Carter-Perry v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order: The Commissioner's decision is AFFIRMED. Magistrate Judge Kathleen B. Burke on 3/5/2015. (D,I)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

VERNA CARTER-PERRY,
Plaintiff,
v.

COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.

)
)
)
)
)
)
)
)
)
)
)

CASE NO. 1:14CV761

MAGISTRATE JUDGE
KATHLEEN B. BURKE

MEMORANDUM OPINION & ORDER

Plaintiff Verna Carter-Perry (“Carter-Perry”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. 1. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
Magistrate Judge pursuant to the consent of the parties. Doc. 17.
For the reasons stated below, the Commissioner’s decision is AFFIRMED.
I. Procedural History
Carter-Perry protectively filed an application for DIB on July 20, 2010, alleging a
disability onset date of March 1, 2010. Tr. 19, 156, 160. She alleged disability based on the
following: asthma, “copd,” and sciatic nerve problem. Tr. 198. After denials by the state agency
initially (Tr. 76, 80) and on reconsideration (Tr. 96, 93), Carter-Perry requested an administrative
hearing. Tr. 100. A hearing was held before Administrative Law Judge (“ALJ”) C. Howard
Prinsloo on October 12, 2012. Tr. 40-71. At the hearing, Carter-Perry amended her onset date to
June 26, 2011. Tr. 42. In his December 19, 2012, decision (Tr. 19-33), the ALJ determined that
1

there were jobs that existed in significant numbers in the national economy that Carter-Perry
could perform, i.e., she was not disabled. Tr. 31. Carter-Perry requested review of the ALJ’s
decision by the Appeals Council (Tr. 15) and, on February 10, 2014, the Appeals Council denied
review, making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
II. Evidence
A. Personal and Vocational Evidence
Carter-Perry was born in 1962 and was 48 years old on the date her application was filed.
Tr. 193. She completed eleventh grade. Tr. 198. She previously worked as a nursing assistant.
Tr. 199. She last worked in June 2011. Tr. 242.
B. Relevant Medical Evidence
1. Mental evidence1
On September 1, 2009, Carter-Perry saw her family physician James E. Misak, M.D. Tr.
284. Carter-Perry reported that, after her father died in July 2009, she felt sad, blue, angry, and
had frequent crying spells. Tr. 284. Carter-Perry was diagnosed with adjustment disorder with
depressed mood. Tr. 285. Dr. Midak prescribed Sertraline. Tr. 285.
On October 16, 2009, Dr. Misak observed that Carter-Perry was “cheerful.” Tr. 277.
Carter-Perry reported that she was “much less sad” and that she had stopped taking the
Sertraline. Tr. 277. Dr. Misak diagnosed her with grief reaction and made no further
recommendations for treatment. Tr. 278.
On December 3, 2010, Carter-Perry told Dr. Misak that her son was killed in November
and that since then she was tearful, crying all the time, had a poor appetite, and slept badly. Tr.

1

Carter-Perry did not list a mental impairment in her application. Tr. 198. She also did not testify that a mental
impairment prevented her from working. Tr. 44; see also Tr. 51 (when asked about her mental health, Carter-Perry
answered that “it goes and comes” and that she was “okay.”). However, there is evidence in the record regarding a
mental impairment and the ALJ considered this purported impairment in his opinion.
2

437. She reported that she had good family support and would be seeing a grief counselor. Tr.
437. Dr. Misak gave her a low-dose amitriptyline to help her sleep. Tr. 437.
On January 24, 2011, Carter-Perry reported to Dr. Misak that she was sleeping better on
amitriptyline and wanted to continue it. Tr. 440. She still had a poor appetite and stated that she
would not go to her pulmonary appointment the following month because of her son’s death. Tr.
440.
On April 29, 2011, Carter-Perry reported that an individual was arrested in connection
with her son’s murder, that she was working with a grief counselor, and that she felt “somewhat
better.” Tr. 563. Her sleep remained improved and she was eating better and gaining weight.
Tr. 563.
On May 19, 2011, while at the emergency room, Carter-Perry was tearful and expressed
feelings of depression over the death of her son. Tr. 484. On January 6, 2012, Carter-Perry
reported to Dr. Misak that the holidays had been difficult for her and that she was attending a
support group, which she found helpful. Tr. 612.
2. Physical evidence
Lungs: Carter-Perry has a long history of asthma and chronic obstructive pulmonary
disease (COPD). On February 10, 2009, Cater-Perry saw pulmonologist Michael Infield, M.D.
Tr. 301. Dr. Infield noted that Carter-Perry previously had a substernal goiter compressing her
trachea that was removed. Tr. 301, 307. He found that she had minimal symptoms and listed her
triggers as heat, cold air, pollen, grass, dust, and exercise. Tr. 301. He observed that her COPD
and asthma were well-controlled on Singulair, Spiriva, and Advair with minimal need for a
rescue albuterol inhaler and no prednisone bursts or emergency room visits in over a year. Tr.
307.

