Opinion
Case No. 3:12-cv-162
03-04-2013
SHEILA PERSON, 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" and therefore unentitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 9-24) (ALJ's decision)).
I.
On November 10, 2008, Plaintiff filed applications for DIB and SSI. (Tr. 105-114). In both applications, Plaintiff alleged disability beginning July 2, 2008, due to coronary artery disease with stenting; cervical stenosis with right arm and shoulder symptoms; right-sided carpal tunnel syndrome; degenerative joint disease of the left knee and left hip; left heel pain; lumbar degenerative disc disease; depression; anxiety and a panic disorder with agoraphobia; and polysubstance abuse. (Tr. 11-12, 105-114). These claims were denied initially on February 18, 2009 and upon reconsideration on August 7, 2009. (Tr. 58). Thereafter, Plaintiff filed a written request for a hearing. (Tr. 75). Plaintiff appeared and testified at the hearing on September 22, 2010. (Tr. 33-53). A vocational expert also testified at the hearing. (Id.)
On October 21, 2010, the ALJ found Plaintiff was not disabled and thus was not entitled to benefits. (Tr. 24). Specifically, the ALJ determined that Plaintiff was unable to perform any past relevant work, but that she had the RFC to perform light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b), except that she cannot perform overhead reaching bilaterally, perform operation of foot controls on the left, or climb ladders, ropes, or scaffolds; that she can only occasionally climb ramps or stairs, stoop, kneel, crouch, or crawl; that she can perform no more than frequent handling and fingering with the right upper extremity; that she can tolerate no exposure to extreme heat or cold, hazardous machinery, and unprotected heights; and that the work must be limited to simple, routine, repetitive tasks and must involve no more than superficial interaction with the public and coworkers. (Tr. 14).
A claimant's residual functional capacity ("RFC") is an assessment of "the most [he] can still do despite [his] limitations." 20 C.F.R. § 416.945(a)(1).
The Appeals Council denied review making the ALJ's decision the final decision of the Commissioner. (Tr. 1). Plaintiff then commenced this action in federal court for judicial review pursuant to Section 205(g) of the Act. See 42 U.S.C. §§ 405(g).
Plaintiff was 48 years old on the alleged disability onset date, and subsequently changed age category to closely approaching advanced age. (Tr. 22). Plaintiff has a limited education, as eleventh grade was the last grade she completed in school. (Tr. 136). Plaintiff has past relevant work experience as a fast food worker, nurse assistant, short order cook, kitchen helper, and dining room attendant. (Tr. 22). Plaintiff claims that she lost her job because she was missing too much work due to her hospitalizations. (Tr. 390).
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(Tr. 11-24).
2. The claimant has not engaged in substantial gainful activity since July 2, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: coronary artery disease with stenting; cervical stenosis with right arm and shoulder symptoms; right-sided carpal tunnel syndrome; degenerative joint disease of the left knee and left hip; left heel pain; lumbar degenerative disc disease; depression; anxiety and panic disorder with agoraphobia; and polysubstance abuse (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except that she cannot perform overhead reaching bilaterally, perform operation of foot controls on the left, or climb ladders, ropes, or scaffolds. She can only occasionally climb ramps or stairs, stoop, kneel, crouch, or crawl, and she can perform no more than frequent handling and fingering with the right upper extremity. She can tolerate no exposure to extreme heat or
cold, hazardous machinery, and unprotected heights. Her work must be limited to simple, routine, repetitive tasks and must involve no more than superficial interaction with the public and coworkers.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on March 25, 1960 and was 49 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date. The claimant subsequently changed age category to closely approaching advanced age (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in English (20 CFR 404.1564 and 416.964).
9. 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).
10. 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 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from July 2, 2008 through the date of this decision (20 CFR 404.1520(g) and 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 DIB or SSI. (Tr. 24).
