Garcia v. Commissioner of Social Security Administration
Filing
18
Memorandum Opinion and Order affirming decision of the Commissioner. Magistrate Judge James R. Knepp, II on 9/2/14. (A,P)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
MARY LOU GARCIA,
Case Number 1:13cv1885
Plaintiff,
v.
Magistrate Judge James R. Knepp, II
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
MEMORANDUM OPINION AND ORDER
INTRODUCTION
Plaintiff Mary Lou Garcia seeks judicial review of Defendant Commissioner of Social
Security’s decision to deny disability insurance benefits (“DIB”) and supplemental security
income (“SSI”). The district court has jurisdiction under 42 U.S.C. § 405(g) and § 1383(c)(3).
The parties have consented to the exercise of jurisdiction by the undersigned in accordance with
28 U.S.C. § 636(c) and Civil Rule 73. (Doc. 13). For the reasons given below, the Court affirms
the Commissioner’s decision denying benefits.
PROCEDURAL BACKGROUND
Plaintiff filed applications for DIB and SSI on February 19, 2010, alleging disability
since March 3, 2009, due to bipolar disorder, anxiety, diabetes, and bone spurs in her left foot.
(Tr. 12, 163, 170, 226). Her claims were denied initially and on reconsideration. (Tr. 86, 92, 107,
114). Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 123). At the
hearing, Plaintiff, represented by counsel, and a vocational expert (“VE”) testified. (Tr. 28). On
May 24, 2012, the ALJ concluded Plaintiff was not disabled. (Tr. 9). Plaintiff’s request for
review was denied, making the decision of the ALJ the final decision of the Commissioner. (Tr.
1); 20 C.F.R. §§ 404.955, 404.981, 416.1455, 416.1481. On August 27, 2013, Plaintiff filed the
instant case. (Doc. 1).
FACTUAL BACKGROUND
Plaintiff challenges only the ALJ’s conclusions regarding her physical limitations (Doc.
16) and therefore waives any claims about the determinations of her mental impairments. Swain
v. Comm’r of Soc. Sec., 379 F. App’x 512, 517-18 (6th Cir. 2010) (noting failure to raise a claim
in merits brief constitutes waiver). Specifically, Plaintiff challenges only the ALJ’s treatment of
Dr. Moufawad’s opinion and the ALJ’s omission of restrictions related to Plaintiff’s foot pain
and carpal tunnel syndrome. (Doc. 16, at 11, 16). Accordingly, the Court addresses only the
record evidence pertaining to Plaintiff’s arguments.
Plaintiff’s Background, Vocational Experience, and Daily Activities
Born September 18, 1963, Plaintiff was 48 years old at the time of the ALJ hearing
decision. (Tr. 163). She has an eleventh-grade education and past relevant work experience as a
housekeeper, stadium cleaner, and warehouse packer. (Tr. 19, 34, 241, 600).
Plaintiff lived in a house with her boyfriend and eleven-year-old son. (Tr. 34, 210). Her
daughter lived with her up until three days before the hearing, at which time she abruptly moved
out. (Tr. 59). In 2009, Plaintiff spent nine months in jail for receiving stolen property. (Tr. 67,
613). Plaintiff’s description of her hobbies, daily activities, and functional abilities is varied,
allegedly because her condition worsened since Plaintiff claimed disability in 2009. (Tr. 50-51).
To this end, in 2009 Plaintiff’s hobbies included playing bingo, bowling, crocheting, and
completing word-search puzzles. (Tr. 214, 601). In a 2010 function report, Plaintiff said she
watched television, crocheted, and played cards once in a while. (Tr. 269). Also in 2010, Plaintiff
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told her counselor she had no hobbies or interests. (Tr. 864). At the 2012 hearing, Plaintiff
testified her hobbies were limited to completing an occasional puzzle. (Tr. 51).
