JAMES G. CARR, SR., District Judge.
This is a Social Security case in which Magistrate Judge Kathleen B. Burke has filed a Report and Recommendation recommending that I affirm the Commissioner's decision denying Andrew Dell's application for benefits. (Doc. 19).
The Magistrate Judge notified the parties that objections were due within fourteen days after the filing of her R&R, which occurred on March 14, 2019. (Id., PageID 1133).
Because Dell has not filed any objections, he has forfeited his right to de novo review of the R&R. Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). I "need only satisfy [myself] that there is no clear error on the face of the record in order to accept the recommendation." Bogan v. Morgan, 2012 WL 3776514, *1 (N.D. Ohio 2012) (Gaughan, J.).
Having reviewed the Magistrate Judge's persuasive R&R, I am satisfied that it properly disposes of this case.
It is, therefore,
ORDERED THAT:
So ordered.
Plaintiff Andrew Dell ("Dell") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI"). Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).
For the reasons stated below, the undersigned recommends that the Commissioner's decision be
On May 21, 2015, Dell protectively filed an application for SSI, alleging a disability onset date of July 15, 2012. Tr. 18, 242. He alleged disability based on seizures. Tr. 246. After denials by the state agency initially (Tr. 88) and on reconsideration (Tr. 104), Dell requested an administrative hearing. Tr. 113. A hearing was held before an Administrative Law Judge ("ALJ") on January 30, 2017. Tr. 37-71. In his June 13, 2017, decision (Tr. 18-31), the ALJ determined that there are jobs that exist in the national economy that Dell can perform, i.e., he is not disabled. Tr. 29. On March 9, 2018, the Appeals Council denied Dell's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-3.
Dell was born in 1972 and was 42 years old on the date he filed his application. Tr. 220. He graduated from high school and had vocational training in auto body work. Tr. 49. He last worked in 2012 doing lawn care and maintenance work at a mobile home park. Tr. 52.
Dr. Policherla's treatment notes state that Dell had five "episodes of unproved breakthrough seizure activity in 2014," Tr. 707, and three "unproved seizures" in 2015 and "unproved recurrent seizure activity in January and September 2015 at least 3-4 episodes." Tr. 809. In September 2015, a passing motorist found Dell lying down on the side of the road, having had a seizure. Tr. 972.
On January 20, 2016, Dell went to the emergency room complaining of a headache he had had for 12 hours, rated 3/10, and having had two seizures that morning. Tr. 960. He reported that his last seizure was in August 2015. Tr. 960. A CT scan compared to one taken in August 2014 showed no acute intracranial abnormality and bilateral maxillary sinusitis. Tr. 961.
On January 29, 2016, Dell saw Dr. Policherla. Tr. 684. He reported having had a seizure during the night a few days prior to his visit and feeling groggy and weak afterwards. Tr. 706. An MRI confirmed chronic sinusitis and a left maxillary sinus mucous retention cyst. Tr. 700.
In July 2016, Dell reported to Dr. Policherla that he had had breakthrough nocturnal seizure activity in late June due to being dehydrated. Tr. 784.
In October 2016, Dell saw Dr. Policherla and endorsed "seizures and starring [sic] episodes." Tr. 794. He reported recurrent seizure activity at least twice in September 2016, with memory lapses and prolonged postictal state, followed by headaches. Tr. 808. He indicated that he had been experiencing a lot of stress at that time and that he was having migraines. Tr. 808, 906.
Throughout his treatment history, Dell was prescribed Lamictal, Keppra, and Vimpat. Tr. 663.
Dr. Policherla diagnosed Dell with mild memory problems. Tr. 586, 598, 796.
On July 6, 2015, during a visit with Dr. Policherla, Dell was found to have a decreased recent and remote memory and decreased attention and concentration. Tr. 431. At various times, he reported to Dr. Policherla that he had balance and coordination problems, focal weakness, sleep disturbance, and a history of falls. Tr. 666, 733. In February 2016, he sprained his wrist after tripping on the stairs at home and falling down ten steps. Tr. 666, 948.
