Kirkland v. Commissioner of Social Security
Filing
25
Memorandum Opinion and Order: The decision of the Commissioner of the Social Security Administration is affirmed. Signed by Magistrate Judge George J. Limbert on 6/7/12. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KARRIE KIRKLAND,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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CASE NO. 3:10CV2693
MAGISTRATE JUDGE GEORGE J.
LIMBERT
MEMORANDUM OPINION AND
ORDER
Karrie Kirkland (“Plaintiff”) seeks judicial review of the final decision of Michael J. Astrue
(“Defendant”), Commissioner of the Social Security Administration (“SSA”), denying her
application for Disability Income Benefits (“DIB”). ECF Dkt. #1. For the following reasons, the
decision of the Commissioner is affirmed.
I.
PROCEDURAL AND FACTUAL HISTORY
On October 15, 2006, Plaintiff filed an application for DIB1 alleging disability beginning
June 1, 2005. ECF Dkt. #13 at 165-170.2 Plaintiff met the insured status requirements through June
30, 2010. The SSA denied Plaintiff’s application initially and on reconsideration. Id. at. 132-133.
Plaintiff filed a request for an administrative hearing. Id. at 152. On December 5, 2008, an
ALJ conducted an administrative hearing where Plaintiff was represented by counsel. Id. at 82-117.
At the hearing, via video conference, the ALJ accepted the testimony of Plaintiff and Charles H.
1
Plaintiff was awarded DIB benefits commencing on February 10, 2002 but the benefits were
terminated when it appeared that she had the capacity to return to work on April 26, 2005. The pending
application was filed a few weeks after her previous benefits were terminated.
2
Page numbers refer to “Page ID” numbers in the electronic filing system.
McBee, a vocational expert (“VE”). Id. On February 4, 2009, the ALJ issued a Decision denying
benefits. Id. at 69-81. Plaintiff filed a request for review, which the Appeals Council denied. Id. at
62-66.
On November 29, 2010, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. On March 19, 2012, Plaintiff filed a brief on the merits. ECF Dkt. #20. On May 3,
2012, Defendant filed a brief on the merits. ECF Dkt. #21. With leave of Court, Plaintiff filed a
reply brief on May 29, 2012. ECF Dkt. #24.
II.
SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
The ALJ determined that Plaintiff suffered from disorders of the lower extremities, reflex
sympathy dystrophy3, and affective disorders, which qualified as severe impairments under 20
C.F.R. §404.1521 et seq. ECF Dkt. #13 at 74. The ALJ further determined that Plaintiff suffered
from carpal tunnel syndrome and a history of kidney stones, which constituted non-severe
impairments. The ALJ then concluded that Plaintiff did not have an impairment or combination of
impairments that met or medically equaled one of the impairments listed in 20 C.F.R. Part 404,
Subpart P, Appendix 1(20 C.F.R. 404.1525, and 404.1526). Id. at 75.
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform the
sedentary work as defined in 20 C.F.R. 404.1567(a), except she requires a sit/stand option and is
only able to perform work that is simple and does not require more than brief contact with the
public. The ALJ further found that, although Plaintiff was unable to perform past relevant work,
there exist jobs in significant numbers in the national economy that Plaintiff can perform, including
cable worker, food and beverage order clerk, and hand mounter. Id. at 79. Accordingly, the ALJ
determined that Plaintiff had not been under a disability as defined in the SSA and was therefore not
entitled to benefits. Id. at 80.
3
Reflex sympathetic dystrophy syndrome or complex regional pain syndrome (“RSDS”) is a chronic
pain condition that can affect any area of the body, but often affects an arm or a leg.
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III.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
To be eligible for benefits, a claimant must be under a “disability” as defined by the Social
Security Act. 42 U.S.C. §§ 423(a) & (d), 1382c(a).
Narrowed to its statutory meaning, a
“disability” includes physical and/or mental impairments that are both “medically determinable” and
severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in
“substantial gainful activity” that is available in the regional or national economies. Id. The
claimant bears the ultimate burden of establishing that he or she is disabled under the Social Security
Act’s definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir.1997).
