Opinion
Case No. 3:12-cv-00272
08-05-2013
LUCINDA TAYLOR, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge erred in finding the Plaintiff "not disabled" and therefore not entitled to a period of disability and disability insurance benefits. (Electronic PageID No. ("Pg.") 33).
I.
On February 21, 2008, Plaintiff filed a Title II application for a period of disability and disability insurance benefits, alleging disability commencing November 5, 2005. (Pg. 192). Plaintiff's disability claim was based on an alleged inability to work because of increasing back pain caused by scoliosis. (Pg. 72). Plaintiff's application was denied initially on June 2, 2008, and upon reconsideration on October 20, 2008. (Pg. 134-138). Plaintiff then filed a timely written request for hearing on December 13, 2008 pursuant to 20 C.F.R. 404.929. (Pg. 139). Plaintiff appeared and testified at a hearing held on August 23, 2010 in Dayton, Ohio. (Pg. 84). Richard Gardner, M.D., an impartial medical expert, and Vanessa Harris, an impartial vocational expert, appeared and testified. (Pg. 84). On January 26, 2011, Administrative Law Judge Peter B. Silvain (the "ALJ") issued his decision which found that Plaintiff was not disabled as defined by the Social Security Act and, thus, not entitled to benefits. (Pg. 79). The ALJ found that prior to December 31, 2010, Plaintiff had the residual functional capacity ("RFC") to perform sedentary work , subject to additional limitations, that allowed her to perform a significant number of jobs in the national economy. (Pg. 72). The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant"). (Pg. 47). Plaintiff then commenced this action in federal court for judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g).
A residual functional capacity is a measure of what an individual can do despite the limitations imposed by the individual's impairment(s). It is assessed based on the relevant evidence in the case record. 20 C.F.R. § 404.1545.
Work classifications are defined for Social Security purposes based on the amount of physical exertion involved. Sedentary work (least strenuous) involves lifting no more than 10 pounds at a time and occasionally lifting or carrying small items. It also involves a certain amount of walking or standing. 20 C.F.R. §§ 404.1567, 416.967.
The Plaintiff was 44 years old on the date last insured. (Pg. 77). She is a high school graduate. (Pg. 77). Her past relevant work was as a packaging operator. (Pg. 94). She stopped working in November 2005 due to increased back pain. (Pg. 95).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant last met the insured status requirements of the Social Security Act on December 31, 2010.
2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of November 5, 2005 through her date last insured of December 31, 2010 (20 CFR 404.1571 et seq.).
3. Through the date last insured, the claimant had the following severe impairments: scoliosis, early emphysema/COPD, osteoporosis, degenerative disc disease, and status post cholecystectomy (20 CFR 404.1520(c)).
4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except that she must have the option to alternate sitting and standing positions at 15 minute intervals throughout the workday. In addition, she is restricted, bilaterally, to frequent pushing or pulling. She is also restricted, bilaterally, to occasional use of foot controls. She cannot climb ramps and stairs, and she is restricted to occasional climbing of ladders, ropes, or scaffolds. She can do no stooping, kneeling, crouching, or crawling. She is restricted to frequent reaching, bilaterally. She is restricted to occasional overhead reaching, bilaterally. She must avoid all exposure to excessive vibration. She must avoid all exposure to hazardous machinery and she cannot work at unprotected heights.
6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).
7. The claimant was born on December 14,1966 and was 44 years old, which is defined as a younger individual age 18-44, on the date last insured (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).(Tr. 71-79).
9. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 404.1568).
10. Through the dated last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).
11. The claimant was not under a disability, as defined in the Social Security Act, at any time from November 5, 2005, the alleged onset date, through December 31, 2010, the date last insured (20 CFR 404.1520(g)).
In sum, the ALJ concluded that from November 5, 2005 through December 31, 2010, Plaintiff was not under a disability as defined by the Social Security Regulations and was therefore not entitled to a period of disability or disability insurance benefits ("DIB"). (Pg. 79).
