Gerber v. Commissioner of Social Security
Filing
22
OPINION AND ORDER overruling 16 STATEMENT OF SPECIFIC ERRORS. Judgment is entered in favor of Defendant. Signed by Magistrate Judge Terence P. Kemp on 9/30/2015. (agm)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Kelly Sue Gerber,
:
Plaintiff,
:
v.
:
Case No. 2:14-cv-473
Commissioner of Social Security,
Magistrate Judge Kemp
Defendant.
:
OPINION AND ORDER
I.
Introduction
Plaintiff, Kelly Sue Gerber, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for disability insurance benefits.
That
application was filed on January 28, 2010, and alleged that
Plaintiff became disabled on September 10, 2009.
After initial administrative denials of her claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on October 18, 2012.
In a decision dated November 19,
2012, the ALJ denied benefits.
That became the Commissioner’s
final decision on March 24, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on August 1, 2014.
Plaintiff filed a
statement of specific errors on November 6, 2014, to which the
Commissioner responded on January 25, 2015.
Plaintiff did not
file a reply brief, and the case is now ready to decide.
II.
Plaintiff’s Testimony at the Administrative Hearing
Ms. Gerber was 42 when the administrative hearing was held.
She is a high school graduate who completed two years of college
but did not get a degree.
She testified to the following at the
administrative hearing (see Tr. 41-69).
Plaintiff said she had not worked since September of 2009.
Going back to 1997, she had worked as a video store manager, as a
desk clerk and assistant general manager/sales director at a
hotel, as a parts inspector in a factory which made automotive
parts, as a Wal-Mart cashier, as a package scanner, and again as
a hotel clerk.
While working that job, she developed both
personal and physical problems, and she was diagnosed with
Raynaud’s syndrome and lupus.
Plaintiff had surgery for carpal tunnel syndrome in 2010.
She had some temporary relief but still experienced problems with
numbness and grip strength.
She had pain from a sciatic nerve
problem and suffered numbness in her right leg.
She also had
blackouts in her left eye, occurring three or four times per
week.
They coincided with headaches.
She was seeing three
doctors on a regular basis: a primary care physician, a doctor
for arthritis, lupus, and fibromyalgia, and one for migraine
headaches.
The ALJ asked Plaintiff if she could do a job that allowed
her to move around and not lift or carry.
She said that
visibility would be a limiting factor, as would side effects from
medication, including nausea and drowsiness.
During a normal
day, Plaintiff would help her children with their homework and
assist in some household chores, but she could not stand longer
than eight or ten minutes or sit for more than fifteen or twenty
minutes at a time.
Her lupus caused her hands, feet, and ankles
to stiffen and swell, and back spasms interrupted her sleep.
typically would lie down several times in a day.
She
Finally, she
had shortness of breath and used an inhaler several times a day.
III.
The Medical Records
The medical records in this case are found beginning on page
251 of the administrative record.
They are voluminous, as
illustrated by the 18-page summary of them found in Plaintiff’s
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Statement of Errors.
The Court will focus its discussion on the
records which pertain to Plaintiff’s three assignments of error
(headaches, upper extremity limitations, and certain opinion
evidence).
A.
Headaches
Plaintiff was seen at Hilliard Rome Family Medicine on
September 8, 2009.
She reported anxiety, heart palpitations, and
right shoulder and back pain, for which she had sought treatment
at the emergency room several weeks before.
The examiner’s notes
state that she also had headaches three or four times per week,
and headache was among the diagnoses.
(Tr. 512-13).
That
appointment occurred two days before the alleged onset date of
disability.
Many of the treatment notes in the following months deal
with Raynaud’s phenomenon, based on Plaintiff’s report of burning
sensations and discoloration of her toes and feet.
underwent some testing for lupus.
She also
In connection with that
effort, she reported to Dr. Gray, a rheumatologist, that chronic
headaches were among her symptoms (along with fatigue, weight
gain, night sweats, cold sensitivity, thinning of her hair, mouth
sores, dry mouth, loss of appetite, heartburn, nausea, tingling,
and numbness).
medications.
It did not appear she was taking any headache
(Tr. 456-57).
