Jester v. Commissioner of Social Security
Filing
19
REPORT AND RECOMMENDATIONS re 2 Complaint filed by Valerie Sue Jester. The Magistrate Judge RECOMMENDS that this case be REMANDED to allow the adminstrative law judge to consider Dr. Fiermans opinion - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 02/10/2014. (sr1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Valerie Sue Jester,
v.
Carolyn W. Colvin,
Commissioner of Social Security,
Defendant
Civil Action 2:13-cv-00376
:
Plaintiff
:
:
Judge Marbley
:
Magistrate Judge Abel
:
REPORT AND RECOMMENDATION
Plaintiff Valerie Sue Jester brings this action under 42 U.S.C. §§405(g) and
1383(c)(3) for review of a final decision of the Commissioner of Social Security denying
her application for Supplemental Security Income benefits. This matter is before the
Magistrate Judge for a report and recommendation on the parties’ cross-motions for
summary judgment.
Summary of Issues. Jester maintains that she is disabled as a result of obesity,
plantar fasciitis, calcaneal spur, gastroesophageal reflux disease (GERD), hypertension,
history of headaches, bipolar disorder, attention deficit disorder, and anxiety. The
administrative law judge concluded that plaintiff could perform a range of sedentary
work.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge failed to follow the treating physician rule; and,
• The administrative law judge failed to properly evaluate plaintiff's credibility.
Procedural History. Plaintiff Valerie Sue Jester filed her application for disability
insurance benefits on September 8, 2009, alleging that she became disabled on
September 25, 2000, at age 25, by bipolar disorder, depression, anxiety, plantar fasciitis,
and scoliosis. (R. 178-80, 205.) She later amended the application to allege disability as
of September 8, 2009, when she was 34 years old. The application was denied initially
and upon reconsideration. Plaintiff sought a de novo hearing before an administrative
law judge. On October 14, 2011, an administrative law judge held a hearing at which
plaintiff, represented by counsel, appeared and testified. (R. 34.) A vocational expert
also testified. On November 25, 2011, the administrative law judge issued a decision
finding that Jester was not disabled within the meaning of the Act. (R. 25.) On
February 19, 2013, the Appeals Council denied plaintiff’s request for review and
adopted the administrative law judge’s decision as the final decision of the
Commissioner of Social Security. (R. 1-3.)
Age, Education, and Work Experience. Valerie Sue Jester was born July 24,
1975.
(R. 178.) She has a high school education. (R. 213.) She has worked as a cashier,
a waitress, a housekeeper, a sales associate and a slicer at a factory. She last worked
January 23, 2002. (R. 206-05.)
Plaintiff’s Testimony. The administrative law judge fairly summarized 's
testimony as follows:
At hearing, the claimant testified she spends most of the day in bed due to
the symptoms of her mental impairments. She also testified she
experiences decreased appetite due to medication side effects and
2
depression. (Hearing Testimony.) In an October 2009 Function Report, the
claimant described loss of motivation to perform household chores such
as clearing and washing laundry. (Exhibit B4E.) However, the claimant
has no problems performing personal care tasks, such as dressing,
bathing, and shaving. (Exhibit B4E, Hearing Testimony.) At hearing, the
claimant also testified that she enjoys hobbies such as sewing, arranging
flowers, and other craft projects. . . .
[T]he claimant said she isolates herself and does not spend time with
others. . . . [T]he claimant said she is able to lift up to 20 pounds, sit for 30
minutes at one time, and stand for 30 minutes at one time. . . .
[S]he testified she is able to mow her lawn, pick-up sticks, and do other
yard work for up to 45 minutes at one time.
(R. 18, 20, 22.)
Medical Evidence of Record.
Physical Impairments.
Penelope A. Halliday, M.D. On June 9, 2003, Jester began receiving treatment
from Dr. Halliday, a family practitioner. (R. 296.) Dr. Halliday treated plaintiff for
depression, anxiety, bipolar disorder, GERD, and hypertension. (R. 299.)
Cindi Hill, M.D. On November 4, 2009, Dr. Hill, a state agency reviewing
physician, completed a physical residual functional capacity assessment. Dr. Hill
concluded that plaintiff could occasionally lift 50 pounds and frequently lift 25 pounds.
She could stand about 6 hours in an 8-hour day. She could sit for 6 hours in an 8-hour
day. She was unlimited in her ability to push and/or pull. Dr. Hill noted that as of July
2009, plaintiff reported pain in the plantar surface of both feet when walking and
tenderness at the insertion of the plantar’s fascia. It was recommended that she stretch,
3
use inserts and NSAIDs. She had a normal gait and station. She experienced numbness
on and off in her hands when using the computer, holding a hair dryer, and driving.
Dr. Hill opined that plaintiff could occasionally climb ramps or stairs but never
climb ladders, ropes or scaffolds. She could occasionally balance. She should avoid
concentrated exposure to vibration or hazards such as machinery or heights.
Dr. Hill indicated that plaintiff was diagnosed with obesity, plantar fasciitis,
scoliosis, hypertension, GERD, and CTS. She complained of body aches and always
being tired. (R. 561-68.)
Robert Fierman, D.P.M. On October 9, 2009, Dr. Fierman began treating plaintiff
for plantar fasciitis bilaterally, greater on the left. (R. 846.) On October 19, 2009, plaintiff
reported persistent pain and that stretching and wearing orthotics had not provided
any improvement.
A December 2, 2009 MRI of the left ankle showed minimal ankle joint effusion,
minimal edema in the soft tissues adjacent to the calcaneal attachment of the plantar
fascia, and some marrrow edema consistent with plantar fasciitis. (R. 850.)
On December 4, 2009, Dr. Fierman completed a lower extremities impairment
questionnaire. (R. 837-44.) Dr. Fierman diagnosed plantar fasciitis and stabbing pain in
the Achilles tendon. Her prognosis was poor based on her poor response to treatment.
Clinical findings included tenderness of the Achilles tendon with dorsiflexion and pain
with inversion and eversion; muscle spasms in the sole of the left foot; swelling; joint
warmth; joint instability; abnormal gait with pain when walking; positive straight leg
4
raising test bilaterally to 20 degrees; pain with pressure, walking, standing and sitting.
(R. 837-38.) She experienced constant pain. Her weight contributed to her pain. Dr.
Fierman opined that plaintiff could independently initiate and sustain ambulation and
complete activity. Although he noted that plaintiff required assistance walking, she did
not need a cane or a walker. Dr. Fierman indicated that pain interfered with her ability
to ambulate effectively. Plaintiff could not effectively climb stairs without the help of a
handrail. She could not carry out activities of daily living independently without
assistance.
