Brescol v. Commissioner of Social Security
Filing
27
Memorandum Opinion and Order that the Court affirms the decision of the Commissioner denying Brescol's applications for disability insurance benefits and supplemental security income (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 10/31/2014. (S,G)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
PATRICIA S. BRESCOL,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 3:13 CV 2167
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
A.
Nature of the case and proceedings
Before me1 is an action by Patricia S. Brescol under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
1
ECF # 15. The parties have consented to my exercise of jurisdiction.
2
ECF # 1.
3
ECF # 13.
4
ECF # 14.
5
ECF # 6.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10
B.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Brescol, who was 51 years old at the time of the hearing,11 has a high school
education12 and has past relevant work experience as a motor vehicle assembler and laborer.13
She has lived independently in an apartment, and the ALJ found that she is able to care for
herself, use public transportation, and visit with grandchildren.14
The ALJ, whose decision became the final decision of the Commissioner, further
found that Brescol had the following severe impairments: coronary artery disease, status-post
coronary artery bypass surgery; hypertension; diabetes mellitus; bilateral carpal tunnel
syndrome; degenerative joint disease of the left knee; and diabetic neuropathy.15
6
ECF # 16.
7
ECF # 22 (Brescol’s brief); ECF # 23 (Commissioner’s brief).
8
ECF # 22-2 (Brescol’s charts); ECF # 23-1 (Commissioner’s charts).
9
ECF # 22-1 (Brescol’s fact sheet).
10
ECF # 26.
11
Transcript (“Tr.”) at 23, 25.
12
Id. at 23, 41
13
Id. at 23.
14
Id. at 18.
15
Id. at 15.
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After concluding that the relevant impairments did not meet or equal a listing,
including Listing 12.00C for mental impairments, the ALJ made the following finding
regarding Brescol’s residual functional capacity (“RFC”):
After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except the claimant: is limited to only occasional
climbing of ramps and stairs; no climbing of ladders, ropes or scaffolding; only
occasional fingering and feeling; and she needs to avoid even moderate
exposure to vibration and concentrated exposure to hazards.16
The ALJ decided that this RFC precluded Brescol from performing her past relevant work.17
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Brescol could
perform.18 The ALJ, therefore, found Brescol not under a disability.19
C.
Issues on judicial review and decision
Brescol asks for reversal of the Commissioner’s decision on the ground that it does
not have the support of substantial evidence in the administrative record. Specifically,
Brescol presents the following issues for judicial review:
16
Id. at 20.
17
Id. at 23.
18
Id. at 24.
19
Id.
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•
At step two the ALJ found that Brescol had no severe mental
impairments. At step four the ALJ included no mental limitations in the
RFC finding. Does substantial evidence support the ALJ’s decision to
exclude mental impairments and limitations from his findings?
•
The ALJ’s RFC finding contains a limitation to “only occasional
fingering and feeling.” In making that finding, the ALJ discounted
Brescol’s statements about the intensity, persistence, and limiting
effects of pain caused by the severe impairment of carpal tunnel
syndrome. Did the ALJ properly analyze Brescol’s complaints of pain
in determining her RFC?20
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.
Analysis
A.
Standards of review
1.
Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable
to decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
20
See, ECF # 22 at 1. Counsel agreed at the oral argument that these are the issues to
be decided in this case.
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The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.21
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable minds
could reach different conclusions on the evidence. If such is the case, the Commissioner
survives “a directed verdict” and wins.22 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.23
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
2.
Credibility
Under the analytical scheme created by the Social Security regulations for determining
disability, objective medical evidence constitutes the best evidence for gauging a claimant’s
residual functional capacity and the work-related limitations dictated thereby.24
The Social Security Administration has recognized by policy interpretation ruling and
regulation that, even in the absence of such objective medical evidence, a claimant may
21
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
22
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06cv403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
23
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
24
Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986, 988-89 (N.D. Ohio 2003).
