Opinion
Case No. 3:13-cv-166
07-08-2014
DARLENE JOHNSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
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" prior to her fiftieth birthday and therefore not entitled to disability insurance benefits ("DIB") from April 13, 2009 through June 29, 2011. (See Administrative Transcript ("Tr.") (Tr. 12-21) (ALJ's decision)).
I.
Plaintiff filed an application for DIB on May 11, 2009, alleging that she became unable to work on April 13, 2009, due to her functional limitations. Her claim was denied initially and on reconsideration. (Tr. 60-73). On October 24, 2011, the ALJ held a hearing on Plaintiff's claims. (Tr. 26). Plaintiff was represented at the hearing by an attorney, and a vocational expert testified. Following a second hearing on November 29, 2011, the ALJ issued a partially favorable decision, concluding that Plaintiff was not disabled within the meaning of the Social Security Act prior to June 30, 2011, but was disabled after that date. (Tr. 21-22). Specifically, the ALJ found substantial evidence to support a finding that Plaintiff was limited to sedentary work. (Tr. 18, 19).
Specifically, Plaintiff alleges that her combined standing and sitting tolerance is less than eight hours. She also maintains that she must elevate her legs most of the time. (Tr. 120-21).
Plaintiff was also restricted from hazardous climbing, kneeling, crouching, or more than occasional stooping. Additionally, Plaintiff was restricted to frequent handling and cannot stand or walk longer than two hours during the workday. (Tr. 19).
On June 30, 2011, Plaintiff's age category changed to an individual closely approaching advanced age. Accordingly, on June 30, 2011, Plaintiff was rendered disabled, because at age 50 she "gridded out." According to the Medical Vocational Guidelines:
Individuals approaching advanced age (age 50-54) may be significantly limited in vocational adaptability if they are restricted to sedentary work. When such individuals have no past work experience or can no longer perform vocationally relevant past work and have no transferable skills, a finding of disabled ordinarily obtains. However, recently completed education which provides for direct entry into sedentary work will preclude such a finding. For this age group, even a high school education or more (ordinarily completed in the remote past) would have little impact for effecting a vocational adjustment unless relevant work experience reflects use of such education.20 C.F.R. Part 404 Subpart P App'x. 2 §201.00(g).
Plaintiff appealed the ALJ's decision, but the Appeals Council declined to review the case, making the ALJ's decision the final administrative disposition. (Tr. 1-7). Plaintiff contests the period of disability denied (April 13, 2009-June 29, 2011), and she seeks judicial review pursuant to Section 205(g) of the Act. 42 U.S.C. §405(g), 1383(c)(3).
Plaintiff was 47 years old on the alleged onset date. (Tr. 34). Plaintiff has at least a high school education. (Tr. 21). Her past relevant work included work as an administrative assistant, a cable maker, and an assembler. (Tr. 33-37).
Social Security defines past relevant work as work done within the past fifteen years, at substantial gainful activity levels, and performed long enough for the claimant to learn to do it. 20 C.F.R. §404.1560(b)(1).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(Tr. 14-21).
2. The claimant has not engaged in substantial gainful activity since the alleged onset date (20 CFR 404.1571 et seq.).
3. Since the alleged onset date of disability, April 13, 2009, the claimant has the following severe impairments: hypertension; diabetes mellitus; morbid obesity; sleep apnea; and low back pain (20 CFR 404.1520(c)).
4. Since the alleged onset date of disability, April 13, 2009, the claimant has not had 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 404.1520(d), 404.1525 and 404.1526).
5. The undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except: no kneeling, crouching, and crawling; occasionally stooping; frequent handling; avoid unprotected heights; the ability to alternate between sitting and standing at 30 minute intervals; and no production quotas.
6. Since April 13, 2009, the claimant is unable to perform any past relevant work (20 CFR 404.1565).
7. Prior to the established disability onset date, the claimant was a younger individual age 45-49. On June 30, 2011, the claimant's age category changed to an individual closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to communicate in English. (20 CFR 404.1564 and 416.964).
