Opinion
Case No. 2:18-cv-11540
07-31-2019
JANICE RENAE MACIAG, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
District Judge Avern Cohn
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT (DE 13) , GRANT DEFENDANT'S MOTION FOR SUMMARY JUDGMENT (DE 14) and AFFIRM THE COMMISSIONER'S DECISION I. RECOMMENDATION: For the reasons that follow, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (DE 13), GRANT Defendant's motion for summary judgment (DE 14), and AFFIRM the Commissioner's decision.
II. REPORT
Plaintiff, Janice Renae Maciag, brings this action under 42 U.S.C. §§ 405(g), 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance (DI) and supplemental security income (SSI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 13), the Commissioner's cross-motion for summary judgment (DE 14), and the administrative record (DE 10).
A. Background and Administrative History
Plaintiff alleges her disability began on February 21, 2015, at the age of 43. (R. at 199, 197.) In her disability report, she lists several conditions (heart disease, multiple heart attacks, high blood pressure, diabetes, depression, and sleep apnea) as limiting her ability to work. (R. at 216.) Her applications for DI and SSI benefits were denied in March 24, 2016. (R. at 98-147.)
Plaintiff's applications were submitted in November 2015. Although the DI application summary lists an alleged onset date (AOD) of October 9, 2015, the SSI application summary lists an AOD of February 21, 2015. (Compare R. 197, with R. 199.)
Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 151-152.) On February 15, 2017, ALJ Allison Dietz held a hearing, at which Plaintiff and a vocational expert (VE), James Lozer, Ed.D. testified. (R. at 36-97, 260.) On May 22, 2017, ALJ Dietz issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 17-35.)
Plaintiff submitted a request for review of the hearing decision/order. (R. at 190-192.) However, on March 23, 2018, the Appeals Council denied Plaintiff's request for review. (R. at 1-7.) Thus, ALJ Dietz's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on May 16, 2018.
B. Plaintiff's Medical History
The administrative record contains approximately 486 pages of medical records, which were available to the ALJ at the time of her May 22, 2017 decision. (R. at 268-753 [Exhibits 1F-15F].) These materials will be discussed in detail, as necessary, below.
C. The Administrative Decision
Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at Step 1 of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 21, 2015, the alleged onset date (AOD). (R. at 22.) At Step 2, the ALJ found that Plaintiff had the following severe impairments: obesity, diabetes, coronary artery disease (CAD), sleep apnea, depression, anxiety, carpal tunnel syndrome (CTS), major joint dysfunction, and disorders of the spine. (Id. at 22-23.) At Step 3, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. (Id. at 23-25.) Between Steps 3 and 4 of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC") and determined that Plaintiff had the RFC to perform sedentary work, with various other postural, manipulative, environmental, and mental health limitations. (Id. at 25-28.) At Step 4, the ALJ determined that Plaintiff was unable to perform any past relevant work. (Id. at 28-29.) At Step 5, considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform, such as a surveillance system monitor and an order clerk. (Id. at 30-31.) The ALJ therefore concluded that Plaintiff had not been under a disability, as defined in the Social Security Act, from February 21, 2015, through the date of the decision. (Id. at 31.)
The claimant's "residual functional capacity" is an assessment of the most the claimant can do in a work setting despite his or her physical or mental limitations. 20 C.F.R. §§ 404.1545(a), 416.945(a); Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 2002).
D. Standard of Review
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it 'is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is 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 to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
Although the substantial evidence standard is deferential, it is not trivial. The Court must "'take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding 'even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "'a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
E. Analysis
Plaintiff contends that the ALJ erred in her consideration of the opinion evidence and in her credibility assessment. (DE 13 at 8-12.) The Commissioner contends that the ALJ properly assessed Plaintiff's RFC and subjective complaints. (DE 14 at 5-15.)
Plaintiff's motion for summary judgment does not comply with this Court's formatting and type size requirements, i.e., the text is less than double-spaced and smaller than 14-point font. E.D. Mich. LR 5.1(a)(2),(3). Although the Undersigned will recognize this brief, Plaintiff's counsel is cautioned that future filings may be rejected or stricken from the record if non-complaint with E.D. Mich. LR 5.1 ("Filing of Papers"). It must also comply with my Practice Guidelines for Social Security cases.
