Carstens v. Commissioner of Social Security

Filing 18

Memorandum Opinion and Order: The decision of the Administrative Law Judge is affirmed; the case is dismissed in its entirety with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 1/29/2019. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
AIMEE JOANNE CARSTENS,

)
)
Plaintiff,
)
)
v.
)
)
)
NANCY A. BERRYHILL1,
ACTING COMMISSIONER OF SOCIAL )
SECURITY ADMINISTRATION,
)
)
Defendant.
)

CASE NO. 1:17CV2685
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION
AND ORDER

Plaintiff Aimee Joanne Carstens (“Plaintiff”) requests judicial review of the decision of
the Commissioner of Social Security Administration (“Defendant”) denying her application for
Supplemental Security Income (“SSI”). ECF Dkt. #1. In her brief on the merits, filed on May
18, 2018, Plaintiff asserts that the administrative law judge (“ALJ”) issued a decision that: (1)
was not supported by substantial evidence; and (2) failed to include all of her functional
limitations in the residual functional capacity (“RFC”) finding. ECF Dkt. #14. Defendant filed a
response brief on July 18, 2018. ECF Dkt. #16. Plaintiff filed a reply brief on August 1, 2018.
ECF Dkt. #17.
For the following reasons, the Court AFFIRMS the decision of the ALJ and dismisses the
instant case in its entirety with prejudice.
I.

FACTUAL AND PROCEDURAL HISTORY
Plaintiff filed an application for SSI alleging a disability onset date of January 2, 2014.

ECF Dkt. #11 (“Tr.”) at 205.2 The application was denied initially and upon reconsideration.
Id. at 135, 143. Plaintiff then requested a hearing before an ALJ, which was held on September

1

On January 23, 2017, Nancy A. Berryhill became the acting Commissioner of Social Security,
replacing Carolyn W. Colvin.
2

All citations to the Transcript refer to the page numbers assigned when the Transcript was filed in
the CM/ECF system rather than the page numbers assigned when the Transcript was compiled. This allows
the Court and the parties to easily reference the Transcript as the page numbers of the .PDF file containing
the Transcript correspond to the page numbers assigned when the Transcript was filed in the CM/ECF system.

15, 2016. Id. at 103. On December 6, 2016, the ALJ issued a decision concluding that Plaintiff
was not disabled. Id. at 85. Subsequently, the Appeals Council denied Plaintiff’s request for
review. Id. at 1. Accordingly, the decision issued by the ALJ on December 6, 2016, stands as
the final decision.
The instant suit was filed by Plaintiff on December 24, 2017. ECF Dkt. #1. Plaintiff
filed a brief on the merits on May 18, 2018. ECF Dkt. #14. Defendant filed a response brief on
July 18, 2018. ECF Dkt. #16. On August 1, 2018, Plaintiff filed a reply brief. ECF Dkt. #17.
II.

RELEVANT PORTIONS OF THE ALJ’S DECISION
On December 6, 2016, the ALJ issued a decision finding that Plaintiff was not disabled.

Tr. at 85. The ALJ stated that Plaintiff had not engaged in substantial gainful activity since
March 13, 2015, the date of application for SSI. Id. at 90. Continuing, the ALJ stated that
Plaintiff had the following severe impairments: fibromyalgia; peripheral neuropathy; obesity;
postural orthostatic tachycardia syndrome; and neuralgia. Id. The ALJ then determined that
Plaintiff did not have an impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix
1. Id. at 92.
After consideration of the record, the ALJ found that Plaintiff had the RFC to perform the
following: occasionally lift and carry ten pounds and frequently lift and carry five pounds; stand
and walk for two hours in an eight-hour workday; sit for six hours in an eight-hour workday;
unlimited pushing and pulling with the same limitations as lifting and carrying; occasionally
climb ramps and stairs; never climb ladders, ropes, or scaffolds; occasionally stoop, kneel,
crouch, and crawl; and require the use of a walker or quad-cane for ambulation. Tr. at 92.
The ALJ then stated that Plaintiff was unable to perform any past relevant work. Id. at
95. Continuing, the ALJ indicated that Plaintiff was a younger individual age eighteen to fortyfour on the date the application was filed, but subsequently changed to a younger individual age
forty-five to forty-nine. Id. at 96. The ALJ noted that Plaintiff had at least a high school
education and was able to communicate in English. Id. Next, the ALJ determined that the
transferability of job skills was not material to the determination of disability because the
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Medical-Vocational Rules supported finding that Plaintiff was not disabled. Id. Considering
Plaintiff’s age, education, work experience, and RFC, that ALJ found that jobs existed in
significant numbers in the national economy that Plaintiff could perform. Id. For these reasons,
the ALJ concluded that Plaintiff had not been under a disability, as defined in the Social Security
Act, since March 13, 2015, the date her application for SSI was filed.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

social security benefits. These steps are:
1.

An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20
C.F.R. §§ 404.1520(b) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found
to be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));

4.