9. Prior to June 30, 2011, 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. Beginning on June 30, 2011, the claimant has not been able to transfer job skills to other occupations (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Prior to June 30, 2011, the date the claimant's age category changed, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that exist in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
In sum, the ALJ concluded that Plaintiff was not disabled from April 13, 2009 through June 29, 2011, but became disabled on her fiftieth birthday, June 30, 2011. (Tr. 22).
On appeal, Plaintiff argues that the ALJ erred in: (1) denying any appreciable weight to the opinion of her longtime treating physician; (2) determining the residual functional capacity; (3) assessing her daily activities; (4) posing improper hypotheticals to the vocational expert, which do not reflect her limitations; and (5) the Appeals Council erred in failing to grant her request for review. The Court will address each 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. Physical Impairments
Dr. Lawrence Ratcliff, of the Farmersville Medical Center, has been Plaintiff's primary care doctor since at least 2001. (Tr. 312). The record contains more than a 150 pages of treatment notes and testing from Dr. Ratcliff's office. (Tr. 175-212, 294-352, 353-421, 445-452). These notes reflect complaints and clinical findings of lower extremity and lumbar impairments.
On September 17, 2007, Plaintiff told Dr. Ratcliff that her leg pain had sharply increased, resulting in decreased activity. (Tr. 245-46). Dr. Ratcliff observed lower extremity edema during examinations on December 11, 2007 and January 2, 2008. (Tr. 241-44). On June 19, 2008, Plaintiff complained of alternating numbness and stabbing pain in her feet. (Tr. 237-38). Dr. Ratcliff observed edema in Plaintiff's legs and recorded decreased bilateral foot sensation. (Id.) On July 30, 2008, Dr. Ratcliff noted edema, tenderness, erythema, and decreased sensation in Plaintiff's lower extremities. (Tr. 235-36). On August 20, 2008, Plaintiff complained to Dr. Ratcliff of pain, swelling, and weakness in her bilateral lower extremities, as well as fatigue and back pain. (Tr. 233-34). Following an examination, Plaintiff's medications were altered. (Id.) Lower extremity edema was present during an examination on September 8, 2008. (Tr. 231-32). On December 15, 2008, Plaintiff reported significant back pain. Dr. Ratcliff recorded reduced range of motion in the lumbar spine and a positive left straight leg raise test, and he prescribed Vicodin. (Tr. 229-30).
Moving closer to her alleged onset date, Dr. Ratcliff's notes reveal that Plaintiff's condition worsened. On January 2, 2009, Plaintiff was crying secondary to pain and Dr. Ratcliff's exam revealed +2 pitting edema in both of her lower extremities. (Tr. 225-26). On April 4, 2009, Plaintiff reported increased leg pain and decreased sleep. (Tr. 221-22). Plaintiff's feet were swollen and numb below her ankles. (Id.) On April 29, 2009, Plaintiff's first visit with Dr. Ratcliff following her alleged onset date, he recorded pedal edema and varicose veins upon examination and adjusted Plaintiff's medications. (Tr. 218-19).
Plaintiff complained of back pain in appointments with Dr. Ratcliff on July 1, 2009, August 11, 2009, and August 20, 2009. (Tr. 312-16). In a treatment note from September 16, 2009, Dr. Ratcliff noted symptoms including chronic lumbar pain and fatigue. (Tr. 310-11). On examination on October 8, 2009, Dr. Ratcliff recorded +3 pedal edema and varicose veins in both of Plaintiff's lower extremities. (Tr. 306-7). Plaintiff also complained of back pain. (Id.) On October 30, 2009, Plaintiff reported to Dr. Ratcliff that she continued to experience back pain and he adjusted her medications. (Tr. 304-05). Similarly, Plaintiff complained of severe low back pain traveling into her legs during a treatment appointment on December 23, 2009. (Tr. 294-97). Plaintiff's back "popped" with reduced range of motion and her feet were swollen on February 12, 2010. (Tr. 397-98).
