Opinion
Case No. 3:13-cv-270
07-24-2014
ELNORA JACKSON, 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 not entitled to supplemental security income ("SSI") and disability insurance benefits ("DIB"). (See Administrative Transcript at Doc. 7-2 ("PageID") (PageID 49-59) (ALJ's decision)).
I.
On September 1, 2009, Plaintiff protectively filed applications for DIB and SSI, alleging that she had been disabled since May 1, 2009. (PageID 211-17). Plaintiff alleged disability due to degenerative disc disease, chronic obstructive pulmonary disease, asthma, bilateral knee arthritis, obesity, and depressive and anxiety disorders. (Id.) The agency denied her claims initially and upon reconsideration. (PageID 129-32, 134-40, 143-56).
An ALJ held a hearing on February 9, 2012, at which Plaintiff, a medical expert, and a vocational expert testified. (PageID 66-97). Based upon review and evaluation of the medical evidence in the record and Plaintiff's testimony at the hearing, the ALJ found that Plaintiff's degenerative disc disease, chronic obstructive pulmonary disease, asthma, bilateral knee arthritis, obesity, depressive and anxiety disorders were severe impairments. (PageID 51). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments severe enough, either singly or in combination, to meet or medically equal one of the impairments in the Listings. (PageID 51). The ALJ found Plaintiff had the RFC to perform light work with some limitations. (PageID 52-53). Accordingly, in a written decision dated February 12, 2012, the ALJ found that Plaintiff was not disabled. (PageID 46-65).
Residual functional capacity ("RFC") is defined as the most a claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a).
Plaintiff requested the Appeals Council to review the ALJ's decision. (PageID 4345). The Appeals Council denied review on June 18, 2013, making the ALJ's decision the final decision of the Commissioner. (PageID 37-42). Plaintiff then properly commenced this action in federal court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff is 44 years old. (PageID 57). Plaintiff completed tenth grade and does not have her GED. (PageID 70, 89). Plaintiff's past relevant work includes work as a waitress and a cashier. (PageID 57).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2013.(PageID 51-59).
2. The claimant has not engaged in substantial gainful activity since May 1, 2009, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: degenerative disc disease, chronic obstructive pulmonary disease, asthma, bilateral knee arthritis, obesity, depressive and anxiety disorders (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 the severity of 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 lift and carry 10 pounds frequently and 20 pounds occasionally sit for 6 hours in an 8 hour day with an at-will sit/stand option; stand and walk for 2 hours in an 8 hour day; frequently climb ramps and stairs, balance, stoop, couch, and bend; occasionally use foot and leg controls; never climb ladders, ropes, and scaffolding, kneel, or crawl; avoid concentrated chemicals, fumes, dust, danger, and mold; avoid all extreme temperatures, unprotected heights, hazardous machinery, and industrial vibrations; understand, remember, and carry out simple, repetitive, 1 to 2 step, unskilled tasks; interact occasionally with the general public and co-workers and frequently with supervisors; work with things rather than people;
stay on-task for 98% of the work day with no loss in productivity; and frequently respond to routine changes in the work setting.
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on June 3, 1970 and was 38 years old, which is defined as a younger individual age 18-44, on the alleged disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has a limited education and is able to communicate in Engligh (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, 416.969(a)).
11. The claimant has not been under a disability, as defined in the Social Security Act, from May 1, 2009, 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 SSI or DIB. (PageID 59).
On appeal, Plaintiff argues that the ALJ erred by: (1) mischaracterizing her daily activities; (2) finding that she can "stay on task for 98% of the work day with no loss in productivity"; (3) failing to properly consider the combination of her impairments; (4) failing to weigh the opinion of treating source Dr. Jeffries; and (5) failing to properly consider her credibility. The Court will address each alleged error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Claimant's testimony and background
Plaintiff is 5'5" tall and weighs 240 pounds. (PageID 77). Plaintiff gained nearly 40 pounds in the year prior to her hearing secondary to her inability to be active. (Id.) Since her disability, Plaintiff attempted to watch a nephew for a few days per week for extra money, but after only a couple of weeks, she had to tell her sister she could no longer care for him. (PageID 71).