Dr. Fierman opined that plaintiff could sit or stand/walk for less than one hour.
Plaintiff must get up and move around every hour and must wait an hour prior to
sitting again. She could frequently lift and carry up to 5 pounds. She could frequently
carry up to ten pounds and occasionally lift up to ten pounds. She could occasionally
carry up to 20 pounds. (R. 841.)
Plaintiff required her legs to be elevated for 30 minutes 3-4 times per day because
of her edema. Dr. Fierman opined that plaintiff could only tolerate low stress work
based on her anxiety attacks. She required unscheduled breaks to rest at unpredictable
intervals during the day every ten minutes. (R. 842-43.)
Dr. Fierman opined that plaintiff had psychological limitations. She needed to
avoid wetness, noise, fumes, gases, temperature extremes, humidity, dust, and heights.
She could not push, pull, kneel, bend or stoop.
John A. Mehnert, M.D. On September 9, 2010, Dr. Mehnert began treating
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plaintiff for calcaneal spur and plantar fasciitis. Plaintiff described a history of Cortisone
injections and physical therapy. (R. 1119.) On April 20, 2010, examination revealed pain
with palpation of the plantar fascia on the left. Plaintiff received an injection. (R. 112223.) On June 1, 2010, plaintiff continued to report pain, and Dr. Mehnert prescribed
orthotics. (R. 1126-27.)
On September 9, 2010, Dr. Mehnert completed a lower extremities impairment
questionnaire. He noted that her prognosis was good. Plaintiff had tenderness in the
heels and reported throbbing pain. Excessive walking or standing lead to pain. Plaintiff
reported that the pain was constant. Although she could independently initiate
ambulation and complete activity, he noted that it was questionable as to whether she
could sustain ambulation. She did not require a device or assistance to walk. Pain did
interfered with her ability to ambulate effectively, and she could not effectively climb
stairs without the help of a handrail. Although Dr. Mehnert indicated that she could not
carry out activities of daily living independently without assistance, she could travel to
and from her house, prepare meals, and bathe and dress. Dr. Mehnert had not been able
to completely relieve plaintiff’s pain with medication. Dr. Mehnert opined that plaintiff
could sit for 8 hours in a day. She could only stand or walk for less than 1 hour. Dr.
Mehnert opined that plaintiff could occasionally lift over 50 pounds and frequently
carry 5-10 pounds. Dr. Mehnert further opined that plaintiff would likely be absent
from work more than three times a month. (R. 1110-17.)
On November 4, 2010, plaintiff reported ongoing foot pain, although Dr.
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Mehnert found her somewhat improved .(R. 1156-57.) On May 5, 2011, plaintiff
reported worsening pain, and Dr. Mehnert diagnosed left metatarsalgia. (R. 1256.) On
August 11, 2011, plaintiff had pain at the insertion site of the left plantar fascia and in
the tarsal tunnel. Dr. Mehnert diagnosed tarsal tunnel syndrome and worsening
calcaneal spur and plantar fasciitis. (R. 1258-59.)
On October 17, 201, plaintiff underwent release surgery of her tarsal tunnel and
plantar fascia on the left. (R. 1270-71.)
Neil Ghany, M.D. On January 14, 2011, Dr. Ghany, an orthopedic surgeon,
evaluated plaintiff for recurrent carpal tunnel symptoms. Examination revealed some
stiffness of the right wrist and positive Tinel’s. (R. 1188-89.) On February 11, 2011,
plaintiff underwent right carpal tunnel release surgery. (R. 1215.)
Psychological Impairments.
Susan Wolfe, Ph.D. On January 4, 2005, Dr. Wolfe, a licensed psychologist, began
treating plaintiff for a mood disorder and frequent panic attacks. (R. 389.)
In a May 26, 2009 Individual Service Plan, Dr. Wolfe assigned plaintiff a Global
Assessment of Functioning (“GAF”) score of 60. (R. 390.) Dr. Wolfe noted that plaintiff
enjoyed crafts and cake decorating. (R. 391.)
In June 2008, plaintiff reported discomfort being in stores. (R. 403.) Much of Dr.
Wolfe’s treatment notes focused on plaintiff’s plans on divorcing her husband and
reconciling with her former husband. (R. 402-08.)
In November 2008, plaintiff was excited about her decision to pursue a college
7
education. (R. 402.) In January 2009, plaintiff was enjoying college correspondence
coursework (R. 400), although she dropped out by April. (R. 397.) In April 2009,
plaintiff experienced a resurgence of anxiety. Id. On August 18, 2009, Dr. Wolfe noted
that plaintiff’s mood was enhanced and her functioning had improved. Plaintiff
reported that she seeing Dr. Dipka Shah, a psychiatrist, had been beneficial. (R. 395.) In
September 2009, plaintiff’s mood seemed better although she was dealing with a
number of medical problems. (R. 394.) On October 20, 2009, plaintiff reported episodes
of irritability, “flying of the handle, ” and suicidal ideation. (R. 393.)
In an October 26, 2009 letter, Dr. Wolfe stated her opinion that plaintiff was too
unstable to sustain concentration and performance duties affiliated with employment.
Her prognosis was guarded. (R. 389.)
On December 11, 2009, Dr. Wolfe completed a psychiatric/psychological
impairment questionnaire. (R. 614-21.) Dr. Wolfe diagnosed a mood disorder and
anxiety disorder and assigned a GAF score of 55-60. Plaintiff’s prognosis was fair.
Clinical findings included poor memory, sleep disturbance, mood disturbance,
emotional lability, recurrent panic attacks, anhedonia, paranoia, difficulty
concentrating, past suicidal ideation, social withdrawal or isolation, decreased energy,
intrusive recollections, generalized anxiety, and irritability. (R. 615.)
With respect to understanding and memory, Dr. Wolfe opined that plaintiff was
markedly limited in her abilities to remember locations and work-like procedures;
understand and remember one or two step instructions; and understand and remember
8
detailed instructions. With respect to sustained concentration and persistence, Dr. Wolfe
opined that plaintiff was markedly limited in her abilities to carry out simple one or two
step instructions; carry out detailed instructions; maintain attention and concentration
for extended periods; perform activities within a schedule, maintain regular attendance,
and be punctual within customary tolerance; sustain ordinary routine without
supervision; work in coordination with or proximity to others without being distracted
by them; make simple work related decisions; and complete a normal workweek
without interruptions from psychologically based symptoms and to perform at a
consistent pace without an unreasonable number and length of rest periods. With
respect to social interaction, plaintiff was markedly limited in her abilities to accept
instructions and respond appropriately to criticism from supervisors and to get along
with co-workers or peers without distracting them or exhibiting behavioral extremes.
