NANCY A. VECCHIARELLI, Magistrate Judge.
Plaintiff, David Stetz ("Plaintiff"), challenges the final decision of Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"),
On July 8, 2009, Plaintiff filed his application for SSI and alleged a disability onset date of August 1, 1996. (Transcript ("Tr.") 154-160.) The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 88-89, 91-93, 95-97.) An initial hearing took place on March 29, 2011, but was continued in order for Plaintiff to obtain representation. (Tr. 72-85.) At the rescheduled hearing on August 2, 2011, Plaintiff was represented by counsel and testified. (Tr. 35-52.) A vocational expert ("VE") also participated and testified. (Tr. 58-67.) On September 1, 2011, the ALJ found Plaintiff not disabled. (Tr. 15.) On November 29, 2012, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1.)
On January 17, 2013, Plaintiff filed his complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 15 and 16.)
Plaintiff asserts the following assignments of error: (1) substantial evidence does not support the ALJ's decision, because the ALJ erred in his evaluation of opinion evidence in the record; and (2) remand is necessary to consider new and material evidence obtained after Plaintiff's administrative hearing.
Plaintiff was born on December 21, 1990, and was 18 years old when he filed his SSI application. (Tr. 154.) Plaintiff met the requirements for high school graduation in June 2009 and continued in the Brunswick City Schools through June 2011, receiving work study services at Goodwill Industries and attending classes at the Medina County Career Center. (Tr. 179-180, 216, 324.) During the 2009 high school year, Plaintiff's grades ranged from B- to A+. (Tr. 245.) Plaintiff does not have any past relevant work. (Tr. 28.)
In September 1999, a physician diagnosed Plaintiff with attention deficit hyperactivity disorder (ADHD) and prescribed Adderrall. (Tr. 520.) In 2007, Plaintiff suffered a panic attack. (Tr. 382, 410.) On October 30, 2007, Dr. Bryan T. Hinch diagnosed him with generalized anxiety disorder and prescribed Xanax, which appeared to ease his anxiety symptoms. (Tr. 406, 408, 410-411.) Dr. Hinch also prescribed Adderall and Concerta for Plaintiff's ADHD symptoms. (Tr. 403.)
From November 2007 through May 2009, Plaintiff received counseling for depression and anxiety from a psychologist, Michael J. Morris, Ph.D. (Tr. 177.) In August 2009, Dr. Morris reported that he had been treating Plaintiff since November 2007 for panic disorder with agoraphobia and dysthymic disorder. (Tr. 425-427.) According to Dr. Morris, Plaintiff reported difficulty concentrating and feelings of frustration and anxiety when dealing with his peers and his father. (Tr. 426.) Dr. Morris noted that Plaintiff had a history of depression and panic attacks, had above average intelligence, and was very connected to his mother. (Id.)
On occasion from 2007 through 2009, Plaintiff treated with George Pallotta, D.O. (Tr. 379.) On November 14, 2007, Dr. Pallotta reported that Plaintiff was awake, alert, cooperative, had good eye contact, and expressed linear, logical, and goal directed thoughts. (Tr. 383.) Dr. Pallotta assessed ADHD and panic attacks. (Id.) On November 28, 2008, Dr. Pallotta reported that Plaintiff's ADHD and anxiety was improved and stabilized. (Tr. 384.)
On May 6, 2010, Aaron Muttillo, Psy.S., a licensed school psychologist with Strongsville Psychological Services, first performed a diagnostic evaluation of Plaintiff with specific concerns regarding possible impairments in socialization, communication, and development. (Tr. 479-486.) After evaluating Plaintiff on several occasions from May 6 to June 29, 2010, Mr. Muttillo diagnosed Plaintiff with Asperger's syndrome, Anxiety Disorder, and Mathematics Disorder. (Tr. 485.) Testing revealed that Plaintiff's cognitive abilities fell within the average range, with poor performance in arithmetic consistent with his identified learning disability in math. (Tr. 484.) Plaintiff's strengths were in areas of verbal ability, which Mr. Muttillo noted is consistent with many individuals with Asperger's syndrome. (Id.) Mr. Muttillo found that Plaintiff had a full scale IQ of 93. (Id.) He further noted that it is common for individuals with Asperger's to receive a diagnosis of ADHD prior to Asperger's syndrome due to overactivity and inattention as children. (Id.)