3

Carter-Perry reported that she quit smoking in May 2007. Tr. 303. Upon examination,
she had no wheezing or crackles and normal air exchange. Tr. 307. Dr. Infield commented that
her chief complaint was oral thrush more than dyspnea or wheezing. Tr. 307. He recommended
decreasing her Advair to stop her thrush and eliminating Spiriva in the spring if her symptoms
remained well-controlled. Tr. 307.
On August 25, 2009, Carter-Perry saw pulmonologist Gaurav Khanna, M.D. Tr. 288.
She reported using her inhaler three to four times in the last week. Tr. 288. She had resumed
smoking 3-4 cigarettes per day. Tr. 288. She stated that she felt fine. Tr. 288. Upon
examination, Cater-Perry’s lungs were clear. Tr. 290. Dr. Khanna diagnosed moderate
persistent asthma, tobacco abuse, and COPD with severe emphysema. Tr. 291. He
recommended that Cater-Perry increase her use of Advair and begin alpha antitrypsin in addition
to her regular medication regimen of Singulair, Proventil, Nasonex, and Spiriva. Tr. 290-291.
He counseled her about the ill effects of smoking and presented options available for cessation
but she was not interested. Tr. 291.
On September 1, 2009, Dr. Misak noted that Carter-Perry was taking her medications as
required with the exception of Advair which she could not afford. Tr. 284. Carter-Perry denied
having shortness of breath or chest pain. Tr. 284. Dr. Misak remarked that her asthma was
stable. Tr. 285. He substituted Symbicort instead of Advair and recommended that she
continue her treatment regimen and stop smoking. Tr. 285.
On September 15, 2009, Carter-Perry underwent a pulmonary function test. Tr. 280.
She was found to have a moderate obstructive ventilatory impairment that did not respond
significantly to bronchodilator therapy. Tr. 280.

4

On October 16, 2009, Carter-Perry saw Dr. Misak. Tr. 277. Carter-Perry reported that
she had not needed to use her albuterol inhaler since she started taking Spiriva. Tr. 277. She
denied symptoms of shortness of breath or chest pain and her lungs were clear upon exam. Tr.
277.
On December 8, 2009, Carter-Perry saw Dr. Khanna for a follow-up visit. Tr. 339. She
stated that she felt fine and denied any nighttime breathing symptoms, although she had used her
albuterol every day the previous week. Tr. 339. She reported asthma triggers of cold season,
change in the weather, perfumes and cologne. Tr. 339. She wore an airguard mask during the
last cold season with good results. Tr. 339. She still smoked three cigarettes a day. Tr. 339.
Upon examination, Carter-Perry’s lungs were clear with no wheezing. Tr. 341. Dr. Khanna
attributed her increased asthma symptoms to the change in temperature and noted that she is only
using one puff of Symbicort a day. Tr. 342. He increased it to two and recommended that she
continue taking her medications, wear an airguard mask when she goes out, and counseled her on
the ills of smoking. Tr. 342.
On January 22, 2010, Dr. Misak noted that Carter-Perry’s asthma was controlled and that
her COPD was stable. Tr. 326, 330. He continued her on her medications and noted that she had
stopped smoking. Tr. 330.
On March 9, 2010, Carter-Perry went to the emergency room complaining of stabbing
chest pain, shortness of breath, and wheezing after having had sneezing, a runny nose, and postnasal drainage for five days. Tr. 296. Chest x-rays showed no significant interval change and no
acute infiltrates. Tr. 315. In a follow-up appointment with Dr. Misak on March 31, 2010,
Carter-Perry reported good results with Flonase and only rare albuterol use. Tr. 271.

5

On April 13, 2010, Cater-Perry saw Dr. Khanna for a follow-up visit. Tr. 267. She
reported using her inhaler only two times per week and she had baseline peak flow meter
readings. Tr. 267. She complained of wheezing and shortness of breath upon exertion and three
nighttime symptoms a week. Tr. 267. Dr. Khanna diagnosed moderate persistent asthma,
COPD, likely emphysema, and mild pulmonary hypertension. Tr. 268. He noted that she was
doing fine. Tr. 268. He recommended that she wear her mask when she goes out, begin Flovent,
and use an air conditioner and humidifier. Tr. 269.
On July 9, 2010, Carter-Perry reported to Dr. Misak that she still had a lot of trouble
breathing, especially in the hot weather. Tr. 263. She stated that she was using her albuterol
inhaler four to five times a day. Tr. 263. Dr. Misak instructed her to increase her Flovent,
continue taking her other medication, and keep her upcoming pulmonologist appointment. Tr.
264.
On July 13, 2010, Carter-Perry saw pulmonologist Rajesh Kandasamy, M.D. Tr. 258.
Carter-Perry reported normal exercise tolerance of 2 blocks of walking and one flight of stairs on
a good day. Tr. 258. She stated that she had smoked five cigarettes per day for the past seven
years and had worked in dusty environments until 2005. Tr. 258. She claimed that her
symptoms of allergic rhinitis were controlled with Flonase and that she had stopped smoking
within the past month. Tr. 258. She also reported that her shortness of breath becomes worse
when she exerts herself outside. Tr. 258. Upon examination, Carter-Perry’s breath sounds were
good, with no rales or rhonchi. Tr. 261. Dr. Kandasamy opined that her COPD was wellcontrolled and was most likely caused by her past occupational exposure. Tr. 261. He
recommended continued use of her mask when she performed exertional activities outdoors and

