CHRISTOPHER H. STEGER, Magistrate Judge.
Plaintiff seeks judicial review pursuant to Section 205(g) of the Social Security Act ("Act"), 42 U.S.C. § 405(g), of the denial by the Commissioner of the Social Security Administration ("SSA") of his application for disability insurance benefits and supplemental security income under Titles II and XVI of the Act, 42 U.S.C. §§ 401-434, 1381-1383f. The parties have consented to entry of final judgment by the United States Magistrate Judge under the provisions of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Sixth Circuit [Doc. 17]. For the reasons stated herein, Plaintiff's Motion for Judgment on the Pleadings [Doc. 18] shall be
Plaintiff applied for disability insurance benefits and supplemental security income under Titles II and XVI of the Act, 42 U.S.C. §§ 401-434, 1381-1383f [Tr. 226-38]. Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner of the SSA. Plaintiff's claim was denied and he requested a hearing before an administrative law judge ("ALJ") [Tr. 16-19]. On September 9, 2015, following a hearing, the ALJ found that Plaintiff was not disabled [Tr. 20-43]. On September 22, 2016, SSA's Appeals Council denied Plaintiff's request for review [Tr. 1-5]. Thus, Plaintiff has exhausted his administrative remedies, and the ALJ's decision stands as the final decision of the Commissioner subject to judicial review. Plaintiff filed a Complaint in the district court on November 21, 2016. Subsequently, Plaintiff filed a motion for judgment on the pleadings and the Commissioner filed a motion for summary judgment. Both motions are ripe for review.
After considering the entire record, the ALJ made the following findings:
[Tr. 26-36].
At the time of the hearing before the ALJ on July 27, 2015, Plaintiff was 53 years old [Tr. 47, 54]. He was 49 years old at the time of his alleged onset of disability on October 1, 2011,
The parties and the ALJ have summarized and discussed the medical and testimonial evidence in the administrative record. Accordingly, the Court will discuss those matters as relevant to the analysis of the parties' arguments.
To establish disability under the Social Security Act, a claimant must establish he is unable to engage in any substantial gainful activity due to the existence of a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20 C.F.R. § 404.1520. The following five issues are addressed in order: (1) if the claimant is engaging in substantial gainful activity he is not disabled; (2) if the claimant does not have a severe impairment he is not disabled; (3) if the claimant's impairment meets or equals a listed impairment he is disabled; (4) if the claimant is capable of returning to work he has done in the past he is not disabled; (5) if the claimant can do other work that exists in significant numbers in the regional or the national economy he is not disabled. Id. If the ALJ makes a dispositive finding at any step, the inquiry ends without proceeding to the next step. 20 C.F.R. § 404.1520; Skinner v. Sec'y of Health & Human Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant makes a prima facie case that he cannot return to his former occupation, the burden shifts to the Commissioner to show that there is work in the national economy which he can perform considering his age, education and work experience. Richardson v. Sec'y, Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389 (1971); Landsaw v. Sec'y, Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is evidence on the other side, if there is evidence to support the Commissioner's findings, they must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not reweigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers. It presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Sec'y, Health and Human Servs., 790 F.2d 450 n.4 (6th Cir. 1986).
The court may consider any evidence in the record, regardless of whether the ALJ cited it. See Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). However, for purposes of substantial evidence review, the court may not consider any evidence that was not before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is not obligated to scour the record for errors not identified by the claimant, Howington v. Astrue, No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made by claimant were waived), and "issues which are `adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived,'" Kennedy v. Comm'r of Soc. Sec., 87 F. App'x 464, 466 (6th Cir. 2003) (quoting United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
Plaintiff challenges the ALJ's determination that he was not under a disability, as defined by the Act, from October 1, 2011, the alleged onset date. He presents three issues for review. Those issues will be discussed in the order presented.
