Rabbers v. Commissioner Social Sec. Admin.

• Decision Date: 05 October 2009
• Docket Number: No. 08-2317.,08-2317.
• Citation: 582 F.3d 647
• Parties: Kevin J. RABBERS, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

582 F.3d 647

Kevin J. RABBERS, Plaintiff-Appellant, v. COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.

No. 08-2317.

United States Court of Appeals, Sixth Circuit.

Submitted: April 22, 2009.

Decided and Filed: October 5, 2009.

ON BRIEF: Frederick W. Bleakley, Bleakley Law Offices, P.C., Muskegon, Michigan, for Appellant. Charles R. Goldstein, Social Security Administration, Office of the General Counsel, Chicago, Illinois, for Appellee.

Before: CLAY and McKEAGUE, Circuit Judges; HOLSCHUH, Senior District Judge.^*

McKEAGUE, J., delivered the opinion of the court, in which CLAY, J., joined. HOLSCHUH, D. J. (pp. 661-70), delivered a separate opinion dissenting in part and concurring in part.

OPINION

McKEAGUE, Circuit Judge.

In this appeal, Plaintiff-Appellant Kevin Rabbers ("Rabbers") challenges the district court's decision affirming the denial of his application for disability insurance benefits by Defendant-Appellee Commissioner of Social Security ("Commissioner"). Rabbers argues that the Administrative Law Judge ("ALJ") failed to make specific findings regarding the severity of his mental impairment—bipolar disorder—as required by the regulations. He also argues that the ALJ improperly rejected the opinion of his treating source, Dr. Bobga Fomunung, in determining that his bipolar disorder did not meet the criteria of a listed impairment.

The ALJ clearly did not make the required findings regarding the severity of Rabbers's mental impairment. We conclude, however, that this error was harmless. It did not deprive Rabbers of a substantial procedural right. Nor did it prejudice him on the merits, as the administrative record indicates that his bipolar disorder was not severe enough to render him disabled. In fact, the ALJ properly rejected the only evidence in the record that would have supported a contrary conclusion: the opinion of Dr. Fomunung. We therefore affirm the decision of the district court.

I.

Rabbers was born on July 10, 1961. He is a high school graduate who has completed two years of college. Among other occupations, Rabbers has previously been employed as a welder, machine fabricator, maintenance supervisor, machine operator, and autobody technician.

In July 2003, apparently due to work stress, Rabbers sought outpatient counseling at Holland Community Hospital Outpatient Behavioral Health Services Clinic (the "Holland Clinic") in Holland, Michigan. He met regularly with a psychiatrist, who prescribed Paxil, as well as a social worker.

By June 2004, Rabbers had recently lost his job, had been arrested for drunk driving, and was in the midst of a divorce from his wife of twelve years. On June 13, 2004, he was voluntarily admitted to Allegan General Hospital in Allegan, Michigan, because he was apparently acting "emotionally erratic" and threatening to kill his wife and two children. Upon admission to the hospital, he tested positive for marijuana and had a blood alcohol level of .16. Dr. Mary Kirkwood diagnosed Rabbers with bipolar disorder with mixed features and a history of alcohol abuse. She prescribed Depakote and Seroquel for mood stabilization and paranoia. After eight days in the hospital, Rabbers was discharged to jail.

Following his discharge from the hospital and release from jail, Rabbers stopped taking his medication because he believed it was causing him to experience abdominal pain. He was voluntarily admitted to Allegan General Hospital a second time on July 7, 2004. Upon admission, he tested positive for marijuana. Dr. Kirkwood again diagnosed Rabbers with bipolar disorder with mixed features and a history of alcohol abuse and prescribed Depakote and Seroquel. Rabbers was discharged from the hospital after a ten-day stay.

After his second hospitalization, Rabbers continued his outpatient treatment at the Holland Clinic through July 2006. During his visits there, Rabbers was asked to rate his symptoms on a scale of 1-5 (with "1=very bad" and "5=no problem").¹ Most of the time, Rabbers rated all of his symptoms as a 4 or 5; only twice, in March and September 2005, did he rate some of his symptoms below a 4. Also during this time period, Rabbers consistently reported that he was taking his medication and did not report any side effects. Sometime around the fall of 2005, Rabbers began receiving his outpatient treatment at the Holland Clinic from Dr. Bobga Fomunung.² The record indicates that Rabbers met with Dr. Fomunung approximately once every two to three months, for a total of six visits, with each visit lasting between fifteen and thirty minutes.