On April 13, 2010, Plaintiff relayed to Dr. Ratcliff that she was having pain in her upper extremities. (Tr. 391-92). An EMG test was ordered, but never completed, due to financial issues. (Id.) On June 14, 2010, Plaintiff was crying secondary to back/leg pain and her legs were observed to be red with +2-3 edema from her knees down. (Tr. 389-90). At a visit with Dr. Ratcliff on July 9, 2010, Plaintiff's pain had increased, she was fatigued, and her legs exhibited +2 edema. (Tr. 387-88). Notes from August 8, 2010 reveal back pain radiating into Plaintiff's legs with reduced range of motion. (Tr. 383-84). On December 2, 2010, Dr. Ratcliff observed that Plaintiff's legs were red with +2 pitting edema, while her back demonstrated restricted range of motion, tenderness, and muscle spasm. (Tr. 434-35). The redness was still present at a visit on December 22, 2010, and the swelling had increased to +3. (Tr. 491-92). Also in December 2010, Drs. Ratcliff and Koles completed medical statements. Dr Koles opined that Plaintiff was not capable of full-time gainful employment. (Tr. 461).
On February 17, 2011, Plaintiff complained of joint pain and stiffness while Dr. Ratcliff recorded tenderness, spasm, and decreased range of motion in her spine. (Tr. 487-88). In preparation for Plaintiff's bariatric surgery, a nurse practitioner at Dr. Ratcliff's office completed an examination and surgical clearance form, which documented the presence of bilateral lower extremity swelling and venous insufficiency. (Tr. 374-77). Plaintiff ultimately underwent a gastric bypass procedure on July 11, 2011. (Tr. 530-31). Plaintiff continued to complain to Dr. Ratcliff of back and leg pain in the months following her gastric bypass. (Tr. 485-86).
2. Other medical records
An EMG test was performed on November 7, 2006, revealing abnormal findings consistent with peripheral neuropathy in Plaintiff's lower extremities. (Tr. 432).
On April 9, 2009, Plaintiff underwent an echocardiogram which revealed a severely enlarged right ventricle, moderately reduced right valve systolic function, and moderate left ventricular hypertrophy. (Tr. 196). A follow-up test was performed on July 15, 2010, which revealed ongoing hypertrophy and a sclerotic aortic valve. (Tr. 396).
On May 13, 2009, Plaintiff consulted with cardiologist Makul S. Chandra, M.D., who recorded that Plaintiff's legs demonstrated "2-3+ ankle edema with significantly indurated and reddened skin." (Tr. 201). Plaintiff complained of fatigue, shortness of breath, and leg pain/swelling. (Id.) Dr. Chadha believed that Plaintiff's complaints were largely related to her "extreme obesity" and sleep apnea. (Tr. 202).
Plaintiff's legs were recorded to be chronically swollen during a visit to the Kettering Medical Center emergency room for shortness of breath on August 23, 2010. (Tr. 360). An MRI of Plaintiff's lumbar spine was performed on October 6, 2010. (Tr. 399-400). The imaging revealed moderate to severe degeneration at L5-S1 and mild to moderate degeneration at other levels. (Id.) Shortly thereafter, Plaintiff began receiving lumbar nerve block injections from pain management specialist Thomas Knox, M.D. (Tr. 410, 493-97, 526-27). Dr. Knox also prescribed Oxycodone and muscle relaxers for Plaintiff, but she continued to complain of significant back and leg pain. (Tr. 493-97, 505, 509, 515, 520, 525). On December 7, 2010, Plaintiff underwent a whole body bone scan. (Tr. 466-67). This scan revealed not only lumbar degeneration consistent with the lumbar MRI results, but also increased activity in Plaintiff's shoulders, knees, and ankles, consistent with degenerative arthritis. (Id.)
