Stevens v. Commissioner of Social Security Administration
Filing
16
Memorandum Opinion and Order: The Commissioner of the Social Security Administration's decision is affirmed; plaintiff's complaint is dismissed with prejudice (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 4/23/13. (S,AA)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
RAYMOND L. STEVENS, JR.,
Plaintiff,
v.
CAROLYN W. COLVIN1,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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CASE NO. 5:12CV1105
MAGISTRATE JUDGE GEORGE J.
LIMBERT
MEMORANDUM OPINION AND
ORDER
Raymond L. Stevens, Jr. (“Plaintiff”) seeks judicial review of the final decision of Carolyn
W. Colvin (“Defendant”), Acting Commissioner of the Social Security Administration (“SSA”),
denying his application for Disability Insurance Benefits (“DIB”). ECF Dkt. #1. For the following
reasons, the Commissioner’s decision is affirmed and Plaintiff’s complaint is dismissed with
prejudice:
I.
PROCEDURAL AND FACTUAL HISTORY
On May 22, 2008, Plaintiff applied for DIB, alleging disability beginning July 13, 2007. Tr.
at 87-90. Plaintiff’s date last insured is December 31, 2013.2 Tr. at 107. The SSA denied Plaintiff’s
application initially and on reconsideration. Tr. at 68-69. On March 3, 2009, Plaintiff requested
an administrative hearing. Tr. at 80. On July 23, 2010, an ALJ conducted an administrative hearing
via video conference where Plaintiff was represented by counsel. Tr. at 29-67. At the hearing, the
ALJ accepted the testimony of Plaintiff and Mark Anderson, a vocational expert (“VE”). On
September 16, 2010, the ALJ issued a Decision denying benefits. Tr. at 15-32. Plaintiff filed a
1
On February 14, 2013, Carolyn W. Colvin became the acting Commissioner of Social Security,
replacing Michael J. Astrue.
2
The ALJ incorrectly concluded that Plaintiff’s DLI was December 31, 2012. Tr. at 20.
request for review, and, on April 10, 2012, the Appeals Council denied Plaintiff’s request for review.
Tr. at 1-3.
On May 3, 2012, Plaintiff filed the instant suit seeking review of the Decision. ECF Dkt. #1.
On September 28, 2012, Plaintiff filed a brief on the merits. ECF Dkt. #12. On December 12, 2012,
with leave of court, Defendant filed a brief on the merits. ECF Dkt. #14. Plaintiff filed hi reply brief
on December 21, 2012. ECF Dkt. #15.
II.
SUMMARY OF RELEVANT PORTIONS OF THE ALJ’S DECISION
The ALJ determined that Plaintiff suffered from degenerative disc disease and major
depressive disorder, which qualified as medically determinable impairments under 20 C.F.R.
§404.1520(c). Tr. at 16. The ALJ further determined 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. §§404.1520(d), 404.1525 and 404.1526
(“Listings”). Tr. at 16.
The ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform
sedentary work as defined in 20 C.F.R. 404.1567(a), except Plaintiff is limited to lifting and carrying
ten pounds occasionally and five pounds frequently and walking two hours in an eight-hour
workday; Plaintiff requires a sit/stand option; Plaintiff can occasionally climb (but no ladders, ropes,
or scaffolds), and occasionally balance, stoop, kneel, crouch, and crawl; Plaintiff can frequently
reach, handle, finger, and feel; Plaintiff can occasionally reach overhead; Plaintiff is limited to
routine tasks with no fast pace and few changes in procedure; and Plaintiff is limited to superficial
interaction with others. Tr. at 18.
The ALJ ultimately concluded that, although Plaintiff could not perform his past relevant
work as a bricklayer journeyman, there were jobs that existed in significant numbers in the national
economy that Plaintiff can perform, including that of patcher, inspector, and machine tender. Tr.
at 22. As a consequence, the ALJ concluded that Plaintiff had not been under a disability as defined
by the SSA and was not entitled to benefits. Id. at 23.