Mr. Muttillo summarized that Plaintiff presents with significant deficits in socialization and communication, causing him to be unable to establish friendships with same-aged peers. (Tr. 485.) According to Mr. Muttillo, Plaintiff's unique set of focused interests often interferes with his ability to relate to others in a typical manner. (Id.) Furthermore, Mr. Muttillo noted that while Plaintiff has some awareness of his social awkwardness and communication deficits, he lacks the skills to compensate for his weaknesses. (Id.) Mr. Muttillo also reported that Plaintiff's excessive anxiety and worry about multiple topics has a negative effect on his day-to-day functioning and has interrupted his sleep pattern. (Id.) Mr. Muttillo recommended that Plaintiff seek educational and vocational services for individuals with developmental disabilities, that he consider mentoring so that he may develop social skills in a variety of settings and situations, and that he begin participating in community activities related to his interests. (Tr. 484, 486.)
On April 8, 2011, Mr. Muttillo completed a medical source statement regarding Plaintiff. (Tr. 489-491.) Mr. Muttillo reported that Plaintiff has mild
In July 2011, Mr. Muttillo completed another source statement regarding Plaintiff. (Tr. 521-522.) He described as "very good" Plaintiff's ability to maintain regular attendance and be punctual and understand, remember, and carry out simple job instructions. (Id.) He described as "good" Plaintiff's ability to follow work rules, maintain attention and concentration for extended periods of two-hour segments, interact with supervisors, understand, remember, and carry out detailed job instructions, and maintain his appearance. (Id.) Mr. Muttillo described as "fair" Plaintiff's ability to use judgment, deal with the public, work in coordination with or in proximity to others without being unduly distracted or distracting, understand, remember, and carry out complex job instructions, and socialize and behave in an emotionally stable manner. (Id.) He described as "poor" Plaintiff's ability to respond appropriately to changes in routine setting, relate to co-workers, function independently without special supervision, deal with work stresses, complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods, relate predictably in social situations, manage funds/schedules, and leave home on his own. (Id.)
On September 8, 2009, state agency psychologist, Dr. Steven J. Meyer, Ph.D., reviewed the evidence and rendered an opinion on Plaintiff's mental capabilities. (Tr. 442-444.) Dr. Meyer opined that Plaintiff is moderately limited in his ability to carry out detailed instructions, to maintain attention and concentration for extended periods, to complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, to interact appropriately with the general public, to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, to respond appropriately to changes in the work setting, and to set realistic goals or make plans independently of others. (Tr. 442-443.) According to Dr. Meyer, Plaintiff is capable of simple and moderately complex routine work, at a reasonable pace, in a setting with regular expectations and occasional to intermittent interactions with others; however, some assistance is needed at times of change in routine. (Tr. 444.)
As a student at Brunswick High School, Plaintiff participated in an individualized education program ("IEP"). Plaintiff's IEP reports discussed his present levels of performance as well as his future plans. An IEP report from May 1, 2008, noted, "[t]eacher observations have indicated that [Plaintiff's] work habits have improved throughout the school year." (Tr. 221.) The report further stated that Plaintiff had "no functional or behavioral issues or concerns" and that a functional vocational evaluation was "not needed." (Tr. 221, 224.) An IEP report from May 7, 2009, noted that Plaintiff's "behavior and functional skills are consistent with what is expected of a 12th grade student. His attention to task appropriate [sic] for his current 12th grade placement. He does not have any behavioral issues that prevent him from mastering grade level concepts." (Tr. 229.)
Plaintiff's school records also include letters of recommendation from some of Plaintiff's teachers. In the spring of 2009, Plaintiff's art teacher, Mrs. Sarah Costic, wrote that Plaintiff is "inquisitive and insightful," "courteous and respectful to others," and "definitely delivers what he sets out to complete." (Tr. 217.) Plaintiff's social studies teacher, Mrs. Michelle Flanigan, wrote that Plaintiff had an excellent attendance record and "is a conscientious student who takes pride in his work." (Tr. 218.) She noted that Plaintiff "can be counted on to be present daily and put forth a strong effort into whatever he is asked to accomplish. He is a responsible, pleasant student and a helpful student aide." (Id.)
Plaintiff's report cards showed that he made improvements as he progressed through high school. For example, although Plaintiff demonstrated difficulty with math, his twelfth grade math teacher, Mr. David Tolischak, noted on Plaintiff's March 2009 report card that "[Plaintiff] is a pleasure to have in class. He did an excellent job this quarter." (Tr. 220.) Plaintiff's language arts teacher, Ms. Dawn Ruffner, reported that Plaintiff "[i]s eager to learn and has a good attitude." (Id.)
