GEORGE J. LIMBERT, Magistrate Judge.
Plaintiff Benjamin Evans ("Plaintiff") requests judicial review of the final decision of the Commissioner of Social Security ("Defendant") denying his application for Supplemental Security Income ("SSI"). ECF Dkt. #2. In his brief on the merits, filed on August 12, 2016, Plaintiff asserts that the administrative law judge's ("ALJ") decision to discount a portion of the medical expert's opinion is not supported by substantial evidence. ECF Dkt. #11 at 1, 14-25. Defendant filed a response brief on October 25, 2016. ECF Dkt. #14. On November 8, 2016, Plaintiff filed a reply brief. ECF Dkt. #15. For the following reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.
On May 31, 2012, Plaintiff filed an application for SSI, alleging disability beginning December 1, 2010.
Plaintiff filed the instant suit seeking review of the ALJ's November 13, 2014, decision on May 10, 2016. ECF Dkt. #2. On August 12, 2016, Plaintiff filed his brief on the merits. ECF Dkt. #11. Defendant filed a response brief on October 25, 2016. ECF Dkt. #14. On November 8, 2016, Plaintiff filed a reply brief. ECF Dkt. #15.
At the hearing held on June 12, 2014, the ALJ indicated that, in addition to Plaintiff, a vocational expert ("VE") and two impartial medical experts would be testifying.
Dr. Eskinazi testified that none of Plaintiff's impairments met a listing, and that he "probably" did not have exertional limitations, but that Plaintiff's residual functional capacity ("RFC") was speculative because he had not "allowed himself to have a period of stability." Tr. at 39-40. Nonetheless, Dr. Eskinazi testified that Plaintiff would likely have no restrictions or, at most, be restricted to a medium level of exertion. Id. at 40. Dr. Eskinazi then testified that Plaintiff should have the following limitations: no use of ropes, ladders, and/or scaffolds due to his obesity, and no use of narcotics or medications; occasional squatting due to his abdominal wound; frequent stooping, climbing stairs, and crawling; and "limited" kneeling and balancing. Id. Additionally, Dr. Eskinazi stated that Plaintiff should avoid extremes of heat, hazards, unprotected heights, machines, and commercial driving, "again based on his extensive narcotic use." Id.
The ALJ then examined Dr. Cesare. Tr. at 41-67. Dr. Cesare testified that he had reviewed Plaintiff's medical record and that there was sufficient evidence to establish a clinical diagnostic picture of Plaintiff. Id. at 41-42. Continuing, Dr. Cesare noted that there was not a formal mental RFC assessment or other systematic evaluation of functioning in the areas relevant to the listings, so he was left to infer levels of impairment in some of these areas. Id. at 24. Dr. Cesare indicated that the evidence he reviewed supported the presence of "a substance induced mood disorder, polysubstance dependence, and an anti-social personality disorder."
Id. Continuing, Dr. Cesare indicated that he believed Listing 12.09 was also met, however, he added that "it would be pure speculation but I would say that if we could somehow magically remove the opiate addiction, and the abuse of other drugs, I would say no, there would not be enough evidence to say that any of the listings would be met." Id. at 45-46.
Next, Dr. Cesare testified that Plaintiff's personality disorder likely predated his substance abuse, noting that such a disorder is a "lifelong dysfunction interpersonal sphere," and that there was evidence in the record that Plaintiff showed early signs of severe personality disorder even during his childhood and teenage years insofar as he was "abusing animals, etcetera, getting into fights, and whatnot." Tr. at 47. Dr. Cesare stated that it would be difficult to tell if Plaintiff's drug use had caused permanent brain damage, but according to a March 2012 note from Plaintiff's treating physician, there were significant concerns about Plaintiff use of Percocet. Id. at 48. According to this treatment note, as stated by Dr. Cesare, Plaintiff described Percocet as his drug of choice to stabilize his mood, and was taking it "around the clock," which meant approximately every three hours. Id.