Dr. Policherla listed seizure precautions on his treatment notes for Dell to avoid: working at heights, working with heavy machinery, swimming, climbing a ladder unattended, driving if he had a seizure, and that he must be seizure-free for at least 6 months before driving. E.g., Tr. 433.
On August 25, 2015, Dell saw Neil Shamberg, Ph.D., for a consultative psychological examination. Tr. 563. Dr. Shamberg opined that Dell would "not be severely limited at all" in his ability to understand, remember and carry out simple job instructions; had few if any limitations maintaining normal attention and concentration; might have a few limitations in his ability to respond to supervisors and coworkers; and might have some limitations in his ability to respond appropriately to work pressures. Tr. 569-570.
Dell was unrepresented and testified at the hearing. Tr. 40-66, 69-71. The ALJ confirmed that Dell was aware he had a right to an attorney, that he wished to go forward with the hearing despite not having counsel, and that he signed a form waiving his right to an attorney. Tr. 40. The ALJ again explained to Dell that he had a right to an attorney or non-attorney representative and the potential fees and expenses involved. Tr. 40-41. He informed Dell that a representative could present the evidence in a way that is most favorable to Dell's case, and Dell stated that he understood. Tr. 41. The ALJ asked Dell if he wished to go forward with the hearing and Dell said that he did. Tr. 41. The ALJ asked Dell if he had a chance to review his file and Dell said that he had. Tr. 41. The ALJ confirmed that Dell reviewed all the sections in the file, including the medical records, which were the most important, and Dell stated that he had. Tr. 41. The ALJ remarked that Dell had told the ALJ's assistant that there were some outstanding records. Tr. 41. The outstanding medical records were an EEG and a visit to a general surgeon the week before, whom Dell had been referred to because he had lost weight. Tr. 69. They found a gall stone and he is waiting for a follow-up to find out what the problem is. Tr. 70. The ALJ asked Dell if he had any objections to the exhibits and Dell stated that he did not. Tr. 41-42. The ALJ stated that he would order the outstanding records. Tr. 41.
Dell testified that he lives in a two-story house with his two children, aged nine and eleven. Tr. 43, 45. He sleeps on the second floor. Tr. 44. He used to have a driver's license but no longer does because of his seizures. Tr. 46. He mostly gets around by walking; where he lives, everything is usually in walking distance, i.e., within 7 or 8 blocks. Tr. 47. He walks about three blocks to visit his grandchildren two to three times a week. Tr. 48. The grocery store is 12 blocks away and, usually, his son-in-law takes him grocery shopping. Tr. 48. His son-in-law drove him to the hearing. Tr. 49.
Dell last worked in 2012 as a maintenance worker at a trailer park, a job he performed on and off for 14 years. He lost that job because the employer brought in a husband and wife team to manage the park and do maintenance. Tr. 52-53, 59. Otherwise, he could have continued to do that job. Tr. 53. He has applied for local jobs in the area but has not been hired. Tr. 51.
When asked why he was unable to work, aside from his seizures, Dell stated that his seizure medication and his antidepressant makes it hard to work. Tr. 53. His medications cause dizziness, drowsiness, and make him feel groggy. Tr. 53. He has been on these medications since 2006. Tr. 53. The ALJ stated that he did not recall seeing any mention in Dr. Policherla's records about medication side effects and asked Dell if he had spoken to Dr. Policherla about it. Tr. 54. Dell stated that he had. Tr. 54. When asked why Dr. Policherla hadn't made any medication changes, Dell stated, "Just has—still having seizures. He's actually talking about upping the Vimpat." Tr. 54. The last time Dell had a seizure was "November." Tr. 54. It occurred in the early evening. Tr. 55. He only remembers waking up afterwards. Tr. 55. His nephew and daughter were there at the time and they called EMS, but Dell did not go to the hospital. Tr. 55. Prior to that he had a seizure on October 1. Tr. 55.