On appeal, Plaintiff argues that: (1) the ALJ erred in determining Plaintiff's residual functional capacity ("RFC"); and (2) the ALJ failed to appropriately evaluate the record in conjunction with the pain regulations noted in 20 C.F.R. 416.929 and Social Security Ruling 96-7P and the ALJ failed to evaluate the Plaintiff's credibility in conjunction with SSR 96-7P. The Court will address each argument in turn.
II.
When the Appeals Council denied Plaintiff's request for review (Pg. 47-49), the ALJ's decision became final. Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993). The Social Security Act authorizes judicial review of the agency's final decision. 42 U.S.C. § 405(g). Under the Social Security Act, the agency's findings as to any fact shall be conclusive if supported by substantial evidence. Mullen v. Sec'y of Health & Human Servs., 800 F. 2d 535, 538 (6th Cir. 1986). Thus, the Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g).
"Substantial evidence" means such relevant evidence as a reasonable person might find adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's findings, the denial of benefits is not to be overturned, even if there is also evidence to support a contrary decision. Smith v. Chater, 99 F. 3d 780, 782 (6th Cir. 1996). As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). To meet this burden, the Plaintiff must pass a two-fold test. First, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months; and second, that such impairment left her unable to perform any job in any substantial gainful employment. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
1) Hearing Testimony
Plaintiff was diagnosed with scoliosis in sixth grade, but it was never formally treated. (Pg. 112, 315-316). She received very little formal medical treatment due to a lack of medical insurance and financial resources. (Pg. 73). Her height decreased due to her scoliosis. (Pg. 91).
During the August 23, 2010 hearing, Plaintiff testified that she is unable to work because she had increasing back pain due to her scoliosis and is in pain every day. (Pg. 110). She also experienced increasing pain in her right shoulder, left elbow, and right hip. (Pg. 98-99). She is unable to stand for long periods of time and has difficulty reaching for and grasping things. (Pg. 95-96). Plaintiff testified that she cramps up when she sits for more than ten minutes; and that when she sits, she must hold herself up. (Pg. 99). She also has difficulty walking for more than the length of a city block due to back and leg pain, and becomes short of breath. (Pg. 72-73). She becomes short of breath once or twice a day. (Pg. 101).
Plaintiff's chiropractor told her that she should not carry a basket of laundry or run a vacuum sweeper. (Pg. 96). Her hips and shoulder go out all the time. Id. She does not take medication other than Advil or Aleve because they make her nauseous, and because her husband was addicted to them, and watching that was "ugly." (Pg. 94-97).
Plaintiff also claimed trouble sleeping. She can stand approximately ten minutes in one spot, but cannot bend over. She must bend her knees if she drops something. When she goes to the store, people have to help put things away. She has trouble walking down or upstairs, and she often must stop before she reaches the top/bottom. (Pg. 97-99). Her bones pop in and out, dislocate, and she has constant pain down her hip and leg. (Pg. 98-99).
Plaintiff testified that she does not drive often, only one block to the bus stop to pick up her son twice a day, and a few miles once a week to the grocery store. (Pg. 92-106). Her kids take out the garbage. (Pg. 107). Her fiancée and kids also take care of their garden. (Pg. 107). She has trouble showering and dressing because she cannot pick one of her legs up to even get to the bottom of her foot. Id.
Plaintiff also stated that she does laundry or dishwashing during the day and that she usually cooks dinner for her sons. (Pg. 104-105). She does not attend any clubs, organizational groups, or church. (Pg. 108). She testified that she does not get out to visit friends or relatives, but that they visit her. Id. She does not have any hobbies. (Pg. 109). She admitted to prior tobacco use and occasional alcohol use, but denied any problems with alcohol, drugs, or the law. Id.
Dr. Richard Gardner reviewed the medical evidence and testified as a medical expert at the administrative hearing. (Pg. 114-19). Dr. Gardner testified that none of Plaintiff's impairments met or equaled the criteria of any listings. (Pg. 115-16). Dr. Gardner assessed residual functional capacity limitations for lifting twenty pounds occasionally and ten pounds frequently, standing or walking for six hours a day, sitting for six hours a day, occasionally bending, crawling, and kneeling, avoiding ropes, ladders, and scaffolds, and occasionally climbing ramps and stairs. (Pg. 116-17). Dr. Gardner stated that these restrictions amounted to a light exertion capacity. (Pg. 117).