Based on Plaintiff's Percocet use, Dr. Cesare opined that there was a significant addiction and stated that he would not rule out the possibility that Plaintiff's addiction to narcotic pain medications had reached the point of severity where he was so addicted that he may actually inflict bodily harm upon himself in order to obtain more medication. Id. at 48-49. Dr. Cesare stated that Plaintiff's high level of addiction raised questions about the nature of the repeated abdominal injuries in the record and suggested that there may be at least one manifestation of malingering in order to obtain more Percocet or another narcotic pain medication. Id. at 49. Accordingly, Dr. Cesare opined that physical damage secondary to addiction had "quite possibly" been demonstrated, and added that Plaintiff's "pattern of drug seeking behavior may have reached a point of desperation such that one becomes willing to inflict bodily damage in order to keep the prescriptions coming." Id. Subsequently in his testimony, Dr. Cesare noted that treatment notes from Crisis Intervention Center referenced drug seeking behavior, and that Plaintiff exhibited a pattern of refusals to follow recommended medical or mental health treatment, as evidenced by the fact that Plaintiff had fired several psychiatrists and multiple surgeons. Id. at 50-51.
Dr. Cesare testified that he suspected that Plaintiff would experience significant functional improvement "if we could magically remove the addiction and its effects upon [Plaintiff's] cognition, emotion, and functioning." Tr. at 51. Continuing, Dr. Cesare stated:
Id. Dr. Cesare indicated that it would not be possible to "remove" Plaintiff's disorder because addicts, once addicted, will always be addicted even if in recovery. Id. at 52. Next, Dr. Cesare testified that he did not believe Plaintiff's experienced Munchausen syndrome, as malingering better fit Plaintiff's behavior since it appeared that there was intent on behalf of Plaintiff to obtain narcotics and perhaps financial gain from gaining disability status. Tr. at 53.
Plaintiff's counsel then asked Dr. Cesare to clarify his testimony indicating that Plaintiff was noted to be exhibiting drug-seeking behavior, as well as minimizing his symptoms, as this testimony appeared to be inconsistent. Tr. at 53-54. Dr. Cesare stated:
Tr. at 54. Continuing, Dr. Cesare testified that it was "very rare" for self-harm behaviors to reach the level of severity that he believed was being displayed by Plaintiff, and that this level of severity was designed specifically for an intensely desired object — ongoing narcotic pain medication. Id. at 55. While Dr. Cesare did testify that this level of severity of self-mutilation was rare, he also indicated that "[i]t has been known to happen." Id.
As to whether the self-mutilation necessitated the pain medications or the desire for pain medications precipitated the self-mutilation, Dr. Cesare indicated that he could not be entirely sure. Tr. at 55. Dr. Cesare noted that Plaintiff's apparent drug-seeking behavior began as early as February 2012 at Mercy Medical Center, with one of the first, if not the first, of a series of abdominal stab wounds. Id. According to Dr. Cesare, it could have been the case that eventually the wound initiated the need for medication, and that the medication, if taken long enough at high enough doses, then started to lose its impact on pain reduction. Id. at 55-56. Dr. Cesare explained that this process is called habituation, and that as the medication can eventually begin to perpetuate its own need, but noted that habituation rarely reaches the level of severity resulting in the kind of self-mutilation evidenced in the instant case. Id. at 56. Additionally, Dr. Cesare opined that the high level of severity of self-mutilation evidenced here may be partially the result of Plaintiff's underlying personality disorder. Id. Dr. Cesare then testified that there were indications in the record that Plaintiff had behavioral issues as a child, including: being expelled from school at age nine for fighting with teachers, siblings, and peers; and animal abuse, specifically, beating a cat with a baseball bat. Tr. at 57.
The ALJ then asked Dr. Cesare about the ability of an individual with Plaintiff's limitations to work with others if the substance abuse was removed and said individual had: mild limitations in activities of daily living; marked limitations in social functioning; and mild limitations in concentration, persistence, and pace. Tr. at 59. Dr. Cesare testified that there would be a permanent functional limitations of marked proportions when it came to interpersonal relationships at work or otherwise. Id. Continuing, Dr. Cesare stated that Plaintiff had not been able to keep a job for more than "a few months" due to his inability to "get along with people," and that this marked impairment would present a barrier to any sustained gainful employment. Id.
Dr. Cesare testified that Plaintiff did not have a history of assaultive behavior, but was quick to anger. Tr. at 59. Next, Dr. Cesare indicated that Plaintiff should have minimal contact with the public and co-workers, as well as remote supervision insofar as possible. Id. at 60. However, according to Dr. Cesare, Plaintiff's history and personality disorder suggested that it would only be a matter of time before some type of conflict would arise that would jeopardize his job. Id. Finally, Dr. Cesare stated that Plaintiff's work tenure would probably be expected to last in terms of months rather than years, even without Plaintiff's polysubstance abuse. Id.
