Summary
noting that regulation is permissive and therefore ALJ not required to re-contact a medical source
Summary of this case from Summerville v. Comm'r of Soc. Sec.Opinion
Case No. 1:13-cv-500
07-24-2014
BEVERLY S. YOUNG, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS
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 Plaintiff "not disabled" and therefore not entitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 18-27) (ALJ's decision)).
I.
Plaintiff protectively filed for DIB and SSI in January 2009, alleging an onset date of December 15, 2005. (Tr. 201, 205). Plaintiff alleged disability due to degenerative joint disease of the knees, back and neck pain, obesity, and hypertension. (Tr. 20). The application was initially denied on April 9, 2009. (Tr. 82, 85). The application was denied upon reconsideration on July 30, 2009. (Tr. 89-93). Plaintiff requested a hearing on February 2, 2010. (Tr. 98-100). A hearing was held on July 28, 2011, before ALJ Gregory Kenyon. (Tr. 34-49). A supplemental hearing was held on December 2, 2011, before ALJ Kenyon. (Tr. 50-77). Plaintiff was represented by counsel at both hearings. (Id.)
An unfavorable decision was rendered on February 21, 2012. (Tr. 15-27). The ALJ found Plaintiff not disabled, because she was able to perform sedentary work. (Tr. 26).
Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. 20 C.F.R. §404.1567(a).
Plaintiff filed a request for review of the hearing decision on March 13, 2012. (Tr. 10-14). The Appeals Council denied the request on March 24, 2013. (Tr. 1-5). Plaintiff then timely filed a complaint in this Court.
Plaintiff was fully insured as of her alleged onset date. (Tr. 20). Plaintiff's date last insured was March 31, 2011. (Tr. 207, 208).
At the time of the first hearing, Plaintiff was 41 years old and was considered to be a "younger person" for Social Security purposes. See 20 C.F.R. §§ 404.1563(c); 416.963(c). Plaintiff has a high school education and past relevant work as a cashier. (Tr. 25).
Past relevant work is work that you have done within the past 15 years, that was substantial gainful activity, and that lasted long enough for you to learn to do it. 20 C.F.R. §416.960(1)(b).
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, 2010.(Tr. 20-26).
2. The claimant has not engaged in substantial gainful activity since December 15, 2005, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative joint disease of the knees; mild mechanical back and neck pain; obesity; hypertension; migraine headaches (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. The claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), subject to the following limitations: (1) occasional stooping, balancing, and climbing of ramps and stairs; (2) no crawling, crouching, kneeling, or climbing of ladders, ropes, and scaffolds; (3) no concentrated exposure to vibrations; (4) no work around hazards such as unprotected heights or dangerous machinery; (5) occasional operation of foot controls with the lower extremities; (6) limited to indoor work; (7) no exposure to loud noise; (8) limited to performing unskilled, simple, repetitive tasks due to pain complaints.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on January 10, 1970 and was 35 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1563 and 416.963).
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 December 15, 2005, 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, therefore, was not entitled to DIB or SSI. (Tr. 27).
On appeal, Plaintiff argues that: (1) the ALJ failed to properly consider an examining source opinion pursuant to SSR 96-5P; (2) the ALJ had a duty to recontact the consultative examiner under 20 C.F.R.§404.1520(b) and failed to meet that duty; and (3) the ALJ's residual functional capacity ("RFC") is not supported by the evidence .The Court will address each error in turn.
Residual functional capacity is the most an individual can still do despite limitations. See 20 C.F.R. 1545(a)(1).
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 from 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.
Plaintiff sought treatment in 2008 and 2009 for ongoing knee and back pain, which worsened if she was on her feet all day. (Tr. 20). Examinations demonstrated few objective findings other than thoracic and lumbar paravertebral muscle spasm and joint line tenderness. (Tr. 21). Plaintiff's primary physician noted the effects of her morbid obesity on her knee pain, and he recommended weight loss. (Id.)
Due to her increasing knee symptoms, Plaintiff was evaluated by orthopedic surgeon, Gerardo Trinidad, M.D., in December 2010. (Tr. 21). Dr. Trinidad noted that the claimant had increased pain, swelling, and giving-way with standing, ambulating, bending, squatting, and going up or down stairs, and that her symptoms had not resolved with anti-inflammatory medications, steroid injections, and Synvisc injections. (Id.) Dr. Trinidad diagnosed severe varus osteoarthritis in the bilateral knees, which resulted in Plaintiff undergoing total knee replacement surgery in January 2011 for her left knee, and April 2011 for her right knee. (Id.)