Regarding daily activities, Plaintiff consistently averred she had no trouble with personal
care. (Tr. 212, 266-67). In a 2009 function report, Plaintiff indicated she took her daughter to the
bus stop, got her son ready to get on the bus, did housework, picked her kids up from school,
took her daughter to weekly counseling sessions, prepared meals, watched television, did laundry
twice per week, drove a car, and grocery shopped three times per week. (Tr. 211-13). In 2010,
Plaintiff said pain limited her ability to clean but she could drive, run simple errands, pick her
son up from school, cook, shop every three weeks, and watch television. (Tr. 263, 265, 267-68,
270). However, she could no longer take her son to school in the morning because she did not
have the energy to wake up and could not be around people. (Tr. 266). In 2011, Plaintiff
indicated she had “no energy to do laundry” and could not carry the laundry basket to the
basement. (Tr. 299). At the hearing in 2012, Plaintiff said she had not cooked or cleaned for
about a year. (Tr. 50-51).
Plaintiff’s statements about her functional abilities are similarly varied. In 2009, Plaintiff
said she could not lift anything and could only walk one block before taking a ten minute break.
(Tr. 215). In 2010, Plaintiff said she could walk for up to two blocks, stand for up to twenty
minutes, and lift up to twenty pounds. (Tr. 263, 270). At the 2012 hearing, Plaintiff said she
could walk for about thirty minutes, stand or sit for up to an hour and a half, and lift up to seven
or eight pounds. (Tr. 45, 64).
Medical Evidence
Beginning in 2004 and prior to the alleged onset date, Plaintiff treated with Shreeniwas
Lele, M.D., for a number of conditions including diabetes, smoking cessation, rhinosinusitis,
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pharyngitis, bronchitis, back pain, foot pain, heel spur, hematuria, hand pain, bilateral carpal
tunnel syndrome, foot wound and cellulitis, weight loss, and left foot plantar fasciitis. (Tr. 31651). As part of her treatment, Dr. Lele referred Plaintiff to several specialists and performed
various diagnostic tests. (Tr. 352-427). Dr. Lele wrote several letters requesting Plaintiff receive
time off work or accommodations. (Tr. 429-33).
Beginning in 2006 and before the alleged onset date, Plaintiff saw Sami Moufawad,
M.D., several times with complaints of pain in her lower back and between the shoulder blades.
(Tr. 490, 493, 503, 505-26). Dr. Moufawad generally prescribed a TENS unit, Percocet or
Vicodin, Lyrica, and Flexural and recommended a home exercise program. (Tr. 490-91, 494-95,
503, 505-27). Plaintiff also complained of foot pain during many of these visits. (Tr. 508-10,
514, 517-25).
On March 4, 2009, one day after her alleged onset date, Plaintiff reported to her mental
health treatment provider, Michael Prime, M.D., that she was dealing with pending charges of
theft and recently fired from work “due to missed days.” (Tr. 481).
On March 30, 2009 and upon referral from Dr. Lele, Plaintiff treated with Lawrence
Martin, M.D., FACP, FCCP, who indicated Plaintiff had a long history of tobacco abuse and
provided a sample of Chantix. (Tr. 428). Plaintiff averred she had recently been laid off from her
hotel housekeeping job due to the recession and could no longer afford cigarettes. (Tr. 428).
On September 29, 2009, Plaintiff underwent a diabetic podiatry consultation. (Tr. 675).
On examination, vibratory sensation, pressure sensation, and plain perception/or temperature
were present and there was no evidence of ulcer, although Plaintiff complained of painful heels
from a previous surgery. (Tr. 675). Plaintiff was assessed with plantar fasciitis and prescribed
Motrin. (Tr. 675).
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Plaintiff returned to Dr. Lele on March 6, 2010 complaining of weakness and
uncontrolled blood sugar. (Tr. 887). Dr. Lele continued Plaintiff’s prescription for Metformin,
added Amaryl, advised Plaintiff to keep a food diary, and referred her to a dietician for diabetic
education. (Tr. 888). At a follow-up visit on March 15, Plaintiff said Amaryl and Prilosec were
helping her symptoms. (Tr. 889). However, she complained of tingling in her arms and legs,
causing Dr. Lele to suspect diabetic neuropathy and prescribe Neurontin. (Tr. 889).
