KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff David Dominick ("Plaintiff" or "Dominick") challenges the final decision of Defendant Carolyn M. Colvin, Acting Commissioner of Social Security ("Commissioner"), denying his applications for supplemental social security income ("SSI") and disability insurance benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act . Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge pursuant to the consent of the parties. Doc. 14.
For the reasons stated below, the Commissioner's decision should be
Dominick filed applications for SSI and DIB on August 7, 2006, alleging disability as of May 24, 2006. Tr. 214-221. Dominick alleged disability based on blindness in his left eye and spinal damage resulting from a motorcycle accident. Tr. 247. His applications were denied by the state agency initially (Tr. 136-141) and on reconsideration (Tr. 144-149). On February 9, 2009, a hearing was held before Administrative Law Judge Peter Beekman ("ALJ"). Tr. 75-101. On April 2, 2009, ALJ Beekman determined that Dominick's residual functional capacity ("RFC") did not prevent him from performing work existing in significant numbers in the national economy, i.e., he was not disabled. Tr. 122-135. On April 23, 2009, Dominick requested review of the ALJ's decision by the Appeals Council (Tr. 161-63) and, on February 20, 2010, the Appeals Council remanded his claim. Tr. 117-121.
On September 16, 2011, a new hearing was held before ALJ Beekman. Tr. 44-74. On December 28, 2011, the ALJ again denied Dominick's claim for benefits and determined he was not disabled. Tr. 17-43. Dominick requested review of the 2011 decision by the Appeals Council. Tr. 7-13. On March 20, 2013, the Appeals Council denied Dominick's request for review, making the ALJ's 2011 decision the final decision of the Commissioner. Tr. 1-6.
Dominick was 45 years old on his alleged onset date and 50 years old on the date of the hearing. Tr. 44, 241. He worked as a machine operator from 1996 until he was laid off from that position in 2001. Tr. 28, 260, 493. Since at least 2006 through 2012, Dominick reported that he volunteered 20 to 25 hours a month providing transportation to residents at a nursing home.
In January 2008, Dominick again reported his mood at a 1-2 out of 10. Tr. 606. In March 2008, Ms. Roll reported that Dominick was anxious and constricted. Tr. 594, 599. In April 2008, Ms. Roll reported that Dominick was angry and ranting about "the system as a whole." Tr. 585. He stated that his mood was "up and down" and he found it easier to express himself through anger. Id. In June 2008, Ms. Roll reported that Dominick was easily frustrated and discouraged. Tr. 560. He reported that he felt helpless and felt that his problems were being minimized by various providers. Id. Dominick also reported continued depression and poor concentration. Tr. 568. Ms. Roll noted that Dominick discontinued his psychiatric medications and declined to take new medications. Tr. Id. In July 2008, Dominick reported that he was seeing psychiatrist Dr. Matthews from the Cleveland Clinic who started him out on Depakote. Tr. 637. In August and September 2008, Dominick reported he was doing better on the Depakote. Tr. 623, 631. Ms. Roll stated that his mood and affect seemed somewhat improved and less agitated. Id. In October 2008, it was reported that Dominick's Depakote increased and he was less irritable and less depressed. Tr. 681. In November 2008, Dominick stated that he was becoming more irritable and depressed since his Depakote had been increased. Tr. 678. Dominick stated that he felt better by the end of the counseling session. Id.
In January 2009, Dominick stated that he was in the best mood since starting treatment although he still gets "bummed out." Tr. 667. His concentration and attention span were noted as poor. Tr. 670. In February 2009, Dominick reported that he was depressed. Tr. 760. In March 2009, Dominick reported that, since his Depakote has been further increased, he was less depressed, calmer, and his sleep was improved. Tr. 756. In April 2009, Dominick stated that he felt helpless and hopeless after receiving an unfavorable determination from Social Security. Tr. 752. He rated his mood as a 4/10. Tr. 753. In May 2009, Dominick reported that he was doing "OK," was sleeping better, and was less edgy. Tr. 748. He rated his mood as an 8/10. Tr. 748. In August 2009, Dominick stated that Depakote was helping his mood and he was calmer, less irrational. Tr. 730. In November 2009, Dominick presented to Ms. Roll tearful and depressed. He stated that his Depakote was further increased. Tr. 707.