If an individual is capable of performing the kind of work he or she has
done in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance
of the kind of work he or she has done in the past, other factors including
age, education, past work experience and residual functional capacity
must be considered to determine if other work can be performed (20
C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step.
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in
scope by § 205 of the Act, which states that the “findings of the Commissioner of Social Security
as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. §405(g).
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Therefore, this Court’s scope of review is limited to determining whether substantial evidence
supports the findings of the Commissioner and whether the Commissioner applied the correct
legal standards. Abbott v. Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
The substantial-evidence standard requires the Court to affirm the Commissioner’s
findings if they are supported by “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citation omitted). Substantial evidence is defined as
“more than a scintilla of evidence but less than a preponderance.” Rogers v. Comm’r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when substantial evidence supports the ALJ’s
denial of benefits, that finding must be affirmed, even if a preponderance of the evidence exists
in the record upon which the ALJ could have found plaintiff disabled. The substantial evidence
standard creates a “‘zone of choice’ within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir.2001). However, an ALJ’s failure to
follow agency rules and regulations “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v.
Comm’r of Soc. Sec., 581 F.3d 399, 407 (6th Cir.2009) (internal citations omitted).
V.

LAW AND ANALYSIS
A.

Substantial Evidence

Plaintiff first claims that the ALJ’s decision is not supported by substantial evidence
because of the finding that Plaintiff’s statements concerning the intensity, persistence, and
limiting effects of her symptoms were not entirely consistent with the objective evidence and
other evidence of record. ECF Dkt. #14 at 13. Specifically, Plaintiff states that the ALJ applied
the wrong standard for evaluating her fibromyalgia and pudendal neuralgia. Id. at 14.
Continuing, Plaintiff claims that the ALJ never applied Social Security Ruling (“SSR”) 12-2p,
the applicable SSR for fibromyalgia, and instead repeatedly stated that the objective evidence did
not support Plaintiff’s allegations of disability. Id. Plaintiff states, “unlike other medical
conditions, fibromyalgia is not amenable to objective diagnosis and standard critical tests are
‘not highly relevant’ in diagnosing or assessing fibromyalgia or its severity.” Id. (citing Preston
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v. Sec’y of H.H.S., 854 F.2d 815, 820 (6th Cir. 1988); Rogers, 486 F.3d at 243-44). Next,
Plaintiff states that by looking for objective evidence from MRIs or clinical testing, the ALJ
“required more than fibromyalgia was capable of providing.” Id. at 15. Plaintiff claims that
“SSR 12-2p recognizes that symptoms of fibromyalgia cannot always be measured objectively
through clinical or laboratory diagnostic techniques.” Id. Additionally, Plaintiff asserts that the
ambiguity in the ALJ’s decision makes it unclear if her pudendal neuralgia was considered. Id.
at 15.
Defendant contends that substantial evidence supports the ALJ’s evaluation of Plaintiff’s
impairments, subjective symptoms, and alleged limitations. ECF Dkt. #16 at 17. Contrary to
Plaintiff’s position, Defendant states that the ALJ considered SSR 12-2p and acknowledged that
she was diagnosed with fibromyalgia. Id. Defendant then notes that “a diagnosis of
fibromyalgia does not equate to a finding of disability or an entitlement to benefits.” Id. (citing
Stankoski v. Astrue, 532 F. App’x 614 (6th Cir. 2013); Vance v. Comm’r of Soc. Sec., 260 F.
App’x 801, 806 (6th Cir. 2008)). Regarding the ALJ’s RFC finding, Defendant states that the
ALJ considered all of Plaintiff’s allegations of constant severe pain and disabling limitations, but
found that the objective evidence did not support the degree of the alleged limitations. Id. at 18.
Defendant then summarizes the medical evidence cited in the ALJ’s decision. Id. at 19-20.
Insofar as Plaintiff claims the ALJ did not evaluate her pudendal neuralgia, Defendant states that
there was no requirement that the ALJ evaluate each diagnosis as a separate and distinct
impairment in the written decision and that the regulations state that the ALJ should have
considered the combined impact of all of Plaintiff’s impairments. Id. at 20 (citing 20 C.F.R. §
416.923).
Plaintiff’s argument is without merit. Citing SSR 12-2p, Plaintiff claims that the rules
and regulations recognize “that symptoms of fibromyalgia cannot always be measured
objectively through clinical or laboratory findings.” ECF Dkt. #14 at 15. A review of SSR 122p does not fully support Plaintiff’s interpretation. SSR 12-2p reads, in part:

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Introduction
When a person seeks disability benefits due in whole or in part to [fibromyalgia],
we must properly consider the person's symptoms when we decide whether the
person has an [medically determinable impairment] of [fibromyalgia]. As with any
claim for disability benefits, before we find that a person with an [medically
determinable impairment] of [fibromyalgia] is disabled, we must ensure there is
sufficient objective evidence to support a finding that the person's impairment(s)
so limits the person's functional abilities that it precludes him or her from
performing any substantial gainful activity . . .
III.

What documentation do we need?
A.