The ALJ also examined a VE, who identified three prior jobs that constituted past relevant work: assembly line worker; tow motor operator; and cleaning worker. Tr. at 90-91. Continuing, the ALJ asked the VE whether there would be jobs available for a hypothetical individual that was unable to engage in sustained work activity for a full eight-hour workday on a regular and consistent basis, to which the VE responded in the negative. Id. at 86-87. Next, the ALJ posed a second hypothetical individual requiring that the combined sitting, standing, and walking time, regardless of allocation, totaled less than eight hours in a workday. Id. at 88. The VE indicated that there would be no competitive full-time employment for such an individual. Id. The ALJ then asked whether Plaintiff's past relevant work could be performed by an individual with the following limitations (mirroring the limitations ultimately contained in the ALJ's RFC finding): unskilled work; normal supervision; simple, routine work tasks; occasional superficial interaction with co-workers; and minimal interaction with the public. Id. at 93-94. The VE testified that such an individual could perform Plaintiff's past relevant work as an assembly line worker. Id. at 94. Additionally, upon questioning by the ALJ, the VE stated that an individual with these limitations could also perform work as a housekeeping cleaner, merchandise marketer, and hand packager. Id.
On questioning by Plaintiff's counsel regarding the open wound in Plaintiff's abdomen, the VE testified that the Dictionary of Occupational Titles did not address this situation, but that the impact of such a wound would be largely dependant on the employer. Id. at 96-97. Finally, the VE testified that for unskilled jobs an employer would likely only tolerate profanity towards a supervisor once per month not more than three times, but some employers would only tolerate the profanity twice. Id. at 97. The ALJ concluded the hearing after the VE was examined by Plaintiff's counsel. Id. at 98.
On October 17, 2012, state-agency reviewing psychologist Kristen Haskins, Psy.D., opined that Plaintiff's primary issue was substance abuse. Tr. at 107. Dr. Haskins indicated that if sober, Plaintiff would still have some limitations based on his anxiety and bipolar disorder, however, he would retain the ability to perform at least simple, routine work tasks in an environment with no more than occasional superficial interaction with others. Id. On December 12, 2012 state-agency reviewing psychologist Karen Steiger, Psy.D., affirmed Dr. Haskins' opinion. Tr. at 119. In September 2013, Kirby Sweitzer, M.D., assessed Plaintiff's functional abilities, mostly focusing on his physical abilities, and opined that Plaintiff could not undertake even low-stress jobs. Id. at 1699. Later that month, Dr. Sweitzer dismissed Plaintiff from his practice for "complete non-compliance." Id. at 1795.
After holding the hearing on June 12, 2014, the ALJ issued a decision on November 13, 2014. Tr. at 10. The ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 31, 2012, the date Plaintiff's application for SSI was filed. Id. at 11. Continuing, the ALJ determined that Plaintiff had the following severe impairments: obesity; enterocutaneous fistula; status-post multiple abdominal procedures; intermittent explosive disorder; bipolar disorder; substance-abuse mood disorder; polysubstance dependence; antisocial personality disorder; major depressive disorder; mood disorder; and anxiety disorder. Id. The ALJ then determined that Plaintiff's impairments, including the substance use disorders, met Sections 12.04, 12.06, 12.08, and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 12. Further, the ALJ stated that if Plaintiff stopped the substance use, the remaining limitations would cause more than a minimal impact on his ability to perform basic work activities, and therefore, Plaintiff would continue to have a severe impairment or combination of impairments. Id. at 13. Additionally, the ALJ determined that if Plaintiff stopped the substance abuse, he would not have an impairment or combination of impairments that met or medically equaled any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id.
The ALJ then found that if Plaintiff stopped the substance abuse, he would have the RFC to perform light work as defined in 20 C.F.R. § 416.967(b), except that he: may frequently balance, stoop, kneel, crawl, climb ramps and stairs; may occasionally crouch; must never climb ladders, ropes, or scaffolds; must avoid exposure to extremes of heat and workplace hazards, including unprotected heights and the operation of a motor vehicle; must avoid all exposure to extensive narcotic use; was limited to the performance of unskilled work, consisting of simple, routine tasks undertaken in a work setting requiring minimal contact with the public; and was limited to normal ("as opposed to close, over-the-shoulder") contact with supervisors and no more than occasional and superficial interaction with supervisors. Tr. at 15-16.