1. Opinion evidence
In her review of the opinion evidence, the ALJ assigned: (a) "limited weight" to the physical RFC assessment of state agency medical consultant Robin Mika, D.O. (R. at 108-111, 124-127); (b) "some weight" to the mental RFC assessment of state agency psychological consultant Rom Kriauciunas, Ph.D. (R. at 111-113, 127-129); (c) "great weight" to the consultative examination report of Hugh D. Bray, Ph.D., a licensed psychologist (R. at 587-592); and, (d) "partial weight" to the medical source statement (MSS) of John Slaim, D.O., which was also signed by Michelle Dolson, ANP-BC (Adult Nurse Practitioner-Board Certified). (R. at 748-751). (R. at 27-28.)
a. Physical RFC
i. Discounting Dolson's / Dr. John Slaim's MSS
Plaintiff treated with the Slaim Office -- Michelle Dolson, ANP-BC, John Slaim, D.O., Abraham Slaim, D.O. -- as early as April 23, 2013. (See R. at 303-378 [Ex. 2F], 560-573 [Ex. 5F], 593-615 [Ex. 9F], 635-736 [Ex. 12F]). The ALJ cited many of these exhibits in her review of Plaintiff's musculoskeletal impairments, diabetes, CAD and sleep apnea. (R. at 26-27.) As to musculoskeletal impairments, the ALJ noted, inter alia:
However, despite these complaints, examination notes showed she was negative for joint pain, stiffness, muscle pain, tenderness, edema, or weakness (EX. 1F/29; 2F/10; 4F/20, 28; 88, 97 [R. at 296, 312, 401, 409, 469, 478]). The claimant generally had normal strength, sensation, range of motion and reflexes throughout her body (EX. 4F/25, 29, 88 [R. at 406, 410, 469]).(R. at 26.)
Then, in assigning "partial weight" to the functional limitations set forth in Dolson's / Dr. John Slaim's January 16, 2017 MSS, the ALJ explained:
While the claimant would be limited to a range of sedentary work, there is no evidence that the claimant is limited to this degree. Her examination notes showed she was negative for joint pain, stiffness, muscle pain, tenderness, edema, or weakness. The claimant generally
had normal strength, sensation, range of motion and reflexes throughout.(R. at 28, 750.) In other words, the ALJ discounted Dr. Slaim's functional limitations on the basis of the supportability and/or consistency factors. 20 C.F.R. §§ 404.1527(c)(3),(4), 416.927(c)(3),(4).
Plaintiff takes issue with the ALJ's assignment of "only 'partial weight' to the treating doctor, Dr. John Slaim." (DE 13 at 8.) Plaintiff argues that "Dr. Slaim's records for over five years of consistent treatment, do support such finds and such limitations." (DE 13 at 9.) Ultimately arguing that "Dr. Slaim's opinion should be given great weight[,]" Plaintiff cites:
• Long lists of diagnoses, such as those in Dolson's January 12, 2016, March 1, 2016, May 13, 2016, and November 8, 2016 records. (R. at 597-598, 606-607, 657-658, 703-705.) For example, the latter two included low back pain potentially associated with radiculopathy, chronic right shoulder pain, CAD, and chronic peripheral venous insufficiency (R. at 657) and right arm pain, bowel and bladder incontinence, and lumbar herniated disc "with [right] leg radiculopathy and loss of bladder and bowel function . . . [,]" (R. at 704).
• Dolson's May 13, 2016 records, which noted "mid thoracic and lower back" pain, continued "right arm, shoulder pain[,]" numbness and tingling in both hands, an "EMG that showed mild CTS." (R. at 653.) At the same visit, Plaintiff sought a second opinion for her CAD, as she was "told that there was one vessel that is almost 100% blocked and that her
Cardiologist states he could not fix, and then stated that he could." (R. at 654.)(DE 13 at 7, 9.)
• Dolson's November 8, 2016 notes regarding Plaintiff's right shoulder, namely "[a]ssociated symptoms include decreased mobility[,]" and "[p]ertinent negatives include swelling[,]" as well as notations that Plaintiff had limited range of motion in her right arm, was unable to lift up on shoulder level, and had numbness and tingling to the right upper extremity (R. at 691)
With respect to the long list of diagnoses, Plaintiff also cites Ex. 12F at 102. (DE 13 at 9.) However, that record is a May 13, 2016 radiological report. (R. at 736.) Instead, it appears that Plaintiff intended to cite Ex. 12F at 70. (R. at 704.)