The ALJ asked Dell about an emergency room visit from April 2016 due to Dell being punched in the ribs. Tr. 56. Dell stated that he was helping a friend who wanted to try mixed martial arts fighting. Tr. 56. He was trying to help his friend learn a different technique; the instructor was present and Dell was acting as a "pawn" for his friend. Tr. 56. He didn't really get punched, he just fell down and landed on his friend's wrist. Tr. 56. This occurred on the second occasion he participated in this activity and he did not continue with it. Tr. 57.
The ALJ commented that Dell was supposed to get evaluated for seizures at the Cleveland Clinic and Dell confirmed that he was supposed to get evaluated there. Tr. 57. But he had not been evaluated. Tr. 57. He had called, and they were trying to set him up, but they were trying to get all the doctors together at once to evaluate him instead of Dell having to go back and forth for several different tests. Tr. 57-58. They were trying to do all the tests in one weekend but Dell hadn't heard back from them for three months. Tr. 58. Dell had not followed up. Tr. 58. There is a possibility, a 30% chance, that they could do something else to help with his seizures. Tr. 65-66.
The ALJ observed that it looked like Dell normally had a seizure about every three months. Tr. 58. Dell stated that he had gone six months, and then one month, and then Dr. Policherla would have him come in every month. Tr. 58. When there is no seizure, Dell goes in every three months, and if that's good then he goes in every six months. Tr. 58. His last appointment was the beginning of January 2017 and his next appointment is in February 2017. Tr. 58. The ALJ asked if it is accurate to say that Dell's seizures most often happen at night and Dell agreed that they did. Tr. 59. He has no idea what brings them on. Tr. 59.
Dell does yard work at his house, but when it is extremely hot his son-in-law comes over and helps. Tr. 60. Overheating can cause a seizure. Tr. 60-61. His other activities include getting his children up and off to school. Tr. 61. The ALJ asked Dell to explain how the grogginess and dizziness affect him; is he groggy at certain times, or all the time? Tr. 61. Dell stated that he takes his kids to school (they get on the bus two blocks from the house) at 7:15 a.m. Tr. 61, 48. He goes home and puts in a load of laundry. Tr. 61. Then he takes his medicine at 8:00. Tr. 61. By 3:30 p.m., when the kids come home from school, he is starting to come out of his grogginess. Tr. 61. When asked what Dell does between 8:00 and 3:30, Dell stated that he sleeps. Tr. 61. He sleeps about 5-6 hours every day, even in the summer when the kids are home. Tr. 61. It is hard to stay awake. Tr. 61. He also sleeps almost the whole night. Tr. 62. Dell cooks for his children. Tr. 63. He takes a shower every day. Tr. 63-64. He cleans the house and his children help; his eleven-year-old does the dishes. Tr. 64.
The ALJ commented on a treatment note of Dr. Policherla's, dated November 2015, which said that Dell had no dizziness, lightheadedness, or confusion. Tr. 62. Dell stated that, if he has a seizure, usually he would be extremely confused trying to remember where he was. Tr. 62. If he has a seizure during the night, it takes about 10 to 15 minutes in the mornings to figure out where he is. Tr. 62-63. The ALJ remarked that, in April 2016, Dr. Policherla stated that Dell had no side effects from his medication and asked for confirmation that Dell had been on the same medication for a long time. Tr. 63. Dell stated that he was not sure about the Vimpat. Tr. 63. The ALJ stated that Dell's form that he filled out for his disability application listed that he had been on Vimpat since 2015. Tr. 63.
When asked whether the frequency of his seizures has gotten better, worse, or stayed the same over the last two years, Dell stated that the frequency has stayed the same. Tr. 66. The ALJ again informed Dell that the agency will get his outstanding records and advised that, if there is any other evidence Dell is aware of, he should provide it. Tr. 71.