Continuing, the ALJ stated that if Plaintiff stopped the substance abuse, his medically determinable impairments could reasonably be expected to produce the alleged symptoms, however, Plaintiff's statements concerning the intensity, persistence, and limiting effects of the symptoms were not credible to the extent that they were inconsistent with the RFC assessment. Id. at 16. The ALJ indicated that Plaintiff had made several inconsistent statements on issues central to the disposition of his claim. Tr. at 19. Specifically, the ALJ noted that in his function report, Plaintiff stated that he did not perform household chores or yard work, and had no hobbies; however, within the record and since the alleged onset date, Plaintiff reported cleaning his house and garage, landscaping, and working on cars as a hobby. Id. The ALJ also stated that in Plaintiff's disability report he indicated having only a tenth-grade education, however, the record showed that he had acquired a GED prior to filing the disability report. Id. Further, the ALJ stated that Plaintiff's report that he could only carry a few pounds was inconsistent with the records indicating that he was carrying an armload of firewood intended to stoke a wood burning furnace. Id. The ALJ also noted that Plaintiff attempted to explain this anomaly at the hearing by stating that the was only carrying a "couple of sticks for kindling" despite the record indicating otherwise. Id. Further, the ALJ stated that Plaintiff claimed that he had been sober for one year, yet a treatment note from two months prior to the hearing made a reference as to what will happen when Plaintiff's Percocet prescription ran out. Id.
Moreover, the ALJ indicated that the record showed that Plaintiff engaged in persistent drug-seeking behavior as noted by emergency room physicians, who cited multiple opiate prescriptions issued by a variety of prescribers, some of which Plaintiff denied knowing or having visited. Tr. at 19. According to the ALJ, despite Plaintiff's denial of knowing or visiting multiple doctors to obtain prescriptions for opiates, he readily admitted to the overuse of opiates. Id. The ALJ found that "the subterfuge inherent in this behavior likewise renders questionable the reliability of the information provided by [Plaintiff]." Id.
Next, the ALJ determined that if Plaintiff stopped substance abuse he would be unable to perform past relevant work. Tr. at 21. The ALJ stated that Plaintiff was a younger individual on the date his application was filed, had at least a high school education and was able to communicate in English, and that the transferability of jobs skills was not material to the determination of disability because the Medical-Vocational Rules support a finding that Plaintiff was not disabled. Id. Further, the ALJ indicated that if Plaintiff stopped the substance abuse, and considering his age, education, work experience, and RFC, there would be a significant number of jobs in the national economy that Plaintiff could perform. Id. The ALJ found that Plaintiff substance use disorder was a contributing factor material to the determination of disability because Plaintiff would not be disabled if he stopped the substance use. Id. at 22. Finally, the ALJ determined that because the substance use disorder was a contributing factor material to the determination of disability, Plaintiff had not been disabled within the meaning of the Social Security Act at any time from the date his application was filed through the date of the decision.
An ALJ must proceed through the required sequential steps for evaluating entitlement to social security benefits. These steps are:
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and makes a determination of disability. This Court's review of such a determination is limited in scope by §205 of the Act, which states that the "findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §405(g). Therefore, this Court's scope of review is limited to determining whether substantial evidence supports the findings of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6
The substantial-evidence standard requires the Court to affirm the Commissioner's findings if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Cole v. Astrue, 661 F.3d 931, 937(citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal citation omitted)). Substantial evidence is defined as "more than a scintilla of evidence but less than a preponderance." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence standard creates a "`zone of choice' within which [an ALJ] can act without the fear of court interference." Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001). However, an ALJ's failure to follow agency rules and regulations "denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record." Cole, supra, citing Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (citations omitted).
42 U.S.C. § 423(d)(2)(C) indicates that an individual shall not be considered to be disabled for purposes of disability insurance benefit payments if alcoholism or drug addiction would be a contributing factor material to Defendant's determination that the individual is disabled. 42 U.S.C. § 1382c(a)(3)(J) makes it clear that if alcoholism or drug addiction would be a contributing factor material to Defendant's determination that the individual is disabled, that individual shall not be considered to be disabled for the purpose of a SSI claim. If there is medical evidence of alcoholism or drug addiction, Defendant follows the following process, pursuant to 20 C.F.R. § 416.935(b):
Plaintiff asserts that the ALJ's decision to discount a portion of Dr. Cesare's opinion is not supported by substantial evidence. ECF Dkt. #11 at 1, 14-25. According to Plaintiff, Dr. Cesare's testimony demonstrates that absent substance abuse, Plaintiff's severe impairments remained disabling. Id. at 14-15. Plaintiff asserts that the ALJ mischaracterized testimony from Dr. Cesare when choosing to discount a potion of his opinion, and thus the ALJ's findings are not supported by substantial evidence. Id. at 15. Based on these assertions, Plaintiff contends that the expert testimony presented at the hearing made it "clear that Plaintiff should have been found disabled at step five of the sequential evaluation process, notwithstanding sobriety." Id.
