Opinion
Case No. 3:12-cv-394
11-12-2013
LAVELL ROSS, 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 supplemental security income ("SSI"). (See Administrative Transcript ("PageID") (PageID 65-74) (ALJ's decision)).
I.
On November 18, 2008, Plaintiff filed an application for SSI alleging an onset date of November 1, 2007, due to chronic low back pain, flat feet, and problems with reading and writing. (PageID 65). His application was denied at the initial and reconsideration level. (PageID 113-20). After an administrative hearing, an ALJ issued a decision finding Plaintiff not disabled. (PageID 65-74). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (PageID 45-47). Plaintiff then commenced this action in federal court, pursuant to 42 U.S.C. § 405(g), for review of the Commissioner's final decision.
The ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform medium work, except that he could only occasionally operate foot controls, never climb ladders, ropes, or scaffolds, and only occasionally climb ramps and stairs. (PageID 70). The ALJ also concluded that Plaintiff could perform work that only required frequent balancing and stooping; occasional kneeling, crouching, or crawling; no exposure to unprotected heights or hazardous machinery; and occasional near acuity. (Id.) The ALJ further concluded that Plaintiff could not drive or operate motor vehicles. (Id.) To accommodate Plaintiff's mental limitations, the ALJ limited him to jobs that were simple, routine, repetitive, did not require a production-rate pace or strict production quotas, would not require complex, written instructions, and would not require him to interact with the public. (Id.)
Plaintiff was 50 years old at the time of the decision. (PageID 73). Plaintiff completed the eleventh grade and never obtained his GED. He denied being in special education classes while in school. (PageID 69). Plaintiff's past relevant work included work as a production laborer and delivering pizzas. He stopped working because the pizza business where he worked closed. (Id.)
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 November 18, 2008, the application date (20 CFR 416.971 et seq).(PageID 67-74).
2. The claimant has the following severe impairments: flat feet; mild degenerative changes of the lumbosacral spine; vision loss; depression; marijuana abuse; a history of alcohol abuse; and borderline intellectual functioning, with a history of closed head injury (20 CFR 416.920(c)).
3. 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 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 medium work as
defined in 20 CFR 416.967(c). Giving the claimant the full benefit of doubt with regard to his allegations and subjective complaints, it is found that he is limited to jobs that would require no more than occasional operation of foot controls. He should not be expected to perform work that would require climbing ladders, ropes, or scaffolds. He is further limited to jobs that would require only occasional climbing of ramps or stairs. He is restricted to work that would require no more than frequent balancing and stooping. He is further restricted to jobs that would require only occasional kneeling, crouching, or crawling. He should not be expected to perform jobs that would require working at unprotected heights or around hazardous machinery. He is limited to work that would not require driving or operating motor vehicles as part of job duties. He is further limited to jobs that would not require complex, written instructions. He is restricted to work that would require no more than occasional near acuity. He is further restricted to simple, routine repetitive tasks that would not require a production-rate pace or strict production quotas. He is limited to work that would not require interaction with the public.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on February 10, 1958 and was 50 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 an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).
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 November 18, 2008, the date the application was filed. (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. (PageID 74).
On appeal, Plaintiff argues that: (1) the ALJ erred by failing to properly evaluate all medical opinions of record; and (2) the ALJ erred by failing to resolve an inconsistency among the opinions of record. 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 he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
Although Plaintiff alleges disability since November 1, 2007, there is no evidence of ongoing medical treatment until December 2009. (PageID 72).
Plaintiff was referred for a consultative physical examination in January 2009. The examination was performed by Dr. William Smith. Upon examination the lumbar spine was noted to be tender to palpitation and muscle spasm was present. (PageID 68). The claimant was noted to have markedly flat feet. (Id.) The remainder of the examination was unremarkable and Dr. Smith diagnosed lumbar spondylosis, bilateral pes planus, the residuals of a closed head injury, and mild exogenous obesity. (Id.) Visual acuity without glasses was reported as 20/50 left, 20/40 right, and 20/25 using both eyes. (PageID 245) Straight leg raising to 45 degrees caused back pain bilaterally. (Id.) Reflexes were diminished in both the upper and lower extremities. (PageID 245- 46). "When he walks he has trouble raising up on the toes of both feet and raising up on the heels of both feet." (PageID 246). Diagnoses included lumbar spondylosis and pes planus bilateral. (Id.) However, Dr. Smith made no statement regarding Plaintiff's residual functional capacity and he offered no opinion as to how his examination findings and diagnoses might translate in to specific work-related functions.