Administrative regulations require a five-step sequential evaluation for disability
determinations. 20 C.F.R. §§ 404.1520(a) (4), 416.920(a)(4):
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).
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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). 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 Court cannot reverse the decision of an ALJ, even
if substantial evidence exists in the record that would have supported an opposite conclusion, so long
as substantial evidence supports the ALJ’s conclusion. 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. Richardson v. Perales, 402 U.S. 389, 401 (1971). It is evidence that a reasonable
mind would accept as adequate to support the challenged conclusion. Id.; Walters, 127 F.3d at 532.
Substantiality is based upon the record taken as a whole. Houston v. Sec’y of Health and Human
Servs., 736 F.2d 365 (6th Cir. 1984).
V.
ANALYSIS
Plaintiff argues that the ALJ erred when he characterized her carpal tunnel syndrome as a
non-severe impairment, and when he failed to consider that impairment in formulating her RFC,
which included no limitations in handling, feeling, manipulating, or reaching. Second, Plaintiff
contends that the ALJ failed to properly assess Plaintiff’s credibility with regard to her pain and
limitations from RSDS pursuant to SSR 96-7p. Finally, Plaintiff contends that the ALJ failed to
properly assess her RSDS pursuant to SSR 03-2p.4 Because Plaintiff’s second and third argument
are related, they shall be considered together for ease of analysis.
4
Plaintiff does not challenge the ALJ’s assessment of her mental impairments.
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A brief summary of RSDS, its diagnosis and treatment, is necessary for the purpose of
analyzing Plaintiff’s disability claim. SSR 03-2p reads, in pertinent part:
A diagnosis of RSDS/CRPS requires the presence of complaints of persistent, intense
pain that results in impaired mobility of the affected region. The complaints of pain
are associated with:
• Swelling;
• Autonomic instability—seen as changes in skin color or texture, changes in
sweating (decreased or excessive sweating), skin temperature changes, or abnormal
pilomotor erection (gooseflesh);
• Abnormal hair or nail growth (growth can be either too slow or too fast);
• Osteoporosis; or
• Involuntary movements of the affected region of the initial injury.
Progression of the clinical disorder is marked by worsening of a previously identified
finding, or the manifestation of additional abnormal changes in the skin, nails,
muscles, joints, ligaments, and bones of the affected region. Clinical progression
does not necessarily correlate with specific timeframes. Efficacy of treatment must
be judged on the basis of the treatment’s effect on the pain and whether or not
progressive changes continue in the tissues of the affected region.
Reported pain at the site of the injury may be followed by complaints of muscle pain,
joint stiffness, restricted mobility, or abnormal hair and nail growth in the affected
region. Further, signs of autonomic instability (changes in the color or temperature
of the skin and frequent appearance of goose bumps) may develop in the affected
region. Osteoporosis may be noted by appropriate medically acceptable imaging
techniques. Complaints of pain can further intensify, and can be reported to spread
to involve other extremities. Muscle atrophy and contractures can also develop.
Persistent clinical progression resulting in muscle atrophy and contractures, or
progression of complaints of pain to include other extremities or regions, in spite of
appropriate diagnosis and treatment, hallmark a poor prognosis.
SSR 03-2p at 3-4. The regulation recommends treatment that increases mobility. The use of pain
medication and pain blocks are recommended to both minimize pain and promote the individual’s
ability to tolerate greater mobility in order to facilitate physical therapy. Id. at 3.
At the hearing, Plaintiff testified that she was a nurses’ aide for twenty years. ECF Dkt. #13
at 88. She has a significant history of left lower extremity issues for which she received an award
of disability for approximately three years (February 10, 2002 to April 19, 2005). Id. at 89.
According to information provided during a consultative examination in 2007, Plaintiff underwent
arthroscopic surgery in 2002 on her left knee, and she suffered a broken left ankle that same year
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that required hardware placement. Id. at 331. According to other medical reports, she suffered the
ankle fracture in 2004. Id. at 371. At the hearing, she testified that she had a second arthroscopic
surgery on her left knee in 2004. Id. at 93.