On appeal, Plaintiff argues that: (1) the ALJ erred in failing to appropriately evaluate Plaintiff's credibility; and (2) the ALJ erred in adopting the opinions of the reviewing state agency doctors when they only reviewed part of the record and are thus not based on substantial evidence in the record. The Court will address each argument 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. Hearing Testimony
Plaintiff testified that her daily activities include watching television, staying to herself, doing laundry, and visiting with her grandkids. (Tr. 39). Plaintiff does not drive, she does not have a license, she rarely goes out to eat, she has not been on a trip in the past couple of years, and she does not participate in any groups or social activities. (Tr. 39-41). She has trouble washing dishes and gets help from her grandkids with mopping and dusting. (Tr. 39). She does not run errands as her daughters do that for her. (Id.)She does not do any outside work, gardening, or yard work. (Id.) She has trouble dressing or bathing and with anything that must be tied or with reaching to her back. (Tr. 40).
Plaintiff testified that her sleep at night is "slim to none," noting that she experiences major numbness in her arm, hands, and hip, causing her to toss and turn. (Tr. 40). Plaintiff only sleeps about three hours a night with no naps during the day. (Id.)She can only walk for about five minutes before her heart starts racing and she has shortness of breath and needs to sit back down. (Tr. 42). She can only stand for 20 or 30 minutes at a time due to her knee, hip, and back pain. (Id.) She has undergone physical therapy for her right arm and neck but has noticed no benefit from it. (Tr. 43).
Plaintiff was ordered by the courts to attend Focus Care to treat her severe depression as she had taken too many pain pills and they thought she was trying to commit suicide. (Tr. 45). She testified that she was depressed, didn't care to be around people, stays to herself, doesn't want to be bothered, and has a "real short fuse." (Tr. 45-46). She takes the medications prescribed to her, but has not noticed any benefit. (Tr. 46). She stopped drinking alcohol because it does not mix with her medicines and "scared" her. (Id.)
Vocational expert Vanessa Harris testified that Plaintiff could not perform her past relevant work. (Tr. 49-50). She also testified that if an individual were to miss three days of work per month, they would likely be subject to termination. (Tr. 51).
2. Mental Impairments
Consultative psychologist Donald Kramer, Ph.D., evaluated Plaintiff on December 22, 2008, and diagnosed major depression, panic disorder with agoraphobia, anxiety disorder, and alcohol dependence. (Tr. 391). Dr. Kramer also noted a depressed and tearful affect and assigned her a Global Assessment of Functioning ("GAF") score of 55. (Tr. 388-92).
The Global Assessment of Functioning ("GAF") is a numeric scale (0 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 (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational or school functioning (e.g., few friends, conflicts with peers or co-workers).
Likewise, psychiatrist Stuart James, M.D., examined Plaintiff on March 31, 2009, noting that Plaintiff showed depression, withdrawal, and a flat affect. (Tr. 19). Plaintiff was admitted to Focus Care for an altered mental status and suicide attempt by overdose of pain medicine on September 18, 2009, with a diagnosis of depression and alcohol dependence. (Tr. 554). Plaintiff was assigned a GAF score of 35, indicating serious impairment in functioning capacity. (Id.)
A GAF score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed adult avoids friends, neglects family, and is unable to work).
3. Physical Impairments
Plaintiff has a history of evaluation and treatment for physical problems, including: hypertension; diabetes Mellitus Type II; hip pain; coronary artery disease; chest pain at rest; lower limb pain, diffuse; numbness and tingling in right hand; irritable bowel syndrome; gastroesophageal reflux disease; low back pain; scabies; carpal tunnel syndrome; menopausal hot flashes; plantar fasciitis; osteoarthritis; diarrhea; and DM neuropathy. (Tr. 674-75). She has also been prescribed a multitude of medications, including Bentyl, Neurontin, Prinivil, Zestril, Adalat CC Procardia XL, Plavix, Hygroton, Zocor, Catapres, Motrin, Tartrate (Lopressor), Lipoderm, Ranitidine, Zoloft, Nifedipine, Metropolol, Glucophage, Lisinoprol, Aspirin, and Chlorthalidone. (Tr. 556, 676).
