Opinion
08-26-2013
RONALD LANGENBAHM, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER:
(1) THE ALJS NON-DISABILITY FINDING IS FOUND
NOT SUPPORTED BY SUBSTANTIAL EVIDENCE, AND IS REVERSED;
(2) THIS MATTER IS REMANDED TO THE ALJ
UNDER THE FOURTH SENTENCE OF 42 U.S.C. § 405(g);
AND (3) JUDGMENT SHALL BE ENTERED ACCORDINGLY
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore unentitled to supplemental security income ("SSI") and disability insurance benefits ("DIB"). (See Administrative Transcript ("Tr.") (Tr. 11-22) (ALJ's decision)).
I.
On January 16 and 30, 2009, Plaintiff filed applications for DIB and SSI, alleging disability since December 31, 2007 due to hepatitis C, gunshot wounds to the left chest, and nerve damage in his left hand. (Tr. 11, 140, 143, 157). The Social Security Administration denied Plaintiff's claims initially and upon reconsideration. (Tr. 89-92). Plaintiff then timely requested a hearing before an ALJ, which was held on December 16, 2010, and at which Plaintiff and a vocational expert testified. (Tr. 8-22). The ALJ, Amelia G. Lombardo, issued an unfavorable decision on January 19, 2011. (Tr. 22). The ALJ concluded that Plaintiff was not disabled and retained the residual functional capacity ("RFC") to perform a reduced range of light work. (Id.) Plaintiff filed a request for review with the Appeals Council which was denied. (Tr. 1-3). Subsequently, Plaintiff timely filed this appeal.
The ALJ's "Findings," which represent the rationale of her decision, were as follows:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2013.(Tr. 15-21).
2. The claimant has not engaged in substantial gainful activity since December 31, 2007, the alleged disability onset date (20 CFR 404.1571 et seq., 416.971 et seq.).
3. The claimant has the following severe impairments: alcoholism; status post remote left clavicle fracture with open reduction and fixation of the left clavicle; and, status post remote left shoulder replacement secondary to a gunshot wound 20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526, 416,920(d), 416.925, and 416.926).
5. After careful consideration of the entire record, I find that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except: avoid work place hazards such as heavy machinery and unprotected heights (this last environmental limitation to account for his continued alcohol abuse).
6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on September 11, 1956 and was 51 years old, which is defined as an individual closely approaching advanced age, 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 English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (see SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969, and 416.969(a)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI or DIB. (Tr. 22).
On appeal, Plaintiff argues that: (1) the ALJ erred as a matter of law in that she failed to follow regulations before she dismissed the opinion of nurse practitioner Staat; (2) the ALJ erred as a matter of law when she inappropriately found that Plaintiff's substance abuse was a factor before determining that he was disabled and by allowing the finding to bias her review of the evidence; and therefore (3) the ALJ erred in that she issued a decision denying Plaintiff's application that was not based on substantial evidence. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that he is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, he must present sufficient evidence to show that, during the relevant time period, he suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
In February 2009, Plaintiff reported that he had been "sober 'for the most part' since late last year," and that "alcohol is not a problem for him and it causes no psychological symptoms." (Tr. 179). Psychologist Patricia Semmelman, Ph.D., reviewed Plaintiff's mental health records for the state agency later that month. (Tr. 261-277). Dr. Semmelman opined that Plaintiff had no limitations in his ability to perform activities of daily living, no limitations in his ability to maintain social functioning, and no limitations maintaining concentration, persistence, or pace. (Tr. 271). Dr. Semmelman noted that records from the VA Hospital "show that the claimant has a long history of alcohol abuse. At the time he reports drinking 7-8 beers per day." (Tr. 273). Dr. Semmelman remarked that "no other psychological impairments or symptoms [we]re noted," that he was alert and oriented upon exam, and that he "denie[d] depression, anxiety, and any other psychological impairments." (Tr. 273). Todd Finnerty, Psy.D., reviewed the evidence and affirmed Dr. Semmelman's assessment in July 2009. (Tr. 291).
