Opinion
Case No. 1:13-cv-583
06-26-2014
CHRISTINE NAPIER, Plaintiff, v. CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
Bowman, M.J.
MEMORANDUM OF OPINION AND DECISION
Plaintiff Christine Napier filed this Social Security appeal in order to challenge the Defendant's findings that she is not disabled. See 42 U.S.C. §405(g). Proceeding through counsel, Plaintiff presents two claims of error, both of which the Defendant disputes. The parties have consented to the jurisdiction of the Magistrate Judge for disposition of this matter. (Doc. 8). For the reasons explained below, the finding of non-disability is supported by substantial evidence in the administrative record, and is herein AFFIRMED.
I. Summary of Administrative Record
In September and October 2010, Plaintiff filed applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) alleging a disability onset date of June 18, 2010, due to physical and mental impairments. After Plaintiff's claims were denied initially and upon reconsideration, she requested a hearing de novo before an Administrative Law Judge ("ALJ"). On September 19, 2012, ALJ Kristen King held an evidentiary hearing at which Plaintiff appeared with counsel. The ALJ heard testimony from Plaintiff and an impartial vocational expert. (Tr. 31-87). On November 9, 2012, ALJ King denied Plaintiff's application in a written decision. (Tr. 12-25). Plaintiff now seeks judicial review of the denial of her applications for benefits.
Plaintiff was 45 years old on her alleged onset date and dropped out of school in the ninth grade. She has past relevant work as a return clerk and bench assembler. Plaintiff has a significant history of back pain, due in part, to multiple car accidents in 1985, 1991, and 1992. In May 2009 Plaintiff underwent a lumber fusion. She had back surgery again in July 2010. Plaintiff contends that she suffers from disabling pain, numbness and burning in her back, knees and legs.
Based upon the record and testimony presented at the hearing, the ALJ found that Plaintiff had the following severe impairments: "degenerative disc/joint disease of the lumbar spine, status post lumbar fusion surgeries; an adjustment disorder with mixed anxiety; and a depressive disorder." (Tr. 14). The ALJ concluded that none of Plaintiff's impairments alone or in combination met or medically equaled a listed impairment in 20 C.F.R. Part 404, Subp. P, Appendix 1. Despite these impairments, the ALJ determined that Plaintiff retains the RFC to perform sedentary work with the following limitations:
She requires a sit/stand option approximately every sixty minutes for one to two minutes duration staying at her workstation. Further, she could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, and crawl, but she should never climb ladders, ropes, or scaffolds. However, occasional use of a step stool or small ladder (such as six rungs or less) is permitted. She is limited to frequent gross manipulation, fine manipulation, and feeling bilaterally. She should also avoid concentrated exposure to extreme cold and vibration, as well as all exposure to unprotected heights and use of dangerous machinery. Additionally, she is limited to simple, routine, and repetitive tasks in a work environment that does not require production rate pace work or strict fast-paced time(Tr. 16). Based upon the record as a whole including testimony from the vocational expert, and given Plaintiff's age, limited education and work experience, and the RFC, the ALJ concluded that Plaintiff could perform jobs that exist in significant numbers in the national economy. (Tr. 24). Accordingly, the ALJ determined that Plaintiff is not under disability, as defined in the Social Security Regulations, and is not entitled to SSI. (Tr. 24-25).
quotas. Instead, she could perform goal-oriented work in an environment where changes occur no more than fifteen percent of the workday. She is limited to no more than occasional interaction with the public, but no transactional interaction, such as sales or negotiations. Finally, she is limited to no more than occasional interaction with co-workers and supervisors.
The Appeals Council denied Plaintiff's request for review. Therefore, the ALJ's decision stands as the Defendant's final determination. On appeal to this Court, Plaintiff first argues that the ALJ erred by: (1) improperly weighing the opinion evidence; and (2) failing to properly consider Plaintiff's use of a cane in her RFC assessment. Upon close analysis, I conclude that Plaintiff's assignments of error are not well-taken.
II. Analysis
A. Judicial Standard of Review
To be eligible for benefits, a claimant must be under a "disability" within the definition of the Social Security Act. See 42 U.S.C. §1382c(a). Narrowed to its statutory meaning, a "disability" includes only physical or mental impairments that are both "medically determinable" and severe enough to prevent the applicant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. See Bowen v. City of New York, 476 U.S. 467, 469-70 (1986).
When a court is asked to review the Commissioner's denial of benefits, the court's first inquiry 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) (additional citation and internal quotation omitted). In conducting this review, the court should consider 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, then that finding must be affirmed, even if substantial evidence also exists in the record to support a finding of disability. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). As the Sixth Circuit has explained:
The Secretary'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 Secretary may proceed without interference from the courts. If the Secretary's decision is supported by substantial evidence, a reviewing court must affirm.Id. (citations omitted).
In considering an application for supplemental security income or disability benefits, the Social Security Agency is guided by the following sequential benefits analysis: at Step 1, the Commissioner asks if the claimant is still performing substantial gainful activity; at Step 2, the Commissioner determines if one or more of the claimant's impairments are "severe;" at Step 3, the Commissioner analyzes whether the claimant's impairments, singly or in combination, meet or equal a Listing in the Listing of Impairments; at Step 4, the Commissioner determines whether or not the claimant can still perform his or her past relevant work; and finally, at Step 5, if it is established that claimant can no longer perform his past relevant work, the burden of proof shifts to the agency to determine whether a significant number of other jobs which the claimant can perform exist in the national economy. See Combs v. Commissioner of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006); 20 C.F.R. §§404.1520, 416.920.
A plaintiff bears the ultimate burden to prove by sufficient evidence that he or she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). A claimant seeking benefits must present sufficient evidence to show that, during the relevant time period, he or she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left him or her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
B. The ALJ's Decision is Substantially Supported
1. Evaluation of the Opinion Evidence
Plaintiff argues first that the ALJ erred in rejecting the opinion of Dr. Stambough, Plaintiff's treating orthopedic surgeon. Specifically, Plaintiff asserts that the ALJ improperly assigned little weight to Dr. Stambrough's RFC assessment limiting Plaintiff to less than sedentary work.
In evaluating the opinion evidence, "[t]he ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well-supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Blakley v. Commissioner of Social Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6th Cir. 2004). If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician. Wilson, 378 F.3d at 544; see also 20 C.F.R. § 404.1527(d)(2).
Furthermore, an ALJ must "always give good reasons in [the ALJ's] notice of determination or decision for the weight [the ALJ] give[s] [the claimant's] treating source's opinion." 20 C.F.R. § 404.1527(d)(2); but see Tilley v. Comm'r of Soc. Sec., No. 09-6081, 2010 WL 3521928, at *6 (6th Cir. Aug.31, 2010) (indicating that, under Blakely and the good reason rule, an ALJ is not required to explicitly address all of the six factors within 20 C.F.R. § 404.1527(d)(2) for weighing medical opinion evidence within the written decision).
Here, the record indicates that Plaintiff underwent a lumbar fusion in May 2009, performed by her orthopedic surgeon, Dr. Jeffrey L. Stambaugh. Thereafter in June 2010 she again saw Dr. Stambaugh complaining of increased pain. (Tr. 18, 348-49, 431). In July 2010, Plaintiff underwent another back surgery. (Tr. 18. 400-01). Three weeks after this surgery, Dr. Stambaugh indicated that Plaintiff could return to her normal activities. (Tr. 18, 446). Plaintiff returned for a follow-up visit with Dr. Stambaugh in September 2010, complaining of numbness. Dr. Stambaugh's treatment notes state in relevant part:
Basically, she's regressed to the point of pre-surgery. She's still requiring medications at the same rate as she was before.
***
She's complaining of a patch of numbness in the L5 distribution on the left leg. This is definitely not expected from an L5-S1 fusion, although there could be issues in the neural forminal. I'll evaluate that with an MRI with gadolinium.
***
This is no longer a surgical issue unless there is something on the MRI that I'm not expecting. Bowel and bladder habits are normal. Here neurological exam is normal, other than her subjective sensory symptoms along the lateral side of her ankle.
Plaintiff presented to Dr. Stambough for another follow-up in in October 2010. (Tr. 639). Plaintiff complained of "newer back pain since she returned to work." Id. He further noted that her complaints of lower back pain were "not associated with any neurological deficits." Id. Dr. Stambough referred Plaintiff to Dr. Minhas for pain management care. Id.
Plaintiff was next seen by Dr. Stambough on November 11, 2011, over a year since her last visit. At that time, Plaintiff complained of back and neck pain, as well as numbness and tingling in her feet and hands. (Tr. 637). Upon examination, Dr. Stambough noted her fusion was solid and her new MRI "confirms multilevel disc disease with disc tearing at L4-5, disc bulging at L2-3 and L3-4. Her EMG shows chronic changes at S1. This is not the predominant pattern of her pain." Id. He further noted that she has no new or progressive neurological deficit, noting that her neurologic exam is nonfocal and she has no bowel and bladder habit disturbances. Dr. Stambough goes on to state that Plaintiff "in my opinion, ha[s] more fibromyalgic type symptoms and may benefit from Lyrica. . . ." Id.
Thereafter, on November 18, 2011, Dr. Stambough completed a form wherein he opined that Plaintiff could sit less than two hours in an eight-hour work day, she needed to use a cane, and she would likely be absent from work more than three times per month. (Tr. 641-44).
In formulating Plaintiff's RFC, the ALJ assigned little weight to Dr. Stambough's opinion "because it is neither well supported by his own finding nor consistent with the substantial evidence of record." (Tr. 22). Conversely, the ALJ gave "great weight" to the reports from the state agency medical consultants. (Tr. 21). Dr. Willa Caldwell reviewed Plaintiff's records and opined on June 1, 2011 that Plaintiff was capable of performing a reduced range of light work. (Tr. 21, 88-89, 93). On September 8, 2011, Dr. Paul Morton determined that Plaintiff was capable of performing a reduced range of light work. (Tr. 21, 105-06, 110-11). Dr. Morton stated that, despite Plaintiff's back surgeries, her "most recent records show a good response to current pain management protocol with significant relief of [her] symptoms." (Tr. 110).
Plaintiff argues that she has a "longitudinal history" with Dr. Stambough, and that, as an orthopedic surgeon, Dr. Stambough's opinion should have been given greater weight. Plaintiff's assertion lacks merit.
The ALJ noted that Dr. Stambough had not treated claimant in over a year, and during the course of that year, Plaintiff's treating physician routinely documented effective pain relief and improved overall functioning; Dr. Stambough noted on November 11, 2011 that Plaintiff did not display any new or progressive neurological defects and he found that Plaintiff's diagnostic imaging showed that her lumbar fusion is "technically solid" with no evidence of any significant adjacent segment degeneration or instability; he offered no additional treatment and deferred prescribing Plaintiff any medications to her current treating physician. (Tr. 22, 637-38, 641-44). The ALJ's rational comports with Agency regulations and controlling law.
As noted by the Commissioner, while Dr. Stambaugh performed plaintiff's back surgery, he had not treated her otherwise in over a year. Notably, after surgery, he referred Plaintiff to another physician (Dr. Minhas) to address her pain symptoms. Thus, the ALJ properly discounted Dr. Stambaugh's findings because he was not treating her for her pain symptoms when he proffered his opinion. See Durio v. Comm'r of Soc. Sec., No. 95- 1089, 1996 WL 169362, at *1 (6th Cir. Apr. 10, 1996) ("The weight to be accorded the physician's conclusion as to disability depends upon the nature of the medical facts upon which the physician relies in reaching his conclusion - and in the final analysis, of course, it is the ALJ, not the treating physician, who must decide whether a claimant is disabled for purposes of the Social Security Act."). Furthermore, Dr. Stambaugh determination that Plaintiff cannot sustain long-term employment is based on her "subjective pain," rather than any of his objective medical findings or treatment history with Plaintiff. (Tr. 638). See Sims v. Comm'r of Soc. Sec., 406 Fed. App'x 977, 979-80 (6th Cir. 2011) (finding ALJ appropriately discounted treating physician who had not treated claimant for 18 months prior to proffering the opinion and when it was based "largely on plaintiff's subjective complaints").
Additionally, the ALJ also considered Plaintiff's testimony and self-reports in fashioning the RFC, and noted that "repeated inconsistencies" in her statements impacted her credibility. (Tr. 19-20). A court should defer to an ALJ's credibility determination where, as here, there are "demonstrable discrepancies" between claimant's testimony and the written record. Gooch v. Sec'y of Health and Human Servs., 833 F.2d 589, 592 (6th Cir. 1987). For example, in October 2010, Plaintiff informed the Social Security Administration that she was "always in pain" that she rated as an eight on a ten-point scale, while she reported to Dr. Minhas in the same month that her pain waxed and waned and rated it a three or four on a ten-point scale. (Tr. 18, 214, 449).
Additionally, in August 2011, Plaintiff completed a function report in conjunction with her disability application stating that she was "unable to sit, walk or stand for any period of time," which contrasted with her reports to her doctor in July 2011 that her average pain level was a three on a scale of one to ten, and in September 2011 that her pain was "tolerable" with medication, which provided 90% relief. (Tr. 19, 247, 592-93, 629). The ALJ also noted that in September 2012, Plaintiff reported to Dr. Beresh that her activities of daily living improved with medication, and the doctor noted that Plaintiff was "tolerating meds well with no side effects, they allow pt to perform ADLs, remain active and have a better QOL with no somnolence or driving impairment." (Tr. 19, 709). That report was inconsistent with Plaintiff's hearing testimony one week later that she had significant medication side effects and an inability to complete most activities of daily living. (Tr. 19-20, 40-46, 52).
Accordingly, the ALJ's decision to afford little weight to Dr. Stambough's RFC assessment is substantial supported by the record. As such, the ALJ properly evaluated the medical evidence of record and this finding will not be disturbed by the Court.
2. Plaintiff's use of a Cane
Plaintiff's second assignment of error asserts that the ALJ's RFC assessment failed to consider Plaintiff's use of a cane. In this regard, Plaintiff asserts that inclusion of this limitation would eliminate all jobs according to the testimony of the Vocational Expert, except for surveillance system monitor, which does not constitute a significant number of jobs. Plaintiff's contention lacks merit.
As noted by the ALJ, "Plaintiff alleged that she was told to use a cane, but there is no evidence from any treating source that they prescribed, or even observed the claimant using an ambulatory aid." (Tr. 20). The ALJ further noted that even if Plaintiff required the use of a cane, such a limitation "does not significantly erode the occupational base. . . . " Id. Other than her own testimony, the only evidence Plaintiff points to for her cane use is Dr. Stambaugh's opinion in 2011 that she needed to use a cane. In his November, 2011 functional assessment, Dr. Stambaugh checked "yes" in response to a question whether Plaintiff must use a cane or other assistive device while standing/walking. (Tr. 643). As explained above, this opinion was inconsistent with the medical evidence and was, by Dr. Stambaugh's own admission, based on Plaintiff's subjective statements. Notably, none of Dr. Stambaugh's medical records mention a cane. (Tr. 345-79, 407-48).
Furthermore, the ALJ noted that the record clearly reveals Plaintiff's ability to ambulate without the use of a cane. Namely, the consultative examiner Dr. Richard Sheridan noted that Plaintiff walked without a cane, (Tr. 19, 537). Dr. Minhas's records indicated a normal gait without assistive devices, a normal range of motion and normal coordination. (Tr. 19, 590, 594, 600, 603, 607, 634, 670, 677, 680, 698, 700). Dr. Beresh's notes indicate that Plaintiff described herself as "very active." (Tr. 19, 712). Furthermore, the state agency medical consultants noted no cane use from a review of the medical records and opined that Plaintiff could perform a reduced range of light work. (Tr. 21, 85-86, 88-89, 102, 105-06).
Accordingly, the ALJ properly determined that Plaintiff's use of a cane was not supported by the evidence of record. It is well established that the ALJ is not required to include limitations in his hypothetical question that were not supported or not credible. See Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir.1993) ("It is well established that an ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact.").
Moreover, the ALJ posed several hypothetical questions to the vocational expert, which included sedentary work with a sit/stand option and no limitations for the use of a cane, the use of a cane for all surfaces, and the use of a cane for uneven surfaces. (Tr. 65-75). The vocational expert testified that the following sedentary jobs with a sit/stand option were available in significant numbers: document preparer, lampshade assembler, optical goods final assembler, surveillance monitor, and dowel inspector. (Tr. 66-67). The vocational expert testified that all of these jobs remain available for someone who would need to use a cane for uneven surfaces or prolonged walking, but that if someone needed to use a cane on all surfaces, that individual would be able to do only the surveillance monitor position. (Tr. 68, 73-74).
In light of the foregoing, the undersigned finds that the ALJ's determination that Plaintiff did not require the use of a cane is substantially supported by the record.
III. Conclusion
For the reasons explained herein, IT IS ORDERED THAT Defendant's decision is SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED, and this case is CLOSED.
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Stephanie K. Bowman
United States Magistrate Judge