A vocational expert, Vanessa Harris, considered two hypothetical questions. (Pg. 122-24). First, she considered job possibilities for an individual with Plaintiff's vocational factors of age, education, and work experience, with the following limitations: a light exertion lifting level of twenty pounds occasionally and ten pounds frequently, standing and walking for six hours and sitting for six hours a day that allowed the option to alternate sitting or standing positions at fifteen minute intervals throughout the day, frequent pushing and pulling, occasional operation of foot controls, occasional climbing of ramps and stairs, no climbing of ladders, ropes or scaffolds, no stooping, kneeling, crouching, or crawling, frequent reaching in all directions and occasional overhead reaching, and no exposure to hazardous machinery, unprotected heights, or excessive vibration. (Pg. 122-23). The second hypothetical question kept the same restrictions, except that it changed the exertion level to sedentary, with ten pounds of lifting, two hours of standing and walking, and six hours of sitting. (Pg. 123). The VE identified 20,000 light jobs as a sealing inspector, binder, and garment sorter, and 3,700 sedentary jobs as a nut sorter, toy stuffer, and bag patcher in the Southwestern Ohio regional economy that would accommodate such restrictions. (Pg. 124). The VE testified that the sedentary jobs were bench, stationary positions that allowed a sit-stand option, based on her job site analysis. (Pg. 124-25).
The vocational expert (the "VE") defined the regional economy as those counties within a 50-mile radius of Dayton, Springfield, and Cincinnati, which the VE testified was representative of the national economy as approximately one percent of the national work force. (Pg. 121). The VE testified that she would identify when her testimony departed from the information contained in The Dictionary of Occupational Titles ("DOT"). Id. The VE identified Plaintiff's past job as a conveyor tender, which was an unskilled, medium exertion job. (Pg. 122). The ALJ found that Plaintiff was incapable of returning to her past job. Id.
The VE testified that her testimony departed from the DOT only in regards to the sit-stand option. (Pg. 125).
The jobs identified by the VE were full time jobs. (Pg. 125). The VE testified that if an individual, due to breaks or chronic pain, was off task one-third of every workday, that individual would not be able to perform full-time work at any exertional level. (Pg. 125). She also testified that if an individual, due to their impairments, were unable to maintain and sustain attendance and, in fact, was expected to be absent three times a month, that individual would not be able to sustain full-time employment at any exertional level. (Pg. 126).
The VE's testimony concerning an employee being off-task or absent was in response to hypotheticals posed by Plaintiff's counsel. (Pg. 125-126). In contrast, the first two hypotheticals were posed by the ALJ.
2) Physical Impairments
Plaintiff was diagnosed with scoliosis in sixth grade, but it was not formally treated. (Pg. 112, 315-316). She received very little formal medical treatment due to a lack of medical insurance and financial resources. (Pg. 73). Her height has decreased due to her scoliosis. (Pg. 91).
a. Dr. Danopulos
A state agency consultant, Damien Danopulos, M.D., examined Plaintiff on April 28, 2008. (Pg. 263). His impressions were as follows:
She suffers from right shoulder pain at least for the last three or four years. The right shoulder pops out of place once in a while when she does a forced motion. Then she moves her arm around several times until it pops back again and she feels comfortable. She suffers from left elbow pain for almost ten years. She experiences the left elbow pain once or twice a week and she may awake with the left elbow pain. She suffers from mid and low back pain for the last fifteen years. She experiences the pain on a daily basis on and off but she does not know what causes the pain each time. She was told that she was suffering from scoliosis when she was in the sixth grade by the school nurse. The nurse told her to bend over and touch her toes.