On August 24, 2010, shortly after Plaintiff returned from a trip to California, she
complained to Dr. Lele of severe abdominal pain, nausea, and vomiting. (Tr. 891). Dr. Lele
ordered diagnostic testing, prescribed medication, and asked her to return in a few days. (Tr.
891). Two days later, Dr. Lele referred Plaintiff to a gastrointestinal specialist for the abdominal
pain and prescribed Carafate in addition to Prilosec for acid reflux. (Tr. 892). Plaintiff saw Dr.
Lele on September 14, 2010 and October 4, 2010 for generally unrelated matters. (Tr. 893-94).
Plaintiff returned to Dr. Moufawad on October 27, 2010, complaining of lower back pain
and pain in the right lower limb. (Tr. 947). Dr. Moufawad performed a physical examination and
reviewed a 2009 x-ray revealing listhesis at L4-L5 and a 2009 MRI revealing mild degenerative
disc disease at L5-S1, broad based posterior disc bulge, a herniated nucleus pulposus at L5-S1,
and face arthrosis at L4-L5. (Tr. 948). His impression was lumbar herniated nucleus pulposus at
L5-S1, extruded disc at L4-L5, lumbar degenerative disc disease, and lumbar sprain. (Tr. 948).
Dr. Moufawad recommended L5 transforaminal epidural steroid injections, a TENS unit,
Tramadol, Zipsor, and a home exercise program. (Tr. 949).
On November 12, 2010, Plaintiff complained to Dr. Moufawad of foot pain despite the
fact her diabetes was well controlled. (Tr. 1018). Dr. Moufawad recommended Plaintiff continue
her home exercise program, Percocet, and the TENS unit and add Neurontin. (Tr. 1018-19).
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On November 17, 2010, Plaintiff averred her medications only helped for a few hours
and she continued to have pain in her back and lower-right limb. (Tr. 958). Dr. Moufawad
prescribed Vicodin and advised she follow a home exercise plan. (Tr. 959).
On December 15, 2010, Plaintiff said Vicodin reduced her pain “some”. (Tr. 965). Dr.
Moufawad began a trial for the TENS unit, held off on injections per patient instructions,
continued Vicodin, added Savella, and recommended a home exercise plan. (Tr. 966). Plaintiff
underwent a lumbar transforaminal steroid injection with fluoroscopic guidance on January 3,
2011. (Tr. 967).
On January 10, 2011, Plaintiff presented to Dr. Lele with a new complaint of back pain
with radiculopathy. (Tr. 895). Dr. Lele ordered an x-ray, which revealed mild multilevel
discogenic degenerative changes of the lumbar spine. (Tr. 896, 924, 1021).
Plaintiff continued to have pain in her lower back radiating to the lower limbs on January
21, 2011, exacerbated with bending, lifting, and sometimes coughing. (Tr. 1016). She said she
also continued to have pain her feet even though her diabetes was controlled. (Tr. 1016). Dr.
Moufawad recommended Plaintiff continue home exercises, added methadone, reduced the dose
of Percocet, continued the TENS unit and Neurontin, and ordered an electrodiagnostic study of
the lower limbs. (Tr. 1017). That study, administered on February 18, 2011, revealed bilateral L5
motor radiculopathy and evidence of axonal loss distally in the sensory nerves compatible with
axonal sensory peripheral neuropathy, which could be seen in the case of a metabolic process
such as diabetes mellitus. (Tr. 1026-28).
In February of 2011, Plaintiff told Dr. Lele her back pain was better and she felt okay
overall. (Tr. 897). However, on May 24, 2011, Plaintiff said she felt “exhausted, tired, and
fatigued”, had “excruciating” back pain radiating into her leg, insomnia, and high blood sugar.
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(Tr. 1002). Dr. Lele assessed type 2 diabetes, diabetic nephropathy, high cholesterol, back pain
stabilized with nerve block, GERD, insomnia, and postmenopausal status. (Tr. 1002). On June
10, 2011, Plaintiff told Dr. Lele she was excited to go to California, and was doing well overall.
(Tr. 1003).