Plaintiff explained that the biggest problem affecting her ability to work was her inability to sit or stand for any amount of time secondary to back and neck pain. (PageID 70). She estimated that she can sit for only 20 to 30 minutes at a time and can stand for only 15 minutes. (PageID 73). She can only walk about half a block and does not believe she could carry a gallon of milk for 10 paces. (PageID 73-75). Plaintiff cannot crouch or crawl. (PageID 74). She experiences pain and tightness in her neck and across her shoulder blades, which is exacerbated by reaching. (Id.) She often wakes up in pain and generally is able to sleep for only 4 hours each night. (PageID 80). This leads to nearly daily naps of up to 2 hours. (Id.)
Plaintiff also testified that she has problems with swelling in her feet and ankles. (PageID 75). The swelling also occurs in her calves and lower legs. (PageID 78). She has significant swelling episodes every couple of weeks. (PageID 78-79). To relieve the swelling, Plaintiff will wear compression hose, lie down, prop her feet up, and take medicine. (PageID 79). She uses a recliner or her sofa, or will lie in bed and elevate her feet above her heart. (Id.)
Plaintiff had two surgeries on her right knee with the most recent surgery being a knee replacement. (PageID 77-78). Her left knee is also in "very bad condition" with one prior surgery. (PageID 78). Her doctors have told her it also needs to be replaced. (PageID 78). Plaintiff was scheduled for a left knee replacement surgery a couple of weeks after her administrative hearing. (Id.)
Plaintiff suffers from headaches which her doctors believe are related to the degenerative discs in her neck. (PageID 70). She becomes short of breath when exposed to cold, heat, or humidity. (PageID 76). Physical activity also causes shortness of breath, particularly walking. (Id.) She has rescue inhalers which she uses every day. (PageID 79). She also has been prescribed a nebulizer and will use it from 0 to 4 times per day, depending on her symptoms. (Id.)
Plaintiff also suffers from anxiety. (PageID 70). She has difficulty being in a grocery store. (PageID 81). When she goes to the grocery store, she brings someone along for emotional support and to help her carry items. (PageID 80). She tried to get mental health treatment for these problems, but could not make it to appointments because of a lack of transportation. (Id.)
2. Medical evidence
Plaintiff's first right knee surgery was performed on September 8, 2006. (PageID 406-08). The surgery was performed because Plaintiff's knee symptoms (weakness, tenderness, swelling, stiffness, locking, limping) allegedly led to her losing her job. (PageID 414, 1044, 1067-72). Follow-up notes from Plaintiff's surgery reveal that she had little lasting relief from the procedure or subsequent joint injections and continued to struggle with considerable pain and swelling on a daily basis. (PageID 1055-61). A follow-up MRI on March 15, 2007 revealed the persistence of significant degeneration following the procedure. (PageID 1043).
The surgery involved surgical arthroscopy of the knee with partial medial and lateral meniscectomies, excision of a meniscal cyst, chondral abrasion, and the removal of extensive synovitis throughout the knee compartments. (PageID 406-08).
From late 2008 through her hearing in 2012, Plaintiff's primary care physician has been Dr. Jeffries. (PageID 494-566, 601-58, 746-65, 847-919, 1006-34). Dr. Jeffries' treatment notes recount Plaintiff's consistent complaints of neck, back, and bilateral knee pain. (Id.) They also intermittently reflect positive clinical signs and findings upon examination including tenderness, positive Romberg testing, and/or straight leg raise tests. (Id.) Dr. Jeffries prescribed various medications for Plaintiff's pain, including Vicodin, Flexeril, and Soma, and otherwise directed her care. (Id.)