Plaintiff had a great deal of medical treatment after that
date for her Raynaud’s and for an embolism in her leg, among
other things.
Generally, she did not report headaches or seek
treatment for them.
In connection with seeking treatment for
neck pain in February of 2011, she did describe headaches with
temporary loss of vision, but she attributed them to the neck
pain.
A CT of the brain was ordered.
(Tr. 439).
At a follow-up
visit, Plaintiff reported getting headaches less frequently,
noting that the pain was more in her neck.
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(Tr. 443).
When she
asked for a disability form to be filled out in April of 2011,
she identified her disabling illnesses as lupus, Raynaud’s, and
low back pain.
She had also missed a neurology appointment for
her headaches.
(Tr. 446).
The next mention of headaches in the medical records appears
to be an emergency department note from June, 2011.
Plaintiff
presented with a complaint of right shoulder and neck pain as
well as a headache, and she reported a history of migraine
headaches.
A CT scan was ordered and completed, which was
unremarkable.
(Tr. 652-54).
Three months later, Plaintiff
continued to report headaches with vision loss, although she said
it only lasted for a few seconds.
(Tr. 600).
Two weeks after
that visit (i.e. September 21, 2011) she was still having
problems with transient worsening of vision and headaches, but
according to the treatment note, “she has not lost her vision for
more than a few secs anytime & her headache is dull aching.”
(Tr. 597).
But only eight days later, she told a different
doctor that she had had migraines for fifteen years and recently
had episodes where she lost the vision in her left eye for five
to ten minutes at a time.
which was normal.
A carotid Doppler study was done,
Dr. Hamilton, the examining physician, ordered
an MRI.
(Tr. 580-84).
That was subsequently done and was
normal.
Dr. Bozkir suggested that the cause was retinal migraine
and he recommended that Plaintiff keep a diary of symptoms.
(Tr.
585).
Plaintiff saw Dr. Bozkir again on January 9, 2012, and
reported that, according to her diary, she had had a headache
every 2-3 days since November.
He did not find any ocular cause
for the headaches and recommended that she see her family doctor
for treatment.
(Tr. 715).
Another physician, Dr. Black,
speculated that the right occipital trigger point might be
causing some of her headaches.
(Tr. 668-70).
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There do not
appear to be any additional records containing significant
information about this medical issue, except that in a number of
other medical notes, language such as “no headache” appears when
Plaintiff’s systems and symptoms were reviewed.
B.
Upper Extremity Pain
Most of the records relied on by Plaintiff concerning this
impairment deal with either right shoulder pain or numbness and
loss of grip strength in the right hand.
She told the
consultative examiner, Dr. Winkle, that she had swelling in her
hands, wrists, and fingers, brought on by repetitive hand
movements among other things.
Her carpal tunnel surgery had
improved the numbness she used to experience in her wrist,
however.
No swelling was evident during the examination and her
strength was normal.
Dr. Winkle did not suggest any limitations
on the use of her hands.
(Tr. 263-65).
The balance of the records consist of Plaintiff’s report to
various physicians, or the emergency department, that she had
either right shoulder pain or swelling of her hands.
There are
also notes indicating a full range of motion in all joints.
However, Dr. England did note, on several occasions, that
Plaintiff had synovitis of both elbows and that Plaintiff had
“[f]ull range of motion of upper and lower extremities but
painful.”
(Tr. 725).
Finally, as Plaintiff points out, Dr.
Congbalay, a state agency physician, completed a physical
residual functional capacity assessment which, while it did not
limit Plaintiff in pushing and pulling with her arms, limited her
to only frequent gross manipulation with the right hand.
She
noted, in her comments, Dr. Winkle’s finding that Plaintiff had
pain on extension of her right wrist.
IV.
(Tr. 358-65).
The Medical Testimony
Dr. Lee Fischer testified at the administrative hearing as a
medical expert, beginning at Tr. 70.
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His testimony can be
summarized as follows.
Dr. Fischer identified Plaintiff’s primary problems as
connective tissue disorder, possibly lupus, Raynaud’s phenomenon,
bilateral hearing loss, hypertension, chronic low back pain,
carpal tunnel syndrome, headaches, fibromyalgia, obstructive
sleep apnea, and COPD.
problems.
