Ashe v. Social Security Administration, Commissioner of (PLR2)
Filing
17
MEMORANDUM OPINION Signed by Magistrate Judge Christopher H Steger on 3/31/18. (GRE, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT CHATTANOOGA
AMY DENISE ASHE
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Administration,1
Defendant.
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Case No: 1:16-cv-399
Judge Christopher H. Steger
MEMORANDUM OPINION
I.
Introduction
Plaintiff seeks judicial review pursuant to Section 205(g) of the Social Security Act
(“Act”), 42 U.S.C. § 405(g), of the denial by the Commissioner of the Social Security
Administration (“SSA”) of her application for disability insurance benefits and supplemental
security income under Titles II and XVI of the Act, 42 U.S.C. §§ 401-434. The parties have
consented to entry of final judgment by the United States Magistrate Judge under the provisions
of 28 U.S.C. § 636(c), with any appeal to the Court of Appeals for the Sixth Circuit [Doc. 12].
For the reasons stated herein, Plaintiff’s Motion for Judgment on the Administrative Record
[Doc. 8] shall be DENIED; the Commissioner’s Motion for Summary Judgment [Doc. 15] shall
be GRANTED; and the decision of the Commissioner shall be AFFIRMED. Judgment in favor
of Defendant shall be entered.
1
Carolyn W. Colvin was the Acting Commissioner of Social Security when this action
was initiated. Nancy A. Berryhill has since assumed that role. Accordingly, the names have
been changed. Fed. R. Civ. P. 25(d).
1
II.
Background
A. Procedural History
Plaintiff applied for disability insurance benefits and supplemental security income under
Titles II and XVI of the Act, 42 U.S.C. §§ 401-434. (Tr. 171-78). Section 205(g) of the Act, 42
U.S.C. § 405(g), provides for judicial review of a “final decision” of the Commissioner of the
SSA. Plaintiff’s claim was denied and she requested a hearing before an administrative law
judge (“ALJ”). (Tr. 135). On May 28, 2015, following a hearing, the ALJ found that Plaintiff
was not disabled. (Tr. 11-27). On August 4, 2016, SSA’s Appeals Council denied Plaintiff’s
request for review. (Tr. 1-6). Thus, Plaintiff has exhausted her administrative remedies, and the
ALJ’s decision stands as the final decision of the Commissioner subject to judicial review.
Plaintiff filed a complaint seeking review in this Court on October 6, 2016, which the
Commissioner answered.
Subsequently, Plaintiff filed a motion for judgment on the
administrative record [Doc. 8], and the Commissioner filed a motion for summary judgment
[Doc. 15]. Both motions are ripe for review.
B. The ALJ’s Findings
After considering the entire record, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security
Act through March 31, 2017.
2. The claimant has not engaged in substantial gainful activity since September
l, 2012, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et
seq.).
3. The claimant has the following severe impairments: status post fracture in
right foot, left hip pain, status post kidney stones and an adjustment disorder
(20 CFR 404.1520(c) and 416.920(c)).
2
4. 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).
5. After careful consideration of the entire record, I find that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b): except the claimant can stand and/or walk for
4 hours of an 8 hour workday; she can occasionally use the right lower
extremity for foot controls; she can occasionally balance, stoop, crawl, and
use ramps and stairs; she cannot climb ladders, ropes or scaffolds; and she
must avoid moderate exposure to hazards at work. The claimant can
maintain concentration, persistence, and pace for 2 hours at a time, 8 hours a
day, and 40 hours per week performing simple and detailed work; and she
can occasionally interact with the general public.
6. The claimant has no past relevant work (20 CFR 404.1565 and 416.965).
7. The claimant was born on December 3, 1973, and was 38 years old, which
is defined as a younger individual age 18-49, on the alleged disability onset
date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue because the claimant does not
have past relevant work (20 CFR 404.1568 and 416.968).
10. 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)).
11. The claimant has not been under a disability, as defined in the Social
Security Act, from September 1, 2012, through the date of this decision (20
CFR 404.1520(g) and 416.920(g)).
C. Relevant Facts
1. Plaintiff’s Age, Education, and Past Work Experience
At the time of the hearing before the ALJ on April 15, 2015, Plaintiff was 41 years old.
3
She was 38 years old at the time of her alleged onset of disability on September 1, 2012, and she
has no past relevant work. She completed the eleventh grade and subsequently earned her
General Education Development high school equivalency diploma. She also has an unexpired
cosmetology license. (Tr. 32, 171).
2. Plaintiff’s Testimony and Medical History
The parties and the ALJ have summarized and discussed the medical and testimonial
evidence of the administrative record. Accordingly, the Court will discuss those matters as
relevant to the analysis of the parties’ arguments.
III.
Analysis
A. Standard of Review
To establish disability under the Social Security Act, a claimant must establish that she is
unable to engage in any substantial gainful activity due to the existence of a medically
determinable physical or mental impairment that can be expected to result in death or that has
lasted or can be expected to last for a continuous period of not less than twelve months. 42
U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner
employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20
C.F.R. § 404.1520. The following five issues are addressed in order: (1) if the claimant is
engaging in substantial gainful activity she is not disabled; (2) if the claimant does not have a
severe impairment she is not disabled; (3) if the claimant’s impairment meets or equals a listed
impairment she is disabled; (4) if the claimant is capable of returning to work she has done in the
past she is not disabled; (5) if the claimant can do other work that exists in significant numbers in
the regional or the national economy she is not disabled. Id. If the ALJ makes a dispositive
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finding at any step, the inquiry ends without proceeding to the next step. 20 C.F.R. § 404.1520;
Skinner v. Sec’y of Health & Human Servs., 902 F.2d 447, 449-50 (6th Cir. 1990). Once,
however, the claimant makes a prima facie case that she cannot return to her former occupation,
the burden shifts to the Commissioner to show that there is work in the national economy which
she can perform considering her age, education and work experience. Richardson v. Sec’y,
Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588,
595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner
are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389 (1971); Landsaw v.
Sec’y, Health and Human Servs., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is evidence on
the other side, if there is evidence to support the Commissioner’s findings they must be affirmed.
Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not reweigh the evidence
and substitute its own judgment for that of the Commissioner merely because substantial
evidence exists in the record to support a different conclusion. The substantial evidence standard
allows considerable latitude to administrative decision makers. It presupposes there is a zone of
choice within which the decision makers can go either way, without interference by the courts.
Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th
Cir. 1986)); Crisp v. Sec’y, Health and Human Servs., 790 F.2d 450 n.4 (6th Cir. 1986).
The court may consider any evidence in the record, regardless of whether the ALJ cited
it. See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). However, for
purposes of substantial evidence review, the court may not consider any evidence that was not
before the ALJ. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is
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not obligated to scour the record for errors not identified by the claimant, Howington v. Astrue,
No. 2:08-cv-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments
of error not made by claimant were waived), and “issues which are ‘adverted to in a perfunctory
manner, unaccompanied by some effort at developed argumentation, are deemed waived,’”
Kennedy v. Comm’r of Soc. Sec., 87 F. App’x 464, 466 (6th Cir. 2003) (quoting United States v.
Elder, 90 F.3d 1110, 1118 (6th Cir. 1996)).
B. Discussion
Plaintiff presents the following issues for review:2
(1)
Whether the ALJ failed to apply proper legal standards in finding that Plaintiff’s
testimony was not fully credible, and whether substantial evidence supported the
decision;
(2)
Whether the ALJ applied the proper legal standard in determining that Plaintiff did not
meet a specific listing in the Social Security regulations, and whether the decision was
supported by substantial evidence; and
(3)
Whether the ALJ applied the proper legal standard in assessing Plaintiff’s residual
functional capacity (“RFC”), and whether the decision was supported by substantial
evidence.
These issues will be discussed in the order presented immediately above.
(1) Whether the ALJ failed to apply proper legal standards in finding that
Plaintiff’s testimony was not fully credible, and whether substantial
evidence supported the decision.
Plaintiff challenges in several respects the ALJ’s finding that her own statements
concerning the intensity, persistence, and limiting effects of her symptoms were “not entirely
credible.” First, Plaintiff argues that, contrary to the ALJ’s findings, her testimony regarding the
limitations caused by the pain in her hip, back, and lower extremities was entirely consistent with
2
The issues have been reordered and reworded for clarity.
6
the medical evidence. She asserts that she credibly testified that the pain in her right foot greatly
affects her ability to stand; that the pain has migrated to her leg and knee and causes additional
pain in her left hip and back; that some of the hardware implanted in her foot is visibly loose;
and that screws holding the plates in place keep backing out and stick up under the skin of her
foot.
Plaintiff contends that numerous x-rays support her testimony by demonstrating chronic
abnormalities, including fractures and the existence of hardware, some of which is broken or
loose. She contends that medical examinations show decreased range of motion in her right foot,
as well as generally erythema (reddening of the skin) and pain when bearing weight.
Additionally, she contends, medical evidence demonstrates bone spurs on her right knee that
required multiple surgeries; left knee pain as a result of compensating for her right foot and leg
pain; and painful swelling in her legs, affecting her ability to stand and walk. She asserts that the
ALJ erred by failing to include her knee pain as a severe impairment, failing to give her
testimony great weight, and failing to find that she was disabled. Plaintiff additionally asserts
that the ALJ drew an inappropriate reference regarding her credibility from her sporadic history
of medical treatment without first considering that she lacked health insurance and could not
afford medical care, as required by SSR 96-7p.3
Plaintiff also argues that the ALJ mischaracterized the nature, intensity, and frequency of
her daily activities. Specifically, she contends that, although she is able to do housecleaning, she
can do only a little at a time with rest in between; she can manage medications and finances and
3
SSR 96-7p was superseded on March 28, 2016, by SSR 16-3p. Any differences in the
superseding regulation do not affect the arguments at issue here.
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speak by phone with family, but those activities do not involve her physical impairments; she can
work in the garden, but only with help; she feeds a pet, but only intermittently; and she cannot
walk long distances without pain. Plaintiff asserts that her ability to perform simple functions
does not indicate an ability to perform substantial gainful activity where those activities are
performed only intermittently.
Finally, Plaintiff asserts that the ALJ improperly inferred that a medical record, which
noted that a birdbath had fallen on her foot, reflected that she had been performing an activity
inconsistent with her asserted limitations. Plaintiff argues that the ALJ should not have reached
that conclusion concerning her credibility without first questioning her about the incident.
In her motion for summary judgment, the Commissioner responds that the ALJ evaluated
Plaintiff’s alleged pain symptoms in accordance with SSR 96-7p, and that the ALJ’s
determination was supported by the record – specifically, the objective medical evidence;
Plaintiff’s minimal and conservative treatment; her improvement with treatment; her failure to
follow the recommended treatment plan; her daily activities; her own inconsistent statements;
and medical opinions. The Commissioner asserts that, contrary to Plaintiff’s argument, the ALJ
properly evaluated Plaintiff’s lack of treatment. Specifically, the Commissioner acknowledges
that Plaintiff testified regarding her inability to obtain health insurance; however, the
Commissioner disputes Plaintiff's assertion that her lack of health insurance prevented her from
seeking medical care by pointing to evidence demonstrating that, even when Plaintiff was
working and had additional funds, she sought healthcare only infrequently. The Commissioner
also notes that Plaintiff sought treatment when necessary, and that examiners sometimes
determined that her medical issues were mild and recommended conservative treatments.
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The Commissioner additionally argues that the ALJ’s consideration of Plaintiff’s daily
activities was reasonable and proper, and that the ALJ did not rely solely on Plaintiff’s reported
activities in determining that she could work. Rather, the ALJ considered the inconsistency
between Plaintiff’s activities and her alleged limitations as a factor in his credibility analysis.
The Commissioner asserts that the ALJ’s conclusions are supported by substantial evidence.
A claimant’s subjective complaints can support a claim for disability if there is also
objective medical evidence of an underlying medical condition in the record. Dooley v. Comm’r
of Soc. Sec., 656 F. App’x 113, 119 (6th Cir. 2016). However, an ALJ is “not required to accept
a claimant’s subjective complaints and may properly consider the credibility of a claimant when
making a determination of disability.”
Id. (quotations omitted).
An ALJ’s credibility
determination is afforded great weight, provided it is supported by substantial evidence. Id.
The ALJ must follow a two-step process for evaluating an individual’s reported
symptoms: (1) determine whether the individual has a medically determinable impairment that
could reasonably be expected to produce the individual’s alleged symptoms; and (2) evaluate the
intensity and persistence of an individual’s symptoms, such as pain, and determine the extent to
which an individual’s symptoms limit her ability to perform work-related activities. SSR 96-7p.
In Step (2), the ALJ must examine the entire case record, including the objective medical
evidence; the individual’s own statements about the intensity, persistence, and limiting effects of
symptoms; statements and other information provided by medical sources and other persons; and
any other relevant evidence in the case record. Id.
Where the degree of an individual’s subjective complaints does not match the frequency
or extent of treatment sought, the ALJ may find the claimant’s statements less credible, but the
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ALJ first must consider possible reasons for failing to seek treatment, including, inter alia,
whether an individual cannot afford treatment and lacks access to free or low-cost services. Id.
Here, substantial evidence supports the ALJ’s assessment that Plaintiff’s subjective
complaints were inconsistent with the overall medical evidence. As the ALJ noted, Plaintiff
testified that she is unable to work because of pain in her back, hips, right knee, and right foot,
and swelling in her right lower extremity. (Tr. 16, 34-44). She testified that it is difficult to
stand and walk; that she has been prescribed orthotic shoes but they are too painful to wear; and
that her pain increases in bad weather. (Tr. 16, 42-43, 51).
In contrast to Plaintiff's assertions, medical records frequently indicate milder symptoms.
As the ALJ noted, medical records from September 2010 indicate Plaintiff underwent fusion of
the right first and second metatarsal in her foot, as well as eventual removal of plates and
tenolysis of extensor tendons. (Tr. 20, 259). The record shows that, since that time, Plaintiff has
been treated for complaints of pain in her lower right extremity. (See tr. 20; also see, e.g., Tr.
280, 324, 503). As the ALJ noted, however, x-rays performed in March and June 2011 showed
only old healed fractures, with no significant acute fracture or dislocation. (Tr. 20, 324-27, 33438). Similarly, an ultrasound of the lower extremity in November 2011 showed no deep vein
thrombus, and an x-ray of the right knee showed only mild degenerative changes with no acute
abnormality. (Tr. 20, 304-05). The ALJ noted that Plaintiff was treated in January 2012 for
complaints of pain in her hip and right foot, and was referred to a spine specialist for complaints
of popping and pain in her left hip. (Tr. 20, 262-64). Progress notes indicate Plaintiff was
diagnosed with Bertolotti’s syndrome; that no surgical procedure was necessary; and that she had
full range of motion in her left hip and could raise her leg. Those same notes, however, reflected
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that an x-ray of her left hip reflected unilateral failure of segmentation at L5-S1 that could be
contributing to some mechanical problems. (Tr. 20, 262).
The ALJ noted that Plaintiff sought no further treatment until January 2013, when
Plaintiff presented in the emergency room with pain in her right elbow and right foot, and an xray of Plaintiff’s right foot revealed healed fractures and evidence of previous surgery but no
new abnormality. (Tr. 20, 280-84). Plaintiff was prescribed a non-steroidal anti-inflammatory
medication and discharged. (Tr. 20, 282). A subsequent x-ray in October 2014, when Plaintiff
visited the emergency room for right foot pain after dropping a birdbath on her foot, showed no
evidence of acute bony deformity or fracture. (Tr. 20, 504-09).
Notes from a consultative examination in March 2013 indicated that Plaintiff complained
of pain in her neck, low back, left hip, and right foot, with radiation of pain to her arms and legs.
(Tr. 20, 353).
However, the examination results also indicated that Plaintiff ambulated
throughout the clinic without noticeable difficulty or gait disturbance; was able to sit and stand
and get on and off the examination table unassisted; has normal range of motion at the hips,
knees, and ankles; and wears a soft comfortable shoe but otherwise uses no walking assisting
devices, splints, or braces. (Tr. 20-21, 353-55). The report noted that Plaintiff had extensive
scarring on her right foot, with decreased range of motion of her first metatarsophalangeal joint,
and generalized erythema along the dorsal right foot; that she was able to support her weight and
balance on her right foot, though she complained of pain; that her straight gait favored her right
foot; and that she was able to perform several steps of tandem and heel walking, but could not
perform toe walking on the right. (Tr. 21, 355).
The ALJ stated that his decision was made after “careful consideration of the entire
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record,” including “all symptoms and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence” under the
relevant rules and regulations.
(Tr. 21)
The ALJ found, first, that Plaintiff’s medically
determinable impairments could reasonably be expected to cause the symptoms she alleged.
(Id.).
However, the ALJ further found that Plaintiff’s statements regarding the intensity,
persistence, and limiting effects of those symptoms was “not entirely credible.” (Id.).
The ALJ found that, based on the medical evidence, Plaintiff sought only sporadic
treatment for her complaints – for example, Plaintiff was treated for foot pain in January 2013,
but did not seek further treatment for complaints of pain until October 2014. (Tr. 21, 279-82,
504). The ALJ further noted that, “[s]urely, an individual experiencing debilitating pain would
require treatment and medication for such.” (Tr. 21).
Although Plaintiff argues that the ALJ made an improper inference regarding credibility
based on Plaintiff’s sporadic history of medical treatment, the ALJ is permitted to make such an
inference, so long as he considers financial or other possible reasons for lack of treatment. See
SSR 96-7p. The record demonstrates that Plaintiff testified during the hearing that she could not
afford health insurance and did not qualify for Tennessee’s Medical program, TENNCare, and
that her lack of insurance kept her from going to the doctor. (Tr. 35-36); see SSR 96-7p (noting
that an ALJ may need to question the individual regarding the lack of treatment in, for example,
an administrative proceeding).
Substantial evidence also supports the ALJ’s determination that Plaintiff’s allegations
that she is unable to perform work activity were inconsistent with her admissions in the record to
various activities – notably, taking care of her small son and pets; preparing meals; doing
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laundry; performing household chores; managing medication and finances; working in her
garden; walking laps for exercise; grocery shopping; visiting her ailing father; and talking daily
by phone or in person with friends or family members. (Tr. 21, 209-16, 227-32, 242-43, 360-61,
377, 393). The ALJ may consider daily activities in evaluating “the intensity and persistence of
[a claimant’s] symptoms . . . and determining the extent to which [these] symptoms limit [the
claimant's] capacity for work.” 20 C.F.R. §§ 404.1529(c)(3)(I); 416.929(c)(3)(i). The activities
noted by the ALJ support his determination that Plaintiff’s alleged symptoms were inconsistent
with her daily activities.
