical activity and that his weight
had increased to almost 400 pounds.”
Statement of Errors, p. 11.
However, Dr. Brill’s notes actually indicate that these were
plaintiff’s complaints rather than Dr. Brill’s findings. See PAGEID
402.
This distinction is significant because the administrative law
judge found that plaintiff’s subjective complaints of pain were not
credible to the extent that they are inconsistent with the RFC
determination, PAGEID 57-59, and plaintiff has not challenged the
administrative law judge’s credibility determination.
15
Moreover, the
Court notes that Dr. Brill’s June 13, 2012 treatment notes do not
constitute medical opinions, see 20 C.F.R. §§ 404.1527(a)(2),
416.927(a)(2) (“Medical opinions are 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.”),
and the administrative law judge is not required to cite every piece
of medical evidence.
Boseley v. Comm'r of Soc. Sec. Admin., 397 F.
App'x 195, 199 (6th Cir. 2010) (“Neither the ALJ nor the Council is
required to discuss each piece of data in its opinion, so long as they
consider the evidence as a whole and reach a reasoned conclusion.”)
(citing Kornecky v. Comm'r of Soc. Sec., 167 F. App’x 496, 507–08 (6th
Cir. 2006)).
Because the administrative law judge correctly applied the
standards of the treating physician rule to her evaluation of Dr.
Brill’s opinions, and because substantial evidence supports her
findings in that regard, the Court finds no error with the
Commissioner's decision to that extent.
Plaintiff next argues that the administrative law judge erred by
failing to evaluate Mr. Fraser’s treatment notes and by failing to
“acknowledge that Mr. Fraser was a cosignatory on the mental
functional capacity assessment attributed solely to Dr. Brill.”
Statement of Errors, pp. 15-16.
16
As a licensed social worker, Mr. Fraser is categorized as an
“other source,” rather than an “acceptable medical source.”
§§ 404.1513(d)(3); 416.913(d)(3).
20 C.F.R.
Administrative law judges have the
“discretion to determine the proper weight to accord opinions
from ̔other sources.’”
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532,
541 (6th Cir. 2007) (citing Walters v. Comm’r of Soc. Sec., 127 F.3d
525, 530 (6th Cir. 1997)).
Evidence from other sources may be
considered “to show the severity of [the claimant’s] impairment(s) and
how it affects [the claimant’s] ability to work.”
404.1513(d)(1); 416.913(d)(1).
20 C.F.R. §§
Among the factors to be considered in
evaluating the opinions of these “other sources” are the length of
time and frequency of treatment, consistency with other evidence, the
degree to which the source presents relevant evidence to support the
opinion, how well the opinion is explained, whether the source has a
special expertise, and any other factor supporting or refuting the
opinion.
SSR 06-03p, 2006 WL 2329939, at *4-5 (Aug. 9, 2006).
An
administrative law judge need not weigh all these factors in every
case; the evaluation depends on the particular facts in each case.
See id. at *5.
However, the administrative law judge “generally
should explain the weight given to opinions from these ̔other
sources,’ or otherwise ensure that the discussion of the evidence in
the determination or decision allows a claimant or subsequent reviewer
to follow the adjudicator’s reasoning.”
Id. at *6.
The administrative law judge acknowledged that plaintiff
“consults with a counselor” and expressly referred to Mr. Fraser’s
17
treatment notes, but found that plaintiff’s “mental health treatment
is primarily managed by Dr. Brill.”
PAGEID 58.
The administrative
law judge also considered the medical source statement completed by
Dr. Brill and Mr. Fraser and assigned it “little weight.”
PAGEID 60.
As discussed supra, the administrative law judge provided good reasons
for discounting the medical source statement and she was sufficiently
specific as to the reasons for assigning the opinion little weight.
The administrative law judge’s evaluation is supported by substantial
evidence and it is clear that she considered Mr. Fraser’s treatment
notes; the administrative law judge’s failure to expressly acknowledge
that Dr. Brill’s medical source statement was cosigned by Mr. Fraser,
an “other source,” is not reversible error.
Plaintiff next argues that the administrative law judge erred in
evaluating Dr. Whitehead’s opinion.
Statement of Errors, pp. 16-18.
Plaintiff specifically argues that the administrative law judge erred
in adopting portions of Dr. Whitehead’s opinion without explaining why
other portions were rejected.
