Hellyer v. Commissioner of Social Security

Filing 19

REPORT AND RECOMMENDATIONS re 3 Complaint. It is RECOMMENDED that the decision of the Commissioner of Social Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiffs motion for summary judgment be DENIED and that defendants motion for summary judgment be GRANTED - objections due w/in fourteen (14) days. Signed by Magistrate Judge Mark R. Abel on 07/15/2014. (sr1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

Leanna J. Hellyer,

v.
Carolyn Colvin,
Acting Commissioner of Social Security,
Defendant

Civil Action 2:13-cv-00802

:

Plaintiff

:
:

Judge Watson

:

Magistrate Judge Abel

:

REPORT AND RECOMMENDATION
Plaintiff Leanna J. Hellyer 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 Social Security disability and 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.
Plaintiff argues that the decision of the Commissioner denying benefits should be
reversed because:
• The administrative law judge erred by adopting the residual functional
capacity assessment of the prior administrative law judge pursuant to AR 984(6);
• The administrative law judge erred by failing to consider Listing 4.11B relating
to chronic venous insufficiency;
• The administrative law judge erred in evaluating plaintiff's credibility; and,
• The administrative law judge erred in failing to obtain testimony from a
medical expert.

Procedural History. In January 2001, plaintiff filed for disability insurance
benefits alleging disability as of August 26, 2000. The state agency denied her
application initially and upon reconsideration. Plaintiff timely requested a hearing. In
October 2001, an administrative law judge held a hearing and issued a decision finding
that plaintiff was not disabled. Plaintiff did not appeal that decision.
Plaintiff Leanna J. Hellyer filed her application for disability insurance benefits
on September 15, 2010, alleging that she became disabled on June 15, 2005, at age 39, by
depression, diabetes, neuropathy and severe pain in her legs. (R. 259, 296.) The
application was denied initially and upon reconsideration. Plaintiff sought a de novo
hearing before an administrative law judge. On March 27, 2012, an administrative law
judge held a hearing at which plaintiff, represented by counsel, appeared and testified.
(R. 66.) A vocational expert also testified. On May 18, 2012, the administrative law
judge issued a decision finding that Hellyer was not disabled within the meaning of the
Act. (R. 60.) On June 18, 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. 1-4.)
Age, Education, and Work Experience. Leanna J. Hellyer was born November
14, 1965. (R. 259.) She has a high school education and received training from the
Bureau of Vocational Rehabilitation. (R. 297.) She has worked as an assistant cook,
cashier, newspaper delivery person, survey interviewer, industrial packer, and
salesperson. She last worked June 2009. (R. 297.)
2

Plaintiff’s Testimony. Plaintiff testified that she lives with her boyfriend. She has
a driver’s license, but she does not have a car. Her mother helps her get around. She
does not believe that she could drive if she had a car given the neuropathy in her feet,
which resulted in a loss of feeling. Her father drove her to the hearing.
Plaintiff completed high school. She received a little bit of income, a medical
card, and food stamps from the Ohio Department of Job and Family Services. In 2006
and 2007, plaintiff worked part time as an assistant cook at the Faith Memorial Church
daycare center. She left that job because of her diabetes and emotional stability.
Hellyer said she had a sore on her leg from a spider bite and could not stand
anymore. The bite caused her severe pain, and it would not heal. The wound seeped
continually, and she experienced a burning pain. She was treated at the emergency
room. She was given a tetanus shot and had the wound wrapped. In 2010, she was
treated at a wound clinic. It has never completely cleared up.
Plaintiff also experienced numbness in her hands and feet. She has no feeling in
her feet whatsoever. The numbness in her feet became progressively worse since she
stopped worked. The numbness caused her to have difficulty walking and standing.
Her varicose veins caused her lot of pain. She had severe swelling in her legs and
bruising. She was prescribed Cymbalta, Neurontin, and Lidocaine patches for pain, but
they did not provide her relief. She has been having ablations on her legs to increase
blood flow. It was necessary for her to elevate her legs to get the blood flow back up to
her heart. As a result, she could only stand for 15-20 minutes. She elevated her legs
3