In March 2009, Plaintiff had a consultative examination with Dr. Jennifer Bailey at the request of the state agency. (Tr. 275-282). Plaintiff reported he smoked one pack of cigarettes daily, that he had a thirty-five year history of alcohol use that Dr. Bailey characterized as "abuse," and that he last used crack cocaine more than a year ago. (Tr. 275). Plaintiff walked with a normal gait, had normal ranges of motion in all of his joints (except forward bending in the waist), and had full muscle strength everywhere except his left wrist, which had 4/5 muscle strength. (Tr. 276-277, 279-282). No complications from his hepatitis C were noted. (Tr. 275). Dr. Bailey described Plaintiff as a "heavy daily drinker," diagnosed chronic alcoholism, and stated that "[s]obriety would obviously be beneficial." (Tr. 277). She concluded that Plaintiff was "capable of performing a mild to moderate amount of sitting, ambulating, standing, bending, kneeling, pushing, pulling, lifting and carrying heavy objects. In addition, the patient has no difficulty reaching, but does have difficulty grasping and handling objects with his left hand." (Tr. 278).
Plaintiff's files were evaluated by state agency reviewing physician Leslie Green, M.D. in April 2009. (Tr. 283-290). Plaintiff could lift, carry, push, and pull up to 20 pounds occasionally and 10 pounds frequently; sit about six hours in an eight-hour work day; and stand and/or walk about six hours in an eight-hour work day. (Tr. 284). This was consistent with light level exertional work. 20 C.F.R. §§ 404.1567(b), 416.967(b). Dr. Green thought Plaintiff should never climb ropes, scaffolds or ladders, would be limited to no handling and fingering with his left hand, and should avoid concentrated exposure to hazards such as unprotected heights and hazardous machinery. (Tr. 285-287). In August 2009, Linda Hall, M.D. reviewed the evidence and affirmed Dr. Green's assessment in July 2009. (Tr. 292).
In November 2009, Nurse Edwin Staat completed an assessment form. (Tr. 293-296). Nurse Staat noted some of Plaintiff's "subjective" complaints including sore joints, chronic fatigue, and impairment in Plaintiff's left upper extremity. (Tr. 293). Nurse Staat checked boxes indicating sensory loss, reflex changes, muscle atrophy and muscle weakness in the left upper extremity. (Tr. 294). Nurse Staat noted that Plaintiff's prognosis was stable despite the fact that he was not on any medication. (Tr. 294). Mr. Staat also indicated that Plaintiff "stated" he could sit less than two hours in a work day for only up to 10 minutes at a time, and stand/walk less than two hours in a work day for only up to 10 minutes at a time. (Tr. 295). Mr. Staat thought that Plaintiff must stand up and walk every 10 minutes and that his leg must be elevated when he sits, but he would not need a cane or walker. (Tr. 295). He could not lift any weight, could not do fine manipulation or reaching with either arm, and would miss more than two days of work per month. (Tr. 296).
In November 17, 2010, Plaintiff had an essentially normal exam at the GI clinic with Dr. Peter Dryer. (Tr. 437). His lungs were clear, his heart was normal, and while he had some neck discomfort, there was full range of motion and no bruits. (Tr. 439). Likewise, he had no edema in his extremities, and his knees were without redness, crepitus, warmth, or swelling. (Tr. 439). He had a negative screen for depression. (Tr. 441).
In December 2010, James Bishop, an occupational therapist, completed an assessment form after his "first encounter with patient." (Tr. 397-400). Mr. Bishop indicated that Plaintiff's prognosis was fair and that he had no side effects from medication. (Tr. 398). Mr. Bishop also indicated that Plaintiff could sit less than two hours in a work day for only up to 45 minutes at a time, and stand/walk less than two hours in a work day for only up to 30 minutes at a time. (Tr. 399). He also thought Plaintiff must stand up and walk around for 5 minutes after 45 minutes of sitting, his leg should not be elevated when he sits, but he should use an assistive device such as a cane or walker. (Tr. 399). Plaintiff could occasionally lift 10 pounds, could do fine manipulation with the right arm but not the left, and would miss more than two days of work per month. (Tr. 400). Mr. Bishop noted that "these recommendations are based upon a brief, one-time evaluation; they may or may not represent the [patient's] true level of function." (Tr. 421). While Mr. Bishop indicated that he believed they were accurate, he also noted Plaintiff's heart rate and blood pressure remained stable when he complained of pain, even though one would normally expect to see them rise during physical discomfort or distress. (Tr. 420, 421). This form was also signed by Dr. Lia Laureno-Alvarez whose medical notes showed that Plaintiff came to her "wanting [a] disability form filled out." (Tr. 400, 429).
A.
Plaintiff argues that the ALJ erred as a matter of law when she inappropriately found that Plaintiff's substance abuse was a factor before determining that he was disabled and by allowing the finding to bias her review of the evidence.
