Geraldi v. Commissioner of Social Security Administration
Filing
19
Memorandum Opinion and Order: The decision of the Commissioner is AFFIRMED. Magistrate Judge Kathleen B. Burke on 12/5/2016. (D,I)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
ANGELIA GERALDI,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION,
Defendant.
)
)
)
)
)
)
)
)
)
)
)
CASE NO. 5:16CV823
MAGISTRATE JUDGE
KATHLEEN B. BURKE
MEMORANDUM OPINION & ORDER
Plaintiff Angelia Geraldi (“Geraldi”) seeks judicial review of the final decision of
Defendant Commissioner of Social Security (“Commissioner”) denying her application for
Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). Doc. 1. This
Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned
Magistrate Judge pursuant to the consent of the parties. Doc. 12.
For the reasons stated below, the decision of the Commissioner is AFFIRMED.
I. Procedural History
Geraldi protectively filed an application for DIB and SSI on October 5, 2012, alleging a
disability onset date of October 2, 2012. Tr. 132, 341. She alleged disability based on the
following: herniated disc in lumbar spine, asthma, diabetes, pinched nerve in her back, anxiety
and neuropathy. Tr. 345. After denials by the state agency initially (Tr. 208, 209) and on
reconsideration (Tr. 242, 243), Geraldi requested an administrative hearing. Tr. 278. A hearing
was held before Administrative Law Judge (“ALJ”) Eric Westley on August 26, 2014. Tr. 151179. In his September 5, 2014, decision (Tr. 132-145), the ALJ determined that Geraldi could
1
perform her past relevant work and that there were jobs in the national economy that she could
perform, i.e., she was not disabled. Tr. 144. Geraldi requested review of the ALJ’s decision by
the Appeals Council (Tr. 128) and, on February 8, 2016, the Appeals Council denied review,
making the ALJ’s decision the final decision of the Commissioner. Tr. 1-4.
II. Evidence
A. Personal and Vocational Evidence
Geraldi was born in 1969 and was 43 years old on the date her application was filed. Tr.
341. She completed high school and has a college degree in medical assisting and phlebotomy.
Tr. 158. She last worked in October 2012 as a caregiver in a group home. Tr. 158-159.
Previously she worked as a caregiver for a family friend, a registration clerk, a phlebotomist, a
veterinarian technician and a pharmacy technician. Tr. 161.
B. Relevant Medical Evidence1
Geraldi began seeing Ibrahim Bshara, M.D., for low back pain in July 2006. Tr. 426.
On September 6, 2012, Geraldi had a bone scan after complaining of joint pain. Tr. 428.
The bone scan revealed a mild degenerative change in her right patellofemoral (knee) joint and
was otherwise unremarkable. Tr. 428. On September 20, 2012, she had an MRI of her lumbar
spine after she complained of low back pain radiating into her pelvis, hips and legs and
numbness in her extremities. Tr. 488. The MRI showed a mild degree of spinal stenosis at the
L4-5 level due to a broad-based disc bulge posteriorly, mild hypertrophy of the ligamentum
flavum, and mild facet arthrosis and hypertrophy predominantly on the left side. Tr. 488. X-rays
of Geraldi’s right knee taken the same day showed mild degenerative change. Tr. 491-492.
1
Geraldi did not challenge the ALJ’s findings regarding her mental impairments. Accordingly, only the medical
evidence relating to Geraldi’s challenged physical impairment is summarized and discussed herein.
2
From October 5 to October 9, 2012, Geraldi was admitted to Fairview Hospital after
complaining of severe back pain in her lumbar spine that radiated to her right anterior thigh. Tr.
521. She reported having back pain for the last five years. Tr. 521. She had aggravated her
back at work the previous week while helping to move a heavy patient. Tr. 521. Her pain was
worse with movement and sleeping on her back. Tr. 521. She denied leg weakness or band-like
pain. Tr. 521. Dr. Bshara had given her an increased dose of Vicodin but it had not helped her
pain and he advised she go to the hospital. Tr. 521. Doctors reviewed her September 2012
lumbar MRI and interpreted it as showing a normal lumbar spine with “some minor bulging
disk.” Tr. 520.
A follow-up MRI of her lumbar spine taken on October 6, 2012, revealed degenerative
changes most severe at L4-L5 and L5-S1. Tr. 532. She had bulging discs resulting in mild
central canal narrowing, mild neural foramina narrowing, and facet hypertrophy resulting in
contact with traversing S1 nerve roots. Tr. 532. She was evaluated by Emad Daoud, Ph.D., of
pain management, who found that Geraldi’s current pain was not controlled even with opioid
therapy. Tr. 527. Upon exam, she had normal muscle strength, sensation and reflexes. Tr. 527.
She had “questionable” bilateral straight leg testing. Tr. 527. She was prescribed steroids and
diagnosed with lumbosacral spondylosis without myelopathy, lumbar disc degeneration,
migraine, spinal stenosis, morbid obesity, diabetes, asthma, dysthymic disorder, leukocytosis,
and tobacco use. Tr. 520. She was discharged and scheduled for an epidural injection the next
day. Tr. 520.
On October 10, 2012, Geraldi received an L4-L5 interlaminar epidural steroid injection
from Joseph Abdelmalak, M.D. Tr. 554.
3
On October 13, 2012, Geraldi saw Dr. Bshara for a follow-up. Tr. 436. She complained
of low back pain and muscle aches. Tr. 435. Upon exam, she exhibited no abnormal spinal
curvatures and had intact motor and sensory function, reflexes and gait. Tr. 436. Dr. Bshara
prescribed Percocet on an as-needed basis for her pain. Tr. 436. He explained to Geraldi that
she needed to lose weight or else her pain would get worse. Tr. 436.