She showed scoliosis which was involving the entire spine. The mid and low lumbosacral spine were painful by pressure, straight leg rising was positive at 70 degree level bilaterally and lumbar spine motions were restricted and painful. She showed right convex kyphoscoliosis in the dorsal spine with left convex lordoscoliosis in the lumbar spine area. This was diagnosed when she was in the 6th grade but they never took care of that. She never was treated, they never did any surgery and he never wore any braces for that. The lumbar spine x-rays revealed moderate scoliosis and minimal degenerative changes.
The objective findings were 1) early emphysema, 2) right hip arthralgias, 3) right shoulder arthralgias, 4) left elbow arthralgias, 5) dorso-lumbar
scoliosis with distorted chest cavity and low back pain with restricted motion.
Her ability to do any work related activities is restricted considerably from the double dorso-lumbar scoliosis which also disturbs the chest cavity, chronic lumbosacral spine pain and early emphysema. (Pg. 266-267).
b. Dr. Detrick
Plaintiff has been under chiropractor Dr. Dustin Detrick's care since March 29, 2007. (Pg. 369). Dr. Detrick's findings are as follows:
Her complaints then, and still persisting, consist of neck, shoulder, upper/mid/low back pain, and pelvic pain. Per x-ray examination, she has a 46 degree thoraco-lumbar scoliosis. This condition is idiopathic in nature. It causes her to suffer with repetitive spinal joint subluxations (misalignments of the vertebra). The subluxations cause pain and swelling of the surrounding soft tissue. This surrounding soft tissue includes, but not limited to: vertebral joints, intervertebral discs, muscles, tendons, ligaments, adipose, cartilage, arteries, veins, and most notably, spinal nerves. These vertebral subluxations lead to the many symptoms that Lucinda complains of, including, but not limited to; muscular pain, weakness, fatigue, and neurological disorders. Ms. Taylor's spinal joint condition causes frequent inflammation/swelling, of which, leads to pain. Repetitive, physical stressors will certainly worsen this condition and lead to an increased, amount of disability. To my knowledge, Ms. Taylor does not have education past high school.
Based on her condition, she would not be a good, reliable candidate for a structured work schedule. She would, most likely, be placed in a position of repetitive physical stress that would easily complicate her condition. She is incapable of withstanding the pressure of meeting normal standards of work productivity and work accuracy without significant risk of worsening of her physical impairments. She would be unable to complete a normal work week without interruption from physically based symptoms.
We will probably not be able to ever fully correct her scoliosis, however, we can keep her functioning at her highest level possible. We have
attempted several times to lengthen the time frequency between her adjustments. This has proven to not work. We end up treating her several extra times to calm her body down and get relief. She has been given several home exercise protocols that are working well. We will continue to modify this treatment regimen as necessary. (Pg. 369)
c. Dr. McCarthy
On September 19, 2008, Dr. Robert McCarthy determined that Plaintiff:
[H]as profound rotational scoliosis that is probably 20 to 30 degrees with some changes in the architecture of the rib cage because of it. She has very little flexibility in terms of flexing the thorax forward or backward, and she has restrictive lung disease, as exhibited by a test by Social Security approximately four months ago. Her past medical history is positive for that, and she had gallbladder surgery, tubal ligation, hysterectomy, partial, and ganglion cyst removed from her right hand. She has no known allergies. (Pg. 291)
Dr. McCarthy furthered opined that Plaintiff's "scoliosis continues to get worse, her breathing problems continue to get worse, and she is having more difficulty exercising and walking. She has restrictive lung disease from profound rotational scoliosis." Additionally, Plaintiff "has an absolutely horrible rotational scoliosis with restrictive lung disease and a bad deformity," and that "she needs kyphoplasty or something to straighten her spine out or she is going to have a terrible quality of life down the road with worsening restrictive lung disease and inability to ambulate, organ problems, and on and on." (Pg. 292). Dr. McCarthy concluded that her condition "is only going to get worse" and that she could "have very poor quality of life in her adulthood." Id.
