Opinion
Civil Action 2:13-cv-1022
03-27-2015
DOUGLAS WILLIAM POWELL, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Plaintiff, Douglas William Powell, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Social Security Disability Insurance Benefits and Supplemental Security Income. This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 9), the Commissioner's Memorandum in Opposition (ECF No. 14), and the administrative record (ECF No. 8). For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.
I. BACKGROUND
Plaintiff filed his application for benefits in July 2010, alleging that he has been disabled since January 8, 2009, at age 51. (R. at 147-49.) Plaintiff alleges disability as a result of a herniated disc and arthritis in his left knee. (R. at 177.) Plaintiff's application was denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Jeffrey P. LaVicka (the "ALJ") held a hearing on March 21, 2012, at which Plaintiff, who was represented by counsel, testified. (R. at 39-57.) Vocational Expert Larry A. Bell (the "VE") also testified. (R. at 57-66.) On April 2, 2012, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 13-30.) On August 13, 2013, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-5.) Plaintiff then timely commenced the instant action.
II. HEARING TESTIMONY
A. Plaintiff's Testimony
Plaintiff testified that he lives in a house with his adult son. He testified that to enter his house, he must climb up three porch steps. (R. at 40-41.) He stated that he goes up these steps a couple of times each day. (R. at 41.) He stated that he smokes a pack of cigarettes each day. (R. at 43.)
Plaintiff further testified that he completed three years of college but did not receive a degree. Id. He explained that he worked at a power plant in 2010 for eight weeks, but left when the job ended. (R. at 43.) He stated that before that, he worked as a pipefitter and millwright at Wheeling-Pittsburgh Steel for twenty years. (R. at 43-45.) He also testified that he looked for work doing pipefitting or construction two months before the hearing, but his union local did not have work available at the time. (R. at 45-46.)
Regarding his daily activities, Plaintiff testified that he usually drives to his parents' house to eat dinner. (R. at 49.) He stated that his son shops for him. Id. He testified that he does dishes by hand every day, does laundry once a week, makes beds every day, and runs the sweeper once a week. Id. He also testified that he sees a friend once per week and they watch movies. Id. Plaintiff stated that he is unable to do any yard work. (R. at 49-50.) He further stated that he dresses and cleans himself, but he has difficulty doing so. (R. at 48.)
Plaintiff explained that his knee and back problems interfere with his ability to work. (R. at 46.) He testified that his knee gives out at least once per day and that he uses a cane prescribed by Dr. Sotereanos to assist with ambulation. (R. at 47, 53.) Plaintiff testified that he takes Percocet for his back pain, but that it is not actually controlling his pain. (R. at 55-56.) He further testified that his back and knee pain have not been controlled for years. (R. at 57.)
Plaintiff also testified that he had two cataract surgeries, in 2006 and 2007. He stated that his eyesight gets blurry in his left eye sometimes and that he has difficulty seeing up close so he wears glasses. (R. at 42, 54.) He also stated that he failed a breathing test during a physical examination. (R. at 51.) He further testified that he has difficulty walking up hills or stairs and experiences shortness of breath due to his COPD. (Id.) He stated that he has difficulty bending and can no longer climb ladders or scaffolds. (R. at 50.) Plaintiff estimated that he can sit for approximately forty-five minutes and stand for approximately fifteen minutes at a time. (R. at 44, 46.)
B. Vocational Expert Testimony
The VE testified that Plaintiff's past relevant work includes a pipefitter and a millwright, both performed at the skilled, heavy exertional level. (R. at 59.)
The ALJ proposed a hypothetical to the VE regarding an individual with Plaintiff's age, education, work experience, and residual functional capacity as assessed by the ALJ. The VE testified that the hypothetical individual could not perform Plaintiff's past relevant work. (R. at 59-60.) The VE testified that the hypothetical individual was capable of performing occupations at the unskilled, light exertional level such as an office helper, with 1,850 regional jobs and 150,000 jobs in the national economy, and a garment marker, with 1,100 jobs in the regional economy and 90,000 nationally. (R. at 60.)
III. MEDICAL RECORDS AND OPINIONS
A. Matthew Colflesh, M.D.
Plaintiff first presented to primary care physician Dr. Colflesh in December 2005 for low-back pain. Plaintiff reported that he had a history of a discectomy for herniated disks. He denied any radiation from his back pain and reported that his back pain gets worse with activity. (R. at 321.)
When seen in May 2008 and January 2009, Plaintiff reported that he was doing well on his medication, Opana. (R. at 316, 320.) Dr. Colflesh recommended that Plaintiff continue to take Opana. Id.