Plaintiff argues that the ALJ failed to weigh properly the evidence in the record concerning his depression and anxiety and that the ALJ overstated the impact of his alcohol use. More specifically Plaintiff makes the following points:
In response to Plaintiff's arguments, the Commissioner responds that the ALJ properly evaluated Plaintiff's impairments under the agency regulations relevant to the evaluation of drug addiction and alcoholism ("DA&A"), and that substantial evidence supports the ALJ's decision. More specifically, the Commissioner raises the following arguments:
The parties ably framed the issues for review. Turning to the record, that Court notes that the ALJ, in her decision, determined that Plaintiff had no severe physical impairments, but that he had bipolar disorder, a panic disorder with agoraphobia, an anxiety disorder, and drug and/or alcohol dependence, and that these impairments were severe [Tr. 26-27]. The ALJ further determined that, including Plaintiff's alcohol dependence, he met listing sections 12.04 and 12.09 of 20 C.F.R. Part 404, Subpart P, Appendix 1 [Tr. 30]. Plaintiff's mental impairments, including his substance use disorder, caused moderate restrictions in his activities of daily living. These included marked difficulties in maintaining social functioning, marked difficulties maintaining concentration, persistence, and pace, and one to two episodes of decompensation. The ALJ noted that Plaintiff's treatment records indicated he had been unable to maintain any periods of sobriety, and his alcohol abuse had rendered him unable to maintain employment or interact appropriately with others [Id.].
The ALJ further determined that, if Plaintiff stopped drinking, his remaining limitations, while still severe, would no longer meet, either singly or in combination, listings 12.04 or 12.09 [Tr. 31]. Without his substance abuse disorder, Plaintiff would have the RFC to perform a full range of work at all exertional levels. On the other hand, he would be able to understand, remember, and carry out only simple and low-level detailed work instructions. Further, he would be limited to simple work-related judgments and short-term goal setting; work requiring attention and concentration for a maximum of two-hour increments in the performance of simple and low-level detailed work; and infrequent (less than occasionally, or about one hour or less per eight-hour work day) work changes, gradually introduced [Tr. 32].
Plaintiff argues that the ALJ exaggerated the nature of his alcohol dependence and failed to weigh properly the evidence of his depression and anxiety as triggers of his alcohol use. Rejecting that argument, I find that the ALJ properly followed the mandates of the Act and corresponding regulations in determining the severity of Plaintiff's impairments and his resulting capacity for work, both with and in the absence of his substance abuse disorder. See 42 U.S.C. §§ 423(d)(2)(C), 1382c(a)(3)(J); 20 C.F.R. § 404.1535(b). Substantial evidence supports the ALJ's determination.
More specifically, in her decision, the ALJ made the following determinations:
Plaintiff argues that the ALJ failed to consider his record of treatment at Centerstone and, instead, that the ALJ cherry-picked specific records in which Plaintiff experienced brief periods of improvement in order to find that his impairments were less severe. The Court finds, however, that the ALJ cited to and considered Plaintiff's history of treatment at Centerstone in her decision [Tr. 29]. Moreover, to the extent the ALJ highlighted brief periods of improvement in Plaintiff's mental health record, those citations support the ALJ's determination that brief periods in which Plaintiff stopped or limited his alcohol intake coincided with improvements in his mental impairments [Tr. 28-30]. Additionally, the record indicates that both Plaintiff and his counselors acknowledged the negative effect his alcohol abuse had on his mental impairments.
Dr. Borden's opinion supports the ALJ's determination. Dr. Borden determined that Plaintiff had alcohol dependence as well as a mood disorder/major depressive disorder, a bipolar disorder, and a possible anxiety disorder. He further opined that Plaintiff's impairments resulted in moderate restriction of activities of daily living and marked difficulties maintaining social functioning and maintaining concentration, persistence, and pace [Tr. 30, 1121-22]. Dr. Borden also noted that Plaintiff had not demonstrated any significant periods of sobriety, and that, because alcohol is a central nervous system depressant, Plaintiff's continued alcohol dependence and/or abuse would contribute to his mood disorder and dysfunctional lifestyle [Tr. 30, 1125.]. Although Plaintiff takes issue with the ALJ's reliance on Dr. Borden's opinion, the ALJ did not rely on Dr. Borden's opinion exclusively. Rather, Dr. Borden's opinion supports other evidence in the record.