d. Dr. Fumich
Plaintiff saw Dr. Frank E. Fumich on October 9, 2008. (Pg. 315-316). Dr. Fumich reported the following:
Lucinda is a 41-year-old female referred to our office for further evaluation of her known scoliosis deformity by Dr. McCarthy. She reports she can recall as early as the 6th grade being told that she had a scoliosis deformity. However, at no time was she ever treated with any bracing or any surgical intervention. She reports that over the years as she has aged she has noticed progression of her curve. She reports a constant but worse with activity throbbing sensation throughout her entire spine with the lumbar region being affected the most. She does report occasional symptoms into her right leg, over the posterolateral aspect of the thigh and stopping at the level of the knee. She does report walking is generally limited to one-quarter mile due to back pain. She reports that going to the chiropractor or changing positions improves the symptoms. She denies any changes in bowel or bladder habits. She has never had surgery on her back in the past. She has not been through any formalized physical therapy in the past for her back. She has sought chiropractic treatment every two weeks for the past one year. On average she reports the pain into her neck is a 2 out of 10 and at its worst 6 out of 10. Average mid back pain 4 out of 10 and at its worst 7 out of 10. Average low back pain is a 3 out of 10 and at its worst 7 out of 10. Average leg symptoms 1 out of 10 and at their worse 6 out of 10. A view thoracic spine and thoracolumbar spine scoliosis x-ray shows a 58-degree curvature convexed right over the lumbar spine, thoracolumbar region, with the measurements made from the bottom of L2 through the bottom of T6. I see no evidence of lateral listhesis. There was no fracture. On the lateral view there is preserved lumbar lordosis and thoracic kyphosis. I see no evidence of instability or fracture. (Pg. 315-316).
e. Dr. Onamusi
Plaintiff was examined by Dr. B.T. Onamusi, an orthopedic specialist, after her hearing with the ALJ in September 2010. (Pg. 381-383). Dr. Onamusi found that:
Plaintiff had a long- standing history of scoliosis, which started bothering her enough to get treatment in 2007, when she started seeing a chiropractor on a regular basis approximately every other week. (Pg. 381). More recently, she started seeing her family doctor and was referred to an orthopedic specialist. Id. Plaintiff told Dr. Onamusi that she took no prescribed medications, but took over-the-counter Advil on as needed basis. Id. She reported constant variable pain involving the entire back staying at mostly four out of ten on the pain scale, but with increased pain on bending and lifting. Id.
She had leg pain, but no problems with falling or need for any assistive device. Id. She could do limited housework and laundry with frequent breaks, grocery shopping with help, personal grooming and driving short distances. Id. Dr. Onamusi found Plaintiff was 62 inches in height. (Pg. 382). She had a symmetrical chest wall with normal diameter; no intercostals or subcostal recession; and no tracheal tug or use of accessory muscles of respiration. Id. Her muscle strength, muscle tone, reflexes and sensory responses were normal in her arms and legs. Id.
She walked with a normal gait, although she had prominent, obvious moderate- to-severe dextro-scoliosis with an elevated right hip and right rib crowding. Id. She had no trouble transferring onto or off the examination table. Id. She did not require an assistive device for ambulation or transfer. Id. She was able to squat, but required holding onto the examination table to get back up. Id. She was able to kneel, walk in tandem, and stand on her heels and toes. Id. She had grip strength of thirty-to-forty pounds in her hands, and could use her hands for fine coordination and manipulative tasks. Id. She had a mild degree of muscle spasm and a moderate amount of tenderness along the back muscles, and normal straight-leg raise bilaterally. Id.
Dr. Onamusi diagnosed moderate-to-severe scoliosis with chronic back pain. (Pg. 383). Dr. Onamusi opined that Plaintiff was able to perform sedentary physical demands that allowed alternating positions from sitting to standing on a frequent basis to remain comfortable. Id.
B.
First, Plaintiff claims that the ALJ erred in determining her RFC assessment. More specifically, Plaintiff claims that the ALJ relied on incorrect testimony, that VE testimony confirming jobs could be performed with Plaintiff's RFC was never elicited, and that Plaintiff's counsel never had the opportunity to cross-examine the VE regarding Plaintiff's RFC.