As a one-time consultative examiner, Dr. Whitehead is properly
classified as a nontreating source.
See 20 C.F.R. §§ 404.1502,
416.902 (“Nontreating source means a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not
have, or did not have, an ongoing treatment relationship with [the
claimant].”).
With regard to nontreating sources, the agency will
ordinarily “give more weight to the opinion of a source who has
examined [the claimant] than to the opinion of a source who has not
18
examined” the claimant.
Id. (quoting 20 C.F.R. § 404.1527(d)(1)).
In
determining the weight to be given the opinion of a nontreating
source, an administrative law judge should consider such factors as
“the evidence that the physician offered in support of h[is] opinion,
how consistent the opinion is with the record as a whole, and whether
the physician was practicing in h[is] specialty.”
Ealy v.
Commissioner of Social Sec., 594 F.3d 504, 514 (6th Cir. 2010) (citing
20 C.F.R. § 404.1527(d)).
Plaintiff was consultatively examined and evaluated by Dr.
Whitehead on October 21, 2011.
PAGEID 391-98.
be morbidly obese with a normal, stable gait.
Plaintiff was found to
Id.
Plaintiff’s right
knee showed “some mild effusion with painful range of motion, mild
crepitus with passive range of motion,” peripatellar tenderness, and
medial joint line tenderness.
PAGEID 393.
Dr. Whitehead made similar
findings in the left knee except that no effusion was noted.
Id.
Dr.
Whitehead assessed bilateral knee pain consistent with chondromalacia,
possible meniscus tear; psychiatric illness; and morbid obesity.
Id.
Dr. Whitehead opined that plaintiff
would be best suited for modified light duties where he did
not do repetitive or frequent kneeling or squatting.
He
would need the ability to sit and stand as needed for
comfort. He would not do well if he had to stand for more
than 2-3 hours at a time.
He certainly would be best
suited for a more sedentary job.
Id.
The administrative law judge evaluated Dr. Whitehead’s opinion as
follows:
19
Consultative examiner Dr. Whitehead is an acceptable
medical source who performed an evaluation and rendered an
opinion regarding the nature and severity of the claimant’s
condition.
Dr. Whitehead’s opinion is partially, but not
fully, consistent with the objective record as a whole
(5F).
Dr. Whitehead found some tenderness and pain with
range of motion in the lower extremities, which is
consistent with other medical findings.
However, the
claimant was able to walk with a normal and stable gait
without the use of assistive devices.
His motor strength
was normal throughout without deficits.
His heel to toe
walking
was
normal,
and
there
was
no
ligamentous
instability.
As such, Dr. Whitehead’s opinion is given
partial weight in so much that it is consistent with the
determination made herein (20 CFR 404.1527(d)(1)(3)(4),
416.927(d)(1)(3)(4)).
PAGEID 60.
The administrative law judge relied on Dr. Whitehead’s opinion in
forming her RFC assessment and was sufficiently specific as to her
reasons for doing so.
It is also apparent that the administrative law
judge considered the appropriate factors in evaluating Dr. Whitehead’s
opinion.
Plaintiff argues that the administrative law judge failed
“to include the identified need to sit and stand as needed for comfort
and to stand for no more than two to three hours at a time in her
finding regarding Plaintiff’s residual functional capacity.”
Statement of Errors, pp. 17-18.
However, the administrative law judge
assigned weight to Dr. Whitehead’s opinion only to the extent that it
was consistent with the RFC determination.
PAGEID 60.
The
administrative law judge also discussed evidence that was inconsistent
with the portions of Dr. Whitehead’s opinion that she did not adopt.
Plaintiff disagrees with the administrative law judge’s evaluation of
the evidence, but this Court is not permitted to reweigh that evidence
20
where, as here, the administrative law judge followed the proper
procedures and her analysis is supported by substantial evidence.
In short, and having carefully considered the entire record in
this action, the Court concludes that the decision of the Commissioner
is supported by substantial evidence.
Accordingly, the decision of
the Commissioner is AFFIRMED.
This action is hereby DISMISSED. The Clerk shall enter FINAL
JUDGMENT pursuant to Sentence 4 of 42 U.S.C. § 405(g).
December 15, 2014
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
21
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