At the administrative hearing, Plaintiff testified that she got a second opinion about the 100% blockage from Dr. Kondur of Dearborn Cardiology. (R. at 67; see also R. at 737-747 [May 24, 2016 - October 26, 2016].)
Plaintiff's argument is unavailing. As for the treating source's long lists of diagnoses, "[t]he mere diagnosis of [a condition] says nothing about the severity of the condition." Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Moreover, to the extent the other notes reference Plaintiff's reports during the "history of present illness," they are more appropriately evaluated in a credibility argument. See Young v. Sec'y of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990) (a multidisciplinary examination report failed to provide "objective evidence of a condition of disabling psychological pain" where it was based on "claimant's subjective complaints."). In the present appeal, Plaintiff's credibility argument, which is addressed below, is limited to compliance with cardiac rehabilitation and diabetes treatment and her hearing testimony. (DE 13 at 10-12.) Finally, and perhaps most importantly, as an ANP, Dolson is an "other source," rather than an "acceptable medical source." See 20 C.F.R. §§ 404.1513(a),(d), 416.913(a),(d) (effective Sept. 3, 2013 to Mar. 26, 2017). Therefore, Plaintiff's citations to Dolson's notes do not supplant the ALJ's assignment of "partial weight" to the Dolson / Dr. John Slaim MSS.
See also Allums v. Colvin, No. 1:14CV2429, 2015 WL 9282334, at *20 (N.D. Ohio Nov. 25, 2015) ("ANP Christy as a nurse practitioner and Ms. Ward and Ms. Maggit as a licensed social worker and mental health specialist are considered 'other sources' and not 'acceptable medical sources' under the Social Security Regulations."), report and recommendation adopted, No. 1:14 CV 2429, 2015 WL 9258507 (N.D. Ohio Dec. 17, 2015).
ii. Exertional and manipulative limitations
Beyond Dr. Slaim's records, Plaintiff takes issue with the ALJ's failure to mention her "100% occlusion in [blockage of] the distal circumflex," or her "two right shoulder tears." (DE 13 at 9-10.) Here, Plaintiff expressly refers to:
• Abedelrahim Asfour, M.D.'s October 12, 2015 procedure, during which a "6 French sheath was placed in the [right] femoral artery[,]" the distal circumflex was "occluded 100%[,]" and the "[d]istal left circumflex artery d[id] not appear to be accessible percutaneously at this moment . . . ." (R. at 506-507, 380-381.)(DE 13 at 9-10.)
• The April 20, 2017 right shoulder MRI, which revealed tears of the supraspinatus tendon and subscapularis tendon (R. at 752-753.)
To be clear, the Undersigned does not interpret these citations as a direct attack on any assignment of weight to the October 12, 2015 cardiac catheterization / interventional procedure report of Dr. Asfour, Plaintiff's then-treating physician. (R. at 505-507, 379-381.) Instead, Plaintiff cites these pieces of evidence to illustrate that the ALJ did not mention the 100% occlusion, the shoulder tears or the MRI. (DE 13 at 9-10.) However, even if the ALJ's written decision does not expressly mention Plaintiff's 100% blockage or occlusion, it was discussed at the February 15, 2017 administrative hearing, during her counsel's opening statement and upon examination by the ALJ, and the written decision unquestionably considers Plaintiff's CAD. (R. at 42, 67, 27.) The SSA classifies jobs as "sedentary, light, medium, heavy, and very heavy." 20 C.F.R. §§ 404.1567, 416.967.