Obesity contributed to some of her
Together, these impairments limited her to working in
a clean air environment, and they prevented her from ever
kneeling, crouching, or crawling, but she could occasionally
climb stairs, bend or stoop.
or scaffolds.
She could not be on ladders, ropes,
Additionally, she should avoid temperature
extremes and unprotected heights and could work only at the
sedentary exertional level.
V.
The Vocational Testimony
Robert Breslin was the vocational expert in this case.
His
testimony begins at page 76 of the administrative record.
Mr. Breslin first testified that Plaintiff’s past relevant
work, as she testified to, included jobs at the sedentary and
light exertional levels, and was either skilled or semi-skilled.
Mr. Breslin was then asked to testify about a hypothetical
individual who had a number of physical limitations and, in
addition, could do a range of tasks without specific production
requirements or frequent changes in the job routine.
He
responded that none of her past jobs would allow for that limited
type of standing and the performance of only unskilled tasks.
However, such a person could work as an unskilled assembler or
inspector at the sedentary level.
If she had headaches as
frequently as she testified and also had to nap daily, she could
not work.
VI.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages 1430 of the administrative record.
The important findings in that
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decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured requirements of the Social Security Act through
June 30, 2014.
Next, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since her alleged onset
date of September 10, 2009.
Going to the next step of the sequential evaluation process,
the ALJ determined that Plaintiff had multiple severe impairments
including a connective tissue disorder generally diagnosed as
lupus, Raynaud’s phenomenon, obesity, chronic obstructive
pulmonary disease, chronic low back pain secondary to
degenerative disc disease of the thoracic spine, and depression.
The ALJ also found that these impairments did not, at any time,
meet or equal the requirements of any section of the Listing of
Impairments (20 C.F.R. Part 404, Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level.
However, she
could not climb ladders, ropes, or scaffolds and could not kneel,
crouch or crawl.
stoop.
She could occasionally climb stairs, bend, and
She could not tolerate concentrated exposure to
respiratory irritants and had to avoid extremes of temperature
and unprotected heights.
Lastly, she could do only jobs which
did not have strict production quotas or frequent changes in the
work routine.
The ALJ next concluded that Plaintiff, with these
limitations, could not do any of her past relevant work.
However, Plaintiff could do the assembler and inspector jobs
identified by the vocational expert.
The ALJ further found that
these jobs existed in significant numbers in both the regional
and national economies, there being 135 such jobs regionally and
196,000 nationally.
Consequently, the ALJ concluded that
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Plaintiff was not entitled to benefits.
VI.
Plaintiff’s Statement of Specific Errors
Plaintiff raises these issues in her statement of errors.
First, she argues that the ALJ did not have substantial evidence
to support the finding that her headaches were not a severe
impairment.
Second, she asserts that the residual functional
capacity finding is not based on substantial evidence because it
omitted any mention of upper extremity limitations.
Third, she
contends that the ALJ erred by failing to discuss some of the
opinion evidence.
These contentions are reviewed under the
following legal standard.
Standard of Review.
Under the provisions of 42 U.S.C.
Section 405(g), "[t]he findings of the Secretary [now 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)).
scintilla.'" Id.
Cir. 1976).
It is "'more than a mere
LeMaster v. Weinberger, 533 F.2d 337, 339 (6th
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 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).
Even if this Court
would reach contrary conclusions of fact, the Commissioner's
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decision must be affirmed so long as that determination is
supported by substantial evidence.
Kinsella v. Schweiker, 708
F.2d 1058, 1059 (6th Cir. 1983).
A.
Headaches as a Severe Impairment
The evidence concerning Plaintiff’s complaint of frequent
headaches, accompanied by temporary loss of vision, is summarized
above.
The ALJ did not find Plaintiff’s headaches to be a severe
impairment.
The ALJ did so on the basis that “there is no
objective medical evidence to support her claims” and because
Plaintiff skipped one neurological consult, denied headaches at
various times, had normal neurological findings on tests, and her
doctors commented that there was no reason they could detect for
her vision loss.
Also, the ALJ referred to Dr. Fischer’s
testimony that the records did not support Plaintiff’s
allegations and that she did not take medications normally
prescribed for migraines.
(Tr. 18-19).
Plaintiff argues that
these reasons are either a mischaracterization of the record or
are not reasonable inference that can be drawn from the medical
records.
The Commissioner first argues that the failure to find
Plaintiff’s headaches to be a severe impairment is
inconsequential because the ALJ found other severe impairments to
exist.
That argument has force, however, only when the ALJ,
despite finding a particular impairment to be nonsevere, still
takes some functional limitations arising from that impairment
into account when determining a claimants’ residual functional
capacity.
See Maziarz v. Secretary of Health & Human Services,
837 F.2d 240, 244 (6th Cir. 1987).
That did not happen here.
Alternatively, the Commissioner argues that the evidence cited by
the ALJ is drawn from the record and supports the finding that
Plaintiff’s headaches were not severe.
There is certainly evidence in the record to support a
finding that Plaintiff’s headaches imposed more than an
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insignificant limit on her ability to work, especially if her
testimony as to the frequency and effect of her headaches were
credited.
However, that is not the relevant question.
The Court
does not reweigh the evidence presented to the ALJ, but rather
must determine only if a reasonable person could, reviewing that
evidence, reach the same conclusion as the ALJ.
Here, the Court finds that the evidence in the record can
support a reasonable inference that Plaintiff’s headaches did not
impose significant limitations on her ability to work.
She did
miss the first neurological appointment after complaining of
headaches to her family doctor, which could lead a reasonable
person to conclude that the problem was not as severe as she
claimed.
She reported on a number of occasions, although it was
to doctors who were treating her for other conditions, that she
did not have headaches.
consideration.
That is entitled to be given some
No medical test showed a specific cause for her
headaches, and the suggestion that they might be related to an
occipital trigger point was only that - a suggestion.
Dr.
Fischer, the medical expert, pointed out that the record did not
show that Plaintiff was taking medications typical of migraine
sufferers.
Although headaches may, as Plaintiff argues,
typically be diagnosed based on subjective reports of symptoms,
the factors relied on by Dr. Fischer were entitled to be given
some weight by the ALJ.
Finally, Plaintiff’s reports of the
frequency and severity of her symptoms differed, even when made
in roughly the same time frame, something which casts some doubt
on the reliability of her testimony.
In fact, the ALJ made a
finding that her complaints, including her description of
debilitating headaches, were not entirely credible, and Plaintiff
has not directly challenged that finding.
While a reasonable
person could have concluded, given this evidence, that
Plaintiff’s headaches imposed some functional limitations, the
opposite conclusion is also permissible.
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When that is the case,
the ALJ’s decision cannot be overturned by a reviewing court.
See, e.g., Kalmbach v. Comm'r of Social Security, 409 Fed. Appx.
852, 859 (6th Cir. Jan.7, 2011)(“If substantial evidence supports
the ALJ's conclusion and the ALJ applied the correct legal
standards, we are not at liberty to reverse the ALJ's decision
even if substantial evidence exists in the record that would have
supported an opposite conclusion”).
Consequently, the Court
finds no merit in Plaintiff’s first statement of error.
B.
Upper Extremity Limitations
Plaintiff’s argument on this point is similar to her
argument about headaches.
Again, she notes the presence of
medical evidence (which the Court has summarized above) showing
that she reported various issues with her hand, wrist, and
shoulder, and that various doctors concluded that she was limited
to some degree by these impairments.
She argues that the ALJ was
required to impose limitations on reaching, handling, fingering,
and feeling, and that the failure to do so is cause for remand.
In opposition, the Commissioner asserts that the record simply
does not support any manipulative limitations, especially given a
number of normal neurological examinations and the fact that Dr.
Winkle did not impose any such limitations as a result of his
findings.
The ALJ made the general statement (Tr. 24) that the vast
majority of examinations showed full range of motion and full
strength in all Plaintiff’s extremities.
The ALJ also noted that
Dr. Congbalay had, based on Dr. Winkle’s examination findings,
imposed postural, manipulative, and hearing limitations, but
stated that “the medical evidence does not support postural or
hearing limitations.”
(Tr. 27).
The ALJ did not specifically
discuss the manipulative limitations found by Dr. Congbalay other
than to say that Plaintiff’s carpal tunnel syndrome had resolved
and that she had full range of motion, full strength, and normal
reflexes, sensation, and coordination in her upper extremities.
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Id.
She did not mention Dr. Winkle’s separate finding of pain on
extension of the right wrist or swelling of the hand and wrist
brought on by repetitive movements, nor the comment that
Plaintiff’s range of motion studies, though normal, did produce
some pain.
The ALJ is not, of course, required to discuss every single
item of evidence in her decision.
Further, because there is no
treating physician opinion in this case dealing with manipulative
limitations, the ALJ was not required to articulate her findings
about such limitations in any particular fashion.
The Court’s
duty, in reviewing a decision about limitations arising from a
specific impairment, is to ensure that the ALJ actually
considered all of the pertinent evidence, even if it was not all
cited, and that the ALJ’s ultimate determination has substantial
support in the record.
See Karger v. Comm'r of Social Security,
414 Fed. Appx. 739, 753 (6th Cir. Feb. 10, 2011)(the ALJ must
“discuss enough [ ] evidence to enable [a reviewing court] to
determine whether substantial evidence supports the [ALJ's]
determination...”).
Dr. Congbalay was the only physician to express an opinion
that certain manipulative limitations existed.
She relied on Dr.
Winkle’s report, which, in turn, relied to some extent on
Plaintiff’s subjective report of swelling caused by repetitive
movements (no swelling was noted on the day of the examination),
and, as noted above, the ALJ found Plaintiff not to be fully
credible.
Dr. Fischer, who reviewed the same records as Dr.
Congbalay and additional records as well, did not testify to any
manipulative limitations.
There are records showing normal range
of motion in the upper extremities.
Consequently, while a more
detailed discussion of some of the evidence about shoulder pain
or synovitis might have been helpful, the absence of that
discussion does not convince the Court either that the ALJ
completely ignored that evidence or that she did not have a
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reasonable basis for concluding that Plaintiff had no
manipulative limitations.
Consequently, the Court finds no merit
in Plaintiff’s second statement of error.
C.
The Opinion Evidence
Plaintiff’s final claim is that the ALJ did not properly
consider all of the opinion evidence.
The two items of opinion
evidence to which she refers are a statement from a nurse
practitioner at OSU Ross Heart Hospital to the effect that
Plaintiff should remain off work until further notice and a
statement found in the Hilliard Rome Family Medicine notes
indicating that Plaintiff experienced back spasms if remaining in
one position for too long.
The ALJ did discuss opinions from
Hilliard Rome Family Medicine in general but not this specific
finding.
The
Commissioner responds that the ALJ did not have to
assign weight to the opinion of a nurse practitioner and, even if
she should have, that opinion was not supported by the record
because there is no evidence that Plaintiff had a severe cardiac
impairment.
The Court finds this latter assertion to be correct
and will not devote any further discussion to the nurse
practitioner opinion.
As to the other opinion, the Commissioner argues that it was
entitled to little weight, essentially claiming that the ALJ’s
failure to discuss this specific portion of the opinion is
harmless error.
The Court agrees.
No other doctor (assuming
that the opinion in question was rendered by a doctor, which is
not entirely clear) suggested that Plaintiff’s back pain was so
severe as to preclude even sedentary work.
There are no records
to support that conclusion, and another opinion rendered by the
same group of physicians only a month before did not include this
limitation.
All of the other opinion evidence, including the
testimony of Dr. Fischer, was to the contrary.
It seems clear
that a remand for a more specific finding as to this single piece
of evidence would have no chance of changing the ultimate result
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in this case.
Consequently, even if the ALJ made a technical
error in not assigning specific weight to this opinion, that
error was harmless.
As a result, the Court finds no merit in
this last statement of error.
VII.
Decision
Based on the above discussion, Plaintiff’s statement of
specific errors (Doc. 16) is overruled and the Clerk is directed
to enter judgment in favor of the defendant Commissioner.
/s/ Terence P. Kemp
United States Magistrate Judge
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