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III.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to
benefits. These steps are:
1.
An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20 C.F.R.
§§ 404.1520(b) and 416.920(b) (1992));
2.
An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));
3.
If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));
4.
If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
5.
If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. §§
404.1520(f) and 416.920(f) (1992)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon
v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.
STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and
makes a determination of disability. This Court’s review of such a determination is limited in scope
by § 205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). 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).
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The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). An ALJ’s failure to follow
agency rules and regulations “denotes a lack of substantial evidence, even where the conclusion of
the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec.,
581 F.3d 399, 407 (6th Cir.2009) (citations omitted). 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).
V.
ANALYSIS
Plaintiff asserts two arguments in his brief on the merits. First, Plaintiff asserts that the ALJ
lacked substantial evidence to support his conclusion that jobs were available in significant numbers
in the national economy because the VE’s testimony regarding the sit/stand option conflicted with
the Dictionary of Occupational Titles (“DOT”), and the ALJ did not elicit a reasonable explanation
for the conflict before relying on the VE’s testimony. Second, Plaintiff contends that the ALJ erred
in his credibility determination when he failed to properly characterize the evidence in the record
when he rejected Plaintiff’s testimony.
A.
Plaintiff’s testimony at the hearing
Plaintiff, who was forty-four years of age on the date of the hearing and lived with his wife
and two-year-old daughter, testified that he experiences constant back pain since he was injured at
work on July 13, 2007. Tr. at 36. Medication “knocks the edge off” but does not fully resolve his
pain. Tr. at 36, 43. Plaintiff testified that he sits in a recliner with his legs elevated and changes
positions throughout the day. Tr. at 36. Plaintiff can stand for ten to twenty minutes at a time. Tr.
at 37. He can walk for ten to twenty minutes at a time, however he experiences swelling in his
hands and feet. Tr. at 37-38. The amount of time Plaintiff can sit varies upon his position. Tr. at
38.
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Plaintiff perspires when he becomes uncomfortable. Plaintiff testified that he experiences
discomfort from virtually any activity, and that the discomfort increases with increased activity. Tr.
at 39. He experiences a lot of hip pain, and his legs give out “quite a bit.” Tr. at 42. Plaintiff also
experiences weakness and tingling in his hands and feet. Tr. at 41. Plaintiff testified that he can lift
a gallon of milk, but that he has been “dropping stuff quite a bit.” Tr. at 39. Plaintiff is unable to
manipulate small objects and he described the sensation in his hands as having “big thick gloves on.”
Tr. at 41. Plaintiff also experiences daily tremors and shaking when he lies flat. Tr. at 43. He
experiences sharp stabbing pains in the middle part of his back when he reaches overhead.
Plaintiff testified that he is tired all day because he has difficulty sleeping. Tr. at 40. He
testified that he only sleeps for fifteen or twenty minutes at a time. On a good night, Plaintiff sleeps
about two hours. Plaintiff takes approximately three or four “little power naps” a day. Tr. at 40.
Plaintiff described his depression as “an ongoing battle.” Tr. at 43. Plaintiff testified that
he is reduced to tears when he realizes that he has lost control of his body. Tr. at 44. He entertains
suicidal thoughts “[a]ll the time.” Tr. at 44. Plaintiff conceded that he played “Russian Roulette”
in the past because he was devastated and believed that life was not worth living anymore. Plaintiff
also conceded that he was taken to a psychiatric ward after an interview at the Social Security office
where he admitted thoughts of suicide. Tr. at 45. At this point in the hearing, the ALJ
acknowledged that Plaintiff was perspiring profusely and Plaintiff explained that he was in a great
deal of pain. Tr. at 45.
Plaintiff testified that he is “definitely not the person that [he] was.” Tr. at 46. He avoids
contact with people because he is tired of responding to inquiries about his health. He is bothered
when people offer suggestions to improve his capacity to function because he does not think anyone
understands his situation. Tr. at 47.
