KIMBERLY A. JOLSON, Magistrate Judge.
Plaintiff, Paul Everett Custer, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for social security disability insurance benefits ("DIB") and supplemental security income ("SSI"). In those applications, Plaintiff alleged disability beginning December 15, 2012, due to anxiety, depression, and involuntary muscle spasms/vocal tics. (Tr. 320, PAGEID #: 354). For the reasons that follow, it is
Plaintiff filed this case on August 12, 2016 (Doc. 1), and the Commissioner filed the administrative record on October 24, 2016 (Doc. 7). Plaintiff filed a Statement of Errors on December 22, 2016 (Doc. 10), the Commissioner responded on February 1, 2017 (Doc. 11), and Plaintiff filed a Reply Brief on February 15, 2017 (Doc. 12).
Joel R. Schwartz, D.O. began treating Plaintiff in 2013, generally seeing him every five months for thirty minutes. (Tr. 57, PAGEID #: 87; Tr. 322, PAGEID #: 356). Dr. Schwartz opined on three occasions that Plaintiff is unable to work due to his condition. The first time was in a November 6, 2013 letter, which states without elaboration that Plaintiff is under his care and unable "to work at this time due to his condition." (Tr. 1602, PAGEID #: 1641). The second time was in a February 10, 2014 letter, which again states without elaboration that Plaintiff is under his care and "unable to work in gainful employment now or any time in the foreseeable future." (Tr. 1166, PAGEID #: 1204). Finally, the third time was in a mental impairment questionnaire completed on January 26, 2015. (Tr. 320, PAGEID #: 354). In the questionnaire, Dr. Schwartz opined that Plaintiff is incapable of working eight hours per day for five days per week (Tr. 329, PAGEID #: 363), based his findings that:
The record also contains Dr. Schwartz's examination notes. Those notes reflect that Plaintiff told Dr. Schwartz on January 29, 2014, that his medication was helping him "tremendously," he had no difficulties with anxiety, and his sleeping had improved. (Tr. 1326-27, PAGEID #: 1364-65). Plaintiff did, however, report instances "of becoming angry with his girlfriend." (Tr. 1326, PAGEID #: 1364). During that appointment, Dr. Schwartz observed no abnormality in Plaintiff's speech. (Tr. 1327, PAGEID #: 1365).
When Dr. Schwartz examined Plaintiff on May 7, 2014, he denied feeling depressed or anxious or having sleep problems. (Tr. 1435-36, PAGEID #: 1474-75). Dr. Schwartz noted that Plaintiff had some speech difficulty, but it was "not any different than what it had been previously." (Tr. 1436, PAGEID #: 1475). Dr. Schwartz's progress notes from a July 30, 2014 appointment provide, inter alia, that Plaintiff:
(Tr. 1404, PAGEID #: 1443). Dr. Schwartz found repeatedly that Plaintiff had no abnormality in his facial, oral, extremity, or trunk movements. (Tr. 1327-30, PAGEID #: 1365-68 (January 29, 2014); Tr. 1303-1304, PAGEID #: 1341-42 (February 12, 2014); Tr. 1470-72, PAGEID #: 1510-1511 (March 12, 2014); Tr. 1433-34, PAGEID #: 1472-73 (May 7, 2014); Tr. 1402, PAGEID #: 1441 (July 30, 2014)).
Administrative Law Judge Edward P. Studzinski (the "ALJ") held a hearing on February 24, 2015. (Tr. 35, PAGEID #: 54). During the hearing, Plaintiff testified that he was treated for depression in December 2012, and the medication prescribed to him caused side effects, including stomach spasms or diaphragm spasms, also referred to as "intractable hiccups," and speech problems. (Tr. 43-44, PAGEID #: 73-74). Plaintiff later changed his medication for the spasms, which provided some relief. (Tr. 46, PAGEID #: 76). Because Plaintiff is a veteran, he received care through the Veteran's Administration ("VA"). (Tr. 41, PAGEID #: 71 (noting Plaintiff's service in the Navy and National Guard)). Plaintiff also had a carpet-installing business in December 2012, which he says "fell apart" due to his depression. (Tr. 43-44, PAGEID #: 73-74).
During the hearing, the ALJ noted Dr. Schwartz's opinion that Plaintiff is unable to work (Tr. 49, PAGEID #: 79 (citing Tr. 1602, PAGEID #: at 1641; Tr. 1605, PAGEID #: 1644)); however, he found it "conclusionary" with "no specific limitation." (Tr. 53, PAGEID #: 83). The relevant exchange is as follows:
(Tr. 53, PAGEID #: 83).
The ALJ asked Plaintiff to reconcile Dr. Schwartz's opinion that he was unable to work with his activities of daily living, which include doing yardwork, teaching his nephew how to shoot, driving, and watching his one-year-old granddaughter for an hour one day a week. (Tr. 49-50, PAGEID #: 79-80; Tr. 58, PAGEID #: 88; Tr. 47, PAGEID #: 77; see also Tr. 47-48, PAGEID # 77-78 (the ALJ discussing Plaintiff's fishing, "arranging a hayride," and "helping his neighbor cut hay")). The ALJ also noted that Plaintiff attended a Navy reunion out of town and enjoys time with his children. (Tr. 57, PAGEID #: 87). Plaintiff explained that he has "good days" and "bad days." (Tr. 51, PAGEID #: 81).
Plaintiff stated that, on a good day, he can think clearly, has less jerking movements, works in the garden, mows the yard, and helps his neighbor with his large farm, riding a fourwheeler and hooking and unhooking wagons. (Id.). Conversely, Plaintiff explained that, on a bad day, he "jerk[s]" and "can't focus." (Id.). Plaintiff testified that he has more bad days than good days. (Tr. 55, PAGEID #: 85). Plaintiff lives in a trailer with his girlfriend, who manages his finances, including his monthly VA payments. (Tr. 58, PAGEID #: 88; Tr. 63, PAGEID #: 93).
Cheryl R. Hoiseth, a Vocational Expert ("VE"), also testified at the hearing. (Tr. 64, PAGEID #: 94). The VE testified that an individual with Plaintiff's residual functional capacity ("RFC") could not perform Plaintiff's past relevant work as a carpet installer. (Tr. 67, PAGEID #: 97). However, the VE opined that, considering the ALJ's restrictions, there would be other jobs the individual could perform, such as janitor and cleaner. (Id.).
The ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2012, and he has not engaged in substantial gainful activity since December 12, 2012, the alleged onset date. (Tr. 14, PAGEID #: 44). The ALJ concluded that Plaintiff had the following severe impairments: PTSD, anxiety disorder, mood disorder, tic disorder not otherwise specified, and orofacial dyskinesia, none of which met or equaled the requirements of any section of the Listing of Impairments. (Tr. 14, PAGEID #: 44).
The ALJ found that Plaintiff has:
(Tr. 18, PAGEID #: 48).
The ALJ noted that Dr. Schwartz's opinion that Plaintiff is unable work, but he assigned it "no weight" for several reasons. (Tr. 20, PAGEID #: 50). First, the ALJ found that Dr. Schwartz's opinion is a "conclusion not supported by an analysis of [Plaintiff's] functional abilities." (Id.). Second, he found that "the medical evidence, particularly Dr. Schwartz's mental status examinations that repeatedly show normal findings, do not support such an extreme finding." (Id.). The ALJ also considered, inter alia, the VA's findings but determined that "the overall evidence does not support finding that the claimant has more limitations than have already been provided for in his [RFC]." (Tr. 22, PAGEID #: 52).
According to the ALJ, considering Plaintiff's age, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that he can perform. (Tr. 24, PAGEID #: 54). Based upon the foregoing, the ALJ concluded that Plaintiff has not been under a disability since December 15, 2012, and was not entitled to benefits. (Tr. 24-25, PAGEID #: 54-55).
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." Winn v. Comm'r of Soc. Sec., 615 F. App'x 315, 320 (6th Cir. 2015); see 42 U.S.C. § 405(g). "[S]ubstantial evidence is defined as `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.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner's findings of fact must also be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must "take into account whatever in the record fairly detracts from [the] weight" of the Commissioner's decision. Rhodes v. Comm'r of Soc. Sec., No. 2:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
Plaintiff sets forth two statements of error. First, he argues that "[t]he ALJ failed to properly consider and weigh" Dr. Schwartz's opinion. (Doc. 10 at 8). Second, Plaintiff asserts the ALJ erred in failing to properly consider and weigh his VA rating decisions. (Id. at 11). The Court considers Plaintiff's arguments in turn.
Two related rules govern how an ALJ is required to analyze a treating physician's opinion. Dixon v. Comm'r of Soc. Sec., No. 3:14-cv-478, 2016 WL 860695, at *4 (S.D. Ohio Mar. 7, 2016). The first is the "treating physician rule." Id. The rule requires an ALJ to "give controlling weight to a treating source's opinion on the issue(s) of the nature and severity of the claimant's impairment(s) if the 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." LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 384 (6th Cir. 2013) (quoting 20 C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). Closely associated is "the good reasons rule," which requires an ALJ always to give "good reasons . . . for the weight given to the claimant's treating source opinion." Dixon, 2016 WL 860695, at *4 (quoting Blakely, 581 F.3d at 406 (alterations in original)); 20 C.F.R. § 404.1527(c)(2). The treating physician rule and the good reasons rule together create what has been referred to as the "two-step analysis created by the Sixth Circuit." Allums v. Comm'r of Soc. Sec., 975 F.Supp.2d 823, 832 (N.D. Ohio 2013).
In this case, the ALJ first addressed Dr. Schwartz's November 6, 2013 and February 10, 2014 letters stating that Plaintiff is unable to work. He gave them no weight because they opine on a matter reserved to the Commissioner, reach a conclusion unsupported by Plaintiff's functional abilities, and are unsupported by the medical evidence. (Tr. 20, PAGEID #: 50 (finding the letters unsupported by, inter alia, Dr. Schwartz's mental status examinations, which show normal findings repeatedly)). The ALJ cited Dr. Schwartz's findings that Plaintiff: did not display any involuntary movements (Tr. 19, PAGEID #: 49 (citing records from January 2014, February 2014, March 2014, May 2014, and July 2014)); had mental-status exams within normal limits (id. (citing records from January 2014, February 2014, March 2014, May 2014, and July 2014)), including speech without any impediments (id. (citing records from January 2014, February 2014, March 2014, and May 2014)); and denied anxiety-related symptoms (id.; (citing records from May 2014)) and side effects from his medication (id.; (citing records from July 2014)). (See also Tr. 20, PAGEID #: 50 (stating that Plaintiff's "treating physician, Dr. Schwartz, repeatedly noted no involuntary movements")). The ALJ also referred to Dr. Schwartz's note that Plaintiff "goes to Wal-Mart with his girlfriend and . . . while he becomes anxious at times, he does not leave and is able to get the shopping completed." (Tr. 19, PAGEID #: 49).
The ALJ likewise considered Dr. Schwartz's January 26, 2015 mental impairment questionnaire. (Tr. 20, PAGEID #: 50). After setting forth Dr. Schwartz's questionnaire answers in detail, the ALJ again gave Dr. Schwartz's opinion no weight based on his determination that the record fails to support the "finding that the claimant has marked limitations in social functioning, an inability to get along with others, or any displays of inappropriate behavior." (Tr. 20-21, PAGEID #: 50-51). In his discussion of Plaintiff's social functioning, the ALJ cited Plaintiff's testimony that he has a girlfriend (Tr. 16, PAGEID #: 46), and function report answers that he does not have any problems getting along with others, including authority figures, and spends time with family. (Tr. 289, PAGEID #: 323; Tr. 291, PAGEID #: 325; Tr. 299, PAGEID #: 333). The ALJ also noted that "[d]espite the claimant's speech difficulties, he was able to testify at the hearing." (Tr. 20, PAGEID #: 50).
In the present case, the ALJ's explanation for assigning no weight to Dr. Schwartz's opinions constituted sufficient detail to satisfy the good-reasons requirement. Considered in context, it is sufficiently clear that the ALJ assigned no weight to Dr. Schwartz's opinions based on his determination that they were unsupported by his treatment notes and the objective evidence as a whole. In other words, the ALJ found that, despite the treating relationship, Dr. Schwartz's opinions lacked sufficient evidence to support their severity. For these reasons, it was not error for the ALJ to refuse to assign weight to them.
Plaintiff next claims the ALJ erred in failing to consider and weigh properly his VA rating decisions. Although the ALJ must consider Plaintiff's VA rating decisions, they are nonbinding and are not entitled to any specific weight. See Briskey v. Astrue, No. 1:09-cv-2705, 2011 WL 672553, at *3-4 (N.D. Ohio Feb. 15, 2011); see also Fuller v. Astrue, No. 3:10-cv-330, 2011 WL 2039303, at * 8 (S.D. Ohio Apr. 14, 2011) (citing 20 C.F.R. § 404.1504 (stating that the Commissioner is not bound by findings of another governmental agency concerning whether an individual is disabled)). However, the ALJ is required to provide reasons for the weight assigned. See Briskey, 2011 WL 672553, at *4 (citing Proctor v. Comm'r of Soc. Sec., No. 1:09-cv-127, 2010 WL 4026083, at *9 (S.D. Ohio Sept. 17, 2010)); Social Security Ruling 06-03p.
In this case, the ALJ stated the following on this issue:
(Tr. 22, PAGEID #: 52) (internal citations omitted). Although the ALJ did not articulate the specific weight he assigned to Plaintiff's VA rating decisions, the decision makes clear that he considered them and determined that the totality of the evidence did not support finding more limitations than those specified in the RFC. (See id.).
Based on the foregoing, this case is distinct from Treichel v. Colvin, No. 16-cv-10331, 2016 WL 4036863, at *2 (E.D. Mich. July 28, 2016), the decision on which Plaintiff relies. (Doc. 12). There, the Court found that the ALJ "erred by failing to acknowledge and consider the VA's . . . rating decision. . . ." Id. (finding that the ALJ appeared to be "unaware" of the relevant rating decision). Because the ALJ acknowledged and considered the relevant decisions and explained his rationale for finding the limitations in the RFC, the Court finds no error.
For the reasons stated, it is
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
IT IS SO ORDERED.