Geraldi returned to Dr. Bshara on October 25, 2012. Tr. 459. Her pain was improved
“but not completely the same.” Tr. 459. Upon exam, she was in no apparent distress but
exhibited pain with range of motion of her low back and a slow, shuffling gait. Tr. 430. She was
moderately obese at a weight of 270 pounds. Tr. 430. Dr. Bshara refilled Geraldi’s prescription
of Percocet. Tr. 459. The next day, Dr. Abdelmalak gave her a left L5-S1 and S1
transforaminal epidural steroid injection. Tr. 500.
On February 22, 2013, Geraldi returned to the Fairview Hospital emergency department
complaining of dizzy spells, tremors, and joint pain. Tr. 634. She had pain in her knees,
shoulders, low back and feet; she also stated that she had neuropathy. Tr. 634. She had not been
taking her medications, except for her diabetes medication, because she could not afford it. Tr.
634. She ran out of her Percocet two weeks prior. Tr. 637. Upon examination, she had no
tenderness and she was able to ambulate on her own. Tr. 637. Her medical note reads, “Patient
is insistent that she is unable to walk, however she is able to walk she has walked to the
bathroom and walked down the hall. She does this slowly, but without assistance.” Tr. 637. She
requested narcotic pain medication but medical staff would not prescribe it for a number of
reasons, including because she had already received a prescription for narcotics in the past 30
days. Tr. 638. She declined the staff’s offer of Vicodin. Tr. 638. Dr. Bshara was contacted and
instructed Geraldi to follow up with him. Tr. 638.
4
On April 16, 2013, Geraldi visited the Parma Community General Hospital complaining
of migraines. Tr. 683. She denied pain anywhere else but her head. Tr. 683. She stated that she
had been under a lot of stress lately, including having a very ill family member at Metro
Hospital, and “[s]he is hoping to get something very quickly for her headache so she can go over
to Metro.” Tr. 683. Upon examination, she had full strength in her extremities, intact sensation,
normal reflexes and a normal gait. Tr. 683.
On November 11, 2013, Geraldi went to Parma Community General Hospital after
injuring herself when she was at a restaurant and a chair collapsed under her. Tr. 688. She
described “left-sided buttocks pelvic area pain” made worse when she sat on that area. Tr. 688.
She denied any hip, knee, ankle or foot pain. Tr. 688. Upon examination, she walked with a
mild level of antalgia, had left-sided paraspinous and SI joint tenderness when palpated, had a
limited range of motion in her lumbar spine, intact strength in her extremities, and trace reflexes
at her knees and ankles. Tr. 688.
On May 6, 2013, Geraldi saw Charles Koepke, M.D. Tr. 614. These notes are difficult
to read, but it appears as though Dr. Koepke diagnosed fibromyalgia and anxiety and prescribed
medication. Tr. 614. On June 6, 2013, Geraldi reported that she could barely walk the prior
week. Tr. 613. Dr. Koepke opined that she likely needed chronic pain management, referred her
to “ortho,” and prescribed medication. Tr. 618.
On September 24, 2013, Geraldi complained to Dr. Koepke of difficulty walking and that
her right knee was giving out. Tr. 616. She had multiple tender points and Dr. Koepke remarked
that she had not seen pain management or “ortho” and prescribed medication. Tr. 616. Geraldi
saw Dr. Koepke on November 19, 2013, for a follow-up for back pain after she had had a fall on
November 10, 2013. Tr. 615. X-rays of her lumbar spine showed mild degenerative changes
5
and no fracture or dislocation. Tr. 619. Dr. Koepke remarked that Geraldi had still not seen pain
management or “ortho” yet. Tr. 615. Dr. Koepke diagnosed a strain and contusion and
prescribed medication. Tr. 615.
On May 21, 2014, Geraldi saw Dr. Koepke for a check-up for her back and leg pain. Tr.
625. Upon exam, she had multiple tender points. Tr. 625. Dr. Koepke “again urged [her] to see
chronic pain [management], ortho” and prescribed medication. Tr. 625.
On June 24, 2014, Geraldi began treating at MetroHealth and saw Paula Finton, M.D. Tr.
708. Upon exam, she had normal reflexes, intact sensation in her extremities, no motor deficits
and a normal gait. Tr. 710. She had tenderness to palpation in her lumbar spinal and paraspinal
regions and a reduced range of motion. Tr. 710. She was diagnosed with diabetes, neuropathy,
low back pain, anxiety and depression, asthma, and obesity. Tr. 710-711.
On July 10, 2014, Geraldi saw Yashar Eshraghi, M.D, for pain management upon referral
from Dr. Koepke. Tr. 719. Geraldi reported that she had tried physical therapy and epidurals but
continued to have pain. Tr. 720. Her duration for standing, sitting, and walking was
unremarkable. Tr. 720. Upon exam, she had moderately painful flexion, extension and rotation
of her lumbar spine. Tr. 720. Motor strength, sensation, and reflexes in her extremities were
normal, her fine motor coordination was normal, and her gait was normal. Tr. 723. She was
diagnosed with low back pain, depressive disorder, neuropathy, fibromyalgia and migraines. Tr.
723. Dr. Eshraghi recommended pool therapy, weight control, and an epidural injection. Tr.
724.
On July 25, 2014, Geraldi received a bilateral L5-S1 lumbar transforaminal epidural
steroid injection. Tr. 730.
6
On August 5, 2014, Geraldi returned to pain management complaining of lower back
pain radiating to her right leg that was crampy, sharp, dull, intermittent, and burning. Tr. 737.
She reported that the epidural injection she received on July 25 did not help at all. Tr. 737.