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experience pain severe enough to impose limitations on the capacity for work.25 In such
cases, the ALJ must evaluate the credibility of the claimant’s allegations of pain and
pain-induced limitations.26
The ALJ’s findings as to credibility are entitled to deference because he has the
opportunity to observe the claimant and assess his subjective complaints.27 A court may not
disturb the ALJ’s credibility determination absent compelling reason.28
The regulations set forth factors that the ALJ should consider in assessing credibility.
These include the claimant’s daily activities; the location, duration, frequency, and intensity
of the pain; precipitating and aggravating factors; the type, dosage, effectiveness, and side
effects of medication; and treatment or measures, other than medication, taken to relieve
pain.29 If the ALJ rejects the claimant’s complaints as incredible, he must clearly state his
reasons for doing so.30
As a practical matter, in the assessment of credibility, the weight of the objective
medical evidence remains an important consideration. The regulation expressly provides that
25
Id. at 989, quoting Soc. Sec. Ruling (SSR) 96-7p, Evaluation of Symptoms in
Disability Claims: Assessing the Credibility of an Individual’s Statements, 61 Fed. Reg.
34483, 34484 (July 2, 1996), and 20 C.F.R. § 416.929(c)(2).
26
Id.
27
Buxton, 246 F.3d at 773.
28
Smith v. Halter, 307 F.3d 377, 379 (6th Cir. 2001).
29
20 C.F.R. §§ 404.1529(c)(3)(i)-(vii).
30
Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994).
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“other evidence” of symptoms causing work-related limitations can be considered if
“consistent with the objective medical evidence.”31 Where the objective medical evidence
does not support a finding of disability, at least an informal presumption of “no disability”
arises that must be overcome by such other evidence as the claimant might offer to support
his claim.
The specific factors identified by the regulation as relevant to evaluating subjective
complaints of pain are intended to uncover a degree of severity of the underlying impairment
not susceptible to proof by objective medical evidence. When a claimant presents credible
evidence of these factors, such proof may justify the imposition of work-related limitations
beyond those dictated by the objective medical evidence. The discretion afforded by the
courts to the ALJ’s evaluation of such evidence is extremely broad.
Unlike the requirement that the ALJ state good cause for discounting the opinion of
a treating source, the regulation on evaluating a claimant’s subjective complaints contains
no express articulation requirement. The obligation that the ALJ state reasons for rejecting
a claimant’s complaints as less than credible appears to have its origin in case law.32 The
Social Security Administration has recognized the need for articulation of reasons for
discounting a claimant’s credibility in a policy interpretation ruling.
31
20 C.F.R. § 404.1529(c)(3).
32
Felisky, 35 F.3d at 1036; Auer v. Sec. of Health & Human Servs., 830 F.2d 594, 595
(6th Cir. 1987).
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It is not sufficient for the adjudicator to make a single, conclusory statement
that “the individual’s allegations have been considered” or that “the allegations
are (or are not) credible.” It is also not enough for the adjudicator simply to
recite the factors that are described in the regulations for evaluating symptoms.
The determination or decision must contain specific reasons for the finding on
credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent
reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.33
B.
Application of standards
As to the initial issue of Brescol’s mental condition, and the finding that she has no
severe impairments in this regard, I note that the ALJ relies on several opinions for this
determination. First, there is the opinion of David Biscardi, Ph. D., the state agency
reviewing psychologist.34 The ALJ gave “great weight” to Dr. Biscardi’s opinion of March,
2011, that Brescol had mental impairments but that they were not severe.35 In addition, the
ALJ:
•
gave significant weight to the October, 2009, opinion of Christopher
Layne, Ph.D., a consulting examining psychologist, that Brescol did not
have a mental impairment nor was she functionally impaired in six
specific work-related areas;36
•
gave great weight to the March, 2011. opinion of Daniel Watkins,
Ph.D., a consulting examining psychologist, assigned Brescol a GAF
score of 70, and opined that Brescol was not impaired in most areas of
33
SSR 96-7p, 61 Fed. Reg. at 34484.