Also known as low back pain (LBP), lumbar spondylosis affects approximately 60-85% of adults during some point in their lives.
Flat feet (also called pes planus) is a formal reference to a medical condition in which the arch of the foot collapses, with the entire sole of the foot coming into complete or near-complete contact with the ground.
Exogenous obesity is obesity caused by overeating.
Following the state agency's receipt of Dr. Smith's report, Dr. Jerry McCloud reviewed the file and produced an RFC determination. (PageID 277-84). He opined that Plaintiff could "occasionally" (up to one-third of an 8-hour workday) lift and carry 50 pounds, and that he could "frequently" (up to two-thirds of an 8-hour workday) lift and carry 25 pounds. (PageID 278). He could stand or walk a combined total of six hours in an 8-hour workday and sit for the same amount of time. (Id.) Pushing and pulling, including operation of hand or foot controls, was unlimited. (Id.)
Dr. Reece, Psy.D, did a consultative psychological evaluation in March 2009. (PageID 69). Plaintiff's affect was flat and mood was "mildly anxious/irritable." Plaintiff exhibited inconsistent eye contact. He reported lack of energy and crying spells as well as feelings of hopelessness, helplessness, worthlessness, and guilt. He also reported experiencing mood swings. The Wechsler Adult Intelligence Score was administered and resulted in a Full-Scale IQ of 66. Plaintiff reported that he lived alone and did his own cooking, cleaning, and shopping. He spent a typical day watching television and movies. He had a driver's license and drove himself to the evaluation. He reported that he drank twelve or more beers daily for two years but had not used alcohol for more than a year. He also reported using marijuana on a daily basis. He reported then-twelve arrests for theft, robbery, and receiving stolen property, but denied spending time in prison. He stated that he has problems with authority figures. (PageID 69).
A score of 50-69 indicates borderline mental functioning.
Dr. Reece's clinical impression was depressive disorder, cannabis abuse, alcohol abuse, and borderline intellectual functioning with a GAF of 60. Dr. Reece found that Plaintiff's ability to relate appropriately to others was mildly impaired and his ability to maintain concentration, persistence or pace to perform simple repetitive tasks was not impaired, and his ability to withstand normal work stressors was "moderately" impaired.
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).
Plaintiff had been receiving medical treatment at the Rocking Horse Community Health Center since December 2009. (PageID 68). He was seen by Nurse Practitioner Sue Carter for complaints of lumbar spondylosis, the residuals of a closed head injury, hip pain, and depression.
On December 22, 2010, Nurse Carter wrote a letter describing Plaintiff as suffering from: 1. Chronic low back pain with lumbar spondylosis
2. Depression
3. Vision deficit
4. Bilateral ankle arthralgia
5. Poor dentition.
(PageID 252). She reported that with eyeglasses, his best correctable vision was 20/200 left eye and 20/30 right eye. (Id.) She wrote that his chronic low back pain prevents him from lifting or carrying more than 10-15 pounds and prohibits bending, stooping, and climbing; she also opined that he would not be able to work in a full-time capacity. (Id.)
On a Department of Jobs and Family Services Basic Medical Form, Nurse Carter added that Plaintiff could stand and walk for a total of two to three hours per day. (PageID 257). She described his capacity to see as extremely limited. (Id.)
B.
First, Plaintiff alleges that the ALJ erred by failing to properly evaluate all medical opinions of record. There are multiple medical opinions in the record: Nurse Carter, examining source Dr. William Smith, non-examining physicians on behalf of the state agency, psychological examining source Dr. Reece, and non-examining psychologists at the state agency. (PageID 68-70).