From January 31, 2011 through September 30, 2011, Plaintiff said that with medication,
she was able to function, perform activities of daily living, walk without difficulty, and travel to
California with well-controlled pain. (Tr. 1021, 1023-24, 1029, 1038). However, at times she
reported increased pain (particularly in her feet), use of a cane, trouble with activities of daily
living, and decreased energy, stamina, and appetite. (Tr. 960, 1021, 1023). Dr. Moufawad
adjusted Plaintiff’s medications accordingly. (Tr. 951, 961, 1022, 1025). On August 5, 2011,
Plaintiff said she was not working because the pain was not completely gone and she could not
find a job. (Tr. 1024).
On September 30, 2011, Dr. Moufawad completed a medical source statement, where he
indicated Plaintiff could lift or carry up to ten pounds due to cervical facet pain with dysfunction;
stand, walk, or sit for up to three hours in an eight-hour workday and for one-half hour without
interruption due to bilateral radiculopathy; could rarely or never climb, balance, stoop, crouch,
kneel, crawl, reach, feel, push, pull, or manipulate (finely or grossly); occasionally handle; could
not be exposed to heights, moving machinery, or temperature extremes; would require frequent
breaks and a sit/stand option; and had severe pain. (Tr. 1033-34).
An EMG of Plaintiff’s wrists taken on November 28, 2011 revealed mild carpal tunnel
syndrome. (Tr. 1063-64).
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On January 12, 2012, Plaintiff complained of increased pain in her feet and symptoms of
carpal tunnel syndrome. (Tr. 1059). Over Plaintiff’s request, Dr. Moufawad declined to increase
doses of medication and recommended she continue her treatment regimen. (Tr. 1059-60).
On March 16, 2012, Plaintiff told Dr. Moufawad she was working in housekeeping and
her symptoms were controlled with medications and the TENS unit, enabling her to complete her
activities of daily living. (Tr. 1061). After the ALJ hearing, Dr. Moufawad submitted a letter
indicating she was in fact not working in housekeeping at the time, but meant to say she helped a
friend fix her house, which aggravated the pain in her back and legs. (Tr. 1068).
On December 19, 2011, after postponing the procedure, Plaintiff underwent draining of
an ingrown nail/abscess. (Tr. 1036, 1058). She also complained to Jeffrey A. Halpert, D.P.M., of
severe heel pain bilaterally, for which she was later fitted for orthotics. (Tr. 1036, 1058). Her
prior history for surgical removal of a bone spur was noted. (Tr. 1037).
State Agency Opinion Evidence
On April 29, 2011, state agency medical consultant James Gahman, M.D., examined
Plaintiff’s medical records and determined she had the physical residual functional capacity
(“RFC”) to lift or carry 50 pounds occasionally and 25 pounds frequently; stand, walk, or sit with
normal breaks for a total of six hours in an eight-hour workday; and push or pull without
limitation. (Tr. 992). According to Dr. Gahman, she had no postural, manipulative, visual,
communicative, or environmental limitations. (Tr. 993-95).
Consultative examiner Mitchell Wax, Ph.D., examined Plaintiff and evaluated her mental
functional capacity. (Tr. 861). He discussed Plaintiff’s familial, educational, medical, and
vocational history, noting that Plaintiff had eleven children but only lived with her ten year old
and had no contact with six. (Tr. 861). Dr. Wax indicated Plaintiff was a good cook who cooked
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twice a week, did dishes and laundry, cleaned the house regularly, shopped, and watched
television. (Tr. 864-65).
ALJ Decision
The ALJ determined Plaintiff suffered from severe impairments of L5 radiculopathy,
diabetes mellitus, mood disorder, and personality disorder. (Tr. 14). Next, the ALJ determined
Plaintiff did not have an impairment or combination of impairments that met or equaled a listed
impairment. (Tr. 15). The ALJ found Plaintiff had the RFC to perform a range of medium work
with certain non-exertional limitations. (Tr. 16). Considering the RFC, the ALJ determined
Plaintiff was capable of past relevant work as a housekeeper, stadium cleaner, and warehouse
packer. (Tr. 19). Thus, the ALJ determined Plaintiff was not disabled. (Tr. 25).