Plaintiff claims that she is unable to work due to right arm and hand numbness, dizziness, and shortness of breath due to a heart condition. (Tr. 15). She also has a history of knee, hand, and back symptoms -- for which she has been to physical therapy twice -- as well as diabetes, carpal tunnel syndrome, and depression. (Id.)Plaintiff's symptoms affect her ability to lift, stand, walk, and climb stairs, squat, bend, reach, complete tasks, and concentrate. (Id.)
A cervical MRI on January 25, 2008 showed right lateral stenosis with suspected nerve root impingement at C5-6, as well as mild degenerative changes at C3-4, C4-5, and C6-7. (Tr. 350-51). Plaintiff complained of knee pain at an appointment on July 30, 2008, and Dr. Chan diagnosed possible rheumatoid arthritis. (Tr. 336). Lumbar spine imaging on April 27, 2009 showed moderate lumbar spondylotic changes and significant disc space narrowing at L5-S1 and an MRI of the lumbar spine on August 14, 2009 showed multilevel lumbar spondylosis with mild canal stenosis at L4-5 and "foraminal encroachment bilaterally at multiple levels, most severe at L5-S1." (Tr. 524-26). Left heel imaging at that time showed mild hypertrophic spurring. (Tr. 697). An x-ray of the right wrist on July 22, 2010 showed joint space narrowing with subchondral sclerosis and periarticular hypertrophy at the first carpometacarpal joint. (Tr. 744-46). An EMG at that time showed borderline right carpal tunnel syndrome. (Id.)
On February 16, 2009, Plaintiff's treating physician, Yin Yin Aye, M.D., noted tenderness and limited range of motion of the left hip, and he administered a pain injection. He observed that Plaintiff walked with a limp due to left heel pain. (Tr. 421). Dr. Aye noted that a physical examination of Plaintiff revealed a limited range of motion upon bending forward, a limping gait due to chronic knee pain, and difficulty with grip due to right-sided carpal tunnel. (Id.)
When Plaintiff was admitted for an altered mental status and suicidal ideation on September 18, 2009, with diagnoses of depression and alcohol dependence, physical assessment and MRI reports of the cervical and lumbar spines at that time showed multilevel mild to moderate degenerative disc disease of the lumbar spine and significant cervical stenosis. (Tr. 601).
Plaintiff has also sought treatment for her heart condition and chest pain. She was rushed to the emergency room on June 29, 2008, and the attending physicians diagnosed unstable angina. (Tr. 287, 308). A stress test was also positive for ischemia. (Id.) On July 12, 2008, Dr. Girard performed a cardiac catheterization with stenting of the circumflex artery. (Id.) Plaintiff again went to the emergency room for abdominal pain and diarrhea on December 7, 2009. (Tr. 605). Gail Auer, R.N., diagnosed irritable bowel syndrome. (Tr. 723).
Ischemia is restriction or thinning of the blood to tissue, causing a shortage of oxygen and glucose needed for cellular metabolism, to keep the tissue alive.
The record indicates that Plaintiff's daughter has been shopping for Plaintiff for over 25 years because of Plaintiff's inability to be in crowded places. (Tr. 386). She rarely goes out because she cannot be in direct sunlight because of her blood pressure medications. (Tr. 163). Plaintiff noted that she has zero good days a week and seven bad days a week, and that her symptoms occur every day, multiple times per day. (Tr. 168). Prior to the onset of her alleged disability, she was able to mop, carry laundry, trash, walk up stairs, walk uphill, go for long walks, and carry things, but her disability now prevents her from doing these things. (Tr. 141). Plaintiff only prepares quick, prepackaged meals in the mornings. (Tr. 142). She can no longer stand long enough to prepare home-cooked meals. (Tr. 172). Plaintiff noted that she does not handle stress or changes in routine well. (Tr. 146).