The regulations mandate that "[u]nless the treating physician's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources who do work for us." 20 C.F.R. §§ 404.1527(e)(2)(ii), 416.927(e)(2)(ii). Even if the treating physician's opinion is not entitled to controlling weight, the ALJ must still evaluate the medical opinions by applying the relevant factors, including: "(1) the length of the treatment relationship and the frequency of examination, (2) the nature and extent of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion with the record as a whole, and (5) the specialization of the treating source." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007) (citing 20 C.F.R. § 404.1527(d)(2)). However, "if the Commissioner adopts the opinion of [a medical] source or makes findings consistent with the opinion, it may be irrelevant that the ALJ did not give weight to [it], and the failure to give reasons for not giving such weight is correspondingly irrelevant." Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 547 (6th Cir. 2004).
A claimant's RFC is not a medical opinion, but an administrative determination reserved to the Commissioner. 20 C.F.R. § 416.945(e). As such, the ALJ bears the responsibility for assessing a claimant's RFC based on all of the relevant evidence. 20 C.F.R. § 416.945(a). "Judicial review of the Commissioner's final administrative decision does not encompass re-weighing the evidence." Carter v. Comm'r of Soc. Sec., No. 1:10cv804, 2012 U.S. Dist. LEXIS 40828, at *21-22 (W.D. Mich. Mar. 26, 2012). Moreover, a plaintiff's mere disagreement with the weight an ALJ ascribes to certain opinions does not provide a basis for overturning the RFC determination. Id.
An opinion from a treating physician is "accorded the most deference by the SSA." Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007). A nontreating source, who physically examines the patient "but does not have, or did not have an ongoing treatment relationship with" the patient, falls next along the continuum. Id. A nonexamining source, who provides an opinion based solely on review of the patient's existing medical records, is afforded the least deference. Id.
Here, the ALJ properly found that there was no treating source opinion. A treating source under 20 C.F.R. § 404.1527(c)(2) must be a "treating source" or an "acceptable medical source." 20 C.F.R. §§ 404.1502, 404.1513(a), 404.1513(d)(1). Rather, as a nurse practitioner, Nurse Carter is an "other" medical source, she is not an "acceptable medical source." 20 C.F.R. § 404.1513(d)(1). However, under the provision of Social Security Ruling 06-03p, the opinions of non-acceptable as well as acceptable medical sources must be weighed and evaluated. 20 C.F.R. § 404.1527.
A review of the ALJ's decision supports the conclusion that the ALJ considered the nature and extent of Nurse Carter's treatment relationship with Plaintiff, the supportability of her opinion, and the consistency of her opinion with the rest of the record evidence. Because substantial evidence supports the ALJ's decision to reject Nurse Carter's opinion, the Court is required to uphold that decision, regardless of whether this Court might have resolved the issue differently if it had conducted a de novo review. Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983).
Ms. Carter's assessment of Plaintiff's visual impairments was inconsistent with the opinions of three acceptable medical sources. Consultative examiner Dr. Smith noted that Plaintiff's visual acuity without glasses was 20/50 on the left, 20/40 on the right, and 20/25 in both eyes. (PageID 245). Dr. McCloud concluded that Plaintiff did not have any visual limitations. (Page ID 280). Finally, Dr. Manos concluded that Plaintiff needed glasses. (PageID 288). These findings, which indicate mild to moderate visual difficulties, are significantly different from Ms. Carter's opinion. In fact, Plaintiff testified that he was able to "see great with the glasses sometimes." (PageID 93). When questioned further, he testified that he had difficulties seeing and that things were sometimes "blurry" but that he read newspaper articles. (PageID 93-94). Plaintiff also told Dr. Reece that he drove to his examination. (PageID 253). In light of this evidence, it was reasonable for the ALJ to reject Ms. Carter's findings.