6

noted that she would be a candidate for pulmonary rehabilitation if her symptoms worsened. Tr.
261.
In October 2010 Carter-Perry participated in a pulmonary rehabilitation treatment
program that included exercise for ten to forty minutes three times a week. Tr. 431. On October
25, 2010, she participated in an exercise oximetry study. Tr. 434. The results indicated that,
after walking 1,274 feet at a normal pace while breathing room air, Carter-Perry showed no
worrisome oxygen desaturation and no supplemental oxygen was recommended. Tr. 434.
On January 24, 2010, Dr. Misak noted that Carter-Perry’s asthma symptoms were stable
and that she denied shortness of breath or chest pain. Tr. 387. Upon exam, her lungs were
clear. Tr. 387.
On February 15, 2011, Carter-Perry saw pulmonologist Dr. Edward Warren, M.D. Tr.
382. Dr. Warren observed that Carter-Perry was on a fairly aggressive treatment regimen for
asthma. Tr. 382. On February 16, 2011, Dr. Kandasamy added that Carter-Perry reported
reduced exercise tolerance and inhaler use four times a day. Tr. 382-383. She complained of
intermittent shortness of breath when outside in cold weather. Tr. 383. Dr. Kandasamy advised
she continue her medications and undergo a lung function test. Tr. 385.
A pulmonary function test was performed on February 25, 2011, by Bruce Arthur, M.D.
Tr. 375. Carter-Perry displayed no significant change since her September 2009 evaluation. Tr.
375. Dr. Arthur listed a diagnostic impression of fully reversible, mild obstructive ventilatory
impairment. Tr. 375. He noted she had gas trapping with hyperinflation on lung volume testing
and that her diffusion capacity was reduced out of proportion to the level of obstruction. Tr. 375.
He recommended considering concomitant anemia, interstitial or pulmonary vascular disease.
Tr. 375. In an exercise oximetry study on the same day, Carter-Perry walked 1300 feet while

7

breathing room air and maintained a 98% oxygen saturation rate. Tr. 376. Dr. Arthur
commented that she experienced no significant oxygen desaturations. Tr. 376. Carter-Perry also
participated in a nocturnal pulse oximetry study that showed no episodic desaturations. Tr. 380.
On October 7, 2011, Carter-Perry reported to Dr. Misak that she used her albuterol
inhaler three times a week. Tr. 504. She did not complain of chest pain or shortness of breath.
Tr. 504. Dr. Misak found that her asthma and COPD symptoms were stable. Tr. 504. On
January 6, 2012, Dr. Misak noted that she became symptomatic upon exposure to cold and
recommended that she avoid cold and continue her medications. Tr. 612, 613. On May 19, 2011,
Dr. Misak remarked that she had no current asthma or COPD symptoms and was stable. Tr. 680.
On August 10, 2012, Carter-Perry reported increased inhaler use but was stable. Tr. 696, 698.
On May 8, 2012, Carter-Perry saw pulmonologist Vidya Krishnan, M.D. Tr. 652. Dr.
Krishnan noted that she had asthma triggered primarily by exercise, and observed that she
remained active and that she had stopped smoking. Tr. 652. Dr. Kandasamy commented that
she had no recent exacerbations and that her asthma and COPD were stable with no progression.
Tr. 653.
Back: On May 18, 2011, Carter-Perry presented to the emergency department
complaining of sharp right flank and back pain. Tr. 459, 485. Upon examination, she displayed
exquisite tenderness to palpation over the right paraspinal muscles from the mid-thoracic to her
iliac crest region with no asymmetry. Tr. 485. The attending physician diagnosed a thoracic
back strain and prescribed a Toradol injection for immediate administration and a take-home
prescription for Motrin. Tr. 486.
On June 17, 2011, Carter-Perry complained to Dr. Misak that she continued to have rightsided low back pain that was not relieved by ibuprofen. Tr. 467. Dr. Misak found tenderness to

8

palpation in her right lumbar paraspinal muscles but no muscle spasm. Tr. 467. He
recommended that she switch to Naproxen to treat her lumbar osteoarthritis. Tr. 468. The
treatment notes indicate that an MRI study from 2007 revealed moderate facet disease at L5-S1
without significant canal or foraminal narrowing. Tr. 569.
On August 30, 2011, Carter-Perry returned to Dr. Misak complaining of worsening pain
in her lumbar spine and left elbow related to osteoarthritis. Tr. 513. Dr. Misak noted that CarterPerry appeared to be in pain; upon examination, she had tenderness to palpation over her left
lumbar paraspinous region with no spasm. Tr. 513. Dr. Misak recommended she take
gabapentin as well as her naproxen. Tr. 513. A treatment note from October 7, 2011, indicated
that Carter-Perry continued to have pain in multiple joints. Tr. 594.
C. Medical Opinion Evidence
1. Treating Physician
In July 2011, Dr. Misak completed a Medical Source Statement with respect to CarterPerry’s physical capacity.2 Tr. 496-497. Dr. Misak opined that Carter-Perry was unable to lift
more than ten pounds occasionally and five pounds frequently; could stand or walk for up to one
hour at a time for a total of two hours in an eight-hour workday; could sit up to one hour at a
time for a total of two hours in a workday; and that she could only occasionally balance due to
her osteoarthritis but that she could frequently climb, stoop, crouch, kneel and crawl. Tr. 496.
Dr. Misak stated that she was unable to push or pull due to her asthma, could frequently reach,
and that she would have environmental restrictions such as heights, moving machinery,
temperature extremes, chemicals, dust, noise and fumes. Tr. 497. He wrote that she needed

2

The date on the form is illegible.

