Walters v. Commissioner of Social Security

Filing 26

ORDER adopting Report and Recommendation re 21 Report and Recommendation affirming the decision by the Commissioner. Signed by Judge Michael R. Barrett on 9/29/15. (ba)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Amanda L. Walters,
Plaintiff,
v.

Case No. 1:14cv481

Commissioner of Social Security

Judge Michael R. Barrett

Defendant.

ORDER
This matter is before the Court upon the Magistrate Judge=s April 22, 2015 Report
and Recommendation (AR&R@) which recommends that the decision of the Commissioner
be affirmed and this matter be closed on the docket of the Court. (Doc. 21).
Notice was given to the parties under 28 U.S.C. ' 636(b)(1)(c). Plaintiff filed
objections to the Magistrate Judge=s R&R.

(Doc. 24).

The Commissioner filed a

Response to the objections. (Doc. 25).
When objections are received to a magistrate judge’s report and recommendation
on a dispositive matter, the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P.
72(b)(3). After review, the district judge “may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
The Magistrate Judge completed a comprehensive review of the record and the
same will not be repeated here.

Plaintiff submits a general objection to the R&R, arguing that the Magistrate Judge
erred in failing to determine that the ALJ decision was not supported by substantial
evidence on the record as a whole and was contrary to law. In support of the objection,
Plaintiff reiterates arguments from Plaintiff’s Statement of Specific Errors: (1) the ALJ
failed to identify the evidentiary basis for the residual functional capacity (“RFC”) finding
or to cite substantial evidence in support thereof; (2) the ALJ failed to properly evaluate
the medical opinion evidence in accordance with 20 CFR §404.1527; (3) the ALJ
improperly evaluated Plaintiff’s credibility.
A.

RFC

First, Plaintiff argues the Magistrate Judge erred in determining that the ALJ
thoroughly evaluated the evidence on record in accordance with the dictates of SSR
12-2p.
The R&R thoroughly details the complex law surrounding a diagnosis of
fibromyalgia (“FM”), and as such, only relevant parts are repeated here.

As the

Magistrate Judge outlined in her R&R, according to SSR 12-2p, FM is a “complex medical
condition characterized primarily by widespread pain in the joints, muscles, tendons, or
nearby soft tissues that has persisted for at least 3 months.” SSR 12-2p, 2012 WL
31048869 at 2.

Only a licensed physician can provide evidence of a medically

determinable impairment (“MDI”) of FM, but that alone is insufficient.

Id.

To be

sufficient, the evidence must “document that the physician reviewed the person’s medical
history and conducted a physical exam.” Id. The agency will find that a person has an
MDI of FM if a physician the diagnosed FM, the diagnosis is not inconsistent with other
evidence on the individuals record, and the physician provides the evidence described
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under §II.A or §II.B of the Ruling. Id. In addition, as the Magistrate Judge recognized,
under Rogers v. Comm’r of Soc. Sec., which predates SSR 12-2p, “the process of
diagnosing fibromyalgia includes (1) the testing of a series of focal points for tenderness
and (2) the ruling out of other possible conditions through objective medical and clinical
trials.” 486 F.3d 234, 244 (6th Cir. 2007).
The first prong of SSR 12-2p §II.A and Rogers needs little discussion. As
thoroughly evidenced by the record, Plaintiff did not satisfy the trigger point or focal tender
point requirements to be diagnosed with a MDI of FM. (Doc. 21, PAGE ID #1090; Tr.
677, 796-797).
Plaintiff also failed to meet the §II.A, §II.B, and the Rogers requirement that other
disorders that could cause the signs or co-occuring conditions were ruled out. (Doc. 21,
PAGE ID #1091); SSR 12-2p, §§II.A.3 and II.B.3; Rogers, 486 F.3d 234, 244 (6th Cir.
2007). References to FM by Dr. Stevens, Dr. Vitols, and Dr. Chiappone were made in
conjunction with Chronic Fatigue Syndrome (“CFS”). (Doc. 21, PAGE ID #1088; Tr.
54-57, 677, 700, 794-797, 802-807). As Plaintiff recognizes, FM and CFS are “strikingly
similar or even indistinguishable symptom complexes.”

(Doc. 19, PAGEID #1051).

Thus, Plaintiff failed to offered evidence that CFS was ruled out as another disorder that
could be the cause of co-occurring conditions, such as the fatigue, cognitive or memory
problems, depression, anxiety, irritable bowel syndrome.
Therefore, in determining Plaintiff’s RFC, the ALJ properly excluded consideration
of a MDI of FM because Plaintiff did not met the criteria of §II.A and §II.B. Plaintiff failed
to present a FM diagnosis by a specialist, failed to satisfy the trigger or focal point
requirement, and failed to present evidence by doctors that other conditions, such as
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CFS, with similar or overlapping symptoms were ruled out.
Second, Plaintiff argues that the Magistrate Judge erred in determining the ALJ’s
failure to characterize FM as a “severe” impairment was harmless. Plaintiff submits that
the symptom complex of FM should have been considered by the ALJ in the RFC
determination because of its impact on her ability to work. Plaintiff explains that the ALJ
did not provide any evidentiary basis for the conclusion that an individual with the
Plaintiff’s same MDI’s and complaints may be accommodated or is generally able to
perform light work.
Plaintiff’s argument is simply not supported by the record. The ALJ gave an
exhaustive account of Plaintiff’s allegations of pain, fatigue, depression, daily activities,
mental and physical impairments and the resulting limitations of each before reaching a
decision regarding the Plaintiff’s ability to perform light work. (Tr. 22-30). Additionally,
the symptom complex associated with FM is almost identical to that of CFS, and as such,
though not distinguished as FM, the actual symptoms were considered in the RFC
determination.
Therefore, the Magistrate Judge was correct in overruling the first assignment of
error and in determining the ALJ’s RFC finding was supported by substantial evidence.
Therefore, Plaintiff’s objections on this issue are OVERRULED.
B.

Medical opinion evidence

As the Magistrate Judge explained, the Code of Federal Regulations states that
the Social Security Office considers the following factors in deciding the weight given to
any medical opinion: the examining relationship; the length, frequency, and nature of the
treatment relationship; the supportability of the medical opinion given; the consistency of
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the medical opinion; the specialization of the medical professional; and other factors
brought to their attention by the parties involved. 20 C.F.R. § 404.1527 (c).
Plaintiff obejcts to the weight given to the opinion of Dr. Chiappone, who performed
a psychological examination on April 22, 2011. Dr. Chiappone provided a “suggested
diagnosis” of major depression and anxiety, as well as a GAF score of 48. (Tr. 807).
Dr. Chiappone further took note of Plaintiff’s difficulty remembering information,
multi-tasking, and maintaining persistence and pace. (Tr. 808). Plaintiff argues the
Magistrate Judge erred in determining that the ALJ gave valid reasons, substantially
supported by the record, for discounting Dr. Chiappone’s opinion.
However, the ALJ noted several facts on the record, inconsistent with Dr.
Chiappone’s opinion, as evidence of Plaintiff’s ability to perform light work, including,
Plaintiff’s ability to concentrate and participate during the hearing without observable
difficulty; Plaintiff’s ability to prepare a detailed and typewritten summary of her
conditions, treatments, and symptoms; and Plaintiff’s ability to conduct internet research,
prepare meals, bake, and do household chores. (Tr. 28).
Plaintiff also argues that there were no medical opinions supporting the finding that
Plaintiff’s symptoms could be accommodated by limiting work to simple tasks. However,
Plaintiff does not cite to any authority that such accommodations must be supported by
medical opinions. Moreover, the ALJ consulted a vocational expert concerning this
issue: “To determine the extent to which these limitations erode the unskilled light
occupational base, I asked the vocational expert whether jobs exist in the national
economy for an individual with the claimant’s age, education, work experience, and
residual functional capacity.” (Tr. 32). The expert testified that the individual “would be
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able to perform the requirements of representative occupations such as a mail clerk.”
(Id.) Thus, Plaintiff’s argument that there is no evidence supporting the ALJ’s attempt at
accommodations is unfounded.
The Magistrate Judge properly concluded that the ALJ properly evaluated the
medical opinion evidence.

Therefore, Plaintiff’s objections on this issue are

OVERRULED.
C.

Credibility

As thoroughly explained in the R&R, a determination of credibility is governed by
SSR 96-7p.
First, Plaintiff argues that the inconsistencies in her testimony regarding
“hallucinations” “may be more due to a general reluctance to deal with that subject matter
than an intention to deceive for some nefarious purpose.” (Doc. 24). SSR 96-7p does
not require the Commissioner to determine the intent behind Plaintiff’s inconsistent
testimony; it requires only that the Commissioner consider Plaintiff’s statements in
combination with the record as a whole when determining credibility. Regardless of the
intention behind the inconsistent statements, on separate occasions Plaintiff claimed
either she did not “consistently” have hallucinations or, alternatively, denied having them.
(See Tr. 827, 855, 857, 907).
Second, Plaintiff argues that her lack of medical insurance coverage had an effect
on her treatment history. Plaintiff specifically argues that it is questionable practice to
chastise an individual with mental impairments for failure to seek rehabilitation. Prior to
her objection to the R&R, Plaintiff had not addressed, or provided any explanation for, her
failure to comply with mental health treatment recommendations.
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(See Doc. 21,

PAGEID #1102).

However, in McKnight v. Sullivan, the court affirmed that if, “the

claimant cannot afford the prescribed treatment or medicine, and can find no way to
obtain it, ‘the condition that is disabling in fact continues to be disabling in law.’” 927 F.2d
241, 242 (6th Cir. 1990) (citing Lovelace v. Bowen, 813 F.2d 55 (5th Cir. 1987)).
However, Plaintiffs’ lack of medical insurance does not explain other evidence on the
record, including instances where she did not take or fill prescriptions that would have
improved her mental state or pain level simply because she did not like the side effects.
(Tr. 813, 829).
Finally, Plaintiff argues that it is not clear that the ALJ relied on Plaintiff’s daily
activities as evidence of her mental capabilities, as opposed to physical. However, as
the Magistrate Judge properly concluded in her report, the “ALJ was entitled to rely on
plaintiff’s ability to perform multi-step tasks to discount allegations regarding her inability
to focus and concentrate.” (Doc. 21, PAGEID # 1101). The Magistrate Judge cited
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 532 (6th Cir. 1997), where the court found
that an ALJ may consider household activities engaged in by the claimant in evaluating a
claimant’s assertions of pain or ailments.
The Court concludes that the Magistrate Judge was correct in determining that the
ALJ properly evaluated Plaintiff’s credibility under SSR 96-7p and rendered a decision
supported by substantial evidence on the record. Therefore, Plaintiff’s objections on this
issue are OVERRULED.
Based on the foregoing, the Court hereby ADOPTS the Magistrate Judge=s April
22, 2015 R&R.

(Doc. 21).

Accordingly, the decision of the Commissioner is

AFFIRMED. This matter shall be CLOSED and TERMINATED from the docket of this
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Court.
IT IS SO ORDERED.
/s/ Michael R. Barrett
Michael R. Barrett, Judge
United States District Court

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