Plaintiff also argues that the ALJ failed to consider Plaintiff's own testimony that his depression triggers his alcohol use, and his feelings of helplessness and hopelessness are the root cause of his drinking [See tr. 71, 76]. Plaintiff has perseverated so long with his excessive drinking that it is admittedly hard to answer this "which came first — the chicken or the egg" question; however, the ALJ relied upon and cited substantial evidence to support her conclusion that Plaintiff's alcohol abuse contributed heavily to his mental health issues. The ALJ explicitly discussed Plaintiff's testimony that he is unable to work with or without the use of alcohol. In doing so, she found that his statements concerning the intensity, persistence, and limiting effects of his symptoms were not credible to the extent they conflicted with the RFC [Tr. 33-34]. The ALJ stated that she had considered "all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" based on the relevant requirements. Moreover, the ALJ noted instances in the record in which Plaintiff acknowledged that his drinking affects his depression and anxiety. The ALJ conceded that it was difficult to determine Plaintiff's condition in the absence of alcohol abuse, given the lack of any extended period of sobriety after the alleged onset date; however, she noted that, even without alcohol, Plaintiff's impairments would be severe [Tr. 31].
Plaintiff also contends that the ALJ failed to consider his GAF scores. The ALJ's decision belies that contention. She acknowledged that Plaintiff was assigned a GAF score of 30 in April 2011, when he was intoxicated and diagnosed with alcohol dependence and a mood disorder [Tr. 28-29]. In 2012, he received a GAF score of 40 when he was transferred from Southern Tennessee Medical Center to Moccasin Bend [Id.]. The Centerstone records indicated he had GAF scores in the 30-45 range [Id.]. The ALJ acknowledged that Plaintiff's GAF scores reflected significant limitations in mental functioning [Tr. 33]. Absent any significant period of sobriety, the ALJ determined that the GAF scores reflected Plaintiff's level of functioning while using alcohol, not during any period of sustained sobriety [Id.]. Thus, the ALJ determined that the GAF scores were reasonable and consistent with the finding that Plaintiff's impairments, including alcohol abuse, met the severity of listings 12.04 and 12.09, but that there was no evidence of significant limitations in mental functioning in the absence of alcohol abuse [Id.]. For these reasons, Plaintiff's argument fails.
Plaintiff argues that the ALJ failed to pose a proper question in the second hypothetical to the vocational expert ("VE"). Specifically, Plaintiff argues that the ALJ included certain physical limitations in the hypothetical, but failed to address any restrictions related to Plaintiff's depression. Plaintiff asserts that his depressive symptoms, noted both in the record and in the GAF assessments, were not considered or included in the hypothetical. Rather, the ALJ focused exclusively on periods when Plaintiff was doing relatively well and experiencing only mild limitations in functioning. In doing so, Plaintiff asserts, the ALJ impermissibly substituted her judgment for that of healthcare professionals.
The Commissioner responds that: (1) the hypothetical posed to the VE included all of the credible restrictions arising from Plaintiff's severe mental impairments, excluding substance abuse; (2) contrary to Plaintiff's assertion, the ALJ was not required specifically to mention depression in either the hypothetical or Plaintiff's RFC; and (3) because the hypothetical was formulated properly, the VE's testimony constitutes substantial evidence supporting the ALJ's decision.