A Vocational Expert ("VE") also testified at the hearing. Tr. 66-69. The ALJ asked the VE to determine whether a hypothetical individual of Dell's age, education and work experience could perform work if that person had the following limitations: can perform medium work, never climb ramps and stairs, can occasionally kneel, crouch and crawl, can frequently handle and finger, must avoid all exposure to hazards, and no commercial driving. Tr. 67. The VE stated that such an individual could perform work as a laundry worker (51,000 national jobs), stock handler (97,000 national jobs), and food service worker (64,000 national jobs). Tr. 68. The ALJ asked the VE if there would be work for the hypothetical individual described if that person was limited to light work, rather than medium. Tr. 68. The VE answered that there was, and listed the following jobs: cleaner (397 national jobs), cashier (1.1 million jobs), and mail clerk (75,000 jobs). Tr. 68. The ALJ asked the VE if the individual could still perform these jobs if he or she would be consistently absent two days per month and the VE answered that the individual could not perform the jobs previously identified or any other jobs. Tr. 68. The ALJ asked the VE if his testimony was consistent with the Dictionary of Occupational Titles ("DOT") and the Selected Characteristics of Occupations ("SCO") and the VE answered that it was. Tr. 69.
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 June 13, 2017, decision, the ALJ made the following findings:
Dell challenges the ALJ's decision on four grounds: the ALJ did not fairly develop the record; the ALJ erred by not including all Dell's impairments, severe and non-severe, in combination, in his RFC assessment; the ALJ improperly weighed the medical opinions; and the ALJ erred because he did not present an accurate hypothetical to the VE. Doc. 17, pp. 10-11.
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. Sec'y of Health & Human Servs., 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).
An ALJ has a duty to provide a claimant with a full and fair hearing. Lashley v. Sec. of Health & Human Servs., 708 F.2d 1048, 1051 (6th Cir. 1983). "Under special circumstances— when a claimant is (1) without counsel, (2) incapable of presenting an effective case, and (3) unfamiliar with hearing procedures—an ALJ has a special, heightened duty to develop the record." Wilson v. Comm'r of Soc. Sec., 280 Fed. App'x 456, 459 (6th Cir. 2008) (citing Lashley, 708 F.2d at 1051-1052). There is no bright line test; instead, a court decides the issue on a case by case basis. Lashley, 708 F.2d at 1052.
Dell was not represented by counsel at the hearing. He argues that the ALJ erred because, at the hearing, he "should have, for example, better fleshed out Dell's bad days, fatigue issues, among others—including those with likely multiple sources, most obviously, hepatic steatosis." Doc. 17, p. 13. Dell then concedes that his diagnosis of hepatic steatosis came after the hearing. Doc. 17, p. 13. It is not clear how Dell believes the ALJ should have fleshed out a diagnosis at the hearing that Dell himself, and his doctors, at that time did not know he had, and to attribute symptoms to this diagnosis. In his decision, the ALJ considered Dell's post-hearing evidence, including Dell's later-diagnosed hepatic steatosis. Tr. 21.
Dell complains that the ALJ should have traced the post-hearing evidence regarding his hepatic steatosis back to his allegations of fatigue. Doc. 17, p. 13. But, as Dell again concedes, he himself testified that his fatigue was caused by his medications. Doc.17, p. 13. In other words, he appears to argue that the ALJ should have discredited Dell's own testimony regarding the cause of his fatigue and retroactively attributed his fatigue to his future diagnosis of hepatic steatosis. This argument is nonsensical and makes far too much of an ALJ's duty to develop the record. Dell's assertion that the ALJ should have held a supplemental hearing also fails; as the ALJ explained, despite Dell's diagnosis of hepatic steatosis, his esophagogastroduodenoscopy and colonoscopy were normal and a laparoscopy cholecystectomy was recommended in the future. Tr. 27, 848-852. Notably, Dell did not report fatigue when seen for his hepatic steatosis. Tr. 848, 851. And a diagnosis, standing alone does not establish a functional limitation caused by that condition. See Young v. Sec'y of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990). The ALJ was not required to hypothesize about symptoms and limitations stemming from Dell's post-hearing diagnosis.
Dell also complains, "the ALJ does very little examination into the length of recovery from the seizures and headaches, other events such as the staring episodes, etc." Doc. 17, p. 14. It was Dell's burden, not the ALJ's, to provide evidence in support of his claim. Dell failed to meet that burden, a failure he cannot blame on the ALJ. First, Dell did not testify that he had staring episodes. Indeed, in his brief, Dell only identifies one treatment note that refers to Dell arguably reporting a staring episode. See Doc. 17, pp. 8, 15 (citing Tr. 794, a treatment record in which Dell endorsed "seizures and starring [sic] episodes"). As to his headaches, Dell did not testify about headaches.