Plaintiff testified that he has difficulty concentrating. He described himself as having “a real
short attention span,” which never was a problem in the past. Tr. at 47. He also suffers from
frequent headaches, which can last for several days. Tr. at 48-49. He has taken aspirin and Tylenol,
but nothing relieves his pain. Tr. at 49.
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Plaintiff further testified that he has “people following [him] all the time.” Tr. at 48. He
stated, “I can’t even sit outside and watch my daughter play on the playset without people sitting
across the street with cameras and video cameras, video taping my daughter playing and watching
me also. Well, I’m sure they’re there for me. But it’s become very, very aggravating and that makes
me very angry, very angry.” Tr. at 48. Plaintiff’s Worker’s Compensation claim was pending as
of the date of the hearing, and, as a consequence, Plaintiff may have been under surveillance during
the investigation of his claim. Tr. at 51. He testified later in the hearing that he has photographs of
people sitting in front of his residence video taping him. Tr. at 57. The ALJ asked Plaintiff if he had
seen or heard things that were not really there. Tr. at 46. He responded that he had been awakened
by loud noises that his wife did not hear.
As of the date of the hearing, Plaintiff did not perform any housework, with the exception
of preparing cereal and fruit for his daughter for breakfast. Tr. at 53. However, it is important to
note that Plaintiff provided daily care for his daughter for the first ten months of her life until she
became too heavy for him to carry. Tr. at 50.
Plaintiff described his daily activities as follows: His wife and daughter leave the house at
7:30 a.m. and Plaintiff spends the rest of the day in his recliner. He watches television most of the
day, and occasionally checks his home security system, which is downloaded to his computer. Tr.
at 54. He testified that he has caught people at the house that he believed were “trying to break in.”
Tr. At 54. He testified that he “[might] go to the gas station, get [himself] a doughnut from Dunkin’
Donuts.” Tr. at 53. Later in his testimony, he admitted that he goes to the doughnut shop almost
every morning, which is approximately one-sixteenth of a mile from his house. Tr. at 59. Plaintiff
further testified that he visits his mom, who lives five or six minutes away, his dad, who lives ten
minutes away, and his grandmother. Tr. at 55-56. He stated that he always stays “close to home.”
Tr. at 56. He occasionally buys lunch at a local fast food store when he does not feel like cooking.
B.
Plaintiff’s medical records
On July 13, 2007, Plaintiff was injured at work when a 35-pound cinder block fell and struck
him on the shoulder, back, and buttocks area. Tr. at 206-208. Plaintiff was taken to the emergency
room, where an x-ray of the lumbar spine revealed no fracture. The x-ray further revealed normal
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alignment and no evidence of sponsylosis or spondylolisthesis. Plaintiff’s paraspinal soft tissues
were unremarkable. Tr. at 359. According to a Workers Compensation form campleted on July 17,
2007, Plaintiff was diagnosed with a thoracic sprain/strain, and was out of work for ten days, as
directed by an emergency room physician. Tr. at 242. Plaintiff had previously suffered an
on-the-job injury in 1992 when he fell eighteen feet from a scaffold, sustaining a compression
fracture at T12. Tr. at 190, 350. He fell into a dump truck, hitting his left leg on the side of truck
and landing on debris inside it. Tr. at 190. The first accident caused occasional back and knee pain,
as well as difficulty walking. Tr. at 350-51.
Treatment notes from primary care physician, Barbara Lohmeyer, D.O., who examined
Plaintiff ten days after the accident, indicate that he experienced blood in his urine, back and knee
pain, and difficulty taking deep breaths. Tr. at 309. Dr. Lohmyer’s notes indicate that Plaintiff was
“told by ortho that [his] knee is fine.” Id. A chest x-ray taken the same day revealed fibrous
dysplasia and an expansile lesion near the left ribs. Tr. at 347. Peter B. O’Donovan, M.D.
characterized the lesion as having a “lytic” appearance, suggesting a gradual decay process. Tr. at
460.
In the months following Plaintiff’s accident, Dr. Lohmeyer’s treatment notes indicate that
he continued to report back pain and difficulty breathing. Tr. at 302-08. On August 28, 2007, a CT
scan of the chest revealed fibrous dysplasia. Tr. at 346. However, a whole body bone scan
performed on September 11, 2007 showed only mild uptake in the shoulders and SI joint consistent
with ongoing degenerative changes. Tr. at 343. Based on the bone scan , Michael J Smith, M.D.,
cleared Plaintiff for what he characterized as “work hardening,” and Dr. Smith also recommended
more aggressive rehabilitation. Tr. at 296.
An MRI of the thoracic spine conducted on October 17, 2007 revealed anterior wedging of
the T8, T9, T11, and T12 vertebra, all relating to his previous injury. Tr. at 433-34. Varying degrees
of Schmorl’s node formation and disc bulging were also indicated. Tr. at 433-34. However, there
was no evidence of focal disc herniation, central canal stenosis, neural canal stenosis or intrinsic
pathology of the cord. Tr. at 351. An MRI of the lumbar spine conducted on December 24, 2007
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revealed moderate degenerative changes, including disc space narrowing, at the T11-T12 levels. Tr.
at 342.
On January 16, 2008, Mark J. Pellegrino, M.D., diagnosed Plaintiff with posttraumatic
thoracolumbar intervertebral disc disease stemming from his back injury. Tr. at 376-378. In
addition, Dr. Pellegrino opined that the injury aggravated several preexisting back problems,
including thoracic segmental dysfunction, disc disease at T7-T12, and degenerative disc changes at
T11-L1. Tr. at 377. Dr. Pellegrino prescribed Neurontin and concluded that Plaintiff could undergo
treatment, including chiropractic treatment and therapeutic injections, and gradually progress to a
strengthening and conditioning program that would allow him to return to work without restriction.
On April 4, 2008, Plaintiff was evaluated by Alan H. Wilde, M.D. on behalf of Worker’s
Compensation. Tr. at 351-355. Plaintiff complained of thoracic spine pain extending to his low back
on his left side, but was not taking any medication or undergoing any physical therapy or other
treatment at that time. Tr. at 350-51. Upon examination, Dr. Wilde found that Plaintiff walked
without a limp, had no local tenderness or sensory loss or sign of radiculopathy, no upper extremity
muscle weakness and no measurable atrophy of his arms, forearms, calves or thighs, and no motor
deficits in his upper and lower extremities. Tr. at 352.
Dr. Wilde diagnosed Plaintiff with thoracic strain and some limitation of rotation of his
thoracic area, consistent with the diagnosis of thoracic sprain. Tr. at 352. He opined that there was
no objective clinical evidence to support the allowance of Plaintiff’s claim regarding post-traumatic
thoracolumbar intervertebral disc disease, aggravation of pre-existing thoracic segmental
dysfunction and disc disease T7-T12, aggravation of previous T11-L1 disc degenerative changes,
causalgia, regional pain syndrome, and paresthesias. Tr. at 353-354. Noting that Plaintiff had
extensive physical therapy and work hardening, he indicated that no further treatment was necessary.
Tr. at 352.
Plaintiff was referred by his family physician to Anil M. Parikh, M.D. for a psychiatric
evaluation on April 24, 2008. Tr. at 579-80. Plaintiff reported that his back pain and resulting
limitations caused symptoms of depressed mood, insomnia, low energy, irritability, social isolation,
withdrawal, and suicidal ideations. Tr. at 579. Dr. Parikh noted that these symptoms related to his
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work-related injury and to financial stress from being unable to work. Tr. at 579. Dr. Parikh
provided an Axis I diagnosis of major depressive disorder “directly caused by work-related injury”
and at Axis IV indicated moderate psychosocial stressors existed. Tr. at 580. He assigned a Global
Assessment of Functioning (“GAF”) score of 50, treating with psychotherapy and prescribing
Cymbalta. Tr. at 580-82.