Plaintiff was enrolled in a work experience program at Goodwill Industries from August 2009 through June 2011. (Tr. 264-265, 370-375.) Ms. Echo Burgett, Plaintiff's case manager and trainer at the Brunswick Goodwill retail store, completed monthly reports concerning Plaintiff's progress in the work-training program. (Tr. 264-25, 370-375.) At the completion of approximately one month of the program, Ms. Burgett reported that Plaintiff appeared to be hesitant to start any task without first verifying the details and often asked for clarification about what something was or where it went even though he would state the answer before asking. (Tr. 264.) In all other areas of progress, such as "cooperation" and "ability to follow instructions," Ms. Burgett reported that Plaintiff was above average or average. (Id.)
In November 2010, Ms. Burgett reported that Plaintiff had made some improvements in the area of staying on task and taking initiative. (Tr. 300.) Her recommendation was that he focus on working independently and building self confidence. (Id.) Plaintiff consistently showed a need for improvement in the area of work speed and rated as having either "competitive work skills" or "good work skills" in the majority of the other areas evaluated. (Tr. 285-308.)
On April 29, 2011, Ms. Burgett completed a Medical Source Statement concerning Plaintiff's ability to complete mental work-related activities. (Tr. 280-282.) She opined that Plaintiff had mild limitations in his ability to make judgments on simple work-related decisions, understand, remember, and carry out complex instructions, and interact appropriately with the public, supervisors, and co-workers. (Tr. 280-281.) She reported that Plaintiff had moderate limitations in his ability to make judgments on complex work-related decisions and respond appropriately to usual work situations and to changes in a routine work setting. (Id.) Ms. Burgett further reported that Plaintiff appeared to doubt himself, demonstrated trouble remembering complex instructions by having to ask for repeated instructions two or more times, hesitated with initiating interaction with unfamiliar people, withdrew somewhat during unusual situations such as being asked to rush and help with something, was moderately affected when required to answer questions about what he had been working on or why he performed a certain way, was indecisive with his answers, and appeared to want others to do his talking for him. (Tr. 280-281.)
At the conclusion of Plaintiff's time at Goodwill, Ms. Burgett submitted a final report summarizing Plaintiff's involvement in the work experience program.
On June 13, 2011, Ronna Woods, Vocational Rehabilitation Counselor with the Bureau of Vocational Rehabilitation ("BVR"), reported that Plaintiff has a physical or mental impairment which causes a substantial impediment to employment. (Tr. 310.) Due to her determination that Plaintiff has a significant disability, Ms. Woods indicated that Plaintiff would be provided vocational services to include physical and mental restoration, job readiness training, transition services, job development and placement, and on-the-job supports. (Tr. 311.) According to Ms. Woods, Plaintiff required a minimum of six months of vocational services for him to obtain employment. (Id.)
At his hearing testimony on August 2, 2011, Plaintiff testified as follows:
The most significant problems keeping Plaintiff from working are his nervousness around other people, his anxiety about doing things correctly, and his slow work speed. (Tr. 46.) Plaintiff has "a very bad problem with . . . anxiety" and "gets really stressed out real easily." (Tr. 47.) When he feels stressed, Plaintiff has panic attacks or begins to breathe heavily and experience heart attack-like symptoms. (Tr. 49-50.) His school psychologist, Mr. Muttillo, diagnosed him with Asperger's syndrome. (Tr. 46.)
Plaintiff is a high school graduate. (Tr. 40.) As part of his schooling, he participated in a work-training program with the Brunswick branch of the Goodwill Industries for two or three hours per shift. (Tr. 39, 46.) Plaintiff had difficulty with the job whenever his routine job functions changed. (Tr. 48.) "Like later on they started putting sizes on the clothes because before it was just colorizing and if it's a men's shirt, blue shirt, it'll go with the men's blue shirts. But then they started putting like extra large and large, and I had a hard time with that. When they changed that on me." (Tr. 48-49.) At the Medina County Career Center ("MCCC"), Plaintiff was enrolled in a visual media imaging class, where he designed pamphlets and other projects for clients. (Tr. 49.) He is not sure whether he wants to go to college. (Id.)