An attack on the procedures used by the Commissioner is an allegation of legal error that the district court reviews de novo. Brueggemann v. Barnhart, 348 F.3d 689, 692 (8th Cir. 2003).
The Commissioner has promulgated specific procedures for determining whether a claimant suffers from a disability and is entitled to benefits. 20 C.F.R. § 416.920. An ALJ is bound to follow those regulations. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004). The Commissioner's regulations require that the ALJ determine whether an individual is disabled using the standard five-step approach prescribed in 20 C.F.R. § 404.1520 without deductions for the assumed effects of substance use disorders. Brueggemann, 348 F.3d at 694. The inquiry concerns strictly symptoms, not causes. Id. The ALJ may find that substance abuse is a contributing factor material to the determination of disability only after she: (1) determines that the claimant is disabled, (2) determines that drug or alcohol use is a concern, and (3) obtains substantial evidence on the record showing what limitations would remain in the absence of any substance abuse. 20 C.F.R. § 416.935; Id. at 695.
Here, the ALJ found that Plaintiff was "severely impaired" by alcoholism at step two of the 20 C.F.R. § 404.1520 analysis, prior to making any determination on disability. (Tr. 14). Doing so is a violation of the Commissioner's regulations. See Major v. Astrue, Case No. 1:10-cv-530, 2011 U.S. Dist. LEXIS 90020, * 18 (S.D. Ohio June 30, 2011) (remanding the matter back to the Commissioner after holding that the ALJ committed legal error by failing to administer the full 20 C.F.R. §404.1520 five-step sequential process for determining disability without any regard for the impact of the plaintiff's drug or alcohol abuse); Lynch v. Commissioner of Social Sec., No. 1:12-cv-075, 2013 WL 264670, *10 (S.D. Ohio Jan. 23, 2013) (holding that the ALJ failed to fulfill his obligation under 20 C.F.R. §§ 404.1535, 416.935 to state what limitations would remain if substance abuse were factored out); Brooks v. Commissioner of Social Sec., Case No. 1:11-cv-567, 2012 WL 3966270 (S.D. Ohio Sept. 11, 2012) (holding that the ALJ improperly conflated the sequential analysis by considering plaintiff's substance abuse issues prior to making a determination of disability). See also Brueggemann, 348 F.3d at 689; Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001); Drapeau v. Massanari, 255 F.3d 1211 (10th Cir. 2001).
The ALJ's statements at the hearing also suggest that that the ALJ allowed her opinion that Plaintiff was a substance abuser to affect her analysis. The ALJ noted sua sponte that "[t]he issue in this case, sir, is whether you are under a disability and entitled to Social Security benefits. If drugs or alcohol were found to be material to any disability, you would not be eligible for any benefits." (Tr. 30). The statement was made without provocation and was not a response to any evidence presented at the hearing, and suggests that the ALJ misapplied the Commissioner's regulations. The Commissioner's regulations do not state that a claimant is not disabled if substance abuse is found to be a material factor. Rather, the regulations provide that the claimant must show that he is disabled and then, if substance abuse is a factor, that he is disabled after the effects of his substance abuse are discounted. Brueggemann, 348 F.3d at 695.
Plaintiff's physical complaints are supported by objective medical evidence, such as x-rays of his back and findings of atrophy of his left arm and hand (Tr. 258, 283-290, 305, 307, 403, 407, 416, 431, 445), and, in response, the ALJ found that Plaintiff is "in complete denial about his drinking" (Tr. 14); that it was "highly doubtful" that Plaintiff stopped drinking after thirty years (Tr. 18); and "if [he] has been less than honest about his [substance abuse] history, then it may follow that he has been less than honest about the nature, frequency, and severity of his alleged symptoms." (Tr. 20).
However, determinations on disabilities and substance abuse are not to be made concurrently and the ALJ failed to make a finding that Plaintiff was disabled prior to conducting an analysis of the impact of his substance abuse. This error requires remand.
Because resolution of Plaintiff's two additional claims of error will assist upon remand, the Court resolves them here, as set forth below.
B.
First, Plaintiff argues the ALJ erred as a matter of law in that she failed to follow regulations before she dismissed the opinions of nurse practitioner Edwin Staat and occupational therapist James Bishop. This argument is unavailing.
Disagreement with how the ALJ decided 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). The Commissioner's determination must stand if it is supported by substantial evidence regardless of whether the reviewing court would resolve conflicts in the evidence differently. Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir. 1993). An ALJ must provide "good reasons" for discounting relevant medical evidence. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).