On May 22, 2008, Plaintiff was transported to the emergency room after exhibiting
symptoms of depression while at the SSA office. Tr. at 384, 581-82. Attending physician Sharhabeel
M. Jwayyed, M.D. summarized the events leading up to his emergency treatment:
[Plaintiff] was at Social Security Administration when he was telling them that he
was very depressed since he lost his job due to a Worker’s Comp injury and a spinal
cord injury. While at the Social Security office, they felt that he needed to be
transported to the hospital because of his depression. The patient denies any suicidal
ideation or homicidal ideation. He states that is [sic] main problem is just that he is
in chronic pain and he is unable to work, unable to bring in an income. He is not
suicidal, however. He questions what his worth is, but that is part of his depression.
Tr. at 382.
Following treatment at the emergency room’s psychiatric ward, Plaintiff continued
psychotherapy sessions with Dr. Parikh and his colleagues, who noted continued symptoms
including “fears he is having about ‘not being a man’ and not being able to provide as a father.” Tr.
at 582. Individual psychotherapy notes reflect that Plaintiff was usually alert and oriented times
three at his sessions. Tr. at 581-94, 605-07, 621-35, 641-42. Plaintiff noted that he is home all day
with his daughter, Tr. at 581, buys formula and diapers for her, Tr. at 582, and manages his
household. Tr. at 584.
Dr. Parikh consistently reported that Plaintiff exhibited no evidence of psychosis. Tr. at
587-88, 591, 593-94, 606, 621-24, 626, 628-30, 632-34, 641-43, that Plaintiff felt that the counseling
was helping him, and that appropriate treatment had prevented further decompensation and
hospitalization. Tr. at 591, 594, 605-07, 621-22, 624-26, 628-35, 643. Plaintiff’s therapist also
indicated that he reported improvement in his mood and in his ability to decrease negative cognitions
with the help of medication and behavioral and cognitive techniques. Tr. at 593, that he reported
some improvement with treatment in reducing the severity of his symptoms, Tr. at 605, that his
judgment and insight were fair to good, and that his cognition appeared to be intact. Tr. at 606.
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In May of 2008, Dr. Parikh prescribed Seroquel 25 mg. at bedtime.
Tr. at 581.
Approximately one week later, Plaintiff informed Dr. Parikh that he was suffering headaches that
he attributed to Seroqeul, so Dr. Parikh prescribed Zyprexa 2.5 mg. at bedtime. In June of 2008, Dr.
Parikh increased Plaintiff’s dosage of both prescriptions over the course of his treatment. Tr. at 583584. On at least two occasions in 2008, Plaintiff was not compliant with his prescribed medications.
Tr. at 582-583.
Margaret Zerba, Ph.D., performed a consultative psychological evaluation for the SSA on
August 7, 2008. Tr. at 462-68. Dr. Zerba noted that Plaintiff “appeared depressed and angry with
flat affect.” Tr. at 464. She provided an Axis I diagnosis of major depressive disorder with psychotic
features and assigned a GAF score of 40. Tr. at 467. Due to Plaintiff’s problems with depression,
anger, sleeplessness, self-esteem, and frequent suicidal ideation, Dr. Zerba concluded he was
markedly impaired in his ability to relate to others in the work environment. Tr. at 467. Similarly,
she concluded he was markedly impaired in his ability to withstand daily work stress. Tr. at 647.
On September 12, 2008, Joan Williams, Ph. D., reviewed Plaintiff’s case file and completed
a Mental Residual Functional Capacity Assessment and a Psychiatric Review Technique. Tr. At
469-86. Dr. Williams concluded that Plaintiff’s psychological impairments moderately limited his
ability to socially interact with the general public, to accept and respond to supervisors’ criticism,
and to respond appropriately to workplace changes. Tr. at 470. In terms of functional limitations,
Dr. Williams opined that Plaintiff’s ability to perform his daily life activities was mildly limited, and
moderate difficulties existed with respect to social functioning and maintaining concentration,
persistence, or pace. Tr. at 483.
Diane Manos, M.D., a second non-examining physician, completed a Physical Functional
Capacity Assessment on September 16, 2008. Tr. at 487-94. Dr. Manos concluded Plaintiff could
lift and carry ten pounds frequently and twenty pounds occasionally. Tr. at 488. She further opined
that Plaintiff could stand and/or walk for as many as six hours in an eight-hour workday with only
a normal number of breaks necessary; similarly, she concluded that he could sit for six hours in an
eight-hour workday, again with only normal break time. Tr. at 488. According to Dr. Manos,
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Plaintiff could occasionally climb ramps and stairs but could never climb ladders, ropes, or scaffolds
Tr. at 489.
Plaintiff presented to the Ohio Rehab Center for an electrocardiogram and a nerve
conduction study on September 30, 2008. Tr. at 561-63. Arsal Ahmad, M.D., interpreted the results
of these tests and concluded that the results were abnormal, revealing evidence of left-sided median
neuropathy. Tr. at 561. Dr. Ahmad found that Plaintiff’s ability to stoop and crouch were limited.
Tr. at 489.
Plaintiff continued to treat with Dr. Lohmeyer, complaining of persistent back pain despite
losing weight and attempting exercise. Tr. at 617. On May 11, 2009, Rafik M. Khalil, M.D.,
conducted cervical spine and thoracic spine x-rays, the latter of which indicated mild lower thoracic
degenerative disc disease. Tr. at 615-16. Dr. Lohmeyer diagnosed Plaintiff with radiculopathy, and
multiple physical exams indicated a restricted range of motion and decreased muscle strength. Tr.
at 611-613.
On June 2, 2009, a CT scan of the cervical spine was performed, indicating large posterior
spurs with associated central stenosis and bilateral foraminal stenosis at the C6-C7 level. Tr. at 610.
Additionally, right posterior spurs existed which narrowed the right lateral recess and right neural
foramen. Tr. at 610. On July 2, 2009, Plaintiff underwent a battery of tests, including an MRI of
the lumbrosacral spine, an MRI and x-ray of the cervical spine, and x-rays of the thoracic spine. Tr.
at 597-610. The lumbrosacral spine MRI showed mild, chronic anterior wedging of the T12 vertebra.
Tr. at 601-02. The thoracic spine x-rays produced similar findings. Tr. at 599-600. The cervical
spine x-rays revealed degenerative disc space.
On July 28, 2009, Plaintiff saw Dane J. Donich, M.D., who reported that Plaintiff’s pain was
less symptomatic in his low back radiating bilaterally to his hips, gluteal area and proximal lower
extremities. He found that Plaintiff’s motor exam revealed mild weakness diffusely throughout his
upper extremities but that his strength was at least 4/5. He found no clear focal areas of weakness,
a full cervical spine range of motion with some pain, slow and steady gait without assistance, and
mildly impaired fine motor coordination in his hands. Dr. Donich also reported that the remainder
of Plaintiff’s examination was unremarkable. Tr. at 595. He also indicated that Plaintiff would
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likely be seeing Dr. Pellegrino for further conservative treatment, including chiropractic treatment.
Tr. at 595.
C.
The sit/stand option and the DOT
In his first argument, Plaintiff contends that the ALJ erred in adopting the VE’s imposition
of a sit-stand option because the VE, and, as a consequence, the ALJ, did not provide a sufficient
explanation for the alleged conflict between the sit/stand option and the DOT, which does not
include any reference to occupations with a sit/stand option. Plaintiff writes:
The ALJ in this case attempted to elicit such a response, but the VE explained the
discrepancy simply by saying “these are the jobs that we use when someone needs
a sit-stand option.” No professional expertise was provided, and no specific examples
were cited. The explanation itself – which was really an explanation as to why the
VE cited certain DOT occupations, not an explanation of any conflicts therewith –
was ambiguous at best (presumably, the word “we” was referring to the VEs
testifying at the social security hearings.)