Plaintiff does not have a drivers license, because he is too nervous about driving and getting into an accident. (Tr. 44-45, 51.) He does not go shopping alone, because he is "not good with money" and is too shy. (Tr. 43, 50-51.) Plaintiff collects old antique telephones and clocks and enjoys music from the 1960s, '70s, and '80s. (Tr. 40-41.) He has no problems dressing himself, does household chores, does laundry sometimes, and rarely cooks. (Tr. 41.) Plaintiff testified that he does not have many friends but that the ones he does have he visits about once or twice per month. (Tr. 42.) He talks on the phone to his friends about three or four times per month. (Id.) He does not currently participate in any clubs or organizations. (Tr. 42-43.) Plaintiff spends about two or three hours on the computer each day and sometimes mows the lawn or shovels snow. (Tr. 44.)
Ms. Karen Stetz, Plaintiff's mother, testified at Plaintiff's hearing as follows:
Plaintiff is "very shy" and "a little bit slower" than the majority of his peers. (Tr. 53.) He interacts very well with older adults but not with people his own age. (Tr. 54.) He often becomes fixated on certain objects—like old clocks or telephones—and thoroughly researches them. (Tr. 54-55.) Plaintiff has a lot of anxiety and becomes nervous in unfamiliar situations. (Tr. 57.) He experiences stress and anxiousness whenever he has to do something he has never done before, but is fine after he learns what is expected of him. (Id.)
The ALJ asked the VE to assume an individual of Plaintiff's age with a high school education, except math calculation and math reasoning commensurate with a marginal education, and no past relevant work. (Tr. 59.) In the first hypothetical, the individual would be capable of simple and moderately complex, routine work at a reasonable pace, in a setting with regular expectations, occasional intermittent interactions with others, and would require some assistance at times of change in routine. (Tr. 60.) The VE opined that for the hypothetical individual described by the ALJ, there would be no jobs available in a competitive setting due to the need for assistance at times of change. (Id.)
The ALJ posed a second hypothetical limiting the same individual to restrictions stated by Mr. Muttillo on July 23, 2011, i.e., poor or no useful ability in performing in a competitive setting, responding appropriately to changes in routine setting, relating to co-workers, functioning independently without special supervision, dealing with work stresses, completing a normal workday and work week without interruptions from psychologically based symptoms, performing at a consistent pace without an unreasonable number and length of rest periods, relating predictably in social situations, managing funds and schedules, and leaving home on his own. (Tr. 60-61, 521-522.) The VE opined that there would be no unskilled jobs available that the individual could perform. (Tr. 61.)
A third hypothetical asked the VE to assume the same vocational profile as described previously but also assume that the individual is restricted on an exertional basis to medium work and has the mental limitations stated by Ms. Burgett in April 2011. (Tr. 61-63, 280-282.) The VE opined that the individual could perform simple, unskilled jobs such as a laundry worker, a wire worker, or an electronics worker. (Tr. 64.)
The ALJ posed a final hypothetical that restricted the individual to medium work and simple, routine, repetitive tasks involving only simple work-related decisions and relatively few workplace changes, occasional interaction with supervisors, occasional and superficial interaction with co-workers and the general public, no situations requiring substantial negotiation, persuasion, or conflict resolution, and no work involving high quotas, strict time limits, or fast-paced production demands. (Tr. 64-65.) The VE testified that the individual could perform some unskilled jobs such a laundry worker, a wire worker, or an electronics worker. (Tr. 65.)
Plaintiff's representative posed one hypothetical to the VE that included the limitations identified by Mr. Muttillo in April 2011. (Tr. 66-67, 489-491.) The VE opined that the individual could not perform work in a competitive setting. (Tr. 67.)
A claimant is entitled to receive benefits under the Social Security Act when he establishes disability within the meaning of the Act.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process.
The ALJ made the following findings of fact and conclusions of law:
Judicial review of the Commissioner's decision is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards.
The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record.
Plaintiff argues that the ALJ's determination of his residual functional capacity ("RFC") to perform some work activity is not supported by substantial evidence in the record, because the ALJ erred in his evaluation of opinion evidence. Additionally, Plaintiff argues that remand is appropriate for consideration of new and material evidence. The Commissioner argues that substantial evidence supports the ALJ's weighing of the opinion evidence and that Plaintiff has not presented new and material evidence nor shown good cause for remanding the case. Neither of Plaintiff's arguments are well taken.
