Hetrick v. Commissioner of Social Security

Filing 24

Memorandum Opinion and Order that the decision of the Commissioner denying Hetrick's application for disability insurance benefits is affirmed (Related Doc # 1 ). Signed by Magistrate Judge William H. Baughman, Jr. on 2/5/2013. (S,G)

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

MARY HETRICK,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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CASE NO. 4:11 CV 2587

MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.

MEMORANDUM OPINION AND
ORDER

Introduction
This is an action for judicial review of the final decision of the Commissioner of
Social Security denying the application of the plaintiff, Mary Hetrick, for disability insurance
benefits. The parties have consented to magistrate judge’s jurisdiction.
The Administrative Law Judge (“ALJ”), whose decision became the final decision of
the Commissioner, found that Hetrick had a severe impairment consisting of reflex
sympathetic dystrophy (“RSD”).1 The ALJ made the following finding regarding Hetrick’s
residual functional capacity:
After careful consideration of the entire record, I find that, through the date
last insured, the claimant had the residual functional capacity to perform light
work as defined in 20 CFR 404.1567(b), with some exceptions. More
specifically, during the relevant time period prior to the claimant’s date last
insured of December 31, 2007, the claimant could: lift, carry, push and/or pull
20 pounds occasionally and 10 pounds frequently; sit, stand and/or walk
6 hours in an 8-hour workday; never climb ladders, ropes, or scaffolds;
1

Transcript (“Tr.”) at 12.

occasionally climb ramps or stairs; occasionally balance, stoop, kneel, crouch
and crawl; and frequently handle and finger objects with her left hand.2
Based on that residual functional capacity, the ALJ found Hetrick capable of her past
relevant work as cashier and food server3 and, therefore, not under a disability.4
Hetrick 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,
Hetrick presents two issues for decision:
•

Did the ALJ properly evaluate and incorporate limitations in the
residual functional capacity finding for Hetrick’s fibromyalgia
impairment?

•

Is the limitation to frequent handling and fingering objects with the left
hand in the residual functional capacity finding supported by substantial
evidence?

The Court concludes that the ALJ’s finding of no disability is supported by substantial
evidence and, therefore, must be affirmed.

Analysis
1.

Standard of review
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable

to decisions of the ALJs in disability cases:

2

Id. at 14.

3

Id. at 17.

4

Id.
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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.’ ”
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.5
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.6 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.7
I will review the findings of the ALJ at issue here consistent with that deferential
standard.

5

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).

6

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).
7

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
-3-

2.

Substantial evidence supports the residual functional capacity finding.
As presented for judicial review, this is primarily a fibromyalgia case. The ALJ did

not find fibromyalgia a severe impairment.8 He did, however, limit her to light work with
additional postural limitations.9
This is a disability insurance benefits application only with an onset date of January 1,
2004,10 and a date last insured of December 31, 2007.11 Hetrick’s fibromyalgia was diagnosed
during this relevant period,12 and she received some treatment for fibromyalgia in that time
frame.13
Hetrick’s treating physician for purposes of fibromyalgia was Anthony Lanier, D.O.
Dr. Lanier, an internist, found multiple tender points in the upper and lower extremities but
did not document the number or location.14 He recommended a consultation with a
rheumatologist, which Hetrick declined.15

8

Tr. at 12.

9

Id. at 14.

10

Id. at 10.

11

Id. at 287.

12

Id.

13

Id. at 287, 317, 318

14

Id. at 287. But see, Tr. at 318 (several locations generally described but number not
documented).
15

Id. at 287.
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In August of 2010, Dr. Lanier prepared a residual functional capacity evaluation.16
Dr. Lanier’s treatment notes showed that he last saw Hetrick in May of 2009.17 Dr. Lanier
opined that Hetrick had a less than sedentary RFC, rarely or never engaged in fine
manipulation, and can only occasionally do gross manipulation.18 He did not indicate which
hand was affected.19 Hetrick is right hand dominant.20
The ALJ recognized Dr. Lanier as a treating source but gave his opinion no weight.21
He gave as his reasons remoteness from the relevant time period and Dr. Lanier’s lack of
speciality regarding fibromyalgia.22
Under the applicable case law set forth in the Rogers v. Commissioner of Social
Security23 and Swain v. Commissioner of Social Security24 cases, because of the nature of
fibromyalgia, a treating physician’s opinion regarding limitations from that impairment must

16

Id. at 396-400.

17

Id. at 314. The last substantive treatment note indicating an examining during an
office visit is dated September 26, 2008. Tr. at 277. That note makes no reference to pain,
tender point analysis, or fibromyalgia.
18

Id. at 396-97.

19

Id. at 397.

20

Id. at 301.

21

Id. at 17.

22

Id.

23

Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007).

24

Swain v. Comm’r of Soc. Sec., 297 F. Supp. 2d 986 (N.D. Ohio 2003).
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be given controlling weight if documented appropriate to the impairment because
fibromyalgia cannot be established through traditional, objective medical techniques.25
Appropriate documentation at its best includes thorough trigger point analysis with notation
of the number and location of tender points performed by a rheumatologist who has a treating
relationship with the patient.26
Dr. Lanier falls short of this standard in several respects. First, he is not a
rheumatologist as noted by the ALJ.27 Second, his trigger point analysis is incomplete for
lack of documentation of location and number of tender points. It cannot, therefore, qualify
for controlling weight.28
As the ALJ properly pointed out,29 this opinion from Dr. Lanier came in 2010, over
one year after his last documented treatment of Hetrick and three and one-half years after the
expiration of the relevant period.30 As such, there is a basis in substantial evidence for the
ALJ’s decision to give no weight to that opinion for the relevant time period.

25

Rogers, 486 F.3d at 244-45; Swain, 297 F. Supp. 2d at 993-94.

26

Id.

27

Tr. at 17.

28

E.g., Dalzell v. Comm’r of Soc. Sec., No. 1:06 CV 577, Memorandum Opinion and
Order (ECF # 25) at 4-7 (N.D. Ohio Jan. 8, 2007).
29

Tr. at 17.

30

Id. at 314, 396-97.
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As the ALJ recognized, Hetrick did have RSD in her left arm that caused impairments.
There is no opinion, however, that this impairment resulted in an occasional limitation in
gross manipulation and fine manipulation in the relevant period. Hetrick’s treating physician
for this impairment during the relevant time period was Mark Peckham, D.O. His treatment
notes show that Hetrick’s RSD was responding to injection and medication treatment,31 that
she denied cervical discomfort and an underlying radicular component to the contralateral
extremity,32 that examination showed good finger-to-finger manual dexterity,33 and an EMG
and nerve conduction study at the time showed normal results.34 This constitutes substantial
evidence in support of a frequent as opposed to occasional limitation.

Conclusion
Substantial evidence supports the finding of the Commissioner that Hetrick had no
disability. Accordingly, the decision of the Commissioner denying Hetrick disability
insurance benefits is affirmed.
IT IS SO ORDERED.

Dated: February 5, 2013

31

Id. at 214.

32

Id. at 222.

33

Id. at 223.

34

s/ William H. Baughman, Jr.
United States Magistrate Judge

Id. at 225.
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