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Stetz v. Colvin

United States District Court, Sixth Circuit

August 26, 2013

DAVID STETZ, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


NANCY A. VECCHIARELLI, Magistrate Judge.

Plaintiff, David Stetz ("Plaintiff"), challenges the final decision of Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), [1] denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 423, 1381(a). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to the consent of the parties entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the Commissioner's final decision is AFFIRMED.


On July 8, 2009, Plaintiff filed his application for SSI and alleged a disability onset date of August 1, 1996. (Transcript ("Tr.") 154-160.) The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 88-89, 91-93, 95-97.) An initial hearing took place on March 29, 2011, but was continued in order for Plaintiff to obtain representation. (Tr. 72-85.) At the rescheduled hearing on August 2, 2011, Plaintiff was represented by counsel and testified. (Tr. 35-52.) A vocational expert ("VE") also participated and testified. (Tr. 58-67.) On September 1, 2011, the ALJ found Plaintiff not disabled. (Tr. 15.) On November 29, 2012, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1.)

On January 17, 2013, Plaintiff filed his complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 15 and 16.)

Plaintiff asserts the following assignments of error: (1) substantial evidence does not support the ALJ's decision, because the ALJ erred in his evaluation of opinion evidence in the record; and (2) remand is necessary to consider new and material evidence obtained after Plaintiff's administrative hearing.


A. Personal and Vocational Evidence

Plaintiff was born on December 21, 1990, and was 18 years old when he filed his SSI application. (Tr. 154.) Plaintiff met the requirements for high school graduation in June 2009 and continued in the Brunswick City Schools through June 2011, receiving work study services at Goodwill Industries and attending classes at the Medina County Career Center. (Tr. 179-180, 216, 324.) During the 2009 high school year, Plaintiff's grades ranged from B- to A. (Tr. 245.) Plaintiff does not have any past relevant work. (Tr. 28.)

B. Medical Evidence[2]

1. Physician Reports

In September 1999, a physician diagnosed Plaintiff with attention deficit hyperactivity disorder (ADHD) and prescribed Adderrall. (Tr. 520.) In 2007, Plaintiff suffered a panic attack. (Tr. 382, 410.) On October 30, 2007, Dr. Bryan T. Hinch diagnosed him with generalized anxiety disorder and prescribed Xanax, which appeared to ease his anxiety symptoms. (Tr. 406, 408, 410-411.) Dr. Hinch also prescribed Adderall and Concerta for Plaintiff's ADHD symptoms. (Tr. 403.)

From November 2007 through May 2009, Plaintiff received counseling for depression and anxiety from a psychologist, Michael J. Morris, Ph.D. (Tr. 177.) In August 2009, Dr. Morris reported that he had been treating Plaintiff since November 2007 for panic disorder with agoraphobia and dysthymic disorder. (Tr. 425-427.) According to Dr. Morris, Plaintiff reported difficulty concentrating and feelings of frustration and anxiety when dealing with his peers and his father. (Tr. 426.) Dr. Morris noted that Plaintiff had a history of depression and panic attacks, had above average intelligence, and was very connected to his mother. ( Id. )

On occasion from 2007 through 2009, Plaintiff treated with George Pallotta, D.O. (Tr. 379.) On November 14, 2007, Dr. Pallotta reported that Plaintiff was awake, alert, cooperative, had good eye contact, and expressed linear, logical, and goal directed thoughts. (Tr. 383.) Dr. Pallotta assessed ADHD and panic attacks. ( Id. ) On November 28, 2008, Dr. Pallotta reported that Plaintiff's ADHD and anxiety was improved and stabilized. (Tr. 384.)

On May 6, 2010, Aaron Muttillo, Psy.S., a licensed school psychologist with Strongsville Psychological Services, first performed a diagnostic evaluation of Plaintiff with specific concerns regarding possible impairments in socialization, communication, and development. (Tr. 479-486.) After evaluating Plaintiff on several occasions from May 6 to June 29, 2010, Mr. Muttillo diagnosed Plaintiff with Asperger's syndrome, Anxiety Disorder, and Mathematics Disorder. (Tr. 485.) Testing revealed that Plaintiff's cognitive abilities fell within the average range, with poor performance in arithmetic consistent with his identified learning disability in math. (Tr. 484.) Plaintiff's strengths were in areas of verbal ability, which Mr. Muttillo noted is consistent with many individuals with Asperger's syndrome. ( Id. ) Mr. Muttillo found that Plaintiff had a full scale IQ of 93. ( Id. ) He further noted that it is common for individuals with Asperger's to receive a diagnosis of ADHD prior to Asperger's syndrome due to overactivity and inattention as children. ( Id. )

Mr. Muttillo summarized that Plaintiff presents with significant deficits in socialization and communication, causing him to be unable to establish friendships with same-aged peers. (Tr. 485.) According to Mr. Muttillo, Plaintiff's unique set of focused interests often interferes with his ability to relate to others in a typical manner. ( Id. ) Furthermore, Mr. Muttillo noted that while Plaintiff has some awareness of his social awkwardness and communication deficits, he lacks the skills to compensate for his weaknesses. ( Id. ) Mr. Muttillo also reported that Plaintiff's excessive anxiety and worry about multiple topics has a negative effect on his day-to-day functioning and has interrupted his sleep pattern. ( Id. ) Mr. Muttillo recommended that Plaintiff seek educational and vocational services for individuals with developmental disabilities, that he consider mentoring so that he may develop social skills in a variety of settings and situations, and that he begin participating in community activities related to his interests. (Tr. 484, 486.)