In January and March 2010, Dominick reported that his mood was "OK" but stated that he had been more depressed during the winter. Tr. 695, 699. In April 2010, Dominick stated that he no longer lashes out since starting Depakote but continues to experience episodes of sadness and depression. Tr. 798. Dominick also reported his attention and concentration were poor. Id. In 2010, it was noted that Dominick referenced his "neurotic paradox's [sic]." Tr. 819, 822, 825, 833. In November 2010, Dominick stated that he was taking his medication but it was not helping. Tr. 803. In March 2011, it was noted that Dominick had missed his last three counseling sessions due to severe weather. Tr. 861. He reported his depression as a 4/10. Id. In April 2011, Dominick reported difficulty concentrating and stated he could only concentrate on television for 20 minutes at a time. Tr. 881.
On June 27, 2008, Dominick sought a second opinion from psychiatrist Dr. Manu Matthews at the Cleveland Clinic. Tr. 649-652. Dr. Matthews noted that Dominick was angry and paranoid about the treatment he received from Metro Health. Tr. 649, 651. Dr. Matthews diagnosed Dominick with Organic Brain Syndrome, Mood Disorder secondary to medical condition and Personality Disorder NOS. Tr. 651. He prescribed Depakote. Id.
In August 2008, Dominick reported that Depakote calmed him down and his irritability was markedly improved but he continued to feel depressed. Tr. 646. It was recommended that he continued Depakote and start Cymbalta. Tr. 647. In December 2009, it was recommended that Dominick continue with the same dose of Depakote because his levels are good and he was doing much better. Tr. 795. It was noted that he continued to have "poor frustration tolerance" but that it was "much improved from before." Id. In March 2009, Dominick stated that he was still sad from time to time. Tr. 784. In July 2009, Dominick reported that he felt depressed because he was unable to be as physically active as he had been in the past. Tr. 788. In October 2009, it was reported that Dominick was doing "fairly well." Tr. 791.
In January 2011, it was noted that Dominick's behavior was appropriate and brighter as compared to previous visits but he reported ongoing anxiety and continued depressive episodes lasting a few days. Tr. 850-51. It was recommended that Dominick continue Depakote and start Celexa. Tr. 852. In April 2011, Dominick reported that he was still down at times but was feeling better. Tr. 888.
On or after August 17, 2007,
Tr. 488.
The third opinion is another mental medical source statement dated February 5, 2009, and signed by both social worker Margaret Roll and Dr. Brocco. Tr. 686-87. In the February 2009 opinion Dominick was rated at a fair or poor level of functioning in all workplace mental abilities, with the exception of his ability to maintain his appearance which was rated as good. Id. It was noted that chronic depression, organic brain syndrome, labile mood, and obsessing make him unable to tolerate stress. Tr. 687. It was further noted that Dominick's daily level of function remains very limited to poor and that he was not employable. Id.
On February 17, 2007, state agency reviewing psychologist Karen Stailey-Steiger, Ph.D., also reviewed the record and affirmed the conclusions of Dr. Bergsten. Tr. 661.
At the administrative hearing, Dominick was represented by counsel and testified that, on a typical day, he watches television, takes care of his personal hygiene, and does household chores. Tr. 49. Dominick stated that he has difficulty cleaning the tub due to pain. Tr. 49-50. He also stated he receives help grocery shopping. Tr. 50. Dominick testified he has back pain from bulging discs that radiates down to his arm. Tr. 51. Dominick stated that he has problems with balance and would fall off of a ladder. Tr. 53-54. He also testified that he sees a psychiatrist at the Cleveland Clinic and counselor Margaret Roll at Metro Health for depression. Tr. 51, 56-57.