Plaintiff argues that the ALJ erred by not giving significant weight to the opinion of Mr. Muttillo, Plaintiff's school psychologist, while at the same time improperly giving significant weight to the opinion of Ms. Burgett, Plaintiff's vocational case manager at Goodwill. Specifically, Plaintiff argues that the ALJ erred by not addressing Mr. Muttillo's opinion in conformity with the "treating physician rule" and by finding Mr. Muttillo's opinion to be inconsistent with reports of Plaintiff's relatively normal behavior towards the end of high school and reports of his actual job performance at Goodwill. According to Plaintiff, Mr. Muttillo's findings are crucial to whether Plaintiff can actually perform sustained genuine work and are entirely consistent with Plaintiff's unsuccessful job performance at Goodwill.
Plaintiff's argument that the ALJ improperly evaluated opinion evidence under the treating physician rule rests on the assumption that Mr. Muttillo was one of Plaintiff's treating physicians, or a "treating source."
A treating source is defined as "your own physician, psychologist, or other acceptable medical source who provides you, or has provided you, with medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with you."
"An ALJ must give the opinion of a treating source controlling weight if he finds the opinion `well-supported by medically acceptable clinical and laboratory diagnostic techniques' and `not inconsistent with the other substantial evidence in the case record.'"
Here, the ALJ did not wholly disregard Mr. Muttillo's opinion. Rather, he decided not to give Mr. Muttillo's opinion significant weight and provided adequate reasons for this decision. (Tr. 27.) While the ALJ accepted Mr. Muttillo's diagnosis of Asperger's syndrome, he did not agree that the abnormalities Mr. Muttillo reported prevent the Plaintiff from functioning in the workplace within the RFC found by the ALJ. (Tr. 26.) After considering all the evidence, the ALJ properly determined that Mr. Muttillo's opinion was unsupported by sufficient clinical findings and inconsistent with the rest of the evidence. (Tr. 23.) Specifically, the ALJ found that Mr. Muttillo's opinion was inconsistent with reports of Plaintiff's relatively normal behavior towards the end of high school and with the reports of Plaintiff's actual job performance at Goodwill. (Tr. 27.)
Not only did the ALJ acknowledge Mr. Muttillo's diagnosis in making his decision, he also considered such evidence as Plaintiff's individualized education plan, his 93 IQ, his overall academic success in high school and in his work-study program, his performance on the Woodcock Johnson III test, and reports from medical, psychological, and school records, including monthly reports from Plaintiff's participation in the work experience program with Goodwill. (Tr. 24-25.) For example, the ALJ considered the opinion of Dr. Pallotta, a psychiatrist who treated Plaintiff on at least two occasions. (Tr. 25, 383-384.) Dr. Pallotta noted that the Plaintiff made good eye contact and was cooperative and pleasant, and that his developmental history was essentially unremarkable without milestone delays. (Tr. 25.) Furthermore, the ALJ acknowledged that while the record reflects that Plaintiff experienced and continues to experience both physical and mental limitations affecting his ability to work, these restrictions are at most moderate in nature and do not warrant a more restrictive functional capacity than the one the ALJ described. (Tr. 28.) It is true that the ALJ did not find that Plaintiff's mental limitations were as severe as Mr. Mutillo reported. Nonetheless, in light of all the evidence as a whole, the ALJ acknowledged that Plaintiff did in fact suffer from some functional limitations. (Tr. 24-28.)
Although the ALJ did not explicitly acknowledge that Mr. Muttillo was one of Plaintiff's treating sources, he offered good reasons to support his decision to assign less than controlling weight to Mr. Muttillo's opinion. He noted that the opinion was inconsistent with the rest of the record, considering a number of different sources in coming to this determination. (Id.) Plaintiff does not explain how the ALJ's decision deprives him of the ability to understand the ALJ's reasons for finding the opinion of a treating source to be less than controlling. Because the ALJ's reasons "permit[] . . . a clear understanding of the reasons for the weight given" to Mr. Muttillo's opinion, see
Social Security Ruling 06-03P guides the analysis of whether an opinion of a non-medical source may be entitled to greater weight than the opinion of a treating source. When evaluating the opinions of "other sources," including non-medical sources who have observed the claimant in a professional capacity, an ALJ must explain the weight given to the opinion of the source or ensure that the discussion of the evidence allows a subsequent reviewer to follow the ALJ's reasoning if the opinion may have an effect on the outcome of the case.
