Stout v. Social Security Administration, Commissioner of
Filing
22
MEMORANDUM AND OPINION as set forth in following order. Signed by Chief District Judge Thomas A Varlan on 3/11/16. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
JENNIFER STOUT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
No.:
3:14-CV-563-TAV-CCS
MEMORANDUM OPINION
This case is before the Court on Plaintiff’s Motion for Summary and Memorandum in
Support [Doc. 16] and Defendant’s Motion for Summary Judgment and Memorandum in
Support [Docs. 18 & 19].
Jennifer Stout seeks judicial review of the decision of the
Administrative Law Judge (“the ALJ”), the final decision of the Defendant Carolyn W. Colvin,
Acting Commissioner of Social Security (“the Commissioner”).
On May 23, 2011, plaintiff filed an application for disability insurance benefits (“DIB”),
claiming a period of disability which began September 25, 2004 [Tr. 196-97].
After her
application was denied initially and upon reconsideration, plaintiff requested a hearing [Tr. 10814]. On June 4, 2013, a hearing was held before an ALJ to review determination of plaintiff’s
claim [Tr. 34-102]. On August 6, 2013, the ALJ found that plaintiff was not disabled [Tr. 1533]. The Appeals Council denied plaintiff’s request for review [Tr. 4-9]; thus, the decision of the
ALJ became the final decision of the Commissioner.
Having exhausted her administrative remedies, plaintiff filed a complaint with this Court
on December 3, 2014, seeking judicial review of the Commissioner’s final decision under
Section 205(g) of the Social Security Act [Doc. 2]. The parties have filed competing dispositive
motions, and this matter is now ripe for adjudication.
I.
ALJ FINDINGS
The ALJ made the following findings:
1. The claimant last met the insured status requirement of the
Social Security Act on December 31, 2009.
2. The claimant did not engage in substantial gainful activity
during the period from her alleged onset date of September 25,
2004 through her date last insured of December 31, 2009 (20 CFR
404.1571 et seq.).
3. Through the date last insured, the claimant had the following
severe impairments: degenerative lumbar disc disease and
spondylolisthesis (s/p L4-S1 fusion) and obesity (20 CFR
404.1520(c)).
4. Through the date last insured, the claimant did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525
and 404.1526).
5. After careful consideration of the entire record, the
undersigned finds that, through the date last insured, the claimant
had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that she could frequently
climb ramps or stairs, but only occasionally stoop, kneel, crouch,
crawl, and climb ladders, ropes, or scaffolds.
6. Through the date last insured, the claimant was capable of
performing her past relevant work as a security officer, cocktail
server, and restaurant manager (as those jobs are generally
performed). This work did not require the performance of workrelated activities precluded by the claimant’s residual functional
capacity (20 CFR 404.1565).
7. The claimant was not under a disability, as defined in the
Social Security Act, at any time from September 25, 2004, the
alleged onset date, through December 31, 2009, the date last
insured (20 CFR 404.1520(f)).
2
[Tr. 20-29].
II.
DISABILITY ELIGIBILITY
This case involves an application for DIB. An individual qualifies for DIB if he or she:
(1) is insured for DIB; (2) has not reached the age of retirement; (3) has filed an application for
DIB; and (4) is disabled. 42 U.S.C. § 423(a)(1).
“Disability” is the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death
or which has lasted or can be expected to last for a continuous period of not less than twelve
months.”
42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a).
A claimant will only be
considered disabled if:
his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind of substantial gainful work which exists
in the national economy, regardless of whether such work exists in
the immediate area in which he lives, or whether a specific job
vacancy exists for him, or whether he would be hired if he applied
for work.
42 U.S.C. § 423(d)(2)(A); see also 20 C.F.R. § 404.1505(a).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not
disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
3
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing
his past relevant work, if other work exists in the national economy
that accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
The claimant bears the burden of proof at the first four steps. Id. The burden shifts to the
Commissioner at step five. Id. At the fifth step, the Commissioner must prove that there is work
available in the national economy that the claimant could perform. Her v. Comm’r of Soc. Sec.,
203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137, 146 (1987)).
III.
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
pursuant to 42 U.S.C. § 405(g), the Court is limited to determining “whether the ALJ applied the
correct legal standards and whether the findings of the ALJ are supported by substantial
evidence.” Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009) (citing Key v.
Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). If the ALJ applied the correct legal standards and
his findings are supported by substantial evidence in the record, his decision is conclusive and
must be affirmed. 42 U.S.C. § 405(g); Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th
Cir. 2004).
Substantial evidence is “more than a scintilla of evidence but less than a
preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994) (citing Kirk v. Secretary of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981))
(internal citations omitted); see also Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting
Consol. Edison v. NLRB, 305 U.S. 197, 229 (1938)).
4
It is immaterial whether the record may also possess substantial evidence to support a
different conclusion from that reached by the ALJ, or whether the reviewing judge may have
decided the case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4
(6th Cir. 1986). The substantial evidence standard is intended to create a “‘zone of choice’
within which the Commissioner can act, without the fear of court interference.” Buxton v. Halter,
246 F.3d 762, 773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)).
Therefore, the Court will not “try the case de novo, nor resolve conflicts in the evidence, nor
decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing
Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972)).
In addition to reviewing the ALJ’s findings to determine whether they were supported by
substantial evidence, the Court also reviews the ALJ’s decision to determine whether it was
reached through application of the correct legal standards and in accordance with the procedure
mandated by the regulations and rulings promulgated by the Commissioner. See Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The Court may, however, decline to
reverse and remand the Commissioner’s determination if it finds that the ALJ’s procedural errors
were harmless.
An ALJ’s violation of the Social Security Administration’s procedural rules is harmless
and will not result in reversible error “absent a showing that the claimant has been prejudiced on
the merits or deprived of substantial rights because of the [ALJ]’s procedural lapses.” Connor v.
U.S. Civil Serv. Comm’n, 721 F.2d 1054, 1056 (6th Cir. 1983) (citations omitted). Thus, an
ALJ’s procedural error is harmless if his ultimate decision was supported by substantial evidence
and the error did not deprive the claimant of an important benefit or safeguard. See id. at 547.
5
On review, plaintiff “bears the burden of proving his entitlement to benefits.” Boyes v.
Sec’y. of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citing Halsey v. Richardson,
441 F.2d 1230 (6th Cir. 1971)).
IV.
MEDICAL EVIDENCE
On September 25, 2004, plaintiff injured her lower back while lifting a box of chicken at
work [Tr. 305]. Plaintiff presented to Bienville Orthopaedic Specialists, LLC four days later for
back pain [Id.]. Plaintiff was treated by Jon Schultz, M.D., who diagnosed plaintiff with a
herniated lumbar disk [Tr. 306]. Dr. Schultz treated plaintiff with anti-inflammatory and muscle
relaxant medication in conjunction with physical therapy [Tr. 306]. On November 23, 2004, Dr.
