Opinion
No. 2:06-0035.
July 16, 2008
ORDER
Pending before the Court is Plaintiff's Motion for Judgment on the Administrative Record ("Motion") (Doc No 15) Defendant ("Defendant" or "Commissioner") has filed a Response in Opposition to Plaintiff's Motion, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed (Doc. No 22) Magistrate Judge Bryant ("Magistrate Judge") has issued a Report and Recommendation ("Report") that Plaintiff's Motion be denied and that the decision of the Commissioner be affirmed (Doc No. 23) Plaintiff timely filed Objections to the Magistrate Judge's Report and Recommendation ("Objections") (Doc. No 24). Upon review of the Magistrate Judge's Report and for the reasons stated below, the Court ADOPTS the conclusions of the Magistrate Judge's Report, DENIES Plaintiff's Motion, and AFFIRMS the decision of the Commissioner.
I. INTRODUCTION
Plaintiff Timothy Ranker ("Plaintiff"), who is presently 44 years old, filed his current application for Supplemental Security Income ("SSI") on January 24, 2000 (Record ("TR") 400) He alleged disability since January 2000, consisting of back and neck pain, chronic obstructive pulmonary disease, headaches, adhesive capsulitis of the left shoulder, and low intelligence (TR 793) Plaintiff's application was initially denied on April 5, 2000. (TR 366) Plaintiff filed a request for reconsideration (TR 374), which was denied on June 8, 2000 (TR 368) On June 20, 2000, Plaintiff filed a request for a hearing. (TR 378).
Plaintiff previously filed an application for Supplemental Security Income on December 30, 1996, alleging that he became disabled on January 1, 1996 (Record ("TR") 214) After denial at the initial and reconsideration levels, Plaintiff filed a request for hearing on August 6, 1997 (TR 198-209, 210) Plaintiff waived his right to appear before the Administrative Law Judge ("ALJ"), and his application was denied by the ALJ decision dated May 20, 1998 (TR 212, 358-62) Plaintiff did not appeal the ALJ's decision, and thus, the ALJ's determination that Plaintiff was not disabled during the period between January 1, 1996 and May 20, 1998, is final (TR 358-62) This 1996 denial of benefits is not currently in dispute
Plaintiff appeared before Administrative Law Judge John P. Garner ("ALJ Garner") on March 14, 2001 (TR 696), and the case was continued in order to allow Plaintiff to consult an attorney (TR 711) The case was heard before ALJ Garner on July 5, 2001 (TR 715). In a decision dated September 28, 2001, ALJ Garner ruled that Plaintiff was not entitled to SSI (TR 44-50) Plaintiff filed a request for review of the hearing decision on October 15, 2001 (TR 51) On October 28, 2002, the Appeals Council granted the request for review and remanded the case to ALJ Garner (TR 52-55) The Appeals Council remanded for explanation of the weight given to a consultative psychological examination in March 2000, for further evaluation of Plaintiff's mental impairment, and for clarification of Plaintiff's restriction to light work despite the finding that his physical impairments would not meet the definition of "severe" impairments. (Id.)
A second hearing was held before ALJ Garner on March 6, 2003. (TR 751) In a decision dated April 30, 2003, ALJ Garner ruled that Plaintiff was not entitled to SSI (TR 19-26) Plaintiff filed a request for review of this decision on June 23, 2003. (TR 14) On January 30, 2004, the Appeals Council entered an order denying the request for review (TR 10). Subsequently, Plaintiff filed an action in this Court, and Magistrate Judge Brown recommended that the case be remanded to the administrative level (TR 837-71) Magistrate Judge Brown found remand to be appropriate because Plaintiff's pain complaints were supported by some objective medical evidence, and because ALJ Garner's decision did not contain an adequate consideration of the factors identified in 20 C F R. § 416 929(c)(3) in his analysis of Plaintiff's subjective complaints of pain (TR 870) On January 5, 2005, this Court adopted Magistrate Judge Brown's recommendation and entered an order reversing the decision of the Commissioner and remanding the case for further proceedings. (TR 836).
On remand, the case was heard before Administrative Law Judge George L Evans III ("ALJ") on June 8, 2005 (TR 872) On July 8, 2005, the ALJ issued the decision now before the Court, finding that Plaintiff was not disabled within the meaning of the Social Security Act and Regulations ("Act"), and thus, was not entitled to SSI. (TR 806-17) Specifically, the ALJ made the following enumerated findings of fact:
1 The claimant has not engaged in substantial gainful activity since the alleged onset of disability.
2 The claimant's mild degenerative changes at the T8-9 level of the spine; mild disc bulging at the L5-S1 level of the spine; left shoulder pain; chronic obstructive pulmonary disease; depression; and borderline intellectual functioning are considered "severe" in combination based on the requirements in the Regulations 20 CFR § 416.920(c).