Further medical evidence indicates that Plaintiff suffers from migraine headaches caused by sensitivity to light and sound; she also has a history of hypertension. (Tr. 21). These issues are both controlled via medications. (Id.)
Plaintiff was briefly hospitalized in January 2008 with dizziness, nausea, and hypertension. Providers discovered that she was experiencing premature ventricular contractions and a low heart rate, and noted that her doctor had recently made changes in her hypertension medications. (Tr. 21). A chest x-ray demonstrated mild cardiomegaly and an echocardiogram showed some concentric left ventricular hypertrophy, but an ejection fraction over 55%. (Id.) This incident of bradycardia was a singular isolated event. (Id.) Plaintiff's primary physician noted that her irregular heartbeat and palpitations were well controlled with her new medication. (Id.) Routine follow-up visits with the cardiologist showed Plaintiff's blood pressure was well controlled and her heart rate and rhythm were normal. (Id.) Plaintiff reported episodes of chest pain or heaviness with shortness of breath, and she admitted that she was under a lot of stress in June 2010. (Id.) Despite these complaints, the exam showed a regular heart rate and rhythm, and a cardiolite GXT test was "normal." (Id.)
Premature ventricular contractions are a type of ectopic heartbeat. Ectopic heartbeats are small changes in an otherwise normal heartbeat that lead to extra or skipped heartbeats. See Medline Plus, http://www.nlm.nih.gov/medlineplus/ency/article/001100.htm
A bradycardia is a heart arrhythmia where the heart beats too slowly. An arrhythmia is a disorder of the heart rate (pulse) or heart rhythm, such as beating too fast (tachycardia), too slow (bradycardia), or irregularly. See PubMed Health, http://www.ncbi.nlm.nih.gov/pubmedhealth/ PMH0002091/
In February 2008, Plaintiff sought treatment for right leg pain, which revealed superficial thrombophlebitis, but no evidence of deep venous thrombosis. (Tr. 21).
Plaintiff testified that she experiences constant pain in her knees, which increases with activity such as household chores. (Tr. 22). She elevates her legs whenever she is sitting, because her knees continue to swell. (Id.) Plaintiff rates her knee pain, in severity (on a scale of 1 to 10), as a "5" with medication and an "8" without medication. (Id.) Plaintiff also complains of a stabbing pain in her lower back accompanied by numbness in her hips; she rates her back pain as a "6" with medication and an "8" without medication. (Id.) She treats her back pain with a heating pad. (Id.) Further, Plaintiff experiences neck pain which she rates as a "4" with medication and a "6" without medication. (Id.) On average, Plaintiff experiences migraines twice a month, which are brought on by loud noise and light, and tend to last 2 to 3 days at a time. (Id.) When experiencing one of these headaches, she must use prescription medication and must stay in a dark, quiet room. (Id.)
Plaintiff testified that she is only able to lift 10 pounds, stand or walk 20 to 30 minutes at a time, and sit 30 minutes at a time comfortably. (Tr. 23). She occasionally uses a cane to help her get around. (Id.) She cannot bend, kneel, or squat; she also experiences difficulty using stairs. (Id.) One of the side-effects of the pain medication is drowsiness. (Id.) Plaintiff can do a few household chores, such as laundry, and walk around the block for exercise. (Id.) She feels that she cannot work, because she cannot stand for extended period of time or bend without pain, and that physical therapy has not helped with her back symptoms. (Id.)
B.
First, Plaintiff alleges that the ALJ should have given more weight to one-time consultative examiner, Dr. David Herr.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone from reports of individual examinations, such as consultative examinations or brief hospitalizations. Id.
"The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Blakley, 581 F.3d at 406. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id. Further, the ALJ gets to decide how to weigh evidence. See 20 C.F.R. 404.1527(c)(1). Unfortunately, in this case, Plaintiff did not have the benefit of a treating physician.
Plaintiff attended a consultative examination with Dr. Herr in August 2011. (Tr. 493). Dr. Herr's assessment consisted in large part of checking boxes. Dr. Herr's report specifies that his findings were based on manual muscle testing, range of motion testing, orthopedic physical examination which focused on the physical medicine abnormalities, review of systems, and a medical interview. (Id.) He reported that Plaintiff's knees were symmetrical in appearance with no swelling, effusion, induration, or deformities, that her knee flexion was somewhat diminished, and that her extension was slightly abnormal. (Id.) Dr. Herr did not find evidence of muscle atrophy, fasciculation, or wasting. (Id.) Dr. Herr noted that some ongoing knee joint symptoms were foreseeable at the time of the examination, because Plaintiff had likely not fully recovered from her knee replacement surgeries. (Id.)