Without a conflict explanation from the VE, the ALJ still could have availed himself
to the use of the conflicting VE testimony had he searched for a reasonable
explanation from another evidentiary source in the record. SSR 00-4p at *2-3 (listing
an illustative sampling of evidence that can be used to provide a reasonable
explanation for DOT-VE testimony conflicts). The ALJ, however, relied solely upon
VE testimony to reach his five-step conclusion.
ECF Dkt. #12 at p. 11.
Social Security Ruling 00-4p establishes that before an ALJ may rely on information
provided by a VE, the ALJ must determine whether the VE’s testimony conflicts with information
listed in the DOT, and if so, the ALJ must seek a reasonable explanation for the conflict from the
VE and then explain the resolution of such conflict in his/her written decision. SSR 00-4p. However,
courts throughout this circuit have repeatedly found that while the DOT does not explicitly refer to
the sit/stand option, a vocational expert’s opinion regarding such an option does not contradict the
DOT.
For example, in Jones v. Social Security Administration, the Middle District of Tennessee
reasoned:
[I]t is plainly within the vocational expert’s realm to offer an opinion, based on
personal experience and review of other sources, as to the availability of jobs
identified in the Dictionary of Occupational Titles (“DOT”) and capable of allowing
the option to sit or stand at will, even though the DOT does not itself recognize any
particular job’s amenability to a sit/stand option as such. It has been held that no
conflict between the testimony of the expert and the DOT is created by the mere
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imposition of a sit/stand option, such that would require resolution by the ALJ in
order to pass muster.
No. 3:09–0951, 2011 WL 766974, at *8 (M.D.Tenn. Feb.25, 2011)(internal citations omitted), report
and recommendation adopted sub nom. Jones v. Astrue, No. 3:09–0951, 2011 WL 900032
(M.D.Tenn. Mar.15, 2011). See Bennett v. Astrue, No. 5:07CV38–J, 2008 WL 345523, at *6
(W.D.Ky. Feb.7, 2008)(noting that despite the ALJ’s implication that a sit/stand option was
inconsistent with the DOT, such an accommodation did not actually create a genuine conflict or
inconsistency with the DOT, and that the ALJ’s statement was merely an acknowledgment that the
DOT was silent on the issue). Additionally, the Eastern District of Michigan ruled that a vocational
expert’s testimony identifying jobs amenable to a sit/stand option did not contradict the DOT, but
rather supplemented the information listed in the DOT. Walton v. Comm’r of Soc. Sec., No.
08–13273, 2009 WL 2905952, at *9 (E.D.Mich. Sept.8, 2009). Moreover, at least one court in this
district has adopted the reasoning of Jones, supra, in holding that testimony of a vocational expert
regarding the sit/stand option does not conflict with the DOT. Creque v. Astrue, 2011 WL 4054859
(N.D.Ohio 2011).3 Accordingly, Plaintiff’s first argument has no merit, as the ALJ did not err in
adopting the VE’s testimony regarding the imposition of a sit/stand option.
D.
Plaintiff’s credibility
Next, Plaintiff contends that the ALJ improperly assessed his credibility. Plaintiff writes, “In
the instant case, [Plaintiff] does not allege that the ALJ failed in his obligation to evaluate record
evidence in making a claimant credibility determination. [Plaintiff] alleges instead that the ALJ’s
claimant credibility analysis obfuscates the true nature of the record evidence, attempting to develop
3
Generally, cases finding an inconsistency between the VE’s opinions and the DOT involve situations
where the VE’s testimony directly contradicts information listed in the DOT. See Austin v. Comm’r of Soc.
Sec., No. 3:09–CV–723, 2010 WL 1170630, at *3 (N.D.Ohio Mar.23, 2010) (finding a conflict between the
VE’s testimony and the DOT when the VE identified a job as being “unskilled” whereas the DOT labeled the
position as “semiskilled”); see also Kyle v. Comm’r of Soc. Sec., 609 F.3d 847, n. 9 (6th Cir.2010) (citing
Austin as an example of a case where the VE’s testimony conflicted with the description of a job listed in the
DOT). Conversely, the Sixth Circuit has found that the VE’s testimony is not contradictory to the DOT even
where the VE identifies classifications of jobs which do not specifically appear in the DOT. See Lindsley v.