When an ALJ determines a claimant is unable to perform any of his past relevant work, the burden shifts to the defendant to establish that the claimant is able to perform other work. See Lancaster v. Comm'r of Soc. Sec., 228 F. App'x 563, 571-72 (6th Cir. 2007). Moreover, the Sixth Circuit has found that substantial evidence may be produced through reliance on a VE's testimony in response to a hypothetical question, so long as the question accurately portrays the claimant's physical and mental impairments. Id. at 573. In Lancaster, the Circuit Court determined that the hypothetical posed to the VE during the administrative hearing was flawed because the ALJ included in it only "mild" restrictions in the claimant's ability to interact appropriately with the general public, when the ALJ had found in his decision that the claimant's restrictions in this area were "moderate." See id. at 572.
In this case, the ALJ posed two hypothetical questions to the VE during the administrative hearing based on evaluations of Plaintiff conducted by state agency medical consultants [Tr. 32, 82]. In the first hypothetical, the ALJ asked the VE to assume an individual of Plaintiff's age, education level, and work history with the functional capacity to work at all exertional levels, as defined by the regulations, but with the following limitations:
[Tr. 82-83].
Based on those parameters, the VE testified that Plaintiff could not perform his past work, but that there was other work in the national economy that he could perform, including jobs as a hand packer or store laborer, light assembly work, or machine tender occupations [Tr. 83-84]. The ALJ then posed a second hypothetical assuming the same parameters as the first hypothetical but adding that:
[Tr. 85-86].
Based on the additional criteria, the VE testified that Plaintiff still could perform jobs in the national economy, including machine tender jobs, machine packager jobs, and wrapping machine operator jobs, package sealer machine operator jobs, and most store laborer jobs [Tr. 87-88]. Subsequently, Plaintiff's counsel asked the VE whether jobs would still exist for the individual in the second hypothetical if he had to miss work three or more days per months due to depressive symptoms and/or anxiety [Tr. 90-91]. The VE said jobs would still exist, but the individual would not be able to sustain competitive employment [Tr. 91].
As the ALJ noted in her decision, state agency psychologist, Karen Lawrence, determined that Plaintiff was moderately limited in his ability to understand, remember, and carry out detailed instructions, and that Plaintiff could understand and perform simple, detailed, non-multi-step tasks [Tr. 32, 106-07]. She found that Plaintiff was moderately limited in his ability to maintain attention and concentration, perform activities within a schedule, maintain regular attendance and be punctual, sustain an ordinary routine without special supervision, and complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace [Id.]. The consultant opined that, despite these limitations, Plaintiff remained able to persist with simple and detailed tasks; maintain consistent pace with a reasonable number and length of rest periods; maintain attention and concentration for two-hour intervals for simple and detailed, but not multi-step detailed, tasks; adapt to gradual infrequent changes; and set short-term goals [Id.]. A second state agency psychologist affirmed that assessment on reconsideration [Tr. 32, 118-19]. The ALJ stated that she gave significant weight to the opinions of the two state agency consultants in her determination of Plaintiff's RFC in the absence of his alcohol use [Tr. 32].
Although Plaintiff argues that the ALJ included certain physical restrictions, but failed to include restrictions to account for his depression and anxiety, the restrictions included in the hypotheticals all relate to the mental restrictions determined in the RFC. Plaintiff fails to specify what additional restrictions should have been included to account for his depression and anxiety. In the administrative hearing, Plaintiff's counsel questioned the VE regarding the additional restriction of missing work three or more times per month due to anxiety/depression, but the record does not indicate that such a restriction would be required in the absence of Plaintiff's alcohol use, nor does Plaintiff assert that it should have been included.
Plaintiff asserts that the Circuit Court's decision in Lancaster mandates reversal in his case; however, in Lancaster, the hypothetical question posed to the VE directly contradicted the ALJ's findings in the RFC. That is not the case here. The ALJ's first hypothetical directly tracks the RFC, and the second hypothetical contains additional restrictions [Tr. 32, 82-86]. Likewise, the ALJ's RFC relies on, and comports with the assessments of state agency consultants and is supported by substantial evidence in the record as a whole.