Percocet helped “somewhat.” Tr. 737. Upon exam, Todd Markowski, CNP, found Geraldi to
have tenderness to palpation in her lumbar spine, bilateral SI joints and hips. Tr. 738. She had
normal reflexes and sensation, normal motor strength in her extremities, and she walked with the
assistance of a walker. Tr. 738. Markowski added Mobic to Geraldi’s prescribed pain
medication regimen, refilled her Percocet, and, if the new medication was not effective, planned
to take another MRI and consult a neurosurgeon. Tr. 739.
C. Medical Opinion Evidence
1. Treating physician
On March 9, 2013, Dr. Bshara completed a medical source statement on behalf of
Geraldi. Tr. 611-612. He limited Geraldi to lifting and carrying ten pounds due to her lower
back pain, standing/walking a half-hour at a time up to three hours total due to her herniated disc,
and sitting one hour at a time up to three hours total. Tr. 611. He limited her to rare postural
changes; rare reaching, pushing, pulling and fine manipulation; and occasional gross
manipulation. Tr. 611-612. He also opined that Geraldi would need to elevate her legs at will to
45 degrees and to take extra breaks and that Geraldi’s severe pain interferes with her
concentration, takes her off task, and causes absenteeism. Tr. 612.
2. State agency reviewers
On December 19, 2012, state agency physician Diane Manos, M.D., reviewed Geraldi’s
record. Tr. 187-190. Regarding Geraldi’s residual functional capacity (“RFC”), Dr. Manos
7
opined that Geraldi can perform light work with occasional postural limitations and without
concentrated exposure to fumes, odors, dusts, gases, and poor ventilation. Tr. 188-189.
On May 9, 2013, Lynne Torello, M.D., reviewed Geraldi’s file and adopted Dr. Mano’s
opinion. Tr. 219-220.
D. New Evidence provided to the Appeals Council
On February 18, 2015, more than five months after the ALJ’s decision, Geraldi submitted
additional medical evidence to the Appeals Council. Tr. 7. The Appeals Council found that the
medical records related to a later period of time and, therefore, did not affect the ALJ’s decision
as to whether Geraldi was disabled on or before September 5, 2014. Tr. 2. The pertinent records
are as follows:
On October 9, 2014, Geraldi continued to report back pain to Markowski. Tr. 9. She was
taking Percocet and Mobic and reported that the Mobic did not help but the Percocet reduced her
pain level from a 10 to a 7. Tr. 9-10. Upon examination, she had a rest tremor in her right arm,
walked with a walker, and had tenderness to palpation in her lumbar spine, SI joints and hips.
Tr. 10-11. She had full motor strength, normal sensation and normal reflexes in her extremities.
Tr. 11.
On October 27, 2014, an MRI of Giraldi’s lumbar spine showed an annular tear at L4-5
resulting in mild canal stenosis, severe left facet arthropathy, moderate right facet arthropathy,
and multilevel spondylosis. Tr. 18.
On November 6, 2014, Geraldi reported that Percocet reduced her pain from a 10 to an 8
but she did not feel it was helping enough. Tr. 54. Upon exam, she had full muscle strength,
intact reflexes and intact sensation. Tr. 56. She had tenderness to palpation in her lumbar spine,
8
SI joints and hips. Tr. 56. Markowski started her on MS Contin and instructed Geraldi to follow
up in one month to reassess. Tr. 56.
On November 11, 2014, Geraldi attended a neurosurgery consultation with Bulent
Yapicliar, M.D. Tr. 77. She reported that her back and leg pain had gotten worse over the past
few months. Tr. 77. Upon examination, Geraldi had normal motor strength, normal muscle
tone, and normal reflexes in her extremities. Tr. 77. Dr. Yapicliar reviewed Geraldi’s lumbar
MRI and interpreted the results as “grossly normal.” Tr. 77.
On December 4, 2014, Geraldi reported to Markowski that, since her last visit, she had
gradually worsened. Tr. 82. Her pain was sharp and continuous with no attendant weakness in
her arms and legs and she had numbness and tingling down her left leg. Tr. 82. She reported
that her Percocet and MS Contin took her pain from a 9 to a 7. Tr. 82. Markowski noted that
she had seen a surgeon and was not a candidate for surgery. Tr. 82. Her physical exam findings
were unchanged from her last visit. Tr. 84.
On December 31, 2014, Geraldi complained of neck pain on the right side of her spine.
Tr. 92. She stated that she did not believe her pain medications were helping much. Tr. 92. An
x-ray of her cervical spine was normal. Tr. 100. Her physical examination findings remained
unchanged since her prior visit. Tr. 94.
On January 14, 2015, Geraldi reported that her pain had “rapidly worsened.” Tr. 115.
She had pain in her whole neck and right arm and she was dropping things; she was staying in
bed and using a walker to ambulate. Tr. 115. Upon exam, she had tenderness to palpation over
her paraspinal muscles in the reportedly painful areas. Tr. 118.
E. Testimonial Evidence
1. Geraldi’s Testimony
9
Geraldi was represented by counsel and testified at the administrative hearing. Tr. 153173. She testified that she left her last job as a caregiver for cerebral palsy patients because of
physical pain and explained that it was a “very physical job.” Tr. 159. By the time she got home
from work in the evenings, she could barely walk up the three steps to get into her house. Tr.
150. She had been having a lot of pain, called her doctor, and was admitted to the hospital. Tr.
159. She was hospitalized for four days and could not return to work. Tr. 159. She does not
feel she can work because she has a lot of physical limitations such as bending and standing for
more than ten minutes. Tr. 161. She has “very bad” neuropathy in her feet and her herniated
discs press on her sciatica nerve on both sides and there is no position that alleviates her pain,
such as lying down, sitting up or leaning back. Tr. 161. She has received more than a dozen
epidural blocks but they have not helped her. Tr. 161-162. The last one was a month prior after
her new doctor decided to try the injection from a different angle on both sides of her back, but
that did not help either. Tr. 162. The ALJ asked why, if the injections did not help her, she
continued to receive them, and Geraldi stated that she had not gone back to her new doctor and
that “they said something about maybe trying some kind of an infusion of medication.” Tr. 162.