Comm’r of Soc. Sec., 560 F.3d 601 (6th Cir.2009) (“The fact that [the VE’s] description of a
production-inspector job does not align perfectly with the DOT’s listed occupation titles should not be
surprising given that ‘the DOT contains information about most, but not all, occupations.’”).
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substantial evidence where none exists.” ECF Dkt. #13 at p. 13. In support of this argument,
Plaintiff cites Lawson v. Astrue, 695 F.Supp.2d 729 (S.D. Ohio 2010). In that case, the Court
rejected the ALJ’s conclusion that Plaintiff was capable of full time work because the ALJ relied
upon “somewhat minimal daily functions.” Id. at 737. In actuality, the plaintiff in Lawson testified
that she was able to drive a couple of times per week, that she could perform housework
occasionally, and that she saw her daughter a couple of times a week. However, the ALJ in Lawson
mischaracterized the foregoing testimony, writing that the plaintiff “had been able to do housework,
pursue pasttimes [sic] such as crafts, reading and video games, watch her grandchild, drive, and
shop.” Id.
Plaintiff contends that the ALJ in the above-captioned case similarly mischaracterized the
evidence in the record. Here, the ALJ wrote:
[Plaintiff’s] activities show that he is not as limited as asserted. [Plaintiff] testified
that he goes to the donut shop daily and drives to visit his family. He also stated that
he uses the internet and is able to help get his daughter ready for daycare. [Plaintiff]
was also mentally able to take care of his daughter until she became too heavy for
him to carry her all of the time. He reported in 2008 that he was able to take care of
their seven-month-old daughter most of the day, including changing diapers, feeding
her, and reading to her. (Exhibit 5E). These factors suggest that [Plaintiff] would be
capable of concentration for simple, routine work with superficial interaction as well
as a sedentary job with a sit/stand option. Children generally require physical
activity such as some walking and standing in addition to lifting/carrying, and
[Plaintiff] primarily noted the lifting as the reason for not being able to take care of
his daughter.
Tr. at 20.
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
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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, as Plaintiff appears to concede here, 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 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 as to pain should accord great deference to that determination. See Casey
v. Secretary of Health and Human Services, 987 F.2d 1230, 1234 (6th Cir.1993). Nevertheless, an
ALJ’s assessment of a claimant’s credibility as to pain must be supported by substantial evidence.
Walters v. Commissioner of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997).
Contrary to Plaintiff’s assertion, the ALJ did not improperly characterize the evidence in the
record. Plaintiff testified that he took daily trips to the doughnut shop and frequently visited his
relatives. Moreover, Plaintiff testified that he provided day care for his infant daughter for the first
ten months of her life. Based upon the foregoing evidence, the ALJ rejected Plaintiff’s testimony
regarding the limitations he suffers as a result of his pain.
Furthermore, Plaintiff’s reliance on Lawson is misplaced. The plaintiff in Lawson suffered
from fibromyalgia. The testimony of a claimant with fibromyaglia must be given special
consideration due to the fact that there is no objective criteria for the diagnosis of fibromyalgia. See
Preston v. Sec’y of Health & Human Servs., 854 F.2d 815, 818 (6th Cir.1988). The ALJ in Lawson
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discredited the plaintiff’s testimony based upon a lack of objective evidence. Lawson at 737. The
same is not true in this case. Here, the objective medical evidence establishes only minimal
impairment. Accordingly, the ALJ did not err in assessing Plaintiff’s credibility.
VI.
CONCLUSION
For the foregoing reasons, the Commissioner’s decision is AFFIRMED and Plaintiff’s
complaint is DISMISSED with prejudice.
DATE: April 23, 2013
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE
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