4. Functional Capacity Assessments
On February 17, 2009, State agency reviewer Dr. Hill offered her opinion that the claimant can lift and/or carry no more than fifty pounds occasionally or twenty-five pounds frequently and that she can stand and/or walk, as well as sit, for approximately six hours in an eight-hour workday. Dr. Hill also opined that the claimant can never climb ladders, ropes, or scaffolds; that she can only occasionally climb ramps or stairs; and that she must avoid all exposure to hazards. (Tr. 413-19). Dr. Hall reviewed the evidence and affirmed Dr. Hill's assessment on July 6, 2009. (Tr. 434). Dr. Riff reviewed the evidence and affirmed that assessment on August 6, 2009. (Tr. 435-37). However, Plaintiff submitted hundreds of pages of evidence at the hearing level that these physicians did not have the opportunity to review. (See Tr. 439-779). Thus, the reviewing State agency opinions are only based on part of the record.
Two doctors did have the opportunity to review the record and personally examine Plaintiff: treating physician Dr. Aye and treating pain specialist Dr. Reddy of the Dayton Pain Center. (Tr. 780). Dr. Aye opined in a treatment note dated July 12, 2010 that Plaintiff "might be able to perform some light duties" for approximately four to five hours per day and that she could lift no more than fifteen pounds at a time. (Tr. 683). Dr. Reddy conducted a physical examination of Plaintiff and he also had the opportunity to review the entire record at that time. (Id.) He found that lifting and carrying are affected by Plaintiff's impairments. (Tr. 781). Dr. Reddy also found that Plaintiff could only occasionally lift and carry no more than ten pounds for the left upper extremity and five pounds for the right upper extremity for short periods not totaling more than 2.5 hours during the workday. (Tr. 782). He also found that Plaintiff could lift and carry zero pounds for the right upper extremity and five pounds for the left upper extremity frequently for long periods totaling 2.5 to 5 hours during the workday. (Id.)
Dr. Reddy further observed that Plaintiff's standing and walking are affected by her impairments, which is supported by the MRI lumbar spine multilevel degenerative changes resulting in canal stenosis in addition to her chest pain and knee impairments noted in the medical record. (Tr. 782). Dr. Reddy determined that Plaintiff can only stand and walk for one hour without interruption on any single occasion during an eight-hour workday. (Id.)
Dr. Reddy also found that Plaintiff's postural activities are affected by her impairments, noting that her physical examination revealed difficulty with transition movements from sitting to standing. (Tr. 783). In addition, Plaintiff is never able to climb, stoop, crouch, kneel, or crawl, and she is only occasionally able to balance. (Id.)The exam also revealed Plaintiff's trouble with reaching and pushing/pulling. (Id.) Dr. Reddy further opined that Plaintiff may not be able to react quickly enough to protect herself in dangerous situations with heights or moving machinery, and that vibration would only aggravate her pathology. (Tr. 784). Dr. Reddy concluded that Plaintiff is not able to perform medium or light work and is restricted to sedentary work. (Tr. 785).
B.
First, Plaintiff alleges that the ALJ erred in evaluating her credibility.
The ALJ cites numerous reasons why additional limitations on Plaintiff's ability to function were not warranted, including the objective evidence; the intermittence of Plaintiff's complaints; her conservative course of treatment; her non-compliance; her activities of daily living; factors that precipitated and aggravated her symptoms, including her drug use; her inconsistent statements; and the opinions of the state agency physicians.