9

additional rest breaks than those provided in a regular workday and that she should have a
sit/stand option. Tr. 497. He indicated that Carter-Perry experiences severe pain. Tr. 497.
On August 15, 2012, Dr. Misak completed a second Medical Source Statement. Tr. 694695. Dr. Misak opined that Carter-Perry could carry up to five pounds occasionally and
frequently; could stand or walk a total of two hours in an eight-hour workday; could sit up to two
hours at a time for a total of four hours in a workday; and could occasionally balance, reach,
push, or pull. Tr. 694-695. She could never climb, stoop, crouch, kneel and crawl. Tr. 695. He
again found Carter-Perry had environmental restrictions, needed a sit/stand option, and that she
experiences severe pain. Tr. 695.
2. Consultative Examiners
Mental: On December 2, 2010, Carter-Perry saw Melissa Korland, Ph.D., for a
consultative examination. Tr. 347. Carter-Perry stated that her youngest son was murdered a
few weeks prior to the exam and that she felt “tremendous grief and shock” as a result. Tr. 347.
She acknowledged seeking psychological treatment following the death of her first husband in
1994 and that she had taken Zoloft, but that the medication did not alleviate her symptoms and
she stopped taking it. Tr. 348. She complained of problems sleeping since the death of her son.
Tr. 350. She stated that she felt depressed on a daily basis because of her physical health
problems and reported feeling embarrassed and humiliated because she had to rely on so much
assistance throughout her day. Tr. 350. She denied problems relating to others. Tr. 348. Dr.
Korland noted that, despite Carter-Perry’s need to adjust to her physical limitations, she is still
able to perform household chores, cook for her family, exercise, and engage in social activity.
Tr. 351.

10

Dr. Korland observed that Carter-Perry often had poor eye contact and frequently looked
at the floor while speaking, although she was fairly easy to establish a rapport with. Tr. 349.
She had a mildly depressed mood. Tr. 349. Dr. Korland diagnosed her with adjustment
disorder, depressed mood, chronic, and assigned a Global Assessment of Functioning (GAF)
score of 60.3 Tr. 352. She opined that Carter-Perry had a mild impairment in her ability to
maintain concentration, persistence and pace to perform simple and multi-step tasks. Tr. 352.
Dr. Korland explained, “[d]ue to Carter-Perry’s difficulties with low mood, coupled with recent
grief issues, she may find it difficult to maintain appropriate attention.” Tr. 352. Dr. Korland
also opined that Carter-Perry was mildly impaired in her ability to withstand the stress and
pressures of day-to-day work activities. Tr. 352.
3. State Agency Reviewers
On December 15, 2010, Paul Tangeman, Ph.D., a state agency psychologist, reviewed
Carter-Perry’s file and opined that she did not have a severe mental impairment. Tr. 353. On
May 17, 2011, state agency psychologist Caroline Lewin, Ph.D., affirmed Dr. Tangeman’s
opinion. Tr. 394.
On January 4, 2011, Willa Caldwell, M.D., a state reviewing physician, reviewed CarterPerry’s file. Tr. 367-374. Regarding Carter-Perry’s physical residual functional capacity (RFC),
Dr. Caldwell opined that Carter-Perry could lift and/or carry fifty pounds occasionally and
twenty-five pounds frequently; stand and/or walk and sit for a total of about six hours in an
eight-hour workday; had an unlimited ability to push and pull; had no postural limitations; and
should avoid concentrated exposure to extreme heat and fumes, odors, dusts, gases, poor
3

GAF (Global Assessment of Functioning) considers psychological, social and occupational functioning on a
hypothetical continuum of mental health illnesses. See American Psychiatric Association: Diagnostic & Statistical
Manual of Mental Health Disorders, Fourth Edition, Text Revision. Washington, DC, American Psychiatric
Association, 2000 (“DSM-IV-TR”), at 34. A GAF score between 51 and 60 indicates moderate symptoms or
moderate difficulty in social, occupational, or school functioning. Id.
11

ventilation, etc. Tr. 368, 371. On May 16, 2011, W. Jerry McCloud, M.D., a state agency
physician, reviewed Carter-Perry’s file and affirmed Dr. Caldwell’s assessment. Tr. 393.
D. Testimonial Evidence
1. Carter-Perry’s Testimony
Carter-Perry was represented by counsel and testified at the administrative hearing. Tr.
44-70. She testified that she completed the eleventh grade. Tr. 44. She last worked in June
2011 as a nurse’s aide. Tr. 56, 62. She held that job from 2007 to 2011. Tr. 55. She stated that
her work duties included showering, bathing, clothing, and feeding people. Tr. 56. She also
pushed people in a wheelchair for about fifteen to twenty minutes every day and helped people
walk up and down the hallway with their walkers. Tr. 56. She also regularly lifted patients. Tr.
56. She stated that she was irritated by fumes at work, particularly when the facility was
stripping the floors. Tr. 57. Chemicals irritated her as well but she was able to avoid them. Tr.
58.
Carter-Perry testified that she worked full time during most of 2010. Tr. 61-62. She
stated that she stopped working in March 2010 because her doctor told her that “I didn’t need to
be working” because of back pain. Tr. 60-61. She did not work for a few months but then
resumed working full time, although she initially alleged an onset date of March 2010. Tr. 61.
She agreed that she alleged that, as of March 2010, she could only stand, sit or walk for fifteen
minutes. Tr. 62. She stated that, despite these limitations, she was still able to work full-time as
a nurse’s aide because her employer let her sit whenever she wanted. Tr. 62-63. She continued
working through June 2011, although two or three of those months in 2011 were on a part-time
basis. Tr. 61-62. She separated from her employer in June 2011 after she provided a letter from