STANDARD OF REVIEW
In reviewing the denial of Social Security benefits, the Court “must affirm the
Commissioner’s conclusions absent a determination that the Commissioner has failed to apply
the correct legal standards or has made findings of fact unsupported by substantial evidence in
the record.” Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). “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.” Besaw v. Sec’y
of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992). The Commissioner’s findings
“as to any fact if supported by substantial evidence shall be conclusive.” McClanahan v. Comm’r
of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (citing 42 U.S.C. § 405(g)). Even if substantial
evidence or indeed a preponderance of the evidence supports a claimant’s position, the court
cannot overturn “so long as substantial evidence also supports the conclusion reached by the
ALJ.” Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003).
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STANDARD FOR DISABILITY
Eligibility for DIB and SSI is predicated on the existence of a disability. 42 U.S.C. §
423(a). “Disability” is defined 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
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); see also 42 U.S.C. § 1382c(a)(3)(A). The
Commissioner follows a five-step evaluation process – found at 20 C.F.R. § 404.1520 and §
416.920 – to determine if a claimant is disabled:
1. Was the claimant engaged in a substantial gainful activity?
2. Did the claimant have a medically determinable impairment, or a combination
of impairments, that is “severe,” which is defined as one which substantially
limits an individual’s ability to perform basic work activities?
3. Does the severe impairment meet one of the listed impairments?
4. What is claimant’s RFC and can she perform past relevant work?
5. Can the claimant do any other work considering her RFC, age, education, and
work experience?
Under this five-step sequential analysis, the claimant has the burden of proof in steps one
through four. Walters, 127 F.3d at 529. The burden then shifts to the Commissioner at step five
to establish whether the claimant has the RFC to perform available work in the national
economy. Id. The court considers the claimant’s RFC, age, education, and past work experience
to determine if the claimant could perform other work. Id. A claimant is only determined to be
disabled if she satisfies each element of the analysis, including inability to do other work, and
meets the duration requirements. 20 C.F.R. §§ 404.1520(b)-(f); 416.920(b)-(f); see also Walters,
127 F.3d at 529.
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DISCUSSION
Plaintiff argues the ALJ erred by: 1) affording little weight to the opinion of treating
physician Dr. Moufawad; and 2) failing to find Plaintiff had severe impairments of plantar
fasciitis, heel spurs, and carpal tunnel syndrome. (Doc. 16, at 11, 16). Each argument is
addressed in turn.
Treating Physician Rule
Generally, the medical opinions of treating physicians are afforded greater deference than
those of non-treating physicians. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007); see also Social Security Ruling (“SSR”) 96-2p, 1996 WL 374188. “Because treating
physicians are ‘the medical professionals most able to provide a detailed, longitudinal picture of
[a claimant’s] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone,’ their opinions are
generally accorded more weight than those of non-treating physicians.” Rogers, 486 F.3d at 242
(quoting 20 C.F.R. § 416.927(d)(2)). A treating physician’s opinion is given “controlling weight”
if it is supported by “medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with other substantial evidence in the case record.” Id. The ALJ must give “good
reasons” for the weight given to a treating physician’s opinion. Id.
“Good reasons” are reasons “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.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p, 1996 WL 374188, at *4).
“Good reasons” are required even when the conclusion of the ALJ may be justified based on the
record as a whole. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). “If the ALJ
does not accord the opinion of the treating source controlling weight, it must apply certain
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factors” to assign weight to the opinion. Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 660
(6th Cir. 2009) (citing 20 C.F.R. § 404.1527(d)(2)). These factors include the length of treatment
relationship, the frequency of examination, the nature and extent of the treatment relationship,
the supportability of the opinion, the consistency of the opinion with the record as a whole, and
the specialization of the treating source. Id.
In 2011, Dr. Moufawad opined Plaintiff could lift or carry up to ten pounds; stand, walk,
or sit for up to three hours in an eight-hour workday and for one-half hour without interruption;
never climb, balance, stoop, crouch, kneel, crawl, reach, feel, push, pull, or manipulate (finely or
grossly); occasionally handle; could not be exposed to heights, moving machinery, or
temperature extremes; required frequent breaks and a sit/stand option; and had severe pain. (Tr.
1033-34). The ALJ afforded little weight to treating physician Dr. Moufawad’s opinion because
it was inconsistent with Plaintiff’s “own statement of her abilities”. (Tr. 18). Plaintiff claims this
analysis falls short of the “good reasons” requirement.
However, the ALJ was not required to conduct a factor-by-factor analysis of Dr.
Moufawad’s opinion. Francis v. Comm’r of Soc. Sec., 414 F. App’x 802, 804-05 (6th Cir. 2011);
Blakely, 581 F.3d at 407. Moreover, the ALJ discussed Plaintiff’s inconsistent statements in the
body of her RFC decision. “The fact that the ALJ did not analyze the medical evidence for a
second time (or refer to her previous analysis) when rejecting Dr. [Moufawad’s] opinion does
not necessitate remand of Plaintiff’s case.” Dailey v. Colvin, 2014 U.S. Dist. LEXIS 82267, at
*23 (N.D. Ohio) (citing Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 472 (6th Cir. 2006)).
As the ALJ pointed out, in a function report Plaintiff alleged she could lift twenty
pounds; but at the hearing, she testified she could only lift seven or eight. (Tr. 17, 45, 270). In
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addition to challenging her credibility, Plaintiff’s statements suggest her abilities exceed Dr.
Moufawad’s restriction of lifting no more than a maximum of ten pounds. (Tr. 1033).
Similarly, Plaintiff claimed in her function report she could only walk for one or two
blocks; yet at the hearing, she testified she could walk for thirty minutes and sit or stand for up to
an hour and a half. (Tr. 17, 45, 64, 263, 270). Although Plaintiff’s testimony regarding her ability
to walk for thirty minutes is consistent with Dr. Moufawad’s opinion, her stated level of abilities
to sit or stand for an hour and a half are inconsistent with Dr. Moufawad’s finding that limited
Plaintiff to sitting or standing for only thirty minutes without interruption. (Tr. 1033). As the ALJ
suggested, Plaintiff’s testimony demonstrates she is capable of more than Dr. Moufawad’s
limiting opinion.
Nevertheless, even if the ALJ did not provide sufficient reasons for discrediting Dr.
Moufawad’s opinion, the ALJ’s error is excused as harmless. A violation of the treating
physician rule is harmless error if: 1) “a treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it”; 2) “if the Commissioner adopts the opinion of the
treating source or makes findings consistent with the opinion”; or 3) “where the Commissioner
has met the goal of § 1527(d)(2) – the provision of the procedural safeguard of reasons – even
though she has not complied with the terms of the regulation.” Wilson, 378 F.3d at 547.
In this case, Dr. Moufawad’s opinion is not “patently deficient” nor did the ALJ adopt all
of Dr. Moufawad’s functional limitations into the RFC. However, after close and careful review
of the ALJ’s decision in its entirety, the Court finds the ALJ satisfied the goals of the treating
physician rule, i.e. to ensure adequacy of review and to permit the claimant to understand the
disposition of her case. Coldiron v. Comm. of Soc. Sec., 391 F. App’x 435, 440 (6th Cir. 2010).
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“An ALJ may accomplish the goals of this procedural requirement by indirectly attacking
the supportability of the treating physician’s opinion or its consistency with other evidence in the
record.” Id. (citing Nelson, 195 F. App’x at 470-72). The Court looks to the ALJ’s decision, as
opposed to the other evidence in the record, for support. Coldiron, 391 F. App’x at 440. For the
following reasons, the Court finds the ALJ’s evaluation of Plaintiff’s credibility, the evidence of
record, and treatment of other opinion evidence undermines the consistency of Dr. Moufawad’s
opinion with the record as a whole.
As discussed above, the ALJ directly attacked Plaintiff’s inconsistent statements
regarding her abilities. These statements challenge Plaintiff’s credibility. Moreover, they
undermine Dr. Moufawad’s restrictive opinion.