Dr. Herr diagnosed Plaintiff with morbid obesity; osteoarthritis, status post bilateral knee replacement; degenerative disc disease, cervical spine; degenerative disc disease, lumbar spine; facet arthropathy, cervical and lumbar spine. (Tr. 497). Dr. Herr found these impairments to be permanent, while treatment would only be palliative in nature. (Id.) Dr. Herr opined that Plaintiff had permanent impairments incompatible with gainful employment. (Id.)
Any treatment would be intended to improve Plaintiff's ability to independently conduct daily activities, personal affairs, and activities of daily living.
Whether a person is disabled is an issue "reserved to the Commissioner." See Warner v. Comm'r of Soc. Sec., 375 F. 3d 387, 390 (6th Cir. 2004). "A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will find that you are disabled." See 20 C.F.R. §404.1527(e)(1).
The ALJ's reliance on Dr. Hinzman's non-examining reviewing opinion, that Plaintiff could perform sedentary work, was proper because Dr. Herr's opinion was inconsistent with the objective evidence from his own physical examination. While more weight is generally given to an examining source than a consulting source, the Court must consider the totality of the circumstances. See generally, 20 C.F.R. 404.1527(c).
Dr. Hinzman concluded that Plaintiff had the capacity to lift 20 pounds occasionally and 10 pounds frequently, stand and/or walk about 6 hours in an 8 hour workday, sit about 6 hours in an 8 hour workday, push or pull within the lift/carry limits, occasionally climb ramps or stairs, never climb ladders, ropes, or scaffolds, occasionally balance, stoop, or crouch, and never crawl. (Tr. 24).
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations for the opinions, than are required to treating sources.Social Security Ruling 96-6p. It is important to emphasize that neither Dr. Hinzman nor Dr. Herr had a treatment relationship with the Plaintiff. Therefore, the Court must consider the objective medical evidence in greater detail. (Id.)
Dr. Herr's written statements contradict his own objective results. (Tr. 24). For example, the ALJ noted that there was "no basis for . . . a reaching limitation." (Tr. 25). Dr. Herr's examination showed that Plaintiff's upper extremities had normal range of motion, full strength in all muscle groups, no muscle atrophy, and normal grip strength. (Tr. 496). However, he limited Plaintiff to frequent reaching, allegedly due to "decreased range of motion in her spine and absent reflexes." (Tr. 488). Upon examination, Plaintiff's lower extremities had no muscle atrophy, no swelling, were symmetrical, and "ranges of motion of hips, knees, and ankles [were] normal bilaterally." (Tr. 496). Furthermore, in August 2011, Plaintiff had normal strength in her upper and lower extremities, normal sensation, no spinal tenderness, and no edema. (Tr. 23, 544-546). Dr. Herr restricted Plaintiff to "never climb stairs or ramps." (Tr. 489). However, he later determined that Plaintiff could "climb a few steps at a reasonable pace." (Tr. 491). These inconsistencies are indicative of Dr. Herr accepting Plaintiff's subjective complaints and checking boxes accordingly. As a result, the ALJ was entitled to discount Dr. Herr's assessment because it was not supported by adequate examination or objective medical evidence. Freudenberger v. Astrue, No. 1:09-CV-745, 2011 WL 1114407, at *7 (S.D. Ohio Feb. 28, 2011) ("where conclusions regarding claimant's functional capacity are not substantiated by objective evidence, the ALJ is not required to credit those conclusions.").
With only minor abnormalities and mostly normal objective findings and treatment notes, the ALJ properly noted that Dr. Herr's restrictions were "inconsistent with his own objective physical findings." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 530 (6th Cir. 1997). Moreover, no other physician thought Plaintiff was nearly as restricted as Dr. Herr. Accordingly, the ALJ gave proper weight to Dr. Herr in finding that Plaintiff did not have disabling impairments. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) ("If substantial evidence supports the Commissioner's decision, this Court will defer to that finding even if there is substantial evidence in the record that would have supported an opposite conclusion.").
The ALJ's decision to weigh differing opinions "is clearly not a basis for . . . setting aside the ALJ's factual findings." Mullins v. Sec'y of HHS, 836 F.2d 980, 984 (6th Cir. 1987).
C.