With respect to his recovery from seizures, Dell explained that he usually has seizures at night and that, when he wakes up in the morning after having had a seizure, he is extremely confused and it takes him awhile to figure out where he is. When the ALJ asked how long, Dell answered, 10 to 15 minutes. Tr. 62-63. Dell's testimony relevant to his recovery from seizures does not show that he was incapable of presenting an effective case. Wilson, 280 Fed. App'x at 459 (6th Cir. 2008); compare Lashley, 708 F.2d at 1050-1052 (ALJ had a heightened duty when the unrepresented claimant had speech problems due to a stroke, a fifth-grade education, was illiterate, appeared to be easily confused, and the ALJ did not probe further when he received short specific answers with no explanations). Nor does Dell show that he was unfamiliar with hearing procedures, Wilson, 280 Fed. App'x at 459, given the fact that he reviewed his case file prior to the hearing, informed the ALJ's assistant that there were outstanding records, and discussed with the ALJ the nature of those outstanding records. The ALJ stated that he would keep the record open and order the records and, if Dell had additional evidence, he should supply it. Tr. 41, 71. The ALJ ordered the records and reviewed and discussed them. Under the facts of this case, the ALJ did not have a special, heightened duty to develop the record and, in any event, he did not deprive Dell of a full and fair hearing or fail to develop the record. Lashley, 708 F.2d at 1051-1052.
Dell argues that the ALJ erred because he failed to include all impairments, severe and non-severe, in combination, in his RFC assessment. Doc. 17, p. 15. He again references his staring episodes, citing one page in the record in which he endorsed having experienced "seizures and starring [sic] episodes," and complains that the effect of this symptom "is not plausibly accounted for in the RFC." Doc. 17, p. 15, n.55; Tr. 794. He complains that a court reviewing the hearing "cannot even tell that Dell has staring episodes that do not amount to full seizures." Doc. 17, p. 15.
To the extent this argument complains about the ALJ's conduct at the hearing, that argument has been addressed in the prior section discussing Dell's challenges to the hearing. To the extent Dell alleges that he had staring episodes that did not amount to full seizures that the ALJ did not discuss when formulating his RFC assessment, his argument fails. First, he does not cite record evidence showing that he was found to regularly have staring episodes that amounted to something less than a full seizure such that he would be limited due to these episodes. Next, the ALJ explained in his decision that, of the four times in two years that Dell went to the emergency room for seizures, he complained only of a post-seizure headache; was discharged the same day with significant improvement; radiologic images of his head were unremarkable; and his examinations at these visits were unremarkable, with a normal eye inspection, intact cranial nerves, and normal motor and sensation. Tr. 26. Dell's regular neurological treatment records assessed him as stable and doing fairly well. Tr. 26. His activities of daily living belied disabling limitations, as he was the sole caretaker for his two children; he cooked, cleaned and shopped for groceries; and the record shows that he participated in mixed martial arts training and that he sharpened chainsaws. Tr. 27.
Dell complains that the ALJ discounted his hearing testimony that his medication causes side effects "as if [Dell] did not report them fairly consistently, even though the record shows that he did." Doc. 17, p. 15. In support of his assertion that the record shows he consistently reported medication side effects, Dell cites two pages, both of which are Social Security Administration appeal forms that he filled out in December 2015. Doc. 17, p. 15, n.56 (citing Tr. 293, 280). However, as the ALJ found, the medical records from Dell's treating neurologist did not indicate that Dell reported having medication side effects. Tr. 26.
