Blough v. Commissioner of Social Security Administration
Filing
16
Memorandum Opinion and Order affirming the Commissioner's final decision. Magistrate Judge Nancy A. Vecchiarelli on 9/16/2011. (Related Document 1 Complaint filed by Debra Blough) (G,W)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEBRA A. BLOUGH,
Plaintiff,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
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CASE NO. 5:10-cv-1821
MAGISTRATE JUDGE
VECCHIARELLI
MEMORANDUM OPINION AND
ORDER
Plaintiff, Debra A. Blough (“Plaintiff”), challenges the final decision of Defendant,
Michael J. Astrue, Commissioner of Social Security (“the Commissioner”), denying
Plaintiff’s applications for a Period of Disability (“POD”) and Disability Insurance
Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of
the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“the Act”). This Court
has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
United States Magistrate Judge pursuant to the consent of the parties entered under
the authority of 28 U.S.C. § 636(c)(2). For the reasons set forth below, the
Commissioner’s final decision is AFFIRMED.
I.
PROCEDURAL HISTORY
On December 3, 2007, Plaintiff protectively filed applications for DIB and SSI.
(Tr. 11.) In both applications, Plaintiff alleged a disability onset date of January 1, 2005.
(Tr. 11.) Plaintiff’s applications were denied initially and upon reconsideration, so
Plaintiff requested a hearing before an administrative law judge (“ALJ”). (Tr. 11.)
On October 22, 2009, an ALJ held Plaintiff’s hearing by video conference. (Tr.
11.) Plaintiff appeared at her hearing, was represented by counsel, and testified. (Tr.
11.) A vocational expert (“VE”) also appeared and testified. (Tr. 11.) At the hearing,
and in a Memorandum submitted by Plaintiff dated October 20, 2009, Plaintiff amended
her alleged disability onset date to May 20, 2007, because an ALJ in a prior case
granted an application for benefits on May 19, 2007, resulting in a closed period of
disability. (Tr. 11.)
On November 18, 2009, the ALJ found Plaintiff not disabled as of May 20, 2007.
(Tr. 21.) On June 21, 2010, the appeals council declined to review the ALJ’s decision,
so the ALJ’s decision became the Commissioner’s final decision. (Tr. 1.) On August
18, 2010, Plaintiff timely filed her complaint challenging the Commissioner’s final
decision. (Doc. No. 1.) On December 15, 2010, Plaintiff filed her Brief on the Merits.
(Doc. No. 12.) On January 14, 2011, the Commissioner filed his Brief on the Merits.
(Doc. No. 13.) Plaintiff did not file a Reply Brief.
Plaintiff asserts two assignments of error: (1) the ALJ improperly failed to give
Plaintiff’s treating physician’s opinion controlling weight; and (2) the ALJ improperly
found that Plaintiff’s subjective statements were not credible.
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II.
A.
EVIDENCE
Personal and Vocational Evidence
Plaintiff was 48 years old at the alleged onset date of disability and subsequently
changed age categories to one “closely approaching advanced age.” (Tr. 19.) She has
a least a high school education and is able to communicate in English. (Tr. 19.) She
has past relevant work as a stamping machine feeder and as a cashier. (Tr. 19.)
B.
Medical Evidence
Plaintiff’s assignments of error relate to her low back pain and neck pain;
accordingly, the following review of the medical evidence will be limited to those
impairments.
In 2003, Plaintiff suffered a C6-7 left facet joint fracture and T5 compression
fracture in her neck as the result of a motor vehicle accident. (Tr. 445-47.) Plaintiff had
been presenting to Dr. Douglas M. Ehrler, M.D., at Crystal Clinic for treatment of back
pain (Tr. 445-50), and on October 8, 2003, Dr. Ehrler performed cervical fusion surgery
on Plaintiff’s neck (Tr. 445, 447). On November 21, 2003, Plaintiff was permitted to
return to work with certain restrictions to avoid interfering with her recovery from
surgery. (Tr. 444.) Plaintiff continued to receive intermittent care at Crystal Clinic for
back and neck pain until May 16, 2005. (Tr. 440.)
On February 27, 2007, Plaintiff presented to Dunlap Memorial Hospital for
evaluation of her pain and for medication management. (Tr. 289.) Dr. Daniel E. Lynch,
M.D., attended to Plaintiff and reported the following history of problematic medication
management. (Tr. 289.) On February 18, 2007, Plaintiff tried to have her narcotic pain
medication prescription filled at K-Mart, but the K-Mart pharmacist refused to fill it
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because the prescription was altered. (Tr. 289.) On February 20, 2007, Plaintiff
attempted to have the same prescription filled at Wal-Mart and was refused for the
same reason. (Tr. 289.) Plaintiff told the Wal-Mart pharmacist that a handicapped
person who occasionally visited Plaintiff at Plaintiff’s workplace “probably altered the
script.” (Tr. 289.) On February 22, 2007, Plaintiff tried to have a different prescription
filled at CVS and was rejected because the date on the prescription was altered and
illegible. (Tr. 289.) On February 23, 2007, a man presented to K-Mart to have the
same prescription filled for Plaintiff, and the K-Mart pharmacist rejected the prescription
for the same reason as did the CVS pharmacist. (Tr. 289.) On February 27, 2007,
Plaintiff told a nurse at the Dunlap Memorial Hospital Pain Clinic that she filed a police
report about the altered prescriptions; however, when Clinic staffpersons called the
police department to confirm Plaintiff’s report, they were informed by the police that
there was no record of Plaintiff’s police report. (Tr. 289.)
On November 5, 2007, Plaintiff underwent an x-ray of her back upon complaints
of severe pain at the sacroiliac joints. (Tr. 296.) Dr. Robert Reaven, M.D., reported that
the x-ray showed “[o]nly minimal degenerative changes of the sacroiliac joints” and
“some degenerative changes in the lower lumbar spine.” (Tr. 296.) The next month, on
December 10, 2007, Dr. William H. Fiegenschuh, Jr., M.D., reported that an MRI of
Plaintiff’s lumbar spine revealed “[d]egenerative disc disease with mild concentric disk
bulge and mild neural foraminal narrowing bilaterally” at L4-5, and “[m]ild degenerative
disk disease without significant neural foraminal narrowing or central canal narrowing”
at L5-S1. (Tr. 294.)
Plaintiff continued to present to Dr. Fiegenschuh regularly for pain management
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until March 2009. (Tr. 334-42.) On January 24, 2008, Dr. Fiegenschuh indicated that
Plaintiff reported having increased pain at work; however, Plaintiff reported that she had
been lifting approximately 50 pounds, which Dr. Fiegenschuh indicated was more than
what Plaintiff had been cleared to lift. (Tr. 342.) Dr. Fiegenschuh decided to keep
Plaintiff on Methadone for her pain. (Tr. 342.)
On February 21, 2008, Plaintiff reported that she was “preparing to quit her job
and get a new job without so much back-straining work and stress.” (Tr. 341.) On
March 20, 2008, Dr. Fiegenschuh reported that Plaintiff was “doing well with her pain
management at the present level of Methadone.” (Tr. 340.)
On April 17, 2008, Plaintiff reported to Dr. Fiegenschuh that her back pain
prevented her from doing her spring yard work. (Tr. 339.) Dr. Fiegenschuh indicated
that Plaintiff “needs to have . . . surgery for her back; however, it seems that this may
not be a priority for her.” (Tr. 339.) However, on May 15, 2008, Dr. Fiegenschuh
indicated that Plaintiff “is stable as far as pain is concerned.” (Tr. 338.) Moreover, Dr.
Fiegenschuh indicated that Plaintiff “is somewhat inappropriate in stating that she can
feel the Methadone wear off after 8-9 hours,” and that Plaintiff “still has not filled any
prescriptions for NSAID’s because of ‘cost’.” (Tr. 338.) Dr. Fiegenschuh did not believe
Plaintiff’s explanation that she could not afford her NSAID medication and planned on
obtaining a toxicology screen of Plaintiff at her next appointment. (Tr. 338.)
On June 6, 2008, state consultative examiner Paul Scheatzle, D.O., examined
Plaintiff at the request of the Bureau of Disability Determination. (Tr. 303-09). Dr.
Scheatzle’s physical residual functional capacity (“RFC”) assessment of Plaintiff is as
follows. Plaintiff’s ability to sit was unlimited so long as she could change positions
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every thirty minutes. (Tr. 308.) She could stand frequently so long as she could
change positions every thirty minutes. (Tr. 308.) She could walk one city block before
she needed to rest. (Tr. 308.) She could lift 20 pounds occasionally and 10 pounds
frequently, and carry 20 pounds. (Tr. 308-09.) She could not repetitively bend or twist,
and she could not climb, crawl, or perform overhead work activities. (Tr. 309.) Her
abilities to handle objects, hear, speak, travel, understand, remember, concentrate,
persist, socially interact, and adapt were within normal limits. (Tr. 309.)
On June 12, 2008, Plaintiff presented to Dr. Fiegenschuh for continued follow-up
regarding her pain. (Tr. 337.) Dr. Fiegenschuh reported that Plaintiff “had been stable
in the warmer weather and offers no complaints of increased pain or discomfort.” (Tr.
337.) Plaintiff reported her pain at 3 out of 10 in severity. (Tr. 337.)
On July 12, 2008, Plaintiff reported that she had been working outside a lot and
had increased discomfort as a result. (Tr. 336.) Dr. Fiegenschuh told Plaintiff that her
discomfort was normal for someone with degenerative joint disease and that she should
use either ibuprofen or naprosyn for that type of pain. (Tr. 336.) Dr. Fiegenschuh
concluded that, otherwise, Plaintiff was “doing fairly well.” (Tr. 336.)
On July 28, 2008, state agency reviewing physician Dr. William Bolz, M.D.,
completed a physical RFC assessment of Plaintiff, which is as follows. (Tr. 325-32.)
Plaintiff could occasionally lift and carry 20 pounds and frequently lift and carry 10
pounds. (Tr. 326.) She could sit, stand, and walk for about 6 hours in an 8-hour day
with normal breaks; and her ability to push and pull were not limited except to the extent
that she was limited in lifting and carrying. (Tr. 326.) She could frequently balance and
stoop. (Tr. 327.) She could occasionally climb ramps and stairs, kneel, crouch, and
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crawl. (Tr. 327.) She could never climb ladders, ropes, and scaffolds. (Tr. 327.) She
had a limited ability to handle, but an unlimited ability to reach in all directions, finger,
and feel. (Tr. 328.) She had no visual or communicative limitations (Tr. 328-29), and
she had no environmental limitations except that she should avoid all exposure to
hazards such as machinery and heights (Tr. 329).
In conclusion, Dr. Bolz opined that Plaintiff’s “credibility is minimal” because:
Plaintiff was dismissed from one of her treating sources for altering prescriptions; one
doctor was of the impression that Plaintiff did not appear in as much distress as she
claimed; and her reported symptoms were not supported by physical findings and the
fact that she worked part-time—six hours a day for three days a week—as a home
health aide. (Tr. 330.)
Between August and the end of December 2008, Dr. Fiegenschuh reported that
Plaintiff’s pain remained stable with her medication (Tr. 334-35, 357-59), although on
August 14, 2008, Dr. Fiegenschuh indicated that Plaintiff “needs . . . back surgery
desperately” but was unable to obtain insurance coverage (Tr. 335).
On December 30, 2008, Dr. Fiegenschuh reported that Plaintiff “states that she
re-injured her lower back last week in attempting to get a 300 lb+ patient back in bed.”
(Tr. 356.) Dr. Fiegenschuh continued to report that Plaintiff explained “[s]he had
attempted to push the patient across the mattress and suffered the strain to her lower
back.” (Tr. 356.) Dr. Fiegenschuh noted that Plaintiff “does have a lifting restraint of 25
lbs., this activity exceeding the restriction.” (Tr. 356.) Dr. Fiegenschuh also noted that
Plaintiff “is in need of a spinal fusion by her past history and orthopedic surgeons [sic]
opinion.” (Tr. 356.)
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On January 2, 2009, Dr. Fiegenschuh authored a letter indicating that Plaintiff:
had been under his care for back pain since March 6, 2007; reported she worked only
15 to 20 hours a week; had a weight restriction of lifting no more than 25 pounds; was
presently unable to be fully employed; and was in need of corrective lumbar surgery.
(Tr. 351.)
On January 27, 2009, Dr. Fiegenschuh reported that Plaintiff “has no change in
her pain level.” (Tr. 355.) On February 26, 2009, Dr. Fiegenschuh indicated that
Plaintiff reported her pain had slightly worsened; however, Dr. Fiegenschuh noticed no
significant change in Plaintiff’s demeanor so he decided not to increase Plaintiff’s
medication dosage at that time. (Tr. 354.) Dr. Fiegenschuh also noted that Plaintiff
“needs to get moving to get her MRI done and move on with corrective surgery.” (Tr.
354.) On March 26, 2009, Dr. Fiegenschuh reported that Plaintiff “has no change in her
pain status.” (Tr. 353.)
On May 20, 2009, Plaintiff presented to the emergency room complaining of hip
and leg pain. (Tr. 390.) Plaintiff was diagnosed with a lumbosacral strain and left hip
pain with radicular pain. (Tr. 391.) On May 25, 2009, Plaintiff returned to the
emergency room complaining of ongoing left leg pain and requesting a work excuse
because of the pain. (Tr. 389.) Plaintiff was diagnosed with mechanical back pain and
was discharged. (Tr. 389.)
On August 17, 2009, Plaintiff presented to Dr. Ayman H. Basali, M.D., at the
Pain Management Institute for an evaluation and management of her neck pain that
allegedly radiated to the left upper extremity. (Tr. 383-85.) Dr. Basali reported the
following. Plaintiff arrived with an empty bottle of prescription Methadone and reported
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that she just finished the prescription that day—even though the prescription had been
issued two months before and should have expired one month before. (Tr. 383.) Dr.
Basali did not have Plaintiff’s medical records, and Plaintiff changed her story several
times regarding her medication intake and compliance. (Tr. 383.) Plaintiff reported that
her treating physician, Dr. Fiegenschuh, assaulted her during an examination so she
did not want to see Dr. Fiegenschuh again. (Tr. 383.) Plaintiff persistently asked about
obtaining a Methadone prescription, and Dr. Basali refused to prescribe Plaintiff
Methadone at that time because of the lack of medical records and her changing story
about her history of medication. (Tr. 385.) Plaintiff was not satisfied with her visit with
Dr. Basali, so she reported to the front desk upon leaving Dr. Basali’s office that she
would file a complaint about Dr. Basali with the American Medical Association. (Tr.
385.) Because of Plaintiff’s behavior and lack of medical records, Dr. Basali was
uncomfortable taking over responsibility for Plaintiff’s pain medication and did not
schedule a follow-up appointment with Plaintiff. (Tr. 385.)
On August 19, 2009, Plaintiff presented to her primary care physician, Dr.
Andrew J. Naumoff, M.D., with a complaint of back pain and a request for a prescription
for Methadone. (Tr. 382.) Dr. Naumoff reported that Plaintiff gave a “confusing story”
regarding “trouble” with her pain management doctors, but he agreed to give her no
more than 10 days worth of Methadone. (Tr. 382.)
On September 15, 2009, Plaintiff presented to Dr. Amgad L. Takla, M.D., upon
referral from Dr. Naumoff, for evaluation and treatment of Plaintiff’s back pain. (Tr. 45153.) Dr. Takla diagnosed Plaintiff with cervical spondylosis post fusion surgery, lumbar
spondylosis with degenerative disc disease, and facet osteoarthritis affecting the lower
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lumbar spine. (Tr. 452.) Dr. Takla noted that he had none of Plaintiff’s treatment
records and could not take over her care until he received them. (Tr. 452.)
C.
Hearing Testimony
1.
Plaintiff’s Testimony
Plaintiff testified at her hearing as follows. At the time of the hearing, Plaintiff
worked part-time as a home health aide. (Tr. 33.) She worked about 12 to 15 hours a
week. (Tr. 33.) She drove to clients’ homes, which were approximately a 15 minute
drive from her home, and performed general housework such as making beds,
vacuuming or scrubbing floors, and ensuring that the clients take took their medications.
(Tr. 34.) Plaintiff was not able to perform other housework, and Plaintiff’s clients
allowed her to rest often while working. (Tr. 34.) Plaintiff was not required to lift or
transfer clients (Tr. 34), although in December 2008 Plaintiff “pulled her back” while
working with another home health aide and the other home health aide convinced
Plaintiff to assist moving a 300-pound client into bed. (Tr. 34.)
Plaintiff lives alone and her friends help Plaintiff with chores around the house
and with grocery shopping. (Tr. 43-44.) Plaintiff suffers pain in her lower back and
“tailbone” area, hips, and legs that prevents her from standing for more than 45
minutes. (Tr. 35, 38.) The pain in her back is “very sharp, like stabbing pain.” (Tr. 37.)
She cannot sit without having to stand frequently; she cannot walk more than a half
block; and she can lift only up to 15 pounds. (Tr. 38-39.) Plaintiff also has pain in her
neck and shoulders (Tr. 36), and numbness in her left hand causes her to lose her grip
and diminishes her finger dexterity (Tr. 42).
Plaintiff was discharged from Dr. Lynch’s practice after Plaintiff explained to him
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how she was unable to get her prescription for Tramadol filled because the mentally
disabled child of a wealthy client had visited Plaintiff’s house and scribbled on Plaintiff’s
prescription while sitting at the kitchen table. (Tr. 45.)
2.
The VE’s Testimony
The ALJ posed the following hypothetical question to the VE:
Assume we have an individual with the same age, educational background
and past work experience as the claimant. Further assume the individual
retains the residual functional capacity for work with the following additional
limitations. She would be limited to light work. She would require a sit/stand
option such that she would need to alternate sitting and standing no more
than 30 minutes at a time. She would have no more than occasional
stooping, bending, kneeling. There’d be no crawling, no hazards, no ladders,
no dangerous machinery, and there would be no overhead work. And she
would be limited to simple tasks.
(Tr. 51-52.) The VE testified that such a person could not perform Plaintiff’s past
relevant work, but could perform other work as a laundry worker (for which there were
1,500 jobs in Ohio and 40,00 jobs nationally), inspector (for which there were 1,700 jobs
in Ohio and 200,000 jobs nationally), and parking attendant (for which there were 3,000
jobs in Ohio and 163,000 jobs nationally). (Tr. 52.) The VE based his testimony on the
Dictionary of Occupational Titles (“DOT”) and his personal experience. (Tr. 52-53.)
The ALJ then asked the VE a second hypothetical:
[A]ssume the individual could lift up to 20 pounds occasionally, frequently lift
10 pounds, and she could sit six hours in an eight-hour day, stand and walk
two hours each in an eight-hour day, and the other limitations would remain
the same.
(Tr. 53.) The VE testified that such a person could perform the jobs to which he
testified. (Tr. 53.) The ALJ then asked a third hypothetical: [A]ssume the individual
required frequent and unscheduled rest breaks given those limitations.” (Tr. 53.) The
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VE testified that such a person could not perform any work on a full-time basis. (Tr.
53.)
Plaintiff’s counsel offered a hypothetical person with the same characteristics as
those in the ALJ’s second hypothetical, but with the addition that the hypothetical
person was restricted to “only occasional grasping or gross manipulation on the left
side, so only occasional ability to bilateral handling and grasping.” (Tr. 54.) The VE
testified that such a person would only be able to perform the parking attendant job to
which he previously testified. (Tr. 54.) The VE also testified that such a person could
perform other work as an information clerk in a mall or public building (for which there
were 2,800 jobs in Ohio and 110,000 jobs nationally), surveillance system monitor (for
which the VE did not give any numbers of jobs), and nonapprehending merchant
patroller (i.e., security guard) (for which there were 350 jobs in Ohio and 36,000 jobs
nationally). (Tr. 55.)
III.
STANDARD FOR DISABILITY
A claimant is entitled to receive benefits under the Social Security Act when she
establishes disability within the meaning of the Act. 20 C.F.R. § 416.905; Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524 (6th Cir. 1981). A claimant is considered
disabled when she cannot perform “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.” 20 C.F.R. § 416.905(a). To receive SSI benefits, a recipient
must also meet certain income and resource limitations. 20 C.F.R. §§ 416.1100 and
416.1201.
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The Commissioner reaches a determination as to whether a claimant is disabled
by way of a five-stage process. 20 C.F.R. §§ 404.1520(a)(4) and 416.920(a)(4); Abbott
v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). First, the claimant must demonstrate
that she is not currently engaged in “substantial gainful activity” at the time she seeks
disability benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the claimant
must show that she suffers from a “severe impairment” in order to warrant a finding of
disability. 20 C.F.R. §§ 404.1520(c) and 416.920(c). A “severe impairment” is one that
“significantly limits . . . physical or mental ability to do basic work activities.” Abbot, 905
F.2d at 923. Third, if the claimant is not performing substantial gainful activity, has a
severe impairment that is expected to last for at least twelve months, and the
impairment meets a listed impairment, the claimant is presumed to be disabled
regardless of age, education or work experience. 20 C.F.R. §§ 404.1520(d) and
416.920(d). Fourth, if the claimant’s impairment does not prevent her from doing her
past relevant work, the claimant is not disabled. 20 C.F.R. §§ 404.1520(e)-(f) and
416.920(e)-(f). For the fifth and final step, even if the claimant’s impairment does
prevent her from doing her past relevant work, if other work exists in the national
economy that the claimant can perform, the claimant is not disabled. 20 C.F.R. §§
404.1520(g), 404.1560(c), and 416.920(g).
IV.
SUMMARY OF COMMISSIONER’S DECISION
The ALJ made the following findings of fact and conclusions of law:
1.
The claimant meets the insured status requirements of the Social
Security Act through December 31, 2012.
2.
The claimant has not engaged in substantial gainful activity since May
20, 2007, the alleged onset date.
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3.
The claimant has the following severe impairments: low back pain
(degenerative disc disease), neck pain, and affective disorder.
4.
The claimant does not have an impairment or combination of
impairments that meets or medically equals one of the listed
impairments in 20 CFR Part 404, Subpart P, Appendix 1, specifically
when considering the criteria set forth in sections 1.00 and 12.04 et
seq.
5.
After careful consideration of the entire record, the undersigned finds
that the claimant has the residual functional capacity to perform light
work . . . except that she would need to sit or stand no more than 30
minutes at a time. The claimant could never perform crawling or
engage in overhead work/reaching. She would need to avoid any
exposure to ladders and hazards/dangerous machinery and would be
limited to no more than occasional stooping, bending, and kneeling.
The claimant would be limited to simple tasks.
6.
The claimant is unable to perform any past relevant work.
.....
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 transferrable job skills.
10.
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.
11.
The claimant has not been under a disability, as defined in the Social
Security Act, from May 20, 2007, through the date of this decision.
(Tr. 13-21.)
V.
A.