Schultz noted that an MRI of plaintiff’s lumbar spine showed “degenerative disk disease at L4-5
and more severe at L5-S1 with a Grade 1 spondylolisthesis of L5 on S1,” as well as nerve root
impingement [Tr. 300]. Plaintiff reported that she was doing fairly well overall, but experienced
good days and bad days [Id.]. Upon examination, plaintiff was negative for straight leg raises,
had normal extensor halluces longus strength, and full range of motion but with complaints of
pain with back flexion [Id.]. Dr. Schultz assessed that plaintiff could return to work within three
weeks without restrictions, but recommended that she continue physical therapy [Id.].
At the request of Dr. Schultz, plaintiff was consultatively examined by Charles Winters,
M.D., another orthopedic physician within the same practice, on January 4, 2005 [Tr. 297].
Plaintiff complained that she was often in pain and the majority of the time she was aching [Tr.
297]. She related that her back kept her from sitting for long periods of time and that she could
only tolerate walking short distances [Id.]. Plaintiff described her pain as radiating down her
hips and into her legs and that physical therapy, as well as her prescribed medication, offered
little relief [Id.]. Dr. Winters found that plaintiff had decreased range of motion in her lumbar
6
spine and experienced pain with extension and twisting, but demonstrated normal neurologic
results, was negative for straight leg raises, and had normal gait, motor strength, and range of
motion in her legs [Tr. 298]. Dr. Winters opined that plaintiff did not require surgery but could
possibly benefit from an epidural steroid injection for pain management [Tr. 299]. Following her
first epidural shot, plaintiff returned on May 18, 2005, and reported that her pain had subsided
for only a couple days [Tr. 294]. Plaintiff received a second epidural shot [Tr. 295] and reported
significant improvement the following month, although she still complained of constant back
pain [Tr. 291]. Dr. Winters recommended a lumbosacral corset to help with her back pain [Tr.
292].
Plaintiff relocated from Mississippi to Ohio soon thereafter and began seeing Lawrence
Zeff, M.D., on July 28, 2005 [Tr. 548]. Plaintiff reported severe back pain when she sat, stood,
or walked, and that lying down offered some relief [Id.]. She explained that her epidural shots
and physical therapy did not really help [Id.]. Upon examination, plaintiff could flex her lumbar
spine about 90 degrees, extend 20 degrees, and laterally bend 20 degrees [Id.]. Straight leg raises
caused back pain, but she demonstrated normal muscle strength, pinprick sensation, gait, and
could walk on her heels and toes [Id.]. Dr. Zeff recommended diagnostic and therapeutic facet
joint injections, Lidoderm patches, and physical therapy [Tr. 549]. Plaintiff reported no relief
with the injection and underwent a second MRI of the lumbar spine [Tr. 547]. The imaging
results demonstrated grade 1 spondylolisthesis and some foraminal stenosis at L5-S1 [Tr. 546].
After no reported success with selective epidural steroid injections and facet joint block [Tr. 54345], plaintiff was referred to John Jacquemin, M.D., to determine if plaintiff was a surgical
candidate [Tr. 542].
7
Plaintiff met with Dr. Jacquemin for the first time on June 25, 2007 [Tr. 541]. Dr.
Jacquemin noted that plaintiff had an ongoing worker’s compensation claim due to her
workplace back injury [Id.]. Dr. Jacquemin found that plaintiff’s gait was normal, she had full
sensation and motor function throughout, she was negative for straight leg raises, although
complained of pain with flexion and extension, and she had full range of motion in her hips,
knees and ankles with no complaints of pain [Id.]. After examining plaintiff and reviewing her
MRI results, Dr. Jacquemin diagnosed plaintiff with L5-S1 spondylolisthesis and neural
foraminal stenosis as well as L4/5 degenerative disc disease [Id.]. Although surgical treatment
was discussed, Dr. Jacquemin recommended that plaintiff continue with conservative measures
and undergo a discogram to determine if the L4/5 generated plaintiff’s pain [Id.].
The
discogram, however, proved positive at L4/5 for back and right leg pain [Tr. 539]. On December
3, 2007, Dr. Jacquemin discussed surgical options again, noting that plaintiff continued to
complain of pain but was not taking a lot of her pain medication [Id.]. During subsequent
appointments, examination results were largely unchanged except that plaintiff had some
decrease in sensation in her right foot and was positive for straight leg raises, mainly in her right
leg, which produced back and hip pain [Tr. 537-38]. On March 17, 2008, plaintiff agreed to
undergo anterior posterior fusion in her L4 through S1 [Tr. 537], and Dr. Jacquemin performed
the surgery on April 1, 2008 [Tr. 317-19].
Plaintiff returned to Dr. Jacquemin two weeks post-operative [Tr. 536]. Dr. Jacquemin
noted plaintiff was doing very well and her back pain was rated a two and her leg pain a zero or
one on a scale of one to 10, with 10 being the worst pain [Id.].
During her follow-up
appointment four weeks later, plaintiff reported some pain and numbness in her left leg but was
doing very well overall [Tr. 534]. On June 2, 2008, Dr. Jacquemin noted that plaintiff continued
8
to do well and he recommended that she begin physical therapy [Tr. 533]. During subsequent
appointments, plaintiff reported she had good days and bad days but felt as though she was
making progress [Tr. 530-32].
Plaintiff’s gait was normal, she had full motor function
throughout, her sensation and neurovascularly were intact, she had full range of motion
throughout, and she was negative for straight leg raises except for complaints of back pain [Tr.
528- 532]. On March 2, 2009, Dr. Jacquemin referred plaintiff to NovaCare for a physical work
performance evaluation [Tr. 527].
An evaluation was completed by NovaCare on March 16, 2009, and a recommendation of
work in the light range was assessed [Tr. 551]. Specifically, the evaluation found that plaintiff
had the following limitations: she could lift 15-20 pounds occasionally, and up to 10 pounds
frequently; she could push and pull 30 pounds occasionally; she could sit frequently and stand
occasionally to frequently; and she could occasionally stoop, squat, and climb and frequently
walk and reach [Tr. 551, 553]. Dr. Jacquemin adopted the evaluation’s findings and on March
23, 2009, opined that plaintiff could perform work that fell into the light range and that said
restrictions were permanent [Tr. 526]. At this time, plaintiff reported she was currently job
hunting [Id.].
On May 4, 2009, plaintiff met with Dr. Jacquemin for the last time [Tr. 525]. Plaintiff
reported she was doing okay and experienced some pain in her back and that the pain
occasionally radiated down into her leg [Id.]. Upon examination, plaintiff’s gait was normal, she
had 5/5 motor function throughout, her sensation was intact throughout, and her hip, knee, and
ankle had full range of motion without complaints of pain [Id.]. Plaintiff was negative for
straight leg raises but complained of back pain and some discomfort with flexion and extension
[Id.]. Dr. Jacquemin found that plaintiff was at maximal medical improvement and noted that
9
plaintiff was looking for work with said restrictions [Id.]. Dr. Jacquemin also noted that plaintiff
may require periodic pain and/or anti-inflammatory medication [Id.]. There was no indication
that future surgery would be needed, but Dr. Jacquemin did not rule out the possibility that at
some point in plaintiff’s life she may need further back surgery, which may include a
laminectomy or a fusion type procedure [Id.].
The following month, on June 24, 2009, plaintiff established pain management care with
Hungchih Lee, M.D. [Tr. 394-98]. Plaintiff reported her back pain as a seven and lower
extremity pain as a six on a scale of one to 10 [Tr. 394]. She claimed she could only sit, lift, and
walk for 15 minutes at a time and that stairs or prolonged standing increased her back and leg
pain [Id.]. Plaintiff’s lumbar spine and pelvis experienced moderate tenderness to touch, but her
gait, muscle strength, and neurological sensory were all within normal limits [Tr. 396-98]. Dr.
Lee assessed post-surgical pain, lumbar disc displacement, and sacroiliac joint pain [Tr. 398].
In August 2009, plaintiff received a steroid injection, which reduced her pain by 70% in
her lower back and reduced her pain by 100% in her right lower extremity [Tr. 392]. However,
plaintiff reported that the relief lasted for only seven days before her pain gradually increased,
although it remained tolerable unless her activity level increased [Tr. 386]. Plaintiff returned the
following month and reported that her pain symptoms were stable and unchanged, she
experienced good results and no adverse side effects with medication, and her pain was more
tolerable and daily functions had improved [Id.]. But plaintiff experienced stiffness in the
morning and had to “stop from time to time” while performing housework [Id.].
Upon
examination, she had mild tenderness of the lumbar spine and moderate pain around her pelvis
[Tr. 391]. Her muscle tone was 5/5 and her sensory was fully intact [Id.]. Later that same
10
month, plaintiff reported her pain had intensified and interfered with her sleep, causing her to
double her pain medication dosage [Tr. 366].
By October 29, 2009, plaintiff’s chief complaint was pain radiating down her right leg
and stiffness in her lower back [Tr. 370]. She reported that Vicodin took the edge off her pain
but sometimes she has to double her medication [Id.]. Examination findings remained the same.
[Id.]. In November 2009, plaintiff reported the Vicodin helped significantly and her physical
therapy was also helping her range of motion [Tr. 374]. While she reported experiencing severe
pain for a few days, Dr. Lee noted that plaintiff had run out of pain medication and did not return
for a follow-up during the holidays [Id.]. On December 24, 2015, a week before plaintiff’s last
date insured, plaintiff reported her medication made her pain tolerable and while her activities
were not limited, activities aggravated her pain [Tr. 378]. However, her medication reduced her
pain symptoms by 50% and she experienced no adverse side effects [Id.]. Dr. Lee recommended
that plaintiff continue to exercise daily [Id.].
On May 17, 2012, Dr. Lee completed a “Listing Questionnaire” and a “Social Security
Disability Questionnaire,” both of which indicated that plaintiff suffered from lumbar disc
displacement with radiating pain [Tr. 416, 417]. In regard to the Listing Questionnaire, Dr. Lee
opined that plaintiff experienced limited range of motion in her spine, motor loss, and sensory
loss due to decrees pinprick sensation at the right thigh [Tr. 416]. Dr. Lee noted that although
plaintiff was negative for straight leg raises, it caused her lower back pain [Id.]. As to the second
questionnaire, Dr. Lee opined that during an average day, plaintiff would need to lie down
several times throughout the day, she could sit for two to four hours and stand or walk for one to
two hours, and she could occasionally lift or carry up to five pounds [Tr. 417-18]. Dr. Lee also
opined that plaintiff’s pain caused insomnia and inactivity, which in turn caused weight gain,
11
fatigue, and difficulty focusing and concentrating [Tr. 418-19]. Finally, Dr. Lee noted that
plaintiff needed to avoid driving after taking pain medication [Tr. 419].
Dr. Lee provided a follow-up letter a year later on April 23, 2013 [Tr. 555-56]. Dr. Lee
discussed an August 2009 MRI that was obtained through plaintiff’s worker’s compensation
claim [Tr. 555]. The MRI revealed “significant residual problems at both L4-5 and L5-S1, with
spondylolisthesis at L5-S1 causing biforaminal stenosis, right greater than left” [Id.]. According
to Dr. Lee, plaintiff’s imagining results substantiated her subjective complaints of pain [Id.]. Dr.
Lee explained that additional treatment options were recommended but were not pursued due to
plaintiff’s worker’s compensation carrier denying authorization; therefore, treatment had been
limited to medication management and some acupuncture sessions [Id.]. In Dr. Lee’s opinion,
plaintiff’s pain created significant functional limitations, including the inability to perform even
a sit down job as plaintiff would need to lie down “quite a bit” during a regular workday due to
her pain and sedating side effects of her medication [Tr. 556]. Dr. Lee also commented on
plaintiff’s reported 100 pound weight gain following her back injury, concluding that “this does
not surprise me at all because her functional capabilities have been so reduced, which obviously
lends itself to weight gain which in turn further exacerbates the back problems” [Id.].
Finally, a “Physical Residual Functional Capacity Assessment” was completed by a nonexamining, state agency physician on November 25, 2011 [Tr. 136-37]. Therein, the state
agency physician opined that plaintiff’s spinal fusion created exertional limitations, including the
ability to lift or carry 20 pounds occasionally and 10 pounds frequently, but unlimited ability to
push or pull within the foregoing weight restrictions, and the ability to sit, stand, or walk for six
hours in an eight-hour workday [Tr. 136]. In addition, the state agency physician opined that
plaintiff’s reduced range of motion in her spine, in conjunction with her normal muscle strength,
12
produced some postural limitations, including the ability to occasionally climb ladders, stoop,
kneel, and crouch and frequently climb ramps or stairs, but unlimited ability to balance [Id.].
V.
POSITIONS OF THE PARTIES
Plaintiff raises three allegations of error on appeal. First, plaintiff argues that the ALJ
failed to properly assess the physical limitations caused by her obesity1 [Doc. 16 at 6-7].
Second, plaintiff contends that the ALJ failed to properly weigh the treating physician opinions
of record [Id. at 8-15]. Last, plaintiff maintains that the disability determination is not supported
by substantial evidence because the ALJ failed to consider the evidence as a whole and instead
cherry-picked the record in an effort to support her conclusions [Id. at 16-19].
The Commissioner responds that the ALJ properly addressed plaintiff’s obesity and cited
to medical records that contradicted plaintiff’s allegation in this regard [Doc. 19 p. 7]. In
addition, the Commissioner argues that the ALJ properly applied the treating physician rule to
the treating opinions of records [Id. at 11-13]. Finally, as to the ALJ discussing only selective
evidence, the Commissioner contends that the ALJ fairly and properly identified inconsistencies
in the record that detracted from plaintiff’s credibility [Id. at 7-11].
Plaintiff filed a reply [Doc. 20], asserting that the Commissioner failed to fully respond to
all of the allegations plaintiff raised in regard to the ALJ’s application of the treating physician
rule and the ALJ’s misrepresentation of the evidence.
VI.
ANALYSIS
The Court will address plaintiff’s allegations of error in turn.
In her brief, while plaintiff does not list this issue as a specific assignment of error, she
does make some legal arguments on the issue in her recitation of the medical evidence she
alleges supports her claim that she meets or equals Listing 1.04 [Doc. 16 at 6-7]. Therefore, the
Court will address the matter as a separate issue.
13
1
A.
Obesity
Plaintiff argues the ALJ, who assessed obesity as a severe impairment, failed to provide
any meaningful discussion of the impairment’s effects at steps three and four of the sequential
evaluation in accordance with Social Security Ruling (“SSR”) 02-1p [Doc. 16 pp. 6-7]. The
Commissioner responds that the ALJ properly discussed medical records that contradicted
plaintiff’s allegation that she had gained a substantial amount of weight following her back
injury [Doc. 19 p. 7].
Although there is no “listed impairment” for obesity, SSR 02-1p instructs adjudicators to
take into consideration the effects obesity may have on a disability claimant:
An assessment should also be made of the effect obesity has upon
the individual’s ability to perform routine movement and necessary
physical activity within the work environment. Individuals with
obesity may have problems with the ability to sustain a function
over time . . . . [O]ur RFC assessments must consider an
individual’s maximum remaining ability to do sustained work
activities in an ordinary work setting ona [sic] regular and
continuing basis. A “regular and continuing basis” means 8 hours a
day, for 5 days a week, or an equivalent work schedule.
2002 WL 34686281, at *6 (Sept. 12, 2002).
In regard to step three of the sequential evaluation, an ALJ may “find that a listing is met
if there is an impairment that, in combination with obesity, meets the requirements of a listing.”
Id. at *5. Additionally, obesity by itself may be “medically equivalent to a listed impairment.”
Id. At step four, adjudicators are instructed to consider the effects of obesity in singularity and in
combination with other impairments to determine whether the condition may diminish a
claimant’s work capacity. Id. at *6. “As with any other impairment, [the ALJ] will explain how
[she] reached [her] conclusions on whether obesity caused any physical or mental limitations.”
Id. at *7. The ruling cautions, however, that assumptions will not be made “about the severity or
14
functional effects of obesity combined with other impairments. Obesity in combination with
another impairment may or may not increase the severity or functional limitations of the other
impairment.” Id. at *6. Thus, obesity is evaluated “based on the information in the case record.”
Id.
Moreover, while obesity is a condition that must be taken under consideration, the Court
of Appeals for the Sixth Circuit has explicitly recognized that there is no particular procedure for
addressing a claimant’s obesity. See Bledsoe v. Barnhart, 165 F. App’x 408, 411-12 (6th Cir.
2006) (holding that “[i]t is a mischaracterization to suggest that Social Security Ruling 02-1p
offers any particular procedural mode of analysis for obese disability claimants”).
Here, at step three, the ALJ briefly discussed SSR 02-1p in consideration of “the effect
obesity has in contributing to or exacerbating the claimant’s other impairments” [Tr. 23]. The
ALJ found that plaintiff’s “[o]bseity does not raise [her other impairments] to listing-level
severity but, as a medially determinable impairment, any functional limitations resulting from the
obesity have been fully considered in arriving at the claimant’s residual functional capacity”
[Id.]. At step four, the ALJ gave a lengthier discussion regarding plaintiff’s obesity and its
effects on her RFC. Specifically, the ALJ noted that plaintiff alleged significant weight gain as
the result of her back injury and recited Dr. Lee’s comment that he was not surprised by the
weight gain because plaintiff’s “functional capabilities have been so reduced, which obviously
lends itself to weight gain” [Id. (quoting Tr. 566)]. The ALJ, however, rejected Dr. Lee’s
characterization of plaintiff’s weight and its effect, finding that the medical evidence
demonstrated that plaintiff weighed around the same before her injury to present, thereby
contradicting any claims that she had gained a substantial amount of weight due to her back
injury [Id.]. The ALJ discussed Dr. Schultz’s treatment note from September 2004, plaintiff’s
15
initial visit for her back injury, which recorded her weight at 225 pounds [Id.]. The ALJ went on
to discuss five subsequent treatment notes from 2008 and 2009, all demonstrating that plaintiff’s
weight fluctuated between 238 to 262 pounds, the latter being her weight right before her insured
status expired, and that at the time Dr. Lee wrote his letter in which he opined the effects of
plaintiff’s self-reported 100 pound weight gain, plaintiff only weighed 245, a 20 pound
difference from her weight at the time she injured her back [Id.]. Therefore, the ALJ found no
medical evidence supporting plaintiff’s allegation regarding her weight or its disabling effects
[Id.].
The Court finds that the ALJ did not err in addressing the effects of plaintiff’s obesity.
With respect to step three, the Court finds that while the ALJ’s discussion was brief, neither SSR
02-1p nor case law required anything further. Moreover, the lack of further discussion “likely
stems from the fact that [plaintiff] failed to present evidence of any functional limitations
resulting specifically from her obesity.” See Essary v. Comm’r of Soc. Sec., 114 F. App’x 662,
667 (6th Cir. 2004) (holding that that ALJ’s acknowledgment that the claimant’s obesity was a
severe impairment and could “reasonably be expected to result in some degree of functional”
limitations, without more, was sufficient pursuant to SSR 02-1p). Indeed, at no time during the
administrative process did plaintiff claim that her obesity was a severe impairment, nor did she
claim that it exacerbated her other conditions. In her Disability Report, plaintiff states that her
impairments included a lower back injury and chronic pain [Tr. 220].
Obesity was not
mentioned, nor was it added as a condition on her 2011 Appeal’s Disability Report [Tr. 251]. At
the hearing before the ALJ, Plaintiff’s counsel cited plaintiff’s back injury as the main
impairment that kept her from working [Tr. 51] and the only reference to her weight was
plaintiff’s testimony that she had gained some weight [Tr. 39-40]. There was no mention at the
16
hearing of plaintiff’s obesity as an impairment, a condition secondary to her back injury, or
limiting effects caused by her weight.
While Dr. Lee noted the alleged weight gain and
concluded that plaintiff’s inactivity could reasonably cause weight gain, there appears to be no
further evidence in the record supporting a finding that plaintiff’s obesity caused disabling
effects. Dr. Lee’s opinion, even if accepted as true, falls short of demonstrating listing level
severity. Therefore, the Court finds no further discussion was warranted under step three.
The Court also finds the ALJ satisfied her burden at step four. The ALJ provided specific
reasons, supported by the record, as to why she found that plaintiff’s obesity did not create a
more limiting effect. While plaintiff reported to Dr. Lee that she gained 100 pounds after her
back injury, the record demonstrates that at the time she injured her back she weighed 225
pounds [Tr. 306], prior to plaintiff’s last date insured she weighed 262 [Tr. 378], and at the time
Dr. Lee opined that plaintiff’s 100 pound weight gain was the result of inactivity caused by her
back injury, plaintiff weighed 245 pounds [Tr. 557]. Outside of Dr. Lee reciting plaintiff’s
allegation of weight gain, treatment notes not only fail to substantiate significant weight gain, but
they also are void of any complaints of or problems caused by plaintiff’s weight. Therefore, the
ALJ acted reasonable in comparing the medical records from the relevant time period and
concluding that the evidence did not support plaintiff’s allegation of substantial weight gain
following her work-related injury.
Accordingly, the Court finds no merit in plaintiff’s allegation of error.
B.
Weight Afforded to Dr. Lee’s Opinions
Next, plaintiff contends that the ALJ inappropriately substituted her own opinion for that
of Dr. Lee’s as expressed in his questionnaires and letter [Doc. 16 pp. 8-16]. In this regard,
plaintiff raises a number of specific errors committed by the ALJ in violation of the treating
17
physician rule [Id.]. The Commissioner presents a more generalized argument that the ALJ
properly considered the opinion evidence of record pursuant to 20 C.F.R. § 404.1527, SSR 965p, and SSR 06-3p [Doc. 19 pp. 11-13].
In the disability determination, the ALJ deferred to Dr. Jacquemin’s opinion that plaintiff
was capable of performing light work and assigned “little weight” to Dr. Lee’s more limiting
opinion [Tr. 23, 27-28]. The ALJ found Dr. Jacquemin’s specialization as an orthopedic surgeon
placed him in a better position than Dr. Lee, a pain specialist, to opine on plaintiff’s functional
limitations [Tr. 23, 28].
In addition, the ALJ found that both physicians’ treatment notes
consistently demonstrated that plaintiff had normal neurological findings, full muscle strength
and range of motion, and intact sensory findings, all of which supported Dr. Jacquemin’s opinion
of light work [Tr. 23, 27-28]. The ALJ also found that Dr. Jacquemin’s two-year treating
relationship with plaintiff placed him in a better position to opine on plaintiff’s limitations
compared with Dr. Lee who was only able to treat plaintiff for six months prior to her insured
status expiring [Tr. 27-28]. Finally, the ALJ noted inconsistencies in Dr. Lee’s treatment notes
regarding medication compliance and side effects [Tr. 28].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in the case record, it must be given controlling weight. 20 C.F.R. § 404.1527(c)(2).
But where an opinion does not garner controlling weight, the appropriate weight to be given to
an opinion will be determined based upon the following factors: length of treatment, frequency
of examination, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of
18
the source, and other factors which tend to support or contradict the opinion. 20 C.F.R. §
404.1527(c)(2); See Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013)
(holding that the section 1527(c)(2) “factors are properly applied only after the ALJ has
determined that a treating-source opinion will not be given controlling weight”).
When an ALJ does not give a treating physician’s opinion controlling weight, the ALJ
must always give “good reasons” for the weight given to a treating source’s opinion in the
decision. 20 C.F.R. § 404.1527(c)(2). A decision denying benefits “must contain specific
reasons for the weight given to the treating source’s medical opinion, supported by evidence in
the case record, and must be sufficiently specific to make clear to any subsequent reviewers the
weight the adjudicator gave to the treating source’s medical opinion and the reasons for the
weight.” Soc. Sec. Rul. 96-2p, 1996 WL 374188 at *5 (July 2, 1996). An ALJ does not measure
medical evidence in a vacuum, but rather considers physician opinions in conjunction with the
record as a whole.
See 20 C.F.R. § 404.1527(b) (explaining that in considering medical
opinions, the Administration “will always consider the medical opinions in your case record
together with the rest of the relevant evidence we receive”).
Nonetheless, the ultimate decision of disability rests with the ALJ. See King v. Heckler,
742 F.2d 968, 973 (6th Cir. 1984); Sullenger v. Comm’r of Soc. Sec., 255 F. App’x 988, 992 (6th
Cir. 2007).
The first error plaintiff alleges is that the ALJ improperly compared Dr. Jacquemin’s
opinion with Dr. Lee’s opinion [Doc. 16 p. 11]. In this regard, plaintiff takes issue with the
ALJ’s finding that “Dr. Jacquemin’s surgical credentials make his clinical findings far more
reliable than those of Dr. Lee, a pain physician, and they are weighted accordingly” [Tr. 23].
Plaintiff challenges Dr. Jacquemin’s credentials as a valid basis for finding his opinion more
19
significant or relevant than Dr. Lee’s opinion [Doc. 16 p. 11]. Because Dr. Jacquemin referred
plaintiff to Dr. Lee specifically for pain management after nothing more could be done from a
surgical standpoint, plaintiff argues that Dr. Lee was in a better position to opine on the limiting
effects of plaintiff’s impairments [Id.]. Moreover, Dr. Lee’s specialization in pain management,
according to plaintiff, lends itself to “additional consideration, not less consideration per the
factors outline in 20 C.F.R. § 404.1527[(c)]” [Id. at 11, 15].
In a battle of competing medical opinions, where both opinions are entitled to deference
under the treating physician rule, the ALJ alone is tasked with deciding which opinion is entitled
to greater weight. See Isaac v. Sec’y of Health & Human Servs., 110 F.3d 64. at *5 (6th Cir.
Apr. 3, 1997) (finding that “the ALJ was constrained to choose one or the other” in a case where
treating physicians offered differing opinions); Bandy v. Astrue, No. 2:10-CV-00119, 2011 WL
6141037, at *7 (M.D. Tenn. Dec. 9, 2011) (“Further, the weight given to the competing opinions
of multiple treating physicians is an administrative finding for which the final authority resides
with the Commissioner.”). As long as the ALJ’s decision is supported by substantial evidence
and the good reason requirement is met, the decision must stand. See id.
The Court finds that the ALJ did not err in affording more weight to Dr. Jacquemin due
to his surgical credentials.
Dr. Jacquemin’s specialization as an orthopedic surgeon is a
permissible factor under the regulations favoring controlling weight.
See 20 C.F.R. §
404.1527(c)(5) (“We generally give more weight to the opinion of a specialist about medical
issues related to his or her area of specialty than to the opinion of a source who is not a
specialist.”). The Court notes that while plaintiff argues it was error for the ALJ to give more
weight to Dr. Jacquemin’s opinion due to his specialization, specialization is what plaintiff relies
upon in arguing that Dr. Lee was entitled to greater weight. Both physicians specialize in
20
different areas of medicine, and therefore, it is not their specialty alone that entitled one to more
weight over the other.
Here, the Court finds that the ALJ did not solely rely on the fact that Dr. Jacquemin
performed plaintiff’s surgery. Dr. Jacquemin treated plaintiff for 10 months prior to her surgery
and 14 months post-operative. Consequently, Dr. Jacquemin’s two year treating relationship
with plaintiff placed Dr. Jacquemin in the unique position to examine, observe, and become
familiar with plaintiff’s condition and functional limitations both before and after her surgery.
This longitudinal window of treatment surely provided some valuable insight for the ALJ to rely
upon. The fact that Dr. Jacquemin reached a point in his relationship with plaintiff where he
could no longer provide meaningful treatment to her as a surgeon does not mean that Dr.
Jacquemin’s opinion became irrelevant in offering insight into plaintiff’s functional limitations.
In fact, the ALJ spent a great deal comparing the medical evidence from both doctors and cited
to specific evidence that contradicted Dr. Lee’s opinion [Tr. 23, 27-28]. Therefore, the Court is
unable to conclude that the ALJ improperly relied upon Dr. Jacquemin’s surgical credentials as
one factor in assessing the weight the opinion was entitled to.
The second error plaintiff alleges is that the ALJ essentially played doctor, arriving to
conclusions that were unsubstantiated by the evidence and represented the ALJ’s personal
opinion [Doc. 16 p. 12]. Plaintiff gives several examples in support of her argument. First, the
ALJ stated that “[a]fter a careful review of the evidence, the undersigned disputes Dr. Lee’s
opinion and gives it little weight” [Tr. 22]. Plaintiff argues that the ALJ “does not have the
medical expertise or training to ‘dispute’ a treating physician’s opinion” [Doc. 16 p. 12]. The
disability determination continues with the ALJ finding that plaintiff’s normal neurological
findings, normal muscle strength in her lower extremities, and straight leg raises positive for
21
back pain only, demonstrated that the diminished sensation in plaintiff’s right lower extremity as
opined by Dr. Lee in his Listing Questionnaire “is not sufficient to warrant the degree of
functional limitation [Dr. Lee] gives” [Tr. 27]. Plaintiff contends that the ALJ impermissibly
arrived at this conclusion because “no physician suggested that the diminished sensation
noted by Dr. Lee in [plaintiff’s] right lower extremity was not sufficient to warrant the
degree of functional limitation that he assigned. [The ALJ] came up with this entirely on
her own” [Doc. 12 p. 16]. Finally, the ALJ found that the rejection of Dr. Lee’s request for
approval to perform a radiofrequency ablation or implant of a spinal cord by plaintiff’s worker’s
compensation carrier “suggested they found nothing in the objective medical evidence to justify
those procedures” [Tr. 26]. The ALJ’s finding, according to plaintiff, is no more than “unbridled
speculation” because insurance companies generally look for ways to deny expensive procedures
like the ones requested by Dr. Lee [Doc. 16 p. 13].
The Commissioner responds that ALJs are “tasked with interpreting medical opinions in
light of the totality of the evidence,” which is what the ALJ did here [Doc. 19 p. 11 (quoting
Griffith v. Comm’r of Soc. Sec., 582 F. App’x 555, 564 (6th Cir. 2014))]. The Commissioner
argues that the ALJ specifically referenced medical evidence that was inconsistent with Dr. Lee’s
opinion and therefore the ALJ was not “playing doctor” but was properly executing her role as
arbiter by identifying and resolving conflicts in the record [Id. at 11-12].
It is well established that ALJs are not trained medical experts and therefore may not
substitute their own opinions for that of a licensed medical provider, particularly a treating
physician who, as a general rule, is deserving of significant deference. See Meece v. Barnhart,
192 F. App’x 456, 465 (6th Cir. 2006) (citation omitted) (holding that an “ALJ may not
substitute his own medical judgment for that of the treating physician where the opinion of the
22
treating physician is supported by the medical evidence”); see also Schmidt v. Sullivan, 914 F.2d
117, 118 (7th Cir. 1990) (“But judges, including administrative law judges of the Social Security
Administration, must be careful not to succumb to the temptation to play doctor.” (citations
omitted)). However, an ALJ is not bound by a treating physician’s opinion and may discredit the
opinion if it is not supported by objective evidence and the ALJ provides a reasonable basis for
the rejection. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003). Furthermore, an
ALJ may draw reasonable inferences from the evidence, but may not speculate or draw
conclusions that are not supported by the record. See Shell v. Comm’r of Soc. Sec., No. 3:08CV-2946, 2010 WL 1132678, at *9 (N.D. Ohio Mar. 18, 2010) (holding “[i]t is within the ALJ’s
province to draw reasonable inferences from the medical evidence” (citation omitted)).
Here, the Court finds that the ALJ did not substitute her own opinion in lieu of Dr. Lee’s
opinion simply because the ALJ stated she “disputed” the opinion in regard to whether it
demonstrated that plaintiff met or equaled the criteria of Listing 1.04A [Tr. 22]. Nor did the ALJ
summarily reject Dr. Lee’s opinion.
Rather, the ALJ identified specific evidence that
undermined the opinion, a task well within the ALJ’s duty to weigh the evidence and resolve any
conflicts it may present. For example, Listing 1.04A requires that a claimant be positive for
straight leg raises. 20 C.F.R. § 404, Subpart P, App. 1 (1.04A). The ALJ explained that Dr. Lee
found plaintiff was negative for straight leg raises, which in and of itself precluded plaintiff from
meeting the listing criteria [Tr. 23]. In addition, the ALJ noted other inconsistencies in the
evidence that disqualified Dr. Lee’s opinion from satisfying the listing’s criteria. While Dr. Lee
opined plaintiff suffered from motor loss, the ALJ pointed to numerous treatment notes from
both Dr. Lee and Dr. Jacquemin that documented plaintiff’s muscle strength as completely
normal [Id. (citing Exhibits 5F, 7F, 8F)]. Dr. Lee also opined decreased sensation in plaintiff’s
23
lower right extremity, but the ALJ noted records from Dr. Lee, Dr. Schrickel, and Dr. Jacquemin
that documented normal and “intact” sensory findings [Id. (citing Exhibits 5F, 7F, 8F)].
As to the ALJ’s conclusion that the diminished sensation found by Dr. Lee was
insufficient to warrant the degree of functional limitation assessed in his questionnaire, the Court
likewise disagrees with plaintiff that the ALJ’s finding was completely “made up.” ALJs often
times must draw reasonable conclusions from the evidence that are not explicit findings in the
record. See Shell, 2010 WL 1132678, at *9. To hold otherwise would preclude ALJs from
making any findings that were not first explicitly opined by a medical source.
While no
physician may have opined that the diminished sensation noted by Dr. Lee was insufficient to
support the functional limitations Dr. Lee assessed, the ALJ was capable of making such a
finding without playing doctor because she identified specific evidence in the record to support
her conclusion. The ALJ noted that plaintiff’s normal muscle strength, lack of sciatica, and other
normal neurological findings discussed in the disability determination in regard to Listing 1.04A,
were the basis for finding that the limitations opined by Dr. Lee were less than fully credible [Tr.
22, 27]. The Court finds that the ALJ’s actions were permissible as an adjudicator tasked with
weighing the evidence and drawing reasonable inferences.
However, the Court concurs with plaintiff that the ALJ’s reliance on the worker’s
compensation carrier’s denial of the medical procedures requested by Dr. Lee was error. In this
instance, the ALJ pointed to no evidence to support her conclusion that the denial resulted from a
lack of objective medical evidence justifying the requested procedures. The Court finds the
ALJ’s conclusion in this regard speculative. However, the Court also finds that any error in the
ALJ’s reasoning was harmless. The ALJ provided other good reasons, supported by the record,
for discounting Dr. Lee’s opinion, and this Court’s foregoing discussion has found that these
24
additional reasons were appropriate. See Blakley v. Comm’r Of Soc. Sec., 581 F.3d 399, 409 (6th
Cir. 2009) (violation of the “good reason” rule is harmless “where the Commissioner ‘has met
the goal of . . . the procedural safeguard of reasons’” (quoting Wilson, 378 F.3d at 547)).
Finally, the last error alleged by plaintiff in regard to Dr. Lee’s opinion is that the ALJ
failed to weigh the opinion in accordance with 20 C.F.R. § 404.1527 [Doc. 16 p. 13]. Plaintiff
argues that Dr. Lee’s opinion is supported by objective medical evidence, is not inconsistent with
other substantial evidence, and even if the opinion were not entitled to controlling weight, the
ALJ failed to give good reason for rejecting the opinion [Id.]. Plaintiff further argues that the
factors that must be weighed when a treating physician’s opinion is not given complete
deference—length of treatment, frequency of examination, nature and extent of the treatment
relationship, amount of relevant evidence that supports the opinion, the opinion’s consistency
with the record as a whole, the specialization of the source, and other factors which tend to
support or contradict the opinion—militate in favor of giving greater weight to Dr. Lee’s opinion
[Id. at 15].
The Court finds the ALJ provided a detailed explanation, with citation to the record, for
discounting Dr. Lee’s opinion. The ALJ explained that Dr. Lee’s and Dr. Jacquemin’s treatment
notes demonstrated no loss of muscle strength, no sciatica with straight leg raises, and normal to
intact sensory [Tr. 27]. The ALJ found Dr. Jacquemin was more credible not only because he
was an orthopedic surgeon but also because he treated plaintiff from June 2007 through her
surgery in April 2008 and up until May 2009, whereas Dr. Lee only spent six months with
plaintiff prior to her insured status expiring [Tr. 27-28]. The ALJ also found Dr. Lee’s opinion
that plaintiff experienced adverse side effects with medication inconsistent with Dr. Lee’s
treatment records that repeatedly noted that plaintiff suffered “no adverse effect” with
25
medication [Tr. 28]. The physical work performance evaluation by NovaCare Rehabilitation was
also relied upon by the ALJ as the evaluation concluded that plaintiff was capable of light work,
an opinion adopted by Dr. Jacquemin [Id.]. As to other opinion evidence, the ALJ discussed the
opinion of the state agency physician who likewise opined physical limitations consistent with
light work [Id.]. Accordingly, the Court finds the ALJ provided good reason for concluding that
Dr. Lee’s opinion was not entitled to a higher degree of deference.
That plaintiff argues that the length of treating relationship and frequency of examination
factors favor Dr. Lee because plaintiff was seen by Dr. Lee 41 times between June 2009 and
June 2012 [Doc. 16 p. 15]. However, plaintiff’s last date insured was December 31, 2009.
Therefore, any post-dated records have little bearing on the disability determination unless
plaintiff demonstrates that the post-dated evidence relates back to her condition prior to the
expiration of her insured status. See Strong v. Soc. Sec. Admin., 88 F. App’x 841, 845 (6th Cir.
2004) (citation omitted) (holding that “[e]vidence of disability obtained after the expiration of
insured status is generally of little probative value”); Wirth v. Comm’r of Soc. Sec., 87 F. App’x
478, 480 (6th Cir. 2003) (citation omitted) (finding that post-dated evidence is only relevant if it
“relate[s] back to the claimant’s condition prior to the expiration of her date last insured”). The
Court finds plaintiff fails to make such a showing.
Plaintiff also argues that Dr. Lee was the only physician to have seen or treated plaintiff
from June 2009 forward, and the ALJ fails to consider that plaintiff’s condition had worsened
[Doc. 16 pp. 15-16]. Plaintiff, however, points to no medical evidence indicating that plaintiff’s
condition worsened between June 2009, when Dr. Lee began treating plaintiff, and December 31,
2009, plaintiff’s last date insured. Any treatment notes that may show a worsening condition
after December 2009 do not fall into the equation.
26
Finally, plaintiff argues that Dr. Lee’s specialization in pain management also lends itself
to a finding of greater weight per 20 C.F.R. § 404.1527(c)(5) [Doc. 16 p. 15]. The Court
recognizes that “pain is by definition a somewhat subjective matter,” Johnson v. Comm’r of Soc.
Sec., 652 F.3d 646, 652 (6th Cir. 2011), and therefore Dr. Lee would likely be in a superior
position, as a pain specialist, to evaluate plaintiff’s subjective complaints. However, the Court of
Appeals for the Sixth Circuit has explained that “[s]ubjective complaints of ‘pain or other
symptoms shall not alone be conclusive evidence of disability.’” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting 42 U.S.C. § 423(d)(5)(A)). Subjective complaints of pain are
evaluated as follows: “(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 v. Secretary of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986). As
explained above, the ALJ weighed Dr. Lee’s opinion with the other medical evidence of record,
including the other opinion evidence, and found that the record did not confirm or established the
severity of pain opined by Dr. Lee. Thus, Dr. Lee’s specialization does not undermine the ALJ’s
findings.
Based upon the foregoing, the Court finds plaintiff’s contentions in regard to Dr. Lee are
not well taken.
C.
Discussion of the Evidence
As a last assignment of error, plaintiff contends that the ALJ selectively discussed the
evidence [Doc. 16 p. 16]. In doing so, plaintiff argues that the ALJ’s credibility finding is not
supported by substantial evidence, because the ALJ took certain notations from Dr. Lee’s
treatment notes out of context [Id. at 17-18]. Specifically, the ALJ found that plaintiff was
27
considerably more active than she conveyed in her hearing testimony, noting that plaintiff had
gone camping, took a driving trip to the Smokey Mountains, and walked around the zoo, per Dr.
Lee’s treatment notes [Tr. 26]. Plaintiff argues that the ALJ took these instances of activities out
of context because a full reading of Dr. Lee’s treatment notes demonstrate that with each
activity, plaintiff’s pain had significantly increased and some of the activities were specifically
relayed by plaintiff to Dr. Lee as examples of how her pain intensified as her level of activity
increased [Doc. 16 pp. 17-18]. The ALJ, according plaintiff, unfairly attacked her credibility
because plaintiff was not questioned about these events during the administrative hearing [Id. at
18].
The Commissioner responds that the ALJ was under no obligation to question plaintiff
about each piece of evidence during the hearing or discuss every piece of evidence in the
disability determination [Doc. 19 p. 8]. Moreover, the Commissioner argues the ALJ discounted
plaintiff’s credibility for a host of other reasons including, a lack of objective medical evidence
supporting her allegations, participation in other daily activities, conservative treatment
measures, inconsistent statements regarding plaintiff’s search for work, lack of medication
compliance, and other opinion evidence of record, all of which is unchallenged by plaintiff [Id. at
8-9].
In evaluating complaints of pain, an ALJ may properly consider the credibility of the
claimant.” Walters, 127 F.3d at 531. Our appellate court has articulated the standard for
evaluating subjective complaints as follows:
First, we examine whether there is objective medical evidence in
an underlying medical condition. If there is, we 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
28
it can reasonably be expected to produce the alleged disabling
pain.
Duncan v. Sec. of Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986).
In deciding whether the objective evidence confirms the severity of the alleged pain or
whether the objectively established medical condition is of such a severity that it can reasonably
be expected to produce the alleged disabling pain, the ALJ must consider the following factors:
(i) daily activities; (ii) the location, frequency, and intensity of the pain or other symptoms; (iii)
precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any
medication taken to alleviate pain or other symptoms; (v) treatment, other than medication,
received or have received for relief of pain or other symptoms; (vi) any measures that are used or
were used to relieve pain or other symptoms; (vii) other factors concerning functional limitations
and restrictions due to pain or other symptoms. Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *3
(July 2, 1996); 20 C.F.R. § 1529(c)(3). Although the ALJ is not required to address every factor,
the ALJ’s “decision must contain specific reasons for the finding on credibility, supported by the
evidence in the case record, and must be sufficiently specific to make clear to the individual and
to any subsequent reviewers the weight the adjudicator gave to the individual’s statements and
the reasons for that weight.” Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *2.
Moreover, when supported by substantial evidence, the ALJ’s findings regarding
credibility “are to be accorded great weight and deference, particularly since an ALJ is charged
with the duty of observing a witness’s demeanor and credibility.” Walters, 127 F.3d at 531.
The Court agrees with plaintiff that the ALJ’s discussion of plaintiff’s activities as
recorded in Dr. Lee’s treatment notes is misleading. While plaintiff did in fact convey that she
had gone camping, took a driving trip, and walked around the zoo, plaintiff also related in each
instance that she experienced pain after each activity [Tr. 436, 477, 486]. Plaintiff’s complaints
29
of pain are absent from the ALJ’s discussion and therefore the discussion is presented as though
plaintiff engaged in activities without any trouble, or without as much pain as one might expect
given her allegations. However, this is not a correct reading of Dr. Lee’s treatment notes [Id.].
The fundamental question, then, is whether the ALJ’s credibility finding is nonetheless supported
by substantial evidence despite this error. See Johnson v. Comm’r of Soc. Sec., 535 F. App’x
498, 507 (6th Cir. 2013) (“[I]f an ALJ’s adverse credibility determination is based partially on
invalid reasons, harmless error analysis applies to the determination, and the ALJ’s decision will
be upheld as long as substantial evidence remains to support it.” (citing Ulman v. Comm’r of Soc.
Sec., 693 F.3d 709, 714 (6th Cir. 2012))).
In the instant case, the Court finds that the ALJ’s error was harmless. The ALJ’s
discussion was lengthy and cited to numerous other reasons that warranted a finding that
plaintiff’s disabling complaints were not fully credible. First, the ALJ noted that plaintiff
testified that her back and leg pain were worse after her surgery and that she had reported this
fact to Dr. Jacquemin [Tr. 25]. The ALJ found, however, that Dr. Jacquemin’s treatment notes
were void of such complaints [Id.]. The ALJ also reasoned that if plaintiff’s pain was as severe
as she claimed, “it is difficult to believe Dr. Lee would not have referred her for a surgical
consult, given the possibility that the fusion instrumentation was no longer intact” [Id.].
Second, the ALJ found troublesome plaintiff’s statements to Dr. Jacquemin about looking
for work [Id.]. The ALJ recited Dr. Jacquemin’s treatment note in which plaintiff reported she
was looking for work with the restrictions he had been assessed but told Dr. Lee the following
month that she could not work due to the same job restrictions [Id.]. Plaintiff admitted during
the hearing that she never actually looked for work but only gave the impression that she was on
30
the advice of counsel handling her worker’s compensation claim in an effort to bolster her claim
settlement [Id.].
Next, the ALJ noted some inconsistency with plaintiff taking her medication as
prescribed and the results she experienced [Id.]. While plaintiff testified she was worried about
becoming addicted to pain medication and that her Vicodin had lost its effectiveness, the ALJ
pointed to Dr. Lee’s treatment notes which documented that plaintiff had no serious side effects
from her pain medicine and that she had been using Vicodin for three years leading up to her
date last issued and that the medicine still helped and did not produce side effects [Id.]. The ALJ
also explained that plaintiff experienced a substantial amount of pain relief following steroid
injunctions and acupuncture treatments from Dr. Lee and plaintiff was able to perform some
housework and exercise regularly as encouraged by Dr. Lee [Tr. 26].
Finally, the ALJ addressed plaintiff’s allegation that she had gained 100 pounds as the
result of her back injury [Tr. 26]. As explained above in greater detail, the ALJ found no
evidence in the record of such substantial weight gain and cited to medical records that ranged
from 2004, the year of her injury, to the most current record from 2013, which reflected only a
20 pound difference in weight [Id.]. Moreover, the ALJ noted the lack of a walking assistive
device and Dr. Lee’s encouragement that plaintiff walk at the grocery store instead of utilizing a
motorized scooter as evidence demonstrating that any hardships caused by plaintiff’s weight was
due to being deconditioned rather than disabling back pain [Tr. 26-27].
Given the ALJ’s compressive discussion of plaintiff’s credibility, the Court finds that the
ALJ’s error does not warrant a remand in this case. Because the ALJ articulated additional
reasons for finding plaintiff less than fully credible, the Court finds that substantial evidence
supports the ALJ’s credibility determination.
31
Accordingly, the Court finds plaintiff’s allegation of error is not well taken.
VII.
CONCLUSION
For these reasons, plaintiff’s Motion for Summary Judgment [Doc. 15] will be DENIED,
and the Commissioner’s Motion for Summary Judgment [Doc. 18] will be GRANTED. The
Clerk of Court will be directed to CLOSE this case.
ORDER ACCORDINGLY.
s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE
32
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?