The ALJ determined that Plaintiff was limited to sedentary work, the most restrictive of the exertional categories, "with additional restrictions[,]" which included postural, manipulative, and environmental limitations. (R. at 25, 28.) The Undersigned agrees with the Commissioner that "Plaintiff fails to identify any additional RFC limitations that would be attributable to her CAD . . . , beyond the limited range of sedentary work found by the ALJ[.]" (DE 14 at 9.) Moreover, if Plaintiff is asking the Court to adopt Dr. Slaim's opinion that she is "functionally disabled from all gainful employment, including sedentary or less than sedentary jobs[,]" (R. at 749), opinions as to whether an individual is disabled are reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
Likewise, even if the ALJ's written decision does not expressly mention the right shoulder tendon tears, her consideration of right shoulder MRI is obvious, not only because she mentions Exhibit 15F as added to the record after the hearing, but also because her RFC discussion acknowledges that "[d]iagnostic imaging also corroborated the examination findings by showing the claimant had mild changes in her shoulder and spine (EX. 15F)." (R. at 20, 26.) Indeed, the shoulder MRI revealed, inter alia, "mild subacromial subdeltoid bursitis[,]" and "mild to mild spur and subchondral cyst formation as well as moderate patchy marrow edema." (R. at 752-753.) Accordingly, the ALJ assessed manipulative limitations, which included occasionally reaching overhead with the right upper extremity and frequently handling and fingering with the bilateral upper extremities. (R. at 25.)
Plaintiff contends that, given the MRI findings and the findings of her treating doctor, presumably those within Dr. Asfour's cardiac catheterization report, she "should be limited to never using the right upper extremity." (DE 13 at 10 (emphasis added), 752-753, 691.) Preliminarily, this difference between "occasional" versus "no" overhead reaching with the right arm was explored by the ALJ's first and third hypotheticals. (R. at 91, 93; see also R. at 95-96.) The ALJ determined that Plaintiff had an RFC consistent with the combined first and second hypotheticals, as to which the VE testified that such an individual could perform the jobs of surveillance system monitor or order clerk. (R. at 25, 30, 91-93.) True, as Plaintiff points out, at the administrative hearing, her counsel observed that Plaintiff had only raised her arm from her elbow to her hand when taking the oath, which Plaintiff agreed was due to her shoulder pain. (R. at 83-84.) (DE 13 at 9.) Nonetheless, as the Commissioner points out, reaching, handling, and fingering, as well as feeling, are not present or do not exist in the surveillance-system monitor job. See DICOT 379.367-010, 1991 WL 673244. (DE 14 at 10.) Thus, even if Plaintiff had been limited to never using her right upper extremity, she could still have performed the surveillance-system monitor job.
b. Mental RFC
The ALJ's review of Plaintiff's mental health impairments included citations to various records. (R. at 27, 587-592, 295, 311, 312, 324, 410, 478, 341.) In assigning "great weight" to Dr. Bray's adult mental status evaluation, the ALJ specifically referenced Dr. Bray's discussion of the four work-related mental activities, which included several moderate or moderate to significant impairments. (R. at 28, 590-591.)
Given the ALJ's assignment of "great weight" to the opinion of consultative examiner Dr. Bray, Plaintiff takes issue with the fact that the mental RFC limitations do not include "any amount of time off task due to attention and concentration impairments." (DE 13 at 10; see also R. at 42, 94-95.) However, after recognizing Dr. Bray's opinions on the work-related mental activities, the ALJ further stated:
The claimant's judgment behavior and though process were also normal. There is no evidence of any inpatient psychiatric hospitalizations during the relevant period. In her function report she revealed that she is able to do simple chores, cook simple meals and drive a motor vehicle ([R. at 232-239]).(R. at 28.)
Tellingly, Dr. Bray noted that, during the examination, Plaintiff "was able to perform simple repetitive tasks. It is likely [she] could handle more complex tasks." (R. at 591.) As such, the Commissioner is correct that "the ALJ was not required to include a limitation for being off task due to problems with attention and focus[.]" (DE 14 at 11.) In addition, the state agency psychological consultant opined:
Mental impairments do not significantly limit the claimant's ability to perform simple, low-stress, unskilled work on a sustained basis. Claimant is able to understand, remember and carry out 1-2 step instructions, handle supervision and interact with coworkers. This decision is based on analysis of evidence and is in line with the MSS, given moderate weight.(R. at 113, 129.) The ALJ found the state agency consultant's determination "consistent with the evidence available at the time of . . . review of the record[,]" and assigned it "some weight." (R. at 27.) Accordingly, there is substantial evidence for the ALJ's mental RFC assessment, which, in addition to including social interaction limitations, also included limitations of "simple routine tasks in a work environment free from fast-paced production requirements, . . . and involving only simple work-related decisions with few, if any, workplace changes." (R. at 25.)
2. Credibility
a. Heart procedures
By way of background, Plaintiff was admitted to Oakwood Hospital and Medical Center (OHMC) on January 6, 2014 with a chief complaint of chest pain. (R. at 382-449.) During this stay, Dr. Asfour performed: (1) a left heart catherization; (2) a left ventriculogram; (3) a left anterior descending artery percutaneous transluminal coronary angioplasty (PTCA) and stenting drug-eluting stent (DES); and, (4) a right radial artery wrist band placement. (R. at 387-390; see also R. at 300-302.) Plaintiff followed up with Premier Cardiovascular Specialists, P.C. - Dr. Asfour - shortly thereafter. (R. at 275-276, 279-287, 299-302.) At the January 13, 2014 visit, Dr. Asfour gave Plaintiff a referral for cardiac rehabilitation and noted, "Aggressive risk factor modification including smoking cessation, diabetes management, weight loss and cholesterol management." (R. at 276 (emphases added).)
Plaintiff was again admitted to Oakwood on July 8, 2014. (R. at 450-498.) That same day, a "5 French sheath" was placed in Plaintiff's right radial artery. (R. at 496-498, 290-292; see also R. at 293-298.)
Plaintiff was also admitted to Oakwood on October 9, 2015, with complaints of chest pain and shortness of breath. (R. at 499-559.) This appears to have been Plaintiff's third heart attack. (See R. at 105-106, 569.) On October 12, 2015, "a 6 French sheath was placed in the [right] femoral artery[,]" and Dr. Asfour noted that the distal circumflex was "occluded 100%." (R. at 506, 380.)
As the ALJ later observed, Plaintiff has had "three heart attacks, which required two heart stents within a six-month period." (R. at 27.)
b. Evidence of non-compliance and continued smoking
The administrative transcript contains several medical records that comment upon non-compliance, such as:
• Dr. Asfour's April 16, 2014 records, which note that "[u]nfortunately, she continues to smoke and she is back to 1-2 packs per day[,]" and that there was "lengthy discussion with her regarding smoking cessation and the importance of smoking cessation." (R. at 273-274.)
• On May 15, 2014, Dr. Asfour noted that Plaintiff "continues to smoke despite all the recommendations we discussed with her about smoking cessation." (R. at 272.)
• On July 22, 2014, Plaintiff had an abnormal ECG. (R. at 278.) Dr. Asfour's same-day letter notes that Plaintiff had stopped smoking and that "[s]he refused cardiac rehab due to high
expense on her co-payments." (R. at 270-271 (emphasis added).)There is some evidence that Plaintiff quit smoking in October 2015. However, Dr. Kondur's May 24 & 31, 2016 notes reflect a 10-19 cigarette per day habit and Dolson's November 8, 2016 notes indicate that she is a non-compliant diabetic, smokes 1 pack per day, and "is not ready to quit at this time[,]" and was "advised about risks of continuing to smoke, uncontrolled blood sugar, high cholesterol, hypertension . . . ." (R. at 691, 699, 704-705, 740, 743.)
• On September 15, 2014, Dr. Asfour noted that Plaintiff "unfortunately continues to smoke. She has been trying to stop and had some hypnosis but without success." (R. at 269, 353.)
• On January 27, 2015, Plaintiff had an abnormal ECG. (R. at 277.) Dr. Asfour noted that Plaintiff "is very much noncompliant. Continues to smoke one and half a pack a day . . . ." (R. at 268, 352.)
• May 4, 2015 records from either Dolson or Abraham Slaim, D.O., note that, as to obstructive sleep apnea (OSA), Plaintiff "states did not follow up with second portion of test a few years ago." (R. at 329.)
• October 12, 2015, Plaintiff underwent a cardiac catheterization, and Dr. Asfour "[r]eemphasized smoking cessation." (R. at 505-507, 379-381.)
• On October 16, 2015, Dolson noted that, as to diabetes, Plaintiff was "compliant with education[,]" but "non-compliant with follow up and medication." (R. at 336, 560; see also R. at R. at 341, 345-346, 565, 569-570.)
Plaintiff underwent an exercise stress test on October 19, 2015, the notes for which indicate that she quit smoking on October 9, 2015. (R. at 288-289, 574-575, 579-580.) Moreover, Dr. Asfour's January 4, 2016 notes, which were accompanied by a "possible abnormal ECG," reflect that Plaintiff quit smoking in October 2015. (R. at 576-578, 616-618.)