During the sequential analysis, the ALJ determined Plaintiff's RFC. See, 20 C.F.R. §§ 404.1520(a)(4)(iv) and (e), 404.1545. The ALJ found that Plaintiff could perform sedentary work that permitted alternate sitting and standing at fifteen-minute intervals throughout the workday. (Pg. 72). Further, Plaintiff was restricted, bilaterally, to frequent pushing or pulling, occasional use of foot controls, no climbing ramps or stairs, occasional climbing ladders, ropes, or scaffolds, no stooping, kneeling, crouching or crawling, frequent reaching bilaterally, occasional bilateral overhead reaching, and no exposure to excessive vibration, hazardous machinery, or unprotected heights. Id.
As an initial matter, the ALJ's mistake in finding that Dr. Gardner gave more weight to Dr. Onamusi's opinion than to Dr. Danopulos is of little, if any, consequence since Dr. Gardner restricted Plaintiff to a lesser degree than Dr. Onamusi. (Pg. 77). Dr. Danopulos did not specify any exertional limitations in his assessment of the Plaintiff, stating only that she was restricted "considerably." (Pg. 267). Dr. Gardner testified that Dr. Danopulos's assessment was consistent with a limitation of light work as defined in 20 C.F.R. 404.1567(b). (Pg. 117). The ALJ limited the Plaintiff to sedentary work with multiple other restrictions; thus indicating the finding was likely a clerical mistake and did not negatively impact Plaintiff. (Pg. 72).
Next, Plaintiff argues that there was inadequate due process because the ALJ relied specifically and exclusively on Dr. Onamusi's post-hearing testimony in reaching his RFC assessment; and, therefore, Plaintiff's attorney could not have asked questions about such evidence. (Doc. 12 at 2-3; Pg. 433-434). However, Plaintiff has not pointed to any evidence to support such an argument. The ALJ's decision merely stated that he gave more weight to Dr. Onamusi's opinion than to Dr. Gardner's opinion in reaching his final RFC assessment. (Pg. 77). The ALJ's decision to give more weight to Dr. Onamusi's opinion than to Dr. Gardner's opinion is also consistent with Social Security regulations, as Dr. Onamusi had the opportunity to examine the Plaintiff and Dr. Gardner did not. See 20 C.F.R. § 416.927(c)(1).
Additionally, the hypotheticals posed by the ALJ to the VE, which included the sit/stand option and a variety of other restrictions (Pg. 122-123), support a finding that the ALJ incorporated Plaintiff's testimony regarding her back pain and its limitations in his assessment. (Pg. 72). Furthermore, the hypotheticals, which were posed before Dr. Onamusi examined the Plaintiff, are nearly identical to the ALJ's final RFC, thus indicating that the ALJ's RFC assessment was not based entirely on the opinion of Dr. Onamusi. (Pg. 122-123). Indeed, these hypotheticals added more restrictions than Dr. Onamusi, who opined that the "claimant is currently capable of engaging in sedentary physical demand level activity...[Plaintiff] will also need to alternate position from sitting to standing on a frequent basis in order to remain comfortable." (Pg. 383).
Similarly, the argument that Plaintiff's counsel was not given the opportunity to cross-examine the VE on vocationally relevant factors, i.e., the sit/stand option, that are inconsistent with DOT, is unpersuasive. (Doc. 12 at 3; Pg. 434). Plaintiff's counsel had ample opportunity to question the VE regarding these factors since they were addressed by the ALJ in his hypotheticals. (Pg. 125-126). Plaintiff's counsel, however, failed to ask any questions regarding the hypotheticals posed to the ALJ; instead, counsel posed two new hypotheticals to the VE, which included limitations that were unsubstantiated by medical evidence. (Pg. 125-126). Thus, there is no evidence to support a finding that Plaintiff's counsel was unable to question the VE about these factors when they were clearly included in the ALJ's hypotheticals to the VE. (Pg. 122-123).
