Opinion
Civil Action 2:14-cv-738
03-31-2015
JANETTA M ORRIS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
I. Background
This is an action instituted under the provisions of 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security denying plaintiff's application for a period of disability and disability insurance benefits. This matter is before the Court, with the consent of the parties pursuant to 28 U.S.C. § 636(c), for consideration of Plaintiff's Statement of Errors ("Statement of Errors"), Doc. No. 14, Defendant's Memorandum in Opposition, Doc. No. 22, and Plaintiff's Reply, Doc. No. 23.
Plaintiff Janetta M. Orris filed her application for benefits on August 15, 2011, alleging that she has been disabled since July 18, 2011. PAGEID 150-53. The claim was denied initially and upon reconsideration, and plaintiff requested a de novo hearing before an administrative law judge.
An administrative hearing was held on February 12, 2013, at which plaintiff, represented by counsel, appeared and testified, as did Carl W. Hartung, who testified as a vocational expert. PAGEID 52, 76. In a decision dated March 12, 2013, the administrative law judge concluded that plaintiff was not disabled from September 19, 2011, through the date of the administrative decision. PAGEID 52-60. That decision became the final decision of the Commissioner of Social Security when the Appeals Council declined review on May 9, 2014. PAGEID 41-43.
Plaintiff was 64 years of age on the date of the administrative decision. See PAGEID 60, 150. Plaintiff was last insured for disability insurance purposes on June 30, 2014. PAGEID 54. Plaintiff has past relevant work as a legal secretary and secretary. PAGEID 59. She has not engaged in substantial gainful activity since September 19, 2011, the alleged date of onset of disability. PAGEID 54.
II. Medical Evidence
State agency physician Ermias Seleshi, M.D., reviewed the record and opined on December 24, 2011, that plaintiff does not have a "significant impairment due to psychological factors." PAGEID 106. Melanie Bergsten, Ph.D., reviewed the record on February 17, 2012, and affirmed Dr. Seleshi's assessment. PAGEID 118-19.
Bradley J. Lewis, M.D., reviewed the record for the state agency and completed a residual functional capacity assessment on December 7, 2011. PAGEID 107-09. Dr. Lewis opined that plaintiff can lift and/or carry 20 pounds occasionally and 10 pounds frequently. PAGEID 108. Plaintiff can stand and/or walk for about six hours in an eight-hour workday and sit for about six hours in a normal eight-hour workday. Id. Dr. Lewis opined that plaintiff can occasionally climb ladders/ropes/scaffolds and can frequently climb ramps/stairs, stoop, kneel, crouch, and crawl. PAGEID 108-09. Dimitri Teague, M.D., also reviewed the record for the state agency and completed a residual functional capacity assessment on March 3, 2012. PAGEID 120-22. Dr. Teague affirmed Dr. Lewis's assessment, but also opined that, as of February 2012, plaintiff "had developed some difficulty with fine manipulation, and it should be limited to frequent." Id.
Plaintiff treated with Jennifer Richardson, M.D., in January 2005. PAGEID 213-19. Plaintiff reported that she had been diagnosed with fibromyalgia in 1995 and that her symptoms waxed and waned in severity. PAGEID 219. Upon examination, Dr. Richardson noted tenderness in 16/18 fibromyalgia tender points, intact extraocular muscles, clear sclera, and no synovitis or joint effusions. Id. Plaintiff's gait was normal and her mood and insight were appropriate. Id. Dr. Richardson diagnosed osteoarthritis of the knees and fibromyalgia and ordered a bone density test. Id. The bone density test revealed osteopenia in the spine and hip. PAGEID 213.
Plaintiff treated again with Dr. Richardson on September 12, 2011. PAGEID 241-45. Blood work was negative for rheumatoid factor. PAGEID 245. Plaintiff reported persistent, but fluctuating, pain all over her body, as well as limitation in activity, fatigue, and morning stiffness. PAGEID 241. Plaintiff reported that her symptoms were aggravated by reaching, gripping, standing, walking, climbing stairs, arising from a chair, and cold or rainy weather. Id. Her symptoms were relieved by rest, medication, and sitting. Id. Plaintiff reported no vision changes, abdominal pain, constipation, decreased appetite, cold or heat intolerance, depression, dizziness, extremity weakness, gait disturbance, headache, memory impairment, numbness in extremities, nausea, chest pain, diarrhea, wheezing, hearing loss, hair loss, vomiting, rash or skin lesions, easy bruising, or hives. PAGEID 242. Upon examination, plaintiff had normal range of motion, normal muscle strength, and stability in all extremities with no pain. PAGEID 243. Respiratory effort was normal and there was no abdominal tenderness, impressive skin lesions, or edema. PAGEID 243-44. Dr. Richardson prescribed Neurontin and noted that plaintiff may benefit from a fibromyalgia therapy program. PAGEID 244.
Plaintiff has treated with James Dunnan, M.D., for fibromyalgia since before 2001, PAGEID 239, and saw Dr. Dunnan approximately 16 times between November 2010 and October 2012. PAGEID 249-58, 286-91, 296. On May 13, 2011, plaintiff complained of severe fatigue and increased symptoms of fibromyalgia. PAGEID 256. On May 24, 2011, plaintiff reported that her muscles felt tired, that she had decreased concentration, felt exhausted, had pain in her whole body, experienced poor sleep, and felt like she always had the flu. PAGEID 255. She reported trouble sleeping, irritability, and anxiety on July 12, 2011. PAGEID 254. On August 24, 2011, plaintiff reported muscle weakness and fatigue with minimal exertion; she felt like her muscles were "giving out." PAGEID 252. Plaintiff also reported constipation, muscle weakness, swollen or painful joints, but no sleeping problems on October 17, 2012. PAGEID 288.
Dr. Dunnan completed a medical statement on May 13, 2011, in which he noted that plaintiff "misses work due to fibromyalgia." PAGEID 224. According to Dr. Dunnan, plaintiff would need to reduce the number of hours worked "when she has a flare-up" and would be "unable to work while having a flare-up." PAGEID 225. Dr. Dunnan further opined that plaintiff would have flare-ups three to four times per month, each episode lasting one to two days. Id.
Dr. Dunnan completed a statement of disability on May 29, 2011, in connection with plaintiff's application for long term disability benefits. PAGEID 239-40. Dr. Dunnan referred to plaintiff's diagnosis of fibromyalgia, her "[s]ubjective symptoms," and painful joints and muscles on examination. PAGEID 239. According to Dr. Dunnan, plaintiff is unable to stand more than 30 minutes, gets tired after walking more than 400 yards, feels tired after sitting 15 minutes, is unable to lift, push, or pull more than 15 pounds without experiencing pain, gets weak with less than five minutes of keyboard use/repetitive hand motion, and is unable to drive when she is experiencing a fibromyalgia flare-up. PAGEID 240. Dr. Dunnan opined that plaintiff became unable to work due to fibromyalgia on May 29, 2011. Id.
On November 23, 2011, Dr. Dunnan noted that plaintiff "has Fibromyalgia and is unable to work." PAGEID 248. Dr. Dunnan further opined as follows:
She does not have any motor or sensory defects. She does not have neuropathy. She does not have anxiety that is interfering with her work. She is fully capable of managing any benefits that she may receive. She experiences leg pain with walking that would interfere with her ability to work. Her gait is normal for short periods of time. She does not need ambulatory aid. She has hand, elbow and arm pain with doing work on a computer and when writing. She has trouble doing these activities. Her main diagnosis is Fibromyalgia. She currently takes Tylenol with codeine to relieve the pain. This helps some, but does not totally relieve the pain. She has difficulty lifting even small amounts of weight. She cannot sit, stand or walk for extended periods of time due to pain in her back, neck and legs. Currently Janetta is totally disabled due to Fibromyalgia.Id.
Plaintiff was evaluated by Sudhir Dubey, Psy.D., on December 19, 2011. PAGEID 259-65. Plaintiff reported that she no longer worked because of physical health problems, but that she also took medication for anxiety. PAGIED 260-61. Plaintiff reported that her general activities typically include washing up, showering, changing clothes, driving, shopping for personal needs, paying bills, and caring for pets. PAGEID 262. She has regular interaction with her family and she reported regular activities with friends. Id. Plaintiff typically leaves her house five times per week to shop, go to dinner, attend church, and visit friends and family. Id. Her reported hobbies include reading, use of a computer, scrapbooking, and watching television. Id. Dr. Dubey assigned a global assessment of functioning score ("GAF") of 70 and diagnosed anxiety disorder, NOS. PAGEID 263. Dr. Dubey opined that plaintiff would be able to understand, remember, and carry out simple and multi-step instructions, and could maintain attention, concentration, persistence, and pace sufficient to perform simple and multi-step instructions in a work setting. PAGEID 264.
"The GAF scale is a method of considering psychological, social, and occupational function on a hypothetical continuum of mental health. The GAF scale ranges from 0 to 100, with serious impairment in functioning at a score of 50 or below." Norris v. Comm'r of Soc. Sec., 461 F. App'x 433, 436 n.1 (6th Cir. 2012). A GAF in the 61 to 70 range indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Ledford v. Astrue, 311 F. App'x 746, 754 (6th Cir. 2008) (alterations in original; internal quotations and emphasis omitted)).
Dr. Dunnan completed a medical source statement on January 29, 2012. PAGEID 267-69. Dr. Dunnan diagnosed carpal tunnel syndrome and anxiety, and indicated that plaintiff meets the American College of Rheumatology criteria for a diagnosis of fibromyalgia. PAGEID 267. Dr. Dunnan specifically noted symptoms of multiple tender points, nonrestorative sleep, chronic fatigue, morning stiffness, muscle weakness, numbness and tingling, sicca symptoms, anxiety, panic attacks, and depression. Id. Plaintiff complained of pain, rated as 8 on a 10-point scale, in her lumbosacral, cervical, and thoracic spine, chest, shoulders, arms, hands/fingers, hips, legs, and knees/ankles/feet. Id. Plaintiff's pain is precipitated by changing weather, fatigue, movement/overuse, lifting, bending, climbing stairs, stress, hormonal changes, and remaining in a static position. PAGEID 268. According to Dr. Dunnan, plaintiff's pain would constantly interfere with the attention, concentration, persistence, and pace needed to perform even simple work related tasks. Id. Dr. Dunnan opined that plaintiff can sit 30 minutes before needing to get up and can stand for 15 minutes before needing to sit; she can sit and stand/walk for less than 2 hours in an eight-hour workday. Id. Plaintiff can walk "1/2 block [. She] even stops during shopping in grocery stores." Id. Plaintiff can lift and carry 10 to 20 pounds rarely and five to 10 pounds occasionally. Id. Dr. Dunnan reported that plaintiff "is completely unable to work" and that "when she was working she was frequently absent from work." PAGEID 269.
On February 8, 2012, Dr. Dunnan opined that plaintiff suffers from "extreme pain in her back, extremities, neck, shoulders," and that she "recently developed the inability to grasp small objects such as pens and cups . . . due to pain [and] weakness in the hands and numbness in the hands." PAGEID 270-72. Dr. Dunnan opined that plaintiff "experiences tingling in her feet with walking" and "has a lower amount of energy which also has gotten worse recently." PAGEID 271. Plaintiff "has pain to even small amounts of pressure on all the above areas. She has weakness in the grip of her hands." Id. Dr. Dunnan further opined that plaintiff
is unable to work due to extreme pain in all the previously listed areas. She cannot sit for prolonged periods of time, hold a pen, use a keyboard. Unable to do writing for any extended time. Unable to lift boxes. She has difficulty concentrating due to the pain of the fibromyalgia and due to anxiety. Unable to stand to do tasks at work due to pain and feet numbness.PAGEID 272.
Dr. Dunnan completed a statement of continued disability on April 30, 2012, PAGEID 292-93, in which he opined that plaintiff is unable to sit, stand, or walk for any amount of time without pain. PAGEID 293. She can occasionally lift and carry up to 10 pounds, reach, and finger/handle. Id.
III. Administrative Decision
The administrative law judge found that plaintiff has the severe impairment of fibromyalgia, PAGEID 54, but that this impairment neither meets nor equals a listed impairment and leaves plaintiff with the residual functional capacity ("RFC") to
lift and carry 20 pounds occasionally and 10 pounds frequently, stand and walk for a total of 6 hours in an 8hour day, sit for a total of 6 hours in an 8-hour day, and push and pull on an unlimited basis. She can frequently climb ramps and stairs; can frequently stoop, kneel, crouch, and crawl; can frequently perform bilateral fine manipulation; and can occasionally climb ladders, ropes, and scaffolds.PAGEID 56. Relying on the testimony of the vocational expert, the administrative law judge found that this RFC does not preclude the performance of plaintiff's past relevant work as a legal secretary and secretary. PAGEID 59. Accordingly, the administrative law judge concluded that plaintiff was not disabled within the meaning of the Social Security Act from September 19, 2011, through the date of the administrative decision. PAGEID 60.
IV. Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the Commissioner's decision is limited to determining whether the findings of the administrative law judge are supported by substantial evidence and employed the proper legal standards. Richardson v. Perales, 402 U.S. 389 (1971); Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). Substantial evidence is 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. See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981). This Court does not try the case de novo, nor does it resolve conflicts in the evidence or questions of credibility. See Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this Court must examine the administrative record as a whole. Kirk, 667 F.2d at 536. If the Commissioner's decision is supported by substantial evidence, it must be affirmed even if this Court would decide the matter differently, see Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir. 1983), and even if substantial evidence also supports the opposite conclusion. Longworth, 402 F.3d at 595.
Plaintiff argues that the administrative law judge erred in evaluating the medical opinions of record. According to plaintiff, the administrative law judge erred in failing to grant controlling weight to the opinions of her treating physician Dr. Dunnan and in failing to discuss the appropriate factors in considering his opinions. Statement of Errors, pp. 10-16. Plaintiff specifically argues that the administrative law judge improperly failed to give consideration to the treating relationship between plaintiff and Dr. Dunnan, selectively cited plaintiff's reported activities of daily living, and "never articulate[d] how the objective evidence detracts from the treating physician's opinion." Id.
The opinion of a treating provider must be given controlling weight if that 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." 20 C.F.R. § 404.1527(c)(2). Even if the opinion of a treating provider is not entitled to controlling weight, an administrative law judge is nevertheless required to evaluate the opinion by considering such factors as the length, nature and extent of the treatment relationship, the frequency of examination, the medical specialty of the treating physician, the extent to which the opinion is supported by the evidence, and the consistency of the opinion with the record as a whole. 20 C.F.R. § 404.1527(c)(2)-(6); Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Moreover, an administrative law judge must provide "good reasons" for discounting the opinion of a treating provider, i.e., reasons that are "'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.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007) (quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)). This special treatment afforded the opinions of treating providers recognizes that
"these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of
[the claimant's] medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations."Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Dr. Dunnan has treated plaintiff's diagnosed fibromyalgia since before 2001, and she treated with Dr. Dunnan approximately 16 times between November 2010 and October 2012. PAGEID 239, 249-58, 286-91, 296. As noted supra, Dr. Dunnan completed medical statements on May 13, 2011, PAGEID 222-26, May 29, 2011, PAGEID 239-40, November 23, 2011, PAGEID 248, January 29, 2012, PAGEID 267-69, February 8, 2012, PAGEID 272, and April 30, 2012, PAGEID 292-93.
The administrative law judge categorized Dr. Dunnan as a treating physician and evaluated his opinions as follows:
While a treating physician's opinion is entitled to controlling weight if the opinion is consistent with the totality of the evidence of record, less weight must be given to the opinions of the claimant's treating physician, Dr. Dunnan, dated May 29, 2011 (Exhibit 2F pp. 4-6 (undated), 21), November 23, 2011 (Exhibit 4F p. 3), January 24, 2012 (Exhibit 6F), February 8, 2012 (Exhibit 7F), and April 30, 2012 (exhibit 11F p. 10), as his opinions are primarily based upon the claimant's subjective reports and there is insufficient objective medical evidence to support his opinions. Further, these opinions are inconsistent with the claimant's own reports of her activities of daily living as discussed above. Moreover, the final responsibility to determine whether a claimant is "disabled" or "unable to work" is reserved for the Commissioner pursuant to 20 CFR 404.1527(e) and 416.927(e).PAGEID 57.
Although succinct, the administrative law judge's analysis of Dr. Dunnan's opinions is sufficiently specific as to the weight given to the opinions and the reasons for assigning that weight. The administrative law judge categorized Dr. Dunnan as a treating physician, but discounted his opinions because they were "primarily based upon the claimant's subjective reports and there is insufficient objective medical evidence to support his opinions." Id. These findings enjoy substantial support in the record. As noted by the administrative law judge, the "[o]bjective evidence is very scant." PAGIED 58. Although Dr. Dunnan treated plaintiff on a number of occasions and offered several medical opinions, his treatment records contain very few objective medical findings and do not suggest that plaintiff is as limited as Dr. Dunnan suggests. See PAGEID 249-58, 286-91, 296. Moreover, the majority of Dr. Dunnan's treatment notes merely document plaintiff's subjective complaints, which the administrative law judge found to be not entirely credible. See id.; PAGEID 57-58. The administrative law judge noted that Dr. Dunnan was a treating source and that he offered six medical opinions in a one year time period, but he found that Dr. Dunnan's opinions were not consistent with the "very scant" objective evidence. PAGEID 57-58. Under the circumstances, a formulaic recitation of factors is not required. See Friend v. Comm'r of Soc. Sec., 375 F. App'x 543, 551 (6th Cir. 2010) ("If the ALJ's opinion permits the claimant and a reviewing court a clear understanding of the reasons for the weight given a treating physician's opinion, strict compliance with the rule may sometimes be excused."). Moreover, as noted by the administrative law judge, Dr. Dunnan's opinion that plaintiff is "unable to work," PAGEID 225, 240, 248, 269, 272, is tantamount to a disability opinion, a matter reserved to the Commissioner for determination. See Sims v. Comm'r of Soc. Sec., 406 F. App'x 977, 980 n.1 (6th Cir. 2011). See also Payne v. Comm'r of Soc. Sec., 402 F. App'x 109, 112 (6th Cir. 2010) ("The applicable regulations provide that a statement by a medical source that the claimant is 'unable to work' is not a 'medical opinion[;] rather, it is an opinion on an 'issue[] reserved to the Commissioner because [it is an] administrative finding[] that [is] dispositive of a case, i.e., that would direct the determination or decision of disability.'") (quoting 20 C.F.R. § 404.1527(e)(1)).
Plaintiff next argues that the administrative law judge erred in granting "significant weight" to the opinion of state agency physician, Dr. Teague. Statement of Errors, pp. 12-16. Plaintiff specifically argues that the administrative law judge failed to articulate how the objective evidence detracts from Dr. Dunnan's opinion but supports Dr. Teague's opinion. Id. at p. 12.
As noted supra, Dr. Teague reviewed the record and completed a residual functional capacity assessment on March 3, 2012. PAGEID 120-22. Dr. Teague opined that plaintiff could lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for about six hours in an eight-hour workday, and sit for about six hours in a normal eight-hour workday. PAGEID 120. Plaintiff could occasionally climb ladders/ropes/scaffolds and could frequently climb ramps/stairs, stoop, kneel, crouch, and crawl. PAGEID 121. As of February 2012, plaintiff "had developed some difficulty with fine manipulation, and it should be limited to frequent." Id. Dr. Teague also noted postural limitations due to pain and attributed plaintiff's lifting, standing, walking, and sitting limitations to her allegations of fibromyalgia. PAGEID 120-21.
As a physician who did not examine plaintiff but who provided medical opinions in this case, Dr. Teague is properly classified as a nonexamining source. 20 C.F.R. § 404.1502 (A nonexamining source is "a physician, psychologist, or other acceptable medical source who has not examined [the claimant] but provides a medical or other opinion in [the claimant's] case."). An administrative law judge is required to evaluate every medical opinion, regardless of its source. 20 C.F.R. §§ 404.1520b, 404.1527. When evaluating the opinion of a state agency reviewing physician such as Dr. Teague, an administrative law judge should consider factors "such as the consultant's medical specialty and expertise in [the Commissioner's] rules, the supporting evidence in the case record, supporting explanations the medical or psychological consultant provides, and any other factors relevant to the weighing of the opinions." 20 C.F.R. § 404.1527(e)(2)(ii). "Unless a treating source's opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical . . . consultant," "as the administrative law judge must do for any opinions from treating sources, nontreating sources, and other nonexamining sources." Id.
In the case presently before the Court, the administrative law judge evaluated the opinion of Dr. Teague (and state agency physician Melanie Bergsten, Ph.D.) as follows:
Plaintiff does not challenge the administrative law judge's evaluation of Dr. Bergsten's opinion. Statement of Errors, p. 12.
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The State Agency consultants' assessments at Exhibit 5A are given significant weight as the assessments are consistent with and well supported by the evidence of the record as a whole and are accepted as an accurate representation of the claimant's physical and mental status. Moreover, the evidence received into the record after the reconsideration determination concerning the claimant's physical and mental status did not provide any credible or objectively supported new and material information that would significantly alter the State Agency consultants' findings.PAGEID 57.
The administrative law judge followed the proper procedures when evaluating Dr. Teague's opinion, and his findings enjoy substantial support in the record. As noted by the administrative law judge, the "medical evidence of record shows that the claimant has . . . some limitation related to the performance of bilateral fine manipulation, which are appropriately accounted for [in Dr. Teague's opinion]." PAGEID 57. See also PAGEID 270-72 (Dr. Dunnan's February 8, 2012 opinion that plaintiff "recently developed the inability to grasp small objects such as pens and cups . . . due to pain [and] weakness in the hands and numbness in the hands."). Moreover, the administrative law judge evaluated the medical evidence and explained that there was little objective medical evidence of limitations in functioning. See PAGEID 57-59. Plaintiff disagrees with the administrative law judge's evaluation of the evidence, but this Court is not permitted to reweigh that evidence where, as here, the administrative law judge followed the proper procedures and his analysis is supported by substantial evidence.
Plaintiff next challenges the administrative law judge's credibility determination. Statement of Errors, pp. 16-20. Plaintiff specifically argues that the administrative law judge improperly discounted her credibility on the basis that plaintiff did not have positive tender points because The 2010 American College of Rheumatology Preliminary Diagnostic Criteria no longer requires a finding of positive tender points for a diagnosis of fibromyalgia. Id. at p. 18. Plaintiff also argues that it was improper to discount her credibility "based on the lack of motor or sensory defects, neuropathy, and or anxiety that was interfering with Plaintiff's work as well as the lack of use of any ambulatory aids," because "these would not be expected findings with fibromyalgia." Id. Plaintiff further complains that the administrative law judge only selectively considered plaintiff's reported activities of daily living. Id. at p. 19.
A claimant's subjective complaints must be supported by objective medical evidence in order to serve as a basis for a finding of disability. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1234 (6th Cir. 1993). See also 42 U.S.C. § 423(d)(5)(A). In evaluating subjective complaints, it must be determined whether there is objective medical evidence of an underlying medical condition. Stanley v. Sec'y of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994). If so, then the evaluator must determine (1) whether objective medical evidence confirms the severity of the complaint arising from the condition; or (2) whether the objectively established medical condition is of such severity that it can reasonably be expected to produce the alleged complaint. Id.; Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
In evaluating a claimant's credibility, an administrative law judge should consider the objective medical evidence and the following factors:
1. The individual's daily activities;SSR 96-7, 1996 WL 374186 (July 2, 1996). The administrative law judge's credibility determination is accorded great weight and deference because of the administrative law judge's unique opportunity to observe a witness's demeanor while testifying. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)). However, credibility determinations must be clearly explained. See Auer v. Sec'y of Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987). If the administrative law judge's credibility determinations are explained and enjoy substantial support in the record, a court is without authority to revisit those determinations. See Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec'y of Health, Educ. & Welfare, 577 F.2d 383, 386-87 (6th Cir. 1978).
2. The location, duration, frequency, and intensity of the individual's pain or other symptoms;
3. Factors that precipitate and aggravate the symptoms;
4. The type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms;
5. Treatment, other than medication, the individual receives or has received for relief of pain or other symptoms;
6. Any measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and
7. Any other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.
In the case presently before the Court, the administrative law judge found that plaintiff's "subjective complaints and alleged limitations are not fully persuasive." PAGEID 59. In making this determination, the administrative law judge noted, inter alia, that there was a "general lack of objective evidence to support [plaintiff's] subjective complaints." PAGEID 58. The administrative law judge also noted "other considerations that weigh against the claimant's overall credibility:"
For example, the claimant's treatment records show a continuing diagnosis of fibromyalgia, but, except for an exam on January 4, 2005 (Exhibit 1F p. 8), there are no detailed exam findings that demonstrate the location of tender points (See, generally, Exhibits 4F and 11F). In November 2011, her treating physician, Dr. Dunnan, noted no motor or sensory defects, no neuropathy, no anxiety that was interfering with her work, and no use of any ambulatory aids (Exhibit 4F p. 3).Id. Moreover, the administrative law judge evaluated plaintiff's activities of daily living and, as plaintiff acknowledges, "accurately summarized Plaintiff's hearing testimony." Statement of Errors, p. 5; PAGEID 58-59.
Plaintiff argues that the administrative law judge cited evidence that is not relevant to fibromyalgia. Statement of Errors, pp. 18-19. In particular, plaintiff takes issue with the administrative law judge's citation to Dr. Dunnan's November 2011 report, which noted "no motor or sensory defects, no neuropathy, no anxiety that was interfering with her work, and no use of any ambulatory aids." Id.; PAGEID 58. This opinion is, however, relevant to plaintiff's allegation that she suffers from anxiety, PAGEID 102, and to her testimony about walking and lifting limitations. Plaintiff cites to a list of fibromyalgia symptoms and argues that the administrative law judge erred in considering symptoms not on the list. Statement of Errors, pp. 18-19 (citing SSR 12-2p, 2012 WL 3104869 (July 25, 2012). Notably, however, plaintiff's Statement of Errors does not cite to any objective medical evidence that would suggest that plaintiff's fibromyalgia causes functional limitations that exceed the RFC assessed by the administrative law judge. The administrative law judge found that plaintiff's fibromyalgia "does not cause functional limitations that exceed the residual functional capacity" found by the administrative law judge. That determination is supported by substantial evidence. Moreover, it is not reversible error for the administrative law judge to note that only one medical exam in 2005 detailed the location of tender points. Even if a finding of positive tender points is no longer required for a diagnosis of fibromyalgia, testing focal points for tenderness is still a relevant consideration. See SSR 12-2p, 2012 WL 3104869, at *2-3; Foster v. Colvin, No. 3:14-CV-00066, 2015 WL 66553, at *7-8 (S.D. Ohio Jan. 5, 2015).
The administrative law judge noted and followed the appropriate standards, performed an appropriate evaluation of the evidence, and clearly articulated the bases of his credibility determination. The analysis and credibility determination of the administrative law judge enjoy substantial support in the record. The Court will not - and indeed may not - revisit that credibility determination. See Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
Having carefully considered the entire record in this action, the Court concludes that the decision of the Commissioner is supported by substantial evidence. Accordingly, the decision of the Commissioner is AFFIRMED.
This action is hereby DISMISSED. The Clerk shall enter FINAL JUDGMENT pursuant to Sentence 4 of 42 U.S.C. § 405(g). March 31, 2015
s/Norah McCann King
Norah McCann King
United States Magistrate Judge