Here, the ALJ properly explained that the assessment form completed by Mr. Staat was not entitled to controlling or deferential weight under the Regulations because Mr. Staat "is not an acceptable medical source, as outlined in SSR 06-03p" (Tr. 20); see also Soc. Sec. Rul. 06-03p, 2006 WL 2329939, August 9, 2003. Nurses and occupational therapists are not considered acceptable medical sources according to Agency regulations, and the ALJ is not permitted to assign "controlling" weight to a non-medical opinion. See 20 C.F.R. §§ 404.1513, 416.913; see also Soc. Sec. Ruling 96-2p, 1996 WL 374188 (July 2, 1996).
Aside from the fact that Mr. Staat is not a doctor, his assessment form was also deserving of little weight because it was devoid of support. (Tr. 293-296). See 20 C.F.R. §§ 404.1527(d)(3), 416.927(d)(3) ("Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion."). For example, Nurse Staat noted that Plaintiff would have to elevate his leg when he was sitting, but there is no support in the record for this recommendation that any doctor ever told Plaintiff he should elevate his leg. (Tr. 295). Moreover, Mr. Staat's view that Plaintiff would have to get up and walk around for ten minutes after just ten minutes of sitting was inconsistent with his belief that Plaintiff could stand less than two hours per day. (Tr. 295). See Lamb v. Astrue, 2009 WL 248952 (S.D. Ohio Feb. 2, 2009) (internal inconsistency is acceptable basis to disregard opinion of treating doctor). Likewise, Nurse Staat did not explain why Plaintiff would be unable to lift any weight at all or why he would miss more than two days of work per month. (Tr. 296). Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) ("[T]he ALJ is not bound by conclusory statements of doctors, particularly where they are unsupported by detailed objective criteria and documentation.") (internal quotation omitted).
In general, the ALJ was entitled to discount this assessment form because it was not supported by adequate explanation or detailed clinical examination notes. (Tr. 293-296); Freudenberger v. Astrue, No. 1:09-cv-745, 2011 WL 1114407, at *7 (S.D. Ohio Feb. 28, 2011) ("where conclusions regarding a claimant's functional capacity are not substantiated by objective evidence, the ALJ is not required to credit those conclusions") (citing Cutlip v. Sec'y of H.H.S., 25 F.3d 284, 287 (6th Cir. 1994)). The ALJ additionally noted that Plaintiff's "treatment has largely involved conservative measures that are not indicative of total disability." (Tr. 20). Nurse Staat noted that Plaintiff was not on any medication whatsoever, and his condition without medication was stable, undermining any claims of disabling impairments and pain. (Tr. 294); Soc. Sec. Ruling 96-7p, 1996 WL 374186, at * 7 ("[T]he individual's statements may be less credible if the level or frequency of treatment is inconsistent with the level of complaints . . .").
The ALJ also noted that up until right before his hearing, there was little evidence Plaintiff was receiving treatment for his lower back pain or knee pain. (Tr. 14). He never received injections for pain and did not make regular visits to the clinic or ER for complaints of pain in these areas, as would be expected. (Tr. 14). As the ALJ stated, "this is not consistent with an individual who has access to health care and has been experiencing "intractable pain" for the last three years." (Tr. 14). See Strong v. Soc. Sec. Admin., 88 F. App'x. 841, 846 (6th Cir. 2004) ("In the ordinary course, when a claimant alleges pain so severe as to be disabling, there is a reasonable expectation that the claimant will seek examination or treatment. A failure to do so may cast doubt on a claimant's assertions of disabling pain.").
The ALJ reasonably discounted Mr. Staat's assessment because it was "based mostly on the claimant's subjective complaints." (Tr. 20); see Poe v. Comm'r of Soc. Sec., 342 F. App'x. 149, 156 (6th Cir. 2009). For example, Mr. Staat wrote that Plaintiff "stated" he could sit less than two hours in a work day for only up to 10 minutes at a time, and stand/walk less than two hours in a work day for only up to 10 minutes at a time. (Tr. 295). However, there is no indication that Mr. Staat actually believed that such extreme limitations were warranted. It appears that Mr. Staat was merely parroting the restrictions that Plaintiff told him he had. An ALJ is entitled to give less weight to an opinion that is based only on Plaintiff's self-interested reports rather than objective or clinical evidence. See McCoy ex rel. McCoy v. Chater, 81 F.3d 44, 47 (6th Cir. 1995) (ALJ reasonably discounted treating physician's opinion where the claimant's subjective complaints were unsupported by objective findings).