Geraldi takes several different medications for neuropathy and pain and an antidepressant
which is supposed to help her pain also, but she doesn’t get much pain relief. Tr. 162. She has
been on pain medication for a long time due to surgeries and procedures over the years and she
has developed a very high tolerance for pain medication. Tr. 162. It has been difficult for her to
get pain medication now because “they’re being so scrutinized” and she does not know what else
to do. Tr. 163. She has tried physical therapy three times; the last time was earlier in the year
after a fall. Tr. 163. She cannot stand TENS units because she finds them to be very painful.
Tr. 163.
10
Geraldi stated that she was diagnosed with fibromyalgia the previous year. Tr. 163. She
has days when “every inch of me hurts, and even my skin hurts.” Tr. 163. She also has diabetes
and she takes insulin. Tr. 164. She stated that she is unable to do things that she used to do
before, like go to Cedar Point, because she “can’t do that walking, and that standing.” Tr. 167.
She has had a walker since the previous year when Dr. Koepke wrote her a prescription for one.
Tr. 167. When asked if she uses the walker for balance so she does not fall, Geraldi replied, “I
have a lot of pain in my feet also, not just my back and my legs because of the neuropathy.” Tr.
168. She cannot wear closed shoes on her feet because the neuropathy causes an intense feeling
of burning, like she is walking on hot coals. Tr. 168. She also loses her balance a lot. Tr. 168.
For example, she will be walking and her knee will give out; she may get a sharp pain in a butt
cheek and it causes her knees to buckle. Tr. 168. She does not use the walker in the house
because she can hold on to things in the house. Tr. 168.
Geraldi takes Neurontin for her neuropathy and Flexeril for muscle cramps in her toes,
arches of her feet, calves, shin and her back. Tr. 169. Dr. Bshara recommended that she elevate
her legs to take pressure off her lower back; she does this a couple of times a day, but it makes
the neuropathy in her feet worse. Tr. 179. She does not sleep well in part because her pain
makes it difficult to get comfortable. Tr. 170.
2. Vocational Expert’s Testimony
Vocational Expert Deborah Lee (“VE”) testified at the hearing. Tr. 170-178. The ALJ
discussed with the VE Geraldi’s past relevant work as a caregiver/nurse assistant, phlebotomist,
registration clerk and veterinarian technician. Tr. 172. The ALJ asked the VE to determine
whether a hypothetical individual of Geraldi’s age, education and work experience could
perform her past work if the individual had the following characteristics: can lift or carry twenty
11
pounds occasionally and ten pounds frequently; can stand or walk six hours out of an eight-hour
day; sit for six hours out of an eight-hour day; occasionally climb ramps, stairs, ladders, ropes or
scaffolds; can occasionally balance, stoop, kneel, crouch and crawl; must avoid concentrated
exposure to fumes, odors, dust, gases and poor ventilation; can perform tasks in a setting that is
close to home; and can perform goal-oriented work but not at a production rate pace. Tr. 173174. The VE answered that such an individual could perform Geraldi’s prior job of registration
clerk, but that she had no idea if the location of this job was close to Geraldi’s home. Tr. 174.
The ALJ asked how she would factor in the close-to-home requirement and the VE stated that
she would look at a person’s geographic location and then figure out if there was a particular
radius in which they were looking for a job. Tr. 174. The ALJ asked if the individual described
could perform any other jobs and the VE stated that such an individual could perform the
following jobs: sales clerk with stores being relatively close to most people’s homes (4,340,000
national jobs, 150,000 Ohio jobs, 5,200 regional jobs); cashier, generally a position close to an
urban center (1,300,000 national jobs, 50,000 Ohio jobs, 21,000 regional jobs); and fast food
worker (1,147,000 national jobs, 55,000 Ohio jobs, 31,000 regional jobs). Tr. 174-175.
Next, the ALJ asked if such an individual could still perform Geraldi’s past work or any
other work if the individual was limited to sedentary work. Tr. 175. The VE answered that such
an individual could still perform Geraldi’s past work as a registration clerk and could also
perform work as a receptionist (789,000 national jobs, 20,000 Ohio jobs, 7,500 regional jobs);
appointment clerk (120,000 national jobs, 4,000 Ohio jobs, 1,100 regional jobs); and telephone
solicitor (110,000 national jobs, 9,600 Ohio jobs, 3,000 regional jobs). Tr. 175-176. The ALJ
asked the VE if an individual could perform Geraldi’s past work or any other work if that
12
individual would be off-task for 20% of the time and the VE replied that it would be problematic
for such an individual. Tr. 177.
Geraldi’s attorney asked the VE whether a hypothetical individual could perform work if
the individual could perform sedentary work but with a sit/stand option at will and could rarely
stoop, crouch, kneel, crawl, reach in any direction, and push and pull, in addition to the mental
limitations described in the ALJ’s first hypothetical. Tr. 177. The VE answered that such an
individual would not be able to perform any work because of the reaching limitation. Tr. 178.
III. Standard for Disability
Under the Act, 42 U.S.C. § 423(a), eligibility for benefit payments depends on the
existence of a disability. “Disability” is defined as the “inability to engage in any 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.” 42 U.S.C. § 423(d)(1)(A). Furthermore:
[A]n individual shall be determined to be under a disability only if his physical or
mental impairment or impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in
the national economy . . . .
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to
follow a five-step sequential analysis set out in agency regulations. The five steps can be
summarized as follows:
1.
If claimant is doing substantial gainful activity, he is not disabled.
2.
If claimant is not doing substantial gainful activity, his impairment must
be severe before he can be found to be disabled.
3.
If claimant is not doing substantial gainful activity, is suffering from a
13
severe impairment that has lasted or is expected to last for a continuous
period of at least twelve months, and his impairment meets or equals a
listed impairment, claimant is presumed disabled without further inquiry.
4.
If the impairment does not meet or equal a listed impairment, the ALJ
must assess the claimant’s residual functional capacity and use it to
determine if claimant’s impairment prevents him from doing past relevant
work. If claimant’s impairment does not prevent him from doing his past
relevant work, he is not disabled.
5.
If claimant is unable to perform past relevant work, he is not disabled if,
based on his vocational factors and residual functional capacity, he is
capable of performing other work that exists in significant numbers in the
national economy.
20 C.F.R. §§ 404.1520, 416.920;2 see also Bowen v. Yuckert, 482 U.S. 137, 140-42 (1987).
Under this sequential analysis, the claimant has the burden of proof at Steps One through Four.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). The burden shifts to the
Commissioner at Step Five to establish whether the claimant has the vocational factors to
perform work available in the national economy. Id.
IV. The ALJ’s Decision
In his September 5, 2014, decision, the ALJ made the following findings:
1.
The claimant was insured for a period of disability and disability
insurance benefits on the October 2, 2012 alleged onset date, and she
remains insured for these benefits through at least September 30, 2015.
Tr. 134.
2.
The claimant has not engaged in disqualifying substantial gainful activity
at any time since the October 2, 2012 alleged onset date. Tr. 134.
3.
The claimant has had the following “severe” impairments since the
October 2, 2012 alleged onset date: spinal disorders, obesity, asthma, an
affective disorder, and an anxiety disorder. Tr. 134.
2
The DIB and SSI regulations cited herein are generally identical. Accordingly, for convenience, further citations
to the DIB and SSI regulations regarding disability determinations will be made to the DIB regulations found at 20
C.F.R. § 404.1501 et seq. The analogous SSI regulations are found at 20 C.F.R. § 416.901 et seq., corresponding to
the last two digits of the DIB cite (i.e., 20 C.F.R. § 404.1520 corresponds to 20 C.F.R. § 416.920).
14
4.
Since the October 2, 2012 alleged onset date, the claimant has not had an
impairment, or combination of impairments, that has met or medically
equaled the severity of any of the impairments listed in 20 CFR Part 404,
Subpart P, Appendix 1. Tr. 135.
5.
Since the October 2, 2012 alleged onset date, and with the exception of
possible briefer periods of less than 12 continuous months, the claimant
has retained the residual functional capacity to perform all the basic work
activities described in 20 CFR 404.1521, 404.1545, 416.921 and 416.945
subject to the following limitations/restrictions: she can lift and/or carry
up to 10 pounds frequently and up to 20 pounds occasionally; and she can
stand and/or walk for six hours in an eight-hour period; and she can sit
for six hours in an eight-hour period; and she can occasionally climb
ramps, stairs, ladders, ropes and scaffolds; and she can occasionally
balance, stoop, kneel, crouch, and crawl. However, the claimant cannot
work in environments where she would have concentrated exposure to
fumes, odors, dust, gases, and/or poor ventilation. The claimant can also
perform tasks in jobs that are not subject to strict time or quantity
demands so long as the jobs are located close to her home. Tr. 139.
6.
Since the October 2, 2012 alleged onset date, the claimant has been able
to perform her past relevant work as a registration clerk because this job
would not require her to perform work-related activities precluded by her
residual functional capacity. Tr. 143.
7.
Although the undersigned has found above that the claimant has been
capable of performing past relevant work since the October 2, 2012
alleged onset date, and is, therefore, not disabled at step four of the
sequential evaluation process, there are other jobs existing in significant
numbers in the economy that the claimant has been able to perform since
October 2, 2012. Therefore, the undersigned makes the following
alternative findings for step five of the sequential evaluation process. Tr.
144.
8.
The claimant has not been under a disability, as defined in the Social
Security Act, at any time between the October 2, 2012 alleged onset date
and the date of this decision. Tr. 145.
V. Parties’ Arguments
Geraldi objects to the ALJ’s decision on three grounds. She argues that ALJ failed to
follow the treating physician rule, failed to properly consider Geraldi’s pain, and that she is
entitled to a Sentence Six remand for consideration of new and material evidence. Doc. 15, pp.
15
10-18. In response, the Commissioner submits that the ALJ properly considered Geraldi’s
treating source opinion and complaints of pain, that his decision is supported by substantial
evidence, and that Geraldi is not entitled to a Sentence Six remand. Doc. 28, pp. 9-15.
VI. Law & Analysis
A reviewing court must affirm the Commissioner’s conclusions absent a determination
that the Commissioner has failed to apply the correct legal standards or has made findings of fact
unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321
F.3d 611, 614 (6th Cir. 2003). “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.” Besaw v. Sec’y of Health & Human Servs., 966 F.2d 1028,
1030 (6th Cir. 1992) (quoting Brainard v. Sec’y of Health and Human Servs., 889 F.2d 679, 681
(6th Cir. 1989) (per curiam) (citations omitted)). A court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d
383, 387 (6th Cir. 1984).
1. The ALJ did not violate the treating physician rule
Geraldi argues that the ALJ erred because he did not give controlling weight to Dr.
Bshara’s opinion and failed to give good reasons for the weight he gave. Doc. 15, p. 12. Under
the treating physician rule, “[a]n ALJ must give the opinion of a treating source controlling
weight if he finds the opinion well supported by medically acceptable clinical and laboratory
diagnostic techniques and not inconsistent with the other substantial evidence in the case record.”
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004); 20 C.F.R. § 404.1527(c)(2).
If an ALJ decides to give a treating source’s opinion less than controlling weight, she must give
“good reasons” for doing so that are sufficiently specific to make clear to any subsequent
16
reviewers the weight given to the treating physician’s opinion and the reasons for that weight.
Wilson, 378 F.3d at 544. In deciding the weight given, the ALJ must consider factors such as the
length, nature, and extent of the treatment relationship; specialization of the physician; the
supportability of the opinion; and the consistency of the opinion with the record as a whole. See
20 C.F.R. § 416.927(c); Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 747 (6th Cir. 2007).
The ALJ considered Dr. Bshara’s opinion:
In comparison [to the opinions of the state agency reviewing physicians], the undersigned
gives lesser weight to the opinions of the claimant’s primary care physician that are found
in exhibit 8F. Besides being inconsistent with the opinions of the State agency
physicians who reviewed this record, this source’s opinions that were not incorporated
into the assigned physical residual functional capacity are not supported by the
longitudinal record including the evidence referenced above.
Tr. 142. The evidence that the ALJ referenced above included the following:
First, and in regards to the claimant’s physical functioning, the undersigned notes again
that the claimant has been described on numerous occasions since the October 2, 2012
alleged onset date as being neurologically intact, and/or as having normal strength in her
upper and lower extremities, and/or as having a normal gait (see, for example, Exs. 3F, p.
7; 5F, pps. 27, 31 and 34; 12F, p. 19; 14F, pps. 4 and 10; 16F, pps. 3 and 16). There is
also no persuasive evidence showing that the claimant has needed to use any assistant
devices such as a cane or crutch or walker or wheelchair to assist with ambulation over
any continuous 12-month period since October 2, 2012. Significant pathology is also not
seen in a magnetic resonance imaging scan of the claimant’s lumbar spine that was taken
on September 20, 2012 (see Ex. 4F, p. 30). It was also noted on several occasions after
October 2, 2012 that the claimant did not appear to be in any acute physical distress (see
Exs. 3F, p. 1; 5F, p. 34; 6F, p. 8; 12F, pps. 4 and 8; 14F, p. 9; and 16F, p. 3). The
undersigned also notes again that the claimant also expressly denied having any gait
problems on July 10, 2014 (see Ex. 16F, p. 14). On this date, the claimant also denied
having any problems walking, standing or sitting (see Ex. 16F, p. 13). The undersigned
has also considered the fact that the claimant’s back problems have been treated
conservatively since October 2, 2012. The undersigned also notes here that the claimant
has been able to smoke one pack of cigarettes a day[] since October 2, 2012 despite her
asthma which has been described as being under good control (see Exs. 5F, p. 29; and
16F, p. 4; see also Ex. 12F, pps. 8 and 18).
Tr. 141.
17
Geraldi argues that the ALJ erred because he did “not mention the doctor, his findings or
restrictions explicitly, nor does he identify any definitive evidence that contradicts the treating
physician’s opinion.” Doc. 15, p. 12. The Court disagrees. The ALJ’s failure to identify Dr.
Bshara by name does not render his opinion faulty, nor does his failure to mention the
restrictions set forth in Dr. Bshara’s opinion. The ALJ accurately characterized Dr. Bshara as
Geraldi’s primary care physician and referenced Dr. Bshara’s opinion as Exhibit 8F (Tr. 142);
there is no requirement that he recite the doctor’s name or the restrictions contained in his
opinion. And the ALJ did identify “definitive” evidence that contradicted Dr. Bshara’s opinion,
as set forth above; namely, that Geraldi repeatedly was observed upon examination to have
normal findings (intact sensation, muscle strength and gait) by Dr. Bshara and other providers,
that her lumbar MRI findings were not significant, that the record shows that she denied having
gait problems and problems walking, standing or sitting, that she had received conservative
treatment, and that she was not compliant with treatment, i.e., she smoked a pack of cigarettes a
day despite having asthma and that her asthma was nevertheless considered to be under control.
Tr. 141. In short, the ALJ explained that Dr. Bshara’s opinion was not supported by medically
acceptable clinical and laboratory diagnostic techniques and inconsistent with other substantial
evidence in the case record. See Wilson, 378 F.3d at 544; 20 C.F.R. § 404.1527(c)(2).
The ALJ’s explanation also constituted good reasons for the weight he gave, i.e., that Dr.
Bshara’s opinion was inconsistent with and not supported by the record. See 20 C.F.R. §
416.927(c). Geraldi asserts that the ALJ “never considered that Dr. Bshara had been treating
[her] for an extensive period of time, ordered objective testing upon which to base his opinion,
and that there were other findings from Plaintiff’s pain management and other treating
physicians, that were in accord with Dr. Bshara’s opinion.” Doc. 15, p. 12. First, the ALJ is not
18
required to discuss every factor in 20 C.F.R. § 416.927(c). Francis v. Comm’r of Soc. Sec., 414
Fed. App’x 802, 804 (6th Cir. March 16, 2011) (“Although the regulations instruct an ALJ to
consider [the length, nature, and extent of the treatment relationship], they expressly require only
that the ALJ’s decision include ‘good reasons . . . for the weight . . . give[n] [to the] treating
source’s opinion’—not an exhaustive factor-by-factor analysis.”). Second, that Dr. Bshara is the
physician that ordered objective testing upon which to base his decision is not compelling given
that the ALJ remarked that the MRI results that Dr. Bshara ordered were not significant. Tr. 141.
Finally, although Geraldi identifies evidence in the record that she believes supports Dr.
