Simmons v. Social Security Administration, Commissioner of (TWP2)
Filing
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MEMORANDUM OPINION. Signed by District Judge Thomas W Phillips on 3/21/18. (JBR)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT WINCHESTER
PATRICIA ANN SIMMONS,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security
Defendant.
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) Civil Action No. 4:17-cv-15-TWP-CHS
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MEMORANDUM OPINION
I.
Introduction
Plaintiff seeks judicial review pursuant to Section 205(g) of the Social Security 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 under Title II of the Social Security Act (Act),
42 U.S.C. §§ 401-434. Plaintiff asserts the administrative law judge (ALJ) failed to give proper
weight to Plaintiff’s medical providers and failed to properly evaluate her subjective complaints
and credibility. For the reasons stated herein, Plaintiff’s Motion for Summary Judgment [Doc. 14]
shall be DENIED; the Commissioner’s Motion for Summary Judgment [Doc. 17] shall be
GRANTED; and the decision of the Commissioner shall be AFFIRMED. Judgment in favor of
the Commissioner shall be entered.
II.
Background
A. Procedural History
Plaintiff applied for disability insurance benefits under Title II of the Social Security Act
(Act), 42 U.S.C. §§ 401-434 (Tr. 177). Plaintiff’s claim was denied and she requested a hearing
before an administrative law judge (Tr. 136). On November 4, 2015, following a hearing, the ALJ
found that Plaintiff was not disabled (Tr. 36). On January 18, 2017, SSA’s Appeals Council denied
Plaintiff’s request for review (Tr. 1-14). Thus, Plaintiff has exhausted her administrative remedies,
and the ALJ’s decision stands as the final decision of the Commissioner subject to judicial 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 September 30, 2017.
2.
The claimant has not engaged in substantial gainful activity since August
14, 2012, the alleged onset date (20 CFR 404.1571 et seq.).
3.
The claimant has the following severe impairments: fibromyalgia;
osteoarthritis; carpal tunnel syndrome; anxiety; depression; mild
degenerative disc disease; right shoulder bursitis; obesity (20 CFR
404.1520(c)).
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
and 404.1526).
5.
After careful consideration of the entire record, the undersigned finds that
the claimant has the residual functional capacity to perform unskilled light
work as defined in 20 CFR 404.1567(b). Specifically, the claimant is able
to lift and carry 20 pounds occasionally and 10 pounds frequently. The
claimant can sit, stand, and walk for 6 hours each per 8-hour workday, with
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a brief postural adjustment every hour for 5 minutes at [her] workstation
without getting off task. The claimant is able to push and pull as much
as she can lift and carry. The claimant can occasionally climb ramps and
stairs but can never climb ladders and scaffolds. The claimant can
occasionally balance, stoop, kneel, crouch, and crawl. The claimant is
able to maintain concentration, persistence, and pace for low-level
detailed tasks over a normal workday with appropriate breaks. The
claimant can have frequent interaction with supervisors, co-workers, and
the public.
6.
The claimant is unable to perform any past relevant work (20 CFR
404.1565).
7.
The claimant was born on February 7, 1962 and was 50 years old, which
is defined as an individual closely approaching advanced age, on the
alleged disability onset date (20 CFR 404.1563).
8.
The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework
supports a finding that the claimant is "not disabled," whether or not the
claimant has transferable job skills (See SSR 82-41 and 20 CFR Part
404, Subpart P, Appendix 2).
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 and 404.1569(a)).
11.
The claimant has not been under a disability, as defined in the Social
Security Act, from August 14, 2012, through the date of this decision
(20 CFR 404.1520(g)).
(Tr. 20, 21, 23-24, 34-36).
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C. Relevant Facts
1. Plaintiff’s Age, Education, and Past Work Experience
At the time of the hearing before the ALJ on September 8, 2015, Plaintiff was 53 years old,
which is defined as an individual closely approaching advanced age, with an alleged onset
disability date of August 14, 2012. 20 CFR 404.1563. She has past relevant work as a stock clerk,
an unskilled, heavy exertion position, and as a produce manger, a skilled, medium exertion position
[Tr. 72]. She has a twelfth grade education [Tr. 47].
2. Plaintiff’s Testimony and Medical History
The ALJ thoroughly and adequately discussed Plaintiff’s medical history and her testimony
at the hearing in his decision. The Court will discuss Plaintiff’s medical history and testimony
only as necessary to discuss the issues raised in this case.
III.
Analysis
A. Standard of Review
To establish disability under the Social Security Act, a claimant must establish 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
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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 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).