According to Plaintiff’s testimony, she can no longer work because both of her knees swell
and she is in constant pain. Id. at 92. Her pain is eight to nine on a scale of one to ten without
medication, and five to six out of ten with medication. Id. at 102-103. She takes 50 mg. of Vicodin
twice a day. Id. at 103. She can only sit or stand for approximately fifteen to twenty minutes, Id.
at 100, and she falls approximately twice a week because her left knee gives out. Id. at 104.
Plaintiff testified that she is afraid to leave the house for fear of falling. Id. at 97. She cannot
sleep because of the pain, and has difficulty concentrating. Id. at 92, 109. She only sleeps a few
hours per night. Id. at 107. Her daughter, who is a stay-at-home mom and lives with Plaintiff,
performs all of the housekeeping tasks. Id. at 90, 95. Plaintiff ‘just sit[s] around,” she reads and
watched television. Id. at 95. Plaintiff cannot stand in order to wash dishes or to vacuum. Id. She
is able to fold clothes and straighten a little, but she cannot climb stairs. Id. at 96, 101.
Plaintiff attributed her pain to RSDS, which was diagnosed after her previous award of
benefits was terminated. Id. at 102. Plaintiff further testified that she has pain in both hands, which
she attributed to rheumatoid arthritis. Id. at 108. The pain in Plaintiff’s left hand is more
pronounced that the pain in her right hand. Id. She also suffers from bipolar disorder, which she
treats with Zoloft. Id. at 94. Plaintiff testified that she sees her family physician approximately
twice a year. Id. at 94. Although Plaintiff is overweight, she follows no nutrition or exercise
program. At the hearing, she testified that she does not perform any physical therapy since it
aggravates her knees and causes greater swelling and pain. Id. at 101,103.
Medical records establish that Plaintiff sought treatment at the Cleveland Clinic following
her first knee surgery in 2002. Jack T. Andrich, M.D. observed that Plaintiff’s pain was “out of
proportion with the medical findings,” and based upon his concerns that she might be suffering from
RSDS, he recommended evaluation and treatment at the complex patellofemoral pain clinic. Id. at
455 (emphasis added). Despite Dr. Andrich’s recommendation, Plaintiff did not seek treatment at
the pain clinic until 2005, after her second knee surgery.
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In medical notes from Plaintiff’s November 2, 2004 appointment, Leonardo Kapural, M.D.,
Ph.D., observes, “Apparently, [Plaintiff] was told that she may have [RSDS], I do not see any
evidence of [RSDS], no discoloration, allodynia, even hyperalgesia, no temp changes or skin tone.”
Id. at 422. Plaintiff was diagnosed with knee osteoarthritis at that appointment. Id. at 427.
According to Dr. Kapural’s notes, he recommended a therapeutic lumbar sympathetic block and a
follow-up appointment in two or three weeks in order to “finally [rule out RSDS].” Id.
Plaintiff underwent a series of therapeutic lumbar sympathetic blocks from January 24, 2005
to February 24, 2006. Id. at 427. Id. at 377, 384, 396, 402, 405. The medical notes from the pain
blocks establish that Plaintiff experienced pain in the left knee with palpation, and that allodynia
(pain due to a stimulus which does not normally provoke pain) of the right knee5 was diagnosed, but
no effusion or discoloration was noted. Id. at 381-405. Plaintiff experienced good pain control with
the blocks. Id. at 384, 387. Physical therapy was recommended as part of the overall treatment plan
at each visit. Id. at 397, 385, 378. Pain mediation was prescribed, which included Hytrin, Ultram,
and Pregabalin. Id. at 380.
SSR 03-2p reads, in pertinent part, “Patients who are noted to have a good response to local
sympathetic blocks may be considered candidates for surgical sympathectomy.” SSR 02-3p at 3.