The ALJ's decision indicates that she considered the objective physical findings and explicitly considered the effect of Plaintiff's lumbar degenerative disc disease and cervical stenosis on her work-related limitations. (Page ID 64-65, 68-70). The ALJ noted that Plaintiff had an unremarkable left hip MRI on January 25, 3008. (Page ID at 68, 408). The ALJ also considered lumbar spine imaging studies from 2009, which showed spondylotic changes and foraminal encroachment at L5-S1. (PageID at 69, 584-86). However, as the ALJ discussed, an EMG of the lower extremities showed no evidence of lumbar radiculopathy or plexopathy. (PageID at 70, 810). The ALJ also recognized some abnormalities on cervical spine and right wrist imaging studies, including suspected nerve root impingement at C5-6, but noted that an EMG showed only borderline right carpal tunnel syndrome with no evidence of neuropathy or radiculopathy. (Page ID at 65, 68-69, 409-10, 809). The ALJ also cited several physical examinations after Plaintiff's alleged disability onset date, during which attending physicians noted normal neurologic examinations, musculoskeletal examinations, and/or examinations of the extremities. (PageID at 70, 372-73, 420, 439, 510, 527, 531, 545). Although an ALJ may not rely solely on a lack of objective evidence to reject claims of pain or other symptoms, agency regulations explain that objective medical evidence is a "useful indicator" that should be considered in decision-making. 20 C.F.R. § 404.1529(c)(2).
The ALJ also considered that Plaintiff "complain[ed] only intermittently" of musculoskeletal pain. (PageID at 69). The ALJ thoroughly discussed Plaintiff's longitudinal treatment history, highlighting that Plaintiff's complaints of pain varied in location rather than one set of complaints being consistently problematic. For example, the ALJ noted that in June 2008, Plaintiff "complained only of left shoulder pain but had no other musculoskeletal complaints" (PageID at 69 at 343). Likewise, Plaintiff "had no musculoskeletal complaints on November 20, 2008." (PageID at 69, 438). The ALJ pointed out that, by February 2009, Plaintiff's complaints shifted to left hip pain, for which Dr. Aye administered a pain injection. (PageID at 69, 480). Dr. Aye "otherwise noted normal muscle tone and full strength" and recommended Motrin and a heat pad on an as-needed basis. (Page ID at 69, 480).
As the ALJ discussed, despite Plaintiff's pain complaints, Dayton Pain Center notes from late 2009 and early 2010 reflected that Plaintiff had a normal gait, negative Spurling's testing, negative axial compression testing, and no evidence of tremors. (Page ID at 69, 698, 702). At March and April 2010 check-ups, the record reflects that Plaintiff noticed no complaints of back pain. (PageID at 765, 768). As the ALJ noted, July 2010 neurological, back, and extremities examinations were normal, with no pain or tenderness, normal range of motion, and no joint pain or swelling. (PageID at 70, 824). The ALJ reasonably considered Plaintiff's sporadic and shifting complaints of pain when evaluating her credible work-related limitations. See 20 CFR §404.1529(c)(3)(v) (relevance of "[t]reatment...received for relief of ...pain"); Social Security Ruling 96-7, 1996 WL 374186 at 7 (explaining that "the individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints").
Additionally, the ALJ noted that Plaintiff's physicians only recommended injections and conservative treatment. (PageID at 69). In June 2010, Dr. Aye increased Plaintiff's Neurontin dosage, but observed that there was no need for surgical intervention for her back and neck pain. (Page ID at 69, 751). Similarly, the record reflects that, in February 2010, Plaintiff reported her right shoulder pain was better after an injection (PageID at 772), and she reported in July 2010 that Lidoderm patches worked "well for her right hip pain" (PageID at 745). See 20 C.F.R. § 404.1529(c)(3)(iv) (relevance of effectiveness of medications). The ALJ also observed that Plaintiff's course of treatment at the Dayton Pain Center was only a few months from November 2009 to March 2010. (PageID at 69, 693-44). The ALJ reasonably relied on Plaintiff's conservative course of treatment when evaluating the credibility of her allegations. See 20 C.F.R. §§ 404.1529(c)(3)(v).
The ALJ also concluded that Plaintiff's non-compliance with her recommended treatment undermined her credibility. (PageID at 71). As the ALJ indicated, Dr. Aye commented that Plaintiff had failed to follow up on his instructions to obtain left heel imaging, despite her prior complaint of left heel pain, which she incurred during a fight. (PageID at 71, 480). Also, the ALJ noted that Plaintiff did not want an MRI of her knee because she was claustrophobic, and she stated that she did not want a knee injection because she was scared of needles. (Page ID at 71, 737). The ALJ reasonably concluded that Plaintiff's "[p]oor compliance" did "not enhance [her] allegations about the severity of her symptoms." (PageID at 71). See Strong v. Soc. Sec. Admin., 88 F. App'x 841, 846 (6th Cir. 2004) ("In the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt on a claimant's assertions of disabling pain.").