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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 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 three issues for review: (1) whether substantial evidence supports the
ALJ’s evaluation of the opinion of Plaintiff’s treating physicians; (2) whether substantial evidence
supports the ALJ’s evaluation of Plaintiff’s subjective complaints; and (3) whether substantial
evidence supports the ALJ’s evaluation of the opinion of Plaintiff’s counselor.
1. Whether Substantial Evidence Supports the ALJ’s Evaluation
of The Opinion of Plaintiff’s Treating Physicians
Plaintiff asserts that the ALJ erred in not giving controlling weight to the opinions of her
treating physicians, Dr. Thomasson and Dr. Capps. The Regulations require an ALJ to “evaluate
every medical opinion” regardless of its source. 20 C.F.R. §§ 404.1527(c), 416.927(c). However,
not every medical opinion is treated equally, and the Regulations describe three classifications for
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acceptable medical opinions: (1) nonexamining sources; (2) nontreating sources; and
(3) treating sources. A nonexamining source is “a physician, psychologist, or other acceptable
medical source who has not examined [the claimant] but provides a medical or other opinion in
[the claimant’s] case.” 20 C.F.R. §§ 404.1502, 416.902. 1 A nontreating source is described as “a
physician, psychologist, or other acceptable medical source who has examined [the claimant] but
does not have, or did not have, an ongoing treatment relationship with [the claimant].” Id. Finally,
the Regulations define a “treating source” as the claimant’s “own physician, psychologist, or other
acceptable medical source who provides [the claimant], or has provided [the claimant], with
medical treatment or evaluation and who has, or has had, an ongoing treatment relationship with
[the claimant].” Id.; accord Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 375 (6th Cir. 2013).
An ALJ is required to give a treating source’s medical opinion “controlling weight” if: “(1)
the opinion ‘is well-supported by medically acceptable clinical and laboratory diagnostic
techniques’; and (2) the opinion ‘is not inconsistent with the other substantial evidence in [the]
case record.’” Gayheart, 710 F.3d at 376 (quoting 20 C.F.R. § 404.1527(c)(2)); West v. Comm’r
of Soc. Sec., 240 F. App’x 692, 696 (6th Cir. 2007). If the ALJ does not give a treating source’s
opinion controlling weight, she must determine the appropriate weight to give the opinion based
on the length, frequency, nature, and extent of the treatment relationship; the treating source’s area
of specialty; and the degree to which the opinion is consistent with the record as a whole and is
1
The Social Security Administration revised its rules regarding the evaluation of medical evidence. 82 Fed. Reg.
5844-01, 2017 WL 168819. The revised regulations went into effect on March 27, 2017, id., and are not applicable
to this case. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“Retroactivity is not favored in the
law. Thus, congressional enactments and administrative rules will not be construed to have retroactive effect unless
their language requires this result.”); Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th Cir. 2006) (“The Act does
not generally give the SSA the power to promulgate retroactive regulations.”).
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supported by relevant evidence. Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)(6)); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (internal citations omitted).
A failure to give “good reasons,” or a failure to determine the degree of deference owed to a noncontrolling treating source opinion, “denotes a lack of substantial evidence, even where the
conclusion of the ALJ may be justified based upon the record,” and requires remand. Friend v.
Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (per curiam) (quoting Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 243 (6th Cir. 2007)).
Plaintiff argues initially that the ALJ erred in evaluating the opinion of Richard Thomasson,
M.D., one of her treating physicians.
The ALJ considered both the treatment record from the
doctor (Tr. 21-28) as well as the doctor’s opinion (Tr. 33-34, citing Tr. 327-52, 402-07, 413-69).
The ALJ found that the opinions provided by the doctor were due only “little weight” (Tr. 33)
because they were not supported by the record as a whole and by the doctor’s treatment notes (Tr.
34).
Plaintiff was treated by Dr. Thomasson from October 2012 to September 2015. Dr.
Thomasson provided an opinion regarding the limits caused by fibromyalgia on December 11,
2013, and again on August 7, 2015 (Tr. 610-615). The opinions were essentially the same except
the restriction on ability to walk/stand of 20 minutes at a time in 2013 was reduced to 15 minutes
in 2015 (Tr. 405, 613).
On forms entitled “fibromyalgia residual functional capacity
questionnaire,” Dr. Thomasson stated that Plaintiff was also diagnosed with osteoarthritis and
GERD (gastrointestinal reflux disorder) and had a good prognosis (Tr. 402, 610). The ALJ
summarized the doctor’s opinion (Tr. 33).