Although Plaintiff experienced pain relief with the blocks, there is no indication that Plaintiff’s
physicians at the Cleveland Clinic considered her a candidate for surgery. Furthermore, there is no
record of Plaintiff undergoing any physical therapy, which, as stated earlier, is an essential part of
the treatment for RSDS according to the SSR 03-2p.
Plaintiff underwent three physical examinations between February of 2005 and January of
2007, however the medical notes from those examinations do not support her testimony regarding
debilitating pain in her knees. Steven B. Shine, D.O., the orthopaedist who performed Plaintiff’s
previous knee surgery, examined her on February 6, 2005. Id. at 510-511. Plaintiff reported
5
In her brief, Plaintiff writes that allodynia of the left knee was diagnosed. Allodynia of the right knee
was consistently diagnosed. Id. at 390, 387, 384, and 377. At a December 5, 2005 appointment, allodynia
of the left knee was diagnosed, but the physician noted that there were “no color changes vs right leg.” Id.
at 393.
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“continued catching in the knee” but attributed her ongoing pain in her left leg to her ankle. Dr.
Shine wrote, “Gait is painful due to her left ankle, not her knees.” Id. at 511.
On September 13 ,2006, Plaintiff was evaluated by Joanne Schneider, MSN, CNS, CNP, for
the purpose of addressing ongoing intense pain in her left knee. Id. at 371-373. Nurse Schneider
noted that Plaintiff’s social and recreational activities and her house work was moderately to
severely restricted. Plaintiff reported that she reclined fifteen to eighteen hours a day. However,
her pain disability score was 36/70, suggesting only moderate functional impairment. Plaintiff
conceded that she was able to cook meals. Id. at 372. Although Nurse Schneider recommended
daycare treatment for three weeks at the clinic, Plaintiff declined treatment because she did not want
to be away from home for that length of time, and she did not know if she could afford housing. Id.
at 373.
Issam Al-Turk, M.D performed a consultative examination for the Bureau of Disability
Determination on January 8, 2007. Id. at 328. He noted that her knees revealed no tenderness,
redness, warmth, swelling or laxity, and that the range of motion was normal with pain on the left.
Id. at 330. Her lower extremities showed no clubbing or cyanosis, and there were no varicosities,
calf tenderness, statis dermatitis or dependent edema. Id. Dr. Al-Turk wrote, “Based on the
objective findings [Plaintiff] would have difficulty in performing work related activities that demand
prolonged walking. Sitting, standing, lifting, carrying, handling objects, hearing, speaking, and
traveling are not affected. Id. at 331. In February of 2007, Dimitri Teague, M.D., a state agency
reviewing physician, concluded that Plaintiff was capable of performing light exertional work with
no more than occasional climbing and balancing, and frequent balancing, stooping, kneeling,
crouching, and crawling, and no concentrated exposure to workplace hazards like heights. Id. at
361-366. Dr. Teague relied upon Dr. Al-Turk’s examination findings that Plaintiff had a stable gait
without an ambulatory aid, normal range of motion in her knee, lack of tenderness and swelling, and
a negative straight leg rasing test. Id. at 361.
The foregoing evidence is the only evidence in the record regarding Plaintiff’s knee pain,
with the exception of Plaintiff’s own testimony. Although Plaintiff’s treating physician, Stephanie
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F. Gibson, M.D. treated Plaintiff’s mental impairments, as well as pain in her hands and other
various short-term physical maladies, Dr. Gibson did not treat Plaintiff’s knee pain.
Turning to Plaintiff’s first argument, at step two, a claimant must show that he or she suffers
from a severe medically determinable physical or mental impairment. 20 C.F.R. § 404.1520(a)(4)(ii).