On April 22, 2008, Plaintiff presented to the Sycamore Hospital emergency room with complaints of bilateral knee pain following a slip and fall. (PageID 334-36). She was diagnosed with bilateral knee contusions and discharged with a prescription for Vicodin. (Id.) Bilateral knee x-rays were performed and indicated osteoarthritic changes with trace effusion. (PageID 1041-42). On May 8, 2008, a right knee MRI was completed with results showing moderate osteoarthritis in multiple compartments, chronic degenerative change, and displaced meniscus tissue. (PageID 1039). In June 2008, Plaintiff underwent a physical therapy evaluation for her neck pain, which was reported to travel into her shoulder blades and arms with associated weakness and headaches. (PageID 437-38). She attended three physical therapy appointments before being discharged. (PageID 450-52).
An x-ray of Plaintiff's cervical spine conducted on February 24, 2009 was positive for degenerative disc disease. (PageID 473). A follow-up CT scan was performed on March 17, 2009. (PageID 469). The CT scan revealed degenerative changes at multiple levels. (Id.)
Most significantly, a circumferential disc/ostephyte complex was identified at C6-7 along with moderate left arthropathy at C5-6 through C7-T1. (PageID 469).
On April 1, 2009, Plaintiff returned to Sycamore Hospital, again with complaints of bilateral knee pain following a slip and fall. (PageID 330-32). Just over a week later, Plaintiff consulted with plastic surgeon Dr. Reeder regarding the possibility of a breast reduction to help mitigate her neck, back, and shoulder pain. (PageID 449). Dr. Reeder identified Plaintiff as an excellent candidate for a reduction procedure, but noted she would likely be at significant risk for wound healing problems. (Id.)
On April 11, 2009, the day after her consultation with Dr. Reeder, Plaintiff presented to the Sycamore emergency room, this time with complaints of shortness of breath. (PageID 319-21). She was diagnosed with an upper respiratory infection and asthmatic bronchitis before being discharged. (Id.) She returned on April 19, 2009 and was hospitalized for 5 days secondary to an acute exacerbation of her COPD. (PageID 342-65). She returned to the hospital on May 7, 2009 and was again hospitalized, ultimately being discharged on May 12, 2009. (PageID 366-89). Her respiratory infections had progressed to multilevel pneumonia with sepsis. (PageID 367). During the hospital stay, Plaintiff complained of chronic neck and back pain. (PageID 373). A chest CT scan was performed at a follow-up appointment on June 5, 2009, which was positive for small nodules in Plaintiff's lungs. (PageID 420). On April 14, 2009, an MRI of Plaintiff's left knee was also performed. (PageID 1037). It revealed a bone contusion, tears of both Plaintiff's medial and lateral meniscus, and small joint effusion. (Id.)
Following her hospitalizations, Plaintiff began treatment with pulmonary specialist Dr. Rubio. (PageID 956-58). Dr. Rubio's treatment notes from May through November 2009 reflect Plaintiff's consistent problems with shortness of breath, wheezing, and coughing with exertion. (Id.) Dr. Rubio affirmed Plaintiff's COPD diagnosis and prescribed medications for her breathing. (Id.) Dr. Rubio's examinations were also positive for edema in Plaintiff's bilateral lower extremities. (Id.)
Plaintiff underwent a left knee surgery on June 10, 2009. (PageID 418). This surgery followed several consultations regarding her persistent knee problems. (PageID 1051-54). The procedure, like her right knee procedure, involved surgical arthroscopy, meniscectomies, chondral abrasion, and a synovectomy. (PageID 418). Follow-up notes reveal that the surgery provided little to no relief for Plaintiff. (PageID 1046-48).
On November 4, 2009, Plaintiff attended a psychological examination with state agency consultant Dr. Halmi. (PageID 425-32). Even though the examination centered upon her mental health, Plaintiff discussed the impact of her physical conditions on her daily life explaining:
I have difficulty walking, standing, sitting, and performing everyday tasks without pain for even short periods of time. Breathing difficulties affect my everyday life. I am not able to lift or carry things because of my knees and back pain. My knees buckle and give out at any given time without any reason. I'm not able to walk or stand not even for short periods of time. While sitting for short periods of time, I experience pain. When walking short distances, my breathing is highly affected. As a result of losing my job and daily pain, I've become depressed, which has added stress and anxiety to my life.(PageID 426).
Dr. Halmi recorded that Plaintiff's posture was tense and her affect ranged from flat to depressed. (PageID 427-28). Plaintiff was tearful throughout the interview, reporting symptoms including loss of interest in activities, chronic fatigue, excessive worry, anxious spells, psychomotor retardation, and concentration problems. (PageID 428). As part of his examination, Dr. Halmi also summarized Plaintiff's daily activities in detail. (PageID 427). Ultimately, Dr. Halmi diagnosed Plaintiff with major depressive disorder and an anxiety disorder. (PageID 430). In terms of functional impairment, Dr. Halmi opined that Plaintiff is moderately limited in her ability to relate to others and in her ability to withstand the stress and pressure associated with day-to-day work activities. (PageID 431-32).
On November 19, 2009, treating family physician, Dr. Jeffries, completed a form regarding Plaintiff's physical capabilities. (PageID 782). Dr. Jeffries opined that Plaintiff is able to sustain less than two hours of combined sitting or standing given an eight hour period. (Id.) He further opined that Plaintiff lacks the functional capability to stand or walk as part of sustained work activity and should lift only 10 pounds. (Id.) Ultimately, Dr. Jeffries released Plaintiff for part-time employment. (Id.)
Another cervical spine x-ray was performed on November 20, 2009. (PageID 686). Once again, degenerative changes throughout Plaintiff's cervical spine were evidenced. (Id.) Thoracic spine x-rays were also completed and were similarly positive for arthritis. (Id.) On November 24, 2009, agency consultant Tanseem Khan, Ed.D., reviewed Plaintiff's file and offered an opinion regarding her mental health and related functional limitations. (PageID 567-84). Dr. Khan affirmed Dr. Halmi's diagnoses and opined that Plaintiff is moderately limited in her ability to maintain social functioning, concentration, persistence, and pace. (PageID 567-77). In Dr. Khan's opinion, Plaintiff's allegations appeared credible and consistent with the evidence he reviewed. (PageID 583). Ultimately, he assigned great weight to the opinions of Dr. Halmi and concluded that Plaintiff has the capacity for simple and multistep tasks in a routine and predictable environment where interaction with others is occasional and superficial. (Id.) These conclusions were later affirmed by another reviewer, Dr. Collins. (PageID 950).
X-rays of Plaintiff's bilateral knees were completed on December 15, 2009. (PageID 1036). Severe joint compartment narrowing was present in the right knee with similar moderate findings in the left knee. (Id.) A right knee MRI was performed that same day showing advanced osteoarthritic changes, joint effusion, and a complex tear of Plaintiff's medial meniscus. (PageID 1035). On December 30, 2009, Plaintiff returned to the surgeon who performed her June 2009 surgery. (PageID 1045). In light of her symptoms and imaging, Plaintiff's surgeon suggested that she consult with surgeon Dr. Fada regarding a total knee replacement. (Id.)
Another consultant, Dr. McCloud, reviewed Plaintiff's file on January 15, 2010 to appraise her physical functioning. (PageID 585-92). Dr. McCloud concluded that Plaintiff was capable of performing light work with reduced postural requirements and without any appreciable standing limitations. (Id.) Dr. McCloud's analysis focused almost entirely upon Plaintiff's COPD, mentioning her knee impairments only in passing. (PageID 586-90). Dr. McCloud also discounted Plaintiff's reported symptoms due to her being "adequate and independent" in her activities of daily living. (PageID 590).
On February 3, 2010, Plaintiff consulted with orthopedic surgeon, Dr. Fada. (PageID 725). After conducting an examination and reviewing Plaintiff's imaging, Dr. Fada concluded that Plaintiff was suffering from "end-stage osteoarthritis of her right knee" and recommended total replacement. (Id.) He also noted that Plaintiff's knee problems were bilateral. (PageID 963). Plaintiff's right knee total replacement surgery was performed by Dr. Fada on February 23, 2010. (PageID 727-31). Plaintiff was discharged from the procedure into home health care and was directed to use a walker at all times while recovering from the surgery. (PageID 730-36, 792). She was also told: "For swelling of the legs, elevate your legs on pillows so your toes are above the heart." (Id.) In addition to home health care, Plaintiff's right total knee replacement was followed by multiple weeks of physical therapy. (PageID 936-37, 968-1002). During physical therapy, Plaintiff's right knee improved, but her left deteriorated. (Id.) At a follow-up appointment on April 7, 2010, Dr. Fada noted that despite ongoing pain, Plaintiff's knee was healing well and her surgical prosthesis was in good alignment. (PageID 785).
On May 24, 2010, agency consulting reviewer, Dr. Mamaril, reviewed Plaintiff's file. (PageID 940). Dr. Mamaril concluded that there was not enough evidence regarding the long-term effects of Plaintiff's right knee replacement at the time of his review to adequately appraise her physical capacity. (Id.) The very next day, Plaintiff's file was reviewed by another consultant, Dr. Blumenfeld. (PageID 941). Dr. Blumenfeld concluded that Plaintiff has no ongoing severe breathing impairment, but nevertheless affirmed Dr. McCloud's prior functional assessment. (Id.) Dr. Klyop, another agency consultant, conducted a review on June 25, 2010. (PageID 942-49). Dr. Klyop opined that Plaintiff had an RFC which largely mirrored that provided by Dr. McCloud prior to Plaintiff's knee replacement surgery. (Id.)
On December 8, 2010, upon a referral from Dr. Jeffries, Plaintiff consulted with a physical medicine and rehabilitation specialist, Dr. Porter. (PageID 1004-05). Plaintiff complained to Dr. Porter of significant pain in her spine, shoulders, and knees, with occasional cramping in her low back. (Id.) She explained that her knee pain was limiting weight bearing and she had been getting very little sleep. (Id.) Dr. Porter's examination was remarkable for crepitus in Plaintiff's bilateral knees, limited hip range of motion, give-way weakness, and multiple trigger points. (Id.) Dr. Porter recommended medications. (Id.)
On May 27, 2011, Plaintiff was seen at the Sycamore Hospital emergency room for bilateral extremity swelling. (PageID 1113-16). She was diagnosed with peripheral edema. (Id.) Similarly, on June 14, 2011, Plaintiff presented to the Miami Valley Hospital emergency room with significant swelling in her legs and other complaints. (PageID 1075-90). Both tenderness and swelling were present in Plaintiff's left knee upon examination. (PageID 1082). Plaintiff was provided medication and instructed to establish care with a primary care physician. (PageID 1082-83).
Plaintiff returned to Dr. Fada for an annual follow-up for her right knee replacement on July 5, 2011. (PageID 1091). While Plaintiff's right knee appeared to be doing well, Dr. Fada concluded that Plaintiff's left knee had reached "end stage osteoarthritis" and needed to be replaced. (Id.) Plaintiff planned to schedule the replacement procedure with Dr. Fada in the near future. (Id.)
In August 2011, Plaintiff received mental health treatment through South Community. (PageID 1217-36). Plaintiff was diagnosed with severe recurrent depression, anxiety, and assigned a GAF score of 40. (PageID 1220, 1231). South Community's records reflect symptoms including poor sleep, low energy, irritability, panic attacks poor concentration, and suicidal ideation. (PageID 1217-36).
A 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. A score of 31-40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.
In November 2011, Plaintiff established care with the Sycamore Primary Care Group. (PageID 1237-44). Plaintiff's diagnoses at Sycamore included COPD, a chronic pain syndrome, osteoarthritis, and leg swelling. (PageID 1237).
Consulting medical expert Dr. Mond testified at Plaintiff's hearing via telephone. (PageID 82). Dr. Mond identified Plaintiff's impairments as including significant obesity, asthma or COPD, hepatitis B, back and neck degeneration with associated pain, and internal derangement of her bilateral knees. (PageID 83-85). Dr. Mond also explained that Plaintiff suffered from "significant psychiatric problems," but as an internal medicine specialist he was not qualified to address them. (PageID 83). Dr. Mond believed Plaintiff's knee impairments represented her most significant problem. (PageID 84). Ultimately, Dr. Mond testified that none of Plaintiff's impairments met or equaled any of Social Security's listings. (PageID 85). He also alleged and RFC which reflected similar physical limitations to those ultimately adopted by the ALJ. (PageID 86). Dr. Mond did not address time-off task or similar limitations. (PageID 82-86). Dr. Mond placed a restriction on Plaintiff's ability to sit in addition to a 6 hour time limit, but the nature of this limitation is unclear from the hearing transcript. (PageID 86) ("[S]itting six hours with suitable [INAUDIBLE].")
3. The vocational expert's testimony
When posed a hypothetical worker largely mirroring the assigned RFC, the vocational expert ("VE") testified that such a worker could not perform Plaintiff's past relevant work, but could perform a substantial number of other jobs in the national economy. (PageID 89-94). The VE went on to testify, however, that a worker who needed to elevate her feet even only six inches during the workday to remove weight bearing would be unable to perform the jobs he cited absent a special accommodation. (PageID 95). The VE further opined that time off-task amounting to 10% of a workday or more would not be tolerated in unskilled work. (PageID 96).
4. The ALJ's decision
The ALJ found that Plaintiff suffers from the severe impairments of degenerative disc disease, chronic obstructive pulmonary disease, asthma, bilateral knee arthritis, obesity, a depressive disorder, and an anxiety disorder. (PageID 51). However, he determined that none of these impairments, singly or in combination, meet or equal the severity of any of the Commissioner's listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (PageID 51-52).
The ALJ concluded that Plaintiff's allegations of disabling symptoms are undermined and rendered less than credible by her "broad spectrum" of daily activities. (PageID 55). The ALJ also hypothesizes that because Plaintiff worked "sporadically" prior to her alleged onset date, it is reasonable to question whether or not her current inability to work is actually due to her impairments. (PageID 56). Finally, the ALJ assigns significant weight to the conclusions of the state agency's consulting physicians, as well as testifying expert Dr. Mond. (Id.)
Ultimately, the ALJ determined that Plaintiff is capable of performing a significant number of jobs in the national economy. (PageID 58-59). This results in a finding that Plaintiff has not been under a disability from May 1, 2009 through the date of his decision. (PageID 59).
B.
First, Plaintiff argues that the ALJ improperly found that she can "stay on-task for 98% of the work day with no loss in productivity."
The ALJ must resolve the conflicts in the evidence and incorporate only the credible limitations of record in the RFC finding. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1234-35 (6th Cir. 1993). The ALJ has the responsibility of deciding the weight to be given to the medical source opinions. 20 C.F.R. §§ 404.1527, 404.1545, 404.1546(c). "An ALJ does not improperly assume the role of a medical expert by weighing the medical and non-medical evidence before rendering an RFC finding." Coldiron v. Comm'r of Soc. Sec., 391 F. App'x 435, 439 (6th Cir. 2010).
Plaintiff reported having problems concentrating to Dr. Halmi. However, Dr. Halmi opined that Plaintiff's ability to maintain attention to perform simple, repetitive tasks was only mildly impaired by her depression and anxiety, which is consistent with the ALJ's RFC. (PageID 52-53, 431). There is no evidence which compromises or undermines the ALJ's finding that the Plaintiff can stay on task. Accordingly, the ALJ fulfilled his responsibility of assessing Plaintiff's RFC by considering all of the relevant evidence, including the objective medical evidence and any opinions from acceptable medical sources. 20 C.F.R. §§ 404.1513, 404.1520, 404.1526(d), 404.1527, 404.1545, 404.1546(c).
C.
Next, Plaintiff maintains that the ALJ failed to properly consider the combination of her impairments.
The ALJ specifically stated in his decision that Plaintiff "did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments." (PageID 51). This statement clearly reflects consideration of Plaintiff's impairments in combination. Gooch v. Sec'y of Health & Human Servs., 833 F.2d 589, 592-92 (6th Cir. 1987), cert. denied, 484 U.S. 1075 (1988) (holding that the ALJ considered claimant's impairments in combination where the ALJ referred to "a combination of impairments" in finding that the claimant did not meet the requirements of a listed impairment and when the ALJ referred to the claimant's "impairments" in the plural). In fact, the ALJ found Plaintiff's obesity was a severe impairment in his decision and explicitly factored Plaintiff's obesity into the RFC finding. (PageID 54, 56).
Accordingly, the ALJ considered the combination of Plaintiff's impairments.
E.
Plaintiff also alleges that the ALJ failed to properly weigh the opinion of the physicians.
Generally, the medical opinions of treating physicians are afforded greater deference than those of non-treating physicians. Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007). "Because treating physicians are 'the medical professionals most able to provide a detailed, longitudinal picture of [a 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,' their opinions are generally accorded more weight than those of non-treating physicians." Id. at 242 (quoting 20 C.F.R. § 416.927(d)(2)). A treating physician's opinion is given "controlling weight" if it is supported by "medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the case record." Id.
When a treating source opinion is not entitled to controlling weight, the regulations provide that the ALJ must consider several factors when determining what weight to give the opinion. 20 C.F.R. § 404.1527(d)(2), 416.927(d)(2). The factors include: the examining relationship, the treating relationship (its length, frequency of examination, and its nature and extent), the supportability by clinical and laboratory signs, consistency, specialization, and other enumerated criteria. 20 C.F.R. § 404.1527(d), 416.927(d).
In November 2009, Dr. Jeffries completed a form for the Ohio Job and Family services indicating that Plaintiff could perform a range of less than sedentary exertion with several additional extreme limitations to last only between 9 and 11 months. (PageID 780-81). On this same date, Dr. Jeffries completed an Ability to Work form, releasing Plaintiff to part-time work. (PageID 782). In an undated form to the same organization, Dr. Jeffries made a similar opinion, but indicated that Plaintiff's limitations would only last thirty days to nine months. (PageID 783-84).
Although the ALJ did not discuss Dr. Jeffries in his decision, his failure to do so was harmless error because Dr. Jeffries' opinions do not establish that Plaintiff was disabled under the Social Security Act. Troxell v. Astrue, No. 1:10cv755, 2012 U.S. Dist. LEXIS 11556, at *32 (S.D. Ohio Jan. 31, 2012) (doctor "opined that the limitations on [the claimant's] functional capacity would last between nine and eleven months, which is less than the twelve month durational requirement for a finding of disability under the Act .... Therefore, even if the ALJ failed to accord any weight to this opinion, [the doctor's] assessment would not establish that [the claimant] was disabled under the Act in any event").
Plaintiff also maintains that the ALJ did not properly consider consultative examiner Dr. Halmi. However, while the ALJ did not mention Dr. Halmi by name, the ALJ did address Dr. Halmi's opinion in his decision. Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 157 (6th Cir. 2009) ("[a]lthough the ALJ may not substitute his opinion for that of a physician, he is not required to recite the medical opinion of a physician verbatim in his residual functional capacity finding."). Even if the ALJ adopted Dr. Halmi's opinion that Plaintiff had moderate impairments in her ability to withstand stress and pressure, to satisfy Listing 12.04B, the mental impairment must result in at least two of the following: marked restriction of activities of daily living; marked difficulties in maintaining social functioning; marked difficulties in maintaining concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. There is no evidence that Plaintiff had moderate impairments in two of these areas.
See also Nelson v. Comm'r of Soc. Sec., 195 F. App'x 462, 472 (6th Cir. 2006) (finding that even though the ALJ failed to meet the letter of the good-reason requirement, the ALJ met the goal by indirectly attacking the consistency of the medical opinions).
Finally, Plaintiff argues that the ALJ did not properly consider the opinions of the state agency non-examining consultants. However, the ALJ specifically stated that he considered the totality of the evidence, including records not available to the state agency consultant at the time of the assessment, and determined that the findings of the state agency consultants were entitled to significant weight as they were generally consistent with Plaintiff's current level of functioning. (PageID 56). It is Plaintiff's burden to submit sufficient evidence establishing disability and Plaintiff simply failed to meet this burden. Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001). Accordingly, the ALJ properly considered and weighed the views of all of the physicians and the evidence in arriving at Plaintiff's RFC.
F.
Finally, Plaintiff alleges that the ALJ mischaracterized her daily activities and that his credibility finding is inadequate and unsupported.
"The ALJ's credibility determinations are entitled to great deference because the ALJ has the unique opportunity to observe the witness's demeanor while testifying." McFlothin v. Comm'r of Soc. Sec., 299 F. App'x 516, 523 (6th Cir. 2008).
Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) ("an ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability.").
Plaintiff contends that the ALJ mischaracterized her daily activities by only mentioning the activities referenced in Dr. Halmi's report. However, Plaintiff does not dispute that she reported these daily activities to Dr. Halmi. Thus, the ALJ did not err in considering these activities in evaluating her credibility. 20 C.F.R. § 404.1529(c)(3)(i) (authorizing an ALJ to consider activities when evaluating functional limitations). Just because the ALJ did not expressly address all of the activities Plaintiff testified about at the hearing, does not mean the ALJ did not consider them. Significantly, the ALJ found Plaintiff's testimony not entirely credibly due to several reasons, not just her daily activities.
Plaintiff reported that she takes care of her personal needs, drives, completes some household chores, reads, writes, handles money, gets her children to school, attends doctor's appointments, goes to church, plays with her son, and helps with homework. (PageID 55). Plaintiff also reported socializing with friends, neighbors, and family. (Id.)
For example, the ALJ assessed Plaintiff's longitudinal treatment. (PageID 55). See 20 C.F.R. § 404.1529(c)(2) ("Objective medical evidence of this type is a useful indicator to assist us in making reasonable conclusions about the intensity and persistence of your symptoms and the effect those symptoms, such as pain, may have on your ability to work."). Additionally, the ALJ noted that a review of Plaintiff's work history shows that Plaintiff worked sporadically prior to the alleged disability onset date, which raises a question as to whether her continuing unemployment is actually due to medical impairments. (PageID 56). Accordingly, the ALJ's findings regarding Plaintiff's credibility, subjective complaints of pain, and other symptoms are supported by substantial evidence.
While Plaintiff may disagree with the ALJ's decision, his decision is clearly within the "zone of choices" afforded to him. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) ("The substantial evidence standard allows considerable latitude to administrative decision makers. It presupposes that there is a zone of choice within which the decision makers can go either way, without interference."). 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. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). Accordingly, the Court finds that the ALJ's decision is supported by substantial evidence.
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 Elnora Jackson was not entitled to supplemental security income or disability insurance benefits, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, and as no further matters remain pending for the Court's review, this case is CLOSED in this Court.
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Timothy S. Black
United States District Judge