Opinion
Case No. 1:14-cv-506
02-12-2015
BARBARA BOUNDS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 15-26) (ALJ's decision)).
I.
Plaintiff filed an application for SSI on September 17, 2010, alleging that she became unable to work in May 2008 because of neuropathy, type II diabetes, depression, asthma, panic attacks, and memory problems. (Tr. 160-64, 186). The Commissioner denied her claim initially and on reconsideration. (Tr. 88, 95).
Plaintiff requested a hearing and in December 2012, an ALJ held a hearing on her claim. (Tr. 34-87). Plaintiff and a vocational expert ("VE") testified, with Plaintiff's attorney in attendance. (Tr. 34-87). In January 2013, the ALJ issued an unfavorable decision, finding that Plaintiff, despite severe impairments, had the residual functional capacity "RFC" to perform a restricted range of work at all levels of exertion. (Tr. 12-26). The ALJ's decision became final and appealable in April 2014, when the Appeals Council denied Plaintiff's Request for Review. (Tr. 1-3). Plaintiff seeks judicial review pursuant to Section 205(g) of the Act. See 42 U.S.C. §§ 405(g), 1383(c)(3).
RFC is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a).
At the time of the hearing, Plaintiff was 53 years old. (Tr. 12, 34, 160). Plaintiff attended school through eleventh grade has relevant work experience as a bus driver. (Tr. 187).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
Plaintiff last worked as a bus driver in 2002. (Tr. 187).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since September 16, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: depressive disorder and panic disorder (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional
limitations: She can have only occasional interaction with others.(Tr. 17-26).
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on June 1, 1959 and was 51 years old, which is defined as an individual closely approaching advanced age, on the date the application was filed (20 CFR 416.963).
7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since September 16, 2010, the date the application was filed and continuing through the date of this decision (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI. (Tr. 26).
Plaintiff argues that the ALJ erred by: (1) finding that Plaintiff's diabetes mellitus was a "non-severe" impairment, and thus the ALJ's RFC finding is not supported by substantial evidence; and (2) improperly weighing the opinion of Plaintiff's treating physician, Dr. Pack. The Court will address each alleged error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Medical Evidence
Plaintiff has treated at Good Samaritan Hospital ("GSH") since January 2008, and began treating at GSH's outpatient clinic in 2010. (Tr. 240-441, 447-623, 642-657, 658-689, 690-709, 710-769, 787-802). She has been an insulin-dependent diabetic since at least 2008. (Id.) The record demonstrates that Plaintiff has been compliant with her diabetic medications, and her insulin dosages were increased numerous times, but her diabetes remained poorly controlled. (Id.) Hemoglobin A1C ("Hgb A1C") is a laboratory test which can help estimate a patient's average blood sugar levels over the course of a three month period, and the upper limit of "normal" is 5.6 percent. (Tr. 799). Plaintiff's Hgb A1C has been well above that limit, and in fact has increased over time. For example, Plaintiff's Hgb A1C was 9.8% in April 2010 (Tr. 382), 11.8% in July 2011 (Tr. 705), 12.1% in October 2011 (Id.), and 12.6% in August 2012 (Tr. 740). Similarly, Plaintiff's blood glucose levels have been measured at above 200 since at least July 2010. (Tr. 433, 438, 617, 620, 648, 704, 714, 725, 740, 748, 764). Prior to that time, Plaintiff's blood sugar was generally above 150, with a few rare exceptions. (Tr. 246, 249, 265, 281, 309, 313, 315, 320, 340, 359, 362, 376). Plaintiff's blood sugars remained poorly controlled even when she was inpatient for four days in May 2008 following her hysterectomy. (Tr. 265, 460).
Plaintiff has had a number of complications caused by her uncontrolled diabetes, including peripheral neuropathy in her legs (Tr. 789-790), blurred vision and vision changes (Tr. 692), polydipsia and polyuria (Tr. 692, 699, 706), and recurrent vaginal yeast infections (Tr. 711, 715, 771-774, 792-794, 797). In addition, on at least one occasion, Plaintiff's doctor observed that she had a 1 cm non-healing ulcer on her right lower extremity (in addition to other non-healing ulcers on her left perineum). (Tr. 774). Although records of earlier monofilament testing demonstrated normal results, the monofilament testing performed on August 23, 2012 was abnormal, and Plaintiff also had other signs of peripheral neuropathy on that examination, including posterior tibial pulses decreased to 1+ bilaterally, trace edema in her lower extremities, and mycotic toenails. (Tr. 790). Records reveal that Plaintiff has been on Neurontin since at least May 2008 for her diabetic peripheral neuropathy. (Tr. 453). In addition, as early as 2007, Plaintiff has had objective evidence of early diabetic retinopathy. (Tr. 235).
Peripheral neuropathy often causes weakness, numbness and pain, usually in your hands and feet.
Polydipsia is excessive thirst.
Polyuria is a condition usually defined as excessive or abnormally large production or passage of urine.
Plaintiff has also had recurrent episodes of left upper extremity pain. In August 2009, Plaintiff visited GSH's emergency department complaining of left elbow pain, and she was found to have some abnormalities on her left elbow. (Tr. 507-509, 510). She again complained of left arm pain in May 2010, this time associated with neck pain, and the ER doctor believed it to be due to cervical radiculopathy. (Tr. 558-559). Indeed, at a second ER visit in June 2010 for the same problem, the ER doctor found that Plaintiff had pain which traveled in a C5-6 distribution. (Tr. 578-579). In March 2011, Plaintiff again visited the ER, this time for pain in her right shoulder (along with hyperglycemia and dental caries). (Tr. 615-618).
Plaintiff also suffers from depression and anxiety. (Tr. 226-231, 624-631, 803-823). Initially, Plaintiff sought treatment from her general practitioner, who prescribed medications such as Xanax and Zoloft, but she continued to experience significant anxiety and depression. Plaintiff began treatment at Centerpoint Health in September 2012, shortly before Plaintiff's hearing, and thus the records from Centerpoint only include information from Plaintiff's initial evaluation and Diagnostic Assessment of Functioning. (Tr. 803-823). Plaintiff experienced several panic attacks per week, and also had problems with poor motivation, attention and concentration, memory, discomfort being in crowds (and later, fear of driving on the highway). (Tr. 626, 800-823). Plaintiff's medications were only partially helpful. (Id.)
Plaintiff was evaluated by Nicole Leisgang, Psy.D., at the request of the Social Security Administration on September 10, 2007. (Tr. 226-231). Dr. Leisgang observed that Plaintiff's mood was somewhat labile, she appeared anxious and sad, and her presentation was also suggestive of a hypomanic episode. (Tr. 227). Dr. Leisgang observed that Plaintiff's conversation was somewhat pressured and she had speech which was circuitous and at times difficult to follow. (Id.) Plaintiff appeared anxious as she fidgeted with her hands and displayed considerable psychomotor agitation, and she appeared sad as she cried during the evaluation. (Tr. 228). Plaintiff was preoccupied with her difficulties and Dr. Leisgang believed that some of Plaintiff's complaints (e.g., fatigue) could be indicative of somatization. (Id.) Dr. Leisgang observed that Plaintiff's short-term memory was limited, as Plaintiff could recall only five digits forward and three digits backward. (Id.) Plaintiff's attention and concentration skills were also limited, as demonstrated by the fact that she could not correctly calculate serial 7s, and her arithmetic reasoning was weak. (Id.) Dr. Leisgang diagnosed Plaintiff with Panic Disorder without agoraphobia and assigned a GAF score of 55. (Tr. 230). She opined that Plaintiff has "moderate" limitations in all spheres considered, including relating to others; understanding, remembering, and following simple instructions; sustaining attention, concentration, persistence, or pace for simple repetitive tasks; and tolerating the stress and pressure of day-to-day work. (Tr. 230). Specifically, Dr. Leisgang opined that Plaintiff "may have some difficulty relating adequately to others in completing simple repetitive tasks," that Plaintiff's short-term memory skills are limited and "she may have difficulty retaining simple instructions," that Plaintiff's pace may be slowed by her anxious and depressed symptomatology, and that Plaintiff's attention and concentration skills "may deteriorate over extended time periods, slowing her performance in completing simple repetitive tasks." (Id.) Furthermore, Dr. Leisgang opined that the stress of day to day work activity "may result in increased anxiety and decreased attention and concentration skills, but might also result in increased panic attacks and avoidant behaviors," and "may lead to such increased depressive symptomatology as crying, withdrawal, and slowed work performance." (Id.)
A hypomanic episode is a description of a part of bipolar disorder. Hypomanic episodes have the same symptoms as manic episodes with two important differences: (1) the mood usually is not severe enough to cause problems with the person working or socializing with others; and (2) there are never any psychotic features present in a hypomanic episode.
Somatization disorder is a long-term condition in which a person has physical symptoms that involve more than one part of the body, but no physical cause can be found.