The ALJ also determined that Plaintiff's own "description of daily activities [wa]s also inconsistent with her complaints of disabling symptoms and limitations." (PageID at 72). While the ALJ explicitly acknowledged her allegations of difficulties performing activities of daily living, the ALJ did rely on Plaintiff's reports to Dr. Kramer in concluding that she was capable of a range of activities of daily living. (Id.)Specifically, Plaintiff told Dr. Kramer that she was able to prepare breakfast for herself, do some cooking, laundry and housework, and babysit for her grandchildren "from time to time." (Page ID at 449). In addition, the 2009 treatment record from Focus Care indicated that Plaintiff lived in her own home, had a boyfriend and best friend, was good at cooking and interior decorating, had a barbecue about once a month for "the kids in the neighborhood", threw back-to-school and Halloween parties "b/c she loves kids", and attended church about once a month. (PageID at 720-21). The ALJ appropriately considered Plaintiff's activities when evaluating her claims of disabling pain. See 20 C.F.R. §404.1529(c)(3)(i) (relevance of activities when evaluating pain and functional limitations).
Plaintiff's allegations that the ALJ did not consider her medication and side effects is misplaced. The ALJ explicitly noted Plaintiff's testimony that she had "no complaints of side effects" from her medications. (PageID at 68, 91). The ALJ also considered Plaintiff's use of pain medication, and discussed the fact that, although Plaintiff had been diagnosed with hypertension, her doctor indicated that this condition was controlled with medication. (PageID at 66, 69, 349, 751). Similarly, the ALJ considered the role of "prescribed psychiatrist medication" in improving Plaintiff's mental symptoms and mental status findings. (PageID at 71-72). The ALJ's decision reflects adequate consideration of "[t]he type, dosage, effectiveness, and side effects of any medication you take or have taken to alleviate your pain or other symptoms." 20 CFR §§ 404.1529 (c)(3)(iv).
The ALJ also detailed numerous emergency room visits contemporaneous with Plaintiff's use of drugs and alcohol. (PageID at 70-73, 263-66, 289-94, 508). In doing so, the ALJ addressed "[p]recipicating and aggravating factors." 20 C.F.R. § 404.1529 (c)(3)(iii). The ALJ discussed that during an emergency room visit in October 2004, Plaintiff complained of chest pain, but a drug screen was positive for cocaine, marijuana, and benzodiazepine. (PageID at 73, 263). Similarly, as the ALJ noted, during an emergency visit in July 2010 for chest pain, blood work showed an alcohol level of .269. (PageID at 70, 817). The ALJ also referred to Plaintiff's March 2006 emergency room visit, during which she presented in an "obviously" drunken state, complaining of chest pressure and difficulty breathing. (PageID at 73, 294). As the ALJ noted, Plaintiff also visited the emergency room on September 2, 2008 for shortness of breath and self-resolving chest pain after an assault; however, she was reportedly intoxicated, as lab work was positive for alcohol and marijuana. (PageID at 70, 415-16). As Dr. Hill noted, Plaintiff's use of tobacco, alcohol, and drugs was cardiotoxic and/or caused pulmonary irritation. (PageID at 476). The ALJ reasonably considered the connection between Plaintiff's "well-documented history for alcohol, cocaine, marijuana, and other substance use" and her symptoms. (PageID at 65, 70-73).