3 These medically determinable impairments do not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No 4.
4 The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.
5 The claimant has the residual functional capacity to perform activities not requiring lifting or carrying more than 20 pounds occasionally or 10 pounds frequently; sitting, standing, or walking more than 6 hours each out of an 8 hour day; more than occasional pushing or pulling with the left upper extremity; or any excessive exposure to pulmonary irritants The claimant must have the option to alternate between sitting and standing at will The claimant is capable of performing unskilled, low stress work that does not require literacy or dealing with the public
6 The claimant has no past relevant work ( 20 CFR § 416.965)
7 The claimant is a "younger individual" ( 20 CFR § 416.963).
8 The claimant is "illiterate" (20 CFR § 416 964)
9 The claimant has the residual functional capacity to perform a significant range of light work (20 CFR § 416 967).
10 Although the claimant's exertional limitations do not allow him to perform the full range of light work, using Medical-Vocational Rule 202 16 as a framework for decision-making, as well as the testimony of the vocational expert, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include the following light exertion jobs in the state and national economy: grader/sorter, numbering 2,200 in the state economy and 86,000 in the national economy; inspector/checker, numbering 9,700 in the state economy and 29,000 in the national economy; and feeder/off-bearer, numbering 1,600 in the state and 800,000 in the national economy. The vocational expert testified that the cited jobs were merely examples and were not an exhaustive list
11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 416 920(g)).
(TR 815-16)
Plaintiff filed exceptions to the hearing decision (TR 793) On January 19, 2006, the Appeals Council denied Plaintiff's request for review of the decision of the ALJ, at which point, the July 8, 2005 decision of the ALJ became the final decision of the Commissioner. (TR 790-92) This civil action was thereafter timely filed, and the Court has jurisdiction pursuant to 42 U.S.C. § 405(g) On November 19, 2007, the Magistrate Judge issued a Report, recommending that Plaintiff's motion be denied and the decision of the Commissioner be affirmed (Doc No 23) Plaintiff timely objected, and he asserts two (2) Objections to the Magistrate Judge's Findings (Doc No. 24) First, Plaintiff contends that the Magistrate Judge should have found that there was insufficient evidence to support the ALJ's rejection of the opinion of Plaintiff's treating physician (Id.) Second, Plaintiff objects that sufficient evidence did not support the ALJ's findings concerning the credibility of Plaintiff's subjective complaints of pain (Id.)
II. REVIEW OF THE RECORD
The Court adopts the portion of the Magistrate Judge's Report that addresses Plaintiff's medical evidence and all hearing testimony (See Doc No 23 at 5-24).
III. STANDARD OF REVIEW
This Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process Jones v. Sec'y of Health Human Servs., 945 F 2d 1365, 1369 (6th Cir. 1991) With respect to the portions of the Report to which Plaintiff objects, the Court must evaluate their findings and conclusions de novo U.S.C. § 636(b). The purpose of this review is limited in scope to determining: (1) whether substantial evidence exists in the record to support the Commissioner's decision; and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Sec'y of Health Human Servs., 803 F 2d 211, 213 (6th Cir. 1986).
Under the first prong of the review's purpose, the determination of whether there is "substantial evidence" to support the Commissioner's conclusion must be based on the record as a whole. Id. (citing Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir 1978)). "Substantial evidence" means "such relevant evidence as a reasonable mind would accept as adequate to support the conclusion." Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389 (6th Cir 1999) (citingRichardson v. Perales, 402 U.S. 389, 401 (1971)). The term has been further quantified as "more than a mere scintilla of evidence, but less than a preponderance" Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir 1996) (citing Consol. Edison Co. v. N.L.R.B., 305 U S 197, 229 (1938)).