Dell asserts that the ALJ's RFC determination is not plausible "as it relates to someone who endured both right and left carpal tunnel release surgery." Doc. 17, p. 16. In support, he states that his neurologist opined that he should continue wearing wrist braces on both arms. Doc. 17, p. 16 (citing Tr. 708). But this record, and others, indicates that Dell reported that he wore his wrist braces at bedtime and that his carpal tunnel syndrome symptoms were "much better after surgery bilaterally," as the ALJ noted. Tr. 21, 707. Furthermore, the ALJ commented that Dell routinely had normal physical and neurological examinations and considered Dell's carpal tunnel symptoms when formulating his RFC assessment, limiting Dell to frequent handling and fingering. Tr. 28. Thus, it cannot be said that the ALJ failed to include all of Dell's impairments when formulating his RFC. Dell's vague assertion that the ALJ's RFC is not "plausible" does not challenge the evidence the ALJ relied on; it merely reflects disagreement with the ALJ's conclusion, which does not describe an error. Garner, 745 F.2d at 387 (A court does not try the case de novo, resolve conflicts in evidence, or decide questions of credibility).
Dell challenges the ALJ's treatment of the opinion of his treating neurologist, Dr. Policherla. Doc. 17, p. 17. Under the treating physician rule, "[a]n 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." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2). If an ALJ decides to give a treating source's opinion less than controlling weight, she must give "good reasons" for doing so that are sufficiently specific to make clear to any subsequent reviewers the weight given to the treating physician's opinion and the reasons for that weight. Wilson, 378 F.3d at 544. In deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of the treatment relationship; specialization of the physician; the supportability of the opinion; and the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(c); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
In his treatment notes, Dr. Policherla provided a list of seizure precautions, which the ALJ considered. The ALJ gave "great" weight to the opinion of Dr. Policherla, whom he recognized as Dell's treating neurologist. He commented that Dr. Polichera's opinions were not a function-by-function analysis but a list of general precautions relating to Dell's seizure disorder. He explained that Dell experienced seizure activity intermittently, which supported the seizure precautions, even though the frequency and side effects of Dell's seizure disorder was not disabling. Accordingly, he limited Dell in accordance with Dr. Policherla's precautions: no climbing of ladders, ropes or scaffolds; no commercial driving, and avoiding all hazards, including unprotected heights, machinery, and open pools of water. Tr. 27-28.
Dell complains that the RFC only limited him to "commercial driving, without addressing her [sic] opinion against driving." Doc. 17, p. 17. The ALJ limited Dell to no commercial driving because the ALJ is tasked with assessing Dell's ability to perform work, i.e., driving in the course of employment. Dell does not explain what other driving he is referring to. He does not contend, nor could he, that the jobs the ALJ found he could perform require driving.
Dell argues that Dr. Policherla found that he had "intermittent isolated and grouped epileptiform features, both temporal and centroparietal" and that, based on this finding, it follows, "intuitively," that a "close consideration of exactly how long it takes Dell to recover from the events, and exactly how often they happen, and what their various manifestations look like," is required. Doc. 17, p. 17. This does not describe an error; rather, it only highlights the fact that Dell provided no evidence answering the questions he believes the ALJ should have intuited. The ALJ asked Dell about the frequency of his seizures, the time of day they usually occurred, and what causes them, and Dell testified as to how he felt afterwards. Tr. 54-55, 58-59, 61, 62-63, 66. Moreover, as the ALJ confirmed during the hearing, Dell had been repeatedly instructed to have an evaluation at the Cleveland Clinic for his epilepsy but he never followed up with this recommendation. Any evidence not in existence regarding Dell's condition does not describe an error made by the ALJ.
Dell recites some "tips to reduce/prevent seizures" that are included in Dr. Policherla's treatment notes: get enough sleep and avoid flashing lights, loud noises, and video games. He also references boilerplate epilepsy care instructions in a treatment note, "How can you care for yourself at home?" that states that skipping meals and being emotionally stressed may cause a person to be more likely to have seizures. He asserts that these are Dr. Policherla's opinions that the ALJ should have considered. Doc. 17, p. 17 (citing Tr. 678, 675). The undersigned disagrees; boilerplate language, including tips on how to manage seizures included in treatment notes, are not functional limitations assessed by Dr. Policherla. Dell's additional, vague arguments regarding the ALJ's treatment of Dr. Policherla's opinion are undeveloped and, therefore, the undersigned does not consider them. McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th Cir. 1997) ("Issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.") (internal citations omitted).