On April 8, 2011, Mr. Muttillo completed a medical source statement regarding Plaintiff. (Tr. 489-491.) Mr. Muttillo reported that Plaintiff has mild[3] limitations in his ability to make judgments on simple work-related decisions and in his ability to understand, remember, and carry out complex instructions. (Tr. 489.) He has no limitations in his ability to understand, remember, and carry out simple instructions. ( Id. ) Furthermore, Mr. Muttillo stated that Plaintiff would be moderately[4] limited in his ability to make judgments on complex work-related decisions and his ability to interact appropriately with supervisors and co-workers. (Tr. 489.) Mr. Muttillo opined that Plaintiff would be markedly[5] limited in his ability to interact appropriately with the public and respond appropriately to usual work situations and to changes in a routine work setting. ( Id. ) Additionally, Mr. Muttillo stated that Plaintiff's high anxiety level makes it difficult for him to complete tasks without considerable support and multiple opportunities to practice. ( Id. )

In July 2011, Mr. Muttillo completed another source statement regarding Plaintiff. (Tr. 521-522.) He described as "very good" Plaintiff's ability to maintain regular attendance and be punctual and understand, remember, and carry out simple job instructions. ( Id. ) He described as "good" Plaintiff's ability to follow work rules, maintain attention and concentration for extended periods of two-hour segments, interact with supervisors, understand, remember, and carry out detailed job instructions, and maintain his appearance. ( Id. ) Mr. Muttillo described as "fair" Plaintiff's ability to use judgment, deal with the public, work in coordination with or in proximity to others without being unduly distracted or distracting, understand, remember, and carry out complex job instructions, and socialize and behave in an emotionally stable manner. ( Id. ) He described as "poor" Plaintiff's ability to respond appropriately to changes in routine setting, relate to co-workers, function independently without special supervision, deal with work stresses, complete a normal workday and work week without interruptions from psychologically based symptoms and perform at a consistent pace without an unreasonable number and length of rest periods, relate predictably in social situations, manage funds/schedules, and leave home on his own. ( Id. )

2. Agency Reports

On September 8, 2009, state agency psychologist, Dr. Steven J. Meyer, Ph.D., reviewed the evidence and rendered an opinion on Plaintiff's mental capabilities. (Tr. 442-444.) Dr. Meyer opined that Plaintiff is moderately limited in his ability to carry out detailed instructions, to maintain attention and concentration for extended periods, to complete a normal workday and work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods, to interact appropriately with the general public, to get along with co-workers or peers without distracting them or exhibiting behavioral extremes, to respond appropriately to changes in the work setting, and to set realistic goals or make plans independently of others. (Tr. 442-443.) According to Dr. Meyer, Plaintiff is capable of simple and moderately complex routine work, at a reasonable pace, in a setting with regular expectations and occasional to intermittent interactions with others; however, some assistance is needed at times of change in routine. (Tr. 444.)

3. School Reports

As a student at Brunswick High School, Plaintiff participated in an individualized education program ("IEP"). Plaintiff's IEP reports discussed his present levels of performance as well as his future plans. An IEP report from May 1, 2008, noted, "[t]eacher observations have indicated that [Plaintiff's] work habits have improved throughout the school year." (Tr. 221.) The report further stated that Plaintiff had "no functional or behavioral issues or concerns" and that a functional vocational evaluation was "not needed." (Tr. 221, 224.) An IEP report from May 7, 2009, noted that Plaintiff's "behavior and functional skills are consistent with what is expected of a 12th grade student. His attention to task appropriate [sic] for his current 12th grade placement. He does not have any behavioral issues that prevent him from mastering grade level concepts." (Tr. 229.)

Plaintiff's school records also include letters of recommendation from some of Plaintiff's teachers. In the spring of 2009, Plaintiff's art teacher, Mrs. Sarah Costic, wrote that Plaintiff is "inquisitive and insightful, " "courteous and respectful to others, " and "definitely delivers what he sets out to complete." (Tr. 217.) Plaintiff's social studies teacher, Mrs. Michelle Flanigan, wrote that Plaintiff had an excellent attendance record and "is a conscientious student who takes pride in his work." (Tr. 218.) She noted that Plaintiff "can be counted on to be present daily and put forth a strong effort into whatever he is asked to accomplish. He is a responsible, pleasant student and a helpful student aide." ( Id. )

Plaintiff's report cards showed that he made improvements as he progressed through high school. For example, although Plaintiff demonstrated difficulty with math, his twelfth grade math teacher, Mr. David Tolischak, noted on Plaintiff's March 2009 report card that "[Plaintiff] is a pleasure to have in class. He did an excellent job this quarter." (Tr. 220.) Plaintiff's language arts teacher, Ms. Dawn Ruffner, reported that Plaintiff "[i]s eager to learn and has a good attitude." ( Id. )

4. Vocational Reports

Plaintiff was enrolled in a work experience program at Goodwill Industries from August 2009 through June 2011. (Tr. 264-265, 370-375.) Ms. Echo Burgett, Plaintiff's case manager and trainer at the Brunswick Goodwill retail store, completed monthly reports concerning Plaintiff's progress in the work-training program. (Tr. 264-25, 370-375.) At the completion of approximately one month of the program, Ms. Burgett reported that Plaintiff appeared to be hesitant to start any task without first verifying the details and often asked for clarification about what something was or where it went even though he would state the answer before asking. (Tr. 264.) In all other areas of progress, such as "cooperation" and "ability to follow instructions, " Ms. Burgett reported that Plaintiff was above average or average. ( Id. )

In November 2010, Ms. Burgett reported that Plaintiff had made some improvements in the area of staying on task and taking initiative. (Tr. 300.) Her recommendation was that he focus on working independently and building self confidence. ( Id. ) Plaintiff consistently showed a need for improvement in the area of work speed and rated as having either "competitive ...

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