SARA LIOI, District Judge.
Before the Court is the Report and Recommendation of Magistrate Judge Jonathan D. Greenberg (Doc. No. 19 ["R&R"]) with respect to the request of plaintiff Chad A. Gamble ("Gamble") for judicial review of the Commissioner's denial of his applications for Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) & 423, et seq. The R&R recommends that the Commissioner's final decision be affirmed. Plaintiff filed a single objection to the R&R (Doc. No. 20 ["Obj."]) and the Commissioner filed a response (Doc. No. 21 ["Resp."]). Upon de novo review and for the reasons set forth below, the Court hereby overrules Gamble's objection and accepts the R&R. The Commissioner's final decision is affirmed, and this case is dismissed and closed.
Gamble applied for POD and DIB in March 2013, claiming disability due to depression, diabetes, and cellulitis.
On February 11, 2015, the ALJ conducted a hearing, where Gamble appeared and testified, represented by counsel. An impartial vocational expert ("VE") also testified. (Id. 828-72.) A supplemental hearing was conducted on June 12, 2015, during which Gamble (represented by different counsel), an impartial VE, and a medical expert ("ME") testified. (Id. 102-28.) On September 4, 2015, the ALJ issued a written decision, determining that Gamble was not disabled. (Id. 80-101.) On September 28, 2016, the Appeals Council declined further review, rendering the ALJ's decision final. (Id. 70-75.)
On November 25, 2016, Gamble filed this lawsuit. In his brief on the merits, Gamble assigned two errors:
(R&R at 945, citing Doc. No. 14.)
Although the R&R concluded that there was no error in either respect, Gamble now challenges only the conclusion as to the first issue. He has not challenged the outcome with respect to the second assignment of error and, therefore, has waived review of that issue.
This Court's review of the Magistrate Judge's R&R is governed by 28 U.S.C. § 636(b), which requires a de novo decision as to those portions of the R&R to which objection is made. Judicial review is limited to a determination of whether the ALJ applied the correct legal standards and whether there is "substantial evidence" in the record as a whole to support the decision. 42 U.S.C. § 405(g); Longworth v. Comm'r of Soc. Sec. Admin., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is more than a scintilla but less than a preponderance. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (citation omitted). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (quotation marks and citation omitted). If there is substantial evidence to support the defendant's decision, it must be affirmed even if the reviewing court might have resolved any issues of fact differently and even if the record could also support a decision in plaintiff's favor. Crisp v. Sec'y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
Gamble's original brief on the merits argued for remand because "the ALJ failed to mention, consider, or even acknowledge" one of the three medical opinions of his treating psychiatrist, Dr. Roy Vellanki, regarding Gamble's mental functioning. (Doc. No. 14. at 887.) With respect to Dr. Vellanki, the ALJ stated as follows:
(Tr. 93-94.) The problem that Gamble points out, and that the R&R correctly recognizes, is that Dr. Vellanki submitted three medical statements: a Mental Impairment Questionnaire dated April 17, 2014 (id. 571-77 [Ex. 9F]); a Mental Impairment Questionnaire dated January 8, 2015 (id. 725-31 [Ex. 12F]); and a Medical Source Statement of Ability to Do Work-Related Activities (Mental) dated January 28, 2015 (Id. 734-36 [Ex. 14F]). The ALJ, perhaps inadvertently, blended the second and third reports, using the date from the second, but the information from the third. The ALJ never explicitly set forth or discussed any of the information in the second report, i.e., Ex. 12F, although he cited its date.
Although the R&R correctly concludes that "the ALJ failed to sufficiently acknowledge Dr. Vellanki's January 8, 2015 opinion[,]" (R&R at 980), it nonetheless further concludes that this failure "constitutes harmless error." (Id. at 983.) Because the ALJ examined and considered testimony by Dr. Jeffrey N. Andert, a non-treating clinical psychologist who was called upon to opine based upon his review of Gamble's medical records, and since Dr. Andert had reviewed all three of Dr. Vellanki's reports, that satisfied the magistrate judge. Specifically, the R&R reasons that "the ALJ's evaluation of the medical and opinion evidence regarding Gamble's mental impairments (including Dr. Vellanki's April 2014 and January 28, 2015 opinions and Dr. Andert's hearing testimony) indirectly attacks both the supportability of Dr. Vellanki's January 8, 2015 opinion and the consistency of that opinion with the rest of the record evidence." (Id., emphasis added.) In particular, the R&R credits the following findings of the ALJ:
(Id. 979-80, quoting Tr. 94.)