Additionally, the ALJ indirectly attacked the consistency of Dr. Moufawad’s opinion
with the record as a whole. Regarding daily activities, the ALJ indicated Plaintiff took care of her
children and lived with her family. (Tr. 18). The ALJ also recalled how Plaintiff reported to Drs.
Moufawad and Wax that she was able to complete all of her activities of daily living. (Tr. 14-15).
To this end, Plaintiff told Dr. Wax she was a good cook who cooked twice a week, did dishes
and laundry, cleaned the house regularly, shopped, and watched television. (Tr. 15, referring to,
864-65). She reported to Dr. Moufawad several times in 2011 that with pain medication, she was
able to function and do her activities of daily living, she had no recent difficulties with walking,
and her pain was well-controlled during her trip to California. (Tr. 15, referring to, 1021, 102324, 1029; Tr. 17, referring to, Tr. 1038, 1061). In this vein, the ALJ noted Plaintiff’s medication
helped her with pain and allowed her to function and perform activities of daily living. (Tr. 17).
Further, the ALJ indicated Plaintiff’s diabetes was controlled when she was compliant with
treatment. (Tr. 18). These activities (and reports regarding the same) are inconsistent with Dr.
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Moufawad’s opinion limiting Plaintiff to sedentary work.
The ALJ also discussed Plaintiff’s statement to Dr. Moufawad that she was working in
2012, despite her claims she was not working throughout the relevant time period. (Tr. 17). This
undermines Plaintiff’s credibility as well as the restrictiveness of Dr. Moufawad’s opinion, as it
suggests she was capable of more than sedentary work.
Plaintiff takes issue with the ALJ’s failure to mention a letter written by Dr. Moufawad
after the hearing, which stated:
[Plaintiff] wanted to point out that she was not working. The records from March
16th that reflected her working in house keeping are not accurate. She actually
helped a friend fixing her house just one time and that aggravated the pain in the
back and legs.
(Tr. 1068).
Indeed, the ALJ did not acknowledge this letter, which was submitted after the hearing,
ostensibly because it was outside the relevant time period. Strong v. Soc. Sec. Admin., 88 F.
App’x 841, 845 (6th Cir. 2004) (“Evidence of disability obtained after the expiration of insured
status is generally of little probative value.”). Plaintiff does not point to a particular rule of law
demonstrating that the ALJ was required to consider the letter. (Doc. 16, at 14). Notably,
Plaintiff’s counsel did not object to the evidence of record and did not seek to add any additional
documents at the hearing. (Tr. 31-32). Furthermore, even if the letter were considered, it still
indicates Plaintiff was able to help fix up a house, which is inconsistent with her claims of
debilitating pain and Dr. Moufawad’s limiting opinion.
Moreover, the ALJ indirectly attacked Dr. Moufawad’s opinion through explanation of
the weight afforded to the state agency consultants’ and examiners’ opinions. (Tr. 18). These
physicians found Plaintiff could engage in lifting associated with medium work, which the ALJ
said was consistent with Plaintiff’s claim that she did not have any upper extremity, shoulder, or
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wrist difficulties that would limit her ability to lift more than 20 pounds. (Tr. 18). Indeed, at the
hearing, Plaintiff’s counsel described her carpal tunnel syndrome as “mild” and Plaintiff alleged
only some problems with grip due to tingling and pain in her wrists. (Tr. 33, 42-44). These
statements are inconsistent with Dr. Moufawad’s finding that Plaintiff could only engage in
sedentary work. 20 C.F.R. § 404.1567(a) (sedentary work involves lifting no more than ten
pounds). The ALJ also afforded significant weight to the opinions of the state agency consultants
and consultative examiners because they were consistent with Plaintiff’s reported daily activities,
abilities, and the objective medical evidence, as discussed above. (Tr. 18).
To the extent Plaintiff argues the ALJ erred by affording weight to state agency
examiners, that argument is without merit because it is clear why the ALJ deemed Dr.
Moufawad’s opinion non-controlling. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376
(6th Cir. 2013) (an ALJ may afford weight to a nonexamining or nontreating source “but only if
a treating-source opinion is not deemed controlling.”).