On July 29, 2009, Plaintiff reported to Dr. Colflesh that he had been having some mild right-sided hip pain. He attributed the hip pain to the way he had been sleeping. (R. at 312.) Plaintiff reported that he had been taking over-the counter Ibuprofen to help with the hip pain, that his hip did not bother him every day, and it had not been a major problem for him. Dr. Colflesh offered Plaintiff a prescription for anti-inflammatories, but he declined and stated that the Ibuprofen helped him significantly. (R. at 312-13.) Dr. Colflesh noted that Plaintiff was currently on Opana and that it had been keeping his low back pain very stable. Id. Dr. Colflesh assessed Plaintiff with lumbar disc disease and chronic low-back pain and recommended that Plaintiff continue taking Opana. Id.
On January 7, 2010, Dr. Colflesh noted that on examination, Plaintiff's lungs were clear but somewhat diminished. Dr. Colflesh ordered a pulmonary function test. (R. at 311.)
In January 2011, Dr. Colflesh noted that Plaintiff's pain medication, Opana, had been keeping his pain well controlled. (R. at 322.) On examination, Dr. Colflesh found mild crepitus in Plaintiff's bilateral lower extremities with flexion and extension. Id. Plaintiff's metabolic laboratory studies revealed microcytic anemia. Dr. Colflesh noted that examination revealed that Plaintiff's lungs were clear to auscultation but mildly diminished bilaterally. Id. Dr. Colflesh assessed Plaintiff with microcytic anemia; gastroesophageal reflux disease; chronic obstructive pulmonary disease; lumbar disc disease; mood disorder; and degenerative disc disease. (R. at 322.)
On March 11, 2011, Plaintiff told Dr. Colflesh that overall he had been feeling well. (R. at 326.) Plaintiff denied headaches, blurry vision, and any other problems. Id. Dr. Colflesh found mild crepitus with bilateral knee flexion and extension. Id. Dr. Colflesh recommended that Plaintiff continue on Opana and Oxycodone. Dr. Colflesh again noted that the prescription medications were keeping Plaintiff's pain well controlled. Id.
On March 19, 2012, Dr. Colflesh opined as follows regarding Plaintiff's medical conditions:
Mr. Powell has been my patient since February of 2006. Since that time he has long complained of back pain. He has a known history of degenerative lumbar disc disease with narrowing of bilateral neuroforamina. He has history of left laminectomy. He had ongoing difficulty with chronic pain and therefore has been on long-term opioid treatment. He also has been seen at our local pain center where he has been treated with epidural steroid injection without much success. He had evaluation again from an orthopedic spine specialist and has been through treatment with physical therapy. In addition he developed complications of degenerative arthritis of the knees. He has had evaluation from a separate orthopedist who recommended knee replacement surgery. He has a history of tobacco abuse and chronic obstructive pulmonary disease but he also has exposure in the workplace called pneumoconiosis. A pulmonary specialist is currently evaluating him. His worsening lung disease has limited his activities due to shortness of breath with exertion. Additionally he has recently developed complications of severe iron deficiency. He has undergone blood transfusion and
is currently undergoing further evaluation and treatment in my practice.(R. at 358-59.) B. Kumar B. Amin, M.D.
In review of the patient's functional ability, the patient has significant impairment. The patient can sit for maximum of 45 minutes then must stand. He then can stand for a maximum of 15 minutes before he experiences more back pain. He has trouble in the morning leaning over to shave. He has difficulty with ambulation, and can do as much as walking his dog and then must rest due to pain in his left leg and right knee. He could no longer climb a ladder as of 2010. He was doing repair work at that time at the Stratton power plant. He had a hard time moving along the scaffolding. He has no trouble with hand strength. He has limited range of motion in the low back with difficulty with full extension and flexion. He has compensated for his degenerative right knee by utilizing his left lower extremity more often. He has developed some symptoms of weakness in the left lower extremity due to this compensation affect.
In my evaluation of patients who are pursuing disability, I am very sensitive in identifying patients who are seeking secondary gain from malingering. I have never found this patient to be a malingerer. My impression of the patient is of a man who is debilitated from his comorbidities as described above. By all accounts, he has had a solid work history. He has developed medical conditions which together make the patient permanently disabled in my opinion.
On November 13, 2009, Plaintiff saw Dr. Amin for consultation due to left knee pain. (R. at 248.) Plaintiff described the pain as a "5" on a scale from 1-10. Id. He reported that the pain worsens with walking and climbing steps. Dr. Amin noted that he reported swelling and giving way of his knee, but no rest pain, night pain, numbness, or tingling. Id. On examination, Plaintiff's left knee extension strength was 5/5. Dr. Amin noted that Plaintiff had an arthrotomy scar; small to moderate effusion; no warmth or erythema; positive pain and crepitus with patella compression; a range of motion of 0-130; positive medial and lateral joint line tenderness; and no collateral ligament laxity. Id. Dr. Amin noted that x-rays revealed tricompartmental osteophytes, patella osteophytes, and complete lateral joint space narrowing in Plaintiff's knee. Id. Dr. Amin assessed that Plaintiff suffered from advanced left knee posttraumatic osteoarthritis. He noted that Plaintiff's long-term prognosis regarding his left knee was poor, but that Plaintiff should put off knee surgery as long as possible because of his young age. Dr. Amin recommended Naprosyn and a knee sleeve. (R. at 248.)