during the day every 15-20 minutes. Over the course of a day, she elevated her legs for
approximately 6 hours. This has become increasingly worse. Two to three years ago, she
only elevated her legs for four hours a day.
She continued to have weeping from her leg. Her leg had discoloration. The
wound has been debrided twice.
Hellyer began taking insulin in June 2011. She checked her blood sugar regularly,
and her levels ran from 110 to 200. In the fall of 2011, she was prescribed compression
stockings. She was first instructed to use them in 2002. She generally wore them
everyday.
The numbness in her fingers have caused her to burn her fingers. She had
difficulty picking up a glass, a pitcher or a half gallon of milk. Her problems with her
hands started in 2010. She could not distinguish between water temperatures. She
cannot button or zip clothes. She can barely make a fist, although she can turn a
doorknob.
Plaintiff also testified that she had pain in her shoulders and weakness in her
arms. She hurt all over. Her doctor believed that she may have fibromyalgia.
Hellyer had difficulty sleeping because she had trouble breathing and had panic
attacks. She was told she had sleep apnea, but she could not use a CPAP machine
because she felt claustrophobic. She had been using oxygen for the past week because
she could not use a CPAP machine, but she did not feel as though it was helping. Her
energy level was poor.
4

Hellyer had crying spells, anxiety, memory problems, and mood swings for the
past two years. She was prescribed Abilify. She had gone to mental health centers in the
past. She had trouble breathing during the day and felt as though an elephant was
sitting on her chest. Side effects from her medications included sleepiness and memory
problems.
Hellyer said she had severe pain in her spine. Sitting for a long time caused her
pain. She could only sit for 10-15 minutes. She could walk about 200 yards before
requiring a rest.
During the day, Hellyer did the dishes and what housework she could perform.
She went grocery shopping with her mom once or twice a month. She watched about an
hour of television. She used to walk her boyfriend’s dogs, but she could no longer do so.
She had no hobbies. (R. 76-102.)
Medical Evidence of Record. The administrative law judge’s decision fairly sets
out the relevant medical evidence of record. This Report and Recommendation will
only briefly summarize that evidence.
Physical Impairments.
David Lynch, D.O. On June 7, 2005, Dr. Lynch noted that plaintiff had a red spot
on her leg down to her ankle that was seeping. On January 8, 2008, Dr. Lynch said that
the wound on plaintiff’s leg was healing well. She had full strength in her legs. He
treated plaintiff for neuropathy, hypertension, type 2 diabetes, and venous
insufficiency. (R. 493.) Dr. Lynch noted that plaintiff’s depression was controlled with
5

medications. (R. 494.) He believed that her condition was sufficiently under control for
her to operate a motor vehicle. (R. 495.)
Ebunulunda Wion, O.D. On October 1, 2010, Dr. Wion, plaintiff’s primary care
physician, opined that plaintiff was “unemployable.” Dr. Wion treated plaintiff for
diabetes, peripheral neuropathy, peripheral vascular disease, depression, and
abdominal pain. Dr. Wion concluded that plaintiff could stand and/or walk for one
hour in an eight hour work day and sit for one hour in an eight hour workday. Hellyer
was moderately limited in her ability to perform repetitive foot movements. She
exhibited an antalgic gain and leaned to the left. (R. 438-39.)
In February 2011, plaintiff complained of right leg and calf pain. She had reddish
discoloration of the bilateral toes, and swelling was worse on the left. Her fasting blood
sugar was 264, and plaintiff was placed on insulin. (R. 574.)
On January 11, 2012 Dr. Wion completed a physical capacities evaluation. (R.
756.) Dr. Wion opined that plaintiff could only walk or stand for 3 hours in an eight
hour day. She could sit for six hours in an eight hour day. She could lift up to five
pounds occasionally. With respect to the occasional use of her hands, Dr. Wion
confusingly indicated that plaintiff both could and could not perform simple grasping,
pushing and pulling and fine manipulation. Dr. Wion opined that plaintiff could not
use her feet for repetitive movements in operating foot controls. Plaintiff could
occasionally bend, but she could never squat, crawl, or climb. She could not reach above
shoulder level. Dr. Wion did not express any opinion on the evaluation form concerning
6