In late 2010, Plaintiff underwent a course of treatment and testing at the Kettering Sleep Disorders Center. (Tr. 411-20). The initial physical exam performed at the Center on August 31, 2010 revealed pitting edema in both of Plaintiff's legs. (Tr. 419). During testing, Plaintiff's nighttime oxygen saturation dropped to dangerous levels over ninety times, leading to prescriptions for nighttime oxygen and a CPAP machine. (Tr. 411-20).
On March 14, 2011, Plaintiff underwent a non-invasive vascular study of her lower extremities. (Tr. 468). The study results were consistent with arterial obstruction. (Id.)
3. Psychological Impairments
On July 29, 2009, Plaintiff was examined by a state agency psychological consultant, Dr. James J. Rosenthal. (Tr. 256-260). Plaintiff limped into Dr. Rosenthal's office, complaining of back and joint pain. (Tr. 257). She complained of low energy, feelings of worthlessness, and weekly crying spells. (Tr. 298). Dr. Rosenthal ultimately diagnosed Plaintiff with an anxiety disorder NOS, and he opined that she had no more than mild limitations in any major mental functional area. (Tr. 259-260). His assessment of Plaintiff's mental abilities relative to work activity found mild to no impairment.
Dr. Rosenthal's conclusions were affirmed by reviewing state agency consultants. In August 2009, the reviewing psychologist, Dr. Catherine Flynn, concurred with the opinion of Dr. Rosenthal. (Tr. 261-273). In December 2009, a second reviewing psychologist also concurred with the opinion of Dr. Rosenthal. (Tr. 287).
4. Opinions of Cardiologist and Reviewing Physicians
Cardiologist David Stultz, M.D., conducted a review of Plaintiff's medical history. He concluded that there was a question as to whether she had pulmonary hypertension. He opined that she could have had a mild case for which no workup was ordered. (Tr. 17). Dr. Stultz found that since her bariatric surgery, Plaintiff no longer takes medication for hypertension. Dr. Das found that Plaintiff's records show that her hyperlipidemia, GERD, anxiety, and depression do not cause more than minimal limitations in her ability to perform basic work-related activity. (Id.) Dr. Stultz's records also reflect that Plaintiff was not taking her diabetic medication nor her medication for high cholesterol, and while she did undergo pain management therapy, there was no indication that she had surgery or physical therapy treatments. (Tr. 15). With regard to Plaintiff's sleep apnea, Dr. Stultz noted that Plaintiff does not use her CPAP machine as prescribed, and that she continues to smoke three quarters of a pack of cigarettes per day. (Tr. 468). Dr. Stultz also noted that Plaintiff was able to ambulate flat on the ground and had a normal gait and station. (Id.)
The reports by Drs. Das and Morton, the reviewing physicians, opined that Plaintiff was capable of a reduced range of light exertion, and that she is limited to standing and walking for four hours in an eight-hour work day. (Tr. 276-277).
5. Plaintiff's Testimony from the 2011 Hearing
At the hearing on October 23, 2011, Plaintiff testified that she is five foot nine and weighs approximately 315 pounds. (Tr. 35). She lives with her daughter, who is homeschooled by a visiting teacher. (Tr. 38). Plaintiff shares the household responsibilities with her daughter, including cooking and cleaning. (Tr. 38-39). Plaintiff said that during a typical day she wakes up between 4:30 a.m. and 8:30 a.m. and gets about 3-4 hours of sleep each night. (Tr. 39). When she wakes up, she takes her pain medications and then she props her feet up and watches television for an hour. (Tr. 40). She gets up every hour and walks around the house. (Id.) She only leaves the house to go to the doctor or the grocery store. Plaintiff drives to the grocery store once a week, accompanied by her daughter, where she spends about a half hour shopping. (Id.) She is unable to drive far, because her feet go numb when her legs are not elevated approximately every hour. (Tr. 52). Plaintiff testified that she typically drives two or three times per week. (Id.)