Plaintiff contends that the ALJ made an improper credibility inference based on an
October 2014 medical report indicating that Plaintiff sought medical care after dropping a
birdbath on her foot. The report provides no additional details of the incident. (Tr. 509). In his
decision, the ALJ notes the birdbath incident and a separate May 2013 report indicating that
Plaintiff was working in her garden as additional inconsistencies that “do not enhance the
claimant’s credibility and make it difficult to rely on testimony and reports of record in reaching
a conclusion of disability in this case.” (Tr. 21, 473, 509). Plaintiff argues that the ALJ should
have questioned her about the circumstances of the birdbath incident before relying on it to
assess credibility. However, she offers no explanation, in her motion or elsewhere in the record,
to refute an inference that, at the time she dropped a birdbath on her foot, she was engaging in an
activity inconsistent with the alleged severity of her symptoms. Similarly, she states that the
ALJ erred by not determining her knee pain to be a severe impairment, but she provides no
argument to support the assertion.
Accordingly, I find that the ALJ applied proper legal
standards in determining that Plaintiff’s testimony was not fully credible, and that substantial
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evidence supported the decision.
(2) Whether the ALJ applied the proper legal standard in determining that
Plaintiff did not meet a specific listing in the Social Security regulations,
and whether the decision was supported by substantial evidence.
Plaintiff argues that the ALJ erred in his determination that she failed to meet and/or equal
listing sections 1.02 and 1.03. She argues, first, that the ALJ failed to address the criteria for
listing 1.02 or determine whether those criteria were met because he erroneously relied in his
decision on the criteria for listing 1.04.
Plaintiff also argues that the ALJ should have
determined that she met the criteria for listings 1.02 and 1.03 because she has major dysfunction
in her right foot and metatarsals and cannot ambulate effectively.
Listing 1.03 requires an individual to show “[r]econstructive surgery or surgical
arthrodesis of a major weight-bearing joint, with inability to ambulate effectively, as defined in
1.00B2b, and return to effective ambulation did not occur, or is not expected to occur, within 12
months of onset.” 20 C.F.R. Pt. 404 Subpt. P App. 1 §1.03. Ineffective ambulation, is defined in
1.00B2b as: “extreme limitation of the ability to walk; i.e., an impairment(s) that interferes very
seriously with the individual’s ability to independently initiate, sustain, or complete activities”
and “insufficient lower extremity functioning . . . to permit independent ambulation without the
use of a hand-held assistive device(s) that limits the functioning of both upper extremities.” Id.
§1.00B2b.
The regulations explain that, in order to ambulate effectively, individuals must be capable
of “sustaining a reasonable walking pace over a sufficient distance to be able to carry out
activities of daily living” and “have the ability to travel without companion assistance to and
from a place of employment or school.” Id. Examples of ineffective ambulation include: the
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inability to walk without the use of a walker, two crutches or two canes; the inability to walk a
block at a reasonable pace on rough or uneven surfaces; the inability to use standard public
transportation; the inability to carry out routine ambulatory activities, such as shopping and
banking; and the inability to climb a few steps at a reasonable pace with the use of a single hand
rail. Id.
The ALJ determined that Plaintiff did not meet the criteria for listing section 1.03
because the record did not show the required degree of limitation, noting that Plaintiff admitted
she used a cane only periodically, and it was not medically prescribed. (Tr. 17, 232). Substantial
evidence supports the ALJ’s determination. As noted above, the results of Plaintiff’s March
2013 consultative evaluation indicated that Plaintiff ambulated throughout the clinic without
noticeable difficulty or gait disturbance; was able to sit and stand and get on and off the
examination table unassisted; and demonstrated normal range of motion except in the cervical
spine. (Tr. 20-21, 353-55). Moreover, the record indicates Plaintiff can take part in a variety of
daily activities, as noted above. (See, e.g., tr. 209-16, 227-32, 242-43, 360-61, 377, 393, 509).
Plaintiff asserts that she meets the criteria for listing 1.03 based on the medical evidence
and her own testimony, but she cites to nothing in the record to support her argument. Although
Plaintiff testified that the problems in her foot, knees, hip, and back affect her ability to stand,
walk, and otherwise function, the ALJ found her testimony conflicted with other evidence, as
discussed above.