LAW & ANALYSIS
Standard of Review
Judicial review of the Commissioner’s decision is limited to determining whether
the Commissioner's decision is supported by substantial evidence and was made
pursuant to proper legal standards. Ealy v. Comm’r of Soc. Sec., 594 F.3d 504, 512
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(6th Cir. 2010). Review must be based on the record as a whole. Heston v. Comm'r of
Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may look into any evidence in
the record to determine if the ALJ’s decision is supported by substantial evidence,
regardless of whether it has actually been cited by the ALJ. Id. However, the court
does not review the evidence de novo, make credibility determinations, or weigh the
evidence. Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir.
1989).
The Commissioner's conclusions must be affirmed absent a determination that
the ALJ failed to apply the correct legal standards or made findings of fact unsupported
by substantial evidence in the record. White v. Comm’r of Soc. Sec., 572 F.3d 272, 281
(6th Cir. 2009). 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. Brainard, 889 F.2d at 681. A decision supported by
substantial evidence will not be overturned even though substantial evidence supports
the opposite conclusion. Ealy, 594 F.3d at 512.
B.
The ALJ’s Assessment of Plaintiff’s Treating Physician’s Opinion
Plaintiff’s treating physician, Dr. Fiegenschuh, opined in a January 2, 2009,
letter that Plaintiff was restricted to lifting no more than 25 pounds; that Plaintiff could
not perform full-time work; and that Plaintiff needed corrective lumbar surgery. The ALJ
explained that he did not give significant weight to Dr. Fiegenschuh’s opinion because:
(1) Plaintiff presently worked part-time; (2) Plaintiff’s objective tests were mild; and (3) in
November and December 2008, Dr. Fiegenschuh reported that Plaintiff’s pain was
stable with medications, and that Plaintiff “rarely has breakthrough pain of significance.”
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(Tr. 18.) Plaintiff contends, however, that “the greater weight of the evidence shows
[Plaintiff’s] pain did not resolve, that it continued to limit her functional abilities, that her
doctor continued to recommend surgery, and that rejecting Dr. Fiegenschuh’s opinion
was in error.” (Pl.’s Br. 12.) The Court is not persuaded that the ALJ erred in rejecting
Dr. Fiegenschuh’s opinion.
Although the opinions of treating physicians should be given greater weight than
those of physicians hired by the Commissioner, see Lashley v. Sec’y of Health &
Human Servs., 708 F.2d 1048, 1054 (6th Cir. 1983), such opinions are accorded
deferential weight only when they are supported by sufficient clinical findings and are
consistent with the evidence, Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284,
287 (6th Cir. 1994). Moreover, statements from any medical source that the claimant is
“disabled” or “unable to work” are not medical opinions, but are rather comments on a
determination reserved for the Commissioner and, therefore, are not entitled to
controlling weight or special significance. 20 C.F.R. § 404.1527(e); S.S.R 96-5p, 1996
WL 374183, at *1 (1996); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). If an
ALJ decides to give a treating physician’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. See Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004) (quoting S.S.R. 96-2p, 1996 WL 374188, at *5 (1996)).
Here, the ALJ gave good reasons for rejecting Dr. Fiegenschuh’s opinion. The
ALJ found Dr. Fiegenschuh’s conclusion that Plaintiff could not perform full-time work
inconsistent with other evidence because Plaintiff’s objective tests were mild and Dr.
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Fiegenschuh contemporaneously opined that Plaintiff’s pain was stable. It was not
improper for the ALJ to reject Dr. Fiegenschuh’s opinion that Plaintiff was not able to
perform full-time work because that opinion was not a medical opinion but rather a
determination reserved for the Commissioner. Moreover, the ALJ incorporated Dr.
Fiegenschuh’s lifting restriction into his determination of Plaintiff’s RFC, as the ALJ
determined that Plaintiff could perform light work and light work precludes lifting more
than 20 pounds at a time. 20 C.F.R. § 404.1567(b).
Plaintiff’s contention that the greater weight of the evidence shows that Plaintiff's
pain did not resolve, that Plaintiff’s pain continued to limit her functional abilities, and
that Dr. Fiegenschuh continued to recommend surgery is based on an incorrect legal
standard, as a decision supported by substantial evidence will not be overturned even
though substantial evidence supports the opposite conclusion. Ealy, 594 F.3d at 512.