On December 14, 2009, Dr. Amin reported that Plaintiff's left knee was doing very well with the recommended medical management. (R. at 247.) Dr. Amin noted that Plaintiff was using a brace on his left knee and that it was helping. Plaintiff was offered an injection to the left knee but he declined. Plaintiff rated his pain at a level of 4 on a scale from 0-10. Id.
When seen for follow-up for his left knee pain in July 2010, Plaintiff reported that he had trouble ambulating. (R. at 246.) He reported that he had been doing some work in which he climbed a lot and the climbing of steps hurt his knee. Plaintiff reported that he did not have much rest pain or night pain. Dr. Amin noted that examination of the left knee showed a small effusion and medial joint line tenderness. Plaintiff was given an injection of Methylprednisolone into the left knee. (R. at 246.)
On September 13, 2010, Plaintiff was seen for right hip pain. Plaintiff rated his pain at a level of 5 on a scale from 0-10. (R. at 245.) He described the pain as a dull posterior pain with no radiation. Id. Plaintiff reported no complaints of numbness, tingling, start-up pain, or groin pain. Id. Plaintiff also reported that the injection in his left knee helped and that he would like to get another one. Id. Dr. Amin noted that x-rays revealed no hip joint arthritis. Plaintiff exhibited ankle dorsiflexion and plantar flexion strength of 5/5 and his straight-leg raise test was negative. Id. Dr. Amin assessed Plaintiff with right hip trochanteric bursitis, which he thought could be referred pain from Plaintiff's chronic low back pain. Id. Dr. Amin recommended stretching exercises for Plaintiff's hip pain. Plaintiff was given an injection in his left knee. (R. at 245.)
On November 26, 2010, Plaintiff presented to Dr. Amin with pain in his right hip. Plaintiff estimated that the pain was a level 5 on a scale from 0-10. Dr. Amin gave him a right hip trochanteric bursa injection of Methylprednisolone. (R. at 244.)
C. Trinity Medical Center West
On November 23, 2010, Plaintiff presented to the emergency room with complaints of right hip pain. (R. at 261.) On examination, he had tenderness to palpation over the greater trochanter. Id. Hospital records demonstrate that his examination was otherwise negative. Id. Plaintiff was diagnosed with bursitis to the right trochanter. Id.
D. Trinity Pain Center
On November 4, 2011 and January 16, 2012, Plaintiff presented to Trinity Pain Center with complaints of left knee pain and back pain. (R. at 352, 347.) On both dates, it was noted that Plaintiff did not have decreased range of motion, radicular pain, joint redness, joint stiffness, joint swelling, leg cramps, muscle atrophy, muscle cramps, muscle pain, muscle weakness, myalgia, or swelling of his extremities. (R. at 352, 347.) It was further noted that Plaintiff had a normal gait and normal muscle strength. Id. Examination of Plaintiff's lumbosacral spine revealed tenderness to palpation and decreased extension; no swelling or edema; normal strength and tone; normal lumbosacral spine flexion; normal lumbosacral lateral rotation; normal sensation bilaterally; and normal posture, gait, coordination, and reflexes. (R. at 347-48, 353.) Strength testing revealed that Plaintiff can come to his heels and toes and stand on each leg without limitation. Examination of his left leg revealed positive Patrick and Fabere signs and negative straight-leg raise. Id. E. Edgar Sanchez M.D.
Plaintiff presented to Dr. Sanchez for a pulmonary evaluation. On December 27, 2010, Plaintiff reported that he had been off work for two years and had worked around asbestos for 30 years. (R. at 254.) He reported that he has smoked one to two packs of cigarettes per day since age twenty. Id. He underwent a pulmonary function study which revealed mild restrictive ventilatory defect, which was indicated by the finding of a mildly reduced forced vital capacity. (R. at 259.) Dr. Sanchez noted no improvement after bronchodilator therapy. Id.
Plaintiff underwent a 6-minute walk test on December 27, 2010. Records demonstrate that he "tolerated test very well" and denied any shortness of breath or fatigue. (R. at 260.) On December 30, 2010, Plaintiff underwent a CT scan of his thorax which was showed multifocal ground glass densities throughout both lungs. (R. at 256-57.) On January 3-4, 2011, Plaintiff underwent an overnight saturation study, which showed mean high of 95% and mean low of 89%. He had 134 desaturation events of less than 3 minutes. (R. at 300-10.) F. Mark A. Fye, M.D.