In sum, the ALJ provided sufficiently good reasons to afford Dr. Moufawad’s opinion
little weight. Moreover, the ALJ’s decision as a whole makes her reasons for discrediting Dr.
Moufawad’s restrictive opinion clear. Following careful review of the ALJ’s decision, the ALJ’s
treatment of the opinion evidence is affirmed. See, Jones, 336 F.3d at 477 (the Court must affirm
even where substantial evidence supports an alternative result); and Kobetic v. Comm’r of Soc.
Sec., 114 F. App’x 171, 173 (6th Cir. 2004) (where remand would be an “idle and useless
formality”, the Court is not required to “convert judicial review of agency action into a pingpong game.”) (quoting NLRB v. Wyman-Gordon Co., 395 U.S. 759, 766 n.6 (1969)).
Step Two – Severe Impairments and RFC Determination
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Next, Plaintiff argues the ALJ erred by not including Plaintiff’s foot pain and carpal
tunnel syndrome among her severe impairments. (Doc. 16, at 16). However, at the end of her
analysis, Plaintiff concedes that because the ALJ found Plaintiff suffered from other severe
impairments, any step two error was harmless. (Doc. 16, at 19); 20 C.F.R. § 416.920(c) (relevant
inquiry at step two is whether “you do not have any” severe impairments (emphasis added));
Nejat v. Comm’r of Soc. Sec., 359 F. App’x 574, 576-77 (6th Cir. 2009). Therefore, Plaintiff’s
step two argument is not well-taken.
Alternatively, Plaintiff claims the ALJ was “required to include all relevant limitations
shown by the evidence in the formulation of the [RFC], and in formulating hypothetical
questions to the [VE].” (Doc. 16, at 19).
A claimant’s RFC is an assessment of “the most [she] can still do despite [her]
limitations.” 20 C.F.R. § 416.945(a)(1). An ALJ must consider all symptoms and the extent to
which those symptoms are consistent with the objective medical evidence. § 416.929. An ALJ
must also consider and weigh medical opinions. § 416.927. When a claimant’s statements about
symptoms are not substantiated by objective medical evidence, the ALJ must make a finding
regarding the credibility of the statements based on a consideration of the entire record. SSR 967p, 1996 WL 374186, *1.
Here, the ALJ considered Plaintiff’s carpal tunnel syndrome and foot impairments but
found they did not limit her beyond a range of medium work. (Tr. 14-15). Her decision is
supported by substantial evidence.
Regarding foot pain, the ALJ indicated there was no evidence to show Plaintiff’s ability
to complete basic work activities would be limited and she was able to complete all activities of
daily living according to statements she made to various physicians. (Tr. 14-15). Indeed, Plaintiff
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indicated improved symptoms to Dr. Moufawad (Tr. 950, 1021, 1023) and Dr. Lele (Tr. 897,
1003). Moreover, the record does not suggest Plaintiff was functionally limited due to foot pain.
Concerning Plaintiff’s carpal tunnel syndrome, the ALJ found no acceptable clinical or
laboratory diagnostic techniques to demonstrate impairment and insufficient evidence to
establish the condition as severe. (Tr. 15). The Commissioner concedes that there was actually
EMG testing done in November 2011, but suggests any error made by the ALJ was harmless as
the findings revealed only mild carpal tunnel syndrome and Dr. Moufawad described the results
as essentially normal. (Doc. 17, at 19; Tr. 1063-64). Following review of the relevant report, the
Court agrees with the Commissioner, and finds the lack of objective evidence supporting
Plaintiff’s claim of debilitating pain from carpal tunnel syndrome supported by substantial
evidence.
For these reasons, the ALJ did not err with respect to her treatment of Plaintiff’s foot
impairments and carpal tunnel syndrome.
CONCLUSION
Following review of the arguments presented, the record, and the applicable law, the
Court finds the Commissioner’s decision denying DIB and SSI benefits applied the correct legal
standards and is supported by substantial evidence. Therefore, the decision of the Commissioner
is affirmed.
IT IS SO ORDERED.
s/James R. Knepp, II
United States Magistrate Judge
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