Plaintiff's compliance with treatment was also addressed at the February 15, 2017 hearing. Among other things, Plaintiff was asked, "When your doctors give you treatment or recommendations, things that you need to be doing, telling you how often to take your medication, and in which doses to take your medication, so on and so forth - are you compliant with your doctor's instructions?" (R. at 69.) Plaintiff answered, "Taking my medication, absolutely." (Id.) However, when asked about "pretty consistent recommendations that [she] stop smoking[,]" Plaintiff admitted she had not stopped, although she had "tried everything, literally[,]" and she was still trying to quit. (Id.) She also stated that she had been successful in cutting back. (R. at 70.) She further testified: "my insurance will not cover an MRI for my neck, my shoulder, my arm. They have denied it now, I believe, two times or three times and - for my lower back." (R. at 72; see also R. at 73 (emphasis added).)
c. The ALJ's credibility determination
In her May 22, 2017 decision, the ALJ concluded that Plaintiff's statements about the intensity, persistence and limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (R. at 26.) Plaintiff's credibility argument concerns: (i) her alleged non- compliance with treatment for CAD; (ii) her alleged non-compliance with treatment for diabetes; and, (iii) the ALJ's omission of much of her February 15, 2017 testimony regarding daily living and general limitations in favor of the representations in her January 20, 2016 function report. (DE 13 at 11-12.) Importantly:
• As to Plaintiff's CAD, the ALJ noted that Plaintiff was "non-compliant with treatment[,]" and that treatment notes "show that she refused to go to cardiac rehab[.]" (R. at 27.) This statement is supported by Dr. Asfour's July 22, 2014 note that Plaintiff "refused cardiac rehab due to high expense on her co-payments." (R. at 270-271 (emphasis added).)
• As to Plaintiff's diabetes, the ALJ cited, inter alia, records indicating that Plaintiff "never checks her [s]ugars," and "is non-compliant with follow up and medication." (R. at 26, 309, 560.)
• In addition, the ALJ assigned "some weight" to Plaintiff's function report. (R. at 28, 232-239.)
Plaintiff addressed cardiac rehabilitation, diabetes treatment, and her testimony, among other issues, in an October 1, 2017 letter to the Appeals Council. (R. at 193-194.) On March 23, 2018, the Appeals Council acknowledged Plaintiff's argument that she was unfairly considered non-complaint for having refused cardiac rehabilitation, because she was unable to afford it. (R. at 1.) Having determined that the ALJ "did not abuse her discretion and none of the other reasons in our rules exists to review [Plaintiff's] case[,]" the AC denied her request for review. (Id.)
d. Plaintiff's insurance status, her ability to co-pay, and treatment for CAD
Citing Dr. Asfour's July 22, 2014 note, seemingly for its statement that Plaintiff "refused cardiac rehab due to high expense on her co-payments[,]" (R. at 270-271 (emphasis added)), Plaintiff contends that she "was unable to go to cardiac rehab because she did not and does not have the money to pay for the rehab[,]" and her "medical insurance cut her off at that time and she would have had to pay out of pocket for the rehab with money that she simply does not have." (DE 13 at 11.)
At the outset, Plaintiff's counsel's statements about what Plaintiff can and cannot afford, unaccompanied by citation to some type of financial record, are unconvincing. Moreover, to the extent Plaintiff relies upon her doctor's remarks, Dr. Asfour's September 15, 2014 record simply notes, without further explanation that Plaintiff "refused to go to cardiac rehab." (R. at 269, 353.) Also, while the Court has noticed an OHMC Cardiac Cath Lab record that "Patient has no active insurance coverage on file for [January 6, 2014][,]" (R. at 370 (emphasis added)), she seems to have been covered by Blue Cross PPO or Molina at the time of her January 2014, July 2014 and October 2015 visits to OHMC. (R. at 382, 450, 499.) She also seemed to have insurance at the time of the February 15, 2017 hearing. (R. at 72-73.) Thus, I am inclined to agree that the record "does not reflect an inability to pay due to a loss of insurance . . . [,]" and "there is no indication she was unable to pay [the high co-pays][,]" only that she "refused" to do so. (DE 14 at 13-14 (emphasis in original); R. at 269, 270-271.)