On July 14, 2011, Plaintiff presented to an orthopedic surgeon, Dr. Fye, for a consultation. (R. at 328.) Dr. Fye noted that Plaintiff's MRI showed some moderate spondylosis at his L4-5 and his L5-S1. Id. He further noted that his examination of Plaintiff showed nothing of significance in regard to spinal compression of Plaintiff's nerves, that Plaintiff had no obvious deficits neurologically, and that he had no radicular symptoms. Finally, Dr. Fye noted that "[Plaintiff] is apparently filing for disability, but from my standpoint there is nothing serious going on to do more surgery." Id. G. Satyasagar Morisetty, M.D.
On August 1, 2011, Plaintiff presented to Dr. Morisetty with complaints of shortness of breath. Dr. Morisetty prescribed Flovent and Ventolin. (R. at 368.) On August 26, 2011, Dr. Morisetty noted that an x-ray revealed hyperaeration with changes of questionable mild COPD. (R. at 379.) On October 10, 2011, Plaintiff reported that he was doing much better with breathing, but still had some shortness of breath. (R. 336.) Dr. Morisetty assessed Plaintiff with shortness of breath and asthma. (R. at 372.) On January 9, 2012, Dr. Morisetty noted that Plaintiff was overall doing well. (R. at 374.) He assessed Plaintiff with shortness of breath, chronic rhinitis, unspecified allergic alveolitis and pneumonitis, deviated nasal septum, snoring, and asthma. (R. at 375.) H. Nicholas G. Sotereanos, M.D.
Plaintiff first saw orthopedic surgeon, Dr. Sotereanos, on September 20, 2011, with complaints of left knee pain. (R. at 331.) Plaintiff reported seeing an orthopedic surgeon in the past and having an injection into his left knee that provided benefits for two and one-half months. Id. Dr. Sotereanos noted that Plaintiff walked with an antalgic gait on the left and used a straight cane for ambulation. Id. Dr. Sotereanos also noted that examination of Plaintiff's left knee revealed some medial bony deformity with a large longitudinal medial scar and that Plaintiff's range of motion was full extension at approximately 115 degrees. Id. Dr. Sotereanos also noted that Plaintiff had mild valgus deformity; lateral joint line tenderness; no acute effusion or inflammatory change of the knee; and active dorsiflexion and plantar flexion of his left foot with 5/5 strength. Id. Dr. Sotereanos noted that x-rays revealed severe end-stage degenerative joint disease of the left knee with "bone-on-bone laterally with a valgus deformity." Id.
On March 19, 2012, Dr. Sotereanos reported that Plaintiff was seen on January 3, 2012, and received a Hylan GF-20 injection. (R. at 361.) Plaintiff reported that he had some efficacy with the Cortisone, giving him six to eight weeks of relief. Id. He noted that he had not seen Plaintiff in the interim. Dr. Sotereanos opined that Plaintiff cannot lift or carry twenty pounds on a repeated basis, and cannot stand or walk more than two hours on a repeated basis. Id. He further opined that Plaintiff can no longer function as a pipefitter. (R. at 360-61.)
I. State-Agency Evaluations
On September 15, 2010, state agency physician Elizabeth Das, M.D., reviewed the record and opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours in an eight-hour workday; and sit for about six hours in an eight-hour workday. (R. at 71-72.) She opined that Plaintiff is also limited to occasionally climbing ramps/stairs; occasionally kneeling, crawling, stooping or crouching; and never climbing ladders/ropes/scaffolds. (R. at 72.) According to Dr. Das, Plaintiff is limited as a result of his chronic low-back pain, which causes trouble ambulating, as well as his COPD. (Id.) Dr. Das opined that Plaintiff's allegations are credible. (R. at 73.)
On February 25, 2011, Plaintiff's file was reviewed by state agency physician William Bolz, M.D. (R. at 77-86.) Dr. Bolz essentially affirmed Dr. Das' opinion and added environmental limitations, including avoiding concentrated exposure to extreme cold; extreme heat; humidity; and fumes, odors, dusts, gases, poor ventilation, etc. (R. at 83.)
IV. THE ADMINISTRATIVE DECISION
On April 2, 2012, the ALJ issued his decision. (R. at 13-30.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through December 31, 2014. (R. at 18.) At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantially gainful activity since the alleged onset date of January 8, 2009. (Id.) At step two, the ALJ found that Plaintiff had the severe impairments of degenerative disc disease of his lumbar; COPD; and degenerative joint disease in his left knee. (Id.) The ALJ also found that Plaintiff's mental impairment of major depressive disorder does not cause more than minimal limitation in his ability to perform basic mental work activities and is therefore non-severe. (R. at 18-19.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 20.) At step four of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC"). The ALJ assessed Plaintiff's RFC as follows:
Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step terminates the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?