12

Dr. Misak stating that she could no longer lift over twenty-five pounds, explaining that the union
did not permit light work. Tr. 64.
Carter-Perry testified that she is unable to work because of her current back problems and
breathing problems. Tr. 44. She has back pain in the middle of her back down to her lumbar
region. Tr. 45. The pain is very sharp and is so bad “it knocks me to my knees.” Tr. 45. She
feels the pain every day. Tr. 45. It gets worse if she tries to bend to touch her toes or if she lifts
something that weighs around fifteen or twenty pounds. Tr. 45. It also hurts when she tries to
take walks. Tr. 45. She eases her pain by sitting on the floor with her back against the wall. Tr.
46. She was in therapy for her back pain but no longer attends because it caused her pain to
worsen. Tr. 46. She takes Naproxen and Neurontin which helps ease the pain but does not take
it away. Tr. 46. Her pain is an eight out of ten without her medication and a six or a seven with
her medication. Tr. 46-47. She also has a back brace that she wears every day. Tr. 47.
Carter-Perry testified that she has breathing problems that cause her to suddenly feel like
her chest wall and rib cage are closing and tightening. Tr. 47. Her problem is affected by hot,
cold, and humid weather. Tr. 48. She also stated that certain odors such as cologne and cut
grass and other irritants like pollen, dust, ragweed and cigarette smoke trigger her breathing
problems. Tr. 48. She can walk up six steps before she needs to stop and take a break. Tr. 48.
She has an oxygen machine that she got in 2005 that she uses as needed. Tr. 48. The oxygen
machine checks her oxygen level and, if her level drops below eighty, she has to use oxygen. Tr.
48-49. She last had to use oxygen about two months prior to the hearing and stated that when
she was first diagnosed with COPD she used it quite often but that it has gotten better with time.
Tr. 49. She also has a nebulizer that she uses when she gets up in the morning and before she

13

goes to bed at night. Tr. 49. On several occasions she has used it more than twice a day. Tr.
49.
Carter-Perry testified that she cooks, cleans around the house, goes grocery shopping, and
reads books. Tr. 52-53. She is able to stand for fifteen minutes before needing to sit down due
to right side back pain. Tr. 50. She can walk three minutes at one time and then she has to stop
because she feels like everything, including her breathing, is acting up and her chest wall is
closing. Tr. 50. She can sit for fifteen to twenty minutes and then she needs to stand. Tr. 50.
She can lift a maximum of twenty pounds every ten to fifteen minutes. Tr. 51.
With respect to her mental health, Carter-Perry testified that she is scared that she will
stop breathing and that she has dreams about her son. Tr. 51. She gets four hours of sleep a
night even with her sleep medication. Tr. 51. She goes out with family and friends and has no
trouble focusing on activities or tasks. Tr. 51-52. She has been seeing Dr. Misak since 1980 or
1989 and currently sees him every three months. Tr. 52. She also sees a grief counselor every
Monday and Friday. Tr. 52.
2. Vocational Expert’s Testimony
Vocational Expert James Breen (“VE”) testified at the hearing. Tr. 65-70, 145. The ALJ
discussed with the VE Carter-Perry’s past relevant work as a nurse’s assistant and work as a
building maintenance laborer that she held just over fifteen years prior. Tr. 66-67. The ALJ
asked the VE to determine whether a hypothetical individual of Carter-Perry’s age, education
and work experience could perform the jobs she performed in the past if that person had the
following characteristics: can perform light work but cannot tolerate concentrated exposure to
temperature extremes, humidity, strong odors, fumes, dust, chemicals, or other respiratory
irritants. Tr. 67-68. The VE testified that the person could not perform Carter-Perry’s past

14

relevant work. Tr. 68. The ALJ asked the VE if there were any jobs that the individual could
perform and the VE answered that the individual could perform jobs as a cashier (22,000
regional jobs, 65,000 Ohio jobs, 1.15 million national jobs), fast food worker (25,000 regional
jobs, 90,000 Ohio jobs, 1.5 million national jobs), and mail clerk (800 regional jobs, 3,000 Ohio
jobs, 72,000 national jobs). Tr. 68.
The ALJ asked the VE whether such an individual could perform those jobs if the
individual was limited to simple, routine, and repetitive tasks. Tr. 69. The VE answered that
such an individual could perform those jobs. Tr. 69. The ALJ asked the VE whether the
hypothetical individual could perform any jobs if the individual was unable to engage in
sustained work activity for a full eight-hour day on a regular and consistent basis. Tr. 69. The
VE answered that there would be no jobs for such an individual. Tr. 69.
Next, Carter-Perry’s attorney asked the VE whether the hypothetical individual the ALJ
first described could perform work if the individual would need at least two extra breaks lasting
about ten to twenty minutes each, in addition to a fifteen-minute morning and afternoon break
and a thirty-minute lunch break. Tr. 69. The VE answered that he would consider such a person
incapable of working in full-time competitive employment. Tr. 70.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
15

to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.

If the claimant is doing substantial gainful activity, he is not disabled.

2.

If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.

3.

If claimant is not doing substantial gainful activity, is suffering from a
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.

4.

If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.

5.

If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.

20 C.F.R. §§ 404.1520, 416.920;4 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the

4

The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).

16

Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his December 19, 2012, decision, the ALJ made the following findings:
1.

2.

The claimant has not engaged in substantial gainful activity since June
26, 2011, the amended alleged onset date. Tr. 21.

3.

The claimant has the following severe impairments: chronic obstructive
pulmonary disease and arthralgia.5 Tr. 22.

4.

The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of the
listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. Tr. 23.

5.

The claimant has the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) and 416.967(b) except she must not work
in environments with concentrated exposure to temperature extremes,
humidity, or other respiratory irritants such as dusts, fumes, gases, odors,
or chemicals. Tr. 23.

6.

The claimant is unable to perform any past relevant work. Tr. 31.

7.

The claimant was born on May 25, 1962 and was 49 years old, which is
defined as a younger individual age 18-49, on the alleged disability onset
date. Tr. 31.

8.

The claimant has at least a high school education and is able to
communicate in English. Tr. 31.

9.

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. Tr. 31.

10.

5

The claimant meets the insured status requirements of the Social Security
Act through June 30, 2015. Tr. 21.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the
national economy that the claimant can perform. Tr. 31.

Arthralgia is defined as pain in a joint. See Dorland’s Illustrated Medical Dictionary, 32nd Edition, 2012, at 150.
17

11.

The claimant has not been under a disability, as defined in the Social
Security Act, from June 30, 2011, through the date of this decision. Tr.
32.

V. Parties’ Arguments
Carter-Perry objects to the ALJ’s decision on two grounds. She argues that the ALJ’s
finding in his Step Two analysis that Carter-Perry does not have a severe mental impairment is
not supported by substantial evidence and that the ALJ failed to follow the treating physician
rule. Doc. 15, pp. 12, 14. In response, the Commissioner submits that the ALJ did not err at
Step Two and that he properly evaluated the medical opinion evidence. Doc. 16, pp. 11-12.
VI. Law & Analysis
A reviewing 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. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
A. The ALJ did not err at Step Two
Carter-Perry argues that the ALJ’s finding that her adjustment disorder was not a severe
impairment is not supported by substantial evidence. Doc. 15, p. 12. According to Carter-Perry,

18

the evidence shows that her mental impairment is severe and has more than a minimal effect on
her ability to perform basic work activities such as maintaining attention and concentration,
persistence and pace to perform even simple tasks and withstanding the stress and pressures
associated with day-to-day work activities. Doc. 15, pp. 13-14. In support of her argument,
Carter-Perry relies on consultative examiner Dr. Korland’s opinion that she has mild restrictions
in her ability to maintain attention, concentration, persistence and pace to perform simple tasks
and withstand the stress and pressures associated with day-to-day work activities in addition to
Carter-Perry’s own reports of depression, grief related-symptoms, and difficulty sleeping. Doc.
15, p. 13.
At Step Two, the Commissioner must consider whether a claimant has a severe
impairment. See 20 C.F.R. §§ 404.1520(a)(4)(ii). A claimant carries the burden of proving the
severity of her impairments. Allen v. Apfel, 3 Fed. App’x 254, 256 (6th Cir. 2001) (citing Higgs
v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988)). Step Two of the sequential evaluation has been
construed as a de minimis hurdle for a claimant to meet. Higgs v. Bowen, 880 F.2d 860, 862 (6th
Cir. 1985). If a “claimant’s degree of [mental] limitation is none or mild, the Commissioner will
generally conclude the impairment is not severe, unless the evidence otherwise indicates that
there is more than a minimal limitation in” a claimant’s “ability to do basic work activities.”
Griffeth v. Comm’s of Soc. Sec., 217 Fed. App’x 425, 428 (6th Cir. 2007) (quoting 20 C.F.R. §
404.1520a(d) (internal quotations omitted)). The purpose of Step Two is to allow the
Commissioner the ability “to screen out ‘totally groundless claims’” from a medical standpoint.
Id. (citing Farris v. Sec’y of HHS, 773 F.2d 85, 89 (6th Cir. 1985). Thus, a claimant’s
impairment will be construed as non-severe only when it is a “slight abnormality which has such
a minimal effect on the individual that it would not be expected to interfere with the individual’s

