Opinion
Case No. 3:13-cv-361
01-26-2015
CHARLENE KAYLOR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE IS CLOSED IN THIS COURT
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to disability insurance benefits ("DIB") and supplemental security income ("SSI"). (See Administrative Transcript ("PageID") 69-87 (ALJ's decision)).
I.
Plaintiff filed applications for DIB and SSI in February 2007, alleging disability beginning April 30, 2005, due to back pain, migraines, problems with her legs, obesity, depression, and anxiety. (PageID 237-81, 320). Plaintiff's applications were denied at the initial and reconsideration levels. (PageID 183-205). On December 9, 2009, Plaintiff testified at an administrative hearing. (PageID 96-117). The ALJ issued a decision on March 12, 2010 denying Plaintiff's applications for DIB and SSI. (PageID 161-72). Subsequently, however, the Appeals Council granted Plaintiff's request for review, vacated the ALJ's decision, and remanded the case for further proceedings. (PageID 178-81).
Plaintiff requested that her alleged onset date be amended to July 5, 2005 during her second hearing. (PageID 121). However, it does not appear that the date was ever amended in the record.
The ALJ held another hearing on June 18, 2012. (PageID 120-53). In a decision dated July 27, 2012, the ALJ found that Plaintiff was not disabled at any time since her alleged onset date through the date of the decision and that she possessed the residual functional capacity to perform sedentary work with restrictions. (PageID 69-87). The Appeals Council denied Plaintiff's request for review, making the ALJ's July 2012 decision the final decision of the Commissioner. (PageID 56-59). Plaintiff seeks judicial review of the decision under 42 U.S.C. §§ 405 (g) and 1383(c)(3).
A claimant's residual functional capacity ("RFC") is an assessment of "the most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1).
Plaintiff is 42 years old and has an eighth grade education. (PageID 121, 124). Prior to the alleged disability, Plaintiff worked full time as a wing mailer machine operator. (PageID 147).
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.
2. The claimant has not engaged in substantial gainful activity since April 30, 2005, the alleged disability onset date (20 C.F.R. 404.1571 et seq., and 416.971 et seq.).
3. The claimant has the following severe impairments: obesity; chronic low back pain; headaches; and depression and anxiety (20 C.F.R. 404.1250(c) and 416.920(c)).(PageID 71-86).
4. The claimant does not have an impairment or combinations of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).
5. The undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) subject to: no climbing of ladders, ropes, or scaffolds; occasional bending; occasional twisting at the waist; no pushing or pulling; no exposure to hazards; the opportunity to alternate between sitting and standing at 30-minute intervals; no complex or detailed instructions due to a limited education; low stress jobs defined as no production quotas; simple, one- or two-step tasks requiring little, if any, concentration; and limited contact with coworkers, supervisors and the general public.
6. The claimant is unable to perform any past relevant work (20 C.F.R. 404.1565 and 416.965).
7. The claimant was born on March 2, 1972, and was 33 years old, which is defined as a "younger individual age 18-44," on the alleged disability onset date (20 C.F.R. 404.1563 and 416.963).
8. The claimant has a "limited" education and is able to communicate in English (20 C.F.R. 404.1564 and 16.964).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CRF 404.1568 and 416.968).
10. Considering her age, education, work experience, and residual function capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 C.F.R. 404.1569, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined by the Social Security Act, from April 30, 2005, through the date of this decision (20 C.F.R. 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. (PageID 86).
On appeal, Plaintiff argues that: (1) the ALJ erred in rejecting the opinions of Plaintiff's treating physicians; and (2) the ALJ erred in finding that Plaintiff was not credible in her allegations of disabling symptoms. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1. Physical Impairments
Prior to Plaintiff's onset date, she was seen by Dr. Petre Udrea, a neurologist, on June 10, 2004, at the request of her treating family physician, Dr. Gardner. (PageID 402-404). Plaintiff was seen for migraines. Plaintiff alleges that she experienced migraines during the previous two years and that they had worsened in the last year. (Id.) Plaintiff alleges that these migraines would last one to two days and that at the time of treatment by Dr. Udrea, she was experiencing migraines twice per week. (Id.) Plaintiff also alleges associated neck and shoulder pain, nausea, vomiting, photophobia, and phonophobia. (Id.) On April 28, 2004, a brain MRI showed "very tiny hyperintense T2 foci located in the deep cerebral matter." (PageID 403, 406). Dr. Udrea increased Plaintiff's Topamax and told her to continue taking Relpax. (PageID 404).