Plaintiff was moderately limited in her abilities to interact appropriately with the
general public; ask simple questions or request assistance; maintain socially appropriate
behavior; and adhere to basic standards of neatness and cleanliness. With respect to
adaptation, plaintiff was markedly limited in her ability to respond appropriately to
changes in the work setting; travel to unfamiliar places or use public transportation; and
set realistic goals or make plans independently. She was moderately limited in her
ability to be aware of normal hazards and to take appropriate precautions.
Dr. Wolfe indicated that plaintiff experienced episodes of deterioration or
decompensation in work like settings. (R. 618-19.) Dr. Wolfe concluded that plaintiff
9
was incapable of even low stress work due to her history of significant mood
fluctuations and anxiety. (R. 620.) Dr. Wolfe opined that plaintiff would likely be absent
from work more than three times a month due to her impairments. (R. 621.)
On March 4, 2010, Dr. Wolfe completed a mental status questionnaire and daily
activities questionnaire at the request of the Bureau of Disability Determination. Dr.
Wolfe referred to her treatment notes for the answers to many questions. Dr. Wolfe
opined that plaintiff would react poorly to pressures in a work setting that involved
simple and routine or repetitive tasks. She noted that plaintiff was able to prepare food
and take care of her personal hygiene. She liked to decorate cakes. She could perform
household chores, shop and pay bills with the assistance of her significant other. (R.
604-08.)
On March 31, 2010. Plaintiff exhibited decreased function since her last visit and
reported increased foot pain. (R. 1059.) On April 27, 2010, plaintiff reported increased
symptoms of anxiety and depression. She was tearful. She had recently been diagnosed
with attention deficit disorder and had started taking Vyvanse. (R. 1058.) On November
23, 2010, plaintiff reported increased depression. (R. 1182.) She continued to deal with
depression through October 2011. (R. 1254.)
Joan Williams, Ph.D. On October 30, 2009, Dr. Williams, a state agency reviewing
psychologist, completed a mental residual functional capacity assessment and
psychiatric review technique. (R. 543-60.) Dr. Williams adopted the mental residual
functional capacity of the January 24, 2008 decision of the administrative law judge. (R.
10
545.) She concluded that plaintiff had major depressive disorder and bipolar disorder.
(R. 550.) She also noted that plaintiff was diagnosed with post-traumatic stress disorder
and panic disorder. (R. 552.)
Vicki Warren, Ph.D. On March 15, 2010, Dr. Warren, a state agency reviewing
psychologist, reviewed the evidence of record and the October 30, 2009 assessment was
affirmed as written. Dr. Warren did not give controlling weight to the December 11,
2009 opinion of Dr. Levy because subsequent records from Dr. Shah indicated that
plaintiff’s mental status examination was normal and that she tolerated her medications
well. She slept well, her cognition was intact, and her mood was good. There was no
psychomotor abnormalities. Her thinking was coherent. (R. 1039.)
Administrative Law Judge’s Findings.
1.
The claimant has not engaged in substantial gainful activity since
September 4, 2009, the application date (20 CFR 416.971 et seq.).
2.
The claimant has the following severe combination of impairments:
obesity, plantar fasciitis, calcaneal spur, gastroesophageal reflux
disease (GERD), hypertension, history of headaches, bipolar
disorder, attention deficit disorder (ADD), and anxiety. (20 CFR
416.920(c)).
3.
The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 416.920(d), 416.925 and 416.926).
4.
After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform a range of sedentary work, with the ability to lift up to 50
pounds occasionally and carry 5 to 10 pounds occasionally, to stand
and/or walk one hour in an eight-hour workday, and to sit eight
11
hours in an eight-hour workday. The claimant also has the
following non-exertional limitations: never climb ladders, ropes, or
scaffolds; occasionally climb ramps or stairs; occasionally stoop,
kneel, and crouch; avoid concentrated exposure to vibrations,
operational control of moving machinery, and unprotected heights;
limited to simple, routine, and repetitive tasks in a low stress job
requiring only occasional decision making and occasional changes
in the work setting; limited to less than occasional interaction with
the public; and limited to occasional interaction with coworkers
and supervisors.
5.
The claimant is unable to perform any past relevant work (20 CFR
416.965).
6.
The claimant was born on July 24, 1975 and was 34 years old, which
is defined as a younger individual age, on the date the application
was filed (20 CFR 416.963).
7.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 416.964).
8.
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
82041 and 20 CFR Part 404, Subpart P, Appendix 2).
9.
Considering the claimant’s age, education, work experience, and
residual functional capacity, there are jobs that exist in significant
numbers in the national economy that the claimant can perform (20
CFR 416.969 and 416.969(a)).
10.
The claimant has not been under a disability, as defined in the
Social Security Act, since September 4, 2009, the date the
application was filed (20 CFR 416.920(g)).
(R. 17-25.)
Standard of Review. Under the provisions of 42 U.S.C. §405(g), "[t]he findings
of the Commissioner as to any fact, if supported by substantial evidence, shall be
12
conclusive. . . ." Substantial evidence is "'such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389,
401 (1971)(quoting Consolidated Edison Company v. NLRB, 305 U.S. 197, 229 (1938)). It is
"'more than a mere scintilla.'" Id. LeMaster v. Weinberger, 533 F.2d 337, 339 (6th Cir.
1976). The Commissioner's findings of fact must be based upon the record as a whole.
Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366
(6th Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir. 1984). In determining
whether the Commissioner's decision is supported by substantial evidence, the Court
must "'take into account whatever in the record fairly detracts from its weight.'" Beavers
v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir. 1978)(quoting
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1950)); Wages v. Secretary of Health and
Human Services, 755 F.2d 495, 497 (6th Cir. 1985).
Plaintiff’s Arguments. Plaintiff argues that the decision of the Commissioner
denying benefits should be reversed because:
• The administrative law judge failed to follow the treating physician rule. Here,
the administrative law judge gave significant weight to the opinion of Dr.
Mehnert, plaintiff’s treating podiatrist, but he did not indicate what, if any,
weight he gave to the earlier treating podiatrist, Dr. Fierman. Plaintiff argues
that the administrative law judge erred by not adopting all of the limitations
identified by Dr. Mehnert, including his conclusion that plaintiff could
stand/walk for less than 1 hour in an 8-hour day. Dr. Mehnert also concluded
13
that plaintiff would be absent from work more than three times a month due
to her impairments or treatment. Plaintiff maintains that the administrative
law judge cannot pick and choose only the evidence support his conclusion
and ignore the rest of the opinion despite purporting to credit the entire
opinion of Dr. Mehnert. The administrative law judge also gave minimal
weight to plaintiff’s treating psychologist, Dr. Wolfe on the basis that her
opinion was inconsistent with her notes indicating that plaintiff improved
with treatment. The administrative law judge also noted that Dr. Wolfe’s
opinion that plaintiff experienced episodes of decompensation was not
supported by the record. Even if the opinion of Dr. Wolfe was not entitled to
controlling weight, the administrative law judge was required to consider the
factors provided in 20 C.F.R. 404.1527 to determine what weight it should be
accorded. The administrative law judge failed to identify any specific evidence
to support his conclusions with respect to plaintiff’s mental limitations.
• The administrative law judge failed to properly evaluate plaintiff's credibility.
Plaintiff argues that the administrative law judge erred in concluding that
plaintiff’s statements concerning the intensity, persistence, and limiting effects
of her symptoms were not credible to the extent that they were inconsistent
with her residual functional capacity. Plaintiff argues that the administrative
law judge applied the wrong legal standard because plaintiff’s statements
should have been evaluated for the consistency with the evidence of record,
14
not the residual functional capacity evaluation formulated by the
administrative law judge.
Analysis. Treating Doctor: Legal Standard. A treating doctor's opinion1 on the
issue of disability is entitled to greater weight than that of a physician who has
examined plaintiff on only one occasion or who has merely conducted a paper review of
the medical evidence of record. 20 C.F.R. § 404.1527(d)(1). Hurst v. Schweiker, 725 F.2d
53, 55 (6th Cir. 1984); Lashley v. Secretary of Health and Human Services, 708 F.2d 1048,
1054 (6th Cir. 1983). The Commissioner’s regulations explain that Social Security
generally gives more weight to a treating doctors’ opinions because treators are usually
“most able to provide a detailed, longitudinal picture” of the claimant’s medical
impairments. 20 C.F.R. § 404.1527(d)(2). When the treating doctor’s opinion “is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is
The Commissioner’s regulations define “medical opinions” as “statements from
physicians and psychologists or other acceptable medical sources that reflect judgments
about the nature and severity of your impairment(s), including your symptoms,
diagnosis and prognosis, what you can still do despite impairment(s), and your
physical or mental restrictions.” 20 C.F.R. § 404.1527(a)(2). Treating sources often
express more than one medical opinion, including “at least one diagnosis, a prognosis
and an opinion about what the individual can still do.” SSR 96-2p, 1996 WL 374188, at
*2. When an administrative law judge fails to give a good reason for rejecting a treator’s
medical opinion, remand is required unless the failure does not ultimately affect the
decision, i.e., the error is de minimus. Wilson, 378 F.3d at 547. So reversible error is not
committed where the treator’s opinion “is patently deficient that the Commissioner
could not possibly credit it;” the administrative law judge’s findings credit the treator’s
opinion or makes findings consistent with it; or the decision meets the goal of 20 C.F.R.
§ 1527(d)(2) but does not technically meet all its requirements. Id. See, Gayheart v.
Commissioner of Social Security, 710 F.3d 365, 38o (6th Cir. 2013).
1
15
not inconsistent with the other substantial evidence in your case record” the
Commissioner “will give it controlling weight. “ Id.
Even though a claimant's treating physician may be expected to have a greater
insight into his patient's condition than a one-time examining physician or a medical
adviser, Congress specifically amended the Social Security Act in 1967 to provide that to
be disabling an impairment must be "medically determinable." 42 U.S.C. §423(d)(1)(A).
Consequently, a treating doctor's opinion does not bind the Commissioner when it is
not supported by detailed clinical and diagnostic test evidence. Warner v. Commissioner
of Social Security, 375 F.3d 387, 390 (6th Cir. 2004); Varley v. Secretary of Health and Human
Services, 820 F.2d 777, 779-780 (6th Cir. 1987); King v. Heckler, 742 F.2d 968, 973 (6th Cir.
1983); Halsey v. Richardson, 441 F.2d 1230, 1235-1236 (6th Cir. 1971); Lafoon v. Califano,
558 F.2d 253, 254-256 (5th Cir. 1975). 20 C.F.R. §§404.1513(b), (c), (d), 404.1526(b), and
404.1527(a)(1)2.
The Commissioner's regulations provide that she will generally "give more
weight to the opinion of a source who has examined you than to the opinion of a source
who has not examined you." 20 C.F.R. § 404.1527(d)(1). When a treating source's
Section 404.157(a)(1) provides:
You can only be found disabled if you are unable to do 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. See §404.1505. Your impairment must result from anatomical,
physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques. See
§404.1508.
2
16
opinion "is well-supported by medically acceptable clinical and laboratory diagnostic
techniques and is not inconsistent with the other substantial evidence in your case
record, we will give it controlling weight." 20 C.F.R. § 404.1527(d)(2).
When the treating source’s opinion is well-supported by objective medical
evidence and is not inconsistent with other substantial evidence, that ends the analysis.
20 C.F.R. § 404.1527(c)(2); Social Security Ruling 96-2p3. Gayheart v. Commissioner of
Social Security, 710 F.3d 365, 375 (6th Cir. 2013). The Commissioner’s regulations require
decision-makers “to provide ‘good reasons’ for discounting the weight given to a
treating-source opinion. [20 C.F.R.] § 404.1527(c)(2).”4 Gayheart, 710 F.3d at 375.
The Commissioner has issued a policy statement, Social Security Ruling 92-6p, to
guide decision-makers’ assessment of treating-source opinion. It emphasizes:
1. A case cannot be decided in reliance on a medical opinion without
some reasonable support for the opinion.
2. Controlling weight may be given only in appropriate circumstances
to medical opinions, i.e., opinions on the issue(s) of the nature and
severity of an individual’s impairment(s), from treating sources.
3. Controlling weight may not be given to a treating source’s medical
opinion unless the opinion is well-supported by medically acceptable
clinical and laboratory diagnostic techniques.
Social Security Ruling 96-2p provides, in relevant part:
...
6. If a treating source’s medical opinion is well-supported and not
inconsistent with the other substantial evidence in the case record, it
must be given controlling weight; i.e., it must be adopted.
3
Section 404.1527(c)(2) provides, in relevant part: "We will always give good reasons in
our notice of determination or decision for the weight we give your treating source's opinion."
4
17
4. Even if a treating source’s medical opinion is well-supported,
controlling weight may not be given to the opinion unless it also is
“not inconsistent” with the other substantial evidence in the case
record.
5. The judgment whether a treating source’s medical opinion is wellsupported and not inconsistent with the other substantial evidence in
the case record requires an understanding of the clinical signs and
laboratory findings and what they signify.
6. If a treating source’s medical opinion is well-supported and not
inconsistent with the other substantial evidence in the case record, it
must be given controlling weight; i.e., it must be adopted.
7. A finding that a treating source’s medical opinion is not entitled to
controlling weight does not mean that the opinion is rejected. It may
still be entitled to deference and be adopted by the adjudicator.
The focus at this step is solely on whether the treating-source opinion is well-supported
by objective medical evidence and not inconsistent with other substantial evidence. In
making this determination the factors for assessing the weight to give to the medical
opinions of any medical source, 20 C.F.R. § 404.1527(c), are not used. These come into
play only when there are good reasons not to give the treating-source opinion
controlling weight. 20 C.F.R. § 404.1527(c)(2)5; Gayheart, above,710 F.3d at 376, 2013 WL
Section 404.1527(c)(2) provides, in relevant part:
If we find that a treating source's opinion on the issue(s) of the nature and
severity of your impairment(s) is well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with
the other substantial evidence in your case record, we will give it
controlling weight. When we do not give the treating source's opinion
controlling weight, we apply the factors listed in paragraphs (c)(2)(I) and
(c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through
(c)(6) of this section in determining the weight to give the opinion
5
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896255, *10.
If there are good reasons to find that the treating-source opinion is not
controlling, then the decision-maker turns to evaluating all the medical source evidence
and determining what weight to assign to each source, including the treating sources6.
The Commissioner’s regulations require the decision-maker to considers the length of
the relationship and frequency of examination; nature and extent of the treatment
relationship; how well-supported the opinion is by medical signs and laboratory
findings; its consistency with the record as a whole; the treating source's specialization;
the source's familiarity with the Social Security program and understanding of its
evidentiary requirements; and the extent to which the source is familiar with other
information in the case record relevant to decision. 20 C.F.R. § 404.1527(c)(1) through
(6). Subject to these guidelines, the Commissioner is the one responsible for determining
(Emphasis added.)
Even when the treating source-opinion is not controlling, it may carry sufficient
weight to be adopted by the Commissioner:
Adjudicators must remember that a finding that a treating source medical
opinion is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or is inconsistent with the other substantial
evidence in the case record means only that the opinion is not entitled to
"controlling weight," not that the opinion should be rejected. Treating
source medical opinions are still entitled to deference and must be weighed using all of the factors provided in 20 CFR 404.1527 and 416.927. In
many cases, a treating source's medical opinion will be entitled to the
greatest weight and should be adopted, even if it does not meet the test for
controlling weight.
6
SSR 96-2p.
19
whether a claimant is disabled. 20 C.F.R. § 404.1527(e).
The case law is consistent with the principals set out in Social Security Ruling 962p. A broad conclusory statement of a treating physician that his patient is disabled is
not controlling. Garner v. Heckler, 745 F.2d 383, 391 (6th Cir. 1984). For the treating
physician's opinion to have controlling weight it must have "sufficient data to support
the diagnosis." Kirk v. Secretary of Health and Human Services, 667 F.2d 524, 536, 538 (6th
Cir. 1981); Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). The Commissioner may
reject the treating doctor's opinions when "good reasons are identified for not accepting
them." Hall v. Bowen, 837 F.2d 272, 276 (6th Cir. 1988); Wilson v. Commissioner of Social
Security, 378 F.3d 541, 544 (6th Cir. 2004). These reasons must be “supported by the
evidence in the case record, and must be sufficiently specific to make clear to any
subsequent reviewers the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.” Soc. Sec. Rul. No. 96-2p, 1996 WL 374188 at *5;
Rogers v. Commissioner of Social Security, 486 F.3d 234, 242 (6th Cir. 2007). This
procedural requirement “ensures that the ALJ applies the treating physician rule and
permits meaningful review of the ALJ’s application of the rule.” Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).Moreover, the conflicting substantial evidence
“must consist of more than the medical opinions of nontreating and nonexamining
doctors.” Gayheart, 710 at 377. Even when the Commissioner determines not to give a
treator’s opinion controlling weight, the decision-maker must evaluate the treator’s
opinion using the factors set out in 20 C.F.R. § 404.1527(d)(2). Wilson, 378 F.3d at 544;
20
Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). There remains a rebuttable
presumption that the treating physician's opinion "is entitled to great deference." Rogers
v. Commissioner of Social Security, 486 F.3d at 242; Hensley, above. The Commissioner
makes the final decision on the ultimate issue of disability. Warner v. Commissioner of
Social Security, 375 F.3d at 390; Walker v. Secretary of Health & Human Services, 980 F.2d
1066, 1070 (6th Cir. 1992); Duncan v. Secretary of Health and Human Services, 801 F.2d 847,
855 (6th Cir. 1986); Harris v. Heckler, 756 F.2d at 435; Watkins v. Schweiker, 667 F.2d 954,
958 n.1 (11th Cir. 1982).
Treating Doctor: Discussion. With respect to Dr. Mehnert, the administrative law
judge stated:
In a September 2010 statement submitted by the claimant’s attorney, Dr.
Mehnert said the claimant is limited to sitting for eight hours in an eighthour workday and standing up to one hour in an eight-hour workday. He
also said the claimant should be limited to lifting up to 50 pounds
occasionally and carrying up to 10 pounds occasionally. Further, Dr.
Mehnert stated that the claimant does not need to elevate her feet
throughout the workday. (Exhibit B23F.) Mehnert also has a longstanding
treatment relationship with the claimant. Therefore, his opinions
regarding the claimant’s ability to function has been given significant
weight. . . .
(R. 22.) It is the role of the administrative law judge to formulate the residual functional
capacity. As a result, the administrative law judge did not err when he failed to
incorporate all of the limitations identified by Dr. Mehnert. Specifically, Dr. Mehnert
opined that plaintiff would miss more than three days of work per month, and this
opinion was not given weight by the administrative law judge.
21
With respect to Dr. Wolfe, the administrative law judge stated:
In an October 2009 statement, Dr. Wolfe said she does not believe the
claimant is capable of working. (Exhibit B5F/6.) However, this is an issue
reserved for the Commissioner. (20 CFR 416.927(e), SSR 96-5p.) In a
December 2009 assessment, Dr. Wolfe said the claimant’s symptoms
would be exacerbated by work and that the claimant is incapable of
performing even “low stress” work. She also opined that the claimant
would be expected to miss more than three days each month. Further, Dr.
Wolfe noted “marked” limitations in multiple areas. (Exhibit B12F/13-20.)
She reaffirmed this opinion in a more recent October 2011 statement.
(B33F.) However, these opinions are not well supported by the mental
health treatment notes, which, as discussed above, indicate the claimant’s
symptoms are improved with treatment. Additionally, in December of
2009, Dr. Wolfe assigned the claimant Global Assessment of Functioning
score of 60, indicative of only moderate symptoms or moderate limitations
in social or occupational functioning. (Exhibit B12F/13-20.) This is
inconsistent with the multiple “marked” limitations also noted in the
assessment. Finally, in her most recent statement, Dr. Wolfe said the
claimant “experiences episodes of deterioration or decompensation in
work or work-like settings.” (Exhibit B33F.) However, the claimant has not
performed any work activity since she began seeing Dr. Wolfe in 2005.
Further, the record contains no evidence of any episodes of
decompensation to support this statement. Given these factors, the
undersigned has given Dr. Wolfe’s statements only minimal weight in
determining the claimant’s mental abilities and limitations.
(R. 23.) The administrative law judge properly considered the limitations identified by
Dr. Wolfe. The administrative law judge reviewed the “marked” limitations found by
Dr. Wolfe and concluded that these limitations were not supported by her treatment
notes. The limitations were also inconsistent with her GAF score of 60. The record did
not contain any evidence indicating that plaintiff experienced episodes of
decompensation. As a result, the administrative law judge gave sufficient reasons for
rejecting Dr. Wolfe’s opinion.
22
The Commissioner maintains that the administrative law judge considered all
opinion evidence of record, which would include the opinion of Dr. Fierman and that
the administrative law judge was not required to cite that opinion in his decision.
In reviewing the medical evidence of record, the administrative law judge made
one reference to the treatment records of Dr. Fierman. In doing so, however, he did not
specifically identify Dr. Fierman by name or refer to his conclusions. Rather, he stated,
“she cancelled or failed to show up for nearly half of her prescribed sessions. (Exhibit
B15F/5.)”. (R. 22.) Despite the Commissioner’s reliance on the administrative law
judge’s statement that he considered all opinion evidence, I cannot say that the
administrative law judge gave good reasons for not adopting Dr. Fierman’s opinion
because he failed to provide any explanation for what weight, if any, was accorded his
opinion. As a result, I recommend that this case be remanded to allow the
administrative law judge to consider Dr. Fierman’s opinion.
Credibility Determination. Pain is an elusive phenomena. Ultimately, no one can
say with absolute certainty whether another person's subjectively disabling pain and
other symptoms preclude all substantial gainful employment. The Social Security Act
requires that the claimant establish that he is disabled. Under the Act, a "disability" is
defined as "inability to engage in any substantial gainful activity by reason of any
medically determinable or mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months. . . ." 42 U.S.C. §423(d)(1)(A) (emphasis
added).
23
Under the provisions of 42 U.S.C. §423(d)(5)(A), subjective symptoms alone
cannot prove disability. There must be objective medical evidence of an impairment
that could reasonably be expected to produce disabling pain or other symptoms :
An individual's statement as to pain or other symptoms shall not
alone be conclusive evidence of disability as defined in this section;
there must be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques, which show
the existence of a medical impairment that results from anatomical,
physiological, or psychological abnormalities which could
reasonably be expected to produce the pain or other symptoms
alleged and which, when considered with all evidence required to be
furnished under this paragraph (including statements of the
individual or his physician as to the intensity and persistence of such
pain or other symptoms which may reasonably be accepted as
consistent with the medical signs and findings), would lead to a
conclusion that the individual is under a disability. Objective
medical evidence of pain or other symptoms established by
medically acceptable clinical or other laboratory techniques (for
example, deteriorating nerve or muscle tissue) must be considered in
reaching a conclusion as to whether the individual is under a
disability.
The Commissioner’s regulations provide a framework for evaluating a claimant’s
symptoms consistent with the commands of the statute:
(a) General. In determining whether you are disabled, we consider
all your symptoms, including pain, and the extent to which your
symptoms can reasonably be accepted as consistent with the
objective medical evidence and other evidence. By objective medical
evidence, we mean medical signs and laboratory findings as defined
in §404.1528(b) and (c). By other evidence, we mean the kinds of
evidence described in §§404.1512(b)(2) through (6) and
404.1513(b)(1), (4), and (5) and (e). These include statements or
reports from you, your treating or examining physician or
psychologist, and others about your medical history, diagnosis,
prescribed treatment, daily activities, efforts to work and any other
24
evidence showing how your impairment(s) and any related
symptoms affect your ability to work. We will consider all of your
statements about your symptoms, such as pain, and any description
you, your physician, your psychologist, or other persons may
provide about how the symptoms affect your activities of daily living
and your ability to work. However, statements about your pain or
other symptoms will not alone establish that you are disabled; there
must be medical signs and laboratory findings which show that you
have a medical impairment(s) which could reasonably be expected to
produce the pain or other symptoms alleged and which, when
considered with all of the other evidence (including statements about
the intensity and persistence of your pain or other symptoms which
may reasonably be accepted as consistent with the medical signs and
laboratory findings), would lead to a conclusion that you are
disabled. In evaluating the intensity and persistence of your
symptoms, including pain, we will consider all of the available
evidence, including your medical history, the medical signs and
laboratory findings and statements about how your symptoms affect
you. (Section 404.1527 explains how we consider opinions of your
treating source and other medical opinions on the existence and
severity of your symptoms, such as pain.) We will then determine
the extent to which your alleged functional limitations and
restrictions due to pain or other symptoms can reasonably be
accepted as consistent with the medical signs and laboratory findings
and other evidence to decide how your symptoms affect your ability
to work.
20 C.F.R. §404.1529(a). A claimant’s symptoms will not be found to affect his ability to
work unless there is a medically determinable impairment that could reasonably be
expected to produce them. 20 C.F.R. § 404.1529(b). If so, the Commissioner then
evaluates the intensity and persistence of the claimant’s pain and other symptoms and
determines the extent to which they limit his ability to work. 20 C.F.R. § 404.1529(c). In
making the determination, the Commissioner considers
all of the available evidence, including your history, the signs and
25
laboratory findings, and statements from you, your treating or nontreating
source, or other persons about how your symptoms affect you. We also
consider the medical opinions of your treating source and other medical
opinions . . . .
Id.
In this evaluation of a claimant’s symptoms, the Commissioner considers both
objective medical evidence and “any other information you may submit about your
symptoms.” 20 C.F.R. § 404.1529(c)(2). The regulation further provides:
Because symptoms, such as pain, are subjective and difficult to quantify,
any symptom-related functional limitations and restrictions which you,
your treating or nontreating source, or other persons report, which can
reasonably be accepted as consistent with the objective medical evidence
and other evidence, will be taken into account as explained in paragraph
(c)(4) of this section in reaching a conclusion as to whether you are
disabled. We will consider all of the evidence presented, including
information about your prior work record, your statements about your
symptoms, evidence submitted by your treating or nontreating source,
and observations by our employees and other persons. Section 404.1527
explains in detail how we consider and weigh treating source and other
medical opinions about the nature and severity of your impairment(s) and
any related symptoms, such as pain. Factors relevant to your symptoms,
such as pain, which we will consider include:
(I) Your daily activities;
(ii) The location, duration, frequency, and intensity of your pain or
other symptoms;
(iii) Precipitating and aggravating factors;
(iv) The type, dosage, effectiveness, and side effects of any medication
you take or have taken to alleviate your pain or other symptoms;
(v) Treatment, other than medication, you receive or have received for
relief of your pain or other symptoms;
26
(vi) Any measures you use or have used to relieve your pain or other
symptoms (e.g., lying flat on your back, standing for 15 to 20 minutes
every hour, sleeping on a board, etc.); and
(vii) Other factors concerning your functional limitations and
restrictions due to pain or other symptoms.
20 C.F.R. § 404.1529(c)(3). When determining the extent to which a claimant’s
symptoms limit his ability to work, the Commissioner considers whether the claimant’s
statements about the symptoms is supported by or inconsistent with other evidence of
record:
In determining the extent to which your symptoms, such as pain, affect
your capacity to perform basic work activities, we consider all of the
available evidence described in paragraphs (c)(1) through (c)(3) of this
section. We will consider your statements about the intensity, persistence,
and limiting effects of your symptoms, and we will evaluate your
statements in relation to the objective medical evidence and other
evidence, in reaching a conclusion as to whether you are disabled. We will
consider whether there are any inconsistencies in the evidence and the
extent to which there are any conflicts between your statements and the
rest of the evidence, including your history, the signs and laboratory
findings, and statements by your treating or nontreating source or other
persons about how your symptoms affect you. Your symptoms, including
pain, will be determined to diminish your capacity for basic work
activities to the extent that your alleged functional limitations and
restrictions due to symptoms, such as pain, can reasonably be accepted as
consistent with the objective medical evidence and other evidence.
20 C.F.R. § 404.1529(c)(4).
SSR 96-7p explains the two-step process established by the Commissioner’s regulations
for evaluating a claimant’s symptoms and their effects:
First, the adjudicator must consider whether there is an underlying
medically determinable physical or mental impairment(s)--i.e., an impairment(s)
that can be shown by medically acceptable clinical
27
and laboratory diagnostic techniques--that could reasonably be
expected to produce the individual’s pain or other symptoms. The
finding that an individual’s impairment(s) could reasonably be
expected to produce the individual’s pain or other symptoms does
not involve a determination as to the intensity, persistence, or
functionally limiting effects of the individual’s symptoms. . . .
Second, once an underlying physical or mental impairment(s) that
could reasonably be expected to produce the individual’s pain or
other symptoms has been shown, the adjudicator must evaluate
the intensity, persistence, and limiting effects of the individual’s
symptoms to determine the extent to which the symptoms limit
the individual’s ability to do basic work activities. For this
purpose, whenever the individual’s statements about the intensity,
persistence, or functionally limiting effects of pain or other
symptoms are not substantiated by objective medical evidence,
the adjudicator must make a finding on the credibility of the individual’s
statements based on a consideration of the entire case record.
When additional information is needed to assess the credibility of
the individual’s statements about symptoms and their effects, the
adjudicator must make every reasonable effort to obtain available
information that could shed light on the credibility of the
individual’s statements. In recognition of the fact that an
individual’s symptoms can sometimes suggest a greater level of
severity of impairment than can be shown by the objective
medical evidence alone, 20 C.F.R. § 404.1529(c) and 416.929(c)
describe the kinds of evidence, including the factors below, that
the adjudicator must consider in addition to the objective
medical evidence when assessing the credibility of an
individual’s statements:
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
28
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
limitations and restrictions due to pain or other symptoms.
Case law interpreting the statute and regulations. At the outset, it is important to
keep in mind that symptoms are the claimant’s “description of [his/her] physical or
mental impairment.” 20 C.F.R. § 404.1528(a). Inevitably, evaluating symptoms involves
making credibility determinations about the reliability of the claimant’s self-report of
his symptoms. Smith ex rel E.S.D. v. Barnhart, 157 Fed.Appx. 57, 62 (10th Cir. December.
5, 2005) (not published)(“Credibility determinations concern statements about symptoms.”)
“Where the symptoms and not the underlying condition form the basis of the
disability claim, a two-part analysis is used in evaluating complaints of disabling pain.”
Rogers v. Commissioner of Social Sec., 486 F.3d 234, 247 (2007); SSR 96-7p, 1996 WL 374186
(July 2, 1996). That test was first set out in Duncan v. Secretary of Health and Human
Services, 801 F.2d 847, 853 (6th Cir. 1986). First, the Court must determine "whether there
is objective medical evidence of an underlying medical condition." If so, the Court must
then
29
examine: (1) whether objective medical evidence confirms the
severity of the alleged pain arising from the condition; or (2)
whether the objectively established medical condition is of such a
severity that it can reasonably be expected to produce the alleged
disabling pain.
Duncan, 801 F.2d at 853. Any "credibility determinations with respect to subjective
complaints of pain rest with the ALJ." Siterlet v. Secretary of Health and Human Services,
823 F.2d 918, 920 (6th Cir. 1987); Rogers, 486 F.3d at 247 (citing Walters v. Comm'r of Soc.
Sec., 127 F.3d 525, 531 (6th Cir.1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir.1990);
Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 538 (6th Cir.1981)). The ALJ is
required to explain her credibility determination in her decision, which “‘must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reasons for that
weight.’” See id. (quoting SSR 96-7p). Furthermore, the ALJ’s decision must be supported by substantial evidence. Rogers, 486 F.3d at 249.
Discussion of ALJ’s credibility determination. Plaintiff argues that the
administrative law judge used boilerplate language in making his credibility
determination that other courts have specifically rejected. See Bjornson v. Astrue, 671
F.3d 640 (7th Cir. 2012). The language in question is “ the claimant’s statements
concerning the intensity, persistence and limiting effects of these symptoms are not
credible to the extent that they are inconsistent with the above residual functional
capacity assessment.” (R. 20.) The administrative law judge’s analysis did not end
there. The administrative law judge further stated:
30
The objective medical evidence partially supports the claimant’s
allegations. For example, a December 2009 MRI of the claimant’s left ankle
was significant for minimal edema in the soft tissues adjacent to the
plantar fascia and minimal marrow edema in the adjacent calceneal
tuberosity, indicative of a minimal degree of plantar fasciitis. (Exhibit
B11F/20.) X-rays of the heel also show moderate spurring of the heal, and
she has received steroid injections in the left foot. (Exhibit B24F/2-5.)
Additionally, the claimant recently underwent tarsal tunnel release of the
left foot and plantar fascial release of the left foot in an attempt to lessen
the symptoms associated with these conditions. (Exhibit B34F/16.) She
also has a history of headaches and has been diagnosed with GERD and
hypertension, which require medications and ongoing medical
monitoring. (Exhibits B1F, B27F, B29F.) Further, with a body mass index
over 40, the claimant is obese, which likely exacerbates the symptoms of
her physical impairments. (Exhibit B32F/5.)
The mental health treatment notes also support some of the claimant’s
allegations. For example, the claimant has a long history of ADD, anxiety,
and bipolar disorder. (Exhibits B1F, B3F, B5F, B14F, B18F.) Treatment
notes also document complaints of irritability, anxiety attacks, and
difficulty completing tasks. (Exhibits B5F, B27F, B29F.) Prior to the
amended alleged onset date, the claimant also sought emergency room
treatment for chest tightness related to anxiety. (Exhibit B1F/21.)
However, the overall weight of the evidence does not support a finding of
disability. Specifically, the MRI of the claimant’s left ankle only revealed a
minimal degree of plantar fasciitis. (Exhibit B11F/20.) Additionally, on
multiple occasions the claimant described her foot and heel pain as only
“slightly uncomfortable.” (Exhibit B24F/7, 9, 11, 13.) An April 2010
orthopedics exam also revealed normal range of motion of the feet and
ankles. (Exhibit B24F/2-4.) Further, throughout most of the relevant
period, the claimant’s podiatrist has stated she should “continue regular
activities” with “full weightbearing” status. (B24F, B26F.) Since her recent
foot surgery, the claimant has been told to continue with regular activities
and is allowed to perform full weightbearing while wearing a surgical
shoe. (Exhibit B34F/10, 13.) Moreover, the claimant’s hypertension,
GERD, and headaches all seem to be stable with treatment. (Exhibit
B4F/8.)
The claimant’s mental health impairments also appear to be improved
with treatment. For example, in December of 2009, she reported feeling
31
better emotionally and getting along well with her significant other.
(Exhibit B12F/22.) Shortly thereafter, in January of 2010, the claimant
presented to her psychiatrist with adequate hygiene, intact cognition, a
good mood, and normal motor activity. (Exhibit B14F/3.) In April 2010,
the claimant was reportedly “doing well overall,” and in May of 2010, she
reported improvement in concentration and better conflict resolution
abilities. (Exhibits B21F/3, B22F/3.) Other treatment notes also state the
claimant has improved organization, no difficulties with sleeping, and
improved levels of functioning. (Exhibits B25F/3. B27F/3-4, B28F/2.)
During a January 2011 neuropsychiatric exam, the claimant had
appropriate mood and affect, normal thought content, appropriate
judgment and insight, and normal attention and concentration. She also
displayed the ability to recall both recent and remote events. (Exhibit
B32F/8.) Additionally, other medical providers regularly describe the
claimant as pleasant and cooperative. (Exhibits B24F/5, B26F/17.)
In addition to the objective evidence of record, the undersigned has
considered several other factors in determining the claimant’s residual
functional capacity. These factors include her daily activities; the location,
duration, frequency, and intensity of her symptoms; factors that
precipitate and aggravate her symptoms; the type, dosage, effectiveness,
and side effects of medications; other types of treatment or measures
taken to relieve symptoms; and any other factors concerning her
limitations and restrictions. (SSR 96–7p.)
The claimant’s daily activities have not been limited to the extent one
would expect of a disabled individual. For example, she is the primary
caretaker for her young, disabled daughter, which requires her to care for
her daughter’s personal hygiene, help with homework, and get her off to
school each day. (Exhibit B4E, Hearing Testimony.) Additionally, the
claimant enjoys hobbies such as arranging flowers, sewing, and other craft
projects. In fact, in July of 2010, the claimant told her psychiatrist that she
was keeping busy with crafts. (Exhibit B21F/2.)
The record also suggests that the claimant has not been entirely compliant
with medical treatment. For example, she underwent a course of physical
therapy for her heel spur and plantar fasciitis in late 2009. However, she
cancelled or failed to show up for nearly half of her prescribed sessions.
(Exhibit B15F/5.) This suggests the claimant’s symptoms may not be as
limiting as she has alleged.
32
In addition, the claimant has given several inconsistent statements in
connection with her claim. For example, at hearing, the claimant first
testified she is limited to standing for 30 minutes at one time. However,
later in the proceedings, she testified she is able to mow her lawn, pick-up
sticks, and do other yard work for up to 45 minutes at one time. (Hearing
testimony.) Further, in her Function Report, the claimant reported she was
completely unable to perform yard work. (Exhibit B4E.) While such
inconsistencies may not be the result of a conscious decision to mislead,
they do suggest information provided by the claimant many not be
entirely reliable.
A review of the claimant’s work history also reveals that she worked only
sporadically prior to the amended alleged onset date. In fact, the last time
the claimant engaged in substantial gainful activity was in 1997, well
before her original alleged onset date as well as the amended alleged onset
date. (Exhibit B7D, Hearing Testimony.) This raises a question as to
whether the claimant’s continued unemployment is actually due to her
severe impairments.
(R. 20-22.) Here, the administrative law judge properly considered plaintiff’s allegations
concerning her limitations in addition to her treatment records, daily activities and
employment history. He concluded that her allegations were only partially credible and
formulated a residual functional capacity incorporating her allegations to the extent he
found them credible.
For the reasons stated above, the Magistrate Judge RECOMMENDS that this case
be REMANDED to allow the administrative law judge to consider Dr. Fierman’s
opinion.
If any party objects to this Report and Recommendation, that party may, within
fourteen (14) days, file and serve on all parties a motion for reconsideration by the
Court, specifically designating this Report and Recommendation, and the part thereof
in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b),
Fed. R. Civ. P.
33
The parties are specifically advised that failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District
Judge and waiver of the right to appeal the judgment of the District Court. Thomas v.
Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See
also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
s/Mark R. Abel
United States Magistrate Judge
34
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