An impairment is not considered severe when it “does not significantly limit [one’s] physical or
mental ability to do basic work activities.” §404.1521(a). The Regulations define basic work
activities as being the “ ‘abilities and aptitudes necessary to do most jobs,’ and include: (1) physical
functions; (2) the capacity to see, hear and speak; (3) ‘[u]nderstanding, carrying out, and
remembering simple instructions;’ (4) ‘[u]se of judgment;’ (5) ‘[r]esponding appropriately to
supervision, co-workers, and usual work situations;’ and (6) ‘[d]ealing with change in a routine work
setting.’” Simpson v. Comm’r Soc. Sec., 344 Fed. Appx. 181, 190 (6th Cir. Aug.27, 2009) (quoting
20 C.F.R. §§ 404.1521(a)-(b) and 416.921(a)-(b)).
At step two, the term “significantly” is liberally construed in favor of the claimant. The
regulations provide that if the claimant’s degree of 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 your ability to do basic work activities.” 20 C.F.R.
§404.1520a(d). The purpose of the second step of the sequential analysis is to enable the
Commissioner to screen out “totally groundless claims.” Farris v. Sec’y of HHS, 773 F.2d 85, 89
(6th Cir.1985). The Sixth Circuit has construed the step two severity regulation as a “ de minimis
hurdle” in the disability determination process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir.1988).
Under a Social Security policy ruling, if an impairment has “more than a minimal effect” on the
claimant’s ability to do basic work activities, the ALJ is required to treat it as “severe.” SSR 96-3p
(July 2, 1996).
Once the ALJ determines that a claimant suffers a severe impairment at step two, the analysis
proceeds to step three; any failure to identify other impairments, or combinations of impairments,
as severe in step two is harmless error. Maziars v. Sec’y of Health & Human Servs., 837 F.2d 240,
244 (6th Cir.1987). However, all of a claimant’s impairments, severe and not severe, must be
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considered at every subsequent step of the sequential evaluation process. See C.F.R. §404.1529(d);
C.F.R. §§ 416.920(d).
Plaintiff contends that she was diagnosed with carpal tunnel syndrome, and although she
agrees with the ALJ’s conclusion that the medical evidence in the record does not support the
conclusion that the condition actually lasted twelve months, she argues that the ALJ must also
consider conditions that can be expected to last twelve months. Plaintiff first reported bilateral hand
numbness at her February 6, 2006 appointment with Dr. Gibson, her treating physician. ECF Dkt.
#13 at 568. She told Dr. Gibson that the pain began three weeks prior to the appointment. Dr.
Gibson diagnosed carpal tunnel syndrome and prescribed wrist splints to be worn in the evening.
Dr. Gibson noted that if the condition did not improve, Plaintiff should consider surgery. Id. at 570.
At her appointment on March 16, 2006, Plaintiff reported that her carpal tunnel syndrome
was worse, and that the wrist splints were not helping. Id. at 580. Dr. Gibson referred Plaintiff for
a nerve conduction study. Id. at 566-567. The study, which was performed on March 31, 2006,
revealed a moderate right median neuropathy at the wrist, but was not suggestive of a left median
neuropathy at the wrist because of an inability to obtain a left DML. Id. at 555.
Plaintiff canceled several appointments during the summer of 2006. Id. at 585-587. Her next
appointment with Dr. Gibson was on October 18, 2006, where she complained about back pain, but
did not mention any pain in her hands. Id. at 559. The next appointment at which Plaintiff
complained about pain in her hands was February 26, 2007, approximately one year after her initial
diagnosis. Id. at 554. At the 2007 appointment, Dr. Gibson diagnosed arthritis, noting that
Plaintiff’s grandmother and sister both suffered from degenerative arthritis. Id. At an appointment
on April 9, 2007, Plaintiff complained of arthralgia and Dr. Gibson tentatively diagnosed rheumatoid
arthritis, but indicated that she was waiting for laboratory results to confirm her diagnosis. Id. at
557. From late 2007 to 2009, Plaintiff saw Dr. Gibson sporadically for GERD, a plantar heel spur,
and a right ear blockage, but she did not report any pain in her hands. Id. at 605-610.
