Nichols v. Commissioner of Social Security Administration
Filing
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Memorandum Opinion and Order affirming the Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli on 10/20/2011. (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MELVIN NICHOLS,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CASE NO. 1:10-cv-2263
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Plaintiff, Melvin Nichols (“Plaintiff”), challenges the final decision of Defendant,
Michael J. Astrue, Commissioner of Social Security (“the Commissioner”), denying
Plaintiff’s application for a Period of Disability (“POD”) and Disability Insurance Benefits
(“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423 (“the Act”).
This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned United States Magistrate Judge pursuant to the consent of the parties
entered under the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below,
the Commissioner’s final decision is AFFIRMED.
I.
PROCEDURAL HISTORY
Plaintiff filed an application for a POD and DIB on February 17, 2005, and
alleged a disability onset date of September 24, 2004. (Tr. 47.) The application was
denied initially and upon reconsideration, so Plaintiff requested a hearing before an
administrative law judge (“ALJ”). (Tr. 47.) On January 9, 2008, ALJ Norman R. Buls
held Plaintiff’s hearing by video conference. (Tr. 47.) Plaintiff appeared, was
represented by counsel, and testified. (Tr. 47.) On April 23, 2008, ALJ Buls found
Plaintiff not disabled. (Tr. 12.) On August 15, 2008, the Appeals Council vacated and
remanded ALJ Buls’s decision. (Tr. 12.)
On November 3, 2008, ALJ Thomas Ciccolini (“the ALJ”) held Plaintiff’s hearing
upon the Appeals Council’s remand. (Tr. 357.) Plaintiff appeared, was represented by
counsel, and testified. (Tr. 357.) A medical expert (“ME”) and vocational expert (“VE”)
also appeared and testified. (Tr. 357.) On February 4, 2009, the ALJ found Plaintiff not
disabled. (Tr. 27.) On August 4, 2010, the Appeals Council declined to review the
ALJ’s decision, so the ALJ’s decision became the Commissioner’s final decision. (Tr.
4.) On October 5, 2010, Plaintiff timely filed his complaint to challenge the
Commissioner’s final decision. (Doc. No. 1.) On March 18, 2011, Plaintiff filed his Brief
on the Merits. (Doc. No. 18.) On June 1, 2011, the Commissioner filed his Brief on the
Merits. (Doc. No. 21.) Plaintiff did not file a Reply Brief.
Plaintiff asserts two assignments of error: (1) the ALJ failed to determine that
Plaintiff’s gouty arthritis was a severe impairment; and (2) the ALJ failed to give good
reasons for giving the opinion of Plaintiff’s treating physician, Dr. Brooks, less than
controlling weight.
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II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was 50 years old on the date he was last insured for DIB. (Tr. 26.) He
has at least a high school education and is able to communicate in English. (Tr. 26.)
He has past relevant work experience as a mail carrier. (Tr. 25.)
B.
Medical Evidence
Plaintiff claimed both physical and mental impairments, but his mental
impairments are not at issue here. It is not disputed that Plaintiff suffered obesity, sleep
apnea, diabetes mellitus, hypertension, and knee pain caused by gouty arthritis. (Tr.
15-17.) On June 25, 2005, Plaintiff presented to Dr. Todd S. Hochman, M.D. for an
evaluation of his knee pain, hip pain, and obstructive sleep apnea. (Tr. 178.) Dr.
Hochman determined that, “[b]ased on the finding of [his] examination, [Plaintiff] would
not [have] difficulties with work related to physical activities such as walking short
distances, standing, sitting, or carrying and lifting lighter objects.” (Tr. 180.)
On July 6, 2005, state agency reviewing physician Dr. Freihofner, M.D.,1
assessed Plaintiff’s physical residual functional capacity (“RFC”) as follows. (Tr. 18996.) Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently. (Tr.
190.) He could sit, stand, and walk for about 6 hours in an 8-hour workday with normal
breaks. (Tr. 190.) His abilities to push and pull were not limited except to the extent
that he was limited in his abilities to lift and carry. (Tr. 190.) He could never climb
ladders, ropes, or scaffold; he could occasionally climb ramps and stairs; and he could
1
The record does not clearly indicate Dr. Freihofner’s first name.
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frequently balance, stoop, kneel, crouch, and crawl. (Tr. 191.) He was limited in his
ability to reach in all directions, but he otherwise had no manipulative limitations. (Tr.
192.) He had no visual, communicative, or environmental limitations. (Tr. 192-93.) Dr.
Freihofner determined that Plaintiff was partially credible, but that Plaintiff’s impairments
were not as severe as Plaintiff alleged. (Tr. 194.) On October 7, 2005, state agency
reviewing physician Dr. W. Jerry McCloud, M.D., affirmed Dr. Freihofner’s findings. (Tr.
196.)