Finally, the ALJ properly gave less weight to Mr. Staat's assessment because he did not have a treating relationship with Plaintiff when he completed the assessment form. The ALJ wrote that when Nurse Staat completed his assessment "after only two appointments with the claimant." (Tr. 20). "The Sixth Circuit has declined to find that an ongoing treatment relationship exists after just two or three examinations." Cooper v. Astrue, 2011 WL 1118514 (S.D. Ohio Jan. 25, 2011) (citing Boucher v. Apfel, 2000 WL 1769520 (6th Cir. Nov. 15, 2000), Yamin v. Comm'r of Soc. Sec., 67 Fed. Appx 883 (6th Cir. 2003), and Helm v. Comm'r of Soc. Sec., 2011 WL 13918 (6th Cir. Jan 4, 2011)).
The ALJ also reasonably gave little weight to Mr. Bishop's assessment. Like Nurse Staat, as an occupational therapist, Mr. Bishop's assessment was not entitled to controlling weight because he was not an acceptable medical source. See 20 C.F.R. §§ 404.1513, 416.913. Although Mr. Bishop's assessment was also signed by Dr. Laureno-Alvarez, the ALJ could reasonably infer from the handwriting and the record that it was Mr. Bishop who primarily completed the assessment. (Tr. 400, 420, 421, 429). Even if Dr. Laureno-Alvarez examined Plaintiff for this assessment, both her opinion and that of Mr. Bishop were formed after seeing Plaintiff just once, so no treating relationship had been created and the ALJ's decision to give little weight to this assessment was reasonable.
The ALJ also properly gave "little weight" to Mr. Bishop's and Dr. Laureno-Alvarez's opinion because it was not consistent with the record as a whole. (Tr. 19); see 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4) ("Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). For example, the ALJ explained that if "accepted as accurate, Mr. Bishop's findings indicate that the claimant could not stand, sit, or walk more than two hours out of a total eight-hour workday and would essentially be bedridden." (Tr. 19). This was inconsistent, for example, with Plaintiff's relatively normal physical exam in November 17, 2010, and as the ALJ noted, it was at odds with the fact that he had been able to work at a "very heavy job for years, despite [the very same] injuries." (Tr. 19, 437- 441).
The ALJ also noted that Plaintiff "had very little treatment prescribed for his orthopedic problems, but when he asked VA staff to complete disability paperwork, he was suddenly considered disabled due to his orthopedic problems." (Tr. 19). In other words, the ALJ thought it was possible that Dr. Laureno-Alvarez and Mr. Bishop's opinions may have been influenced by a desire to help Plaintiff obtain disability benefits. See, e.g., Hofslien v. Barnhart, 439 F.3d 375 (7th Cir. 2006) ("But the fact that the claimant is the treating physician's patient also detracts from the weight of that physician's testimony, since, as is well known, many physicians (including those most likely to attract patients who are thinking of seeking disability benefits) will often bend over backwards to assist a patient in obtaining benefits."); Butera v. Apfel, 173 F.3d 1049, 1056 (7th Cir. 1999) ("The patient's regular physician may want to do a favor for a friend and client, and so the treating physician may too quickly find disability.") (citations omitted); Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir. 1982) ("It is true that this [treating] physician had examined [claimant] more extensively than anyone else; but as [claimant's] personal physician he may have been leaning over backwards to support the application for disability benefits.").
The ALJ also noted that "[n]either Dr. Laureno-Alvarez nor Mr. Bishop explained what changed for the claimant, as the claimant was able to work for years with his impairments, but is now allegedly completely disabled by those impairments." (Tr. 19); see Ilesamni-Woods v. Astrue, No. 3:09-CV-0479, 2010 WL 5490998, at *8 (S.D. Ohio Nov. 29, 2010) (ALJ properly rejected treating physician's opinion where doctor "did not explain his disability conclusions in any meaningful detail"). They also did not explain their extreme conclusions in light of an essentially normal exam one month prior. (Tr. 437-441). Furthermore, some of their recommendations were at odds with the record. For example, they thought Plaintiff would need a cane or walker to walk around, yet no doctor ever prescribed him any such assistive device, and Plaintiff was noted to have a normal gait. (Tr. 258, 276-277, 284, 399). Based on a dearth of evidence or explanation to support their limitations, the ALJ reasonably rejected this conclusory assessment. See White v. Comm'r of Soc. Sec., 572 F.3d 272, 286 (6th Cir. 2009) ("Conclusory statements from physicians are properly discounted by ALJs.").
It is the ALJ's function to resolve conflicts in the medical evidence. Hardaway v. Sec'y of HHS, 823 F.2d 922, 928 (6th Cir. 1987). "Given the number of physicians and the variation in their opinions, almost any decision that the ALJ could have rendered would have required [her] to discredit the opinion of at least one physician," and she reasonably discounted the non-medical assessment of Mr. Staat and the form completed by Mr. Bishop and signed by Dr. Laureno-Alvarez for the myriad reasons discussed above. Gaskin v. Comm'r of Soc. Sec., 280 F. App'x 472, 476 (6th Cir. 2008). The ALJ's determination must stand if it is supported by substantial evidence regardless of whether the reviewing court would resolve the conflicts in the evidence differently. Boyle v. Sullivan, 998 F.2d 342,347 (6th Cir. 1993). evidence in the record that would have supported an opposite conclusion.").
Accordingly, the weight assigned to the opinions of Mr. Staat and Mr. Bishop by the ALJ was appropriate.
C.
Plaintiff's third argument is that the ALJ erred in that she issued a decision denying Plaintiff's application that was not based on substantial evidence.
In assessing a claimant's allegations of limitations, the ALJ must look at both the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(c), 416.929(c). In accordance with the regulations, the ALJ discussed Plaintiff's testimony regarding the frequency and intensity of his symptoms, his medications and side effects, and his treatment history. (Tr. 14-20); see Soc. Sec. Ruling 96-7p, 1996 WL 374186. The ALJ found Plaintiff's testimony less than fully credible because other evidence did not support complaints of the severity he alleged. (Tr. 17); Chapman v. Astrue, No. 1:10-cv-155, 2011 WL 1897434 at *6 (S.D. Ohio Mar. 10, 2011) ("[A]n 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") (quoting Jones, 336 F.3d at 476); Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 543 (6th Cir. 2007) ("[T]he record is replete with medical evidence that Cruse's symptoms were not as severe as she suggested."). For example, the ALJ noted that Plaintiff's "treatment has largely involved conservative measures that are not indicative of total disability." (Tr. 20).
At times, Plaintiff was not on any medication whatsoever and yet his condition was stable. (Tr. 294). The ALJ also noted that up until right before his hearing, there was little evidence Plaintiff was receiving treatment for his lower back pain or knee pain. (Tr. 14). Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997) ("The absence of sufficient objective medical evidence makes credibility a particularly relevant issue, and in such circumstances, this court will generally defer to the Commissioner's assessment when it is supported by an adequate basis."). He never received injections for pain and did not make regular visits to the clinic or ER for complaints of pain in these areas which was "not consistent with an individual who has access to health care and has been experiencing 'intractable pain' for the last three years." (Tr. 14). See Moon v. Sullivan, 923 F.2d 1175, 1183 (6th Cir. 1990) ("Simply stated, though Moon alleges fully disabling and debilitating symptomatology, the ALJ may distrust a claimant's allegations of disabling symptomatology if the subjective allegations, the ALJ's personal observations, and the objective medical evidence contradict each other.").
As previously stated, the ALJ's choices with regard to weighing the conflicting evidence in the record were within her sound discretion. However, despite the fact that the ALJ also noted good reasons to question Plaintiff's own credibility, because the ALJ failed to make a finding that Plaintiff was disabled prior to conducting an analysis of the impact of his substance abuse, her analysis of the evidence was potentially affected.
Accordingly, the ALJ's decision was not based on substantial evidence.
III.
Based upon the foregoing, the Court concludes that remand is appropriate in this matter because the ALJ committed legal error by failing to administer the full 20 C.F.R. §404.1520 five-step sequential process for determining disability without any regard for the impact of the Plaintiff's drug or alcohol abuse.
IT IS THEREFORE ORDERED that the decision of the Commissioner to deny Ronald Langenbahm benefits be and is REVERSED, and this matter be and is REMANDED under sentence four of 42 U.S.C. § 405(g).
On remand, the Commissioner shall find that substance abuse is a contributing factor material to the determination of disability only if and after: (1) it is determined that the claimant is disabled; (2) it is determined that drug or alcohol use is a concern; and (3) the Commissioner obtains substantial evidence on the record showing what limitations would remain in the absence of any substance abuse.
The Clerk shall enter judgment accordingly.
IT IS SO ORDERED.
________
Timothy S. Black
United States District Judge