After careful consideration of the entire record, the [ALJ] finds that the [Plaintiff] has the residual functional capacity to perform light work, lifting up to 20 pounds occasionally, lifting/carrying up to ten pounds frequently; standing/walking for up to six hours and sitting for up to six hours in an eight-hour workday, with normal
breaks, as defined in 20 CFR 404.1567(b) except that he must have a sit/stand option allowing him to briefly, for one to two minutes, alternate sitting or standing positions at thirty minute intervals without going off task; and must have no requirement to operate foot controls with the left lower extremity. The [Plaintiff] is limited to jobs that can be performed while using a hand held assistive device required only for uneven terrain or prolonged ambulation, and the contralateral upper extremity can be used to lift and carry up to exertional limitations. The [Plaintiff] must work in a controlled environment free of concentrated exposure to extreme cold and heat, humidity, exposure to irritants such as fumes, odors, dust, and poorly ventilated areas, and all exposure to unprotected heights, hazardous machinery, and commercial driving, requiring no more than occasional balancing, stooping, kneeling, crouching, climbing of ramps or stairs, and no crawling or climbing of ladders, ropes or scaffolds.(R. at 20.) In reaching this determination, the ALJ gave the "greatest weight" to the opinion of state agency physician Dr. Bolz. (R. at 28.) The ALJ gave "less weight" to Dr. Colflesh's opinion, finding it was "inconsistent with the medical evidence of record and his own treatment records." (Id.) Finally, he assigned "more weight" to Dr. Sotereanos's opinion. Id. The ALJ found Plaintiff to be only partially credible. (R. at 22.)
At step five of the sequential process, the ALJ, relying on the VE's testimony, determined that even though Plaintiff is unable to perform his past relevant work, other jobs exist in the national economy that Plaintiff can perform. (R. at 28-29.) The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. (R. at 29.)
V. STANDARD OF REVIEW
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)).
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)).
VI. ANALYSIS
In his Statement of Errors, Plaintiff asserts that the ALJ failed to properly consider the opinions of treating physicians, Dr. Colflesh and Dr. Sotereanos. Plaintiff also contends that the hypothetical provided to the VE was not supported by substantial evidence. Additionally, Plaintiff contends that the ALJ erred in assessing Plaintiff's credibility. (ECF No. 9.)
As a preliminary matter, Plaintiff's contention of error related to the ALJ's credibility assessment is OVERRULED. Plaintiff has not offered any analysis or evidence to support his assertion that the ALJ's credibility assessment was flawed. Rather, he only states in a heading that the "ALJ failed to properly assess the credibility of Plaintiff." (Pl.'s St. of Errors 2, ECF No. 9.) Because Plaintiff has not developed his position on this issue, the Court need not address this contention of error. McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones." ) (internal citations omitted). Nevertheless, the Court has reviewed the ALJ's credibility assessment and concludes that the ALJ's finding that Plaintiff is partially credible is supported by substantial evidence. Accordingly, the Court will not disturb the ALJ's findings related to Plaintiff's credibility.
A. Weighing of Opinion Evidence
Plaintiff also contends that the ALJ failed to properly weigh the opinion evidence in the record. The ALJ must consider all medical opinions that he or she receives in evaluating a claimant's case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as "statements from physicians . . . that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source "since these are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a patient's] medical impairment(s) and may bring a unique prospective to the medical evidence that cannot be obtained from the objective medical filings alone . . . ." 20 C.F.R. § 416.927(c)(2); Blakley, 581 F.3d at 408. If the treating physician's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the claimant's] case record, [the ALJ] will give it controlling weight." 20 C.F.R. § 404.1527(c)(2).
If the ALJ does not afford controlling weight to a treating physician's opinion, the ALJ must meet certain procedural requirements. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an ALJ does not give a treating source's opinion controlling weight:
[A]n ALJ must apply certain factors—namely, 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 the specialization of the treating source—in determining what weight to give the opinion.Id. Furthermore, an ALJ must "always give good reasons in [the ALJ's] notice of determination or decision for the weight [the ALJ] give[s] your treating source's opinion." 20 C.F.R. § 416.927(c)(2). Accordingly, the ALJ's reasoning "must be 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." Friend v. Comm'r of Soc. Sec., No. 09-3889, 2010 WL 1725066, at *7 (6th Cir. Apr. 28, 2010) (internal quotation omitted). The United States Court of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement:
"The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases," particularly in situations where a claimant knows that his physician has deemed him disabled and therefore "might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied." Snell v. Apfel, 177 F.3d 128,
134 (2d Cir.1999). The requirement also ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004).Wilson, 378 F.3d at 544-45. Thus, the reason-giving requirement is "particularly important when the treating physician has diagnosed the claimant as disabled." Germany-Johnson v. Comm'r of Soc. Sec., 312 F. A'ppx 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
There is no requirement, however, that the ALJ "expressly" consider each of the Wilson factors within the written decision. See Tilley v. Comm'r of Soc. Sec., No. 09-6081, 2010 WL 3521928, at *6 (6th Cir. Aug. 31, 2010) (indicating that, under Blakley 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(c)(2) for weighing medical opinion evidence within the written decision).