On October 12, 2005, Dr. Barry H. Brooks, M.D., authored a medical source
statement indicating Plaintiff’s physical RFC as follows.2 (Tr. 250-51.) Plaintiff could lift
and carry 5 pounds occasionally. (Tr. 250.) Plaintiff could lift either 5 or 6 pounds
frequently—it is not clear because it appears as if Dr. Brooks superimposed either a 5
over a 6, or a 6 over a 5 when he wrote his opinion of Plaintiff’s ability to lift frequently.
(Tr. 250.) Plaintiff could could sit, stand, and walk for 4 hours in an 8-hour work day
and without interruption. (Tr. 250.) He could rarely climb, balance, stoop, crouch,
kneel, and crawl. (Tr. 251.) He could occasionally reach, push, and pull; and he could
frequently handle, feel, see, hear, speak, and perform fine and gross manipulation. (Tr.
251.) He was restricted from working in environments with moving machinery, extreme
temperatures, chemicals, dust, noise, and fumes. (Tr. 251.)
On February 4, 2008, Dr. Franklin D. Krause, M.D., authored a medical source
statement indicating Plaintiff’s physical RFC as follows. (Tr. 295-300.) Plaintiff could
continuously lift up to 50 pounds and frequently lift up to 100 pounds. (Tr. 295.) He
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Dr. Brooks was Plaintiff’s primary care physician since February 18, 2001. (Tr.
185.)
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could continuously carry up to 20 pounds, frequently carry up to 50 pounds, and
occasionally carry up to 100 pounds. (Tr. 295.) He could sit and stand for 8 hours at a
time and walk for 5 hours at a time without interruption. (Tr. 296.) He could sit, stand,
and walk for 8 hours in an 8-hour workday. (Tr. 296.) He could continuously reach,
handle, finger, feel, push, pull, and operate foot controls. (Tr. 297.) He could
occasionally climb ladders, ropes, and scaffolds; and he could frequently climb stairs
and ramps, balance, stoop, kneel, crouch, and crawl. (Tr. 298.) He could never work in
unprotected heights or around moving machinery; however, he could occasionally
operate a motor vehicle and frequently tolerate humidity and wetness, dust, odors,
fumes, other pulmonary irritants, extreme temperatures, and vibrations. (Tr. 299.)
C.
Hearing Testimony
1.
Plaintiff’s Testimony
Plaintiff testified as follows at his November 3, 2008, hearing. Plaintiff was five
feet, seven inches tall and weighed 253 pounds. (Tr. 363.) He occasionally drove a
car. (Tr. 363.) He was married and was supported by his wife. (Tr. 363.) He had no
problems using his extremities for grasping, and he could reach above his shoulders.
(Tr. 364.) He could not walk or stand for long periods of time because he became short
of breath, light headed, and dizzy; but he was able to sit. (Tr. 365.) He did not do yard
work; rather, his son took care of it. (Tr. 365.)
2.
The ME’s and VE’s Testimony
The ME reviewed Plaintiff’s medical records. The ALJ then posed the following
hypothetical to the VE:
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The gentleman cannot do his past relevant work as a postal mail carrier.
Okay. However, I want you to consider a gentleman similar to this
gentleman with the following residual functional capacity. There are no
special limitations such as sight or hearing. There are no postural or
manipulative limitations. There are some environmental limitations . . . such
a gentleman should avoid unprotected heights, which would include
scaffolding, ladders, ropes. He should not be around moving machinery
. . . . In regards to exertional considerations I want you to find that a similar
hypothetical person could lift, carry, push, and pull 15 pounds frequently and
50 pounds occasionally. And could sit, stand or walk six out of an eight-hour
workday.
(Tr. 375-76.) The hypothetical also included Plaintiff’s age and education. (Tr. 375.)
The VE testified that such a person could perform other, light unskilled work as a
photocopy machine operator (for which there were 1,500 positions in the region, 3,200
positions in Ohio, and 92,000 positions in the nation), mail clerk (for which there were
900 positions in the region, 3,500 positions in Ohio, and 80,000 positions in the nation),
and cashier (for which there were 20,000 positions in the region, 70,000 positions in
Ohio, and 1.7 million positions in the nation). (Tr. 376.)
Plaintiff’s counsel offered a modified version of the ALJ’s hypothetical to provide
that the hypothetical person could stand and walk for only 2 hours in an 8-hour
workday; required a sit/stand option; and could only occasionally kneel and stoop. (Tr.
377.) The VE testified that such limitations would limit such a person to sedentary
work. (Tr. 377.)
The VE verified that his testimony was consistent with the Dictionary of
Occupational Titles and its companion publication, the Selected Characteristics of
Occupations. (Tr. 371.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
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establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a continuous period of not
less than 12 months.” 20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient
must also meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
416.1201.
The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
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416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant last met the insured status requirements of the Social
Security Act on December 31, 2006.
2.
The claimant did not engage in substantial gainful activity during the
period from his alleged onset date of 9/24/04 through the date last
insured of December 31, 2006.
3.
Through the date last insured, the claimant had the following severe
impairments: obesity, sleep apnea, and diabetes mellitus.
4.
After careful consideration of the entire record, the undersigned finds
that, through the date last insured, the claimant had the residual
functional capacity to lift, carry, push, and pull 15 pounds frequently
and 50 pounds occasionally; sit, stand, or walk about 6 hours out of
an 8 hour work day; but should have avoided unprotected heights
including scaffolds, ladders, ropes; and should not have been around
moving machinery.
5.
Through the date last insured, the claimant was unable to perform
any past relevant work.
.....
8.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is “not disabled,” whether or not
the claimant has transferable job skills.
9.
Through the date 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.
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10.
The claimant was not under a disability, as defined in the Social
Security Act, at any time from 9/24/04, the alleged onset date,
through December 31, 2006, the date last insured.
(Tr. 15-27.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm'r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). Courts may look into any evidence in the
record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether that evidence has actually been cited by the ALJ. Id. However,
courts do not review the evidence de novo, make credibility determinations, or weigh
the evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner's conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). Substantial evidence is more than a scintilla of evidence but less than a
preponderance and is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
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the opposite conclusion. Ealy, 594 F.3d at 512.
B.
The ALJ’s Determination of Severe Impairments
Plaintiff contends that the ALJ erred by failing to determine that Plaintiff’s gouty
arthritis was a severe impairment. The Court finds that this assignment of error lacks
merit because it is, at most, harmless error and not a basis for remand.
Although the determination of severity at the second step of a disability analysis
is a de minimis hurdle in the disability determination process, Higgs v. Bowen, 880 F.2d
860, 862 (6th Cir. 1988), the goal of the test is to screen out totally groundless claims,
Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir.1985). Once an ALJ
determines that a claimant suffers a severe impairment at step two of his analysis, the
analysis proceeds to step three; accordingly, any failure to identify other impairments,
or combinations of impairments, as severe would be only harmless error because step
two would be cleared. Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008) (citing
Maziars v. Sec’y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)); Pompa
v. Comm’r of Soc. Sec., 73 F. App’x 801, 803 (6th Cir. 2003) (“Because the ALJ found
that Pompa had a severe impairment at step two of the analysis, the question of
whether the ALJ characterized any other alleged impairment as severe or not severe is
of little consequence.”). However, all of a claimant’s impairments, severe and not
severe, must be considered at every subsequent step of the sequential evaluation
process. See 20 C.F.R. § 404.1545(e).
Here, the ALJ found that Plaintiff suffered the following severe impairments:
obesity, sleep apnea, and diabetes mellitus. Upon these findings, Plaintiff cleared step
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two of the analysis. See Anthony, 266 F. App’x at 457. Any defect in the ALJ’s
assessment of Plaintiff’s gouty arthritis at step two of his analysis would be, at most,
harmless error and not a basis for remand. See id. (citing Maziars, 837 F.2d at 244);
Pompa, 73 F. App’x at 803.
C.
The ALJ’s Assessment of Plaintiff’s Treating Physician
Plaintiff contends that the ALJ erred by failing to give good reasons for giving the
opinion of Plaintiff’s treating physician, Dr. Brooks, less than controlling weight. For the
following reasons, the Court finds that this assignment of error lacks merit.
“An ALJ must give the opinion of a treating source controlling weight if he finds
the opinion well-supported by medically acceptable clinical and laboratory diagnostic
techniques and not inconsistent with the other substantial evidence in the case record.”
Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (quoting 20 C.F.R. §
404.1527(d)(2)) (internal quotes omitted). If an ALJ decides to give a treating source’s
opinion less than controlling weight, he must give “good reasons” for doing so that are
sufficiently specific to make clear to any subsequent reviewers the weight given to the
treating physician’s opinion and the reasons for that weight. See Wilson, 378 F.3d at
544 (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (1996)).
Here, the ALJ gave Dr. Brooks’s opinion less than controlling weight for three
reasons: (1) the opinion that Plaintiff could lift 5 pounds occasionally but 6 pounds
frequently was “obviously inconsistent within itself”; (2) “Dr. Brooks did not identify
medical findings to support his assessment”; and (3) the opinion was inconsistent with
the other evidence in the record. (Tr. 23.) Plaintiff contends that the ALJ’s conclusion
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that Dr. Brooks’s opinion is self contradictory is inaccurate and unsupported because
Dr. Brooks wrote Plaintiff could frequently lift 5 pounds, not 6 pounds, and the ability to
lift 5 pounds frequently was not inconsistent with the ability to lift 5 pounds occasionally.
A review of Dr. Brooks’s opinion reveals, however, that it is not clear and is susceptible
to the ALJ’s interpretation. The ALJ could reasonably conclude that this lack of clarity
undermined the opinion’s credibility. Moreover, the ALJ explained that Dr. Brooks’s
opinion was not well-supported by medically acceptable clinical and laboratory
diagnostic techniques and was not consistent with the other substantial evidence in the
case record. (See Tr. 23.) These were appropriate bases for rejecting Dr. Brooks’s
opinion, Wilson, 378 F.3d at 544, and Plaintiff has not taken issue with them.
Accordingly, this assignment of error lacks merit.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: October 20, 2011
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