Next, Plaintiff alleges that the ALJ neglected his duty to re-contact the consultative examiner, Dr. Herr. SSR 96-5p provides that re-contacting an examining physician is an option, not a requirement. 20 C.F.R. §404.1520b. The provision dictates that the ALJ may make reasonable efforts to "recontact such sources for clarification when they provide opinions on issues reserved to the Commissioner and the bases for such opinions are not clear to us." Id. at 6. Therefore, the ALJ was not required to recontact Dr. Herr.
D.
Finally, Plaintiff alleges that the ALJ's RFC determination is not supported by substantial evidence. Specifically, Plaintiff argues that instead of basing his RFC on medical opinion, the ALJ based Plaintiff's RFC on his own lay opinion.
Plaintiff argues that Dr. Herr's opinion should have been given controlling weight. (Tr. 25). As explained supra in Section II.B, the ALJ properly determined that Dr. Herr's opinion was not entitled controlling weight, because he only examined Plaintiff on one single occasion, had no treatment relationship, and made inconsistent findings. (Id.)
In determining Plaintiff's RFC, the ALJ is required to consider Plaintiff's symptoms and the extent to which these symptoms could reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 CFR 404.1529, 416.929 and SSR 96-4p and 96-7p. (Tr. 22). This is a two-step process. (Id.) The first step requires a determination of whether there is an impairment that can be shown by medically acceptable clinical or laboratory diagnostic techniques that could reasonably be expected to produce the claimant's pain or other symptoms. (Id.) Second, once a physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms has been evidenced, then the ALJ must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning. (Id.) If the aforementioned factors are not substantiated by objective medical evidence, the ALJ must make a finding on the credibility of the statements based on a consideration of the entire case record. (Id.)
The ALJ limited Plaintiff's RFC to sedentary work because of her bilateral knee replacements. In making this determination the ALJ gave partial deference to Dr. Herr's opinion. (Tr. 24). Sedentary work with added postural limitations accommodates Plaintiff's neck and back symptoms. (Id.) The ALJ also imposed restrictions on Plaintiff's indoor work and noise level, because light and noise trigger her migraine headaches. (Id.) Plaintiff was also limited to simple, repetitive tasks, due to her complaints of pain, which can limit concentration, persistence, and pace. (Id.)
The ALJ is not bound to rely on a single medical opinion in determining an RFC. See Webb v. Comm'r of Soc. Sec., 368 F.3d 629, 633 (6th Cir. 2004) ("The ALJ is charged with the responsibility of evaluating the medical evidence and the claimant's testimony to form an assessment of [their] residual functional capacity.").
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Dr. Herr submitted a physical capacities questionnaire, where he indicated that Plaintiff could lift consistent with light level work and that she could stand and walk for a combined total of 5 hours per day, but sit for just 4 hours per day. Dr. Herr also indicated that Plaintiff could sit for 30 minutes at a time and stand or walk for just 10 minutes at a time. (Tr. 24). Dr. Herr precluded Plaintiff from performing most postural activities and limited her to frequent reaching. (Tr. 25). Dr. Herr's objective examination results, along with the other medical evidence of record suggests that Plaintiff had a good surgical result from her total knee replacements, without experiencing post-surgical complications. (Id.) Accordingly, the ALJ concluded that there was no basis to restrict Plaintiff to standing and walking for 10 minutes at a time, nor was there any basis to limit Plaintiff to sitting just 30 minutes at a time and for a total of 4 hours per day, because her back pain appears to be of "moderate level severity." (Id.) The ALJ concluded that these findings support a determination that Plaintiff maintains the ability to perform at least sedentary level work. (Id.) This Court agrees.
The ALJ's RFC adoption of a hybrid of restrictions set forth by the examining and reviewing physicians was proper. The ALJ has the discretion "to weigh all the evidence" and he did not abuse that discretion in this case. Collins v. Comm'r of Soc. Sec., 357 F.App'x 663, 668 (6th Cir. 2009). "Given the number of physicians and the variation in their opinions" any decision by the ALJ necessarily required him to "discredit the opinion of at least one physician." Gaskin v. Comm'r of Soc. Sec., 280 F.App'x 472, 476 (6th Cir. 2008). "The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion." Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). Accordingly, the ALJ's RFC is supported by substantial evidence.
The Court's duty on appeal is not to re-weigh the evidence, but to determine whether the decision below is supported by substantial evidence. Raisor v. Schweiker, 540 F. Supp. 686 (S.D. Ohio 1982). Substantial evidence supports the ALJ's finding that Plaintiff could perform at least sedentary work and therefore was not disabled. 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).
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing and the ALJ's decision is supported by substantial evidence.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Beverly Young was not entitled to disability benefits and supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter Judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED.
__________
Timothy S. Black
United States District Judge