34
Tr. at 669-79.
35
Id. at 17.
36
Id. at 16.
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work-related functioning, and only mildly impaired in the remaining
areas;37 and
•
gave no specific weight to the results of a June, 2011, evaluation by
Melissa Swanson, Ph.D., a consulting examining psychologist, which
found that although Brescol had a below average IQ and reported
symptoms of depression, her mental impairments were mild and not
disabling.38
Brescol raises two major issues in this regard.
First, she contends that Dr. Swanson identified specific problems with attention and
working memory, and that both Dr. Layne and Dr. Watkins found similar problems in the
same area.39 Thus, she argues, rather than relying on the very specific problems outlined by
all three consulting sources, the ALJ incorrectly relied on the conclusions of Dr. Layne and
Dr. Watkins.40
Further, she contends that any reliance at all on the opinion of Dr. Biscardi, the state
reviewing source, was improper because that opinion was out-of-date.41 In particular, she
alleges, the March, 2011, opinion by Dr. Biscardi did not take into account the June, 2011,
37
Id. at 16-17.
38
Id. at 17.
39
ECF # 22 at 6-7.
40
Id. at 7.
41
Id. at 7-8.
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evaluation by Dr. Swanson that included multiple tests and found Brescol severely impaired
in attention on a performance test.42
As concerns the reliance on Dr. Biscardi’s opinion, I note first that Brescol is correct
in pointing out that an ALJ must at least address the fact that a reviewing source relied on an
incomplete record before assigning greater weight to that opinion than the weight given to
other sources.43 That said, however, any error in this respect was harmless in that the ALJ
also gave great weight to Dr. Watkins’s opinion, and Dr. Watkins actually examined Brescol,
basing his opinion on that examination and not on a records review. Thus, diminishing the
weight given to Dr. Biscardi’s opinion does not prejudice Brescol’s case on the merits by
removing the only opinion evidence supportive of the ALJ’s finding to which the ALJ gave
great weight.44
Of potentially greater importance is the argument that the ALJ improperly relied
on the opinions of Dr. Layne and Dr. Watkins when both of those opinions also found
problems with attention and working memory similar to the problems identified by
Dr. Swanson. But, as the ALJ expressly noted,45 whatever individual details may have been
found by Dr. Watkins in his examination, he clearly stated his conclusion that Brescol’s
42
Id.
43
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 409 (6th Cir. 2009).
44
Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007) (citations
omitted).
45
Tr. at 16.
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ability to sustain attention and concentration “was adequate for purposes of an ordinary
eight-hour day.”46 Moreover, the ALJ also clearly noted that Dr. Layne, as well, specifically
concluded that Brescol was not impaired in the areas of maintaining attention to simple,
repetitive tasks or understanding and following instructions.47 A review of Dr. Layne’s notes
shows that he arrived at the conclusion that Brescol was unimpaired in work-related mental
abilities after he discussed her performance on various cognitive functioning tests that
Dr. Layne characterized as showing either “borderline” attention and memory, or
“moderately impaired attention.”48
In sum, there is no indication that either Dr. Layne or Dr. Watkins was unaware of the
issues now raised by Brescol. However, while both reports gives a clear indication that both
sources knew about the underlying test results, each source evaluated the raw test data as
only reflecting a less than debilitating impairment. Such an interpretation of raw data is
precisely what expert sources are expected to do. Thus, I find no error in the ALJ relying on
46
Id. (referring to Tr. at 661).
47
Id.
48
Id. at 493-94.