Serial sevens, counting down from one hundred by sevens, is a clinical test used to test mental function; for example, to help assess mental status after possible head injury or in suspected cases of dementia.
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 51-60 indicates moderate symptoms or moderate difficult in social, occupational, or school functioning.
Plaintiff had a second psychological consultative evaluation in March 2011, this time performed by George Lester, Psy.D. (Tr. 624-631). Dr. Lester observed that Plaintiff had an appropriate range of affect and did not display overt signs of anxiety, but she reported that she often feels watched and talked about by others. (Tr. 627). Plaintiff explained that in the distant past, she had been a heavy drinker, but she had not had any alcohol since 2001. (Tr. 626). Plaintiff was able to remember only two of five objects named by Dr. Lester after a five-minute delay, and could recall only five digits forward and three digits backward. (Tr. 628). Although Plaintiff correctly added "3+4," she could not correctly answer how much would remain if one subtracted 17 cents from one dollar. (Id.) Dr. Lester diagnosed Plaintiff with Panic Disorder without agoraphobia, Generalized Anxiety Disorder, Depressive Disorder NOS, and alcohol abuse reportedly in sustained full remission, and assigned a GAF score of 60. (Tr. 629). Dr. Lester did not provide any specific opinions about the level of Plaintiff's functional limitations. (Tr. 630).
Plaintiff's general practitioner, Ryan Pack, D.O., provided an RFC opinion for Plaintiff in December 2012. (Tr. 217-222). Dr. Pack reported that the conditions Plaintiff experienced which were caused by her diabetes included peripheral neuropathy, chronic skin infections, fatigue and general malaise, difficulty walking, vascular disease/leg cramping, psychological problems, and extremity pain and numbness. (Tr. 217). He opined that Plaintiff was capable of walking only less than one block at a time, capable of sitting up to two hours at one time, and capable of standing no more than 30 minutes at one time. (Tr. 218-219). Dr. Pack further reported that Plaintiff is expected to have "good" and "bad" days, and opined that Plaintiff is expected to miss at least four days of work per month due to her impairments. (Tr. 221).
2. ALJ Decision
In her decision, the ALJ held that Plaintiff's depressive disorder and panic disorder are "severe" impairments. (Tr. 17). The ALJ held that Plaintiff does not have an impairment or combination of impairments which meet or equal a Listing of Impairments. (Tr. 19). She held that Plaintiff has the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: she can have only occasional interaction with others. (Tr. 21). The ALJ held that Plaintiff is unable to perform any of her past relevant work, but she held that there are other jobs in the national economy which Plaintiff can perform, and thus she denied Plaintiff's claim. (Tr. 25-26).
B.
First, Plaintiff argues that the ALJ erred in finding that her diabetes mellitus was a "non-severe" impairment.
The regulations define a severe impairment or combination of impairments as one which significantly limits the physical or mental ability to perform basic work activities. 20 C.F.R. § 416.920(c). Basic work activities relate to the abilities and aptitudes necessary to perform most jobs, which in the physical context means functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, and handling. 20 C.F.R. § 416.921(b). The question of severity is not related to the plaintiff's age, education, or work experience. A non-severe impairment is one which would not be expected to interfere with a plaintiff's ability to work regardless of "whether the claimant was sixty-years old or only twenty-five, whether the claimant had a sixth grade education or a master's degree, whether the claimant was a brain surgeon, a factory worker, or a secretary." Salmi v. Sec'y of HHS, 774 F.2d 685, 691-92 (6th Cir. 1985). The severe impairment requirement is a threshold element which plaintiff must prove in order to establish disability within the meaning of the Act. Gist v. Sec'y of HHS, 736 F.2d 352, 357 (6th Cir. 1984). An impairment will be considered non-severe only if it is a "slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, and work experience." Farris v. Sec'y of HHS, 773 F.2d 85, 90 (6th Cir. 1985). The severity requirement is a "de minimus hurdle" in the sequential evaluation process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988).
The ALJ noted that Plaintiff's blood sugar levels were abnormally high on several occasions, but ultimately concluded that despite this evidence of uncontrolled diabetes, "the record does not document that [Plaintiff] experiences any significant detriments/limitations typically associated with uncontrolled sugar levels." (Tr. 18). Plaintiff argues that her diabetes does significantly limit her because of a variety of symptoms, including neuropathy, retinopathy, skin infections, and polyuria. (Doc. 9 at 9-12).