Although Plaintiff experienced pain in her hands in early 2006 and early 2007, the ALJ
correctly concluded that the medical records do not support the conclusion that the pain lasted for
twelve months at any given time. Plaintiff argues that the ALJ was nonetheless required to consider
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her non-severe impairments in formulating her RFC.
However, the ALJ specifically limited
Plaintiff to lifting and carrying less than ten pounds in deference to Plaintiff’s carpal tunnel
syndrome diagnosis. As a consequence, the ALJ considered Plaintiff’s testimony regarding the pain
in her hands and incorporated it in the RFC. Furthermore, Dr. Gibson’s medical records do not
reflect any functional limitations resulting from her carpal tunnel syndrome diagnosis. Accordingly,
the ALJ did not fail to consider Plaintiff’s carpal tunnel syndrome when he did not include any
limitations for handling, feeling, manipulating, or reaching.
Next, Plaintiff contends that the ALJ did not properly evaluate Plaintiff’s complaints of
debilitating pain and that the ALJ failed to properly assess Plaintiff’s RSDS pursuant to the Social
Security Regulations. The social security regulations establish a two-step process for evaluating
pain. See 20 C.F.R. § 416.929. In order for pain or other subjective complaints to be considered
disabling, there must be (1) objective medical evidence of an underlying medical condition, and (2)
objective medical evidence that confirms the severity of the alleged disabling pain arising from that
condition, or objectively, the medical condition is of such severity that it can reasonably be expected
to produce such disabling pain. See id.; Stanley v. Secretary of Health and Human Services, 39 F.3d
115, 117 (6th Cir. 1994); Felisky v. Bowen, 35 F.3d 1027, 1038-1039 (6th Cir. 1994); Duncan v.
Secretary of Health and Human Services, 801 F.2d 847, 853 (6th Cir. 1986). Therefore, the ALJ
must first consider whether an underlying medically determinable physical or mental impairment
exists that could reasonably be expected to produce the individual’s pain or other symptoms. See
id. Secondly, after an underlying physical or mental impairment is found to exist that could
reasonably be expected to produce the claimant’s pain or symptoms, the ALJ then determines the
intensity, persistence, and limiting effects of the claimant’s symptoms to determine the extent to
which the symptoms limit the claimant’s ability to do basic work activities. See id.
When a disability determination that would be fully favorable to the plaintiff cannot be made
solely on the basis of the objective medical evidence, an ALJ must analyze the credibility of the
plaintiff, considering the plaintiff’s statements about pain or other symptoms with the rest of the
relevant evidence in the record and factors outlined in Social Security Ruling 96-7p. See SSR 96-7p,
61 Fed. Reg. 34483, 34484-34485 (1990). These factors include: the claimant’s daily activities; the
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location, duration, frequency and intensity of the pain; precipitating and aggravating factors; the
type, dosage, effectiveness and side effects of any pain medication; any treatment, other than
medication, that the claimant receives or has received to relieve the pain; and the opinions and
statements of the claimant’s doctors. Felisky, 35 F.3d at 1039-40.
Since the ALJ has the opportunity to observe the claimant in person, a court reviewing the
ALJ’s conclusion about the claimant’s credibility should accord great deference to that
determination. See Casey, 987 F.2d at 1234. Nevertheless, an ALJ’s assessment of a claimant’s
credibility must be supported by substantial evidence. Walters v. Commissioner of Soc. Sec., 127
F.3d 525, 531 (6th Cir. 1997). “Discounting credibility to a certain degree is appropriate where an
ALJ finds contradictions among medical reports, claimant’s testimony, and other evidence.” Id.
“However, the ALJ is not free to make credibility determinations based solely upon an ‘intangible
or intuitive notion about an individual’s credibility.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234,
247 (6th Cir.2007), quoting Soc. Sec. Rul. 96–7p, 1996 WL 374186, *4.
The ALJ provided the following assessment of Plaintiff’s testimony regarding her pain:
I find the claimant’s statements concerning her impairments and their impact on the
ability to work are considerably more limited and restricted than is established by the
medical evidence.