Continuing, Plaintiff indicates that the ALJ found Dr. Cesare's opinion worthy of considerable weight, with the exception being the portion of the opinion stating that Plaintiff's personality disorder "would likely cause [Plaintiff's] work persistence to be measured in months rather than years."
Plaintiff submits the following three arguments to support his claim that the ALJ's reasons for discounting these portions of Dr. Cesare's are not supported by substantial evidence: (1) the ALJ did not provide an adequate explanation as to why Dr. Cesare's consideration of "two pieces of evidence" (later identified as evidence referencing to cruelty to animals and a charge for corruption of a minor) was inappropriate; (2) the ALJ was incorrect to suggest that the portions of Dr. Cesare's referencing to cruelty to animals and a charge for corruption of a minor were based largely on isolated reference in the record that were determined to be immaterial; and (3) even if Dr. Cesare impermissibly relied too heavily on certain isolated pieces of evidence, the ALJ nonetheless mischaracterized Dr. Cesare's opinion testimony to reach a finding that Plaintiff's level of social functioning during periods of sobriety would permit him to engage in sustained employment. Tr. at 17. Plaintiff contends that the evidence in this case weighs in favor of crediting the entirety of Dr. Cesare's opinion, as he was testifying within the bounds of his particular certifications and specialties, and had the opportunity to review Plaintiff's treatment records. Id. at 18. Further, Plaintiff avers that Dr. Cesare's testimony was supported by substantial evidence. Id.
As to his first and second arguments, Plaintiff asserts that the ALJ failed to provide an explanation as to why Dr. Cesare should have ignored isolated treatment records in order to provide "a worthy opinion," and that the closest the ALJ comes to an explanation is that these instances are not reported consistently in the record. ECF Dkt. #11 at 20. Plaintiff claims that the ALJ was "not in a position to discern what information was material to a psychological expert providing diagnoses and prognoses for [Plaintiff]." Id. Continuing, Plaintiff avers that the ALJ should not have substituted her opinion for that of a medical expert, and states:
Id. Plaintiff also claims that the ALJ never elaborated on how the fact that Plaintiff was nineteen when he was convicted for corruption of a child, who would subsequently wed Plaintiff and bear his children, mitigates against a finding Plaintiff's mental illness would cause marked limitations in social functioning. Id. at 21. Next, Plaintiff asserts that Dr. Cesare did not reference Plaintiff's charge for corruption of a minor when testifying at the hearing, and that the ALJ improperly imputed an underlying reason for Dr. Cesare's opinion that was not supported by the record. ECF Dkt. #11 at 21. According to Plaintiff, this necessarily results in a decision that was not supported by substantial evidence and is proper grounds to remand this case. Id.
Plaintiff also asserts that it is clear that Dr. Cesare believed that Plaintiff's personality disorder was present long before he abused drugs, citing Dr. Cesare's testimony indicating that Plaintiff: showed early signs of personality disorder during his childhood and teen years by "getting into trouble, [] abusing animals, etcetera, getting in fights and whatnot"; had a rough childhood, and was expelled from school at age nine for fighting; had a personality disorder that probably preceded his addiction; and would have permanent functional limitations of marked proportions when it came to interpersonal relationships, primarily in interaction with supervisors or others in authority positions. ECF Dkt. #11 at 22-23 (citing Tr. at 47, 57, 59).
As to his third argument, that the ALJ mischaracterized Dr. Cesare's testimony, Plaintiff cites the following portion of Dr. Cesare's testimony:
ECF Dkt. #11 at 23 (citing Tr. at 60).
Finally, Plaintiff claims that the ALJ ignored Dr. Cesare's opinion that, even with complete sobriety, Plaintiff would remain incapable of performing sustained full-time employment. ECF Dkt. #11 at 24. Specifically, Plaintiff points to testimony from Dr. Cesare in which he states:
Id. (citing Tr. at 60). Plaintiff further states that a review of Plaintiff's work history suggests that his employment record comports with Dr. Cesare's assessment. Id. at 25 (citing Tr. at 183-88).
Defendant contends that the ALJ specifically acknowledged and thoroughly addressed the applicable regulations in her decision, and recognized that Plaintiff exhibited certain severe impairments that limited his ability to perform basic work activities, even in the event his substance abuse stopped. ECF Dkt. #14 at 12. Further, Defendant indicates that the ALJ determined that the totality of the record failed to demonstrate that Plaintiff's condition caused work-preclusive limitations in the event Plaintiff stopped the use of substances. Id. Therefore, according to Defendant, the ALJ concluded that Plaintiff's substance-abuse disorder was a contributing factor material to the determination of disability and that Plaintiff was not entitled to benefits under the Social Security Act. Id.
Next, Defendant properly asserts that, as a general matter, the ALJ alone is charged with analyzing the longitudinal record and synthesizing her findings in an RFC evaluation. ECF Dkt. #14 at 12-13; see 20 C.F.R. § 416.927(d)(1)-(3). Defendant avers that even an ALJ's accordance of great weight to the opinion of a medical source does not obligate the ALJ to transcribe verbatim the functional limitations advanced by that individual. Id. at 13 (citing Williams v. Comm'r of Soc. Sec., No. 1:10CV2583, 2012 WL 1066778, at *5 (N.D. Ohio Mar. 28, 2012)). Continuing, Defendant argues that a physician's opinion that is unsupported by clinical evidence or inconsistent with other evidence should be accorded less weight. Id. (citing 20 C.F.R. § 416.927(c)(3)-(4)).
With respect to Plaintiff's social limitations, Defendant states that the ALJ reasonably concluded that Plaintiff would experience only moderate social limitations in the event his substance abuse stopped, as evidenced by the ALJ's indication that Plaintiff lived with his fiancée. ECF Dkt. #14 (citing Tr. at 14). Defendant also notes that ALJ referenced in his stepthree analysis the opinons of Dr. Haskins and Dr. Steiger, who both opined, after their own independent reviews of the medical evidence, that while Plaintiff experienced marked limitations in social functioning while abusing substances, Plaintiff, if sober, would retain some limitations but could perform simple work in an environment with occasional, superficial interactions with others. Id.
As for Plaintiff's contention that the ALJ improperly discounted Dr. Cesare's opinion for referencing behavior including animal cruelty at age fourteen and corruption of a minor at age nineteen, Defendant contends that it was not the ALJ's point that Dr. Cesare improperly reviewed these records, but rather that he relied on these decades-old instances of behavioral extremes in light of other evidence. ECF Dkt. #14 at 15. Regarding Plaintiff's assertion that the ALJ mischaracterized Dr. Cesare's opinion, Defendant maintains that the ALJ asked whether it was reasonable for Plaintiff to work at a job with limited interaction with the public, co-workers, and supervisors, and Dr. Cesare responded in the affirmative. Id. at 15-16. Defendant then states that Dr. Cesare testified that minimum contact with other people would "open up the possibility of employment" for Plaintiff, albeit subject to sharp potential limitations on the duration of Plaintiff's employment. Id. at 16. Based on these statements, Defendant asserts that the ALJ did not mischaracterize Dr. Cesare's testimony. Id.
Insofar as Plaintiff claims that his work history supports Dr. Cesare's opinion that he could only work for a period of months, rather than years, Defendant asserts that the ALJ agreed that Plaintiff could not return to his old jobs and expressly agreed at step four that Plaintiff was incapable of returning to his past relevant work, even if he stopped using substances. ECF Dkt. #14 at 17 (citing Tr. at 21). Defendant indicates that, based on the evidence, the ALJ simply declined to adopt the portion of Dr. Cesare's opinion providing that Plaintiff could not undertake any job on a long-term basis. Id. at 17-18. Continuing, Defendant avers that the regulations are clear that an opinion, divorced from specific functional limitations, and which merely addresses a claimant's capacity to undertake work, implicates an issue expressly reserved for Defendant and that no special significance should be accorded any source with respect to such an opinion. Id. (citing 20 C.F.R. § 416.927(d)(1), (3)). According to Defendant, the ALJ simply was not obligated to adopt Dr. Cesare's opinion regarding the duration of potential jobs. Id.
Plaintiff's arguments are without merit. As an initial matter, neither party asserts that Plaintiff is not addicted to drugs, meaning that the question is whether Plaintiff would be considered disabled if he stopped using drugs. See 20 C.F.R. § 416.935(b). Plaintiff first asserts that the ALJ did not provide an adequate explanation as to why Dr. Cesare's consideration of "two pieces of evidence" was inappropriate.