19

ability to work irrespective of age, education and work experience.” Farris, 773 F.2d at 90
(citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)).
In this case, the ALJ concluded that Carter-Perry’s adjustment disorder did not have more
than a minimal effect on her ability to perform work-related activities. Tr. 22. The ALJ
explained that the record demonstrated that Carter-Perry had little treatment apart from
intermittent medication for her symptoms; that her symptoms were mainly precipitated by her
bereavement with respect to the deaths of her father and her son; and that there was no evidence
to suggest that her symptoms cause limitations in her activities of daily living, social functioning,
or concentration, persistence, and pace. Tr. 23. The ALJ discussed Dr. Misak’s treatment
records, beginning with the Sertraline prescription following the death of Carter-Perry’s father
and that the following month Carter-Perry reported feeling less sad, appeared cheerful, and had
stopped taking the Sertraline. Tr. 22. The ALJ considered Dr. Korland’s consultative
examination and Dr. Korland’s assessment that Carter-Perry was no more than mildly impaired
in her psychological ability to perform work-related tasks, commenting that Dr. Korland based
her opinions mainly on Carter-Perry’s grief issues. Tr. 22. He noted that Dr. Korland assessed a
GAF score of 60 and that the state agency physician found that Carter-Perry’s psychological
symptoms are non-severe. Tr. 22; see Social Security Ruling 96-6p (state reviewing
psychologists are experts in evaluating medical issues pertaining to social security disability).
Accordingly, the ALJ’s finding that Carter-Perry’s adjustment disorder was not severe was
supported by substantial evidence and must be affirmed. See Griffeth, 217 Fed. App’x at 428
(the ALJ will generally conclude that a claimant’s impairment is not severe when there is no
more than a minimal limitation in the claimant’s ability to do basic work activities); Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003) (the Commissioner’s decision is upheld

20

so long as substantial evidence supports the ALJ’s conclusion).
Furthermore, in Step Two, the ALJ concluded that Carter-Perry had the following severe
impairments: chronic obstructive pulmonary disease and arthralgia. Tr. 22. The ALJ continued
on through the sequential steps and considered all alleged impairments. Tr. 22-31. Thus, the
ALJ’s failure to find that Carter-Perry’s adjustment disorder was non-severe is not reversible
error. See Maziarz v. Sec’y of HHS, 837 F.2d 240, 244 (6th Cir. 1987) (when severe
impairments are found at Step Two and the ALJ continues with the sequential steps in the
disability determination and considers all impairments, a failure of the ALJ to find a particular
condition as non-severe is not reversible error); Riepen v. Comm’r of Soc. Sec., 198 Fed. App’x
414, 415 (6th Cir. 1006).
B. The ALJ did not err with respect to the treating physician rule
Carter-Perry argues that the ALJ improperly applied the treating physician rule with
respect to the opinion of Dr. Misak, her family physician. Doc. 15, p. 14. Under the treating
physician rule, “[a]n 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); 20 C.F.R. § 404.1527(c)(2). 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. Wilson, 378 F.3d at 544. In
deciding the weight given, the ALJ must consider factors such as the length, nature, and extent of
the treatment relationship; specialization of the physician; the supportability of the opinion; and

21

the consistency of the opinion with the record as a whole. See 20 C.F.R. § 416.927(a)-(d);
Bowen v. Comm’r of Soc Sec., 478 F.3d 742, 747 (6th Cir. 2007).
Here, the ALJ did not err in assigning weight to Dr. Misak’s opinion. Dr. Misak opined
that Carter-Perry was limited in her ability to sit, stand and walk and that she had postural
limitations because of her osteoarthritis. Tr. 29, 496. Dr. Misak opined that Carter-Perry was
limited in her ability to push or pull because of her asthma. Tr. 29, 497. With respect to Dr.
Misak’s opinion, the ALJ stated,
The opinions of Dr. Misak are given weight only to the extent they find the claimant
capable of performing work-related tasks, however, he overstates the claimant’s
limitations in light of her recent work activity, pulmonary function testing, her stable
asthma/COPD condition, and lack of orthopedic findings to explain her pain complaints.

Tr. 31.
In his decision, the ALJ previously detailed the clinical evidence found in Carter-Perry’s
pulmonary function testing. He noted that Carter-Perry underwent pulmonary function testing in
September 2009 and that the test indicated that she had a moderate obstructive ventilatory
impairment that did not respond significantly to bronchodilator therapy. Tr. 25. He referenced
Carter-Perry’s second pulmonary function test in February 2011 that resulted in a diagnosis of a
mild, fully reversible obstructive ventilator impairment. Tr. 28. The ALJ observed that the
pulmonologist’s impression noted in the second test results found no significant change in
Carter-Perry’s condition since the 2009 test. Tr. 28.
The ALJ observed that, in an exercise oximetry study in October 2011, Carter-Perry was
able to walk 1,274 feet at a normal pace while breathing room air and that her oxygen
desaturation fell from 98% to 95%, which was interpreted to show no worrisome oxygen
desaturation and that supplemental oxygen was not recommended. Tr. 27-28. The ALJ