whether plaintiff could sustain full-time work activity. (R. 757.) Dr. Wion also
completed an upper extremity physical capacity evaluation. (R. 758-59.) She could
occasionally perform gross and fine manipulation. She could never reach in all
directions. She could occasionally feel.
Fairfield Medical Center Wound Clinic. On May 3, 2007, plaintiff was treated at
the Wound Clinic. The ulcer measured 2-3 cm by 2.0 cm. On May 29, 2007, the ulcer
measured 2.6 cm by 2.0 cm. The base was beefy red, moist and hypergranulated. (R.
499.) On June 11, 2007, there was reddish brown drainage on the dressing. (R. 503.)
On June 15, 2011, plaintiff reported bilateral leg inflammation and pain. The skin
on her right lower leg was slightly pink with petechia. She had edema, varicose veins,
skin discoloration, decreased hair growth, and decreased sensation below the ankle. (R.
637.)
Plaintiff was treated at the wound clinic from December 2011 through May 2012.
(R. 804-839.) On May 17, 2012, plaintiff returned for treatment of an open wound on her
left lower leg. Plaintiff reported excessive warmth, increased drainage and increased
pain. (R. 804-05.)
David Lynch, D.O. David Lynch, D.O. submitted records from June 2004
onward. (R. 492.) On June 7, 2005, plaintiff had a non-healing wound on her left lower
leg, varicose veins, superficial cellulitis, and excoriations of the left medial leg. She was
prescribed compression stockings. (R. 507.) On July 26, 2006, plaintiff had lower
extremity pain and numbness with sclerosis and varicosities and edema in her lower
7

extremities. (R. 508.) On August 27, 2004, plaintiff had bilateral lower extremity edema.
(R. 505.)
A February 8, 2011 bilateral venous duplex ultrasound found no evidence of
deep vein thrombosis (R. 609). On February 8, 2011, plaintiff had multiple dry patches
on her bilateral lower extremities with purple discoloration on multiple bilateral toes
and lower extremity swelling. (R. 574.) A February 11, 2011 lower arterial study found
no edema and no evidence of significant peripheral arterial disease of the bilateral lower
extremities (R. 603.) On April 19, 2011, treatment notes reflect that plaintiff had bilateral
lower extremity varicose veins, increased sensitivity in her calves, and decreased
sensation in her feet. (R. 565.) An April 29, 2011 lower extremity arterial doppler study
found no evidence of significant peripheral arterial disease of bilateral lower extremities
(R. 688-91.) A May 31, 2011 right lower extremity doppler ultrasound was negative for
deep vein thrombosis as to the right lower extremity and no focal abnormalities were
seen (R. 644-45).
CardioVascular Specialists. On July 21, 2011, plaintiff was seen by a cardiologist
who noted the presence of lower extremity pain, a non-healing sore, and findings of
venous insufficiency including ulceration. (R. 678.)
A July 8, 2011 lower extremity venous duplex report indicated findings of
significant reflux in the superficial veins of the right and left lower extremities. The
exam was technically difficult because of plaintiff’s edema. (R. 687.)

8

A December 22, 2011 treatment note indicated that plaintiff had multiple
excoriations on her legs and 2+ edema bilaterally. (R. 764-67.)
A March 1, 2012 lower extremity venous duplex report indicated that the greater
saphenous vein was non-compressible in the left thigh consistent with superficial
venous thrombosis. There was continuous reflex while standing within the perforators
connecting the greater saphenous vein to the posterior tibial veins about the left leg
ulcer. (R. 788.)
Ron P. Linehan, M.D. On July 25, 2011, Dr. Lineham, a pain management
specialist, began treating plaintiff for low back and leg pain. (R. 754-55.) Dr. Lineham
diagnosed lumbar disc disease with nerve root impingement and diabetic neuropathy.
Dr. Lineham administered a series of lumbar epidural injections. (R. 751-55). A
September 14, 2011 x-ray of plaintiff’s lumbar spine confirmed the presence of mild
spondylosis at multiple levels, mild to moderate degenerative disc disease, and
spondylosis and facet arthropathy at L5-S1. (R. 742.)
On January 4, 2012, Dr. Linehan noted that plaintiff failed to improve with
treatment. Her findings were consistent with sacrollitis and/or facet arthropathy. (R.
787.)
Christian R. Tencza, M.D. On December 22, 2011, Dr. Tencza examined plaintiff
for evaluation of pulmonary hypertension following a referral by Dr. Wion. Plaintiff
reported having trouble doing lots of things. She could not stand for long because of
diabetes and sores on her legs. Walking and activities of daily made her short of breath.
9