Accordingly, substantial evidence supports the ALJ’s determination that
Plaintiff did not meet the listing criteria for 1.03.
As to section 1.02, an individual must show, in relevant part:
Major dysfunction of a joint(s) (due to any cause): Characterized by gross
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anatomical deformity . . . and chronic joint pain and stiffness with signs of
limitation of motion or other abnormal motion of the affected joint(s) . . . [w]ith:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b; or
B. Involvement of one major peripheral joint in each upper extremity (i.e.,
shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross
movements effectively, as defined in 1.00B2c.
20 C.F.R. Pt. 404, Subpt. P, App. 1 §1.02.
By contrast, listing section 1.04 requires an individual to show, in relevant part:
“[d]isorders of the spine (e.g., herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture), resulting in
compromise of a nerve root … or the spinal cord.” Id. §1.04.
Plaintiff correctly argues that the ALJ mistakenly relied on the criteria for listing 1.04 in
determining that she did not meet listing 1.02. Specifically, the ALJ states that Plaintiff does not
meet the criteria for listing 1.02, but then goes on to state: “The claimant has complained of neck
and back pain; however, the record fails to show objective evidence of a herniated nucleus
pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis or vertebral fracture resulting in compromise of a nerve root or the spinal cord as
required in listing 1.02.” (Tr. 17). Clearly, the ALJ refers in his findings to criteria found in
1.04, not 1.02. Moreover, the ALJ references Plaintiff’s complaints of neck and back pain,
suggesting that the ALJ considered the criteria for listing 1.04 in rendering his decision.
The Commissioner concedes the error, but argues that it does not require remand because
the ALJ explicitly found that Plaintiff failed to demonstrate that she could not ambulate
effectively, and thus, she cannot satisfy at least one of the required criteria for section 1.02. The
Commissioner asserts that the ALJ’s finding is supported by substantial evidence, and that courts
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in this Circuit have upheld determinations regarding 1.02 in similar circumstances.
Although the ALJ found that Plaintiff did not meet the criteria for any listing, he erred by
failing to provide an analysis of whether Plaintiff met the proper criteria for section 1.02.
Nevertheless, the error is harmless because the ALJ considered the criteria for section 1.03 and
explicitly found that Plaintiff failed to demonstrate that she could not ambulate effectively, as
defined in 20 C.F.R. Pt. 404 Subpt. B App. 1 §1.00B2b. (Tr. 17). Although ineffective
ambulation is not, as the Commissioner argues, an essential element of section 1.02, it is one of
two alternative elements that must be met. See id. §1.02. Moreover, it is, quite clearly, the
alternative element applicable to Plaintiff’s case. (See, e.g., tr. 17, 255). Thus, it is a required
showing in order for Plaintiff to meet the criteria of listing 1.02. Because the ALJ found that
Plaintiff did not show ineffective ambulation as defined by 1.00B2b, Plaintiff cannot meet all the
criteria for listing 1.02, and remand is unnecessary. See Malone v. Comm’r of Soc. Sec., 507 F.
App’x 470, 472 (6th Cir. 2012) (noting that an impairment must meet all of the specified medical
criteria to match a listing); Bledsoe v. Barnhart, 165 F. App’x 408, 411 (6th Cir. 2006) (noting
that a heightened articulation standard is not required at step three, and the court should not
disturb the ALJ’s findings “unless we are persuaded that his findings are legally insufficient”)
(quotations omitted); Rector v. Astrue, 2010 WL 4736831 at *6 (E.D. Ky. 2010) (determining
that, although the ALJ did not explicitly refer to section 1.02, the ALJ determined that the
claimant could ambulate effectively, and thus, it was clear that the ALJ was responding to the
plaintiff’s argument that he met that listing).
(3) Whether the ALJ applied the proper legal standard in assessing
Plaintiff’s RFC, and whether the decision was supported by substantial
evidence.
