Fields v. Commissioner of Social Security

Filing 33

REPORT AND RECOMMENDATION that the decision of the Commissioner be Affirmed and this matter be closed on the docket of the Court. Objections to R&R due by 10/26/2012. Signed by Magistrate Judge Karen L. Litkovitz on 10/9/2012. (art)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

KELLI FIELDS,
Plaintiff

Case No. 1:09-cv-273
Spiegel, J.
Litkovitz, M.J.

vs

COMMISSIONER OF
SOCIAL SECURITY,
Defendant

REPORT AND
RECOMMENDATION

Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the
final decision ofthe Commissioner of Social Security (Commissioner): (1) finding plaintiff
was no longer entitled to disability insurance benefits (DIB) and supplemental security income
(SSI) as of May 1, 2005, and (2) denying plaintiffs new applications for DIB and SSI. This
matter is before the Court on plaintiffs Statement of Errors (Doc. 27) and the Commissioner's
response in opposition (Doc. 32).
I. Procedural Background

Plaintiff was previously found disabled and granted DIB and SSI with a disability
onset date of February 1, 1999, following a hearing before administrative law judge (ALJ)
John T. Kelly, III, in October 2000. In a decision dated November 22, 2000, ALJ Kelly found
that plaintiff was unable to perform substantial gainful activity due to severe hepatitis A, B
and C with resulting fatigue and right upper quadrant pain; low back pain, right hip pain, right
leg pain and neck pain; and a depressive disorder. (Tr. 31-38).
The Social Security Administration (SSA) subsequently determined that plaintiffs
disability ceased as of May 1, 2005. (Tr. 40-41). Plaintiffs request for reconsideration of that

decision was denied. Plaintiff requested and was granted a hearing before ALJ Larry Temin
on June 12,2008, at which she appeared with counsel. (Tr. 980-1011). On July 25,2008, the
ALJ issued a decision that medical improvement occurred as of May 1, 2005, and that the
medical improvement was related to the ability to work; plaintiff was able to perform a
significant number of jobs in the national economy as of May 1, 2005; and her disability
ended as of that date. (Tr. 524-30). Plaintiffs request for review was denied by the Appeals
Council, making the decision of the ALJ the final decision of the Commissioner.
Plaintiff appealed ALJ Temin's July 25,2008 decision to this Court. (Doc. 3). In June
2009, pursuant to the Commissioner's request, the Court remanded the matter to the Social
Security Administration to obtain missing evidence and to allow plaintiff the opportunity to
offer any additional evidence in connection with a new hearing. (Doc. 6).
In the interim, plaintiff filed new applications for DIB and SSI on March 2, 2009. (See
Tr. 9). A combined hearing on the cessation of benefits and on the new applications was held
before ALJ Temin on July 19,2010. (Tr. 1014-1035). Plaintiff appeared with counsel, and a
vocational expert (VE) also testified at the hearing. ALJ Temin issued a decision on August
25, 2010, in which he again found that plaintiffs disability had ceased as of May 1, 2005 and
that plaintiff had not become disabled again since that date. (Tr. 6-27). Plaintiffs request for
review was once more denied by the Appeals Council, making the decision of the ALJ the
final decision of the Commissioner.

II. Applicable Law
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C.
§ 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by

2

substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley
v. Comm 'r ofSoc. Sec., 581 F.3d 399,406 (6th Cir. 2009); see also Bowen v. Comm 'r ofSoc.
Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).

The Commissioner's findings must stand if they are supported by "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." White v.
Commissioner ofSocial Sec., 572 F.3d 272, 281 (6th Cir. 2009) (citing Richardson v. Perales,

402 U.S. 389, 401 (1971)). Substantial evidence consists of"more than a scintilla of evidence
but less than a preponderance .... " Rogers v. Comm 'r ofSoc. Sec., 486 F.3d 234,241 (6th
Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial
evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th
Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in
the disability determination. Even if substantial evidence supports the ALJ' s conclusion that
the plaintiff is not disabled, "a decision of the Commissioner will not be upheld where the
SSA fails to follow its own regulations and where that error prejudices a claimant on the
merits or deprives the claimant of a substantial right." Rabbers v. Commissioner Social Sec.
Admin., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Bowen, 478 F.3d at 746). See also Wilson
v. Comm 'r ofSoc. Sec., 378 F.3d 541, 545-46 (6th Cir. 2004).

When, as here, a recipient of disability benefits challenges the cessation of benefits, the
central issue is whether the recipient's medical impairments have improved to the point where
she is able to perform substantial gainful activity. 42 U.S.C. § 423(f)(l); Kennedy v. Astrue,
247 F. App'x 761, 764 (6th Cir. 2007). Whether an individual's entitlement to benefits

3

continues depends on whether "there has been any medical improvement in [the individual's]
impairment(s) and, if so, whether this medical improvement is related to [the individual's]
ability to work." 20 C.F.R. §§ 404.1594(b), 416.994(b).
The cessation evaluation process is a two-part process. See Kennedy, 247 F. App'x at
764-65. The first part of the process focuses on medical improvement. !d. at 764. The
implementing regulations define "medical improvement" as "any decrease in the medical
severity of [the individual's] impairment(s) which was present at the time of the most recent
favorable medical decision that [the individual was] disabled or continued to be disabled." !d.
at 764-65 (citing 20 C.F.R. § 404.1594(b)(1 )). "A determination that there has been a decrease
in medical severity must be based on changes (improvement) in the symptoms, signs and/or
laboratory findings associated with [the individual's] impairment(s) .... 20 C.F.R. §§
404.1594(b)(l)(i), 416.994(b)(l)(i). If there has been a decrease in the severity of the
impairments since the favorable decision, the medical improvement is related to the
individual's ability to work only ifthere has been a corresponding 'increase in [the claimant's]
functional capacity to do basic work activities .... "' Kennedy, 247 F. App'x at 765 (quoting
20 C.F.R. § 404.1594(b)(3)). See also Nierzwickv. Commissioner ofSocial Security, 7 F.
App'x 358, 361 (6th Cir. 2001).
Medical improvement is "determined by a comparison of prior and current medical
evidence which must show that there have been changes (improvement) in the symptoms, signs
or laboratory findings associated with that impairment(s)." 20 C.F.R. §§ 404.1594(b)(2),
416.994(b)(2). Under Sixth Circuit law, the date of the most recent ALJ hearing, not the
cessation of benefits date, is the relevant point of comparison for determining medical

4

improvement subsequent to the initial award. Difford v. Secretary of Health & Human
Services, 910 F.2d 1316, 1320 (6th Cir. 1990). That is, the ALJ must consider the plaintiff's
condition at the time of the ALJ hearing and if the evidence shows she was disabled as of that
date, her benefits should continue even if she was not disabled as of the cessation date.
McNabb v. Barnhart, 340 F.3d 943,944 (9th Cir. 2003) (citing Difford, 910 F.3d at 1319-20).
The second part of the cessation analysis focuses on whether the individual has the
ability to engage in substantial gainful activity. Kennedy, 247 F. App'x at 765. The
implementing regulations for this part of the evaluation incorporate many of the standards set
forth in the regulations that govern initial disability determinations. !d. (citing 20 C.F .R. §
404.1594(b)(5) and (f)(7)). The difference is that "the ultimate burden ofprooflies with the
Commissioner in termination proceedings." !d. (citing 20 C.F.R. § 404.1594(b)(5) and (f)(7);
Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991)). An increase in the claimant's
functional capacity will lead to a cessation of benefits only if, as a result, the claimant can
perform her past work or other work that exists in significant numbers in the national
economy. 20 C.F.R. §§ 404.1594(£)(7), (8), 416.994(£)(7), (8).
In deciding whether a recipient's entitlement to disability benefits has ended, the
Commissioner uses the eight-step sequential evaluation process outlined in 20 C.F.R. §§
404.1594(£)(1)-(8) and 416.994(£)(1)-(8). Kennedy, 247 F. App'x at 764. The steps are:
(1) Are you engaging in substantial gainful activity? Ifyou are ... we will find
disability to have ended ....
(2) If you are not, do you have an impairment or combination of impairments
which meets or equals the severity of an impairment listed in appendix 1 of this
subpart? If you do, your disability will be found to continue.

5

(3) If you do not, has there been medical improvement as defined in paragraph
(b)(1) ofthis section? ....
(4) If there has been medical improvement, we must determine whether it is
related to your ability to do work in accordance with paragraphs (b)(1) through
(4) ofthis section ....
(5) If we found at step (3) that there has been no medical improvement or if we
found at step (4) that the medical improvement is not related to your ability to
work, we consider whether any of the exceptions in paragraphs (d) and (e) of
this section apply....
(6) If medical improvement is shown to be related to your ability to do work or
if one of the first group of exceptions to medical improvement applies, we will
determine whether all your current impairments in combination are severe ....
(7) If your impairment(s) is severe, ... we will assess your residual functional
capacity based on all your current impairments and consider whether you can
still do work you have done in the past. If you can do such work, disability will
be found to have ended.
(8) If you are not able to do work you have done in the past, we will consider
whether you can do other work given the residual functional capacity
assessment. . . . If you can, we will find that your disability has ended. If you
cannot, we will find that your disability continues.
20 C.F.R. §§ 404.1594(£), 416.994(£).
There is no presumption of continuing disability. Kennedy, 247 F. App'x at 764
(citing Cutlip v. Secretary of Health and Human Services, 25 F .3d 284, 286-287 n. 1 (6th Cir.
1994)). Instead, the Commissioner applies the above procedures to determine whether the
claimant's disability has ended and if she is now able to work. !d.

III. The ALJ Decisions
A. The initial ALJ decision
In a decision dated November 22, 2000, ALJ Kelly found that plaintiff, who was 41
years old at the time, had severe hepatitis A, B and C, and that she experienced fatigue and

6

right upper quadrant pain as a result; she had also received treatment for low back pain, right
hip pain, right leg pain, and neck pain; and she had been diagnosed with a depressive disorder.
(Tr. 37). ALJ Kelly found that plaintiff had been diagnosed with hepatitis A, Band C in June
1998 based on a liver biopsy; in August 1998, she began Interferon treatments three times per
week; in February 1999, she was admitted to a hospital with a complaint of pain in the right
liver area; she was hospitalized due to symptoms of hepatitis in March, April and May of
1999; since May of 2000, she had been treated at a facility due to complaints of low back pain,
right hip pain, right leg pain, and neck pain; and she had been admitted to a pain clinic due to
chronic right upper quadrant pain stemming from her hepatitis. (Tr. 36).
The ALJ further found that plaintiff suffered from depression. He noted that in
October 1999, she was hospitalized due to depression secondary to her general medical
condition and was assigned a GAF score of 52 1, and in February and May 2000 she was again
hospitalized due to her depressive disorder. (Jd.).
The ALJ stated that the severity of plaintiffs hepatitis and associated symptoms may
meet or medically equal Listing 5.05, but the testimony of a medical expert would be required
to establish this. The ALJ decided not to obtain such testimony because he determined
plaintiff was clearly disabled at step five of the sequential evaluation process. (Jd.).
The ALJ determined that considering plaintiffs testimony in view of her frequent

1

A GAF score represents "the clinician's judgment of the individual's overall level of functioning."
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, p. 32 (4th ed., text rev.
2000). The GAF score is taken from the GAF scale, which "is to be rated with respect only to psychological, social,
and occupational functioning." !d. The GAF scale ranges from 100 (superior functioning) to 1 (persistent danger of
severely hurting self or others, persistent inability to maintain minimal personal hygiene, or serious suicidal act with
clear expectation of death). !d. at 34. The DSM-IV categorizes individuals with scores of 51-60 as having
"moderate" symptoms. !d. The next higher category, for scores of61 to 70, refers to an individual with "some mild"
symptoms who is "generally functioning pretty well." !d.

7

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hospitalizations and treatment, she would be absent from work two to three days a month.

(!d.). The ALJ found based on plaintiffs testimony and the objective medical evidence that
due to symptoms of fatigue, chronic pain and depression leading to diminished stamina and
endurance, plaintiff "lack[ed] the persistence to effectively perform any type of job in the
competitive economy during the course of [a] five-day, forty-hour workweek." (Id.).

B. The August 25,2010 ALJ decision
The most recent ALJ decision was issued by ALJ Temin on August 25, 2010,
following a hearing held on July 19, 2010. (Tr. 9-27). ALJ Temin made the following
findings:
1. The most recent favorable medical decision finding that the claimant was
disabled is the decision dated November 22, 2000. This is known as the
"comparison point decision" or CPD.
2. At the time of the CPD, the claimant had the following medically
determinable impairments: Hepatitis A, Band C, a depressive disorder, and
musculoskeletal pain. These impairments were found to result in the residual
functional capacity that functionally precluded her from engaging in even a full
range of sedentary work on a sustained basis [Tr. 372].
3. As of May 1, 2005, the date the claimant's disability ended, the claimant
had not engaged in substantial gainful activity (20 CFR 404.1594(£)(1)).
4. The medical evidence establishes that, since May 1, 2005, the claimant had
the following medically determinable impairments: chronic hepatitis C;
degenerative disc disease of the lumbar spine with spondylosis; mild chronic
obstructive pulmonary disease (COPD); depression; anxiety. These are the
claimant's current impairments.
5. Since May 1, 2005, the claimant has not had an impairment or combination
of impairments which meets or medically equals the severity of an impairment

2

ALJ Kelly determined that plaintiff was "functionally precluded from engaging in any substantial gainful
activity, including a full range of sedentary work, on a sustained basis due to her combined impairments and
associated symptoms and limitations." (Tr. 37).

8

listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525,
404.1526,416.925 and 416.926).
6. Medical improvement occurred as ofMay 1, 2005 (20 CFR 404.1594(b)(l)
and 416.994(b)(1)(i)).
7. As of May 1, 2005, the impairments present at the time of the CPD had
decreased in medical severity to the point where the claimant had the residual
functional capacity to perform the following: lift/carry/push/pull up to 20
pounds occasionally and 10 pounds frequently; stand and/or walk for six hours
in an eight-hour workday; occasionally stoop, kneel, crouch, and climb ramps
and stairs; no crawling or climbing ladders, ropes or scaffolds; no work at
unprotected heights; remember and carry out only short and simple
instructions; no interaction with the general public, and no more than
occasional interaction with coworkers or supervisors; no more than ordinary
and routine changes in the work setting or duties; no more than simple workrelated decisions.
8. The claimant's medical improvement is related to the ability to work
because it has resulted in an increase in the claimant's residual functional
capacity (20 CFR 404.1549(c)(3)(ii) and 416.994(b)(2)(iv)(B)).
9. Beginning on May 1, 2005, the claimant has continued to have a severe
impairment or combination of impairments (20 CFR 404.1594(±)(6) and
416.994(b)(5)(v)).
10. Beginning on May 1, 2005, based on the current impairments, the claimant
has had the residual functional capacity to perform the following:
lift/carry/push/pull up to 20 pounds occasionally and 10 pounds frequently;
stand and/or walk for six hours in an eight-hour workday; occasionally stoop,
kneel, crouch, and climb ramps and stairs; no crawling or climbing ladders,
ropes or scaffolds; no work at unprotected heights; no concentrated exposure to
fumes, noxious odors, dusts or gasses; remember and carry out only short and
simple instructions; no interaction with the general public, and no more than
occasional interaction with coworkers or supervisors; no more than ordinary
and routine changes in the work setting or duties; no more than simple workrelated decisions.
11. Beginning on May 1, 2005, the claimant has been unable to perform past
relevant work (20 CFR 404.1565 and 416.965).
12. On May 1, 2005, the clamant was a younger individual age 18-49. Since
attaining age 50, the claimant has been classified as an "individual closely
approaching advanced age" for Social Security purposes (20 CFR 404.1563

9

and 416.963).
13. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
14. 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
transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P,
Appendix 2).
15. Beginning on May 1, 2005, considering the claimant's age, education,
work experience, and residual functional capacity based on the current
impairments, the claimant has been able to perform a significant number of
jobs in the national economy (20 CFR 404.1560(c), 404.1566, 416.960(c), and
416.966).
16. The claimant's disability ended on May 1, 2005, and the claimant has not
become disabled again since that date (20 C.P.R. 404.1594(£)(8) and
416.994(b)(5)(vii)).
(Tr. 11-26).

IV. Medical Evidence
A. Physical Impairments
Plaintiff was seen at the Veterans Administration (VA) Medical Center for a routine
clinic visit in June 2003. (Tr. 277 -78). The impression was chronic left shoulder pain with
recent worsening; history of hepatitis C with chronic right upper quadrant pain; history of
seasonal allergies; and weight gain and fatigue, rule out thyroid disease. (Tr. 278). A GI
clinic consult was ordered for evaluation of PEG therap~. (Tr. 278).
In November 2003, plaintiffwas seen for follow-up of active hepatitis C with chronic
liver enzyme elevation. (Tr. 230). Plaintiff had chronic right upper quadrant tenderness and

3

Peginterferon is an injectable drug used for treating chronic hepatitis infections.
http://hepatitis.about.com/od/treatment/p/Peginterferon.htm.

10

.---------------------------------------------

continued to drink about a "six-pack" per week despite knowing she had hepatitis C. She was
instructed in a phone call to stop drinking before she could be seen in the hepatitis C clinic.
Records from July 2004 noted continued consumption of a "six-pack" per week
despite knowledge of her hepatitis C. (Tr. 265). Objective findings included chronic right
upper quadrant tenderness, with an ultrasound of the abdomen from March 2004 showing a
non-enlarged liver and changes suggestive of chronic hepatitis. (Tr. 266). The impression
was chronic hepatitis C with liver enzyme elevation and hypertension. Plaintiff was strongly
advised against further alcohol use and was to return to the clinic for her next routine visit in
three months. (!d.).
In November 2004, plaintiff reported back pain and pain in the right liver area for
which she took Oxycodone. (Tr. 261).
In May 2005, plaintiff was seen in the hepatitis C clinic for a work-up. (Tr. 226).
A July 2005 ultrasound of the abdomen was normal (Tr. 213) and treatment notes
showed plaintiffs liver enzymes had improved but were still elevated. (Tr. 252). Plaintiff
admitted to continued alcohol use.
Notes from October 2005 reflect plaintiff complained of great fatigue and anhedonia.
She continued to drink alcohol despite knowledge of her hepatitis C, but agreed to stop
drinking as she realized it was contraindicated by her hepatitis. (Tr. 245, 248). She also
reported chronic right flank and right upper quadrant pain. (Tr. 248).
ACT scan of the abdomen performed on November 15,2005, showed diffuse fatty
infiltration of the liver with dilatation of the common bile duct. (Tr. 211A).
In August 2006, plaintiff complained of chronic low back and bilateral shoulder pain

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for which she was taking methadone and percocet. (Tr. 403). She reported adequate pain
relief and ambulated with a steady gait. (Tr. 405). The review of systems included minimal
joint pain, insomnia, and depression/anxiety. (Tr. 407). As of that date, plaintiff had
completed 12 weeks ofPEGinterferon therapy but had missed a few injections. (Tr. 408).
On October 31, 2006, plaintiff called the VA clinic and spoke with a physician's
assistant whose notes document that plaintiff stated she had been afraid to come back to the
VA Medical Center since her providers there had stopped her pain medications (oxycodone
and valiurn) due to her ethanol level. (Tr. 399-400). Plaintiff stated she had not come back to
the VA and had missed her hepatis C labwork because she had bought some oxycodone on the
street and was afraid it would show up in her labwork. She was encouraged to keep her next
appointment and to take her last interferon injection as planned.
On November 13, 2006, plaintiff was seen at the VA Medical Center for a routine
follow-up visit. (Tr. 395-399). It was noted she ambulated with a steady gait. (Tr. 398).
Plaintiff reported a pain level of 5 in both shoulders and in the right side but denied any other
health concerns. (!d.). The examining physician, Dr. Chinnappan, noted that her past medical
history was positive for chronic multiple arthralgias in the right shoulder, knees, right lower
rib cage and low back; hepatitis C which was being treated and followed by the hepatitis C
clinic; and a history of pain under the right upper rib cage. (Tr. 395-96). Dr. Chinnappan
noted that plaintiff tested positive for alcohol and had been taken off narcotic medications
(methadone and percocet) for a period of six months. (Tr. 396). Physical examination
revealed tenderness in the right upper quadrant and epigastrium, pain on range of motion as
well as in the AC joint, no swelling in the knees, and no tenderness. Dr. Chinnappan

12

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diagnosed plaintiff with gastroesophageal reflux disease, chronic pain syndrome, hepatitis C,
hypertension, and alcohol use.
A note dated December 26, 2006, stated that plaintiff did not keep her last appointment
and indications were after 24 weeks of therapy her hepatitis had not responded to the
medication. (Tr. 400).
Plaintiff was seen at the VA Medical Center in February, March, June, and September
2007 for hypertension (controlled), chronic back pain, hepatitis that was unresponsive to
treatment, fatty liver, and tobacco disorder. (Tr. 393-95; Tr. 391-92A; Tr. 380; Tr. 377-78).
Plaintiff received chiropractic treatment from February through April of 2008 for pain.
(Tr. 492-509). By her last visit she had made some improvement and had entered a subacute
phase. (Tr. 509). Plaintiff subsequently treated with a chiropractor, Dr. James Hamlin, in
April 2008 for what appears to be left leg and left arm pain. 4 (Tr. 755-761).
An MRI of the lower back performed on March 10, 2008, showed "minor degenerative
disc disease." (Tr. 316). X-rays that same date showed no interval change from spondylosis
and degenerative sclerosis ofthe L3 vertebrae seen in 2006. (Tr. 316).
VA Medical records in April2008 revealed an assessment of hypertension, tobacco
use disorder, history of alcoholism, osteoarthritis, hepatitis C, hyperlipidemia, and "white coat
syndrome. 5" (/d.). Plaintiff reported she had not used any alcohol for about four months.
On June 27, 2008, plaintiffs treating physician at the VA Medical Center, Dr.

4

Dr. Hamlin's notes are not entirely legible.

5

"White coat syndrome" is a condition wherein the individual demonstrates elevated blood pressure in a
clinical setting, and not in other settings, due to anxiety and apprehension about visiting the clinic.
http://www. whitecoatsyndrome. org/.

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.----~~--~--

--

Chinnappan, completed a Medical Assessment of Ability to Do Work-Related Activities. (Tr.
516-18). He indicated that plaintiff could lift 5 pounds for less than 1 hour in an 8-hour
workday; she could stand and walk a total of 2 hours in an 8-hour workday and for 1 hour
without interruption; she could sit a total of 2 hours in an 8-hour workday and 15 to 20
minutes without interruption; she could balance frequently; she could never climb, stoop,
crouch, kneel or crawl; reaching and pushing/pulling were affected; and she was restricted
from heights, moving machinery, temperature extremes, chemicals, dust, noise, fumes,
humidity, and vibrations.
Notes from June 2008 showed plaintiff ambulated independently "with a good steady
gait." (Tr. 647). Plaintiff complained oflower back and right-sided pain which she rated as
2/10. (!d.).
On July 23, 2008, plaintiff was seen for foot pain and was diagnosed with Morton's
metatarsalgia. (Tr. 638-39). An August 2008 addendum noted x-rays were negative for
osseous forefoot pathology and an EMG was normal. (!d.).
On June 30,2009, consultative examining physician Dr. William Padamadan, M.D.,
examined plaintiff and prepared a report. (Tr. 696-709). Dr. Padamadan diagnosed plaintiff
with COPD, "Hepatitis C treated," and "[l]ow back pain without objective findings or
functional impairment." (Tr. 697). Dr. Padamadan found that the length of treatment of 1Yz
years was unusual for hepatitis but nonetheless found there was "no clinical stigmata of liver
disease of significance." (Tr. 698). He found that plaintiffwould need restrictions against
dust, fumes, and inhalant irritants and may need restrictions against prolonged walking,
frequent climbing of poles and ladders, and repetitive physical activities based on her smoking

14

2 packs of cigarettes a day. (!d.).
On July 27, 2009, Dr. Chinnappan reported that plaintiff had an enlarged liver and that
chronic hepatitis changes were seen in the liver parenchyma. (Tr. 932). Chronic cholecystitis
changes were seen in the wall ofthe gallbladder. (Tr. 932).
On August 3, 2009, plaintiff was seen for a podiatry consult. (Tr. 840). She was
diagnosed with Morton neuroma recurring bilaterally in the third interspaces and given an
injection. She was to return to the clinic for follow-up in two weeks.
September 2009 pulmonary test results showed moderate obstructive airflow disease.
(Tr. 959-61).
State agency reviewing physician Dr. Myung Cho, M.D., completed a physical RFC
assessment dated September 30, 2009. (Tr. 735-741A). Dr. Cho opined that plaintiff could
perform a limited range of light work activity with environmental restrictions. (Id ).
On July 8, 2010, Dr. Judy Kleman, DPM, at the VA Medical Center wrote a letter
stating that plaintiff had recently been seen in the podiatry clinic, she had pain in both feet
which made it difficult for plaintiff to stand for long periods of time or walk for long
distances, she was scheduled for surgery on August 2, and it was not clear if the surgery would
alleviate the problem. (Tr. 979).

B. Mental Impairments
Plaintiff was admitted to the VA hospital from April25 to 27, 2001, for severe anxiety
with chest pain, non-cardiac. (Tr. 349).
On April23, 2005, consultative examining psychologist Dr. Richard E. Sexton, Ph.D.,
evaluated plaintiff and prepared a report. (Tr. 150-154). Plaintiff reported that she consumed

15

a "six-pack" of beer on the weekends. (Tr. 150). Her medications included Clonodine,
Percocet, and Valium. (!d.). Her flow of conversation and thought processes were normal.
(Tr. 151 ). Her affective mood was somewhat limited, and her demeanor was flat. She
acknowledged being depressed. She denied panic attacks and phobic type reactions. Her
hypothetical judgment was fair to good. (Tr. 152). She appeared capable of performing
personal activities of daily living. Dr. Sexton diagnosed her with dysthymic disorder and
anxiety disorder not otherwise specified. (Tr. 153). He assigned her a GAF score of 58 to 62
with the highest score in the past year being 62. Dr. Sexton opined that plaintiff was suffering
from "long standing depressive and anxious disorders, with symptoms of these conditions
being observed in a variety of behavioral, affective, and cognitive domains." (Tr. 154). He
reported that she received anti-anxiety medication for management of her symptoms. He
concluded that plaintiff appeared capable of performing simple, repetitive type tasks; she
appeared able to understand, recall and carry out simple instructions; her ability to interact
with other people, including co-workers and supervisors, appeared to be fair; and her ability to
tolerate daily stresses and the pressures ofthe work environment appeared to be fair.
Plaintiff was seen for a mental health consultation at the VA Medical Center in
Chillicothe on May 26, 2005. (Tr. 224). She had last been seen in the mental health clinic in
2001. The provisional diagnoses were dysthymia, anxiety, and hepatitis C+. It was noted that
plaintiff had a history of dysthymia with panic attacks and anxiety dating back to 2001. She
reported that she was under a lot of pressure from physical problems and had recently received
a letter from the SSA informing her that she was going to lose her disability benefits.
Dr. Robert Pittenger, M.D., saw plaintiff in the VA Medical Center for a psychiatric

16

consult on July 14, 2005. (Tr. 225). Plaintiff had been started on Citalopram and Diazepam,
and she reported the medications were helping but she was still anxious during the day and
was not sleeping well. Dr. Pittenger reported plaintiff was clear thinking, well oriented and
"with good humor" insight and judgment, she had no aberrations of thought, and her affect
was full. He diagnosed her with mood disorder due to general medical conditions. He
continued her Citalopram for "mood" and Diazepam for muscle spasms and anxiety. (ld.).
Plaintiff was seen by Dr. Pittenger for follow-up of her psychiatric disorder on October
26, 2005. (Tr. 245). Her mood was dysphoric, apprehensive and tearful. She reported feeling
great fatigue and anhedonia. Dr. Pittenger diagnosed plaintiff with severe mood disorder due
to general medical conditions.
On February 1, 2006, plaintiff reported that she was nervous all ofthe time and
apprehensive about seeing doctors. (Tr. 242). She also reported that she was going with her
father in a camper "to see the races" and would be away for three to four weeks. (!d.).
Plaintiff was alert and oriented, her speech was normal, her affect was full, her mood was
neutral, her thought content was logical and goal directed, and her insight and judgment were
intact. The diagnosis was mood disorder due to her general medical condition. Dr. Pittenger
increased her Diazepam, noting that was her only psychotropic medication at that time.
In February 2006, Dr. Pittenger reported plaintiff's diagnoses were depression- mood
disorder due to general medical conditions, hepatitis C, non-cardiac chest discomfort,
hypertension, history of low back pain, and endometriosis. (Tr. 286). He assigned her a GAF

17

score of 50 6 and opined that she was unable to work due to these conditions.
Plaintiff was seen by Dr. Brendan Carroll, M.D., for psychiatric follow-up in the VA
clinic on May 11, 2007. (Tr. 382-83). She had no complaints. She was alert and oriented, her
speech was normal, her affect was full, her mood was neutral, her thought content was logical
and goal directed, and her insight and judgment were intact. Her diagnosis was mood disorder
due to general medical condition (arthralgia). Her level of psychosocial stress was noted to be
moderate, and her GAF score was currently assessed to be 55. (Tr. 383).
In February 2008, plaintiff reported that her mood had been unstable and that she was
still struggling despite having tried most antidepressants. (Tr. 3 72-73 ). She was alert and
oriented, her speech was normal, her affect was full, her thought content was logical and goaldirected, her mood was neutral, and her insight and judgment were fair. Her diagnosis was
depressive order NOS, and she was assigned a GAF score of 60. (Tr. 372).
On May 22, 2008, Dr. Carroll reported that plaintiff was unable to work "due to severe
phobic avoidance of people" and that she was unable to seek, obtain or maintain gainful
employment. (Tr. 512A-B). Dr. Carroll listed plaintiffs diagnoses as mood disorder due to
hepatis B; panic disorder; chest discomfort, non-cardiac; hypertension; hepatitis C; and low
back pain. (Tr. 512B). In an undated note, Dr. Carroll stated that plaintiff has multiple
medical problems, she is unable to work, she had failed to improve in spite of treatment, and
she was unlikely to return to gainful employment for the next five years. (Tr. 511 ).
At a psychiatric follow-up visit in March 2009, plaintiff reported she was doing well

6

The DSM-IV categorizes individuals with scores of 41 to 50 as having "serious" symptoms. American
Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, p. 32 (4th ed., text rev. 2000).

18

on her current psychiatric medications. (Tr. 601). She complained that she got anxious
frequently but diazepam helped to calm her down.
On July 9, 2009, consulting examining psychologist Paul A. Deardorff, Ph.D.,
evaluated plaintiff and prepared a report. (Tr. 71 0-16). Dr. Deardorff diagnosed major
depressive disorder, recurrent, without psychotic features, and panic disorder with
agoraphobia. (!d.). Dr. Deardorff determined her GAF score fell between 51 and 60 and
assigned her a score of 51 in the low end of the range. (Tr. 714 ). Dr. Deardorff opined that
plaintiff was moderately impaired in her ability: to relate to others, including fellow workers
and supervisors; to understand, remember and follow simple instructions; and to maintain
attention, concentration, persistence and pace. He also opined that plaintiffs ability to
withstand the stress and pressure associated with day-to-day work activity is markedly
impaired by her emotional difficulties. (Tr. 714-15).
In September 2009, state agency psychologist Patricia Semmelman, Ph.D., reviewed
the file and prepared a report. (Tr. 717-34). Dr. Semmelman opined that the VA record
"painted an entirely different picture" of plaintiff than did the consultative examiner and the
friends of plaintiff, who completed third-party function forms and indicated that plaintiff
needed assistance in all areas, she was extremely forgetful, she sees and hears things, and she
did not like to talk on the phone or in person. (Tr. 719). Dr. Semmelman found there was
nothing in the VA treatment notes that showed any kind of cognitive concerns or problems
with speaking. Dr. Semmelman further stated that all the notes show her to be alert and
oriented, and a March 3, 2009 note stated that plaintiff reported she was calm with Valium
and she was doing well on the medication and expressed no concerns. In addition, Dr.

19

Semmelman noted that the mental status exam at that time was totally intact. Dr. Semmelman
also noted that plaintiff was diagnosed with mood disorder NOS due to medical condition, but
there were no reports of any panic attacks, and plaintiff was not noted to present in an anxious
manner or to have any problems communicating with the staff. (Tr. 719). She found plaintiff
would have mild restriction of activities of daily living; moderate difficulties in maintaining
social functioning; moderate difficulties in maintaining concentration, persistence or pace; and
no episodes of decompensation. (Tr. 731 ).
On February 9, 2010, Dr. Christopher Blank, M.D., saw plaintiff for psychiatric
follow-up. (Tr. 881-82). Plaintiff was alert and oriented. Her eye contact was good. Her
speech had decreased pitch and prosody but otherwise was within normal limits. Her mood
was somewhat dysphoric. Her affect was quite constricted. Her thought processes were
linear, logical and goal directed. There were no hallucinations or delusions evident on
interviewing her. Insight was fair and judgment was fair to good. Plaintiff reported what Dr.
Blank described as "a history of intractable panic attacks meeting full criteria panic disorder
with agoraphobia," which had not responded to treatment with medication. On further
questioning, plaintiff reported a history of frequent auditory hallucinations of people walking
around in her house. She complained of a longstanding history of depression, and on
questioning endorsed a history of other symptoms of depression. Dr. Blank recommended
medication for her depression and for her "treatment resistant panic attacks." (/d.). He found
that further questioning revealed "a long history of generalized anxiety and social phobia, as
well." (!d.). Dr. Blank diagnosed plaintiff with depressive disorder, not otherwise specified,
rule out major depressive disorder; anxiety disorder not otherwise specified, probable panic

20

disorder with agoraphobia; psychotic disorder, not otherwise specified, rule out
schizoaffective disorder depressive type; generalized anxiety disorder; and social phobia. Dr.
Blank adjusted plaintiffs medications and discontinued a medication that he thought may be
contributing to her panic attacks. (Tr. 883).
On February 26, 2010, plaintiff was seen in the psychiatric clinic by Dr. Variath, M.D.
(Tr. 869-70). Plaintiff reported that Risperdal for psychosis was not helping. (Tr. 869). She
described auditory hallucinations as happening in the evening hours "then she has nightmares
and she wakes up." (Tr. 869). Dr. Variath noted her past history of alcohol abuse and
adjusted her medications.
On May 7, 2010, plaintiff was seen at the psychiatric clinic by a physician's assistant,
Mary Williams. (Tr. 852-53). Plaintiff reported her mood had generally been "down" and she
thought she occasionally saw people on the steps at home and heard noncommanding voices.
(Tr. 852). She reported that the medications she was currently taking were very helpful in
calming her. On mental status exam, plaintiffs responses were relevant and coherent, her
speech rate and tone were normal, her affect was guarded at times, her mood was very
anxious, her concentration and memory were good, her thought process was linear and goal
directed, and her thought content that day was without lethality or psychosis.
V. Analysis
A. The ALJ's decision that plaintifrs disability ceased on May 1, 2005 is
supported by substantial evidence.
In his decision dated August 25, 2010, ALJ Temin applied the eight-step analysis
applicable to a cessation of benefits. (Tr. 9-27). The ALJ determined, among other findings,
that plaintiff had the following medically determinable impairments at the time of the CPD:

21

hepatitis A, Band C, a depressive disorder and musculoskeletal pain (Tr. 11); since May 1,
2005, plaintiff had the following medically determinable impairments: chronic hepatitis C,
degenerative disc disease of the lumbar spine with spondylosis, mild chronic obstructive
pulmonary disease (COPD), depression and anxiety (!d.); medical improvement occurred as of
May 1, 2005 (20 C.F.R. §§ 404.1594(b)(l), 416.994(b)(l)(i)) (Tr. 16-18); the medical
improvement is related to the ability to work because it has resulted in an increase in
plaintiffs residual functional capacity (Tr. 22); and beginning on May 1, 2005, considering
plaintiffs age, education, work experience, and RFC based on her current impairments,
plaintiff has been able to perform a significant number of jobs in the national economy (20
C.F.R. §§ 404.1560(c), 404.1566, 416.960(c), and 416.966)) (Tr. 25).
Plaintiff apparently concedes that there has been medical improvement in her case.
Plaintiff acknowledges that the ALJ applied the eight-step framework applicable to a
termination of benefits and that he found medical improvement occurred as of May 1, 2005.
(Doc. 27 at 1-3). However, in arguing that she is entitled to benefits, plaintiff ignores the
eight-step sequence. Plaintiff instead sets forth the five-step framework that applies when an
individual seeks an initial award of benefits and contends that since she cannot perform any
substantial gainful activity, the ALJ's decision is clearly wrong and should be reversed. (Doc.
27 at 11-12). Plaintiff does not address anywhere in her Statement of Errors whether the ALJ
erred by finding medical improvement. Thus, it appears plaintiff is contesting only the denial
of her new claims for SSI and DIB which were filed on April1, 2009.
Even assuming plaintiff were challenging the ALJ' s decision as to the cessation of
benefits, the Court finds upon review of the medical evidence of record that the ALJ' s

22

decision should be upheld in this respect. Substantial evidence supports the ALJ' s decision
that there has been medical improvement in plaintiffs medical condition, other than
improvement that is not related to her ability to work, between the date of ALJ Kelly's
favorable determination on November 22, 2000 (the CPD), and the date of the most recent
ALJ hearing, which was July 19, 2010.
In the initial disability determination, ALJ Kelly found plaintiff was unable to perform
substantial gainful activity due in part to severe hepatitis A, B and C and the residuals and
symptoms resulting from her hepatitis. (Tr. 36). ALJ Kelly determined that plaintiff would
suffer from diminished stamina and endurance due to symptoms of fatigue, chronic pain and
depression, causing her to miss two to three days of work per month. (Tr. 36). ALJ Kelly
specifically relied on evidence that plaintiff had been hospitalized numerous times for
hepatitis and its resulting symptoms and for depression. (!d.).
In the August 25, 2010 ALJ decision, ALJ Temin determined there had been medical
improvement as of May 1, 2005, pursuant to 20 C.P.R. §§ 404.1594(b)(1), 416.994(b)(l)(i).
(Tr. 16). ALJ Temin determined the medical evidence supported a finding that there had been
a decrease in the medical severity of plaintiffs impairments (hepatitis A, B, and C, a
depressive disorder, and musculoskeletal pain) present at the time ofthe CPD (Tr. 11) as of
May 1, 2005. (Tr. 16). In making this determination, ALJ Temin compared the "prior and
current medical evidence" as required by the regulations and reasonably determined based on
the medical evidence of record that plaintiffs symptoms had decreased in severity. See 20
C.P.R.§§ 404.1594(c)(l), 416.994(b)(2)(i). ALJ Temin found that plaintiffhas continued to
suffer from chronic hepatitis C since May 1, 2005, and he noted in his decision positive

23

laboratory findings indicating chronic hepatis. (Tr. 12, 17). However, ALJ Temin found that
whereas at the CPD plaintiff had fatigue, depression, and "frequent hospitalization," she had
not had any recent hospitalizations; the records did not show a significant problem with
fatigue since the cessation date and fatigue was rarely mentioned; and the source of plaintiff's
pain was unclear even though she received methadone for musculoskeletal pain. (Tr. 18).
ALJ Temin's findings are substantially supported by the record.
In contrast to the frequent number of hospitalizations plaintiff experienced shortly after
her hepatitis diagnosis in 1998 and prior to ALJ Kelly's decision, there is no evidence that
plaintiff was ever hospitalized for hepatitis or any resulting symptoms subsequent to the CPD.
Nor is there any evidence that plaintiff sought treatment at a pain clinic or similar facility for
symptoms of hepatitis. In addition, medical evidence that plaintiff continued to suffer from
disabling fatigue is lacking. In her Statement of Errors, plaintiff notes one self-report of
fatigue during a mental health visit on October 26, 2005 (Doc. 27 at 14, citing Tr. 245), but
she does not point to any other complaints of fatigue in the medical records. Accordingly,
substantial evidence supports the ALJ' s finding that plaintiff's hepatitis decreased in medical
severity.
Substantial evidence also supports a finding that there has been medical improvement
in plaintiff's disabling pain as of May 1, 2005. ALJ Temin reasonably relied on a lack of
evidence showing a disabling musculoskeletal impairment to find medical improvement in
this respect. The ALJ found there was "relatively little evidence" pertaining to plaintiff's
musculoskeletal problems and what evidence exists does not support plaintiff's allegations
that she is unable to work. (Tr. 16). The x-ray and MRI results were normal for the shoulders

24

and revealed no bone deformities or disc space abnormalities of the back. (!d., citing Tr. 316,
318). In addition, plaintiff received only conservative care and treatment for her chronic pain,
consisting primarily of pain medication. Plaintiff had neither been hospitalized for any
musculoskeletal impairment, nor had she undergone surgery for any such impairment. While
plaintiff was treated by a chiropractor in 2008 for neck, left shoulder, lower back, and bilateral
ankle pain, the chiropractor's records describe plaintiffs symptoms as acute and improved
within a few weeks. (Tr. 493, 501). These findings support the ALJ's determination that
there was medical improvement in plaintiffs medical condition as of May 1, 2005.
Finally, substantial evidence supports ALJ Temin's finding that there has been medical
improvement in plaintiffs depression. ALJ Kelly previously found that plaintiff would be
absent from work two to three days a month at unpredictable times due to symptoms of fatigue
and/or depression. (Tr. 36). ALJ Kelly stated that plaintiff was hospitalized in October 1999
due to depression secondary to her general medical condition and was assigned a GAF score
of 52; she was hospitalized again due to her depressive disorder in February 2000; and she
was hospitalized a third time in May 2000. (!d.). However, as ALJ Temin noted, plaintiff has
not had any recent hospitalizations for depression since the CPD. (Tr. 18). Moreover, she
apparently did not undergo mental health treatment once she started receiving disability
benefits, but she instead began treatment only after learning her benefits would cease. (Tr. 17,
citing Tr. 224). The GAF scores assigned by different examining and treating psychologists
after plaintiff started treatment showed only moderate symptoms. (See Tr. 17-18, citing Tr.
150-154- GAF score of 58-62 assigned in 4/05; Tr. 383- GAF score of 55 assigned in 5/07; Tr.

25

--

----------------------------

372- GAF score of60 assigned in 2/08; and Tr. 710-716- GAF score of 51 assigned in 7/09f.
In addition, ALJ Temin reasonably found there was no evidence of significant anxiety other
than when plaintiff was around medical providers. (!d.). The record evidence shows that
plaintiffs mental status examinations were normal in March, June and October of2009, and
that she was doing well with medications that helped calm her down. (Tr. 17, citing Tr. 60102, 898, 952). ALJ Temin reasonably relied on plaintiffs record of hospitalizations for
depression prior to the CPD and compared it to evidence showing that she did not begin
mental health treatment again until after she learned her social security benefits would be
terminated and evidence that her symptoms subsequent to the CPD decreased in severity in
finding medical improvement as of May 1, 2005.
In addition to failing to challenge the ALJ' s finding as to medical improvement,
plaintiff likewise fails to challenge the ALJ' s finding that plaintiffs medical improvement is
related to the ability to work because it resulted in an increase in plaintiffs RFC. (Tr. 22). In
any event, as explained below in connection with the Court's analysis of plaintiffs specific
assignments of error, the ALI's decision finding an increase in plaintiffs RFC is supported by
substantial evidence. 8 Plaintiff does not challenge the ALJ' s findings at the remaining steps of
the cessation of benefits analysis. For the reasons set forth above, the ALI's decision on the
termination of benefits is supported by substantial evidence and should be affirmed.

7

As noted earlier, these scores all fall in the moderate range of symptoms. See supra p. 7, n. 1.

8

Plaintiff argues that the ALJ erred by not giving controlling weight to the opinion of Dr. Chinnappan in
connection with her second assignment of error, wherein she claims that the limitations Dr. Chinnappan imposed
would preclude her from performing any substantial gainful activity. (Doc. 27 at 14). The Court finds for the
reasons discussed below in connection with plaintiffs second assignment of error that the ALJ did not err by failing
to give controlling weight to Dr. Chinnappan's opinion.

26

B. The ALJ's decision that plaintiff has not become disabled again since May 1,
2005 is supported by substantial evidence.
The remaining issue to be resolved is whether the ALJ' s finding that plaintiff is not
disabled based on her new applications for SSI and DIB filed on March 3, 2009 is supported
by substantial evidence. To qualify for disability benefits, a claimant must suffer from a
medically determinable physical or mental impairment that can be expected to result in death
or that 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) (DIB), 1382c(a)(3)(A) (SSI). The impairment must render the
claimant unable to engage in the work previously performed or in any other substantial gainful
employment that exists in the national economy. 42 U.S.C. §§ 423(d)(2), 1382c(a)(3)(B).
Regulations promulgated by the Commissioner establish a five-step sequential
evaluation process for disability determinations:
1) lfthe claimant is doing substantial gainful activity, the claimant is not
disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment - i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities -the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or
her past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the
claimant is disabled.

Rabbers v. Comm'r ofSoc. Sec., 582 F.3d 647,652 (6th Cir. 2009) (citing§§ 404.1520(a)

27

(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the
sequential evaluation process. Id; Wilson v. Comm 'r ofSoc. Sec., 378 F.3d 541, 548 (6th Cir.
2004). Once the claimant establishes a prima facie case by showing an inability to perform
the relevant previous employment, the burden shifts to the Commissioner to show that the
claimant can perform other substantial gainful employment and that such employment exists
in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th
Cir. 1999).
On appeal from the denial ofher new claims for SSI and DIB, plaintiff argues that: (1)
the ALJ failed to properly consider the combined impact of plaintiffs impairments; (2) the
ALJ improperly dismissed the findings of the treating source, Dr. Chinnappan; and (3) the
ALJ did not adequately consider plaintiffs pain and credibility.
1. The ALJ properly considered the combined effect of plaintiff's impairments.

Plaintiff alleges that the ALJ failed to consider the combined effect of her
impairments. (Doc. 27 at 12-13). Plaintiff contends that the ALJ did not take into account the
significant limitations imposed by her hepatitis, back condition, foot condition, depression,
and anxiety. (!d. at 13). Plaintiff also asserts that the ALJ did not consider her foot condition
at all and failed to "fully" consider her fatigue, anxiety and depression. (!d. at 12). Plaintiffs
arguments are not well-taken.
In assessing a claim for disability, the ALJ must analyze "the combined effect of all of
the claimant's impairments without regard to whether any such impairment, if considered
separately, would be of sufficient severity to render the claimant disabled." Walker v. Sec. of

Health & Human Servs., 980 F.2d 1066, 1071 (6th Cir. 1992). This does not mean the ALJ

28

must employ a particular "combined effects" analysis. See Loy v. Sec. of Health & Human

Servs., 901 F.2d 1306, 1310 (6th Cir.1990). "[A]n ALJ's individual discussion of multiple
impairments does not imply that he failed to consider the effects of the impairments in
combination, where the ALJ specifically refers to a combination of impairments in finding
that the plaintiff does not meet the listings." !d. (citing Gooch v. Secretary of HHS, 83 3 F .2d
589, 592 (6th Cir. 1987)).
Here, the ALJ analyzed, in detail, plaintiffs impairments individually and determined
that since May 1, 2005, plaintiff suffers from severe chronic hepatitis C, degenerative disc
disease of the lumbar spine with spondylosis, mild chronic obstructive pulmonary disease
(COPD), depression, and anxiety. (Tr. 11-15). The ALJ also determined that while the record
contains evidence of treatment for other conditions, including a foot condition (bilateral
morton neuroma), there was no substantial evidence that these other impairments were severe.
(Tr. 15). The ALJ went on to consider plaintiffs impairments "individually and in
combination" and determined that plaintiff "has not had an impairment or combination of
impairments" that meets or medically equals a listed impairment. (Jd.). In assessing
plaintiffs RFC, the ALJ considered both plaintiffs physical and mental impairments and
accommodated the limitations from these impairments by restricting plaintiff to less than a full
range oflight work activity with no interaction with the general public or no more than simple
work-related decisions, among others. (Tr. 18). Throughout his decision, ALJ Temin referred
to plaintiffs "impairments" and stated that he reached his decision after "consideration of the
entire record." See Gooch, 833 F.2d at 592 (combination of impairments considered where
ALJ decision reflected "consideration of the entire record " and specific findings regarding

29

plaintiffs "impairments"). It is sufficient that the ALJ to referred to plaintiffs "impairments"
(plural) and "combination of impairments" to show that he considered the combined effect of
plaintiffs impairments. Loy, 901 F .2d at 1310. The ALJ' s decision amply demonstrates that
plaintiffs mental and physical impairments were considered collectively.
In addition, and contrary to plaintiffs assertion, the ALJ specifically acknowledged
that plaintiff had been treated for a foot condition, bilateral morton neuroma. (Tr. 15).
Nevertheless, the ALJ found there was no evidence plaintiffs foot impairment resulted in
more than minimal functional limitations. (Tr. 15). This finding is substantially supported by
the record. After plaintiff was diagnosed with bilateral morton neuroma9 (Tr. 840), she was
treated conservatively with lidocaine injections and foot orthotics. (Tr. 840, 879). Yet, it was
not until July 2010 that a physician reported any alleged limitations resulting from foot pain.
(Tr. 979). Thus, there is no evidence that plaintiffs foot impairment significantly limited her
ability to perform basic work-related activities for twelve consecutive months as required
under 42 U.S.C. §§ 423(d)(1)(a) and 1382c(a)(3)(A). The ALJ's decision in this regard is not
m error.
In sum, the ALJ did not fail to "even mention the foot impairment in his analysis" as
plaintiff contends and did not fail to properly consider the combined impact of plaintiffs
physical and mental impairments. Plaintiffs first assignment of error should be overruled.

9

"Morton's neuroma is a painful condition that affects the ball of [the] foot, most commonly the area
between [the] third and fourth toes." See http://www.mayoclinic.com/health/mortons-neuroma/DS0046. The feeling
resembles "standing on a pebble in [the] shoe or on a fold in [the] sock." !d. The condition "involves a thickening
of the tissue around one of the nerves leading to [the] toes" and may cause "a sharp, burning pain in the ball of [the]
foot." !d. "Common treatments for Morton's neuroma include changing footwear or using arch supports.
Sometimes corticosteroid injections or surgery may be necessary." I d.

30

2. The ALJ did not improperly dismiss the findings of plaintiff's treating
physician in assessing plaintiff's RFC.
Plaintiff alleges as her second assignment of error that the ALJ erred by dismissing the
opinion ofher treating physician, Dr. Chinnappan. (Doc. 27 at 14-15). Plaintiff contends that
Dr. Chinnappan's findings are supported by the medical records, including those of plaintiffs
podiatrist, Dr. Kleman (Tr. 979); lab results showing her liver enzymes were improved but
elevated in July 2005 (Tr. 252) and that her hepatitis treatment had not cleared the virus in
February 2006 (Tr. 241); and March 2008 imaging results that purportedly document her back
pain (Tr. 315-16). (!d. at 14-15). Plaintiff further argues that the ALJ should have given at
least "some weight" to the decisions of Dr. Pittenger and Dr. Carroll, the other treating
physicians who stated she was disabled. (!d. at 15, citing Tr. 286 and 511-512B).
It is well-established that the findings and opinions oftreating physicians are entitled

to substantial weight. "In general, the opinions of treating physicians are accorded greater
weight than those of physicians who examine claimants only once." Walters v. Comm 'r of
Soc. Sec., 127 F.3d 525, 529-530 (6th Cir. 1997). Likewise, a treating physician's opinion is
entitled to substantially greater weight than the contrary opinion of a non-examining medical
advisor. Shelman v. Heckler, 821 F.2d 316,321 (6th Cir. 1987).
The treating physician rule mandates that the ALJ "will" give a treating source's
opinion controlling weight if it "is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in
[the claimant's] case record." Cole v. Astrue, 661 F.3d 931,937 (6th Cir. 2011) (citing former
20 C.P.R.§ 404.1527(d)(2)). lfthe ALJ declines to give a treating source's opinion
controlling weight, the ALJ must balance the factors set forth in 20 C.P.R. §§ 404.1527(c)(2)31

(6) and 416.927(c)(2)-(6) in determining what weight to give the opinion. See Wilson, 378
F.3d at 544. These factors are the length, nature and extent of the treatment relationship and
the frequency of examination, how well-supported by evidence the opinion is, how consistent
the opinion is with the record as a whole, the medical specialty of the source, and other factors
which tend to support or contradict the opinion. 20 C.F.R. §§ 404.1527(c)(3)-(6);
416.927(c)(3)-(6); Wilson, 378 F.3d at 544. In accordance with this rule, the ALJ must give
"good reasons" for the ultimate weight afforded the treating physician opinion, based on the
evidence in the record, and the reasons must be sufficiently specific to enable meaningful
review of the ALJ's decision. Blakley v. Commissioner, 581 F.3d 399, 406 (6th Cir. 2009)
(citing 20 C.F.R. § 404.1527(d)(2); Social Security Ruling 96-2p, 1996 WL 374188, at *5;

Wilson, 378 F.3d at 544).
Here, ALJ Temin gave "good reasons" for not giving the most or controlling weight to
Dr. Chinnappan's opinion that plaintiff was limited to standing 2 hours in an 8-hour day and 1
hour at a time, sitting 2 hours in an 8-hour day and 15-20 minutes at a time, and
lifting/carrying 5 pounds for 1 hour a day (Tr. 516-518). In affording "little weight" to Dr.
Chinnappan's opinion, the ALJ explained that Dr. Chinnappan's assessment contained no
objective support; the objective medical evidence in the file did not support limitations as
great as those Dr. Chinnappan imposed; and the extent of Dr. Chinnappan's contact with
plaintiffwas unclear. (Tr. 21).
The ALJ's reasons for discounting Dr. Chinnappan's opinion are substantially
supported by the record. Dr. Chinnappan's assessed limitations were perfunctory, and he
declined to set forth any medical findings in support of his assessment as requested on the

32

.-------------

form he completed. (Tr. 516-518). Therefore, the record fails to reflect the clinical or
objective basis for the limitations he imposed. In addition, no other physician of record
imposed such extreme functional limitations. While two other physicians at the VA Medical
Center, Drs. Pittenger and Carroll, gave opinions that plaintiff is "unable to work" (Tr. 286,
511 ), they did not address any specific functional limitations. Moreover, their conclusory
opinions that plaintiff is disabled are not entitled to any weight. See Warner v. Comm 'r of
Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (disability determination is ultimately the

prerogative ofthe Commissioner, not the treating physician); 20 C.F.R. §§ 404.1527(d),
416.927(d).
The medical evidence cited by plaintiff does not show that the ALJ erred by
discounting Dr. Chinnappan' s opinion. (Doc. 27 at 14-15). Plaintiff cites a letter from Dr.
Kleman regarding plaintiffs foot impairment (Tr. 979), but the letter is dated July 2010,
which post-dates Dr. Chinnappan's June 2008 assessment by more than two years and cannot
form the basis for Dr. Chinnappan's opinion that plaintiff is limited in her standing and
walking. Moreover, the March 2008 lumbar spine MRl results cited by plaintiff do not
disclose findings that support the extreme functional limitations imposed by Dr. Chinnappan
as the MRl revealed only "minor degenerative disc disease." (Tr. 316). Finally, plaintiffs
single citation to complaints of fatigue on one occasion in October 2005 (Doc. 27 at 14, citing
Tr. 245) fails to support the limitations Dr. Chinnappan imposed. Plaintiff points to no other
evidence in the record showing fatigue was a persistent or chronic problem that limited
plaintiffs functional abilities. Even if the evidence cited by plaintiff would support a finding
of disability, the Court must uphold the ALJ's decision to discount Dr. Chinnappan's opinion

33

in assessing plaintiff's RFC where, as here, it is supported by substantial evidence. Foster v.
Halter, 279 F.3d 348, 353 (6th Cir. 2001).

For these reasons, the ALJ did not violate the Social Security regulations and rulings in
deciding the weight to afford the opinions of plaintiff's treating physicians. The ALJ gave
"good reasons" for discounting Dr. Chinnappan's assessment and the decision to afford the
assessment "little weight" is substantially supported by the record. The ALJ was not bound by
the opinions of Drs. Pittenger and Carroll that plaintiff is unable to work and he reasonably
decided not to afford these conclusory statements any weight. The ALJ' s decision that
plaintiff does not have the extreme functional limitations found by Dr. Chinnappan is
supported by substantial evidence. Plaintiff's second assignment of error should be overruled.

3. The ALJ's credibility finding is supported by substantial evidence.
Plaintiff alleges as her third assignment of error that the ALJ did not adequately
consider plaintiff's pain and credibility in accordance with the Social Security regulations.
(Doc. 27 at 16-17). The ALJ' s credibility determination must include consideration of the
following factors: 1) the individual's daily activities; 2) the location, duration, frequency, and
intensity of the individual's pain or other symptoms; 3) factors that precipitate and aggravate
the symptoms; 4) the type, dosage, effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or other symptoms; 5) treatment, other than
medication, the individual receives or has received for relief of pain or other symptoms; 6) any
measures other than treatment the individual uses or has used to relieve pain or other
symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or
sleeping on a board); and 7) any other factors concerning the individual's functional

34

limitations and restrictions due to pain or other symptoms. See 20 C.F.R. §§ 404.1529(c) and
416.929(c); SSR 96-7p.
In this case, the ALJ determined that plaintiffs overall credibility is poor. (Tr. 20).
The ALJ noted the inconsistencies between plaintiffs testimony at the hearing and her reports
to her medical providers; her history of largely conservative treatment for musculoskeletal
pain; her commencement of mental health treatment only after she learned her disability
benefits would be terminated; her continued use of alcohol despite the contraindication to
therapy for Hepatitis C 10 ; and her drug seeking behavior. (Tr. 20).
Plaintiff first alleges that the ALJ clearly erred by relying on her "continue[ d]
diminished drinking for a time after her diagnosis" as a reason to deny her benefits. (Doc. 27
at 16). Plaintiff contends that the ALJ falsely assumed that she continued to drink when the
medical records reflecting her alcohol consumption are from 2005 (!d., citing Tr. 153, 230)
and the more recent records do not reflect continued alcohol consumption. Plaintiff asserts
that continued alcohol consumption does not negate her allegations of significant pain. (Doc.
27 at 16).
The ALJ determined that plaintiffs "allegations of disabling Hepatitis C are called into
question by her extensive alcohol use after her diagnosis .... " (Tr. 20). Plaintiffs use of
alcohol after her Hepatitis C diagnosis was one of several factors the ALJ considered in
assessing plaintiffs credibility. Plaintiff continued to consume alcohol despite her knowledge
of the adverse effects on her liver functioning and treatment for Hepatitis C. (Tr. 230, 245,

10

"Active alcohol intake is considered a relative contraindication to interferon-based therapy." Hepatitis C
and Alcohol, http://www.hepatitis. va.gov/provider/reviews/alcohol.asp.

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248, 265). Plaintiff was still drinking alcohol in April 2005 (Tr. 150), October 2005 (Tr. 248),
and November 2005 (Tr. 115-17), and records subsequent to 2005 show plaintiff continued to
consume alcohol, contrary to plaintiffs contention. In August 2006, plaintiff was taken off
her narcotic pain medications for six months as a result of her continued alcohol consumption.
(Tr. 396, 399-400). In April2008, plaintiff reported to her physician that she had "not used
alcohol for about four months" (Tr. 366), indicating she continued to use alcohol in early
2008. The ALJ could reasonably determine that plaintiffs continued alcohol consumption
after her Hepatitis C diagnosis was inconsistent with someone alleging disabling fatigue and
pain from this impairment, especially when alcohol consumption resulted in the withdrawal of
the pain medication plaintiff purportedly relied on to treat her "significant" pain.
Next, plaintiff argues the ALJ failed to properly consider her allegations of back, leg,
and side pain, fatigue, and breathing problems. (Doc. 27 at 17). Plaintiff points to her own
subjective testimony as evidence confirming the extent of her alleged limitations and pain.
Plaintiff refers to back, leg and side pain; foot pain that was relieved by elevating the foot at
times; and fatigue. (Doc. 27 at 17). She reports she had trouble breathing at times. (!d.).
However, such subjective evidence does not satisfy the test for evaluating a claimant's pain or
other symptoms and cannot alone support a finding of disability. See 42 U.S.C. §
423(d)(5)(A). See also Duncan v. SecretaryofHHS., 801 F.2d 847,852 (6th Cir. 1986); 20
C.F.R. §§ 404.1529(b), 416.929(b).
While plaintiff claims her testimony is in line with the findings of all of her treating
physicians, she does not point to objective or clinical findings by these physicians showing her
medical impairments are so severe that they could reasonably be expected to produce

36

disabling pain and fatigue. Duncan, 801 F.2d at 853-54. In contrast, the ALJ reasonably
noted that plaintiff has received conservative care and treatment and her functioning, as
demonstrated by the medical evidence, was significantly better than she alleged at the hearing.
(Tr. 24). The ALJ reviewed the medical evidence relating to plaintiffs COPD; he noted that
she continues to smoke despite her condition; and he found that she has given inconsistent
statements as to the amount she smokes. (Tr. 23, citing Tr. 933A, 916, and testimony at ALJ
hearing). And although plaintiff continues to suffer from chronic hepatitis, the record does not
support a significant problem with fatigue. (Tr. 20). The ALJ reasonably relied on the
absence of imaging test results and clinical findings showing an orthopedic condition that
could reasonably be expected to produce pain of the frequency, severity, and duration plaintiff
described. (Tr. 24). The ALJ had an adequate basis to conclude that plaintiffs objectively
established medical condition was not so severe that it could reasonably be expected to
produce disabling pain or other symptoms. See Duncan, 801 F.2d at 853-54.
Plaintiff also contends that her allegations regarding her mental impairments are
supported by evidence in the record, specifically by a February 2010 VA treatment note
diagnosing social phobia and the need to rule out schizoaffective disorder. (!d. at 16-17). She
contends her complaints about her social and mental impairments should have been found
credible. (Tr. 17).
The ALJ acknowledged plaintiffs complaints of disabling anxiety, but determined the
record failed to support plaintiffs allegations. (Tr. 20). The ALJ's decision in this regard is
substantially supported by the record. As the ALJ reasonably noted, despite plaintiffs claims
of disabling mental impairments, she did not resume any mental health treatment until she

37

learned her Social Security benefits would cease. (Tr. 20, citing Tr. 224). In addition, the
record does not support plaintiffs complaints of disabling anxiety and social phobia. The
ALJ reasonably found that plaintiffs actions were inconsistent with allegations of disabling
anxiety and a dislike of being around others. In this regard, the ALJ noted that plaintiff
claimed she was too nervous to drive, but drove to an examination in March 2006. (Tr. 20,
citing Tr. 352). In addition, while she claimed a "severe phobic avoidance of people" (Tr. 21,
citing Tr. 512B), the record shows plaintiff obtained an early refill of her prescription
medication because she was leaving town for one month to go to the races, which was
inconsistent with complaints of disabling anxiety and social phobia. (Id., citing Tr. 236).
Also, plaintiffs GAF scores consistently showed only moderate symptoms. See supra at pp.
25-26. The ALJ's credibility determination was permissible in light of the inconsistencies
between the objective evidence and plaintiffs testimony. The ALJ properly discounted
plaintiffs credibility where, as here, there are contradictions among the medical records,
plaintiffs testimony, and other evidence. See Warner v. Comm 'r ofSoc. Sec., 375 F.3d 387,
392 (6th Cir. 2004). The Court has no basis for disturbing the ALJ's credibility determination
and must defer to the ALJ' s finding. Plaintiffs third assignment of error should be overruled.

IT IS THEREFORE RECOMMENDED THAT:
The decision of the Commissioner be AFFIRMED and this matter be closed on the
docket of the Court.

~~

Karen L. Litkovitz
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Case No. 1:09-cv-273
Spiegel, J.
Litkovitz, M.J.

KELLI FIELDS,
Plaintiff
vs

COMMISSIONER OF
SOCIAL SECURITY,
Defendant

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), WITHIN 14 DAYS after being served with a copy
of the recommended disposition, a party may serve and file specific written objections to the
proposed findings and recommendations. This period may be extended further by the Court
on timely motion for an extension. Such objections shall specify the portions of the Report
objected to and shall be accompanied by a memorandum of law in support of the objections.
If the Report and Recommendation is based in whole or in part upon matters occurring on the
record at an oral hearing, the objecting party shall promptly arrange for the transcription ofthe
record, or such portions of it as all parties may agree upon, or the Magistrate Judge deems
sufficient, unless the assigned District Judge otherwise directs. A party may respond to
another party's objections WITHIN 14 DAYS after being served with a copy thereof. Failure
to make objections in accordance with this procedure may forfeit rights on appeal. See

Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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