Finally, Dell argues that the ALJ erred because the ALJ cited no "psychologist-level opinion that Dell's psychological conditions are not severe, instead relying on the lack of any treatment for the conditions." Doc. 17, p. 19. The ALJ thoroughly explained why he gave the psychology-based opinions in the record—those of consultative examiner Dr. Shamberg and the two state agency reviewing psychologists—"little" weight. Tr. 23-24 (explaining that Dell's psychiatric examinations were regularly normal and there is no evidence of mental health treatment). A claimant's lack of treatment is a proper reason for discounting opinion evidence. 20 C.F.R. § 404.1527(c) (listing factors an ALJ considers when assessing a medical opinion, including the supportability, consistency, and other factors that tend to support or contradict the opinion).
The ALJ did not err when considering the medical opinion evidence.
Dell argues that the ALJ erred because the RFC assessment in his decision was not a hypothetical posed to the VE. Doc. 17, p. 19. He asserts that the ALJ asked the VE about what jobs an individual could do if that individual could not climb ramps or stairs (Tr. 67), but that the ALJ's RFC found that Dell could not climb ladders, ropes or scaffolds (Tr. 25). Doc. 17, p. 19. It is true that the ALJ made this error. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516-517 (6th Cir. 2010) (ALJ's hypothetical to the VE must match the ALJ's RFC). However, the error is harmless when jobs identified by the ALJ could still be performed by an individual with the claimant's RFC. Moss v. Comm'r of Soc. Sec., 2017 WL 6987957, at *6 (N.D.Ohio Dec. 18, 2017), report and recommendation adopted, 2018 WL 454391 (N.D.Oh. Janu 16, 2018). See also Pasco v. Comm'r of Soc. Sec., 137 Fed. App'x 828, 844-845 (6th Cir. June 23, 2005) (ALJ's error in giving a hypothetical to the VE that did not match the RFC was harmless when the hypothetical was more favorable than the RFC).
Here, the hypothetical the ALJ gave to the VE (no climbing ramps or stairs) was more favorable, i.e., more restrictive, than the ALJ's RFC assessment (no climbing ladders, ropes or scaffolds). SSR 85-15 provides,
SSR 85-15, 1985 WL 56857, at *6. Climbing ramps and stairs are "usual everyday activities" performed at home and work; climbing ladders, ropes and scaffolds are not. The VE testified that the jobs identified did not require an individual perform the more usual activity of climbing ramps or stairs. It follows that these jobs do not require climbing ladders, ropes or scaffolds, either. See also Selected Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles (SCO) (climbing not required for the three jobs identified by the VE: laundry worker, DOT code 361.687-018; stock handler (meat clerk), DOT code 221.684-010; and food service worker, DOT code 319.677.014); Tr. 69 (hearing testimony wherein the VE confirmed that his answers were consistent with the DOT and the SCO).
Dell argues that the jobs laundry worker and meat clerk require the use of heavy machinery and cannot be performed by an individual with the environmental restrictions in the RFC. Doc. 17, p. 18. In other words, Dell disagrees with the VE's testimony. However, an ALJ is permitted to rely upon VE testimony as to the jobs an individual can perform. Felisky v. Bowen, 35 F.3d 1027, 1035-1036 (6th Cir. 1994). And the ALJ satisfied his affirmative duty to ask the VE if the evidence provided is consistent with the DOT (Tr. 69). Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009) (the ALJ has an affirmative duty to ask the VE whether the VE's testimony conflicts with the DOT, citing SSR 00-4p, 2000 WL 1898704, at *4). The ALJ is not required to do more. Id. at 605 ("The ALJ had no duty under S.S.R. 00-4p to interrogate [the VE] further. See Martin v. Comm'r of Soc. Sec., 170 Fed. App'x 369, 374 (6th Cir. 2006) (`Nothing in S.S.R. 00-4p places an affirmative duty on the ALJ to conduct an independent investigation into the testimony of witnesses to determine if they are correct.'))."
For the reasons set forth herein, the undersigned recommends that the Commissioner's decision be