The ALJ found that Plaintiff's credibility was "further reduced by inconsistent statements in the record." (PageID at 72). For example, Plaintiff claimed that she did not have money to follow-up with counseling or for her prescribed medications. (PageID at 446, 72). However, the ALJ observed that Plaintiff's allegations were undercut by the fact "that [Plaintiff] was obviously able to find money for cigarettes, alcohol, and drug use." (PageID at 72). The ALJ observed that Plaintiff "also made inconsistent statements regarding her polysubstance use." (PageID at 720). With respect to her use of crack-cocaine, the ALJ noted that "[s]he told Dr. Kramer on December 22, 2008, that she had not used crack cocaine in eight years (i.e., approximately December 2000)" (PageId at 72-73, 446), "but she told an attending emergency room physician on October 17, 2004, that she had been using cocaine for the past eight years" (i.e., since about 1996 (PageID at 73, 266)), and "she stated on March 4, 2006 that she had used crack cocaine three months prior (PageID at 73, 289).
With respect to Plaintiff's alcohol use, the ALJ noted that contrary to her testimony that she had stopped drinking in March 2009, medical records reflect that Plaintiff reported in April 2009 "that she had been drinking at least two to three pints of vodka daily"; was referred by her doctor to alcohol abuse treatment in April 2009; and overdosed in September 2009 with alcohol and prescription medication after having consumed a pint of vodka. (PageID at 68, 73, 94, 508, 570, 610, 625). In October 2009, medical records reflect that plaintiff's last use of alcohol and marijuana was that month. (PageID at 726). Testing in July 2010 showed a blood alcohol level of .269. (PageID at 73, 817). It is appropriate for an ALJ to discount a claimant's credibility in light of contradictions in the medical reports and the claimant's testimony. See, Walters v. Comm'r of Soc. Sec., 127 f.3d 525, 531 (6th Cir. 1997). See also SSR 96-7p ("One strong indication of the credibility of an individual's statements is their consistency, both internally and with other information in the case record.").
Additionally, there is not support in the record to support Plaintiff's allegation that she was not permitted to return to work after her July 20008 cardiac catherization. (PageID at 367). As the ALJ noted, after Plaintiff's August 2008 cardiac follow-up, she was released to perform light duty work and was told she could resume her regular routine after six weeks. (PageID at 70, 394).
Accordingly, the ALJ reasonably considered the objective evidence, the intermittence of Plaintiff's complaints, her conservative course of treatment, her non-compliance, her activities of daily living, factors that precipitated and aggravated her symptoms, including her drug use, her inconsistent statements, and the opinions of the state agency physicians when assessing Plaintiff's credible limitations. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) (ALJ appropriately discounted a claimant's credibility in light of contradictions among medical reports and the claimant's testimony). It is not the province of the reviewing court to "try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility." Id.
C.
Next, Plaintiff alleges that the ALJ erred in adopting the opinions of the reviewing state agency doctors when they only reviewed part of the record and their assessments are thus not based on substantial evidence in the record. Specifically, Plaintiff claims that the ALJ should have given controlling or at least deferential weight to the opinions of treating sources Drs. Aye and Reddy, and should not have given weight to the opinions of the state agency reviewing physicians.
A treating source's medical opinion is entitled to "'controlling weight' unless it is either not 'well-supported by medically acceptable clinical and laboratory diagnostic techniques' or is 'inconsistent with the other substantial evidence in [the] case record.'" Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 877 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1527(d)(2)). If the ALJ does not given controlling weight to a treating physician's medical opinion, the ALJ considers the factors listed in 20 C.F.R. § 404.1527(d)(2)-(6) to determine how much weight to give the opinion.
For example, the factors include: the length and nature of the treatment relationship, the evidence that the physician offered in support of his opinion, the consistency of the opinion with the record as a whole, and whether the physician was practicing a specialty. Id.