Photophobia is an abnormal, severe sensitivity to light, commonly associated with migraines.
Phonophobia is an abnormal sensitivity to noise or sound, also commonly associated with migraines.
Plaintiff underwent lumbar x-rays on January 14, 2004, which demonstrated L5-S1 facet arthrosis. (PageID 407). Dr. Gardner ordered a lumbar MRI on March 11, 2005. It was within normal limits. (PageID 405). On February 3, 2006, Dr. Gardner completed a Basic Medical Form. (PageID 435). On exams, Dr. Garner observed edema of Plaintiff's left leg, decreased range of motion, spasms, and tenderness, as well as migraines. (Id.) Plaintiff weighed three hundred twenty pounds. (Id.) The diagnosis was chronic lumbar back pain, hypertension, migraines, depression, anxiety, and morbid obesity. (Id.) Dr. Gardner opined that Plaintiff's condition was deteriorating. (Id.)
Facet arthrosis is degenerative changes to the joint structures that connect vertebrae to one another.
Edema is an excess of watery fluid that has collected in the cavities and tissues of the body, most commonly caused by poor nutrition or excess salt in the diet, certain blood pressure medications, or malfunction of the heart or kidneys.
On the Basic Medical Form, Dr. Gardner indicated that Plaintiff was capable of standing or walking for two to four hours, and uninterrupted for fifteen to thirty minutes, and she could sit for two to four hours, and uninterrupted for fifteen to thirty minutes. (PageID 436). Dr. Gardner opined that Plaintiff could occasionally lift or carry up to five pounds and that she was markedly limited in her ability to push or pull and use repetitive foot movements. (Id.) Dr. Gardner indicated that Plaintiff was extremely limited in her ability to bend and moderately limited in her ability to reach. (Id.) Accordingly, Dr. Gardner found that Plaintiff was unemployable for twelve months or more. (Id.)
Dr. Gardner completed another work assessment on the same day and assessed Plaintiff's condition as severe. (PageID 437). Dr. Gardner found that Plaintiff could: stand or walk for one half to two hours out of eight; sit for one half to two hours out of eight; alternate positions for one half to two hours out of eight; occasionally lift up to ten pounds; could not push or pull or perform repetitive foot movements. (Id.) Dr. Gardner declined to release Plaintiff to even part-time work. (Id.)
Dr. Gardner completed another Basic Medical Form on January 23, 2007. (PageID 433-434). Dr. Gardner observed that Plaintiff had edema of her left leg, decreased range of motion in her spine, muscle spasms, and tenderness. (Id.) At that time, Plaintiff weighed three hundred fifty seven pounds. (Id.) Dr. Gardner's diagnosis was chronic lumbar back pain, degenerative joint disease, hypertension, migraines, depression, anxiety, and morbid obesity. (Id.) Dr. Gardner opined that Plaintiff's health was deteriorating. (Id.) Dr. Gardner indicated on the Basic Medical Form that Plaintiff could stand or walk for two hours out of eight, and uninterrupted for twenty minutes, sit for six hours out of eight, and uninterrupted for less than twenty minutes. (Id.) Dr. Gardner further opined that Plaintiff could lift or carry up to five pounds. (Id.) Dr. Gardner indicated that Plaintiff was markedly limited in her ability to push or pull, extremely limited in her ability to bend, and moderately limited from reaching. (Id.) Dr. Gardner assessed that Plaintiff was unemployable for twelve months or more. (Id.)
On March 3, 2007, Dr. Gardner completed a questionnaire for the State agency. (PageID 438-440). He had treated Plaintiff since July 2003 and had last treated her on February 19, 2007. (Id.) On clinical exams, Dr. Gardner stated that Plaintiff had a reduced range of motion of her lumbar spine with tenderness. (Id.) X-rays showed degenerative join disease. (Id.) All of her impairments were aggravated by her morbid obesity. (Id.) Plaintiff's weight at the time of this questionnaire was three hundred fifty seven pounds. (Id.) Plaintiff made no effort to lose weight and had actually gained forty pounds in the past year. (Id.) Dr. Gardner stated "Pt. can perform simple, non-stressful tasks in understanding environment [with] ability to alternate sit/stand & walk short distances. Cognitive function adequate for simple tasks." (PageID 439).
Dr. Gardner submitted his office notes dated November 11, 2005 through July 11, 2007. (PageID 472-481). Plaintiff was treated for meralgia paresthetica, thigh pain, chronic low back pain, left knee pain, depression, anxiety, migraines, and hypertension. (Id.) Exams revealed tenderness of anterior left thigh, edema, ankle edema, muscle spasms, decreased range of motion, and weight of over three hundred pounds. (Id.) On January 30, 2008, Dr. Gardner completed another Basic Medical Form. (PageID 492-493). Dr. Gardner stated that Plaintiff had left leg edema, reduced range of motion of her lumbar spine, spasms, and tenderness. (Id.) X-rays showed degenerative joint disease of the lumbar spine. (Id.) Dr. Gardner stated that Plaintiff could: stand or walk for one to two hours out of eight, and for fifteen to twenty minutes uninterrupted; sit for four hours out of eight, and for fifteen to twenty minutes uninterrupted; frequently and occasionally lift or carry up to five pounds. (Id.) Dr. Gardner observed that Plaintiff was markedly limited in her ability to push or pull, extremely limited in her ability to bend and perform repetitive foot movements, and moderately limited in her ability to reach. (Id.) Dr. Gardner opined that Plaintiff was unemployable for twelve months or more. (Id.) His treatment notes show that Plaintiff was treated for depression, anxiety, migraines, and lumbar pain. (PageID 494-497). On exams, Plaintiff had reduced range of motion, weight over three hundred and fifty pounds, edema, and tenderness. (Id.) Plaintiff slept in a recliner. Plaintiff was crying and stressed out on August 19, 2008, because she was trying to take care of her friend's three year old son. (PageID 512). On December 30, 2008, an MRI revealed degenerative disc disease and arthritis. (PageID 511, 514).
Meralgia paresthetica is a condition caused by pressure on the lateral femoral cutaneous nerve, which supplies sensation to the skin on the outer thigh, characterized by numbness, tingling, and/or burning pain in the skin in that area. This is most often caused by obesity or weight gain, but can also result from local trauma or diseases such as diabetes.
Dr. Gardner completed interrogatories on July 22, 2008. (PageID 501-508). He stated that as Plaintiff's family physician, he treated Plaintiff for chronic low back pain, hypertension, migraine headaches, morbid obesity with a BMI of 53, depression and anxiety. (Id.) He stated that owing to the combination of her physical and emotional impairments, Plaintiff was unable to perform work activity. (Id.) Dr. Gardner opined that Plaintiff was unable to be prompt and regular in attendance; respond appropriately to supervision, co-workers, and customary work pressures; withstand the pressures of meetings, normal standards of work productivity and work accuracy without significant risk of physical or psychological decompensation or worsening of her physical and mental impairments; sustain attention and concentration and attention for extended periods; perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; and complete a normal work day or work week without interruption from psychologically and/or physically based symptoms and perform at a consistent pace without unreasonable numbers and length of rest periods. (Id.)
Dr. Gardner stated that Plaintiff's morbid obesity affected her ability to do any sustained physical activity. (PageID 501-508). Secondary to her morbid obesity, Dr. Gardner indicated that Plaintiff suffered from low back pain which was not expected to improve. (Id.) Although Plaintiff was under psychiatric care, Dr. Gardner opined that Plaintiff was psychiatrically unstable. (Id.) He also opined that she could occasionally lift or carry five to seven pounds and frequently two to five pounds; stand or walk for one to two hours out of eight and uninterrupted for one quarter to one third an hour; sit for four hours out of eight and for one quarter to one third uninterrupted. (Id.) Dr. Gardner stated that Plaintiff's morbid obesity supported that finding. (Id.) Dr. Gardner indicated that Plaintiff was never to climb, balance, crouch, kneel, or crawl, but that she could occasionally stoop. (Id.) Plaintiff was limited by her morbid obesity and degenerative joint disease, both of which impacted her ability to reach and push or pull. (Id.)
Dr. Gardner considered Plaintiff's physical endurance to be poor and restricted her from heights, moving machinery, chemicals, temperature extremes, dust, noise, fumes, and humidity. (PageID 501-508). He stated that Plaintiff was unable to move fast enough to avoid injury owing to her morbid obesity. (Id.) As a result of her psychiatric problems, Dr. Gardner opined that she could not handle stress or sustained concentration. (Id.) Dr. Gardner stated that Plaintiff might be able to perform sedentary work activity on a part-time basis in a non-stressful, non-demanding, and minimally physically demanding job. He predicted that Plaintiff was likely to be absent more than three times a month. (Id.)
After the Appeals Council's remand, additional evidence was submitted to the ALJ. Dr. Gardner completed a Basic Medical Form on November 16, 2010, stating that Plaintiff had reduced lumbar range of motion, spasms, and edema. (PageID 516). Lumbar spine x-rays showed degenerative disc disease. (PageID 514). Dr. Gardner opined that Plaintiff could stand or walk for two hours out of eight, and uninterrupted for fifteen to twenty minutes; could sit for six hours, and uninterrupted for twenty minutes; could lift or carry up to five pounds frequently and occasionally. (PageID 516). He stated that Plaintiff was markedly limited in her ability to push or pull and perform repetitive movements, extremely limited in her ability to bend, and moderately limited in her ability to reach. (Id.) In light of these findings, Dr. Gardner asserted that Plaintiff was unemployable for twelve months or more. (Id.)
2. Psychological Impairments
Plaintiff started treatment at Advanced Therapeutics on August 29, 2005. (PageID 414-415). She was referred by her family physician, Dr. Gardner. Plaintiff reported that her parents divorced when she was four and her mother had been married six times. (Id.) Plaintiff was the oldest of four children and she had her first child at age thirteen. (Id.) She had been separated from her husband since 1989. (Id.) She gave a history of domestic abuse. (Id.) She had five sons and her oldest son, age eighteen, resided with his maternal grandfather. Plaintiff lived with her four other children. (Id.) Her boyfriend died in a fire in 1998. (Id.)
On the mental status exam, Plaintiff had anhedonia, tearfulness, anxiety, anger, depression, low energy, impaired judgment, and an impaired ability to make reasonable life decisions. (PageID 416). The diagnosis was dysthymic disorder and PTSD. (PageID 415). Plaintiff underwent an additional psychiatric evaluation on September 3, 2005. She was observed to be depressed and anxious. (PageID 412). The diagnosis was major depression (recent) and PTSD. (Id.)
Anhedonia is a psychological condition characterized by the inability to experience pleasure in acts which normally produce it.
Dysthymic disorder is a form of chronic depression in which patients regularly experience low moods. It is generally considered more mild than other depressive disorders, but may last two years or longer.
PTSD (post-traumatic stress disorder) is a mental health disorder characterized by flashbacks, nightmares, and severe anxiety following some types of traumatic life event.
Plaintiff's GAF score was 51. (PageID 413). She was prescribed Effexor, Cymbalta, Trazadone, and Alivan. (Id.)
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).
On February 1, 2006, Plaintiff's mental health therapist from Advanced Therapeutics completed a Basic Medical Form. (PageID 417-418). At the time of this evaluation, Plaintiff was diagnosed with Major Depressive Disorder (recurrent and moderate) and PTSD. (Id.) Plaintiff alleges that her anxiety was so intense that it made it difficult for her to leave her home. (Id.) She was compliant with treatment. Her symptoms included depression, anxiety, anhedonia, insomnia, and tearfulness, but her condition was improving with treatment. (Id.) Advanced Therapeutics opined that Plaintiff was unemployable for twelve months or more. (Id.)
Advanced Therapeutic Services observed that Plaintiff cried during treatment sessions and had anxiety and depression. (PageID 482-483, 485-486, 488). Additional records from Advanced Therapeutics were submitted following the Appeals Council remand. Plaintiff underwent an adult diagnostic assessment on May 24, 2012. (PageID 529-539). The diagnosis was mood disorder due to obesity; major depression, recurrent and moderate; and anxiety disorder. (Id.) Plaintiff's GAF score was 40. (PageID 538). On the mental status exam, Plaintiff was observed to be slowed, depressed, and anxious. (PageID 540). She had impairment in her concentration and attention. (Id.) Plaintiff also underwent an initial psychiatric evaluation. (PageID 541-544). Evaluating physicians stated that Plaintiff was depressed and anxious. (Id.) The diagnosis was major depression, recurrent and medium; and anxiety disorder. (Id.) Plaintiff's GAF score was 60. (PageID 543). Plaintiff was discharged from treatment owing to the fact that she only returned for treatment twice after the initial evaluation. (PageID 559).
A score of 31-40 indicates some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.
3. Opinions of Reviewing Physicians and Psychologists
A number of physicians provided medical opinions after reviewing portions of the medical records. For example, Dr. Leslie Rudy, a non-examining psychologist, reviewed four of the medical records on March 26, 2007 at the request of the State agency. (PageID 442-445). She opined that Plaintiff was moderately limited in her ability to understand, remember, and carry out detailed instructions; maintain attention and concentration for extended periods; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and respond appropriately to changes in the work setting. (Id.) She found that Plaintiff was "capable of performing simple routine work with occasional interactions with others and without strict production demands." (PageID 444). Plaintiff had a mild restriction in her daily activities, moderate restriction in her social functioning, and moderate restrictions in her concentration, persistence, or pace. (PageID 456). On September 12, 2007, Dr. Todd Finerty, also a non-examining psychologist, reviewed two additional medical records and agreed with Dr. Ruby. (PageID 490).
Dr. Jeffrey Vasiloff, a non-examining physician, reviewed four of the medical records on April 10, 2007, at the request of the State agency. (PageID 460-467). He opined that Plaintiff could perform light exertional work activity with restriction from climbing ladders, ropes, and scaffolds, but Plaintiff could occasionally climb ramps and stairs and balance. (PageID 461-462). On September 19, 2007, Dr. Willa Caldwell reviewed two additional medical records and reaffirmed the previous assessment. (PageID 491).
4. Hearing Testimony
a. Plaintiff's Testimony
Plaintiff testified that she stands 56.5 inches tall and weighs 365 pounds. (PageID 121). Plaintiff is not married, has no dependent children, and resides with two of her sons. (PageID 122-123). Plaintiff testified that she had vocational training to be a machinist in 1998. (PageID 125). Plaintiff testified that she was employed as a bulk mail machine operator and was doing hand work stuffing envelopes, but her doctor took her off work due to her back, and she eventually quit. (PageID 125-126). She has not worked since July 5, 2005. (PageID 126). Plaintiff testified that she has lower back pain radiating upward, but has had no recent testing on her back and no doctor has recommended back surgery. (PageID 126-127). Her treatment has consisted of pain medications, anti-inflammatories, and injection therapy, all administered by her family doctor. (Id.) Plaintiff has never seen a specialist or pain management specialist for her back pain. (PageID 127). She takes some pain medication, but, if it gets bad enough, she goes to the hospital. (Id.)
Plaintiff also testified that she has high blood pressure, but does not take medication. (PageID 127). As of the date of the hearing, she had migraine headaches every couple of weeks, but claims that she had them daily at the time of disability onset. (PageID 128). She claims that she was stressed out by the issues she was experiencing at that time and that caused the headaches. (Id.)
Plaintiff testified that she has anxiety and depression. (PageID 129). Her anxiety causes her to feel scared and self-conscious, which is triggered by people and being in unfamiliar circumstances. (PageID 130). The month prior to the hearing, she went to Mahajan Therapeutics and averaged once a week visits for therapy. (Id.) She previously attended Advanced Therapeutics for about one year (last attended in 2007), but she felt it was not helpful. (PageID 130-131). She stopped seeing Dr. Gardner, her family doctor, in July 2011 due to lack of insurance and the feeling that she was taking so many pills and not getting better. (PageID 131). She does not currently have a family doctor, but she now has insurance and is looking for a new family doctor. (Id.)
Plaintiff testified that she has some minimal side effects from her medication, such as constipation. (PageID 132). She alleges that her back pain has been constant "all day, every day" since 2003. (PageID 1333). She describes her pain as a seven to eight out of ten, but if she stands or walks for any period of time the pain is ten out of ten. (Id.) She uses a cane (which is not prescribed) when the pain is too severe. (PageID 133-134). Medication did help her back pain, but she is most comfortable when sitting. (Id.) Plaintiff testified that she has trouble sleeping at night and normally sleeps in a recliner. (PageID 134). She cannot walk more than two blocks due to being out of breath and experiencing leg pain. (PageID 134-135). Plaintiff also testified that she can only stand for ten to fifteen minutes and can only sit for twenty to thirty minutes at a time, uninterrupted. (PageID 135). She can use her arms, hands, and fingers without difficulty. (Id.) She testified that she could lift a gallon of milk, but she cannot climb steps. (PageID 135-136).
Plaintiff testified that she is able to drive, cook, wash dishes, fold clothes, have relatives visit and friends call, do crosswords, and walk the dog. (PageID 137-138). She travelled to Texas in 2011, smokes, eats one time per day, and feeds, dresses, and grooms herself. (PageID 139-141). During a typical day, she watches television, drives her son to and from work, walks the dog, does crosswords, reads magazines, and washes the dishes. (PageID 140-141). However, Plaintiff testified that she is unable to return to the work she did previously due to her back pain. (PageID 136). Plaintiff testified that, although her previous employer made attempts to accommodate her medical issues, she was missing work approximately three days a week due to back pain and leg swelling. (PageID 142-143).
b. Testimony of Vocational Expert
Vocational Expert Suman Srinivasan testified at the hearing. (PageID 145). Ms. Srinivasan testified that Plaintiff's previous work—as wing mailer machine operator—is classified by the Dictionary of Occupational Titles ("DOT") as light and unskilled with an SVP of two. (PageID 147). Ms. Srinivasan also testified that Plaintiff's previous employment as a fast food worker would have the same classification. (Id.) Without earnings records, she could not determine whether these jobs were at an SGA level. (Id.)
SVP: Specific vocational preparation level. This is the average amount of time a typical worker would require to learn the techniques required to complete a particular job. An SVP of 2 requires training beyond a short demonstration, up to and including one month.
SGA: Substantial gainful activity. Individuals earning over a certain amount of money each month (adjusted for inflation each year and varying based on disability) are considered to be engaging in SGA.
Ms. Srinivasan testified that there are approximately 17,000 jobs in the region at the light level (such as marketing clerk and furniture rental clerk). (PageID 148). At the sedentary level, Ms. Srinivasan testified that approximately 6,500 jobs are available (such as microfilming document preparer and pari-mutuel ticket checker). (PageID 149). She further testified that these numbers would not be reduced if the employee required alternation between sitting and standing at thirty minute intervals. (Id.) With the addition of restrictions to low-stress tasks (i.e., no production quotas) and limitations on contact with coworkers, supervisors, and the general public as well as no ability to push or pull, light work would be reduced to approximately 10,000 jobs and sedentary work would be reduced to approximately 3,000 jobs. (PageID 149-150).
Ms. Srinivasan testified that, based on the evidence presented, Plaintiff should be able to continue with her previous work as a wing mail machine operator, but not as a fast food worker. (PageID 150-151). Ms. Srinivasan conceded that a wing mail machine operator would be required to keep a certain pace in order to complete projects and an individual who is unable to do so on a continuous basis may not be able to maintain that particular employment. (Id.)
c. ALJ Decision
The ALJ found that Plaintiff had severe impairments related to her obesity, chronic low back pain, headaches, depression, and anxiety as set out by 20 C.F.R. §§ 404.1520(c) and 416.920(c). (PageID 71). Due to these impairments, the ALJ held that Plaintiff was limited to sedentary work. (PageID 72). However, the ALJ found inconsistencies in the treating physician's records (PageID 73) and therefore found that Plaintiff did not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.152(d), 404.1525, 404.1526, 416.920(d), 419.925, and 416.926). (PageID 79). Therefore, the ALJ found that Plaintiff had the residual functional capacity to perform sedentary work. (PageID 80). Although Plaintiff was deemed unable to perform past relevant work, the ALJ found that there are a significant number of jobs available in the region that accommodate her restrictions, so she is capable of finding gainful employment and making the transition back to work. (PageID 85-86).
"[Dr. Gardner's] observations and restrictions on the Jobs and Family Services form could suggest sedentary work with restrictions. The claimant has not provided any evidence to reconcile these inconsistencies ... [Dr. Gardner] opined [Plaintiff] is unemployable. His observations and restrictions suggest sedentary work with restrictions." (PageID 73).
B.
First, Plaintiff alleges that the ALJ erred in rejecting her treating physician, Dr. Gardner. Specifically, Plaintiff claims that the ALJ gave too much weight to the State agency non-examining physicians.
The Regulations clearly state that the opinion of a claimant's treating physician must be given "controlling weight" if "well-supported" by objective evidence. 20 C.F.R. § 404.1527(c)(2). Because treating sources can provide a "detailed, longitudinal picture of [the claimant's] medical impairment(s) and may provide a unique perspective to the medical evidence that cannot be obtained from objective findings alone or from reports of individual examinations, such as consultative examinations" these opinions are to be given deference, provided that they are not inconsistent with available medical records. Id. However, this standard is not without limits. In determining whether such controlling weight is appropriate, the Regulations require an ALJ to consider several factors, such as the length of the physician's treatment relationship with the claimant, the frequency of examination, the nature and extent of the treatment relationship in regards to the specific impairment(s), the availability of objective evidence such as laboratory findings, consistency of the physician's opinion(s), and whether the treating physician is a specialist in an area related to the claimant's impairment(s). 20 C.F.R. § 404.1527(c)(2)-(6). Where these factors lead to the conclusion that a treating physician's opinion does not warrant controlling weight, the ALJ has the authority to reject that opinion, provided that the 20 C.F.R. § 404.1527 standards for evaluating medical evidence are followed. Additionally, decisions as to whether particular impairments meet the statutory definition of disability and determinations as to whether such impairments preclude a claimant from obtaining and maintaining gainful employment are reserved for the ALJ. 20 C.F.R. § 404.1527(d)(1). Additionally, deference to treating physicians is not required on vocational factors or other matters reserved for the Commissioner and any subsequent ALJ. 20 C.F.R. § 404.1527(d)(2).
If an ALJ rejects the opinion of a treating physician, he must clearly articulate "good reasons" for doing so. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). In order to be "good," those reasons should be "supported by the evidence in the case record, and...sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id. (quoting Soc. Sec. Rul. 96-2p). Additionally, the Sixth Circuit has held that these decisions must be "supported by substantial evidence ... defined as more than a scintilla of evidence, but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate support to a conclusion." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). This Court need not agree with the finding of the ALJ, but must merely find that the ALJ's decision to disregard the opinion of the treating physician is, in fact, substantially supported by the record. Id.
See also Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993) (holding that 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); Raisor v. Schweiker, 540 F. Supp. 686, 687 (S.D. Ohio 1982) (holding that 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).
Although Plaintiff's primary treating physician, Dr. Gardner, opined that Plaintiff is "unemployable," (PageID 433, 435, 439, 501-508) the ALJ did not err in rejecting his medical opinion. As explicitly stated by the ALJ, Dr. Gardner's opinion is not supported by clinical or laboratory diagnostic evidence or consistent with other available substantial medical evidence. (PageID 75). Dr. Gardner's observations are inconsistent, sometimes even internally contradictory, and only minimally supported by objective diagnostic evidence. For example, in 2006, Dr. Gardner opined that Plaintiff was able to stand, walk, or sit for two to four hours and had limited capacity to reach, bend, push, or pull (PageID 435), which was sufficient to render Plaintiff unemployable. (PageID 436). Later that same day, Dr. Gardner opined that Plaintiff was only able to stand, walk, or sit for 30 minutes to two hours and had more limited ability to push or pull than his previous statements. (PageID 437).
In 2007, Dr. Gardner opined that Plaintiff was only able to stand or walk for two hours, but could sit for six hours, and continued to have limited abilities to push or pull. (PageID 433). Although no new ailments or diagnostic evidence were provided to support this change, Dr. Gardner again asserted that Plaintiff was unemployable. A few months later, Dr. Gardner examined Plaintiff, found no new ailments or impairments, and opined that Plaintiff was able to perform simple, non-stressful tasks in an understanding work environment, contrary to opinions in the record put forth by Dr. Gardner earlier that same year. (PageID 439). In 2008, Dr. Gardner found that Plaintiff was able to stand or walk for one to two hours, but sit for four hours and was markedly limited in her ability to push or pull and extremely limited in her ability to bend. (PageID 439). Dr. Gardner did not provide any new diagnostic evidence at this time, but opined that Plaintiff was once again unemployable. (PageID 439). In an interrogatory submitted in 2008, Dr. Gardner presented a much more severe description of Plaintiff's impairments, despite not having examined her since 2007. (PageID 501-508).
With respect to psychological impairments, Plaintiff's treatment was minimal and only took place between 2005 and 2007. (PageID 414-417). Although Plaintiff was diagnosed with depression, anxiety, and other mental health issues, treating psychologists noted that Plaintiff's condition improved with treatment. (PageID 417). This assessment was based on six appointments over the two year treatment period. Outside of this minimal treatment, Dr. Gardner, who is not a licensed mental health professional, managed Plaintiff's mental health treatment.
Pursuant to 20 C.F.R. § 404.1527(c)(5), an ALJ may consider whether the treating source specializes in a particular area when determining whether to give their medical opinion controlling weight. See also Wilson, 378 F.3d at 544.
In light of Dr. Gardner's inconsistent medical opinions and the lack of explanation or diagnostic evidence to support his findings, the ALJ properly determined that his opinions were not entitled to controlling weight or even any significant measure of deference. (PageID 75). The ALJ's decision not to give controlling weight to Dr. Gardner is well within the ALJ's discretion. Furthermore, the designation of a statutory disability is reserved for the ALJ, not a treating physician or other medical professional. 20 C.F.R. 404.1527(d)(1). Even if the ALJ were to accept Dr. Gardner's diagnoses, the assignment of disability was not within Dr. Gardner's authority. Id.
Accordingly, substantial evidence supports the ALJ's finding that Dr. Gardner's opinion was not entitled to any weight.
C.
Next, Plaintiff alleges that the ALJ erred in finding that she was not credible in her allegations of disabling symptoms. Specifically, Plaintiff claims that the ALJ disregarded her allegations of disabling symptoms, including her statements regarding pain.
The Sixth Circuit has accepted that pain, on its own, may be enough to satisfy statutory disability standards, but only where complaints of pain are supported by medical evidence. Kirk v. Sec. of Health & Human Servs., 667 F.2d 524, 538 (6th Cir. 1981). As stated above, where treating physicians make "broad conclusory formulations" regarding the presence of a disability, these statements "are not determinative of the question of whether or not an individual is under a disability. This is particularly true where pain is the disabling illness." Id (internal citations omitted). "Tolerance of pain is a highly individual matter and a determination of disability based on pain by necessity depends largely on the credibility of the claimant." Villarreal v. Sec. of Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987) (quoting Houston v. Sec. of Health & Human Servs., 736 F.2d 365, 367 (6th Cir. 1984)). Accordingly, the conclusions of an ALJ with the "opportunity to observe the claimant ... should not be lightly discarded." Id.
The ALJ's findings as to credibility are entitled to deference because he has the opportunity to observe the claimant and assess her subjective complaints. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). A court may not disturb the ALJ's credibility determination absent compelling reason. Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).
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Where a claimant alleges disabling pain, an ALJ must first consider whether there is objective medical data to support an underlying condition. If such exists, the ALJ must next consider "whether objective medical evidence confirms the severity of the alleged pain" or if "the objectively established medical condition is of such severity that it can reasonably be expected to produce the alleged disabling pain." Felisky, 35 F.3d at 1039 (emphasis added). That said, where such objective medical evidence is not contained within the record, other factors regarding the credibility of claimant's description of pain will be considered in order to establish disability. 20 C.F.R. § 404.1529(c)(3). These factors include: the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain as well as other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of medication required to alleviate the claimant's pain; other treatment aside from medication received by the claimant to relieve the pain; measures the claimant uses to relieve pain or other symptoms (such as periodically alternating sitting and standing or sleeping on a board); and other functional limitations and restrictions (Id.)
As discussed infra, the severity of pain described by Plaintiff is not supported by objective medical data in the record. Although Plaintiff's lumbar x-rays indicate some degenerative disc disease, the level of disabling back pain described by Plaintiff does not objectively coincide with the severity of this disease as indicated by x-rays. (PageID 84). In light of this lack of objective evidence, the ALJ considered the factors listed in C.F.R. § 404.1529(c)(3) and found that Plaintiff's claims did not satisfy these factors. (PageID 83-85). Plaintiff's testimony indicates that she is able to perform daily routine tasks to an extent inconsistent with her claims of disabling pain and the level of pain evidenced by these activities will be sufficiently addressed by restriction to sedentary work. (PageID 84). Plaintiff's treatment history is scattered and sporadic and, while alleging migraine headaches, severe back pain, and mental instability, she only takes minimal (if any) medication. (Id.) Plaintiff has been instructed that many of her symptoms would be alleviated if she lost weight, but she actually gained additional weight over the course of her treatment history. (Id.) At Plaintiff's second hearing, the ALJ observed that she was not using any type of ambulation aid, did not appear to be in pain or distress of any kind, was able to sit and stand without visible difficulty, and sat for the duration of the forty-eight minute hearing. (Id.)
The ALJ properly considered all of these factors and, in light of the record evidence, concluded that Plaintiff's testimony regarding her level of pain was not credible. The ALJ's decision is therefore 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 Charlene Kaylor is not entitled to disability insurance benefits and social security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, whereupon this case is CLOSED in this Court. Date: 1/26/2015
/s/ Timothy S. Black
Timothy S. Black
United States District Judge