Plaintiff testified that she was diagnosed with diabetes in November 2009, that she has not taken medication for her diabetes since she had gastric bypass surgery, and that her A1C counts were down. (Tr. 42). Plaintiff has suffered from hypertension "for a long time now," but she stopped taking medication for the hypertension after her gastric bypass surgery. (Tr. 43). Plaintiff testified that she suffers from sleep apnea, so she uses oxygen and CPAP machines. (Tr. 43-44). Plaintiff also claimed to suffer from reflux disease and GERD. (Tr. 44).
Plaintiff also testified that she has back problems, but she has not attempted surgery. (Tr. 44). She takes 12 milligrams of Oxycodone and muscle relaxers. (Tr. 45). Plaintiff smokes against her physician's orders. Plaintiff sees her "pain doctor," Dr. Knox, every month, and her family doctor, Dr. Ratcliff. Plaintiff also sees her cardiologist, Dr. Shultz, every three to six months. (Tr. 46). She also sees a sleep apnea doctor, Dr. Russell. (Tr. 47). Plaintiff takes medication for her anxiety and a "water pill" for her swollen feet. (Tr. 47-48). Plaintiff had congestive heart failure after she gave birth to her daughter sixteen years ago. She has not had any additional episodes and is not currently taking medication, but Dr. Shultz monitors her because of her weight. (Tr. 49).
Plaintiff testified that she cannot stay seated very long and she has to lie down flat and elevate her feet. She claimed to be fatigued, because she does not sleep at night and is in a lot of pain. She stated that her gait is "off balance," and it is difficult for her to do anything because of the pain in her legs, back, and hands. (Tr. 48-49). When she rests for a while, she feels pain again, so she gets up and moves around. Plaintiff testified that she does not feel like she could have continued working even if she had not been laid off, because she finds it difficult to sit down in one position all day without laying down and propping her feet up. (Tr. 50).
6. Testimony of Vocational Expert
The ALJ sought to determine whether Plaintiff could make a successful adjustment to other work considering her RFC, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2. The ALJ asked the vocational expert, Mark A. Pinti, whether jobs existed in the national economy for an individual with Plaintiff's age, education, work experience, and RFC. Pinti testified that Plaintiff could perform sedentary jobs such as unskilled inspector and unskilled sorter. (Tr. 57). These sedentary jobs do not involve kneeling, crouching, crawling or being in high places. The inspector positions make up 1,200 positions regionally and 150,000 nationally, and the sorter positions make up 400 regionally and 50,000 nationally. Thus, Plaintiff can perform 1,600 positions regionally and 20,000 positions nationally. (Id.)
Upon further questioning by Plaintiff's attorney, Pinti affirmed that adding a limitation that an individual would need to elevate their legs frequently over the course of the workday would prevent a person from performing any of the jobs listed. Pinti also opined that an individual would not be able to sustain employment if he or she needed to lie down or take breaks outside the normal break period.
7. ALJ Decision
The ALJ found that Plaintiff has not engaged in gainful activity during the alleged period of disability. (Tr. 14). He further found that Plaintiff suffers from severe impairments of hypertension, diabetes mellitus, morbid obesity, sleep apnea, and low back pain. (Id.)
The ALJ's residual functional capacity ("RFC") reads:
"Residual functional capacity" is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. §404.1545(a).
The undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except: no kneeling, crouching, and crawling; occasionally stooping; frequent handling; avoid unprotected heights; the ability to alternate between sitting and standing at 30 minute intervals; and no production quotas.(Tr.18).
In rendering his decision, the ALJ denied any significant weight to the opinion of longtime treating physician Dr. Ratcliff, because Plaintiff's activities of daily living are extensive and "inconsistent with" the limitations in Dr. Ratcliff's reports. (Tr. 16). The ALJ found that Dr. Ratcliff's opinion is "neither well supported by medically acceptable clinical and laboratory diagnostic techniques nor consistent with other substantial evidence in the case record." (Id.) The ALJ concluded that Plaintiff is incapable of returning to her past work. (Tr. 21). However, the ALJ determined that Plaintiff was not disabled under the Social Security Act from April 13, 2009 through June 30, 2011, but that she became disabled on June 30, 2011, her fiftieth birthday. (Tr. 21-22).