Here, Plaintiff argues that the ALJ did not give significant weight to Mr. Muttillo, while at the same time improperly giving significant weight to the opinion of Ms. Burgett, Plaintiff's vocational case manager at Goodwill. According to the ALJ, one of the reasons he did not give significant weight to Mr. Muttillo's opinion was because "it is not consistent with the reports of the claimant's actual job performance at Goodwill." (Tr. 27.) The ALJ found Ms. Burgett's statements to be "more persuasive" than Mr. Muttillo's opinion, because "she personally observed the claimant in a work environment that was a part of the claimant's educational experience." (Id.) The ALJ explained why he gave significant weight to Ms. Burgett's assessment, noting that she "was in the best position to assess the claimant's ability to work because she in fact supervised and worked with the claimant at Goodwill. Thus, while Ms. Burgett is not a medical source, I still give her assessment significant weight." (Tr. 26.)
As Plaintiff's vocational case manager, Ms. Burgett is considered a non-medical source who has observed Plaintiff in his professional capacity. Under SSR 06-03P, it was not improper for the ALJ to assign greater weight to Ms. Burgett's opinion over Mr. Muttillo's opinion even though Mr. Muttillo is a treating source, because Ms. Burgett observed Plaintiff's behavior on more occasions, she had greater knowledge of Plaintiff's functioning over time, and her opinions were more consistent with the record as a whole. See
Under
Here, Plaintiff argues that his case must be remanded for consideration of evidence from Ms. Burgett summarizing Plaintiff's involvement in the work experience program with Goodwill. (Tr. 367-375.) Plaintiff contends that the proffered evidence was not available at the time of his administrative hearing, because it was completed in close proximity to the hearing date. However, the report includes the date "6/23/2011" at the top of each page, and Ms. Burgett as well as her supervisor purport to have signed and dated the report on 6/24/2011. (Tr. 371-375.) Plaintiff's hearing did not take place until August 2, 2011, and the ALJ did not render his decision until September 1, 2011. (Tr. 18.) Plaintiff offers no explanation for his delay in submitting evidence that was available six weeks before his hearing. As a result, Plaintiff has not shown good cause for the belated submission of Ms. Burgett's final report, and remand is not appropriate.
Plaintiff also argues there is a reasonable probability that the ALJ would have found Plaintiff disabled had he considered the following "new" information: Ms. Burgett's summary of Plaintiff's performance at Goodwill includes comments that Plaintiff was often observed as being off task, had low production due to repeatedly seeking assurance that he was performing his tasks correctly, and was "below competitive" in putting out inventory and pulling, sorting, and hanging textiles. (Tr. 372-373.) In her final report, Ms. Burgett concluded that Plaintiff should follow through with a BVR referral to help further determine his strengths and barriers to employment and that he would require job coaching to help with self confidence and task instruction. (Tr. 374.)
Plaintiff's argument is not well taken, because the information in Ms. Burgett's final report is not new or material.
(Tr. 372.) Thus, the report contains both negative and positive reflections on Plaintiff's ability to function in the workplace. In his Brief, Plaintiff concludes, but does not explain, how there is a reasonable probability that Plaintiff would have been found disabled had the ALJ considered Ms. Burgett's final report. In making this blanket conclusion, Plaintiff does not address the fact that the final report also includes evidence upon which the ALJ could have relied to further support his finding that Plaintiff is not disabled.
Moreover, Plaintiff ignores the fact that other reports submitted by Ms. Burgett and properly considered by the ALJ indicate substantially similar findings as Ms. Burgett's final report. For example, Ms. Burgett reported on April 1, 2011, that Plaintiff has a very slow and inconsistent work speed. (Tr. 307.) Plaintiff fails to demonstrate that Ms. Burgett's final report from June 2011, created less than three months after her April report, would contain the type of material evidence requiring remand of this case.
Additionally, Plaintiff fails to consider other evidence upon which the ALJ relied in determining Plaintiff's RFC. The ALJ found Plaintiff "capable of sustained employment, performing simple tasks free of high-paced production demands, despite his limitations in math calculation and despite his shortcomings in social functioning." (Tr. 26-27.) He also gave some weight to the opinion of Dr. Steven J. Meyer, Ph.D., who stated that Plaintiff is capable of simple and moderately complex routine work, at a reasonable pace, in a setting with regular expectations, and occasional to intermittent interactions with others, even though some assistance may be needed at times of change in routine. (Tr. 27.) This evidence on which the ALJ relied to find Plaintiff's RFC coincides with the findings in Ms. Burgett's final report. The ALJ acknowledged that Plaintiff had a slightly slower pace than his co-workers, that he has some functional restrictions related to his ability to handle stress, that he has shortcomings in social functioning, and that he evidenced struggles during his educational program at Goodwill. (Tr. 26-27.) Nonetheless, the ALJ found Plaintiff capable of performing simple tasks free of highpaced production demands.
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.