In his objection, Gamble argues that this conclusion is legally incorrect because "[w]hat is at issue here is whether the ALJ implicitly provided good reasons to discredit Dr. Vellanki's January 8, 2015 medical source statement without even adequately recognizing the existence of those opinions." (Obj. at 999-1000.) Gamble challenges the R&R's conclusion that the ALJ's failure to recognize the second medical opinion of Dr. Vellanki was harmless error because the January 8, 2015 opinion and the April 17, 2014 opinion were "identical in many respects." (R&R at 983.) Since the April 17, 2014 opinion was discredited as not supported by the record or by Gamble's own statements regarding positive changes in his life (id. at 985, citing Tr. 94), the R&R concludes that the January 8, 2015 opinion would have also been rejected had it been considered. (Id.) Gamble argues that the magistrate judge "took on the role of fact finder[.]" (Obj. at 1001.) He further asserts that "[b]ecause of the ALJ's failure, a subsequent reviewer will never be able to understand how the January 8, 2015 medical source statement would have impacted the residual functional capacity." (Id.)
In opposition, the Commissioner points out that Gamble's objection never addresses the case law underpinning the R&R's conclusion that the ALJ's failure constituted harmless error. (Opp'n at 1005, citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004); Hall v. Comm'r of Soc. Sec., 148 F. App'x 456 (6th Cir. 2005).) Further, the Commissioner challenges Gamble's assertion that, because the April 17, 2014 opinion and the January 8, 2015 opinion were nearly identical, that was reason enough to give Dr. Vellanki's opinion greater weight. The Commissioner points out as more significant the fact that the January 28, 2015 opinion was very different from both of the earlier opinions and, even more notably, that it was written a mere 20 days after the January 8th opinion. (Id.) Finally, the Commissioner rejects Gamble's unsupported assertion that the record shows only "vague and unquantified notions" of improvement in his condition, and points out that the ALJ actually "acknowledged the severity of [his] major depressive disorder and imposed many mental limitations in the residual functional capacity finding." (Id. at 1006, citing Tr. 86, 89.)
The medical opinions of treating physicians are given deference, "but they are not entitled to complete deference, and thus are not controlling if they are inconsistent with other substantial evidence or unsupported by detailed objective criteria and documentation." Wolfe v. Soc. Sec. Admin., 39 F. App'x 317, 320 (6th Cir. 2002) (citing 20 C.F.R. § 404.1527(d)(2)-(4)) (further citations omitted). As pointed out by Gamble, the Commissioner's regulations and related rulings require that the ALJ articulate reasons for rejection of a treating source medical opinion. The court in Wilson, supra, explained that "`[t]he requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases,' particularly in situations where a claimant knows that his physician has deemed him disabled and therefore `might be especially bewildered when told by an administrative bureaucracy that [he] is not, unless some reason for the agency's decision is supplied.'" Wilson, 378 F.3d at 544 (quoting Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)). "The requirement also ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule." Id. (citing Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004)).
In Hall, supra, the Sixth Circuit reiterated the "reason-giving" analysis of Wilson, noting that the Commissioner's rule "constitutes an important procedural safeguard" for claimants. Hall, 148 F. App'x at 461 (quotation marks and citations omitted).
In Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462 (6th Cir. 2006) (per curiam), the court applied Wilson and Hall in a situation where the ALJ did not explain the weight given to the opinions of two treating sources. The court declined to reverse, "because the ALJ's analysis of Nelson's mental impairments adequately addressed the opinions of [the two sources] by indirectly attacking both the supportability of those opinions and the consistency of those opinions with the record as a whole." Id. at 463; see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 748 (6th Cir. 2007) (when the ALJ discusses the opinion "in the context of discussing a multitude of contrary medical evidence," the regulatory goal is met) (citing Nelson, supra).
The R&R here relied upon these cases to conclude that, although the ALJ had failed to explicitly address the January 8, 2015 medical source opinion, "[his] evaluation of the medical and opinion evidence regarding Gamble's mental impairments (including Dr. Vellanki's April 2014 and January 28, 2015 opinions and Dr. Andert's hearing testimony) indirectly attacks both the supportability of Dr. Vellanki's January 8, 2015 opinion and the consistency of that opinion with the rest of the record evidence." (R&R at 983.)
Gamble argues that the April 17, 2014 and January 8, 2015 reports, taken together, show the consistency of his condition over time. But this argument does not carry the day. Consistency is but one of several factors considered when determining controlling weight. Tarter v. Colvin, No. 5:14-CV-269-REW, 2015 WL 4972933, at *6 (E.D. Ky. Aug. 18, 2015) (the factors to determine proper weight include "longevity, treatment intensity, supportability, and consistency[]"). Anyone can write the same report twice; reports take on weight when the other factors are also met. In this case, the ALJ determined that Dr. Vellanki's January 28, 2015 opinion was more supported by objective record evidence, including Gamble's own statements regarding his improvement, than was the April 17, 2014 opinion. It is not likely that the ALJ's decision would have been different had he actually explicitly addressed the information in the January 8, 2015 report. In fact, it is likely that the ALJ would have been even more convinced of his decision, since the January 8, 2015 opinion is significantly different from the much more positive report by Dr. Vellanki written just 20 days later, on January 28, 2015 (which was also supported by the other evidence of record).
For the reasons set forth herein, Gamble's objection is overruled and the R&R is accepted. The Commissioner's decision is affirmed. This case is dismissed and closed.