The ALJ found that "Dr. Aye's opinion is not entitled to controlling or deferential weight under the Regulations." (PageID at 74). Specifically, the ALJ explained that she gave "little weight to his assessment, as it is unsupported by objective findings." (Id.)The ALJ noted that Dr. Aye's physical examination revealed only a few clinical deficits on the day of Plaintiff's disability evaluation: "limited" range of motion upon bending forward, a limping gait due to chronic knee pain, and difficulty with grip due to right - sided carpal tunnel syndrome. (PageID at 74, 746). The ALJ concluded that the highly conservative functional limitations in Dr. Aye's opinion were not related to his own medical judgment, but rather were based heavily on Plaintiff's subjective reports. (PageID at 74). Plaintiff visited Dr. Aye specifically to "fill out disability paperwork" and, as the ALJ emphasized, she "mention[ed]" that she could not lift more than fifteen pounds. (PageID 74, 745-46). Dr. Aye opined that Plaintiff "might be able to perform some light duties" for approximately four to five hours per day and that she could limit no more than fifteen pounds - the same weight limit Plaintiff self-reported. (PageID at 746). A doctor's opinion "based solely on reports made by a patient that the ALJ found to be incredible" is "not due much weight." Bass v. McMahon, 499 F.3d 506, 510 (6th Cir. 2007). Dr. Aye's failure to support his opinion is a "good reason" for declining to accord controlling weight pursuant to 20 C.F.R. §§ 404.1527(d)(2)-(3).
The ALJ also concluded that Dr. Aye's opinion was inconsistent with "[t]he totality of the medical evidence," another reason for declining to accord it controlling weight and a "good reason" for giving the opinion less weight. See 20 C.F.R. §§ 404. 1527(d)(2), (4). The ALJ cross-referenced her credibility findings in support of her conclusion that Plaintiff was "not as severely limited as assessed by" Dr. Aye. (PageID 74). Dr. Aye did not review the reports and statements generated in connection with Plaintiff's disability application or Dr. Kramer's consultative examination where Plaintiff reported various activities of daily living. (Id.)
Plaintiff also alleges that the ALJ erred in not giving controlling weight to Dr. Reedy's opinion. However, Dr. Reedy's opinion was not part of the record before the ALJ. Plaintiff's attorney submitted Dr. Reddy's opinion as additional evidence for the Appeals Council to consider after the ALJ issued her decision. (PageID at 57). The Appeals Council found that the additional evidence did not provide a basis for changing the ALJ's decision. (PageID at 55). Such evidence "cannot be considered part of the record for purposes of substantial evidence review." Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). When an ALJ renders the final decision of the Commissioner, additional evidence submitted to the Appeals Council may be considered only for the purpose of a sentence six remand. Id.
Next, Plaintiff maintains that the ALJ should not have relied on the opinions of the state agency physicians because they did not examine her or review the entire record. The most recent state agency review, conducted by Dr. Riff, was in August 2009 (PageID at 496) and Dr. Aye's opinion was dated July 2010 (Page ID at 745). Plaintiff asserts that the evidence accumulated between August 2009 and July 2010 contained "[s]everal essential exhibits," but does not explain what evidence supports additional, lasting limitations not already accommodated in the ALJ's RFC finding. Nor is it clear that Dr. Aye reviewed Plaintiff's longitudinal medical history and emergency room reports, as the state agency reviewers did. Although an examining relationship and access to the medical record are factors an ALJ considers when determining the weight to give an opinion, so are supportability and consistency. The ALJ permissibly found that the factors of supportability and consistency weighed heavily against Dr. Aye's opinion. 20 C.F.R. §§ 404.1527(d)(1)-(6).
The Sixth Circuit has made clear that it is the ALJ, not a specific medical source, who is required to consider the record as a whole. "[T]he ALJ is charged with the responsibility of evaluating the medical evidence and the claimant's testimony to form an 'assessment of [her] residual functional capacity.'" Webb v. Comm'r of Soc. Sec., 368, F.3d 629, 633 (6th Cir. 2004).
--------
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). While Plaintiff has identified flaws in the ALJ's decision, substantial evidence still supports the ALJ's finding that she was not disabled.
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 Sheila Person was not entitled to disability insurance benefits and supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED; and, as no further matters remain pending for the Court's review, this case is CLOSED.
________________________
Timothy S. Black
United States District Judge