The VE identified 3,700 sedentary jobs in the Southwestern Ohio regional economy that Plaintiff could perform with the limitations set out in the ALJ's hypotheticals. (Pg. 124-125). Thus, the ALJ reasonably relied on the VE's testimony to conclude that a significant number of jobs existed that would accommodate the Plaintiff's residual functional capacity and vocational profile.
C.
Second, Plaintiff claims the ALJ failed to appropriately evaluate the record in conjunction with the pain regulations noted in 20 C.F.R. 416.929 and Social Security Ruling 96-7P and failed to evaluate her credibility in conjunction with SSR 96-7P.
Social Security Ruling 96-7p, Policy Interpretation Ruling, Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an Individual's Statement, 61 Fed. Reg. 34483 (July 2, 1996).
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While reviewing the ALJ's decision, it is important to note that this Court must accord great deference to the ALJ's credibility determinations, as the ALJ had the opportunity to observe the claimant's demeanor during the hearing. Jones v. Comm'r of Soc. Sec., 336 F.3d 469 (6th Cir. 2003). It is not the province of the reviewing court to "try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility." Walters v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003).
After careful review, the Court finds that the ALJ properly evaluated the record in accordance with the pain regulations. See SSR 96-7. The regulations set forth factors that the ALJ should consider in assessing credibility. These include: the claimant's daily activities; the location, duration, frequency, and intensity of the pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side effects of medication; and treatment or measures, other than medication, taken to relieve pain. 20 C.F.R. §§ 404.1529(c)(3)(i)-(vi); 416.929(c)(3)(i)-(vi).
Plaintiff correctly points out that SSR 96-7 states that any medically determinable impairment resulting in symptom-related functional limitations and restrictions reported by the claimant or treating source should be taken into account as long as it can reasonably be accepted as consistent with the objective medical evidence. (Pg. 400). However, SSR 96-7 also provides that the ALJ need not totally accept or totally reject the claimant's statements; instead the ALJ may find Plaintiff's statements partially credible as to the extent of the limitations or restrictions due to pain or other symptoms. SSR 96-7 at 4. The ALJ expressly considered many of Plaintiff's complaints in explaining his decision, such as: increased pain in her shoulder, left elbow, and right hip, an inability to sit or stand for extended periods, difficulty reaching and grasping for things, difficulty walking more than the length of a city block, and occasional shortness of breath. (Pg. 72-73). The ALJ also noted her over-the-counter pain medication and chiropractic care. (Id.) Additionally, the ALJ referenced medical opinions and evidence which he took into consideration. (Pg. 73-76).
Indeed, the ALJ included bilateral reaching, use of foot controls, and the sit/stand option in his hypothetical to the VE, even though no medical opinions at the time of the hearing suggested such limitations. (Pg. 122-123). Therefore, the record suggests that the ALJ did in fact consider many of the Plaintiff's complaints to be credible. Pursuant to SSR 96-7, the ALJ may also consider Plaintiff's treatment record, prior work record, and efforts to work in determining credibility. SSR 96-7 at 5. In this case, Plaintiff claimed that she stopped working when her husband died in 2005, but also claimed that the reason she stopped working was due to back pain. However, she did not seek any medical treatment until 2007 with Dr. Detrick, her chiropractor, and has not made an attempt to find work since 2005. (Pg. 94-95).
Plaintiff also claims the weight the ALJ gave to her statements was unclear. (Pg. 347). However, the ALJ explicitly stated that "the claimant has been given the maximum benefit of doubt with respect to her subjective allegations of pain and limitation." (Pg. 77). The medical evidence and opinions in the record, with the exception of Dr. Detrick, simply do not corroborate the extent of pain and limitations expressed by Plaintiff during the hearing. (Pg. 90-114). For example, Plaintiff alleged that her hips and shoulder dislocate frequently, but she does not point to any medical evidence to support such a finding. (Pg. 96). If the claimed pain is not substantiated by the medical record, the ALJ must make a credibility determination based on the entire case record. Siterlet v. Sec'y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987).