Much of the medical evidence of diabetes-related issues that Plaintiff references shows only occasional symptoms over a five-year plus period, and is counter-balanced by at least equally substantial objective medical evidence and reports from Plaintiff that although at times uncontrolled, Plaintiff's diabetes was largely without complications. (Tr. 18). For example, in 2007 Plaintiff had 20/20 vision with only "minimal retinopathy" that required no treatment; in September 2012 Plaintiff reported no visual disturbances; and although diagnosed with diabetic neuropathy, no objective testing was ever done to confirm the diagnosis in order to treat and prevent/delay any further nerve damage. (Tr. 18 citing Tr. 232-36, 711). A state agency physician in reviewing the medical evidence in March 2011 determined that there was "[n]o evidence of physical functional loss," and that Plaintiff had no physical severe impairments. (Tr. 101).
Additionally, Plaintiff relies primarily on her own testimony and allegations to show that her diabetes caused significant physical limitations. The ALJ, however, concluded that Plaintiff's reports and allegations, including her allegations of uncontrolled diabetes and significant physical limitations, were not fully credible. (Tr. 18, 22-23). The ALJ noted that Plaintiff "has repeatedly reported glucose levels in the 500s and 600s, [but] glucose measurements taken at the hospital have been much lower," and Plaintiff "has managed to perform many work-like activities despite any limiting effects of her diabetes." (Tr. 18).
While the record certainly contains evidence that Plaintiff's diabetes caused medical complications, there is insufficient evidence to support a finding that her diabetes limited her ability to perform basic work. Accordingly, substantial evidence supports the ALJ's finding that Plaintiff's diabetes mellitus was a not a severe impairment.
C.
Next, Plaintiff alleges that the ALJ erred in improperly weighing the opinion of his treating physician, Dr. Pack.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medica
impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.(Id.) "The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Id. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d) and 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations of the opinions, than are required to treating sources.SSR 96-6p, 1996 SSR LEXIS 2. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
In December 2012, Dr. Pack indicated that he had treated Plaintiff twice over a four-month span and deferred to a specialist any conclusions about Plaintiff's need for breaks at work; her postural and lifting limitations, and her cumulative limits for sitting, standing, and walking. (Tr. 217-22). However, he opined that Plaintiff could sit for two hours at one time, stand/walk for 30 minutes at one time, and would likely miss more than four days of work per month. (Tr. 217-22). The ALJ gave Dr. Pack's opinion little weight because Dr. Pack's treating history with Plaintiff had been brief, and his conclusion that Plaintiff would need to miss more than four days of work per month was unsupported by the record as a whole and was inconsistent with his own treating notes, which revealed no disabling diabetes-related complications. (Tr. 23). See 20 C.F.R. § 404.1527(c)(4) ("Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.").
The treating source doctrine recognizes that physicians who have a long-standing treating relationship with an individual are better equipped to provide a complete picture of the individual's health and treatment history. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Having examined Plaintiff twice, Dr. Pack does not have the long-standing treatment relationship that the treating source doctrine anticipates. See 20 C.F.R. § 404.1527(d)(2)(1) ("Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion.").
Contrary to Plaintiff's arguments otherwise, frequent gynecologic infections and self-reported fatigue (Doc. 14 at 5), are insufficient to support a finding that Plaintiff would need to miss more than four days of work per month. Moreover, the issue is not whether the record could support a finding of disability, but rather whether the ALJ's decision is supported by substantial evidence. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993).
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Plaintiff argues that the treating notes from GSH where Dr. Pack worked should be attributed to Dr. Pack and that his treating relationship with Plaintiff should be expanded to include Plaintiff's whole history of treatment at GSH. However, Dr. Pack acknowledged that he had only treated Plaintiff on two occasions and that his lack of information and familiarity with Plaintiff's physical limitations led him to defer most questions about such limitations to a specialist. (Tr. 219-220). Even if one were to rely on all of GSH's treating records, there is no objective support for Dr. Pack's unexplained conclusion that Plaintiff would need to miss at least four days of work each month. Freudenberger v. Astrue, No. 1:09cv745, 2011 U.S. Dist. LEXIS 30508, at *20 (S.D. Ohio Feb. 28, 2011) ("where conclusions regarding a claimant's functional capacity are not substantiated by objective evidence, the ALJ is not required to credit those conclusions").
Accordingly, the ALJ properly weighed the opinion of Dr. Pack. The Court's duty on appeal is not to re-weigh the evidence, but to determine whether the decision below is supported by substantial evidence. Raisor v. Schweiker, 540 F. Supp. 686 (S.D. Ohio 1982).
III.
For these reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Barbara Bounds was not entitled to supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED in this Court. Date: 2/12/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge