Fooce v. Commissioner of Social Security
Filing
16
OPINION ; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, jas)
UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
LORIE ANN FOOCE,
Plaintiff,
Case No. 2:17-cv-73
HON. TIMOTHY P. GREELEY
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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OPINION
This is a social security action brought under 42 U.S.C. § 405(g) seeking judicial
review of a final decision of the Commissioner of the Social Security Administration
(Commissioner). Plaintiff Lorie Ann Fooce seeks review of the Commissioner’s decision denying
her claim for disability insurance benefits (DIB) and supplemental security income (SSI) under
Title II and Title XVI of the Social Security Act. Plaintiff filed an initial brief on September 13,
2017. (ECF No. 14). The Commissioner filed a response brief on October 11, 2017. (ECF No.
15). Both parties consented to proceed before a Magistrate Judge. (ECF No. 10). This matter is
ready for decision.
Plaintiff was born on October 11, 1967. (PageID.309). She is five feet tall and
weighs in excess of 250 pounds.1 Plaintiff has a high school diploma and has previously worked
as a certified nursing assistant, a custodian, and a housekeeper. Plaintiff alleges that she became
1
At the 2009 hearing, Plaintiff weighed 289 pounds. (PageID.63). At the 2011 hearing, she weighed 273 pounds.
(PageID.114).
disabled on April 23, 2009, when she injured her back while working as a certified nursing
assistant.
On June 17, 2009, Plaintiff filed an application for DIB. (PageID.261-266). The
alleged onset date was April 23, 2009, and her last insured date was December 31, 2014.
(PageID.261, 309). After her initial application was denied, Plaintiff requested a hearing before
an Administrative Law Judge (ALJ). (PageID.30). On May 4, 2011, the ALJ held an administrative
hearing in which Plaintiff was represented by Attorney Rudolph F. Perhalla. (PageID.48-79). At
the hearing, Plaintiff testified that her primary complaint is her lower back pain and anxiety.
(PageID.61). She stated that she had gained 50 pounds since she quit work. (PageID.63). Plaintiff
lives with her mother and spends most of the day sitting or lying down. (PageID.56). Although
her mother did the majority of the cooking and washing the dishes, Plaintiff would help with some
of the other cleaning around the house. Plaintiff also stated that she has trouble sleeping and could
walk about a half of a block and sit for “like an hour, hour and half.” (PageID.65).
On July 12, 2011, the ALJ issued his decision finding that Plaintiff was not
disabled. (PageID.35-44). Plaintiff requested the Appeals Council to review the ALJ’s decision,
but the request was denied on February 7, 2013. (PageID.23-25). Plaintiff then filed a complaint
in this Court. See Fooce v. Commissioner of Social Security, Case No: 2:13-cv-126 (W.D. Mich.).
In that case, the parties filed a joint stipulation for dismissal, and the Court subsequently entered a
judgment reversing and remanding the Commissioner’s decision. (PageID.152).
Following the remand, the ALJ held a second administrative hearing on November
19, 2014. (PageID.104-127). At this hearing, Plaintiff’s testimony was largely similar to her
testimony at the first hearing. She stated that she was in constant pain and had trouble standing
and walking. Plaintiff testified the she is taking Effexor for her anxiety, and Flexeril and Motrin
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for her back pain, and Flexeril, Glyburide, and Metformin for her diabetes. (PageID.112-114). She
stated that she tried physical therapy and a pain injection, but her conditions did not improve.
(PageID.113-114).
On January 15, 2015, the ALJ issued his decision finding that Plaintiff was not
disabled. (PageID.88-99). In the opinion, the ALJ’s states that the Appeals Council remanded the
case to him to further evaluate a treating source’s statement, Plaintiff’s obesity, and a November
2010 MRI. (PageID.88). The ALJ’s decision became the Commissioner’s final decision on
February 14, 2017, when the Appeals Council denied Plaintiff’s request for review. (PageID.8183).
“Our review of the ALJ’s decision is limited to whether the ALJ applied the correct
legal standards and whether the findings of the ALJ are supported by substantial evidence.”
Winslow v. Comm’r of Soc. Sec., 566 F. App’x 418, 420 (6th Cir. 2014) (quoting Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The Court
may not conduct a de novo review of the case, resolve evidentiary conflicts, or decide questions of
credibility. See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984); see also Jones v. Comm’r
of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003). It is the Commissioner who is charged with finding
the facts relevant to an application for disability benefits, and the Commissioner’s findings are
conclusive provided they are supported by substantial evidence. See 42 U.S.C. § 405(g).
Substantial evidence is defined as more than a mere scintilla of evidence but “such
relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones
v. Sec’y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). In determining the
substantiality of the evidence, the Court must consider the evidence on the record as a whole and
take into account whatever evidence in the record fairly detracts from its weight. See Richardson
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v. Sec’y of Health & Human Servs., 735 F.2d 962, 963 (6th Cir. 1984). The substantial evidence
standard presupposes the existence of a zone within which the decision maker can properly rule
either way, without judicial interference. See Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)
(citation omitted). This standard affords to the administrative decision maker considerable
latitude, and indicates that a decision supported by substantial evidence will not be reversed simply
because the evidence would have supported a contrary decision. See Bogle v. Sullivan, 998 F.2d
342, 347 (6th Cir. 1993); Mullen, 800 F.2d at 545.
The ALJ must employ a five-step sequential analysis to determine whether the
claimant is disabled as defined by the Social Security Act. See 20 C.F.R. §§ 404.1520(a-f),
416.920(a-f); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). At step one, the
ALJ determines whether the claimant can still perform substantial gainful activity. 20 C.F.R. §
404.1520(a)(4)(i). At step two, the ALJ determines whether the claimant’s impairments are
considered “severe.” 20 C.F.R. § 404.1520(a)(4)(ii). At step three, the ALJ determines whether
the claimant’s impairments meet or equal a listing in 20 C.F.R. part 404, Subpart P, Appendix 1.
20 C.F.R. § 404.1520(a)(4)(iii). At step four, the ALJ determines whether the claimant has the
residual functional capacity (“RFC”) to still perform past relevant work.
20 C.F.R. §
404.1520(a)(4)(iv). At step five, after considering the claimant’s residual functional capacity, age,
education, and work experience, the ALJ determines whether a significant number of other jobs
exist in the national economy that the claimant can perform. 20 C.F.R. § 404.1520(a)(4)(v). If
the ALJ determines Plaintiff is not disabled under any step, the analysis ceases and Plaintiff is
declared as such. 20 C.F.R § 404.1520(a). If the ALJ can make a dispositive finding at any point
in the review, no further finding is required. 20 C.F.R. § 404.1520(a).
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Plaintiff has the burden of proving the existence and severity of limitations caused
by her impairments and that she is precluded from performing past relevant work through step
four. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner’s burden “to identify a significant number of jobs in the economy that
accommodate the claimant’s residual functional capacity (determined at step four) and vocational
profile.” Id.
Here, the ALJ determined that Plaintiff’s claim failed at step five of the analysis.
He first found at step one that Plaintiff had not engaged in substantial activity since April 23, 2009.
At step two, the ALJ determined that Plaintiff had the following severe impairments—
degenerative disk disease of the lumbar spine, obesity, diabetes mellitus, and an anxiety disorder.
At step three, the ALJ concluded that Plaintiff did not have an impairment or a combination of
impairments that met or equaled the requirements of the Listing of Impairments in 20 C.F.R. Part
404. Subpart P, Appendix 1.
With respect to Plaintiff’s RFC, the ALJ found that Plaintiff could perform
sedentary work with the following limitations:
she can never climb ladders, ropes or scaffolds; occasionally climb
ramps or stairs; and occasionally balance, stoop, crouch, kneel or
crawl. In addition, the claimant must avoid concentrated exposure
to the use of moving machinery and unprotected heights; and she is
limited to unskilled work involving simple, routine and repetitive
tasks, no interaction with the public and only occasional interaction
with coworkers, only work that allows individually performed tasks,
and she is allowed off task 10% of her workday in addition to
regularly scheduled breaks.
(PageID.92-93.) This determination was based on the objective medical evidence, the course of
treatment, Plaintiff’s credibility, and her daily activities. The ALJ summarized Plaintiff’s medical
records as follows:
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The medical indicates the claimant did seek treatment relative to
complaint of low back pain related to a work injury in April 2009.
On exam at that time, Dr. Richard Chaltry, D.O., noted that she had
some scoliosis and that there was tenderness and spasm in the
perispinal muscles. An x-ray of the lumbar spine at that time
revealed degenerative changes in both sacroiliac join[t]s and
sacralization of L5 on the left. She was assessed with a low back
sprain and referred to physical therapy where on evaluation, it was
noted that she was morbidly obese, weighing in excess of 250
pounds at a height of 5 feet. Her obesity caused ribcage elevation
and poor posture because her large breasts pulled her upper body
forward. Given the fact that she was extremely overweight, the
therapist advised there was little more that could be done for her;
and, in May 2009, she was discharged in a mildly improved status
to follow a home exercise program. While she was referred to
nutritional therapy due to her obesity, she refused this due to
financial reasons. In May 2009, Dr. Chaltry indicated that the
claimant was unable to return to work as a nurse’s aide, and he
concurred that her main problem was the fact that she was extremely
overweight (Exhibits 1F-3F).
After the claimant’s initial treatment for her low back strain, she
then received a couple of injections but was mostly maintained on
medication. She had physical examinations that were within normal
limits. A November 2010 MRI of the claimant’s lumbar spine
revealed bulging discs at several levels with a possible lateral
protrusion of the disc of Ll-L2 on the left side. According to a July
2014 treatment note, the claimant’s low back pain was kept “under
control” with Motrin and Flexeril. The claimant’s treatment records
also reveal that the she has been diagnosed with diabetes mellitus,
which is well controlled with medication (Exhibits 9F, l0F, 14F,
15F).
(PageID.94-95).
Relying on the testimony of the vocational expert, the ALJ found that a person with
the same age, education, work experience, and residual functional capacity as Plaintiff would be
able to perform jobs that exist in significant numbers in the national economy, such as an
“inspector/tester with 200-500 jobs in Michigan and 6-8,000 jobs nationally; production worker
with 500-1,000 jobs in Michigan and 6-8,000 jobs nationally; and machine tender with 200-500
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jobs in Michigan and 4-6,000 nationally.” (PageID.99.) Thus, the ALJ concluded that Plaintiff was
not disabled as defined by the Social Security Act.
Plaintiff complains that the ALJ erred when evaluating the medical opinion of Dr.
Richard Chaltry. The record establishes that Dr. Chaltry treated Plaintiff over several years,
therefore, Dr. Chaltry is considered a treating source. Generally, a treating physician’s medical
opinion is entitled to great weight when evaluating a patient’s alleged disability. Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001). The ALJ must give controlling weight to a treating physician’s
medical opinion when (1) the opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and (2) the opinion “is not inconsistent with the other substantial
evidence in the case record.” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375-76 (6th Cir.
2013) (quoting 20 C.F.R. § 404.1527). If an ALJ affords less than controlling weight to a treating
source’s opinion, the ALJ must provide “good reasons” for discounting the opinion. Id. at 376.
The reasons must be “supported by the evidence in the case record, and 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.” Id.
On May 28, 2009, Dr. Chaltry signed a one-page “Return to Work Release” form.
(PageID.479). Although Dr. Chaltry wrote Plaintiff was “unable to work – see note of 5/26” in
the comment section of the form, he did not fill out the portion of the form that specified any
restrictions. In the May 26 note, Dr. Chaltry states that he had a conversation with Plaintiff’s
physical therapist and the therapist informed him that Plaintiff cannot lift more than 25 pounds,
cannot reach, and is “not able to perform at her place of employment[.]” (PageID.478). In his
decision, the ALJ explained why he only gave Dr. Chaltry’s opinion some weight:
The undersigned has considered Dr. Chaltry’s brief statements about
the claimant’s functioning and gives them some weight. The
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undersigned notes that Dr. Chaltry’s notes reflect the observations
the physical therapist made about her observations about the
claimant’s abilities during the time that the claimant was healing
from the lumbar strain. As discussed above, the evidence in the years
since then does not show that the claimant is unable to reach or has
excessive shortness of breath; and those determinations are given
little weight. Instead, the evidence reveals that, while the claimant
has obesity and mild degenerative disk disease, she has required
only conservative treatment for it and has gone without any medical
care for it for over one years’ time. In any event, similar to Dr.
Chaltry’s assessment, the residual functional capacity described
above also precludes the claimant from performing her past relevant
work as a certified nurse’s assistant, which is of a medium exertional
level, and limits her lifting to a maximum of 10 pounds.
(PageID.96-97).
The ALJ did not err when evaluating Dr. Chaltry’s medical opinion. First, Dr.
Chaltry’s medical opinion that Plaintiff “is ‘unable to work’ is not a medical opinion that may be
given controlling weight because it is an opinion on an issue reserved to the Commissioner.”
Dutkiewicz v. Comm’r of Soc. Sec., 663 F. App’x. 430, 432 (6th Cir. 2016)(citing 20 C.F.R. §
404.1527(d)(1), (3); Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007)). In addition, contrary
to Plaintiff’s assertion, Dr. Chaltry did not state that Plaintiff “is unable to perform any work.”
(PageID.662) (emphasis added). Instead, Dr. Chaltry’s reference to the May 26 note makes clear
that he was referring to Plaintiff’s position as a certified nursing assistant, where she was required
to help lift patients in-and-out of hospital beds. Moreover, Plaintiff does not offer any explanation
for her argument that Dr. Chaltry’s opinion establishes that she cannot perform sedentary work.
(PageID.479). Notably, the ALJ still considered Dr. Chaltry’s opinion when he determined that
Plaintiff could not perform past relevant work as a certified nurse’s assistant.
Plaintiff next complains that the ALJ erred when considering the opinion of
consultative examiner, Dr. James E. Rocco. Dr. Rocco gave his opinion on March 5, 2014.
(PageID.535-544). He opined that, in an 8-hour workday, Plaintiff could sit for 4 hours, stand for
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30 minutes and walk for 30 minutes. Dr. Rocco stated Plaintiff could only occasionally, reach,
handle, finger, feel, and push/pull for both her right and left hand. Dr. Rocco also stated that
Plaintiff could occasionally climb stairs and ramps, but never climb ladders or scaffolds, balance,
stoop, kneel, crouch, or crawl. In addressing Dr. Rocco’s opinion, the ALJ stated:
The undersigned has considered the opinion of Dr. Rocco and gives
it some weight. Dr. Rocco appears to have considered the claimant’s
obesity very functionally limiting; and the undersigned has provided
for this in the above-described residual functional capacity.
However, the claimant has a “mild minimal” back condition with an
“under control” pain level that should not prohibit her from sitting
for a full 6 hours as required by sedentary work. The claimant’s
treatment records show that she has had intermittent, conservative
treatment with physical examinations that were within normal
limits. Thus, while overall the undersigned gives Dr. Rocco’s
opinion little weight, the fact that he concluded that the claimant’s
obesity imposes functional limitations has been considered in
resolving that she can perform the residual functional capacity for
the range of sedentary work described above.
(PageID.96).
Plaintiff argues that the ALJ erred when evaluating Dr. Rocco’s medical opinion
because:
It is improper for an ALJ to send a claimant to a doctor and when
the doctor finds limitations, find that doctor incredible. Further, the
ALJ found Dr. Rocco incredible only when the doctor’s findings did
not support the ALJ’s conclusions. The ALJ did find Dr. Rocco
credible on the obesity issue. That is another error.
(PageID.659). Plaintiff is incorrect. An examining source is not entitled to any specific weight.
See 20 C.F.R. 404.1527. As the ALJ noted, Dr. Rocco’s opinion contradicted the majority of the
medical record, most notably that Plaintiff has only “mild minimal degenerative changes” in her
lumbar spine, (PageID.622) and her back pain was “under control,” (PageID.591). His opinion
also contradicted Plaintiff’s medical records that found Plaintiff ambulated without difficulty.
(PageID.608). Finally, Dr. Rocco’s opinion contradicted his own examination which revealed
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that the Plaintiff could “pick up a coin and tie shoelaces.” (PageID.538). Accordingly, the ALJ
did not err when evaluating Dr. Rocco’s medical opinion.
Plaintiff also appears to argue that the ALJ erred when he failed to give controlling
weight to the opinion of Dr. Anthony Holzgang. Dr. Holzgang is a psychiatrist. In 2001, Dr.
Holzgang wrote that Plaintiff’s “mental conditions very much complicate her ability to adjust to
stress in life and contribute, along with her physical problems, to her difficulty working.”
(PageID.533). However, as the ALJ correctly noted, Dr. Holzang’s letter was dated, conclusory,
and failed to provide any explanation of the evidence relied on in forming the opinion. Thus, the
ALJ did not err when evaluating Dr. Holzang’s opinion.
Plaintiff argues that the ALJ did not properly consider Plaintiff’s obesity in
compliance with SSR 02-1P. She claims that the ALJ “merely states that [Plaintiff] suffers with
obesity, that it impairs [Plaintiff] and that [Plaintiff] can perform sedentary work.” (PageID.658).
SSR 02-1p provides in pertinent part:
[Even] though we deleted listing 9.09, we made some changes to the
listings to ensure that obesity is still addressed in our listings. In the
final rule, we added paragraphs to the prefaces of the
musculoskeletal, respiratory, and cardiovascular body system
listings that provide guidance about the potential effects obesity has
in causing or contributing to impairments in those body systems. See
listings sections 1.00Q, 3.00I, and 4.00F. The paragraphs state that
we consider obesity to be a medically determinable impairment and
remind adjudicators to consider its effects when evaluating
disability. The provisions also remind adjudicators that the
combined effects of obesity with other impairments can be greater
than the effects of each of the impairments considered separately.
They also instruct adjudicators to consider the effects of obesity not
only under the listings but also when assessing a claim at other steps
of the sequential evaluation process, including when assessing an
individual’s residual functional capacity.
SSR 02-1p, 2002 WL 34686281 (Sept. 12, 2002). While SSR 02-1p provides guidance for
evaluating a claimant’s obesity, the rule “does not mandate a particular mode of analysis, but
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merely directs an ALJ to consider the claimant’s obesity, in combination with other impairments,
at all stages of the sequential evaluation.” Nejat v. Comm’r of Soc. Sec, 359 F. App’x. 574, 577
(6th Cir. 2009).
Here, the ALJ adequately considered Plaintiff’s obesity throughout his opinion. The
ALJ first found that Plaintiff’s obesity was a severe impairment. The ALJ next found that although
Plaintiff’s obesity was severe, “the signs, symptoms and laboratory findings . . . are not of such
severity as found in any listing.” (PageID.91). The ALJ continued:
As directed by the Appeals Council, the undersigned will now
specifically address the claimant’s obesity. The medical evidence
documents that the claimant has been assessed with obesity.
Pursuant to Social Security Ruling 02-1 p, the combined effects of
obesity with other impairments may be greater than might be
expected without obesity. For instance, that Ruling also advises that,
if someone has obesity with arthritis affecting a weight-bearing
joint, he or she may have more pain and limitation than might be
expected from arthritis alone. In this case, even though the claimant
does not suffer from arthritis, the principle is still applicable to the
claimant’s back pain conditions. The claimant’s obesity may
increase the pain and limitation that she experiences regarding these
conditions. Indeed, Dr. Chaltry and the claimant’s physical therapist
both commented that the claimant’s obesity is the primary reason
that she has difficulty doing some activities (Exhibits lF - 3F).
Considering the claimant’s obesity combined with her back
condition, the undersigned determines that a residual functional
capacity for a reduced range of sedentary work is the most
appropriate. The claimant’s symptoms are provided for in the very
reduced exertional level as well as postural and environmental
limitations.
(PageID.95). Accordingly, the ALJ adequately considered the effects of Plaintiff’s obesity.
Finally, Plaintiff argues that it was improper for the ALJ to be critical of Plaintiff’s
lack of medical treatment because Plaintiff did not have health insurance. The ALJ referenced
Plaintiff’s lack of medical treatment when evaluating her credibility. “The issue of poverty as
legal justification for failure to obtain treatment does not arise unless a claimant is found to be
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under a disabling condition.” Strong v. Social Sec. Admin., 88 F. App’x. 841, 846 (6th Cir. 2004)
(citing McKnight v. Sullivan, 927 F.2d 241, 242 (6th Cir. 1990)). Here, the ALJ determined that
Plaintiff was not suffering from a disabling condition. This determination is supported by
substantial evidence including the fact that Plaintiff only has a “mild minimal” back condition,
which is “under control” when taking medication.
In sum, this Court finds that there is substantial evidence to support the
Commissioner’s decision that Plaintiff was not disabled between April 23, 2009, and December
31, 2014, as defined by the Social Security Administration.
Accordingly, the decision of the Commissioner is AFFIRMED and Plaintiff’s
request for relief is DENIED.
Dated: May 30, 2018
. /s/ Timothy P. Greeley
.
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE
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