The reviewing court may not substitute its own findings of fact for those of the Commissioner if substantial evidence is provided to support the Commissioner's findings and inferences. See Garner v. Heckler, 745 F 2d 383, 387 (6th Cir 1984) In fact, "even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached" Her, 203 F.3d at 389-90 (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir 1997)); see also Colvin v. Barnhart, F.3d 727, 730 (6th Cir. 2007) Under this deferential "substantial evidence" standard, ALJs are provided with a "zone of choice" in which their ultimate judgment prevails, without being second-guessed by district court judges. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir 1986); see also Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir 1983) However, if the Commissioner did not consider the record as a whole, then the Commissioner's conclusion is undermined Hurst v. Sec'y of Health Human Servs., 753 F.2d 517, 519 (6th Cir. 1985) (citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980))
Under the second prong of the review's purpose, a finding of "legal error" would entail the Commissioner's misapplication of a legal standard in his evaluation Preslar v. Sec'y of Health Human Servs., 14 F.3d 1107, 1113 (6th Cir 1994) As a general rule, the Commissioner's interpretation and application of the regulations of the Social Security Administration ("SSA") are entitled to deference by the Court See Whiteside v. Sec'y of Health Human Servs., 834 F.2d 1289, 1292 (6th Cir 1987) (citing FTC v. Ind. Fed'n of Dentists, 476 U S 447, 454 (1986)).
IV. PROCEEDINGS AT THE ADMINISTRATIVE LEVEL
The claimant carries the ultimate burden of establishing an entitlement to benefits by proving that he or she is disabledSee, e.g., Her, 203 F 3d at 391 (citing Bowen v. Yuckert, 482 U S 137, 146 n 5 (1987)). The Act defines a "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A) For purposes of a disability determination, "substantial gainful activity" is considered to be not only any previous work performed by the claimant, but also any other relevant work that exists in the national economy in significant numbers. Id. § 423(d)(2)(A). The decision of whether work exists in the national economy is made "regardless of whether such work exists in the immediate area in which [the claimant] lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work." Id.
At the administrative level of review, the claimant's case is assessed under a five-step sequential evaluation process as follows:
1 If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied.
2 If the claimant is not found to have an impairment which significantly limits his or her ability to work (a "severe" impairment), then he or she is not disabled.
3 If the claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the "listed" impairments or its equivalent If a listing is met or equaled, benefits are owing without further inquiry
4 If the claimant does not suffer from any listing-level impairments, it must be determined whether the claimant can return to the job he or she previously held in light of his or her residual functional capacity (e.g., what the claimant can still do despite his or her limitations) By showing a medical condition that prevents him or her from returning to such past relevant work, the claimant establishes a prima facie case of disability.
5 Once the claimant establishes aprima facie case of disability, the burden shifts to the Commissioner to establish the claimant's ability to work by proving the existence of a significant number of jobs in the national economy which the claimant could perform, given his or her age, experience, education, and residual functional capacity20 C.F.R §§ 404.1520, 416.920; see also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir 1990).
The Listing of Impairments is found at 20 C.F R., pt 404, subpt P, app 1
For the purposes of steps four (4) and five (5), a claimant's residual functional capacity ("RFC") is the most that he or she can do in a work setting despite his or her physical, mental, or other limitations 20 C.F.R. § 416 945. In determining a claimant's RFC, the Commissioner is required to evaluate all apposite materials in the case record, including all relevant medical and other evidence Id. § 20 C F R 416.945(a)(1), (3) Furthermore, the Commissioner must consider the combined effect of all of the claimant's impairments, mental and physical, exertional and nonexertional, severe and nonsevere 42 U.S.C. § 423(d)(2)(B); 20 C.F R. § 416.945(a)(2); Foster v. Bowen, 853 F 2d 483, 490 (6th Cir. 1988).
To satisfy his burden at the fifth step of the evaluation process, the Commissioner must rebut the claimant's prima facie case of disability with particularized proof "supported by substantial evidence that a claimant has the vocational qualifications to perform specific jobs" O'Banner v. Sec'y of Health, Ed. Welfare, 587 F.2d 321, 323 (6th Cir. 1978) (citingTaylor v. Weinberger, 512 F 2d 664, 668 (6th Cir. 1975)). Such substantial evidence is typically provided through the testimony of a vocational expert ("VE") in response to the ALJ's hypothetical questions which reflect the functional abilities of the claimant See Varley v. Sec'y of Health Human Servs., 820 F 2d 777, 779 (6th Cir. 1987).
V. PLAINTIFF'S OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT
A. Plaintiff Objects to the Magistrate Judge's Conclusion that Sufficient Evidence Supported the ALJ's Rejection of the Opinion of the Treating Physician, Dr. Agbenohevi.
Plaintiff contends that the ALJ erred by "completely disregarding" the functional assessment form completed by Plaintiff's treating internist, Dr. Rexford Agbenohevi, on February 28, 2003 (TR 176-78) (Doc No. 24) As a threshold matter, Plaintiff mischaracterizes the ALJ's treatment of Dr Agbenohevi's assessment The ALJ gave credit to Dr Agbenohevi's opined limitations that were substantiated by objective evidence in the record by incorporating them into the RFC (TR 812).
Consistent with the section of Dr Agbenohevi's assessment that detailed Plaintiff's clinically-determined limitations pertaining to his left shoulder (TR 177-78), the ALJ found that Plaintiff could do no more than occasional pushing or pulling with his left arm and that he was limited in reaching in all directions (TR 812) Additionally, the ALJ accommodated Plaintiff's complaints of chronic back and neck pain and COPD "by limiting him to light exertion work with a sit/stand option and with no excessive exposure to pulmonary irritants" (TR 813) Finally, the ALJ gave credit to Plaintiff's documented low intelligence by limiting him to "unskilled, low stress work that does not require literacy or dealing with the public" (TR 812) This is consistent with Dr Agbenohevi's opinion that Plaintiff is capable of performing low stress jobs (TR 177), despite Plaintiff's interpretation that his treating physician concluded that Plaintiff was "unable to perform even sedentary work." (Doc. No 16 at 15-16, 18) Because the ALJ incorporated several limitations indicated by Dr. Agbenohevi that are supported by the medical record, Plaintiffs allegation that the ALJ completely rejected Dr Agbenohevi's assessment is incorrect.
To explain his partial discounting of the doctor's assessment, the ALJ provided that:
In March 2003, Dr Abgenohevi [sic] completed a functional assessment form in which he opined that the claimant could perform sedentary to light exertion work and that he suffered from severe pain often As noted below, this assessment is assigned little weight because it is inconsistent with the claimant's objective scans and x-rays, benign clinical exam findings, and his conservative treatment of [Plaintiff] His assessment is also inconsistent with [Plaintiffs] reported daily activities
(TR 810) The Magistrate Judge found that the ALJ's first assertion — that the assessment was inconsistent with the objective medical evidence — was substantially supported by the medical record (Doc No 23 at 30). However, the Magistrate Judge found that the ALJ's subsequent assertions — that the assessment was inconsistent with Dr Agbenohevi's conservative treatment of Plaintiff and with Plaintiff's daily activities — were unpersuasive. (Id.) The Court agrees with the Magistrate Judge on both points, as discussed below
1. The ALJ Correctly Discounted the More Restrictive Exertional Limitations in Dr. Agbenohevi's Assessment Because They Were Inconsistent with the Medical Record.
To the extent that it was inconsistent with the RFC outlined in his decision, the ALJ accorded Dr. Agbenohevi's functional assessment little weight, in part, because it was "unsupported by the claimant's benign objective x-rays and scans, [and] the absence of significant neurological or musculoskeletal clinical abnormalities" (TR 813). The Court finds that the ALJ arrived at his decision to give Dr Agbenohevi's assessment little weight after a proper analysis of the regulatory factors, supplemented by reference to the fact that Dr Agbenohevi's opinion was inconsistent with the opinions of both Dr Gaw and Dr Miller and Dr Agbenohevi's failure to explain certain opined limitations (TR 810-13). The Magistrate Judge found that the ALJ properly discredited Dr Agbenohevi's opinion, giving good reasons for doing so (Doc. No 23 at 30). The Court agrees
The Sixth Circuit has observed that the opinion of a claimant's treating physician is entitled to great weight, but only if it is both supported by sufficient clinical findings and is consistent with other evidence Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir 1993) (citing Young v. Sec'y of Health Human Servs., 925 F 2d 146, 151 (6th Cir 1990)); see also Stiltner v. Comm'r of Soc. Sec., 2007 WL 2264414, at *4 (6th Cir. Aug. 7, 2007) Furthermore, an ALJ may reject a treating doctor's opinion in favor of a consulting doctor's opinion, if the consulting doctor's opinion is supported by the objective medical evidence See Young, 925 F 2d at 150
If a treating physician's opinion is not given controlling weight, then the ALJ must consider a number of regulatory factors in determining how much weight it should be accorded 20 C F R. § 416. 927(d)(2). These factors include the length of the treatment relationship and the frequency of examination, the nature and extent of relevant evidence that the treating physician presents supporting his opinion, and the consistency of the opinion with the record as a whole Id. The SSA regulations provide that the ALJ must supply "good reasons" for discounting the opinion of a treating physician, by reference to the regulatory factors mentioned above Id. In this case, the ALJ properly discounted the significant exertional limitations specified by Dr Agbenohevi that were not supported by the medical record, such as the restrictive limitations regarding lifting, carrying, and walking. (TR 812, 813)
In determining what weight to give Dr Agbenohevi's opinion, the ALJ properly discounted several of the significant exertional limitations specified on Dr Agbenohevi's assessment form because evidence in the record indicated otherwise (TR 813). The ALJ noted that the radiographic evidence in the record (TR 194-96) lacks abnormalities significant enough to reasonably require the more significant exertional limitations indicated by Dr Agbenohevi (TR 813). Plaintiff's lumbar magnetic resonance imaging ("MRI") scan revealed only insignificant disc bulging at the L5-S1 level of the spine, and his thoracic X-rays and MRI scan revealed very mild anterior loss of height at the T8-9 level of the spine. (TR 194-95). Otherwise, Plaintiff's lumbar and thoracic images were "unremarkable," and his cervical X-rays and scans were within normal limits. (TR 194-95, 196). Although the MRIs were taken approximately 16 months prior to the completion of Dr Agbenohevi's functional assessment (TR 194-96), the ALJ properly found no subsequent significant clinical findings to the contrary that would suggest a medical condition which would reasonably cause the amount of pain alleged (TR 179-93, 980-1009) Although Dr. Agbenohevi occasionally indicated spasm in the paraspinal, lumbosacral, and sternocleidomastoid musculature (TR 185, 188, 190, 980), as well as positive results on straightleg raise testing (TR 982, 997, 1006), the ALJ correctly declined to accept that Dr. Agbenohevi's clinical findings support his assessment that Plaintiff's pain was "often" severe and necessitated significant exertional limitations (TR 176-77) Notably, Dr. Agbenohevi's treatment notes consistently reflect Plaintiff's report of a moderate level of baseline chronic pain in his back and neck (TR 179-93, 980-1009), subject only to infrequent periods of exacerbation, which were expected to resolve in time (TR 183, 1004, 1002).
Although Plaintiff generally reported a "moderate" level of back and neck pain (TR 189, 980, 1002), he did report a "moderate to severe" level of back pain on one occasion (TR 997), a "moderate to severe" level of low back and neck pain on another occasion (TR 990), and a "severe" level of back pain on one earlier occasion (TR 183)
On December 30, 2002, Plaintiff reported a four-day worsening of his chronic back pain, describing the intensity of the pain as "severe" (TR 183) Dr Agbenohevi treated Plaintiffs symptoms with medications and directed him to "return to the clinic in one week if not back to normal." (Id.). Plaintiff returned nearly two months later on February 20, 2003 due to complaints related to his chronic obstructive pulmonary disease (TR 179)
On July 17, 2003, Plaintiff presented "with pain in the neck more than his usual pain," describing his dull pain as "moderate" in severity. (TR 1004) Dr Agbenohevi treated Plaintiff's neck pain with muscle relaxants and directed him to "return to the clinic in one week if not back to normal" (TR 1004-05). Plaintiff returned nearly one month later on August 14, 2003, with chief complaints of nasal congestion (TR 1003)
On September 15, 2003, while Plaintiff's chief complaint was chronic obstructive pulmonary disease, he also presented with back pain that was "long-standing and intermittent with exacerbation in the last one week," describing his pain as "moderate" in severity (TR 1002) Dr Agbenohevi renewed Plaintiffs current medications and directed him to return to the clinic in one month (Id.)
Dr. Agbenohevi's opinion also directly conflicted with other medical evidence, specifically, the assessment of consulting physician, Dr David Gaw, and the findings of the Vanderbilt University pain management specialist, Dr Michael Miller. (TR 810) Dr. Gaw, an orthopedic surgeon specializing in disorders of the musculoskeletal system, examined Plaintiff in August 2001 and completed a functional assessment that was consistent with the benign objective evidence in the medical record (TR 690-92) In a physical examination, Dr Gaw could not elicit any muscle spasm and he found no evidence of muscle weakness, atrophy, or sensory deficits. (TR 689) Dr Gaw diagnosed Plaintiff with soft thoracic and lumbar strain (Id.) and he opined that Plaintiff was capable of performing light exertion work (TR 690-92) Upon examination of Plaintiff's musculoskeletal system, Dr. Miller — who was referred to Plaintiff by Dr Agbenohevi — found that although Plaintiff exhibited multiple trigger points in the lower back and shoulder, muscle spasm in the shoulder area, and a cystic mass in the left shoulder, Plaintiff demonstrated normal range-of-motion, muscle strength, motor function, and sensory abilities (TR 96-97) This objective medical evidence supported the ALJ's decision to incorporate Plaintiff's shoulder limitations into the RFC, while discounting the other exertional limitations reflected in Dr Agbenohevi's assessment. (TR 812)
Finally, the ALJ correctly rejected parts of Dr. Agbenohevi's opinion because they were left unexplained by Dr Agbenohevi (TR 176-178) While Dr Agbenohevi listed numerous clinical findings to support his prescribed restrictions in regards to Plaintiff's shoulder (TR 177-78), he failed to explain other exertional limitations, although the form provided space for him to detail such explanations (TR 176-78) For example, Dr Agbenohevi's opinions that Plaintiff could not sit for more than six (6) hours a day, could not lift or carry more than 10 pounds occasionally or less than 10 pounds frequently, needed to elevate his legs white sitting, needed to take unscheduled breaks every three (3) hours, and was likely to be absent twice a month were not explained on the assessment form (Id.), nor were they substantiated elsewhere in the treatment notes (TR 179-93, 980-1009).
The ALJ discussed all of the above and referenced conflicting medical evidence in his determination of what weight to give Dr. Agbenohevi's opinion Furthermore, the ALJ clearly considered the appropriate regulatory factors Specifically, the ALJ considered the length of the treatment relationship (TR 810), the nature and extent of relevant evidence that the treating physician presented to support his opinion (TR 810, 813), and the consistency of the opinion with the record as a whole (TR 810, 813). The Court, therefore, finds that substantial evidence supports the ALJ's decision and that the ALJ gave good reasons for this determination
2. The Court is Unpersuaded by the ALJ's Assertion that Dr. Agbenohevi's Opinion Was Inconsistent With Both His Conservative Treatment of Plaintiff and Plaintiff's Reported Activity Level.
In addition to the lack of medical evidence to support it, the ALJ assigned little weight to the functional assessment of Dr Agbenohevi because it was inconsistent with Dr Agbenohevi's conservative treatment of Plaintiff and Plaintiffs reported daily activities. (TR 810) The Magistrate found these arguments unpersuasive (Doc. No. 23 at 30-31). The Court agrees
With respect to Plaintiff's treatment, the ALJ implied that Plaintiff would have sought surgical forms of treatment if Plaintiff was in fact suffering from disabling pain, by noting that Plaintiff "admitted that he has not required any surgery for his pain" (TR 808). However, as Plaintiff points out, "the fact that [Plaintiff] was treated conservatively does not call into question the severity of his condition" (Doc. 16 at 17) It was improper for the ALJ to discount the treating physician's opinion on the basis that Plaintiff's doctors recommended nonsurgical treatment options for Plaintiff's back and neck pain. See O'Nan v. Sec'y of Health Human Servs., 1988 WL 26062, at *2-3 (6th Cir. Mar 29, 1988) Furthermore, it is not evident from the record that any potential surgical alternatives even existed for Plaintiff's pain related to muscle spasms As such, Dr Agbenohevi's treatment of Plaintiff was not properly discounted because it was conservative
Furthermore, the restrictions indicated by Dr. Agbenohevi are not inconsistent with Plaintiff's limited range of reported daily activities, as the ALJ summarily stated. Plaintiff testified at his most recent hearing that he did not cook, did virtually no housework or yard work, did not have any hobbies, went shopping with his girlfriend about once a month (during which he sometimes stayed in the car because of reported pain from walking), and participated in social gatherings about twice a year (TR 899-902) Although the ALJ attempted to downplay the limited nature of Plaintiff's activity level by stating that Plaintiff's "daily and social activities are not suggestive of a totally disabled individual" (TR 813), the record as a whole supports Plaintiff's testimony suggesting otherwise (TR 436-38)
In sum, while the ALJ's references to Plaintiff's conservative treatment and daily activities as grounds to discount the treating physician's opinion are not persuasive, the ALJ's first assertion served as a sufficient and independent basis for the ALJ to have discounted Dr Agbenohevi's assessment That is, the ALJ's reasoning that Dr Agbenohevi's functional assessment was unconoborated by the medical record as a whole is sufficient to support the ALJ's decision to partially discount Dr. Agbenohevi's opinion (TR 810, 813) Furthermore, the ALJ's thorough explanation satisfies his obligation to give "good reasons." 20 C.F.R § 416.927(d)(2) Plaintiff's first objection, therefore, fails
B. Plaintiff Objects to the Magistrate Judge's Conclusion that Substantial Evidence Supported the ALJ's Findings Concerning the Credibility of Plaintiff's Subjective Complaints of Pain.
Plaintiff contends that the ALJ lacked substantial evidence to support his conclusion that Plaintiff's allegations of disabling pain were not credible. (Doc. No 24) In making his credibility finding, the ALJ was influenced both by his conviction that Plaintiff's testimony was not credible, and by the lack of objective medical evidence to substantiate Plaintiff's complaints (TR 813).
1. The ALJ Properly Discredited Plaintiff's Allegations of Disabling Pain as Not Credible.
When evaluating the extent of Plaintiff's alleged impairments, the ALJ concluded that Plaintiff's complaints of disabling pain were not credible, given his hearing testimony (TR 813) The Magistrate Judge found that the ALJ's credibility findings were entirely reasonable and substantially supported (Doc. No. 23 at 33) The Court agrees
It is well established that an ALJ may assess a claimant's credibility when making his disability determination. See Kirk v. Sec'y of Health Human Servs., 667 F.2d 524, 538 (6th Cir 1981),cert. denied, 461 U.S. 957 (1983). Furthermore, an ALJ's credibility assessment is to be accorded great weight and deference, particularly since an ALJ has both the opportunity and the duty to observe a witness's demeanor while testifying See Villareal v. Sec'y of Health Human Servs., 818 F.2d 461, 463 (6th Cir 1987) Additionally, and especially pertinent to this case, the Sixth Circuit has emphasized that "[t]he absence of sufficient medical evidence makes credibility a particularly relevant issue, and in such circumstances, this court will generally defer to the Commissioner's assessment when it is supported by an adequate basis." Walters v. Comm'r of Soc. Sec., 127 F 3d 525, 531 (6th Cir. 1997) (citing Blacha v. Sec'y of Health Human Servs., 927 F.2d 228, 230 (6th Cir. 1990)) When evaluating a claimant's credibility, the ALJ has the power and discretion to weigh all record evidence, and this Court will defer to such judgments, if they are supported by substantial evidence in the record. See Bradley v. Sec'y of Health Human Servs., 862 F.2d 1224, 1227 (6th Cir 1988). As such, in considering the ALJ's credibility assessment, this Court is "limited to evaluating whether or not the ALJ's explanations for partially discrediting [the claimant] are reasonable and supported by substantial evidence in the record "Jones v. Comm'r of Soc. Sec., 336 F 3d 469, 476 (6th Cir. 2003) In this case, the Court finds that substantial evidence supported the ALJ's adverse credibility finding regarding Plaintiff's subjective complaints of pain
In determining Plaintiffs credibility, the ALJ looked to Plaintiff's apparent lack of honesty, noting that Plaintiff neglected to mention his most recent arrest when questioned about his arrest history (TR 813) The ALJ also observed that Plaintiff had previously engaged in activities that are plainly inconsistent with a claim of disability, including loading lumber on a truck, loading and unloading a lawn mower on a truck, and chopping wood (Id.), The ALJ also noted that Plaintiff repeatedly visited emergency rooms from 1997 to 2005 and exhibited narcotic-seeking behavior, though his requests were usually denied and he was prescribed non-narcotic medications (Id.) Furthermore, the ALJ noted that Plaintiff testified that he has been applying for disability since age eighteen, and he has made no attempt to work or apply for work since the 1980's. (TR 813) Despite Plaintiff's testimony that his primary problem was shortness of breath requiring supplemental oxygen at night, he continued to smoke a pack of cigarettes a day at the time of the ALJ's decision (TR 808, 813). Taken together, the ALJ properly took these issues into account when discrediting Plaintiff Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir 2004) (a claimant's reported daily activities that are inconsistent with a claim of disability may be considered in an ALJ's credibility determination); Sias v. Sec'y of Health Human Servs., 861 F.2d 475, 480-81 (6th Cir. 1988) (an ALJ's adverse credibility finding may be supported by a claimant's failure to follow medical advice regarding smoking habit); Miracle v. Celebrezze, 351 F.2d 361, 382 (6th Cir. 1965) (a claimant's history of efforts to find work is relevant to the amount of evidence needed to support a finding of disability)
Although Plaintiff's engagement in these activities was prior to the date of his current application, it was during a period in which he nonetheless claimed to be disabled, according to his December 30, 1996 application for SSI, and is, therefore, relevant to a determination of his credibility See supra note 2
The Court notes that Plaintiff had claimed that he was allergic to non-steroidal anti-inflammatory drugs, which may partially explain his resort to narcotic painkillers (TR 126, 140, 158). Therefore, this observation, if standing alone, may not have been entirely compelling
The Court agrees with the Magistrate Judge and defers to the ALJ's overall adverse credibility determination because it was supported by substantial evidence.