Plaintiff asserts that the ALJ "seems" focused exclusively on instances in which Plaintiff was doing relatively well and suffered only mild limitations in functioning, and that the ALJ failed to consider Plaintiff's GAF scores or the frequent notations in Centerstone records of Plaintiff's depressive symptoms. In doing so, Plaintiff simply reiterates his prior arguments regarding the ALJ's determination. In any event, the ALJ found that, even absent his alcoholism, Plaintiff's mental impairments caused more than a minimal impact on Plaintiff's ability to perform basic work activities, and thus, were severe [Tr. 31]. Moreover, despite having no severe physical limitations — a finding Plaintiff does not dispute — the ALJ included, both in the hypothetical and in Plaintiff's RFC, significant restrictions in Plaintiff's ability to work based on his mental impairments. Accordingly, his argument fails.
Plaintiff argues that the ALJ had an affirmative duty to inquire whether the VE's testimony conflicted with the Dictionary of Occupational Titles ("DOT") and, if so, to obtain a reasonable explanation for any inconsistency. He asserts that the ALJ failed to do so in his case. Plaintiff concedes that the ALJ asked the VE at the hearing outset to alert her if his opinion varied from the information in the DOT; however, Plaintiff asserts that the regulations require more than a cursory comment by the adjudicator. He argues that, because the ALJ's inquiry was insufficient, the case should be reversed and remanded.
The Commissioner responds that the ALJ fully satisfied the regulatory requirement to identify and obtain a reasonable explanation for any conflicts between the VE's testimony and the DOT because the ALJ asked the VE whether his testimony was consistent. The Commissioner further asserts that the VE clearly understood the admonishment. To illustrate this point, he indicates that the VE alerted the ALJ that the machine tender jobs he identified as performable by Plaintiff differed from those in the DOT because those jobs were now more automated and required little input from the operator. The Commissioner notes that the ALJ discussed this testimony in her decision, observing that the VE's testimony, which the ALJ found reliable, was based on his experience.
Before the ALJ posed the aforementioned hypothetical questions to the VE in the administrative hearing, she stated: "I'm going to give you one quick instruction. If during the course of your testimony you give us an opinion which varies from the information in the Dictionary of Occupational Titles, if you could please alert us to that, all right?" [Tr. 79-80]. The VE responded, "Yes, your honor." [Tr. 80]. Subsequently, when the VE testified that machine tender occupations were among those available in the national economy for a hypothetical individual similarly situated to Plaintiff, he stated:
[Tr. 84-85].
Under SSR 00-04p, the ALJ, before relying on evidence from a VE to support a disability determination, must "[i]dentify and obtain a reasonable explanation for any conflicts between occupational evidence provided by VEs . . . and information in the [DOT]" and "[e]xplain in the determination or decision how any conflict that has been identified was resolved. SSR 00-04p.
As the Commissioner argues, the ALJ clearly requested that the VE alert her to any differences between his testimony and the DOT in the administrative hearing [See tr. 79-80]. Moreover, the ALJ's admonishment was clearly effective. The VE not only agreed to alert the ALJ to any differences, but he did so, noting that the machine tender job — offered as an example of work Plaintiff could perform — conflicted with the DOT definition. The VE observed that, based on his own experience and observations, the machine tender job had become more automated over time and require little input from operators [See tr. 84-85]. In her decision, the ALJ reiterated the VE's testimony that the machine tender jobs differed from those identified in the DOT because the jobs are now much more automated and require little operator input [Tr. 36]. The ALJ also noted that the VE had based his testimony on his experience as a VE, which the ALJ considered a reliable basis for his variance of opinion [Id.]. Plaintiff argues that the ALJ should have done more, but he cites no additional differences that the ALJ failed to elicit from the VE or discuss. Thus, this argument fails.
Having carefully reviewed the administrative record and the parties' briefs filed in support of their respective motions, the Plaintiff's Motion for Judgment on the Pleadings [Doc. 18] shall be