In the instant action, the ALJ considered each of the medical opinions in the record. (See R. 22-28.) In his decision, the ALJ explained the weight he assigned to the medical opinions as follows:
The greatest weight is given to the opinion of Dr. Bolz (Exhibit 3A). This opinion though not based on examination of the [Plaintiff] or a treating relationship, is most consistent with the medical evidence of record as a whole. This opinion also reflects a familiarity with the Social Security Administration disability program.(R. at 28.)
The opinion of treating physician, Colflesh (Exhibit 14F), is given less weight despite the treating relationship this source has with the [Plaintiff]. The opinion is inconsistent with the medical evidence of the record and his own treatment records (Exhibit 8F). The [ALJ] gives more weight to treating physician Sotereanos (Exhibit 15F), who has opined that the [Plaintiff] cannot lift or carry 20 pounds on a repeated basis, and cannot stand or walk more than two hours on a repeated basis (Exhibit 15F).
1. Dr. Matthew Colflesh
The Court concludes that the ALJ did not err in weighing the opinion of Dr. Colflesh. In his decision, the ALJ acknowledged that Dr. Colflesh, Plaintiff's primary-care physician, is a treating physician. He considered Dr. Colflesh's opinion and found that it was entitled to "less weight" than the opinions of Drs. Sotereanos and Bolz because it is inconsistent with the medical evidence of the record and with his own treatment records. The Court concludes that these are legally sufficient reasons for finding that Dr. Colflesh's opinions are not entitled to controlling weight and for assigning "less weight" to his opinions. See Helm v. Comm'r of Soc. Sec., 405 F. App'x 997, 1001 (6th Cir. 2011) (concluding that the ALJ met the "good reasons" requirement for a variety of reasons, including by noting that the treating physician's findings were "unsupported by objective medical findings and inconsistent with the record as a whole"); see also 20 C.F.R. § 404.1527(c)(4) (identifying consistency with the record as a whole as a relevant consideration in deciding the weight to give a medical opinion).
The Court also finds that the ALJ's stated reasons are supported by substantial evidence. First, Dr. Colflesh's opinions are inconsistent with the opinions of Plaintiff's orthopedic surgeon, Dr. Sotereanos, and the opinions of the state-agency physicians Drs. Bolz and Das. (R. at 361, 77-86.) In addition, substantial evidence supports the ALJ's finding that Dr. Colflesh's opinions are inconsistent with evidence in the record. For example, as the ALJ explained in his opinion:
The [Plaintiff] testified that he is able to do dishes, every day, by hand, do laundry once a week, make beds every day, and run the sweeper once a week. . . . The [Plaintiff] has not been prescribed other pain modalities such as a TENS unit, or a back brace, and he testified that he has not been to any physical therapy since 2007. It is noted that the [Plaintiff] has not required aggressive medical treatment, frequent hospital confinement or emergency care. There is no evidence of any muscle atrophy on physical examination, which suggests that the [Plaintiff] moves about on a fairly regular basis and that he performs more activities than reported. . . .(R. at 22.)
Further, the medical records support the ALJ's finding that Plaintiff is not as limited as Dr. Colflesh concluded. For example, Dr. Fye noted that "[Plaintiff] is apparently filing for disability, but from my standpoint there is nothing serious going on to do more surgery." (R. at 328.) He also noted that examination of Plaintiff revealed nothing of significance in regard to spinal compression of Plaintiff's nerves, that Plaintiff had no obvious deficits neurologically, and no radicular symptoms. Id. In November 2011 and January 2012, doctors from Trinity Pain Center noted that Plaintiff did not have muscle atrophy, decreased range of motion, muscle pain, myalgia, or swelling of the extremities. (R. at 352, 347.) They further noted that Plaintiff had normal gait, muscle strength, posture, coordination, and reflexes. Id. While Dr. Sotereanos noted that Plaintiff had an antalgic gait and joint tenderness on September 20, 2011, he also found that Plaintiff's active dorsiflexion and plantar flexion strength was normal at 5/5. (R. at 331.) Additionally, with regard to his knee, Plaintiff consistently reported relief from injections. (R. at 245, 358, 331, 361.) Regarding his respiratory conditions, in January 2012, Dr. Morisetty noted that Plaintiff was "overall doing well." (R. at 374.)
Finally, substantial evidence supports the ALJ's finding that Dr. Colflesh's opinions are inconsistent with his own treatment notes. For example, Dr. Colflesh consistently noted that Plaintiff's pain medication was keeping his pain well controlled. (R. at 312, 316, 320, 322, 326.) Further, on March 11, 2011, Dr. Colflesh noted that "[o]verall [Plaintiff] has been feeling well lately. . . . Denies any other problems at this time." (R. at 326.) At that time, Dr. Colflesh again noted that Plaintiff had been doing well with his medication regimen. Id.