The Plaintiff contends that her statements are consistent with the record as a whole. (Pg. 403). However, a thorough investigation of the medical evidence undermines this argument. For example, Dr. Danopulos found that Plaintiff's statements were "partially credible" and that he observed no limitations in sitting or standing. (Pg. 284). Similarly, Dr. McCarthy's reports indicate that the scoliosis may not be as severe as originally diagnosed, which Plaintiff's counsel admitted during his closing remarks at the hearing. (Pg. 126). In fact, Dr. McCarthy's opinion stated only that "[claimant] may eventually need to be on disability." (Pg. 330). The record also reflects that Plaintiff exercises, does chores around the house, and drives three miles weekly to the grocery store. (Pg. 90-114). Thus, the Court finds that Plaintiff's subjective allegations are not entirely consistent with the record as a whole.
Next, Plaintiff argues that the ALJ erred when he relied on some parts of the VE's testimony while disregarding other parts. (Doc. 12 at 6; Pg. 437). In particular, Plaintiff relies on the VE's testimony that if an individual, due to breaks or chronic pain, was off task during the workday such that they would be off task one-third of every workday, such individual would be unable to perform full-time work at any exertion level. The VE also testified that if such an individual, due to her impairments, could not maintain attendance and, in fact, was expected to be absent three times a month, that individual would be unable to sustain full-time employment at any exertion level. (Pg. 125-126). The above testimony was in response to two hypotheticals posed by counsel for the Plaintiff. It is well established, however, that an ALJ may reasonably rely on a VE's testimony to support a finding of not disabled where such testimony was in response to an accurate, well-supported hypothetical question. (Pg. 122-124). See Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001).
In this case, the limitations and exertion levels set forth in the ALJ's hypotheticals included those that were consistent with the record as a whole, including Plaintiff's testimony. (Pg. 122-124). A hypothetical does not need to include all of the limitations which were testified to in the hearing. Foster v. Halter, 279 F.3d 348, 356 (6th Cir. 2001). Plaintiff maintains that the ALJ should have considered the VE's testimony in response to the hypothetical posed by Plaintiff's council. However, unsubstantiated claims do not need to be taken into account in a hypothetical. Stanley v. Sec'y of Health & Human Servs., 39 F.3d 115, 118-19 (6th Cir. 1994). Counsel for the Plaintiff based these limitations on statements made by Plaintiff's chiropractor, Dr. Detrick. (Pg. 369). Dr. Detrick's opinion, however, is not entitled to controlling weight. 20 C.F.R. § 416.927(d). Additionally, Dr. Detrick is not an "acceptable medical source." 20 C.F.R. §404.1513. Thus, the ALJ was justified in giving less weight to Dr. Detrick's opinion as compared to Plaintiff's other treating doctors, where no other doctors limited Plaintiff to such a great degree. The well-established Sixth Circuit rule is that "an ALJ may pose hypotheticals to the vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health & Human Services, 987 F.2d 1230, 1235 (6th Cir. 1993).
Therefore, the VE's testimony, in response to the ALJ's hypotheticals, constitutes substantial evidence to support the ALJ's assessment. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779-80 (6th Cir. 1987). The RFC assessment limited Plaintiff to a greater degree than any other doctor, except Dr. Detrick. (Pg. 72). This limitation indicates that the ALJ did, in fact, take Plaintiff's testimony into account.
Finally, Plaintiff claims that the ALJ failed to specifically explain his findings on credibility. The Court recognizes that the ALJ could have been more explicit in his explanation, but this error is not significant enough to compel a reversal or remand. "The court may review [medical reports], in its consideration of the record as a whole, to determine if the ALJ's decision was based upon substantial evidence, even if the ALJ failed to cite the report in his conclusion." Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). Accordingly, the Court finds that the ALJ's decision was supported by substantial evidence and his finding of not disabled was reasonable.
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed. IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Lucinda Taylor was not entitled to a period of disability or disability insurance benefits, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED. The Clerk shall enter judgment accordingly, whereupon this case is CLOSED.
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Timothy S. Black
United States District Judge