Medical Expert Dr. Hershel Goren testified at the hearing. Tr. 57-62. Dr. Goren opined that Dominick did not have a condition or combination of conditions that met or equaled a Listing. Tr. 57. Dr. Goren further opined that Dominick had the following residual functional capacity:
Tr. 58. Dominick's attorney asked Dr. Goren to square his RFC finding with the opinion of Dr. Brocco supporting extreme limitations in Dominick's mental functioning. Tr. 59-60. Dr. Goren stated that there was nothing in the record that supported the extreme limitations assigned by Dr. Brocco. Tr. 60-61. Dr. Goren summarized that the treatment notes from Metro Health were inconsistent with the treatment notes from Cleveland Clinic. Id. ("To me, it looks like the Cleveland Clinic people think [he's] doing great, and the Metro people think [he's] got real problems.") Dr. Goren opined that Dominick does not meet the B criteria of Listing 12.02. Tr. 60, 62.
Vocational Expert Mark Anderson ("VE") also testified at the hearing. Tr. 63-70. The VE testified that Dominick's past work as a machine operator was performed at a medium level of exertion and was a skilled occupation. Tr. 63. The ALJ then asked the VE whether there were any jobs in the national or regional economy for a hypothetical individual of Dominick's age, education, and work experience, who is male, right dominant, able to occasionally lift and carry 20 pounds; frequently carry 10 pounds; walk, stand, and sit six out of eight hours a day; is not limited in his ability to push/pull; should not use a left foot pedal but can frequently use a right foot pedal; can occasionally use ramps or stairs, but never a ladder, rope, or a scaffold; never balance; can occasionally stoop, kneel, crouch, and crawl; no limits on handling or reaching but is limited to occasional bilateral fingering and occasional right feeling; no work which requires binocular vision or depth perception; no extensive reading on a frequent basis; should avoid hazards such as unprotected heights, slippery or uneven surfaces, and driving; can perform simple, routine one to two-step tasks in a low-stress environment with no high production quotas and no piece rate work. Tr. 63-64. The VE stated that such a hypothetical individual would be able to perform work as a housekeeper (916,000 national jobs; 38,000 Ohio jobs; 7,500 Northeast Ohio jobs). Tr. 64-65.
Dominick's attorney then asked the VE if the housekeeping job would be affected by a further limitation requiring that the hypothetical individual could not have a job with vibrations. Tr. 66. The VE responded that the housekeeping job would still be available with that additional limitation. Id. Dominick's attorney then asked what effect a further limitation of only four hours of standing and walking would have on the available jobs. Tr. 67. The VE testified that the housekeeping job would be eliminated with a four hour standing/walking limitation. Id.
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined as the "inability to engage in any 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." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §§ 404.1520, 416.920
In his December 28, 2011, decision, the ALJ made the following findings:
Dominick presents two issues for review. First, he argues that the ALJ failed to abide by the treating physician rule by failing to provide "good reasons" for rejecting the opinions of Dr. Brocco, Tina Oney, and Margaret Roll. Doc. 18, pp. 10-15. Second, Dominick argues that the ALJ erred by failing to find that Dominick met the requirements of Listing 12.02 Organic Mental Disorders. Id. at pp. 15-18. In response, the Commissioner argues that the ALJ's decision is supported by substantial evidence. Doc. 19, pp. 8-15.
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "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." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Secretary of Health and Human Services, 889 F.2d 679, 681 (6th Cir.1989) (per curiam) (citations omitted)). A court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Dominick argues that the ALJ violated the treating physician rule by failing to provide "good reasons" for rejecting the opinions of Dr. Brocco, Tina Oney, and Margaret Roll. Doc. 18, pp. 10-15. Under the treating physician rule, opinions of treating sources must be given "controlling weight" if: (1) the opinion "is well-supported by medically acceptable clinical and laboratory diagnostic techniques"; and (2) the opinion "is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. § 404.1527(d)(2). Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The regulations require the ALJ to "always give good reasons in [the] notice of determination or decision for the weight" given to the claimant's treating source's opinion. 20 C.F.R. § 404.1527(d)(2). Those good reasons must be "supported by the evidence in the case record, and must be 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." Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5. The Sixth Circuit has held that an ALJ's failure to follow the "good reasons rule" by identifying the reasons for discounting the opinions and explaining precisely how those reasons affected the weight given "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Blakley v. Comm'r Of Soc. Sec., 581 F.3d 399, 406-07 (6th Cir. 2009) (citing Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.2007)).
There are three opinions at issue which are described below. The first is an April 30, 2007, opinion signed by Tina Oney, Advanced Practice Registered Nurse, Board Certified, in which Ms. Oney opines that Dominick has a fair or poor ability to function in all workplace mental abilities. Tr. 455-56. The second opinion is signed
The ALJ assigned little or no weight to the opinions of Dr. Brocco, Ms. Oney, and Ms. Roll. Tr. 31-32. The ALJ pointed out that Ms. Oney's April 2007 opinion provided no medical or clinical findings to support her assessment. Tr. 31. With regard to the opinion signed by Ms. Oney and Dr. Brocco, the ALJ stated that this opinion was inconsistent with the evidence as a whole, including reports of Dominick's daily activities, which provide support for the determination that he can perform simple, routine tasks. Id. Finally, as to the February 2009 opinion signed by Ms. Roll and Dr. Brocco, the ALJ found that this opinion was again inconsistent with evidence that showed that Dominick's mood, irritability, and poor frustration tolerance improved significantly with Depakote. Tr. 32.
To judge compliance with the treating source rule, we first determine if any of those three providers are treating sources. Cole v. Astrue, 661 F.3d 931, 938 (6th Cir. 2011) (citing Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir.2007)). A treating source is an acceptable medical source who provides, or has provided, a claimant with medical treatment or evaluation and who has had an ongoing treatment relationship with the claimant. 20 C.F.R. § 404.1502 (emphasis added). The Commissioner will generally consider there to be an "ongoing treatment relationship" when the medical evidence establishes that a claimant is or has been seen with a frequency consistent with accepted medical practice for the type of treatment or evaluation required for a claimant's medical condition. Id. "The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once. . . ." Kornecky v. Comm'r of Soc. Sec., 167 Fed. Appx. 496, 507 (6th Cir. 2006) (quoting Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994). In those instances where a physician is not a treating source, Wilson has been found to be inapplicable. See Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007); see also Kornecky, 167 Fed. Appx. at 507; see also Daniels v. Comm'r of Soc. Sec., 152 Fed. Appx. 485, 490 (6th Cir. 2005).
The agency's regulations limit treating sources to "acceptable medical sources." 20 C.F.R. § 404.1502. The definition of "acceptable medical sources" does not include social workers or nurse practitioners. 20 C.F.R. § 404.1513(d)(1) (explaining that a nurse practitioner is not acceptable medical source); Winning v. Comm'r of Soc. Sec., 661 F.Supp.2d 807, 819 (N.D. Ohio 2009) (citing SSR 06-03p) (stating that licensed clinical social workers are "other sources" who are not acceptable medical sources). Thus, Ms. Oney and Ms. Roll are not acceptable medical sources and are not treating sources under the regulations.
On the other hand, Dr. Brocco is an acceptable medical source. 20 C.F.R. §404.1513(a). However, this does not end the inquiry. A treating source must also have had "an ongoing treatment relationship with the claimant." 20 C.F.R. § 404.1502. Medical expert Dr. Goren testified that there were no treatment records from Dr. Brocco. Tr. 92-93. Further, this Court's review of the record similarly reveals no treatment records from Dr. Brocco. Thus, Dr. Brocco was not in a position "to provide a detailed, longitudinal picture of [Dominick's] medical impairment(s)." Kornecky, 167 F. App'x at 506; See 20 C.F.R. §§ 404.927(c)(2)(i), 416.927(c)(2)(i) (defining a treating physician as one who "has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment"). As Dr. Brocco's relationship with Dominick did not rise to the level of an ongoing treatment relationship, Dr. Brocco was not a treating source under the regulations.
Since Ms. Oney, Ms. Roll, and Dr. Brocco are not treating sources under the regulations, the ALJ did not violate the treating physician rule. Murray v. Comm'r of Soc. Sec., 1:13-CV-215, 2013 WL 5428734 (N.D. Ohio Sept. 26, 2013) ("the procedural `good reasons' requirement does not apply to non-treating physicians."); Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 876 (explaining that "[i]mportantly . . . this reasons giving requirement exists only for § 404.1527(d)(2), and not for the remainder of § 404.1527" and concluding: "[i]n the absence of treating-source status for these doctors, we do not reach the question of whether the ALJ violated Wilson by failing to give reasons for not accepting their reports"). Therefore, Dominick's argument that the ALJ violated the treating physician rule is without merit.
Dominick next argues that the ALJ failed to properly evaluate his claim under Listing 12.02. Doc. 18, pp. 15-18. Dominick argues that he met both the A and B criteria under Listing 12.02. Id. Listing 12.02(A) and (B) provide:
The ALJ specifically considered Listing 12.02 and determined that Dominick does not meet the paragraph B criteria. Tr. 23-24. The ALJ determined that Dominick did not meet the "paragraph B" criteria because the ALJ concluded that Dominick has only mild difficulties in his activities of daily living and maintaining social functioning and only moderate difficulties in maintaining concentration, persistence, or pace. Tr. 24. The ALJ also found that Dominick experienced no episodes of decompensation of an extended duration. Id.
Dominick asserts that the opinions of Dr. Brocco, Ms. Oney, and Ms. Roll support a finding of marked limitation in the areas of social functioning and concentration, persistence, and pace. Doc. 18, p. 17. The following substantial evidence supports the ALJ's determination that Dominick did not have marked limitations in the areas of social functioning and concentration, persistence, and pace: the opinions of Dr. Goren, Dr. Felker, Dr. Bergsten, and Dr. Stailey-Steiger; treatment notes from the Cleveland Clinic; and Dominick's reported daily activities.
ME Dr. Goren and state agency reviewing psychologist Dr. Bergsten specifically reviewed Listing 12.02 and determined that Dominick did not meet the requirements for that Listing. Tr. 62, 408. Dr. Goren specifically stated that Dominick does not meet the paragraph B criteria. Tr. 62. Dr. Goren and Dr. Bergsten also opined that Dominick retained the capacity for simple tasks without time or production quotas. Tr. 58, 423. Dr. Bergsten found that Dominick was moderately limited in maintaining social functioning and maintaining concentration, persistence, or pace. Tr. 417. State agency reviewing psychologist Dr. Stailey-Staiger confirmed the opinion of Dr. Bergsten. Tr. 661.
Based on all of the above, substantial evidence supports the ALJ's determination that Dominick did not meet Listing 12.02. More particularly, substantial evidence supports a finding that Dominick does not exhibit marked limitations in the areas of social functioning and concentration, persistence, or pace. Thus, Dominick's argument to the contrary is without merit.
Dominick counters that the treatment notes and opinions of Dr. Brocco, Ms. Oney, and Ms. Roll establish the 12.02B criteria. Doc. 18, p. 17. First, as explained in the prior section, there are no treatment notes from Dr. Brocco in the record. Next, the ALJ gave little to no weight to the findings of Dr. Brocco, Ms. Oney, and Ms. Roll. Tr. 31-32. The ALJ gave specific examples for his assignment of weight supported by the evidence in the record. For example, the ALJ noted that, although Ms. Oney and Dr. Brocco opined that Dominick has a limited ability to complete a task without verbal assistance, Dominick's reported daily activities (as noted above) support the determination that Dominick can perform simple, routine tasks. Tr. 31. With regard to social functioning, the ALJ found that Ms. Roll and Dr. Brocco's opinion that Dominick was unable to tolerate stress was inconsistent with the treatment notes from the Cleveland Clinic doctors who noted that Dominick's mood, irritability, and poor frustration tolerance improve significantly with Depakote. Tr. 32.
As noted above, substantial evidence supports the Commissioner's decision that Dominick does not meet Listing 12.02. As long as substantial evidence supports the Commissioner's decision, the Court must defer to it "`even if there is substantial evidence in the record that would have supported an opposite conclusion. . . .'" Wright v. Massanari, 321 F.3d 611, 614 (6th Cir.2003) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997)). Thus, Dominick's argument that the ALJ failed to properly evaluate him under Listing 12.02 is without merit.
For the foregoing reasons, the Commissioner's decision is