The alleged limitations are self-imposed restrictions not
supported in the medical evidence by clinical signs, symptoms, or laboratory
findings, and although the claimant has stated she has numerous restrictions in
activities of daily living and being unable to work due to a myriad of impairments,
no such restrictions have been objectively quantified. . .[T]he totality of her
statements are inconsistent with the objective evidence that does not demonstrate the
existence of limitations of such severity as to preclude the claimant from performing
any work on a regular and continuing basis.
The Regulations provide that an individual’s statement as to pain and other
symptoms shall not alone be conclusive evidence of disability; there must be medical
signs and findings, established by medically acceptable clinical or laboratory
diagnostic techniques, which show the existence of a medical impairment that results
from anatomical, physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms alleged (42 U.S.C.
423(d)(1)). Because the claimant has failed to establish a correlation between her
allegations and the objective medical evidence, I find the claimant not fully credible
(20 C.F.R. 404.1529(c)(3) and Social Security Ruling 96-7p).
ECF Dkt. #13 at 77.
For purposes of Social Security disability evaluation, RSDS can be established in the
presence of persistent complaints of pain that are typically out of proportion to the severity of any
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documented precipitant and one or more of the previously listed clinically documented signs in the
affected region at any time following the documented precipitant. SSR 03-2p at 4. When
longitudinal treatment records document persistent limiting pain in an area where one or more of
these abnormal signs has been documented at some point in time since the date of the precipitating
injury, disability adjudicators can reliably determine that RSDS is present and constitutes a
medically determinable impairment. It may be noted in the treatment records that these signs are
not present continuously, or the signs may be present at one examination and not appear at another.
Transient findings are characteristic of RSDS, and do not affect a finding that a medically
determinable impairment is present. Id. at 4-5.
Plaintiff incorrectly likens RSDS to fibromyalgia arguing that objective medical tests are of
little aid or relevance in determining the severity of RSDS. To the contrary, SSR 03-2p reads, in
pertinent part:
[W]henever the individual’s statements about the intensity, persistence, or
functionally limiting effects of pain or other symptoms are not substantiated by
objective medical evidence, the adjudicator must make a finding on the credibility
of the individual’s statements based on a consideration of the entire case record.
This includes the medical signs and laboratory findings, the individual’s own
statements about the symptoms, any statements and other information provided by
treating or examining physicians or psychologists and other persons about the
symptoms and how they affect the individual, and any other relevant evidence in the
case record. Although symptoms alone cannot be the basis for finding a medically
determinable impairment, once the existence of a medically determinable impairment
has been established, an individual’s symptoms and the effect(s) of those symptoms
on the individual’s ability to function must be considered both in determining
impairment severity and in assessing the individual’s residual functional capacity
(RFC), as appropriate.
SSR 03-2p at 6.
Here, the medical records do not establish that Plaintiff experienced any of the clinically
documented signs listed in SSR 03-2p, that is, autonomic instability (seen in changes in skin color
or texture, changes in sweating or gooseflesh, abnormal hair or nail growth), osteoporosis, or
involuntary movements of the affected region of the initial injury. To the contrary, the medical
records establish an absence of color change and effusion. Moreover, the medical records do not
support the extreme limitations asserted by Plaintiff. No treating or consulting physician observed
that Plaintiff was more than moderately limited by her pain. There is also no evidence that Plaintiff
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attempted any ongoing physical therapy, despite the emphasis placed upon physical therapy in the
Social Security Ruling as a treatment for RSDS. “In the ordinary course, when a claimant alleges
pain so severe as to be disabling, there is a reasonable expectation that a claimant will seek
examination or treatment. A failure to do so may cast doubt on a claimant’s assertions of disabling
pain.” Strong v. Soc. Sec. Admin., 88 F. App’x 841, 846 (6th Cir.2004). Accordingly, the ALJ’s
assessment of Plaintiff’s RSDS and the intensity of the pain associated with the condition was not
in error.
For the foregoing reasons, the decision of the Commissioner is AFFIRMED.
DATE: June 7, 2012
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
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