After reviewing all of the medical evidence in the record, the Court concludes that the ALJ rationally determined that Plaintiff is not as limited as Dr. Colflesh suggests. The Court further concludes that substantial evidence supports the ALJ's finding that Dr. Colflesh's opinions are inconsistent with the totality of the evidence and his own treatment notes. Because substantial evidence supports the ALJ's conclusion, the Court must affirm the decision. Blakley, 581 F.3d at 406 (If an ALJ's findings are supported by substantial evidence, this Court defers to those findings "even if there is substantial evidence in the record that would have supported an opposite conclusion") (internal citations omitted). Plaintiff's contention of error related to Dr. Colflesh is therefore OVERRULED.
2. Dr. Nicholas Sotereanos
Plaintiff also contends that the ALJ erred in weighing the opinions of Dr. Sotereanos. The Court concludes that to the extent the ALJ failed to give controlling weight to Dr. Sotereanos' opinion or to provide "good reasons" for not doing so, the error is harmless. The Wilson Court considered three possible scenarios that could lead the Court to a finding of harmless error. 378 F.3d at 547. First, the Court indicated that harmless error might occur "if a treating source's opinion is so patently deficient that the Commissioner could not possibly credit it . . . ." Id. Second, the Court noted that if the ALJ's decision was "consistent with the opinion, it may be irrelevant that the ALJ did not give weight to the treating physician's opinion, and the failure to give reasons for not giving such weight is correspondingly irrelevant." Id. Finally, Wilson considered the possibility of a scenario "where the Commissioner has met the goal of § 1527(d)(2)-the provision of the procedural safeguard of reasons-even though she has not complied with the terms of the regulation." Id. Since Wilson, the Sixth Circuit has continued to conduct a harmless error analysis in cases in which the claimant asserts that the ALJ failed to comply with the good-reason requirement. See, e.g., Nelson v. Comm'r of Soc. Sec., 195 F. A'ppx 462, 472 (6th Cir. 2006) (finding that even though the ALJ failed to meet the letter of the good-reason requirement the ALJ met the goal by indirectly attacking the consistency of the medical opinions); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 749 (6th Cir. 2007) (finding that the facts did not satisfy potential harmless error justifications).
Here, the ALJ did not apply the treating physician rule when considering Dr. Sotereanos' medical opinions; he did not assign controlling weight to Dr. Sotereanos' opinions and did not provide good reasons for providing "more weight" to them. Nevertheless, contrary to Plaintiff's assertion, the ALJ's RFC assessment was consistent with the opinions of Dr. Sotereanos. As stated above, Dr. Sotereanos opined that "in terms of his knee, [Plaintiff] essentially cannot lift or carry 20 pounds on a repeated basis, and no standing or walking more than two hours on a repeated basis. He will eventually undergo a total knee replacement. There is no way that he can function as a pipefitter." (R. at 361.) In assessing Plaintiff's RFC, the ALJ found as follows:
[Plaintiff] has the residual functional capacity to perform light work, lifting up to 20 pounds occasionally, lifting/carrying up to ten pounds frequently; standing/walking for up to six hours and sitting for up to six hours in an eight-hour workday, with normal breaks, as defined in 20 CFR 404.1567(b) except that he must have a sit/stand option allowing him to briefly, for one to two minutes, alternate sitting or standing positions at thirty minute intervals without going off task; and must have no requirement to operate foot controls with the left lower extremity.(R. at 20.) Thus, the ALJ's findings with regards to the weight Plaintiff can carry and amount of time he can stand and/or walk are actually consistent with, or more restrictive, than Dr. Sotereanos' opinions. Further, like Dr. Sotereanos, the ALJ also found that Plaintiff cannot perform his past work as a pipefitter. (R. at 28.) Thus, this case falls under Wilson's second category of harmless error. The fact that the ALJ did not assign Dr. Sotereanos' opinions controlling weight or provide good reasons for not doing so is irrelevant. Wilson, 378 F.3d at 547. Under these circumstances, any error the ALJ made in weighing Dr. Sotereanos' opinion is harmless.
3. Dr. William Bolz
In his statement of errors, Plaintiff makes the following inconsistent assertions: (1) that the ALJ erred in adopting the opinion of the state-agency physician because his opinions were outdated and failed to include the reports of Drs. Colflesh and Sotereanos, and (2) that the "ALJ did not point to any contrary medical opinions to render a decision that Plaintiff was capable of the walking, sitting, and standing requirements of full-time light work, but engaged in his own lay analysis of the medical records." (Pl.'s St. of Error 6, ECF No. 9.) First, Plaintiff's contention that the ALJ did not point to any contrary medical opinions is unavailing, as the ALJ explicitly pointed to and assessed the greatest weight to the opinions of state-agency physician Dr. Bolz, who concluded that Plaintiff has the physical RFC to perform light work with certain postural and environmental limitations. (R. at 28.)