B.
First, Plaintiff alleges that the ALJ erred in denying any appreciable weight to Dr. Ratcliff, Plaintiff's treating physician. Specifically, Plaintiff maintains that the ALJ gave greater weight to the medical opinions of state agency non-examining physicians and failed to provide good reasons for his decision. Additionally, Plaintiff alleges that the ALJ erred in failing to incorporate leg elevation in her RFC and improperly classifying her daily living activities.
A medical opinion by a treating source should be given controlling weight if it is well supported by clinical diagnostic techniques and if it is not inconsistent with other substantial evidence in the case record. 20 C.F.R. § 404.1527(c)(2). When a treating source's opinion is denied controlling weight, the opinion must be weighed under a number of specific regulatory factors including length, nature, frequency, and extent of the treatment relationship, the source's specialty, the supportability of the opinion, and the consistency of the opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6).
If an ALJ rejects the opinion of a treating physician, he must articulate clearly "good reasons" for doing so. Wilson v. Comm'r, 378 F.3d 541, 544 (6th Cir. 2004). In order to be "good," those reasons must be "supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." SSR 96-2p.
In December 2010, Dr. Ratcliff's partner, Dr. Koles, completed a Physician RFC Questionnaire. (Tr. 461). Dr. Koles opined that Plaintiff's impairments are disabling. (Id.) He noted that Plaintiff's conditions reduce her combined sitting and standing ability to four hours in a work day and her standing tolerance to one hour in a work day, which is less than that required for fulltime work. (Id.) He also limited Plaintiff to lifting no more than five pounds on an occasional basis with the latitude to elevate her legs "most of the time" during an eight hour work day. (Id.) Plaintiff argues that the ALJ should have adopted the finding that she needs to elevate her legs most of the time. Such a finding would be a work-preclusive.
Plaintiff alleges that Dr. Ratcliff filled out the RFC Questionnaire. However, the RFC document indicates that Dr. Koles filled out the form and signed it on Dr. Ratcliff's behalf, which further undermines Plaintiff's claim that Dr. Ratcliff's assessment rendered her disabled.
The testimony of vocational expert Mark Pinti established that an employee's need for leg elevation consistent with Dr. Ratcliff's opinion would be work preclusive. (Tr. 53).
The ALJ examined the RFC assessment and found that "Dr. Ratcliff's" opinion (which was actually Dr. Koles' opinion) was not entitled to controlling weight, because his opinion was "neither well-supported by medically acceptable clinical and laboratory diagnostic techniques nor consistent with other substantial evidence in the case record." (Id.) The ALJ found that Plaintiff's alleged symptoms were not credible. (Tr. 19). A plaintiff's statements about the intensity and persistence of symptoms, such as pain, will not be rejected solely because the available objective medical evidence does not substantiate the statements. Felisky, 35 F.3d at 1038.
Plaintiff testified that she was unable to work due to back pain, sleep apnea, and edema. (Tr. 38). She testified that she has trouble sitting all day and must lie down to elevate her legs. (Tr. 49). She recently developed hand pain, and her feet go numb at times, which limits her driving. (Tr. 51-52).
Symptoms such as pain are subjective and difficult to quantify. Id. Factors relevant to assessing pain or other symptoms include: (1) daily activities; (2) the location, duration, frequency, and intensity of the pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5) treatment other than medication, received for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to other pain or symptoms. Id. Whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, a finding must be made as to the credibility of the statements based on consideration of the entire record. (Tr. 19-20). The ALJ addressed each of the above factors in assessing Plaintiff's alleged limitations.
First, the record supports a finding that Plaintiff is able to engage in daily activities on a regular basis. The key question is not whether a plaintiff's alleged pain prevents her from participating in any activities, but whether a plaintiff is able to engage in employment on "a regular and continuing basis." 20 C.F.R. §404.1545(b). The ALJ noted Plaintiff's ability to care for herself and her teenage daughter with special needs, cook, operate a car, do household chores, grocery shop, and run errands. (Tr. 20). Plaintiff argues that she cannot perform these activities without taking frequent breaks. (Tr. 50).
"The fact that appellant can still perform simple functions, such as driving, grocery shopping, dish washing, floor sweeping, does not necessarily indicate that this appellant possesses the ability to engage in substantial gainful activity. Such activity is intermittent and not continuous, and is done in spite of the pain suffered by the appellant." Meece v. Barnhart, 192 Fed. App'x. 456, 465 (6th Cir. 2006) (quoting Walters v. Gardner, 127 F.2d 580, 586 (6th Cir. 1967)).
While the Sixth Circuit has found that an RFC assessment solely based on a plaintiff's daily activities is not reflective of his or her functional ability as an employee, consideration of other objective medical evidence can undermine a plaintiff's allegations of disabling pain. Felisky, 35 F.3d at 1038.
In considering Plaintiff's alleged limitations in completing daily activities, the ALJ assigned Plaintiff a sedentary RFC with additional limitations. In doing so, the ALJ assigned a more restrictive RFC than the reviewing physicians, which indicates that the ALJ did account for Plaintiff's alleged limitations. The ALJ properly found that Plaintiff's daily activities supported a finding that she was able to perform a limited range of sedentary work.
Next, Plaintiff argues that the ALJ failed to consider her leg elevation restriction. "However, there is no requirement that the ALJ must address every piece of evidence in the record in reaching his decision." Carroll v. Astrue, No. 1:09cv1232, 2010 U.S. Dist. LEXIS 65566, at *22 (N.D. Ohio July 1, 2010) (quoting Kornecky v. Comm'r of Soc. Sec., 167 Fed. App'x. 496, 508 (6th Cir. 2006)). Although the reviewing physicians did not expressly address the need for leg elevation in their assessment, Plaintiff engaged in regular daily activities that were inconsistent with "Dr. Ratcliff's" finding that Plaintiff needed to elevate her legs. "[T]he ALJ may distrust a claimant's allegations...if the subjective allegations, the ALJ's personal observations, and other objective evidence contradict each other." Hunt v. Astrue, No. 3:10cv01104, 2012 U.S. Dist. LEXIS 157680, at *23 (M.D. Tenn. Nov. 28, 2012) (quoting Moon v. Sullivan, 923 F.2d 1175, 1182-82 (6th Cir. 1990)). Accordingly, the ALJ's decision not to incorporate the leg elevation limitation into his RFC was proper.
In assessing Plaintiff's alleged pain, the ALJ found no evidence of side effects from her treatment or medication that would prevent her from performing acceptable work activity on a regular and routine basis. Additionally, the ALJ considered Plaintiff's "conservative" treatment for pain. (Tr. 17). The ALJ also looked to other factors such as the claimant's ability ambulate effectively without the need for an assistance device, her allegation of disability arising only after she was laid off from work in 2008, and her claim for unemployment benefits. The ALJ clearly stated a detailed rationale for discounting Plaintiff's credibility, indicating inconsistencies between Plaintiff's subjective complaints and the entire record. (Tr. 16-17).
When evaluating the entirety of the evidence, the ALJ is entitled to weigh the objective medical evidence against the claimant's subjective complaints of pain to reach a credibility determination. An ALJ's credibility findings are to be accorded great weight and deference, particularly because the ALJ is charged with the duty of observing the claimant's demeanor and credibility. Hunt, 2012 U.S. Dist. LEXIS 5088 at 27 (quoting Walters v. Comm'r, 127 F.3d 525, 531 (6th Cir. 1997)). "Discounting credibility is appropriate when the ALJ finds contradictions among the medical reports, the claimant's testimony, and the claimant's daily activities, and other evidence." Id.