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Plaintiff argues that the ALJ erroneously concluded that she possesses the Residual
Functional Capacity ("RFC") to perform light work pursuant to 20 C.F.R. § 404.1567(b). In
support of her argument, she asserts that the ALJ erred in assessing her credibility, and by failing
to assign greater weight to treating sources. She also asserts that she is unable to perform a full
range of sedentary work because she can only sit for 20 to 30 minutes before being in severe
pain.
The Commissioner responds that the ALJ evaluated the objective medical and other evidence
and Plaintiff’s alleged symptoms; and that the ALJ resolved inconsistencies and provided a
sufficient narrative discussion to support the RFC. The Commissioner argues that the ALJ
considered the medical source opinions and, where the RFC conflicted with a medical source
opinion, the ALJ explained why he did not adopt the opinion. The Commissioner contends that
the ALJ’s determination is supported by substantial evidence and corroborated by the medical
opinions of state agency medical consultants, who formulated RFCs with the same or fewer
limitations.
An ALJ generally should give more weight to the opinions of treating physicians than to
other sources because they are “likely to be the medical professionals most able to provide a
detailed longitudinal picture of [a claimant’s] medical impairment(s)” and may provide a
perspective not available from objective medical findings alone, or from reports of individual
examinations, such as consultative examinations or brief hospitalizations. Wilson v. Comm’r of
Soc. Sec., 378 F.3d 541, 544 (6th Cir.2004) (quoting 20 C.F.R. § 404.1527(d)(2)). Nevertheless,
the ALJ is not bound by treating physicians’ opinions, and they are given great weight only if
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supported by sufficient clinical findings and are consistent with the evidence. Bogle v. Sullivan,
998 F.2d 342, 347-48 (6th Cir.1993).
In his decision, the ALJ stated that he considered “all symptoms and the extent to which
these symptoms can reasonably be accepted as consistent with the objective medical evidence
and other evidence,” and that he also considered opinion evidence, as required by the relevant
rules and regulations. (Tr. 19). The ALJ’s credibility finding already has been discussed above.
As to the weight given to the opinions of treating physicians, Plaintiff does not explain whose
opinion the ALJ improperly discounted, or what that opinion stated. Moreover, Plaintiff sought
infrequent medical care, primarily in emergency rooms. Thus, the record lacks the kind of
longitudinal perspective a treating physician might provide. See Wilson, 378 F.3d at 544.
In his decision, the ALJ detailed many of the medical findings and determined that, because
he found Plaintiff’s statements regarding her symptoms “not entirely credible,” he based his
decision “primarily on the medical evidence in the record.” (Tr. 19-22). The ALJ noted that he
relied for his conclusions on the assessment provided by Frank Pennington M.D., a medical
consultant for the SSA, whose assessment substantially comports with the ALJ’s findings. (Tr.
22, 100-14).
The ALJ stated that he considered the opinion of Dr. William Holland, a
consultative examiner, but afforded it only some weight because the limitations stated by Dr.
Holland were not consistent with the record as a whole. (Tr. 22, 353-57). The ALJ also stated
that he gave great weight to an assessment provided by an expert review psychologist, and some
weight to a supporting opinion by a consultative psychological examiner. (Tr. 22). Although
Plaintiff argues that she can only sit for 20 to 30 minutes without severe pain, she cites to no
medical or other evidence to support her assertion. Moreover, substantial evidence supports the
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ALJ’s findings regarding Plaintiff’s RFC and the accompanying exceptions. (See, e.g., tr. 10014).
III.
Conclusion
Having carefully reviewed the administrative record and the parties’ briefs filed in
support of their respective motions, the Plaintiff's Motion for Judgment on the Administrative
Record [Doc. 8] is DENIED; the Commissioner’s Motion for Summary Judgment [Doc. 15] is
GRANTED; and the decision of the ALJ is AFFIRMED. Judgment shall be entered in favor of
the Defendant.
ENTER.
/s/ Christopher H. Steger
UNITED STATES MAGISTRATE JUDGE
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