On September 28, 2004, Rabbers filed an application for disability insurance benefits with the Social Security Administration ("SSA"), alleging onset of his disability on January 21, 2004. He claimed that he was unable to engage in any substantial gainful activity due to his bipolar disorder.

On November 19, 2004, psychologist Dennis L. Mulder conducted a consultative evaluation for the Michigan Disability Determination Service. According to Dr. Mulder's report, Rabbers would usually perform household chores in the morning, visit a soup kitchen in the afternoon, and attend a support group in the evening. Dr. Mulder also noted that Rabbers "complain[ed] of ... episodes of depression and mania ..., but he states that this has improved with his use of medication and therapy." Dr. Mulder diagnosed Rabbers with bipolar disorder "improving with treatment," and "[h]istory of alcohol abuse in short-term remission." He ultimately concluded that the potential for Rabbers to become gainfully employed in simple, unskilled work was fair, "pending his continued compliance with psychiatric treatment and substance abuse treatment."

On January 21, 2005, Dr. William Schirado completed a Psychiatric Review Technique Form ("PRTF") addressing Rabbers's mental impairment. Determining that Rabbers suffered from bipolar disorder and persistent disturbances of mood or affect, Dr. Schirado concluded that Rabbers satisfied the Part A criteria for sections 12.04 (Affective Disorders) and 12.08 (Personality Disorders) of the Listing of Impairments.³ However, Dr. Schirado determined that Rabbers failed to satisfy the Part B criteria of these listings. Specifically, he determined that Rabbers had moderate restriction of his activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence, or pace, and only one or two episodes of decompensation. Dr. Schirado also completed a Mental Residual Functional Capacity Assessment Form rating Rabbers's limitations in twenty categories involving understanding and memory, sustained concentration and persistence, social interaction, and adaptation. Dr. Schirado found that Rabbers was moderately limited in only six of these categories. With respect to the remaining fourteen categories, Dr. Schirado concluded that Rabbers was either not significantly limited or that there was no evidence of limitation.

On January 28, 2005, the Commissioner denied Rabbers's application for disability insurance benefits. Rabbers filed a timely request for a hearing before an ALJ. He appeared before an ALJ with counsel on March 23, 2007. At the hearing, Rabbers testified that he still had "crying episodes and mania" and was prone to agitation, irritability, and anger, but he admitted that these symptoms had decreased as a result of his medications. However, he testified that his medication "makes it kind of hard to get up in the morning and stay focused and stay awake." He did not believe he would be able to work at a full-time job because he "would have a hard time with attendance, staying awake." According to Rabbers, he would not be able to go to work approximately fifteen out of every thirty days because of the side effects of his medication. Rabbers's attorney also referred the ALJ to Dr. Fomunung's sworn statement, in which Dr. Fomunung testified that the side effects of Rabbers's medications "really affect[] his ability to function, the sedation in particular, makes him very tired, very exhausted very groggy, and so he's not able to function."

In addition to Rabbers's own testimony, the ALJ heard testimony from a medical expert, Dr. Kathleen O'Brien, and a vocational expert, Lee Knudsen. Dr. O'Brien testified that Rabbers's outpatient records did not "substantiate the severity of symptoms, either as they are reported by [Rabbers] or in the sworn statement of [Dr. Fomunung]," and that in fact there was "a progressive improvement in [Rabbers's] report to his treatment providers." Dr. O'Brien also testified that any use of alcohol or drugs by Rabbers "would eliminate the ability of the meds to do their job" and "would account for the amount of sedation that he's experiencing." After hearing Dr. O'Brien's testimony, the ALJ posed two hypothetical questions to Knudsen. If the ALJ found that Rabbers was capable of simple, unskilled work, Knudsen testified that there were a significant number of jobs available to him in the Grand Rapids-Muskegon-Holland combined statistical area.⁴ If the ALJ found that Rabbers's testimony was credible, however, Knudsen testified that Rabbers "would not be able to sustain or keep employment" because he would "have trouble with attendance" and "difficulty in accepting criticism or supervision."

In a written decision dated April 16, 2007, the ALJ found that Rabbers was not disabled and denied his application for disability insurance benefits. The Social Security Appeals Council denied Rabbers's request for review, rendering the ALJ's decision the final decision of the Commissioner. Pursuant to 42 U.S.C. § 405(g), Rabbers sought judicial review of the Commissioner's decision in the United States District Court for the Western District of Michigan. The case was referred to a magistrate judge, who recommended affirmance. See Rabbers v. Comm'r of Soc. Sec., No. 1:07-CV-845, 2008 WL 4151350, at *2 (W.D.Mi...