Plaintiff has not explained how the ALJ’s assessment of Dr. Fiegenschuh’s opinion was
deficient. Accordingly, this assignment of error lacks merit.
C.
The ALJ’s Assessment of Plaintiff’s Credibility
Credibility determinations regarding a claimant’s subjective complaints rest with
the ALJ. See Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir.
1987). The ALJ’s credibility findings are entitled to considerable deference and should
not be discarded lightly. See Villareal v. Sec’y of Health & Human Servs., 818 F.2d
461, 463 (6th Cir. 1987). However, “[i]f an ALJ rejects a claimant's testimony as
incredible, he must clearly state his reasons for doing so.” Felisky v. Bowen, 35 F.3d
1027, 1036 (6th Cir. 1994). The ALJ’s decision must contain specific reasons for his
finding on credibility, supported by the evidence in the case record, and must be
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sufficiently specific to make clear to the claimant and to any subsequent reviewers the
weight he gave to the individual's statements and the reasons for that weight. S.S.R.
96-7p, 1996 WL 374186, at *1 (1996).
Here, the ALJ explained that Plaintiff’s subjective statements regarding the
extent her symptoms limited her were not credible for the following reasons:
The claimant originally denied lifting patients. However, when seen by Dr.
Fiegenschuh on December 30, 2008, the claimant reported that she
reinjured her low back during the previous week attempting to get a 300pound patient back in bed. The claimant has a history of altering a
prescription. She was dismissed by one doctor . . . [and] [h]er statements
concerning her impairments and their impact on her ability to work are not
entirely credible in light of the discrepancies between the claimant’s
assertions and information contained in the documentary reports and the
medical history.
(Tr. 18-19.) Plaintiff contends that it was improper for the ALJ to find that Plaintiff lifted
a 300-pound patient, in contrast to Plaintiff’s testimony that she did not lift patients,
because Plaintiff’s explanation at the hearing clearly established that Plaintiff merely
assisted a co-worker and did not lift the patient herself. The ALJ did not, however, find
that Plaintiff lifted anyone; rather, he found evidence that Plaintiff attempted to place a
300-pound person into bed. Plaintiff testified that her job as a home health aide did not
require the exertional demands of moving people, and this testimony was contradicted
by evidence that she participated in moving a 300-pound person into bed. It was not
unreasonable for the ALJ to conclude that Plaintiff’s subjective statements were less
than credible in light of this inconsistency in the evidence.
Plaintiff also contends that it was improper for the ALJ to rely on Plaintiff’s
alleged alteration of a prescription as a basis to discredit Plaintiff because Plaintiff’s
explanation that a mentally handicapped guest scribbled on the prescription was
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consistent throughout the record. The Court disagrees that Plaintiff’s account of the
allegedly altered prescription was consistent. Plaintiff told the Wal-Mart pharmacist that
a handicapped person who occasionally visited Plaintiff at Plaintiff’s workplace probably
altered the prescription, in contrast to Plaintiff’s more elaborate explanation at her
hearing. Although Plaintiff told a nurse at the Dunlap Memorial Hospital Pain Clinic that
she filed a police report about the altered prescriptions, hospital staffpersons were
informed by the police that there was no record of Plaintiff’s police report. And Plaintiff
was discharged from care by Dr. Lynch after Plaintiff explained to him how her
prescription was altered. Indeed, the record contains several instances where doctors
reported that Plaintiff’s subjective history of her prescription medication changed or was
“confusing.” Again, it was not unreasonable for the ALJ to conclude that Plaintiff’s
subjective statements were less than credible in light of these inconsistencies in the
evidence.
The ALJ’s decision contains specific reasons for his finding on credibility that
were supported by the evidence in the case record and that were sufficiently specific to
make clear the weight he gave to Plaintiff’s statements and the reasons for that weight.
Accordingly, this assignment of error lacks merit.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
s/ Nancy A. Vecchiarelli
U.S. Magistrate Judge
Date: September 16, 2011
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