Ms. Carter's opinion about the severity of Plaintiff's low back and ankle problems is also contradicted by the record evidence. The record shows that Plaintiff did not have surgery for his back problems and stopped seeing his chiropractor after five visits against the recommendation of his treating source. (PageID 228, 240, 243). Ms. Carter concluded that Plaintiff had arthritis in his ankle, but examining physician, Dr. Smith, administered a manual muscle test and noted that Plaintiff had a normal range of motion in his ankle. (PageID 247-250). In light of both the lack of objective medical evidence supporting Ms. Carter's opinions and the inconsistency with the record evidence, it was reasonable for the ALJ to conclude that Ms. Carter must have relied solely on Plaintiff's subjective complaints. (PageID 71).
The Sixth Circuit has consistently explained that it is appropriate for an ALJ to reject a medical opinion that is based on a claimant's subjective complaints. Sims v. Comm'r of Soc. Sec., 406 F. App'x 977 (6th Cir. 2011). Since the record indicates that Plaintiff did not have back surgery, wear special orthotics, and quit chiropractic care after only five visits, the ALJ's conclusion was reasonable. Moreover, Exhibits 10F, 11F, and 13F do not support Ms. Carter's limited assessment. For example, the observations and/or medical evidence that led to Ms. Carter's findings include: a statement that Plaintiff had been involved in an accident during his childhood and a notation that he had chronic back pain since the accident. (PageID 300). Ms. Carter also noted that Plaintiff was depressed and needed dental work done. (Id.) She did not provide any specific evidence to support these findings. Specifically, In Exhibit 10F Ms. Carter performed a physical examination and noted that Plaintiff had flat feet, and decreased range of motion in his right hip. (PageID 290-94). In Exhibit 11F Ms. Carter noted that Plaintiff walked with a cane and had decreased range of motion in his left hip. (PageID 298). She ordered an x-ray of the hip, but there is no evidence that Plaintiff had it taken. (Id.) Exhibit 13F notes that Plaintiff had difficulties in his lower right extremity - again she ordered an x-ray of the right lower extremity, but there is no evidence that one was ever taken. (PageID 303).
The ALJ chose to adopt the exertional limitations and the medical opinion of state agency physician Dr. McCloud. (PageID 68, 70). Dr. McCloud noted that Plaintiff had normal range of motion in his cervical spine and shoulders and normal strength in his upper and lower extremities, normal sensation, and no muscle atrophy. (PageID 278). He explained that Plaintiff had never had back surgery and stopped going to the chiropractor against medical advice. (PageID 282). In light of this evidence, Dr. McCloud concluded that Plaintiff could perform a range of medium work. (PageID 277-84).
Plaintiff suggests that the ALJ should not have relied on Dr. McCloud's opinion because Dr. McCloud did not examine Plaintiff. While this Court finds that ideally the ALJ would have relied on an examining physician, here there is no treating source, and Dr. Smith, who did examine Plaintiff, made no statement regarding Plaintiff's RFC and offered no opinion as to how his examination findings and diagnosis might translate into specific work-related functions. Moreover, the ALJ's RFC was more restrictive than Dr. McCloud. Plaintiff also criticizes the ALJ for not explaining what weight he gave to Dr. McCloud's opinion. The ALJ erred in this regard, however this error was harmless because the RFC was consistent with Dr. McCloud's opinion. Pasco v. Comm'r of Soc. Sec., 137 F. App'x 828, 840-41 (6th Cir. 2005) (explaining that the "Court may not be compelled to reverse the ALJ for failing to explain properly the weight given to a treating source, if the failure is harmless error, such that the claimant in fact had the benefit of the procedural safeguard of reasons").
Accordingly, the ALJ properly evaluated all medical opinions of record and to the extent that she failed in this regard, such failure was harmless.
C.
Next Plaintiff maintains that the ALJ erred by failing to resolve an inconsistency among the opinions of record. First, Plaintiff maintains that there was an inconsistency in the evidence concerning his vision impairments and that the inconsistency was material to the determination of disability. Although the ALJ incorrectly noted that Nurse Carter opined that Plaintiff's best corrected vision was 20/300 as opposed to 20/200, her opinion was still supported by substantial evidence.