Accordingly, "Dr. Ratcliff's" opinions are not supported by substantial evidence. Therefore, the ALJ did not err in assigning little weight to his opinion.
C.
Next Plaintiff alleges that the hypotheticals posed to the vocational expert ("VE") failed to express the assigned RFC. Specifically, Plaintiff argues that the testimony of Mr. Pinti does not establish that a significant number of jobs are available, because the hypothetical worker can do more than Plaintiff.
At the hearing, the ALJ asked the VE about a hypothetical person who could only occasionally kneel, crouch, and crawl, and who should avoid climbing in high places. However, the ALJ's RFC determination included more restrictions than the hypothetical worker. Specifically, the RFC included a limitation that Plaintiff could not kneel, crouch or crawl, and that Plaintiff should avoid unprotected heights.
"[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination." Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (citing Nelson v. Apfel, 131 F.3d 1228 (7th Cir. 1997)). Plaintiff identifies the discrepancies between the assigned RFC and the hypothetical worker, but does not explain how this substantially changes the findings of the VE. The VE testified that Plaintiff could perform sedentary jobs such as unskilled inspector or unskilled sorter. (Tr. 57). These sedentary jobs do not involve kneeling, crouching, crawling, or being in high places. See SSR 83-14 (". . . to perform substantially all of the requirements of most sedentary and light jobs, a person would not need to crouch . . ."); see also SSR 96-9p ("[C]limbing ladders, ropes, or scaffolds, balancing, kneeling, crouching, or crawling . . . are not usually required in sedentary work."). Accordingly, work as an inspector or a sorter does not contradict the ALJ's additional restrictions. Therefore, any error regarding the hypothetical was harmless.
Plaintiff also argues that the VE did not identify a "significant number of jobs" that she could perform. The VE testified that Plaintiff could perform the jobs of inspector (1,200 regional; 150,000 national) and sorter (400 regional; 50,000 national). (Tr. 57). In total, there are 1600 jobs regionally and 200,000 jobs nationally, which represents a "significant number" of jobs. See, e.g, Martin v. Comm'r of Soc. Sec., 170 F. App'x 369, 375 (6th Cir. 2006) (holding that 870 jobs in the geographic area can constitute a significant number); Bradley v. Comm'r of Soc. Sec., 40 F. App'x 972, 972 (6th Cir. 2002) (170,000 jobs in the national economy is a significant number); Hall v. Bowen, 837 F.2d 272, 275-76 (6th Cir. 1988) (1,350 jobs is a significant number of jobs in Dayton area and national economy). Therefore, the ALJ did not err in relying on the VE's finding that Plaintiff could perform a significant number of jobs in the national economy.
". . . '[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. §423(d)(2)(A) .
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D.
Finally, Plaintiff alleges that the Appeals Council erred in denying review of the ALJ's decision and not providing any substantive explanation for the same.
When the Appeal's Council denies review, the decision of the ALJ becomes the final decision of the Commissioner. 20 C.F.R. §404.955. "While new material evidence may be submitted for consideration to the appeals council pursuant to 20 C.F.R. §404.970, on appeal we still review the ALJ's decision, not the denial of review by the Appeal's Council." Casey v. Sec'y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993) (citing Phelps v. Sec'y of HHS, 961 F.2d 1578 (6th Cir. 1992)). This Court does not have jurisdiction to review the Appeals Council's actions. It can only review the final decision of the Commissioner denying benefits. 42 U.S.C. §405(g). Congress' decision to limit judicial review to the original decision denying benefits is a policy choice meant to prevent repetitive litigation of stale eligibility claims. California v. Sanders, 430 U.S. 99, 108 (1977).
III.
For the foregoing 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 Darlene Johnson was not entitled to disability insurance benefits from April 13, 2009 through June 29, 2011 is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly; and, as no further matters remain pending for the Court's review, this case is CLOSED.
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Timothy S. Black
United States District Judge