Moreover, even if Plaintiff was unable to afford her copayment to go to cardiac rehab, the ALJ also stated that Plaintiff was "non-compliant with treatment[,]" for which the ALJ expressly pointed to the letters about smoking. (R. at 27, 268, 272, 352.) As the Sixth Circuit has stated:
. . . we can take judicial notice of the massive body of medical opinion supporting the advice the claimant received from his doctor on the subject of cigarette smoking. The Social Security Act did not repeal the principle of individual responsibility. Each of us faces myriads of choices in life, and the choices we make, whether we like it or not, have consequences. If the claimant in this case chooses to drive himself to an early grave, that is his privilege—but if he is not truly disabled, he has no right to require those who pay social security taxes to help underwrite the cost of his ride.Sias v. Sec'y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988) (internal footnote and paragraph break omitted). Thus, there is other support for the ALJ's conclusion that Plaintiff was noncompliant with treatment.
e. Diabetes treatment and medications
Plaintiff takes issue with the ALJ's statement Plaintiff "had admitted instances of medication non-compliance[,]" for which the ALJ cited one record - Dolson's October 16, 2015 notes. (R. at 26 (emphasis added), 560.) However, the notation that Plaintiff "is noncompliant with follow up and medication[,]" may, as the Commissioner asserts, "be fairly read as reflecting an on-going pattern of non- compliance[.]" (R. at 560, DE 14 at 14.) Moreover, while Plaintiff generally cites approximately 100 pages to illustrate that "despite the compliance she continued to have diabetes complications[,]" (DE 13 at 11, R. 635-736), the Commissioner points out that other records are "reflective of non-compliance with treatment regarding her overall health, including diabetes treatment[,]" such as Dolson's October 16, 2015 notes that Plaintiff was not taking her medication (R. at 341, 346, 565, 570) and Dolson's November 8, 2016 notes that Plaintiff is a "noncompliant diabetic" (R. at 691, 699, 704). (DE 14 at 14.) And, as noted above, the ALJ cited Plaintiff's own admission to medical personnel that "'she never checks her sugars.'" (R. at 26, quoting R. at 309.) Thus, the ALJ's statement is not materially inaccurate. Also, "[n]oncompliance is a sufficient reason to discount credibility." Reid v. Comm'r of Soc. Sec., No. 14-CV-11455, 2015 WL 5026118, at *9 (E.D. Mich. Aug. 25, 2015) (Murphy, J., adopting report and recommendation of Patti, M.J.) (referencing Sias, 861 F.2d at 480).
f. Plaintiff's testimony and summation
Finally, while the Court agrees that the ALJ did cite to Plaintiff's January 20, 2016 function report more than her February 15, 2017 testimony, the ALJ acknowledged the age of the function report when assigning it "some weight because it was completed over a year ago." (R. at 26, 28.) The ALJ characterized Plaintiff's testimony as "she can no longer work due to mental disorders and chronic musculoskeletal pain[,]" and "she wear[s] braces for her carpal tunnel syndrome." (R. at 26; see also, e.g., R. at 47-48, 70-71.) Yet, the ALJ also cited Plaintiff's function report when noting that certain "reported activities of daily living . . . [,]" namely concerning dog care, personal care, cooking and cleaning, "are generally inconsistent with the degree of functional limitation alleged." (R. at 28; see also, e.g., R. at 233-234.) The ALJ was not required to explain why she discredited each of the specific limitations about which Plaintiff testified at the hearing, and, in any event, Plaintiff's argument in this regard does not identify any contradictions between the "daily living and general limitations" described in the function report versus Plaintiff's testimony regarding those areas. (See DE 13 at 11-12.) In the end, as the Commissioner correctly points out, "[t]he ALJ's credibility findings are unchallengeable[.]" Payne v. Comm'r of Soc. Sec., 402 F. App'x 109, 113 (6th Cir. 2010). (DE 14 at 14-15.)
F. Conclusion
Plaintiff has the burden of proof on her statements of error. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) ("during the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five."). Plaintiff has not shown legal error that would upend the ALJ's decision. For the foregoing reasons, it is RECOMMENDED that the Court DENY Plaintiff's motion for summary judgment (DE 13), GRANT Defendant's motion for summary judgment (DE 14), and AFFIRM the Commissioner of Social Security's decision.
III. PROCEDURE ON OBJECTIONS
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response. Dated: July 31, 2019
/s/_________
Anthony P. Patti
UNITED STATES MAGISTRATE JUDGE