Bshara’s opinion (Doc. 15, p. 12), the standard is not whether there is substantial evidence to
support Dr. Bshara’s opinion but whether substantial evidence supports the ALJ’s decision. See
Wright, 321 F.3d at 614. And not all the records Geraldi cites are relevant to her argument. See,
e.g., Tr. 500, 554 (treatment record of an epidural steroid injection); Tr. 428 (bone scan results
showing mild degenerative change in her right knee and “an otherwise unremarkable bone
scan”); Tr. 436 (Dr. Bshara’s treatment note from October 14, 2012, showing “motor and
sensory function, reflexes, gait and coordination are all intact”); Tr. 520 (hospital note stating,
“The MRI from September was reviewed by pain management with [sic] they felt to be a normal
lumbar spine with some minor bulging disk.”). To the extent the records Geraldi cites show she
complained of pain, the ALJ found Geraldi’s allegations not entirely credible (Tr. 140), as
discussed more further below. In sum, the ALJ’s decision is supported by substantial evidence
and is sufficiently specific to make clear to any subsequent reviewers the weight he gave to Dr.
Bshara’s opinion and the reasons for that weight. Blakley v. Comm’r of Soc. Sec., 581 F.3d 399,
406–407 (6th Cir. 2009); Soc. Sec. Rul. 96–2p.
2. The ALJ properly considered Geraldi’s complaints of pain
19
Geraldi argues that the ALJ did not follow the proper legal standard when evaluating her
pain. Doc. 15, p. 13. 20 C.F.R. § 416.929(c) sets forth the standard for evaluating pain and the
extent to which pain can reasonably be accepted as consistent with the objective medical
evidence and other evidence. When evaluating the intensity and persistence of pain, the ALJ
considers all available evidence, including objective medical evidence obtained from clinical and
laboratory diagnostic techniques (i.e., range of motion, sensory deficit); the claimant’s daily
activities; the location, duration, frequency, and intensity of pain; precipitating and aggravating
factors; the type, dosage, effectiveness and side effects of any medications taken; treatment,
other than medication, received; and any measures used to relieve pain. Id.
Here, the ALJ considered Geraldi’s allegations of pain but found her allegations not
entirely credible because they were not substantiated by the objective medical evidence as well
as the non-medical evidence in the record. Tr. 140. As explained above, the ALJ described the
objective clinical findings showing normal extremity strength, a normal gait, and that Geraldi
was neurologically intact. Tr. 141. She was not observed to be in any acute physical distress
and denied having problems walking, standing, or sitting in July 2014. Tr. 141. She had
received conservative treatment (Tr. 141) and did not have significant side effects from
medication (Tr. 142). Although Geraldi argues that Dr. Bshara opined that her severe pain
interfered with her concentration (Doc. 15, p. 15), the ALJ noted that Geraldi was described as
having good concentration abilities on numerous occasions (Tr. 142). He observed that she has
been able to carry out most activities of daily living. Tr. 142. See 20 C.F.R. § 416.929(c).
Geraldi also argues that evidence in the record shows that Dr. Koepke identified multiple
tender points and diagnosed severe fibromyalgia and obesity. Doc. 15, p. 15. However, the ALJ
considered Dr. Koepke’s diagnosis of fibromyalgia (Tr. 135, explaining why he did not consider
20
her doctor’s diagnosis of fibromyalgia as a medically determinable impairment) and Geraldi’s
obesity (Tr. 141, stating that Geraldi is obese and that the limitations in his RFC assessment take
into account her obesity).
The ALJ properly considered Geraldi’s pain and his decision must be affirmed. Wright,
321 F.3d at 614 (A reviewing court must affirm the Commissioner’s conclusions absent a
determination that the Commissioner has failed to apply the correct legal standards or has made
findings of fact unsupported by substantial evidence in the record); Garner, 745 F.2d at 387 (A
court “may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of
credibility.”).
3. A Sentence Six remand is not warranted
Geraldi argues that the new evidence she submitted to the Appeals Council “directly
addresses the underlying medical condition which causes [her] pain and the impact of her pain
upon her functioning.” Doc. 15, pp. 15-16. Thus, she argues, the Court should remand her case
under Sentence Six of 42 U.S.C. § 405(g) for further administrative proceedings. Id.
When an ALJ renders the final decision of the Commissioner, additional evidence
submitted to the Appeals Council before or after the Appeals Council denies review should be
considered only for the purpose of a Sentence Six remand. Cotton v. Sullivan, 2 F.3d 692, 696
(6th Cir. 1993). A court may order a Sentence Six remand upon a showing by the moving party
that (1) the additional evidence is both “new” and “material” and (2) there is “good cause” for
failing to provide the evidence previously. 42 U.S.C. § 405(g); Hollon ex rel. Hollon v. Comm’r
of Soc. Sec., 447 F.3d 477, 483 (6th Cir. 2006) (quoting Faucher v. Sec’y of Health & Human
Servs., 17 F.3d 171, 174 (6th Cir.1994)). Evidence is “new” if it was “not in existence or
available to the claimant at the time of the administrative proceeding.” Foster v. Halter, 279
21
F.3d 348, 357 (6th Cir. 2001) (citing Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)).
Evidence is “material” if there is “a reasonable probability that the Secretary would have reached
a different disposition of the disability claim if presented with the new evidence.” Id. (citing
Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988)). “Good cause”
is a reasonable justification for the failure to acquire and present the evidence for inclusion in the
hearing before the ALJ. Id. (citing Willis v. Sec’y of Health & Human Servs., 727 F.2d 551, 554
(1984)).