Plaintiff reported that she may have fibromyalgia. She was positive for Raynaud’s
phenomenon. Dr. Tencza also diagnosed diastolic heart dysfunction and congestive
heart failure. (R. 764-69.)
A January 6, 2012 pulmonary function study revealed a severe obstructive defect
with a moderately reduced diffusing capacity. (R. 777-78.)
Rajib Saha, D.O. On January 4, 2012, plaintiff was diagnosed with obstructive
sleep apnea. (R. 782-83.) On January 25, 2012, Dr. Saha, a physician with Columbus
Sleep Consultants, evaluated plaintiff for complaints of poor sleep. Dr. Saha diagnosed
obstructive sleep apnea and restless leg syndrome. During the evaluation, plaintiff left
against medical advice during the second night of observation. (R. 779-81.)
On January 6, 2012, plaintiff began receiving treatment at the Endocrinology,
Diabetes and Metabolism Clinic at The Ohio State University Medical Center. (R. 796803.)
Psychological Impairments.
William H. Vasilakis Psy.D. On September 27, 2010, Dr. Vasilakis, a psychologist,
completed a medical functional capacity assessment for the Ohio Department of Jobs
and Family Services. Dr. Vasilakis diagnosed major depressive disorder, recurrent;
anxiety disorder, not otherwise specified with panic; and a pain disorder. Dr. Vasilakis
opined that plaintiff was markedly limited in her abilities to understand and remember
very short and simple instructions; carry out very short and simple instructions; to
maintain attention and concentration for extended periods; to work in coordination
10

with or proximity to others without being distracted by them; to make simple workrelated decisions; to complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent pace without an
unreasonable number and length of rest periods. Dr. Vasilakis also opined that plaintiff
was markedly limited in her abilities to accept instructions and respond appropriately
to criticism from supervisors and to travel in unfamiliar places or use public
transportation. (R. 485-86.)
On mental status examination, plaintiff was oriented in three spheres. Her
speech was slow and her tone was moderate. She reported that her leg felt like she had
been stabbed with hot pokers. She reported feeling severely depressed. She reported
symptoms of anhedonia, withdrawal, tearfulness at times, and trouble sleeping. She
stated she was not able to maintain employment because of her pain. She had no past
psychiatric history, although she received counseling when she was 19 years old for
behavioral issues. She had panic attacks in the past and reported that her depression
waxed and waned. She had considered suicide in the past but has not made any
attempts. There was no evidence of psychosis. (R. 486.)
Marc E. Miller, Ph.D. On December 21, 2010, Dr. Miller, a psychologist,
performed a consultative examination of plaintiff at the request of the Bureau of
Disability Determination. Plaintiff reported difficulty with chronic anxiety, depression,
temper outbursts, withdrawal and moodiness. She was treated in 2004 and 2006 for
depression, but she no longer was in treatment.
11

On mental status examination, plaintiff was oriented in all four spheres. Her
concentration was fair. She could not spell “world” in reverse. She could follow twostep directions. Hellyer rated her depression as a 10 on a ten-point scale and her anxiety
as an 8. Dr. Miller rated her depression as a 7 and her anxiety between 6 and 7. Her
energy level was fair to poor. She was tearful at times during the evaluation. She
complained of anxiety attacks around crowds, people or when under stress. Hellyer
noted difficulty with agitation, impatience, and irritability over the past two years.
Hellyer described her daily activities as going to sleep at 6 p.m. and rising at 3
a.m. She ate two meals per day. She had her driver’s license, but she stayed at home.
She had no hobbies. She did not watch television. Her boyfriend performed the
cooking, laundry, and cleaning. Her mother took her grocery shopping. Her boyfriend
took care of the money management.
Dr. Miller concluded that plaintiff had no impairment in her abilities to
understand, remember and carry out one and two-step job instructions. Hellyer’s ability
to interact with co-workers, supervises and the public was mildly impaired. Her ability
to maintain attention and concentration was moderately impaired. Her ability to deal
with stress and pressure in a work setting was moderately impaired. Her persistence in
task completion was moderately impaired. Dr. Miller assigned Hellyer a Global
Assessment of Functioning (“GAF”) score of 60. Dr. Miller diagnosed pain disorder
with psychological factors and medical condition; dysthymic disorder, moderate; and
generalized anxiety disorder, moderate to severe. (R. 488-91.)
12

Administrative Law Judge’s Findings.
1.

The claimant met the special earnings requirement of the Act on the
alleged onset date and continues to meet those requirements
through the date of this decision.

2.

The claimant engaged in substantial gainful activity from June 2006
to July 2007 (20 CFR 404.1520(b), 404.1571 et seq., 416.920(b) and
416.971 et seq.).

3.

However, there has been a continuous 12-month period during
which the claimant did not engage in substantial gainful activity.

4.

The claimant has the following severe impairments: chronic venous
insufficiency; diabetes mellitus; diabetic neuropathy; pain disorder
with general medical condition; obstructive sleep apnea with
restless leg syndrome; lower extremity edema; depression; and
generalized anxiety disorder (20 CFR 404.1520(c) and 416.920(c).

5.

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 404.1520(d), 404.1525, 404. 1526, 416.920(d), 416.925 and
416.926).

6.

After careful consideration of the entire record, I find that the
claimant has the residual functional capacity to perform sedentary
work as defined in 20 CFR 404.1567(a) and 416.967(a). Specifically,
she can lift 15 pounds frequently and 25 pounds occasionally. She
can sit for two hours at a time for a total of six hours in a workday.
She can stand for 30 minutes at a time for a total of two hours in a
workday and she can walk for one hour at a time for a total of four
hours in a workday. She must have the option of alternating
between a sitting and a standing position every two hours and
needs the opportunity to elevate her legs for 30 minutes at midday.
She can crouch and squat less than occasionally. She can climb
stairs occasionally. She cannot work around unprotected heights or
moving or hazardous machinery. Mentally, the claimant can
understand and perform simple repetitive tasks that do not require
more than occasional adaptions to changes in the work

13

environment. She has the ability to maintain attention and
concentration for two-hour segments.
7.

The claimant cannot perform her past relevant work (20 CFR
404.1565 and 416.965).

8.

The claimant was born on November 14, 1965 and was 39 years old,
which is defined as younger individual age 18-44, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).

9.

The claimant has at least a high school education and can
communicate in English (20 CFR 404.1564 and 416.964).

10.

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 8241 and CFR Part 404, Subpart P, Appendix 2).

11.

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 404.1569, 404.1569(a), 416.969, and 416.969(a)).

12.

The claimant has not been under a disability, as defined in the
Social Security Act from June 15, 2005, through the date of this
decision (20 CFR 404.150(g) and 416.920(g)).

(R. 46-60.)
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
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.
14

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 erred by adopting the residual functional
capacity assessment of the prior administrative law judge pursuant to AR 984(6). Plaintiff argues that although this claim involves a prior application and
decision, the administrative law judge’s reliance on AR 98-4(6) to adopt the
prior administrative law judge’s residual functioning capacity evaluation was
improper because the record contains new and material evidence
documenting a worsening of her chronic venous insufficiency and establishing
the presence of additional severe impairments including chronic obstructive
pulmonary disorder, degenerative disc disorder, diabetic neuropathy, and
obstructive sleep apnea which impose additional and significant limitation of
function. Plaintiff experienced non-healing ulcerations, severe lower extremity
15

swelling, loss of sensation in her legs and feet, skin discoloration with
cellulitis, and chronic lower extremity swelling.
• The administrative law judge erred by failing to consider Listing 4.11B relating
to chronic venous insufficiency. To meet Listing 4.11B, a claimant must show a
diagnosis of chronic venous insufficiency of a lower extremity with
incompetency or the obstruction of the deep venous system, with superficial
varicosities, stasis dermatitis, and either recurrent ulceration or persistent
ulceration that has not healed following at least three months of prescribed
treatment. Plaintiff argues that the record documents the presence of varicose
veins, stasis dermatitis and both recurrent and persistent ulcerations affecting
her lower extremities. The record also documents a persistent nonhealing
wound on plaintiff’s lower extremities, edema, numbness and skin
discoloration. Plaintiff reported persistent swelling, severe pain in her legs,
and the need to elevate them frequently throughout the day. There is no
indication in the decision showing that the administrative law judge
considered Listing 4.11B.
• The administrative law judge erred in evaluating plaintiff's credibility. The
administrative law judge concluded that the evidence failed to document signs
associated with chronic, severe pain including muscle atrophy, spasm, rigidity
or tremor. The administrative law judge indicated that allowing plaintiff to
elevate her legs for thirty minutes at midday was sufficient to address her
16

lower extremity swelling. In reaching this conclusion, the administrative law
judge adopted the conclusion of the previous administrative law judge.
Plaintiff maintains that this was improper because at the time of the prior
assessment, plaintiff’s lower extremity symptoms were healed and under
good control. Plaintiff argues that the current record demonstrates a
significant worsening of her chronic venous insufficiency and lower extremity
condition. Even if elevation for thirty minutes at lunchtime was adequate in
2003, it was not adequate in March 2012. Plaintiff argues that her complaints of
swelling, pain, ulcerations, and the need to frequently elevate her legs are the
direct result of medically determinable impairments and are well-supported
by the objective and clinical evidence of record.
• The administrative law judge erred in failing to obtain testimony from a
medical expert. Plaintiff argues that the administrative law judge abused his
discretion in failing to obtain medical expert testimony. Medical expert
testimony may be warranted when determining whether a claimant’s
impairment meets a listed impairment; determining the degree of severity of a
claimant’ physical or mental impairment; clarifying conflicting or confusing
medical evidence; explaining the significance of clinical or laboratory findings
in the records; determining the functional limitations established by the
evidence; or establishing the onset of disability. Plaintiff contends that the

17

administrative law judge was not qualified to evaluate these issues without
input from a medical expert.
Analysis. Prior ALJ Decision. The administrative law judge stated:
The prior Administrative Law Judge found the claimant had the
following severe impairments: chronic venous insufficiency; diabetes
mellitus without end organ complication; and her depression.
New and additional evidence submitted with the new application
does not show any increase in severity of symptoms and or functional
limitations or the occurrence of any additional new severe physical
impairments. However, new and additional evidence submitted with the
new application does evidence the additional presence of a generalized
anxiety disorder, a pain disorder with generalized medical condition;
obstructive sleep apnea with restless leg syndrome; diabetic neuropathy;
and an increase in severity in the limits on the ability to perform daily
living activities, interact socially and maintain concentration, persistence,
or pace.
As the new and additional evidence submitted by the claimant fails
to establish the claimant is more limited than originally determined vis-avis the claimant’s severe physical impairments and the limitations they
impose res judicata attaches as to those impairments and so, therefore, I am
bound by the May 8, 2003, findings of the previous Administrative Law
Judge as to the claimant’s severe physical impairments and the limitations
they impose. As such, those findings remain in full force and effect.
Because new and additional evidence submitted with the new
applications shows the claimant has been assessed with additional mental
impairments and the now combined effects of all the claimant’s mental
impairments limits her more than originally determined by the previous
Administrative Law Judge, a basis for a different finding as to the severity
of the claimant’s mental impairments and residual functional capacity is
established.
(R. 44.) Plaintiff argues that the record contains new and material evidence
documenting a worsening of her chronic venous insufficiency and establishing the
presence of additional severe impairments including chronic obstructive pulmonary
disorder, degenerative disc disorder, diabetic neuropathy, and obstructive sleep apnea
18

which impose additional and significant limitation of function. Plaintiff’s symptoms
include non-healing ulcerations, swelling in her lower extremities, diminished sensation
in her legs and feet, skin discoloration and cellulitis. The administrative law judge
acknowledged that the medical evidence demonstrated that the claimant has insulin
dependent diabetes mellitus, chronic venous insufficiency, diabetic neuropathy, pain
disorder with general medical condition, obstructive sleep apnea with restless leg
syndrome, lower extremity edema, depression and a generalized anxiety disorder. (R.
54.)
The residual functional capacity adopted by the administrative law judge is
supported by substantial evidence in the record. The administrative law judge noted
that the record did not contain evidence of abnormal clinical or laboratory findings
sufficient to document a further degree of loss than that necessary to perform sedentary
work with limitations on the amount of time she could remain on her feet without
needing to change position.
Listing 4.11B. Listing 4.11 states:
Chronic venous insufficiency of a lower extremity with incompetency or
obstruction of the deep venous system and one of the following:
...
B. Superficial varicosities, stasis dermatitis, and either recurrent ulceration
or persistent ulceration that has not healed following at least 3 months of
prescribed treatment.
20 CFR Pt. 404, Subpt. P, App. 1.

19

The administrative law judge stated that the medical evidence failed to
demonstrate that Hellyer’s impairments met or equaled the criteria for any of listed
impairments. The administrative law judge specifically considered Listings 3.10, 3.09,
11.14, and 12.02, 12.04, 12.06, 1207, or 12.08. The administrate law judge did not identify
Listing 4.11 as a potential listing. The administrative law judge identified chronic
venous insufficiency as one of plaintiff’s severe impairments, but he noted that Dr.
Lynch reported that plaintiff’s neuropathy with leg pain was controlled with
medication. Dr. Lynch indicated that Hellyer had full strength in her legs, and she had
no driving limitations. (R. 493-95.) A February 8, 2011 bilateral venous duplex
ultrasound found no evidence of deep vein thrombosis (R. 609). A February 11, 2011
lower arterial study found no edema and no evidence of significant peripheral arterial
disease of the bilateral lower extremities (R. 603.) An April 29, 2011 lower extremity
arterial doppler study found no evidence of significant peripheral arterial disease of
bilateral lower extremities (R. 688-91.) A May 31, 2011 right lower extremity doppler
ultrasound was negative for deep vein thrombosis as to the right lower extremity and
no focal abnormalities were seen (R. 644-45), and a July 8, 2011 lower extremity venous
duplex study found no evidence of deep vein thrombosis in either lower extremities (R.
687).
Plaintiff does not point to any evidence in the record documenting chronic
venous insufficiency of a lower extremity “with incompetency or obstruction of the

20

deep venous system,” and the administrative law judge did not err by failing to
explicitly discuss Listing 4.11B.
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).
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
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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
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
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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
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
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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;
(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
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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
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
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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
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

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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
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
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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. In evaluating Hellyer’s
credibility, the administrative law judge stated:
Regarding overall credibility, the evidence fails to document that the
claimant has demonstrated most of the signs typically associated with
chronic, severe pain, such as muscle atrophy, spasm, rigidity, or tremor.
The medical evidence demonstrates that the claimant has insulin
dependent diabetes mellitus, chronic venous insufficiency, diabetic
neuropathy, pain disorder with general medical condition, obstructive
sleep apnea with restless leg syndrome, lower extremity edema,
depression and a generalized anxiety disorder. As noted above, the
additional medical evidence submitted since the prior decision fails to
document any deterioration in the claimant’s physical impairments or
increased severity in the limitations they impose upon the claimant’s
ability to perform basic work functions.
...
Although the claimant alleges problems with regard to her lower
extremities, in January 2008, David P. Lynch, D.O., the claimant’s long
time attending physician reported that the neuropathy with leg pain,
present for 15 years, was controlled with medication and further reported
that the claimant’s leg wound was healing well. The claimant was noted to
have full strength in both legs and no driving limitations (Exhibit 9F, pp.24). Other than a remote history of a spider bite, testing has not revealed
any specific cause for the claimant’s lower extremity weakness or pain,
although diabetic neuropathy has been suggested. A February 8, 2011
bilateral venous duplex ultrasound found no evidence of DVT on either
side (Exhibit 11F, p. 48 and 13F, p.40). February 11, 2011 lower arterial
study found no edema and no evidence of significant of peripheral
arterial disease of bilateral lower extremities (Exhibit 14F, pp.11-14). May
31, 2011 right lower extremity DVT Doppler ultrasound was negative for
DVT to right lower extremity and no focal abnormalities were seen
(Exhibit 13F, pp. 14-24). July 8, 2011 lower extremity Venous Duplex study
found no evidence of DVT or SVT in vessels visualized in both lower
extremities, but significant reflux noted on the superficial veins of both
lower extremities (Exhibit 14F, p.10). July 15, 2011 Lexiscan Sestamibi
Myocardial Perfusion Imaging Study was normal with no evidence of
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ischemia; left ventricular gated ejection fraction was normal to 69 percent
with normal wall motion and wall thickening; and ECG portion of stress
test was negative for ischemia (Exhibit 14F, p.6) The claimant’s pain
complaints could not be explained by laboratory tests and she was
referred to a pain specialist, Ron P. Linehan, M.D. (Exhibit 17F, pp.4-5).
Dr. Linehan reported that although the etiology of the claimant’s pain was
unclear, he suspect[ed] a probable component of diabetic neuropathy,
nerve root impingement secondary to lumbar disc disease. Lumbar spine
x-rays demonstrated only mild spondylosis multiple levels, mild to
moderate degenerative disease and spondylosis and facet arthropathy at
L5-S1 (Exhibit 15F, p.50). Dr. Linehan reported no improvement with
lumbar epidural steroid injections (Exhibit 21F).
(R. 54-55.)
Here, the administrative law judge properly evaluated plaintiff’s credibility
when considering the objective medical evidence, treatment measures, and her activities
of daily living. The administrative law judge also noted inconsistent statements
regarding her limitations made by plaintiff:
In addition to the general lack of objective evidence to support her
subjective complaints, there are other considerations that weight against
the claimant’s overall credibility. For example:
In October 2010, the claimant reported non-healing wound on her
left leg causing pain since only June 2010. She also reported a 15year history of diabetes, but was not taking any medication for
control. She also reported that sitting was unaffected (Exhibit 2F).
In February 2011, during a diabetes consultation, the claimant
reported walking dogs two to three times daily, one-half mile walk
for exercise (Exhibit 11F, p. 58).
In February 2011 the claimant reported feeling “bad” after her
glucose dropped from 300's to 200's and ate a “cookie.” The
claimant reportedly was not keeping logs and had irregular meal
times (Exhibit 15F, p. 26).

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Dr. Tencza reported that a significant portion of the claimant’s
breathing complaints and fatigue might be related to untreated
sleep disordered breathing (Exhibit 19F) and the claimant was
referred for sleep studies. However, although diagnosed with OSA,
the claimant left early, twice, against medical advice (AMA) during
the sleep studies (Exhibit 23F).
The claimant has alleged difficulty using her hands due to
numbness and weakness, but when seen by an endocrinologist in
January 2012, she denied any symptoms related to her hands
(Exhibit 24F).
(R. 56-57.) As a result, the credibility assessment of the administrative law judge is
supported by substantial evidence in the record.
Failure to Obtain a Medical Expert. The primary function of a medical expert is
to explain medical terms and the findings in medical reports in more complex cases in
terms that the administrative law judge, a who is not a medical professional, may
understand. See, Richardson v. Perales, 402 U.S. 389, 408 (1972). The Commissioner’s
regulations provide that an administrative law judge “may also ask for and consider
opinions from medical experts on the nature and severity of [the claimant’s]
impairment(s) and on whether [the] impairment(s) equals the requirements of any
impairment listed in appendix 1 to this sub-part.” 20 C.F.R. § 404,1527(f)(2)(iii). The
Commissioner’s operations manual indicates that it is within the administrative law
judge’s discretion whether to seek the assistance of a medical expert. HALLEX I-2-5-32
(September 28, 2005). “The primary reason an ALJ may obtain ME opinion is to gain
information which will help him or her evaluate the medical evidence in a case, and
determine whether the claimant is disabled or blind.” Id. The operations manual
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indicates that an administrative law judge “may need to obtain an ME’s opinion” in the
following circumstances:
• the ALJ is determining whether a claimant’s impairment(s) meets a
listed impairment(s);
• the ALJ is determining the usual dosage and effect of drugs and other
forms of therapy;
• the ALJ is assessing a claimant’s failure to follow prescribed treatment;
• the ALJ is determining the degree of severity of a claimant’s physical
or mental impairment;
• the ALJ has reasonable doubt about the adequacy of the medical
record in a case, and believes that an ME may be able to suggest
additional relevant evidence;
• the medical evidence is conflicting or confusing, and the ALJ believes
an ME may be able to clarify and explain the evidence or help resolve a
conflict;
• the significance of clinical or laboratory findings in the record is not
clear, and the ALJ believes an ME may be able to explain the findings
and assist the ALJ in assessing their clinical significance;
• the ALJ is determining the claimant's residual functional capacity, e.g.,
the ALJ may ask the ME to explain or clarify the claimant's functional
limitations and abilities as established by the medical evidence of
record;
• the ALJ has a question about the etiology or course of a disease and
how it may affect the claimant's ability to engage in work activities at
pertinent points in time, e.g., the ALJ may ask the ME to explain the
nature of an impairment and identify any medically contraindicated
activities; or
• the ALJ desires expert medical opinion regarding the onset of an
impairment.

HALLEX I-2-5-34 (September 28, 2005). An administrative law judge’s determination of
whether a medical expert is necessary is inherently a discretionary decision. Nebra A.
Simpson v. Commissioner of Social Security, 2009 WL 2628355 (6th Cir. August 27,
2009)(unreported) at *8. An administrative law judge abuses her discretion only when

31

the testimony of a medical expert is “required for the discharge of the ALJ’s duty to
conduct a full inquiry into the claimant’s allegations. See 20 C.F.R. § 416.1444.”
Haywood v. Sullivan, 888 F.2d 1463, 1467-68 (5th Cir. 1989).
Here the administrative law judge did not abuse his discretion. His decision
included a thorough recitation of the evidence and provided a thorough, well-documented findings supporting the conclusion.
From a review of the record as a whole, I conclude that there is substantial
evidence supporting the administrative law judge's decision denying benefits.
Accordingly, it is RECOMMENDED that the decision of the Commissioner of Social
Security be AFFIRMED. It is FURTHER RECOMMENDED that plaintiff’s motion for
summary judgment be DENIED and that defendant’s motion for summary judgment
be GRANTED.
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.
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.

32

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

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