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the reports in question, which expressly acknowledge the issues raised by Brescol, but arrive
at a conclusion different than she does as to the severity and impact of those issues.49
Further, to the extent that Brescol now asserts that the ALJ failed to consider whether
a combination of impairments could have been disabling, or simply looked at each
impairment in a vacuum,50 I note that such an argument apparently misses the fact that the
ALJ did expressly make such a finding.51
As to the second issue, Brescol focuses on the recognized severe impairment of
bilateral carpal tunnel syndrome52 and the corresponding RFC limitation of only occasional
fingering and feeling.53 Brescol argues that as she testified at the hearing she experiences
substantial pain in her hands making it difficult to hold or manipulate anything. She argues
that the ALJ did not undertake pain analysis as required by the regulations and, therefore, did
not properly evaluate her pain complaints. In essence, this is a challenge to the ALJ’s
credibility finding.
49
Brescol contends that it was error for the ALJ not to have specifically mentioned
the specific individual tests done by Dr. Layne and Dr. Watkins before crediting their final
opinions. ECF # 24 at 2. In fact, as discussed above, the ALJ’s summary of each report is
sufficiently thorough to show that the ALJ read the reports and so was aware of the
component parts of each examination. Moreover, Brescol has not shown, nor could she show,
that it is mandatory for an ALJ to discuss in detail every individual feature of an examination
before crediting an opinion based on that examination.
50
ECF # 24 at 3.
51
Tr. at 16.
52
Id. at 15.
53
Id. at 20.
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The ALJ discounted Brescol’s complaints for the express reasons that her daily
activities indicate an ability to function beyond the limitations that she reports, that the
medical records show that medications have been relatively effective in controlling her
symptoms, and her “unpersuasive appearance and demeanor while testifying at the
hearing.”54 The ALJ also makes reference to her unwillingness to complete physical therapy
as bringing into question her credibility.55
Brescol argues that these reasons do not sufficiently cover the factors for assessing
credibility and the extent of subjective pain set out in the regulations. Brescol also submits
that failure to complete physical therapy should not be held against her because the record
shows that completing physical therapy would not have given her relief.
The Commissioner places substantial reliance on the initial function report filled out
by Brescol three years before the ALJ’s decision. In that report, Brescol detailed daily
activities that would require use of the hands.56 Brescol relies on the treatment notes of her
treating neurologist, Glenn P. Rothhaas, D.O. Dr. Rothhaas supplied a report in which he
reported mixed findings.57 The record also contains treatment notes from Dr. Rothhaas.58
Dr. Rothhaas did not offer an RFC opinion. The ALJ does discuss Dr. Rothhaas’s treatment
54
Id. at 21.
55
Id. at 23.
56
Id. at 228.
57
Id. at 711-14.
58
Id. at 589-92, 641-55, 711-14.
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and observations in his decision.59 Although the ALJ acknowledges Dr. Rothhaas’s diagnosis
of neuropathy and carpal tunnel syndrome, he concludes that he has accommodated that
impairment by limiting Brescol to occasional fingering and feeling.
Brescol makes the point that occasional fingering and feeling is durational, whereas
her problem is her inability to finger and feel. In other words, she challenges whether the
limitation incorporated in fact addresses the kind of limitations imposed by her carpal tunnel
syndrome.
This is a credibility issue and the ALJ need not necessarily address all of the factors
in the regulations in evaluating credibility. As I have stated in various opinions, including
Cross v. Commissioner of Social Security,60 the ALJ has broad discretion in assessing
credibility, in part because the ALJ has the ability to view the claimant at the hearing. Here
the ALJ makes the specific finding that Brescol presented “an unpersuasive appearance and
demeanor” at the hearing.61 As the case law states, there needs to be a compelling reason to
disturb the ALJ’s credibility opinion. Here Brescol has not presented such a compelling
reason.
59
Id. at 23.
60
Cross v. Comm’r of Soc. Sec., 373 F. Supp. 2d 724 (N.D. Ohio 2005).
61
Tr. at 21.
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Conclusion
For the reasons stated, substantial evidence supports the finding of the Commissioner
that Brescol had no disability. The denial of Brescol’s applications is affirmed.
IT IS SO ORDERED.
Dated: October 31, 2014
s/ William H. Baughman, Jr.
United States Magistrate Judge
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