22

commented that, in an oximetry study performed in February 2011, Carter-Perry was able to
walk 1,300 feet at a normal pace with a consistent 98% oxygen saturation while breathing room
air and participated in a nocturnal pulse oximetry study that showed no episodic desaturations.
Tr. 28.
With respect to Carter-Perry’s back problems, the ALJ referenced a 2007 MRI study that
indicated moderate lumbar facet disease without significant foraminal or canal narrowing. Tr.
27. As the ALJ observed, the record contains no additional objective evidence regarding CarterPerry’s back problems. Tr. 31.
The ALJ also discussed substantial evidence in the record that was inconsistent with Dr.
Misak’s opinion. Specifically, the ALJ pointed out that Dr. Misak and treating pulmonologists
described Carter-Perry’s asthma and COPD symptoms as stable with the use of her medication.
Tr. 25 (referencing Pulmonologist Infield’s statement that Carter-Perry’s asthma is wellcontrolled on medications; Dr. Misak’s statement in September 2009 that her asthma was stable);
Tr. 26 (Dr. Misak’s finding in January 2010 that her asthma and COPD was controlled on
medications; Pulmonologist Khanna’s April 2010 notes that she had been doing fine); Tr. 27
(Pulmonologist Kandasamy’s finding in July 2010 that her condition was well-controlled on
current treatment regime; Pulmonologist Golish observing that Carter-Perry’s recent COPD
exacerbation responded well to treatment); Tr. 28 (Dr. Misak’s January 2011 treatment notes
stating that her asthma symptoms were stable on her medication; Drs. Kandasamy and Misak
recommending in April 2011 that she continue her medications and be re-evaluated in one year);
Tr. 29 (Dr. Misak’s October 2011 and January 2012 treatment notes finding her asthma and
COPD symptoms stable; Pulmonologists Krishnan’s and Kandasamy’s finding in May 2012 that
her asthma and COPD symptoms were stable with no progression; Dr. Misak’s May and August

23

2012 treatment notes observing that her condition remained stable). The ALJ also discussed
Carter-Perry’s reports of back and shoulder pain and that Dr. Misak also found this condition
stable with medication. Tr. 29. The ALJ explained that the evidence suggests that CarterPerry’s symptoms are well-controlled on her current treatment regime and that, if she avoids her
asthma triggers and remains compliant with medications, she can perform light work with no
exposure to respiratory irritants. Tr. 30. Accordingly, the ALJ followed the guidelines and did
not err in giving Dr. Misak’s opinion less than controlling weight. See Wilson, 378 F.3d at 544;
20 C.F.R. § 404.927(c)(2).
In considering the evidence of record, the ALJ referenced numerous treatment notes from
Dr. Misak beginning in September 2009 through August 2012, as described above. Tr. 25-30.
Thus, the ALJ did not “ignore[] the longstanding and consistent treatment that Dr. Misak
provided,” as Carter-Perry alleges. Doc. 15, p. 17. Moreover, the ALJ repeatedly referenced the
copious treatment notes of pulmonologists and identified Dr. Misak as an internist. Tr. 25. See
20 C.F.R. § 416.927(c)(5) (“We generally give more weight to the opinion of a specialist about
medical issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.”).
The ALJ further explained that inconsistencies in the record as a whole undermined
work-related restrictions in addition to those contained in the RFC. Tr. 30. Specifically, the ALJ
cited Carter-Perry’s questionnaire filled out in August 2010 in which she stated that she
experienced shortness of breath 20-22 hours every day despite her medication and that dressing
and getting out of bed caused shortness of breath and pain. Tr. 24. The ALJ referenced CarterPerry’s February 2011 report in which she stated that she cannot walk, sit on the toilet, dress or
put on shoes, feed herself or brush her teeth. Tr. 24. The ALJ noted that Carter-Perry testified at

24

the hearing that she could only walk up six steps without shortness of breath. Tr. 24. Contrary
to these statements, the ALJ observed that treatment notes show that Carter-Perry regularly
denied shortness of breath or chest pain; that treatment notes show that she had good breath
sounds; that her breathing problems were exacerbated by cold weather and that she was able to
control her cold weather symptoms by using a mask when exposed; and that her symptoms were
controlled on medication and by avoiding her asthma triggers. Tr. 25-28, 30. The ALJ noted
that Carter-Perry continued to smoke cigarettes despite stating that she had stopped smoking. Tr.
26-29. The ALJ commented that Dr. Krishnan observed that Carter-Perry remained active in
May 2012 and that she reported to Dr. Korland in December 2010 that, prior to her son’s murder
the previous month, she would perform morning exercises, walk to a nearby recreation center to
walk on the track; and would ride her bicycle in the neighborhood in good weather. Tr. 28. She
reported that she cooked often, had no problems with household chores, hygiene, or shopping
and running errands. Tr. 28. Finally, the ALJ observed that Carter-Perry last worked in June
2011 and that she was performing medium work activity for one year after her initial alleged
onset date on her fourth application for disability benefits and that, following her last day of
work, Carter-Perry filed for and received unemployment benefits which require a recipient to
agree to return to work if it is available. Tr. 30.
In sum, the ALJ described why he did not give controlling weight to Dr. Misak’s opinion
and provided good reasons for the weight he gave to the opinion such that the Court is able to
conduct a meaningful review. See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 377 (6th Cir.
2013) (without good reasons, a court cannot conduct a meaningful review); Wilson, 378 F.3d at
544; 20 C.F.R. § 416.927(c).

25

VII. Conclusion
For the reasons set forth herein, the Commissioner’s decision is AFFIRMED.

Dated: March 5, 2015
Kathleen B. Burke
United States Magistrate Judge

26