2. The ALJ Properly Determined that Plaintiff's Subjective Complaints of Disabling Pain Were Not Supported by the Medical Record.
When assessing Plaintiff's subjective complaints of pain, the ALJ found that the amount of pain alleged by Plaintiff was not substantiated by evidence in the medical record (TR 813) The Magistrate Judge found that substantial evidence supported the ALJ's conclusion (Doc No 23 at 34-35). The Court agrees
The ALJ found that the medical record, including radiographic evidence demonstrating only insignificant abnormalities in Plaintiff's spinal region, lacked substantial evidence to corroborate the amount of pain alleged. (TR 813). This conclusion was proper because the SSA regulations stipulate that an individual's statements as to "pain or other symptoms will not alone establish that [he is] disabled; there must be medical signs and laboratory findings which show that [he has] a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged." 20 C.F.R. § 416 929(a) The Sixth Circuit has developed a two-pronged framework for evaluating a claimant's subjective complaints of pain in light of the medical record:
First, we examine whether there is objective medical evidence of an underlying medical condition. If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain.Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994) (quotingDuncan v. Sec'y of Health Human Servs., 801 F 2d 847, 853 (6th Cir. 1986)); see also Sias, 861 F.2d at 479; 20 C F R. § 416 929(a) Consistent with this framework, the ALJ correctly referenced the fact that the mostly benign evidence in the medical record, including Plaintiff's scans and X-rays that demonstrated only minor abnormalities, did not corroborate Plaintiff's complaints of disabling pain (TR 813) While Plaintiff's documented occasional muscle spasms were objective indicia of some level of pain, the ALJ properly found that they did not demonstrate a medical impairment that would reasonably be expected to produce disabling pain, as required by the Sixth Circuit's two-pronged test. Duncan, 801 F 2d at 853.
The SSA regulations indicate that if disabling severity cannot be shown by objective medical evidence alone, the ALJ must consider the following regulatory factors to assess the intensity and persistence of a claimant's pain: (1) a claimant's daily activities; (2) the location, duration, frequency, and intensity of a claimant's pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication a claimant takes or has taken to alleviate his pain; (5) treatment, other than medication, a claimant receives or has received for relief of his pain; (6) any measure a claimant uses or has used to relieve his pain (e.g., lying flat on his back, standing for 15 to 20 minutes every hour, sleeping on a board, etc; and (7) other factors concerning a claimant's functional limitations and restrictions due to pain 20 C F R. § 416 929(c)(3). In this case, the occasional elicitation of muscle spasms by Plaintiff's physicians was enough to trigger the full analysis of 20 C F R § 416 929(c)(3), and the ALJ correctly considered the objective evidence and the entire record in a detailed evaluation (TR 807-13) In accordance with the regulation, the ALJ noted Plaintiff's reported daily activities (TR 808) (Plaintiff does no housework or yard work, but he goes shopping with his girlfriend and watches television) The ALJ also acknowledged Plaintiff's allegations about the location (TR 808) ("neck, back, and left shoulder and leg"), duration (TR 807) (since alleged onset of January 1, 1996), frequency (TR 808) ("constant"), and intensity (TR 808) (sufficient to affect his concentration) of his alleged pain The ALJ noted alleged precipitating and aggravating factors of Plaintiff's impairments (TR 808) (Plaintiff's testimony that "cold weather or high humidity make his breathing worse") The ALJ discussed evidence related to Plaintiff's medications (TR 808) (Plaintiff's testimony that "prescribed pain medications ease his pain a little for short periods of time"), and noted prescriptions for bronchodilators and muscle relaxers (TR 813) The ALJ
For the reasons stated above, the Court DENIES Plaintiff's Motion for Judgment on the Administrative Record, and AFFIRMS the decision of the Commissioner
It is so ORDERED