Second, the ALJ did not err in affording the greatest weight to Dr. Bolz opinion. "'Administrative law judges must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination about whether you are disabled.'" McGrew v. Comm'r of Soc. Sec., 343 F. App'x 26, 32 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(f)(2)(i)).
While Dr. Bolz did not have access to the entire record at the time he rendered his opinion, the ALJ considered all of the evidence in the record, including the reports of Drs. Colflesh and Sotereanos, and found that Dr. Bolz' opinion was the most consistent with the totality of the evidence. (See R. at 26-27.) As the ALJ explained in his decision, "though not based on examination of the [Plaintiff] or a treating relationship, [Dr. Bolz' opinion] is most consistent with the medical evidence of the record as a whole. This opinion also reflects a familiarity with the Social Security Administration disability program." (R. at 28.) Further, a review of the ALJ's decision demonstrates that the ALJ took into account subsequent medical evidence in determining Plaintiff's RFC and in concluding that Dr. Bolz' opinions were most consistent with the totality of the evidence. (R. at 26-28.) For example, he considered the opinions of Drs. Sotereanos and Colflesh, as well as treatment notes from Drs. Colflesh, Fye, Morisetty, and Sotereanos and Trinity Pain Center dated after Dr. Bolz' opinion. Id. Under these circumstances, the ALJ did not err in affording the greatest weight to the opinions of Dr. Bolz. See Ruby v. Colvin, No. 2:13-CV-01254, 2015 WL 1000672, at *4 (S.D. Ohio Mar. 5, 2015) ("[S]o long as an ALJ considers additional evidence occurring after a state agency physician's opinion, he has not abused his discretion.") (citing See McGrew v. Comm'r of Soc. Sec., 343 F. App'x 26, 32 (6th Cir. 2009); Ballard v. Comm'r of Soc. Sec., No. 1:13-CV-842, 2015 WL 457300, at *9 (S.D. Ohio Feb. 3, 2015)).
B. RFC
Lastly, Plaintiff indirectly attacks the ALJ's RFC formulation by contending that the hypothetical given to the VE was not supported by substantial evidence. Plaintiff's contention is unavailing.
A plaintiff's RFC "is defined as the most a [plaintiff] can still do despite the physical and mental limitations resulting from her impairments." Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e). Nevertheless, substantial evidence must support the Commissioner's RFC finding. Berry v. Astrue, No. 1:09-CV-411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010).
It is "'well established 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.'" Carrelli v. Comm'r of Soc. Sec., 390 F. App'x 429, 438 (6th Cir. 2010) (quoting Casey v. Sec'y of Health and Hum. Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). "'In order for a vocational expert's testimony in response to a hypothetical question to serve as substantial evidence in support of the conclusion that a claimant can perform other work, the question must accurately portray a claimant's physical and mental impairments.'" Parks v. Soc. Sec. Admin., 413 F. App'x 856, 865 (6th Cir. 2011) (quoting Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 516 (6th Cir. 2010)).
In the instant action, the Court concludes that the ALJ's findings related to Plaintiff's RFC are supported by substantial evidence and that the ALJ properly included each of the abilities and limitations found in Plaintiff's RFC in the hypothetical posed to the VE. As explained above, in formulating Plaintiff's RFC, the ALJ properly provided the greatest weight to the opinion of Dr. Bolz, which the ALJ found to be consistent with the record as a whole, and "more weight" to the opinion of Dr. Sotereanos than to the opinion of Dr. Colflesh. (See R. 20-28.) In addition, the ALJ properly found that Plaintiff was partially credible, given that he found the "limitations the [Plaintiff] attributes to his spinal, knee, and respiratory conditions are not verified in the treating source records." (R. at 22.) The ALJ also thoroughly considered the objective medical records in determining the Plaintiff's RFC, including all of Plaintiff's treatment notes and test results. (R. at 20-28.) After reviewing all of the evidence, the Court concludes that the ALJ's RFC formulation was supported by substantial evidence. Accordingly, the hypothetical provided to the VE, which included all of the physical abilities and limitations found in Plaintiff's RFC, was supported by substantial evidence. The ALJ therefore did not error in relying on the VE's testimony to conclude that jobs exist in the regional and national economy that Plaintiff can perform.
VII. DISPOSITION
In sum, from a review of the record as a whole, the Court concludes that substantial evidence supports the ALJ's decision. Accordingly, Plaintiff's Statement of Errors is OVERRULED and the Commissioner of Social Security's decision is AFFIRMED.
IT IS SO ORDERED. Date: March 27, 2015
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge