Martin v. Commissioner of Social Security Administration
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Barbara J. Martin. It is recommended that the Plaintiff's statement of errors be overruled and that judgment be entered in favor of the Defendant. Objections to R&R due by 7/10/2017. Signed by Magistrate Judge Terence P. Kemp on 6/26/2017. (kdp)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Barbara J. Martin,
: Case No.
: CHIEF JUDGE EDMUND A. SARGUS, JR.
: Magistrate Judge Kemp
Commissioner of Social Security,
REPORT AND RECOMMENDATION
Plaintiff, Barbara J. Martin, filed this action seeking
review of a decision of the Commissioner of Social Security
denying her application for disability insurance benefits for a
time period prior to January 1, 2012.
The application under
consideration in this case was filed on May 1, 2008, and, as
amended, alleged that Plaintiff became disabled on February 12,
Plaintiff filed a civil action after her application was
See Martin v. Comm’r of Social Security, Case No.
2:12-cv-649 (S.D. Ohio).
In an order dated August 7, 2013, the
Court remanded the case to the Commissioner for further
proceedings pursuant to a joint stipulation of the parties.
the meantime, Plaintiff had filed a second application for
benefits, and it was granted with an onset date of January 1,
Consequently, benefits after that date are not at issue
After remand, Plaintiff was given a further hearing before
an Administrative Law Judge on July 17, 2014.
In a decision
dated September 9, 2014, the ALJ denied benefits for the time
period at issue.
That became the Commissioner’s final decision
on December 8, 2015, when the Appeals Council denied review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on October 24, 2016.
Plaintiff filed a
statement of errors on March 1, 2017, to which the Commissioner
responded on May 17, 2017.
Plaintiff did not file a reply brief,
and the case is now ready to decide.
Plaintiff’s Testimony at the Administrative Hearings
Because this case is a continuation of the prior case, it is
helpful to review Plaintiff’s testimony at both the more recent
administrative hearing and at the one held in 2010.
begins with the latter hearing.
Plaintiff’s testimony there is
found at pages 32-44 of the record.
Plaintiff (who was 57 years old at the time of that hearing,
and who has her GED) first testified that she had previously
worked as a cashier.
She worked thirty hours per week and lifted
ten to fifteen pounds.
Plaintiff also had a part-time job at a
Senior Volunteer Service Program.
pain, fibromyalgia, and stress.
She left that job due to back
Her employer was also late in
making mileage payments.
Next, Plaintiff testified that she had back pain, which
started in 1994 or 1995.
She had had surgery, physical therapy,
medication, and chiropractic treatment but her back was still
The pain radiated down her leg as well.
recliner or lying in bed helped.
Sitting in a
Her medication affected her
On a typical day, she took her pain medication, ate
breakfast, prayed, and then attempted to do chores.
brace herself anytime she stood up.
She had to
She could sit for fifteen to
twenty minutes and could shop for groceries, although she needed
help bringing groceries into the house.
At the second hearing, Plaintiff’s testimony, found at pages
621-37 of the administrative record, was as follows.
elaborated more on her past work, stating that when working at
Rio Grande University (the volunteer coordinator position) she
did not have to lift much, and when at Family Dollar (the cashier
position), she worked not only as a cashier but also stocked
shelves, lifting up to 20 pounds.
That was also a part-time job.
Plaintiff also provided more testimony about her
She said she had been diagnosed with that
condition in 2000 or 2001.
After the diagnosis, she continued to
work because she needed the money.
After she had her spinal
fusion done, she experienced pain in her lower back which
radiated around to the front of her body and to her hips.
was also experiencing pain in her left arm and in her hands due
She did not get restful sleep during that time
Her memory problems began in 2005 or 2006,
causing her family to worry if she was developing Alzheimer’s
Her doctor told her she was suffering from
During the same time period, she had a foot
surgery and still experienced some cramping in that foot, and her
fibromyalgia caused pain in her back, arms, shoulders, and neck.
The Medical Records
The pertinent medical records are found beginning at page
225 of the first volume of the administrative record and at page
754 of the second volume.
The Court will focus primarily on the
records of treatment from Dr. Higgins, since the ALJ’s evaluation
of his opinions forms the basis for Plaintiff’s statement of
The Court begins its summary with a treatment note from Dr.
Lee dated September 26, 2007.
That note shows that Plaintiff had
a history of fibromyalgia and that her symptoms were “stable” at
that time although she noticed some increase in symptoms after
Her trigger points were all tender at that
She received an injection for bursitis.
notes from Dr. Lee are similar and show that fibromyalgia had
been diagnosed five or six years before.
Plaintiff was still working when most of these notes were made.
She attended physical therapy sessions in 2008 but those sessions
were discontinued due to pain.
Plaintiff began seeing Dr. Higgins in 2008 as a result of a
referral from her surgeon.
She presented with complaints of
aching in her neck, burning in her shoulders, and pain in her low
back and knees.
She also reported some numbness in her hands and
feet and bilateral weakness in her legs and back.
standing, and walking for more than thirty minutes at a time were
problematic for her.
Examination findings included tenderness to
light touch and decreased lumbar range of motion.
concluded that her diffuse pain was from fibromyalgia and he
changed her medication, with a plan to follow up every six weeks.
Treatment notes from 2009 and 2010 show that
Plaintiff continued to be seen for “multiple somatic complaints”
and that her condition was essentially unchanged.
to show tenderness along the fibromyalgic tender points.
November of 2009 she reported improvement with physical therapy
but said that standing or walking over ten minutes made things
She also reported moderate difficulty doing home chores
and noted that she was “retired.”
In February, 2010, Plaintiff
said she had both muscle and joint pain and was experiencing
weakness in the left arm.
Her gait was antalgic, probably due to
her having had bunion surgery.
No trigger points were evident at
Dr. Higgins’ first opinion was expressed in a physical
capacity evaluation dated March 4, 2010.
Dr. Higgins indicated
that, since May of 2008, Plaintiff could lift and carry only five
pounds, could sit for four hours, could stand for four hours, had
to alternate between those two positions every fifteen minutes,
could occasionally twist, stoop, bend, and climb stairs, and
could never crouch or climb ladders.
She could also reach
overhead or push and pull only occasionally, and she had to avoid
vibration and hazards.
He also said she had a mental impairment
that affected her ability to deal with even simple work
instructions and decisions
The next treatment note from Dr. Higgins is dated May 3,
At that time, Plaintiff’s symptoms were being partially
controlled by Elavil, Neurontin, and Vicodin.
resting, and reclining all helped with the pain, while standing
and sitting too long made it worse.
Again, no trigger points
Neither that note nor the prior one indicated a
diagnosis of fibromyalgia.
Dr. Higgins increased Plaintiff’s
dosage of Elavil but otherwise kept her treatment the same.
He saw Plaintiff twice more in 2010, noting in August that
she was doing a little better, but walking or standing for more
than five minutes was still an issue, and that she was also
experiencing bilateral shoulder pain.
Again, no trigger points
were noted but seated straight leg raising was positive on the
She was encouraged to continue with shoulder and low back
At the October, 2010 appointment, Plaintiff said she
felt worse, perhaps due to the onset of cold weather.
she could do most of her activities of daily living and she had
been helped by chiropractic care.
Her physical examination was
the same as at the prior visit, and some medication adjustments
were made to try to help with her back pain and radiculopathy.
There are additional treatment notes from Dr. Higgins for
late 2010 and for 2011.
On December 10, 2010, Plaintiff reported
feeling better, but the note indicates some forgetfulness which
might be related to medications.
In February, 2011, she was
about the same, but said her symptoms were under reasonable
No trigger points could be identified.
examination was much the same, but in June, 2011, she reported
feeling confused after increasing the dosage of her Neurontin.
Her physical examination was basically normal except for
tenderness in the lumbar spine and decreased lumbar range of
Plaintiff reported some new areas of pain in August,
2011, but she also said that her pain level was 4 out of ten and
she could do self-care and drive a car.
She was a little worse
at the October, 2011 visit although her back pain was about the
She took prednisone after that visit and said in November,
2011, that it had helped.
As with most visits, the physical exam
did not reveal any tender points or muscle spasms, her gait was
intact, and her transfers were intact as well.
described as “possible” and Cymbalta was prescribed.
In December, she was again doing better, although still
reporting some issues with cognition.
There are no
other treatment notes from Dr. Higgins prior to the last date of
the period under review.
Dr. Higgins wrote a letter dated February 24, 2013,
outlining his views of Plaintiff’s medical status.
He said that
he was treating her for multiple medical conditions and that she
also suffered from depression, which aggravated her
Her symptoms were also aggravated by
extended movement and overuse and by remaining in one position
for an extended period.
He also believed that “fibromyalgia fog
can limit her ability to concentrate....”
From a physical
capacity standpoint, Plaintiff was capable of walking for ten to
fifteen minutes at a time and for no more than two hours in a
day, had to change positions every fifteen minutes, should not
lift over ten pounds, should not reach overhead, could not bend
or stoop, and would miss work 2-4 times per month.
Two state agency physicians reviewed the records and
expressed opinions about Plaintiff’s physical residual functional
Dr. Bacalla concluded that Plaintiff could do a
relatively full range of light work, with some restrictions on
climbing, stooping, and crouching.
subsequently reviewed that opinion and concluded that the
“evidence in the file does not support reducing light RFC.”
The Vocational Evidence
At the second hearing, Connie O’Brien testified as a
Her testimony begins at page 637 of the
Ms. O’Brien began by identifying and classifying Plaintiff’s
She said that Plaintiff was a cashier stocker, which
is light and has an SVP of 3, and was also a volunteer
coordinator, which is sedentary with an SVP of seven.
Next, Ms. O’Brien was asked questions about a hypothetical
person who could work at the light exertional level but who could
not climb ladders, ropes, or scaffolds and could stoop and crouch
She said that such a person could do both of
Plaintiff’s past jobs.
Responding to questions from Plaintiff’s counsel, Ms.
O’Brien next testified that someone who could sit for four hours
and stand for four hours a day, who had to alternate between
sitting and standing every fifteen to twenty minutes, who could
lift five to ten pounds frequently, who could occasionally twist,
stoop, bend, and climb ladders, and who had to avoid exposure to
workplace hazards, could not work as a cashier stocker, but could
still perform the volunteer coordinator job.
However, if the
person were off task for ten percent of the work day, that job
could not be done either.
The Administrative Law Judge’s Decision
The Administrative Law Judge’s decision appears at pages
596-607 of the administrative record.
The important findings in
that decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act at
all times relevant to his decision.
Second, he found that
Plaintiff had not engaged in substantial gainful activity since
her alleged onset date.
Going to the next step of the sequential
evaluation process, the ALJ concluded that Plaintiff had severe
impairments including fibromyalgia and degenerative disc disease
of the spine.
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
Moving to the next step of the sequential evaluation
process, the ALJ found that Plaintiff could work at the light
exertional level except for occasional stooping and crouching.
Also, she could not climb ladders, ropes, or scaffolds.
With these restrictions, the ALJ concluded that Plaintiff,
could do her past relevant work as a cashier stocker and as a
A person who can do his or her past
relevant work is not disabled under the Social Security Act.
Consequently, the ALJ decided that Plaintiff was not entitled to
Plaintiff’s Statement of Errors
In her statement of errors, Plaintiff raises a single issue
- that the ALJ erred by not assigning any weight to the opinions
of the treating source, Dr. Higgins.
The ALJ’s decision is
reviewed under this 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)).
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.
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
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).]
Since Plaintiff’s sole statement of error deals with Dr.
Higgins’ opinions, the Court will begin by setting out exactly
what the ALJ had to say on that subject.
After summarizing the
two opinions in question, he concluded:
I cannot give any weight to either of Dr. Higgins’
opinions for the following reasons. First, these
opinions are at odds with each other without any
significant change in the claimant’s objective findings
or subjective complaints showing improvement which Dr.
Higgins’ more recent assessment indicates. Second, Dr.
Higgins is not a psychiatrist. Yet he first indicates
that the claimant’s mental impairment would affect her
ability to perform stressful work but later says that
her fibromyalgia “fog” would affect her work. Third,
considering that fibromyalgia is primarily a symptom
based impairment on which Dr. Higgins based is
opinions, and explained in more detail below, the
claimant’s assertions regarding her symptoms are not
entirely credible. And fourth, the evidence does not
support the claimant’s assertions prior to her
established onset date of January 1, 2012. Physical
examinations show only intermittent trigger/tender
points, and there was no weakness or neurological
deficit. Gait was unimpaired, and, in fact, the
claimant reported that her pain had improved with
prednisone and other treatments.
The ALJ, by contrast, gave great weight to the
opinions of the two state agency physicians because they were
“well supported by the evidence of record” which showed that
although Plaintiff had significant disc disease and limitation in
the range of motion of the lumbar spine, her clinical
examinations showed “no neurological deficits, no weakness, and
no substantial gait abnormality.”
Plaintiff attacks these findings on a number of fronts.
argues that Dr. Higgins’ two opinions are, rather than
contradictory, “strikingly similar,” Doc. 18, at 20, that the
fact that Dr. Higgins is not a psychiatrist has no bearing on the
validity of his opinions about Plaintiff’s physical abilities,
that the supposedly less-than-credible report of symptoms formed
only part of the basis for Dr. Higgins’ opinions, and that the
medical records do show substantial abnormalities on examination.
The Commissioner responds that the record fully supports each
reason given by the ALJ to discount Dr. Higgins’ opinions and
that the reasons he articulated are sufficient to justify giving
little or no weight to Dr. Higgins’ conclusions.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.
§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).
However, in evaluating a treating
physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.
Moon v. Sullivan, 923 F.2d 1175 (6th
Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
The Commissioner may also evaluate other objective
medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).
Cutlip v. Secretary of
No matter how the issue of the
weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
The first reason given by the ALJ to discount Dr. Higgins’
opinions was that they indicated different restrictions even
though it did not appear that Plaintiff’s physical condition had
changed much in the time elapsed between the two opinions.
are some inconsistencies in the opinions, but the basic
restrictions are similar, although the latter opinion is a bit
Also, given the fact that they were rendered
almost three years apart and that Plaintiff’s condition was not
completely stable during that time period, some inconsistencies
might be expected.
This reason, standing alone, would probably
not support the ALJ’s rejection of Dr. Higgins’ opinion, but it
was not the only reason given.
The second point made by the ALJ was that Dr. Higgins is not
a psychiatrist, but he did express opinions on mental health
That is true.
His first opinion referred to an
unspecified mental impairment which, in his opinion, was so
severe that Plaintiff could not understand, remember, and carry
out even simple instructions or make simple work-related
His second opinion mentioned “fibromyalgia fog” but
also indicated that Plaintiff suffered from depression and that
her depression aggravated her musculoskeletal condition.
was entitled to discount those portions of both opinions because
of Dr. Higgins’ lack of expertise in the area of mental
impairments and because he provided no treatment for either
depression or any other mental impairment.
The fact that the ALJ
also found, based on other evidence, that Plaintiff did not have
a severe mental impairment - a finding not challenged here supports his determination on this issue as well.
Next, the ALJ cited to the fact that fibromyalgia is a
symptom-related disease and to his finding that Plaintiff was not
entirely credible in reporting her symptoms.
It is clear that
objective evidence is not particularly helpful in determining the
extent to which fibromyalgia may cause disabling symptoms, and
ALJs have been criticized for relying overly much on the absence
of objective evidence in denying a claim based on fibromyalgia.
See, e.g., Preston v. Sec’y of HHS, 854 F.2d 815, 818, 820 (6th
Some courts have noted that traditional factors
under which a claimant’s credibility is normally evaluated, like
the ability to do daily activities, may also not be very
probative in a fibromyalgia case.
See Cooper v. Comm’r of Social
Security, 2014 WL 4606010 (E.D. Mich. June 17, 2014), adopted and
affirmed 2014 WL 4607960 (E.D. Mich. Sept. 15, 2014).
also recognizes that these problems make a treating source
opinion more critical in such cases, but stresses that “treating
source opinions are not always deferred to in fibromyalgia
Id. at *18.
Rather, the ALJ still has the duty to
evaluate the claimant’s credibility, especially as to the
existence of disabling symptoms (as opposed to the existence of
fibromyalgia as a severe impairment), and the courts still defer
to that credibility assessment when it is properly supported.
Cooper concludes its review of the pertinent law in this
area with this observation, with which this Court agrees fully:
Despite the variability in decisions resulting from the
largely factual inquiry necessary in fibromyalgia
claims, the guiding principles from the case law are
discernable. Courts should be wary of an ALJ's
rationale for denial that relies on the lack of
objective evidence, a claimant's ability to complete
personal tasks, and a conservative treatment approach.
Instead the analysis must be sensitive to the
subjective nature of fibromyalgia and give due
deference to treating sources. This does not mean,
however, that the traditional factors are summarily
disregarded. Finally, the ALJ's explanation of internal
contradictions or questionable evidence in treating
source opinions still provides a sufficient basis to
uphold the finding.
Cooper, 2014 WL 4606010 at *21.
The absence of a direct attack on the ALJ’s credibility
determination makes it difficult for the Court to find that his
use of that finding in discounting Dr. Higgins’ opinions was not
The cases stress that credibility is a very
important factor in fibromyalgia cases and that an ALJ not only
can, but must, take the claimant’s credibility into account in
deciding how much weight to give to the opinions of her treating
The Court has examined the ALJ’s credibility finding
only in the context of whether it had some basis in the record,
and although there are portions of it which do not appear to
relate directly to fibromyalgia, such as the lack of objective
findings or the lack of specialized care (but these factors are
pertinent to her back condition), it is also supported by the
ALJ’s finding that despite a long history of fibromyalgia, for
pertinent periods of time, Plaintiff could work and engage in a
wide range of activities, and by his finding that there were some
inconsistencies in her testimony and her description of symptoms.
The ALJ also cited her sparse work history and the fact that she
said she quit her last job due to issues with payment and not for
Plaintiff does not argue that
these findings are unsupported by the record, and the ALJ was
therefore allowed to use them as a proper basis for giving less
weight to opinions based largely upon her subjective statements
to her doctor.
The last reason cited by the ALJ was the lack of support for
Dr. Higgins’ opinions in the medical records.
out that the medical records do contain various objective
findings, but that is not the issue.
The ALJ credited many of
these reports in concluding that Plaintiff was limited to a
reduced range of light work.
He also noted, correctly, that most
of the time when Plaintiff was examined by Dr. Higgins, she did
not show trigger point tenderness, which is a hallmark of
fibromyalgia, and that his records show that her pain was, at
many times, under good control.
these types of judgments.
The ALJ is entitled to make
Finally, the Court notes that even if
Plaintiff were limited physically as described in the first of
Dr. Higgins’ opinions - that is, to sedentary work with a sitstand option - the vocational expert testified that Plaintiff
could do one of her past jobs, which was a sedentary job.
only part of that opinion the ALJ had to reject in order to deny
Plaintiff’s claim concerned her unspecified mental impairment,
and, again, Plaintiff did not challenge the ALJ’s finding that
she did not have a severe mental impairment.
circumstances, the ALJ’s conclusion that Plaintiff could do at
least the volunteer coordinator job is supported by substantial
evidence, and that precludes the Court from reversing the
Commissioner’s denial of benefits.
Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be overruled and that judgment be
entered in favor of the Defendant.
Procedure on Objections
If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
of the report or specified proposed findings or
recommendations to which objection is made.
objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.
28 U.S.C. §636(b)(1).
The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.
See Thomas v.
Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge
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