Geraldi identifies new evidence that she argues warrants remand: an October 2014 MRI
obtained two months after the hearing, medical records showing that her pain did not improve
with Percocet and Mobic, complaints of new neck pain, and continuing pain and numbness down
her left leg. Doc. 15, pp. 16-17. First, the records show that, although Mobic did not reduce
Geraldi’s pain, Percocet did. Tr. 9-10 (Geraldi reporting on October 9, 2014, that Percocet
reduced her pain level from a 10 to a 7); Tr. 54 (Geraldi reporting on November 6, 2014, that
Percocet reduced her pain from a 10 to an 8 but she did not feel it was helping enough).
Second, Geraldi asserts that she “developed neck pain on the right side of her spine” in
December 2014. Doc. 15, pp. 8, 17. That she developed pain in a new area of her body after the
ALJ’s decision is not evidence establishing an impairment that existed prior to the ALJ’s
decision. Moreover, Geraldi reported on January 14, 2015, that her cervical pain had “rapidly
worsened;” this only serves to demonstrate that her severe neck pain is a new complaint that did
not exist during the time frame the ALJ considered. “It is well established that a Sentence Six
remand is not appropriate to consider evidence that a claimant’s condition worsened after the
administrative hearing.” Walton v. Astrue, 773 F. Supp.2d 742, 753 (N.D. Ohio Jan. 18, 2011)
(citing Wyatt v. Sec’y of Health & Human Servs., 974 F.2d 680, 685 (6th Cir. 1992)). Finally,
22
Geraldi had a normal cervical x-ray on December 31, 2014, after her complaints of neck pain
emerged; it is unlikely that her complaints of neck pain would have impacted the ALJ’s decision
given that the only diagnostic test relevant to her complaint of neck pain was normal. The rule
that evidence of a worsening condition after the hearing does not warrant a Sentence Six remain
applies equally to Geraldi’s reports in November and December 2014 that her condition had
gradually worsened “over the last few months.” Tr. 77, 82. If Geraldi’s condition worsened
after the administrative hearing, her appropriate remedy would be to file a new claim for benefits
as of the date that her condition rose to the level of a disabling impairment. See Sizemore, 865
F.2d at 712.
Third, the new evidence routinely showed normal physical examination findings, which
Geraldi had consistently had before and which the ALJ commented on. Tr. 141. Thus,
additional records showing normal objective examination findings would not have caused the
ALJ to alter his decision to the benefit of Geraldi.
Finally, the MRI taken on October 27, 2014, showed an annular tear at L4-5 resulting in
mild canal stenosis, severe left facet arthropathy, and moderate right facet arthropathy at L4-5;
and multilevel spondylosis. Tr. 18. Geraldi asserts, “the new MRI is similar to the prior MRIs
[taken in September and October 2012], but contains more extensive results, revealing more
significant findings which provide a more clear explanation for the extent of Plaintiff’s pain and
limitations.” Doc. 15, p. 17. However, like the 2014 MRI, both Geraldi’s previous MRIs also
showed only mild canal stenosis (Tr. 488, 532). Although the 2014 MRI shows more significant
arthropathy than the prior two MRIs at the L4-5 level, as well as multilevel spondylosis,
Geraldi’s neurosurgeon described the 2014 MRI results as grossly normal (Tr. 77) and she was
not deemed to be a surgical candidate (Tr. 82). And a lumbar x-ray taken in November 2013
23
showed that Geraldi had mild multilevel degenerative changes in the same area that the 2014
MRI did (Tr. 619, 2013 x-ray showing mild osteophytic lipping at the L2-3 level). Thus, it
cannot be said that the 2014 MRI results of multi-level degenerative changes were newly
discovered in 2014. Finally, as noted, Geraldi continued to have normal physical examination
findings.
Moreover, Geraldi does not show “good cause” for her failure to produce this evidence in
advance of the ALJ’s decision. “The mere fact that evidence was not in existence at the time of
the ALJ’s decision does not necessarily satisfy the ‘good cause’ requirement.” Courter v.
Comm’r of Soc. Sec., 479 Fed. App’x 713, 725 (6th Cir. 2012). The Sixth Circuit “takes a harder
line on the good cause test with respect to timing and thus requires that the claimant give a valid
reason for his failure to obtain evidence prior to the hearing.” Id., quoting Oliver v. Sec’y of
Health & Human Servs., 804 F.2d 964, 966 (6th Cir. 1986) (internal quotation marks omitted).
To show good cause a claimant is required to detail the obstacles that prevented her from
entering the evidence in a timely manner. Bass v. McMahon, 499 F.3d 506, 513 (6th Cir. 2007).
Geraldi states, by way of explanation, “the timing of the MRI and the updated reports
were not within [her] control.” Doc. 15, p. 17. She does not explain why this evidence was not
within her control. The Court notes that the record shows that Dr. Koepke referred her to an
orthopedic doctor and stated that she likely need pain management in July 2013 (Tr. 618);
throughout the following year he repeatedly indicated that she had not seen pain management or
an orthopedic doctor, despite his urging (Tr. 615, 625); and she finally acted on Dr. Koepke’s
referral and saw pain management one year after Dr. Koepke indicated that she should consult
pain management, in July 2014 (Tr. 719). She first saw a neurosurgeon after the ALJ’s decision,
in November 2014. Tr. 77. Without further explanation, Geraldi’s conclusory assertion that the
24
timing of the new evidence was not in her control does not establish “good cause” for her failure
to obtain this evidence in advance of the ALJ’s decision.
In sum, the evidence provided by Geraldi is not material because there is no reasonable
probability that the ALJ would have reached a different conclusion if presented with the new
evidence, Foster, 279 F.3d at 357, and she does not demonstrate “good cause” for not obtaining
the evidence sooner, Courter, 479 Fed. App’x at 725.
VII. Conclusion
For the reasons stated above, the decision of the Commissioner is AFFIRMED.
Dated: December 5, 2016
Kathleen B. Burke
United States Magistrate Judge
25
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?