Plaintiff criticizes the ALJ for not mentioning Exhibit 15E and Dr. Smith's visual acuity test. However, although Plaintiff's level of visual stress was described as severe, the report indicated that his level of difficulty would "probably" lead to some difficulty managing on the job tasks. (PageID 223). This vague finding is insufficient to deduce that Plaintiff actually had significant problems with his vision. Even though the ALJ did not cite to the Visual Acuity report, she explained that Plaintiff could work despite his vision problems because Plaintiff had a driver's license, drove himself to the consultative examination, and stated that he was able to "see great with the glasses sometimes." (PageID 93). Upon further questioning, Plaintiff said sometimes his vision was "blurry." (Id.) However, he admitted that he read newspaper articles. (PageID 93-94). This evidence suggests that Plaintiff's vision problems were not as severe as alleged and therefore it was reasonable for the ALJ to restrict Plaintiff to jobs that only required occasional near acuity, would not require him to work around unprotected heights or hazardous machinery, and would not require him to drive or operate automobiles. (PageID 70).
Exhibit 15E is an individual report prepared for Plaintiff by the Clark County Literacy Coalition. (PageID 219-23). That report includes a diagnostic screening summary with visual functions testing. (PageID 176). For distance acuity Plaintiff had eight correct answers out of a possible eight. (Id.) However, for near acuity, out of a total of ten items for each eye, he had zero correct for each of the right and the left eyes and for binocularity, he had three correct responses out of a possible eight. (Id.) Plaintiff's visual stress syndrome difficulty was described as severe. (Id.)
An ALJ is not required to cite to every piece of evidence in the record. Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006) (It is well settled that "An ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.").
Additionally, Plaintiff claims that the ALJ "never" addressed his concerns that he had frequent headaches. However, the ALJ explained that Plaintiff "experienced frequent migraine headaches," but slept them off. (PageID 67). At the hearing Plaintiff testified that it took him a few hours to sleep off the migraines. (PageID 96). However, he admitted that he did not take any medication for the condition. (Id.) The fact that Plaintiff did not even require medication for his migraines undercuts his allegations that they were disabling. Blacha v. Sec'y of Health & Human Servs., 927 F.2d 228, 231 (6th Cir. 1990).
Plaintiff also maintains that the ALJ's conclusion that "the medical record did not support the claimant's allegations of frequent falls" was not reasonable because it did not consider that Plaintiff had fallen and broken his glasses. Plaintiff did not explain why evidence of one fall should support allegations of "frequent" falls. There is no evidence that Plaintiff's condition caused him to fall frequently. Moreover, Plaintiff attributed his falling episodes to his flat feet (PageID 92), but did not wear any special shoes or orthotics. (PageID 85).
In a treatment note dated August 20, 2010, Nurse Carter recorded that she called LensCrafters while Plaintiff was in her office because he had fallen, breaking his glasses in the process, and she was seeking a replacement pair. (PageID 298).
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Finally, Plaintiff argued that the ALJ should have called a medical expert to make sense of the medical evidence. 20 C.F.R. § 416.917. However, there were two opinions from acceptable medical sources. Both doctors concluded that Plaintiff could perform medium work. (PageID 277-84; 288). Although the opinions of the state agency physicians differed from the assessment completed by Ms. Carter, the ALJ was permitted to weigh the evidence and determine which opinion accurately reflected Plaintiff's condition. Consistent with agency regulations and long-standing Sixth Circuit case law, the ALJ formulated her RFC finding by evaluating all of the evidence of record. 20 C.F.R. § 416.927; Coldiron v. Comm'r of Soc. Sec., 391 F. App'x 435, 439 (6th Cir. 2010) ("An ALJ does not improperly assume the role of a medical expert by weighing the medical and non-medical evidence before rendering the RFC finding."). This was not a case where the record was so voluminous or confusing that the ALJ needed a medical expert to make sense of it, rather this was a case where there were conflicting opinions regarding Plaintiff's ability to work. The ALJ weighed the evidence and reasonably concluded that Plaintiff could work despite his impairments.
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 Lavell Ross was not entitled to 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.
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Timothy S. Black
United States District Judge