The second argument posed by Plaintiff is that the ALJ was incorrect to suggest that Dr. Cesare's opinion "was founded largely upon isolated references in the record that [the ALJ] determined to be immaterial." ECF Dkt. #11 at 17. Despite Plaintiff's contention, it does not appear from the opinion that the ALJ determined that Dr. Cesare's opinion was founded "largely upon isolated references in the record." See Tr. at 14. In fact, the ALJ accorded considerable weight to Dr. Cesare's opinion and, based on the opinion, determined that Plaintiff's RFC was actually more limited than as opined by Dr. Haskins and Dr. Steiger, the state-agency reviewing doctors. See Id. at 20. Moreover, the ALJ did not indicate that she believed Dr. Cesare's opinion to be largely based on isolated references, but instead that the opinion did not present a totally accurate description of Plaintiff's social limitations as it was based in part on events that occurred in Plaintiff's youth that the ALJ did not believe to be good indicators of Plaintiff's social limitations decades after the events. See id. at 14. In fact, a review of Dr. Cesare's hearing testimony reveals that the discussion of Plaintiff's personality disorder focused on events that occurred in Plaintiff's childhood, including the instance of animal cruelty. Id. at 57.
Continuing, Plaintiff's third argument is based on the contention that the ALJ erred in discounting the weight accorded to Dr. Cesare's opinion because the ALJ did not accept the portion of the opinion in which Dr. Cesare stated that Plaintiff could only work for a period of months, rather than years, since Dr. Cesare relied on descriptions of symptoms and limitations not consistently reported in the record. Specifically, the portion of the ALJ's decision that forms the basis of Plaintiff's assertions reads:
ECF Dkt. #11 at 18-23. While Dr. Cesare explicitly discussed Plaintiff's cruelty to animals in the past at the hearing, Dr. Cesare did not reference Plaintiff's charge for corruption of a minor when discussing his social limitations. See Tr. at 40-61.
According to Plaintiff, the ALJ's indication that one of the reasons he discounted Dr. Cesare's opinion was his reliance on Plaintiff's charge for corruption of a minor, despite Dr. Cesare never explicitly stating that he considered this charge, constitutes reversible error. ECF Dkt. #11 at 21-22. Defendant contends that the ALJ was not stating that Dr. Cesare erred by reviewing these records or by citing the records in his testimony, but rather that the ALJ reasonably found that Dr. Cesare erred when relying on decades-old instances of behavioral extremes in light of the other evidence cited by the ALJ. ECF Dkt. #14 at 15. Plaintiff claims that the ALJ erred when she factored Dr. Cesare's consideration of Plaintiff's charge for corruption of a child when it was not clear that Dr. Cesare considered the corruption of a child offense to be part of the reason why Plaintiff could only work for a period of a few months at a time. Continuing, Plaintiff asserts that the ALJ imputed an underlying reason for Dr. Cesare's opinion that was not substantiated by the record, and then improperly used this reason as a basis to discredit his opinion. ECF Dkt. #11 at 21. Plaintiff cites case law he believes supports his contention that the ALJ's mention of the corruption of a child charge when stating why she was discounting Dr. Cesare's opinion warrants remand of this case.
First, Plaintiff cites Elson v. Comm'r of Soc. Sec., No. 3:11CV183, 2011 WL 7418598, (N.D. Ohio Dec. 22, 2011). In Elson, the ALJ supported the decision by citing medical expert testimonial evidence indicating that the medical expert determined that none of the claimant's impairments met or medically equaled the criteria of any listed impairment. Id. at 23. The Court determined that a review of the hearing testimony revealed no such statement by the medical expert. Id. Since the ALJ relied on this nonexistent hearing testimony, in part, the Court held:
Id. at *13. Next, Plaintiff cites Dimmings v. Comm'r of Soc. Sec., No. 1:13CV146, 2014 WL 296866, at *9 (N.D. Ohio Jan. 27, 2014), in which the Court found:
Additionally, Plaintiff cites White v. Comm'r of Soc. Sec., 312 Fed.Appx. 779, 787-88 (6
Plaintiff's reliance on Dimmings and White is misplaced. In Dimmings, the ALJ recognized that a medical expert was necessary, but then discounted the medical expert's opinion for reasons partially under his control and, thereafter, interpreted the medical evidence without the aid of the medical expert even though he had already determined that the medical expert was necessary. Dimmings, 2014 WL 296866, at *9. The ALJ's own medical equivalency was then inconsistent with his own sedentary RFC finding. Id. Additionally, the Court found that the ALJ had failed in his duty to develop a full and fair record. Id. at *7. The ALJ in the instant case referenced an existing medical record that had been provided to Dr. Cesare, and to which Dr. Cesare testified that he had reviewed.