General.
1. As in all claims for disability benefits, we need objective
medical evidence to establish the presence of an [medically
determinable impairment]. When a person alleges , longitudinal
records reflecting ongoing medical evaluation and treatment from
acceptable medical sources are especially helpful in establishing
both the existence and severity of the impairment. In cases
involving [fibromyalgia], as in any case, we will make every
reasonable effort to obtain all available, relevant evidence to ensure
appropriate and thorough evaluation.

Accordingly, while SSR 12-2p does recognize that fibromyalgia is a complex medical condition,
it specifically states that a claimant must provide objective medical evidence in support of their
allegations of disability due to fibromyalgia.
Plaintiff essentially argues that the ALJ improperly required objective medical evidence
to support her disability claim and instead should have relied on her subjective statements.
While the undersigned understands that fibromyalgia has been recognized as presenting unique
evidentiary difficulties, it remains Plaintiff’s burden to show that she is disabled. Moon, 923
F.2d at 1181. Here, Plaintiff does not cite to any objective medical evidence or opinion evidence
supporting the severity of her alleged limitations. In contrast, the ALJ cited to medical evidence
supporting the conclusion that Plaintiff was not as impaired as alleged.
The ALJ stated that treatment notes from July 2014 show that although Plaintiff reported
“pain all over” her physical examination was essentially normal. Tr. at 93. Continuing, the ALJ
noted that a MRI of Plaintiff’s lumbar spine demonstrated minimal disc bulge at the L4-L5 level
with mild facet arthrosis at the L5-S1 level. Id. The ALJ then indicated that imaging of
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Plaintiff’s cervical spine showed disc bulges at the C5-C6 and C6-C7 levels with no canal
foraminal stenosis. Id. Next, the ALJ states that although straight-leg raises were positive on the
left, Plaintiff’s strength was generally intact. Id. The ALJ also indicated that while Plaintiff
exhibited some mild tenderness of the lumbar spine and painful straight-leg raises on the left, her
strength, sensation, and reflexes were all within normal limits bilaterally. Id. Moreover, the ALJ
stated:
Notably, the record does not contain any opinions from [a] treating or examining
physician indicating that [Plaintiff] is disabled or even has limitations greater than
those determined in this decision. Given [Plaintiff’s] allegations of total disabling
symptoms, one might expect to see some indication in the treatment records of
restrictions place[d] on [Plaintiff] by treating sources. Yet a review of the record
in this case reveals no restriction recommended by the treating providers.
Id. at 94.
Plaintiff cites no objective medical evidence and no opinion evidence in support of her
claims of disability. The ALJ cited objective medical evidence in support of the decision and
noted the lack of any opinion evidence supporting Plaintiff’s allegations of disabling
impairments. Further, although Plaintiff claims that it is unclear whether the ALJ considered her
pudendal neuralgia, the ALJ included pudendal neuralgia when listing the conditions that
Plaintiff originally claimed to be disabling and Defendant correctly states that the ALJ was not
required to address each condition separately. ECF Dkt. #14; Tr. at 93. Accordingly, Plaintiff
has failed to show that the ALJ’s decision is not supported by substantial evidence.
B.

RFC Finding

Next, Plaintiff claims that the ALJ failed to include all of the functional limitations
arising from her severe and non-severe impairments. ECF Dkt. #14 at 17. Plaintiff claims that
the RFC finding did not address her handling and fingering limitations or her incontinence. Id.
at 17-18. Defendant contends that the ALJ properly accounted for Plaintiff’s handling and
fingering limitations by limiting her lifting and carrying. ECF Dkt. #16 at 21. Further,
Defendant states that the ALJ considered Plaintiff’s statement that she needed to use the
restroom four to five times per hour for up to ten minutes each time and found those statements
inconsistent with the record as a whole. Id. at 21-22.

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Plaintiff’s argument fails. Again, Plaintiff does not cite any medical or opinion evidence
supporting her claims regarding her handling and fingering or her incontinence and relies on her
own testimony. ECF Dkt. #14 at 17-18. The ALJ cited medical records showing essentially
normal physical examinations, intact fine motor skills, and normal EMG studies of Plaintiff’s
upper extremities. Tr. at 93-94. As for her incontinence, Plaintiff fails to explain why the ALJ
was required to consider this alleged impairment. Plaintiff cites no medical evidence in support
of the claimed severity of her incontinence and the medical evidence of record does not support
her claim that she needed to use the restroom four to five times per hour. See Tr. at 382-83, 39293, 399, 416, 498, 510, 514, 535, 577, 593, 603, 618, 660. Additionally, as stated above, the
ALJ noted that no treating providers opined that Plaintiff was disabled. Id. at 94. Accordingly,
the ALJ’s RFC finding accounted for Plaintiff’s credible functional limitations and Plaintiff’s
argument is without merit.
VI.

CONCLUSION
For the foregoing reasons, the Court AFFIRMS the decision of the ALJ and dismisses the

instant case in its entirety with prejudice.

Date: January 29, 2019

/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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