White is even less analogous to this case than Dimmings. In White, the ALJ gave no explanation for totally discounting the objective evidence of the claimant's mental impairment when making his RFC determinations, and made statements relating to the claimant's mental impairments that were not supported by the objective evidence. See 312 Fed.Appx. at 787-88. Plaintiff's contention in the instant case has nothing to do with how the ALJ handled the objective evidence. In fact, the ALJ in the instant case provided a thorough recitation of the evidence and explained how the objective evidence factored into her decisions at each applicable step of the sequential evaluation. See Tr. at 18-25. The issue raised by Plaintiff involves the ALJ's handling of subjective testimony from Dr. Cesare stating his opinion regarding Plaintiff's limitations — there is no claim that the ALJ improperly discounted objective medical evidence.
More analogous to the case at hand, the remand in Elson was the result of the ALJ making his determination, in part, that Plaintiff did not meet a listed impairment based on testimonial evidence that did not exist. Elson, No. 3:11CV183, at *13. In Elson, the Court remanded the case, in part, based on following:
Id. In the instant case, the ALJ cited a brief portion of nonexistent testimonial evidence when explaining why he was discounting the weight accorded to Dr. Cesare's opinion that Plaintiff could only work for a period lasting months rather than years. While both this case and Elson feature ALJs that cite to testimonial evidence that was nonexistence, a distinction is present. In this case, the testimonial evidence that is cited by the ALJ relates to a finding regarding Plaintiff's ability to work, rather than his medical impairments. In Elson, the ALJ relied on nonexistent testimony, in part, when determining that the claimant did not meet a listed impairment. Here, the ALJ cites to nonexistent testimony, in part, when determining the weight to accord to Dr. Cesare's opinion that Plaintiff could only work for periods of months, rather than years.
The regulations are clear that an opinion divorced from specific functional limitations, which merely addresses a claimant's capacity to undertake work, implicates an issue expressly reserved for Defendant. 20 C.F.R. § 416.927(d)(1). 20 C.F.R. § 416.927(d)(1) states:
Additionally, "no special significance" is to be given to source with respect to such an opinion. Id. at (3). Accordingly, the ALJ was not obligated to adopt Dr. Cesare's opinion that Plaintiff could only work for a period of months rather than years since it is an opinion regarding Plaintiff's ability to work. Further, Dr. Cesare is not a treating medical source, so the ALJ was not required to give the opinion controlling weight, or provide "good reasons" for assigning lesser weight. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6
It is clear from the ALJ's opinion that in citing Plaintiff's cruelty to animals and corruption of a minor, the ALJ was attempting to state that Dr. Cesare's opinion was based, in part, on events that she found to be of lesser significance for the purpose of determining Plaintiff's social limitations for the period of alleged disability. See Tr. at 14. The ALJ cited these two instances as examples of the types of symptoms and limitations that were not consistently reported in the record, rather than as the only two descriptions for which Dr. Cesare's opinion was discounted. See id. As such, Dr. Cesare's reference to animal cruelty many years in the past is a valid concern presented by the ALJ. Dr. Cesare indicated that he reviewed all of the medical evidence, which contained the discussions of animal cruelty and childhood problems discussed in his hearing testimony.
In sum, the overwhelming majority of the evidence supports the ALJ's determination that Plaintiff's substance use disorder was a contributing factor material to the determination of disability because Plaintiff would not be disabled if he stopped the substance use. Plaintiff now asks that the Court remand this case mainly on the basis of the ALJ's brief indication that Dr. Cesare relied, in part, upon a piece of evidence that had been reviewed, but not mentioned, by Dr. Cesare during the hearing. The ALJ's decision was thorough and provided a detailed analysis of the medical evidence, treatment opinions, and Plaintiff's credibility. Moreover, the conclusions reached by the ALJ were all supported by the record and other evidence in this case. For these reasons, the undersigned recommends that the Court finds that the ALJ's decision is supported by substantial evidence and dismiss Plaintiff's case in its entirety with prejudice.
For the foregoing reasons, the undersigned RECOMMENDS that the Court AFFIRM the ALJ's decision and dismiss Plaintiff's case in its entirety with prejudice.
ECF Dkt. #11 at 16 (citing Tr. at 13-14).