Dr. Thomasson opined: Plaintiff had multiple
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symptoms and, as a result, she would have constant interference with attention and concentration
(Tr. 404, 612). She had a severe limitation in the ability to work with stress (Tr. 404, 612). She
had no side effects from medications (Tr. 404, 612). She needed to walk for 10 minutes every 20
minutes (Tr. 405, 613). She would need unscheduled breaks, and could occasionally lift less than
10 pounds (Tr. 406, 614). She would also be absent from work on average more than three times
per month. (Tr. 407, 615).
Plaintiff argues the ALJ’s dismissal of Dr. Thomasson’s opinions is error because the ALJ
failed to appreciate that pain caused by fibromyalgia cannot be assessed by objective medical
findings; for example, normal physical findings such as normal range of motion are not helpful in
assessing pain caused by fibromyalgia. The problem with this argument is that Plaintiff also had
many other physical impairments which the ALJ found were severe: osteoarthritis, carpal tunnel
syndrome, mild degenerative disc disease, shoulder bursitis, and obesity (Tr. 20). The ALJ must
evaluate all of these impairments, and need not abandon the evaluation of objective medical
evidence merely because one of Plaintiff’s diagnoses is fibromyalgia. The ALJ did find that
Plaintiff’s fibromyalgia constituted a severe impairment, and he considered other factors besides
objective medical findings in assessing pain caused by it. The Court notes that the ALJ’s decision
would have been clearer had he expressly noted that the level of pain cause by fibromyalgia could
not be assessed based on range of motion, physical strength and other objective physical
measurements. However, to the extent that this omission may be considered error, the Court finds
it is harmless given that the ALJ did indeed consider other factors such as medication, activities,
and the claimant’s credibility in assessing her pain levels.
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Plaintiff faults the ALJ for mentioning that “[o]n many occasions, despite the claimant’s
complaints of pain, the only medication prescribed by Dr. Thomasson was Phentermine, a
stimulant which acts as an appetite suppressant” (Tr. 34). Pl.’s Br. at 19. Plaintiff contends the
ALJ misread the record, believing that Plaintiff only took this one medication. See Pl.’s Br. at 21.
Plaintiff’s interpretation of the ALJ’s decision is incorrect and mistakenly relies on reading the
sentence at issue in isolation. In the prior sentence, the ALJ mentioned that the doctor also
prescribed an anti-inflammatory medication, Meloxicam (Tr. 34). Further, on the prior pages, the
ALJ detailed numerous other medications (Tr. 21-33). For instance, in one portion of the decision
the ALJ said: “The claimant was prescribed Prevacid and Cipro. The claimant continued to follow
up on a monthly basis with Dr. Thomasson who continued her on medications including
Gabapentin, Meloxicam, Acyclovir, Premarin, Prevacid, Seroquel XR, Bentyl, Septra DS,
Phentermine, Ultram, Neurontin, and Cymbalta.” (Tr. 27). To the extent that Plaintiff intends to
characterize the ALJ's decision as reflecting a belief that the doctor prescribed only this one
medication, this characterization is incorrect. There were many occasions on which the weight
loss drug was the only one the doctor renewed (Tr. 414, 434, 438, 442, 446, 450, 452). The ALJ
was aware that Plaintiff had other prescriptions, but the sentence at issue was factually correct.
The intent here was consideration of what the ALJ described as “conservative medications” (Tr.
34), and that is a finding the ALJ is permitted to make. Conservative treatment can be a “good
reason” for discounting a doctor’s opinion. See Kepke v. Comm'r of Soc. Sec., No. 15-1315, 2016
WL 124140, at *5 (6th Cir. Jan. 12, 2016) (“The ALJ noted that the records indicate Kepke
received only conservative treatment for her ailments, a fact which constitutes a “good reason” for
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discounting a treating source opinion.”).
The ALJ spent multiple pages discussing the record before reaching the conclusion that
Plaintiff received only conservative treatment for fibromyalgia. For instance, the ALJ mentioned
Plaintiff’s conservative treatment regimen while reviewing specific parts of the treatment record
(Tr. 24-25, 28, 29). The ALJ need not repeat the prior analysis when explaining the weight given
to the opinion of Dr. Thomasson. Stating it once is sufficient. The Court may look to the entire
decision for the ALJ’s analysis of the treating physician opinion. See e.g., Hernandez v. Comm'r
of Soc. Sec., No. 15-1875, 2016 WL 1055828, at *4 (6th Cir. Mar. 17, 2016) (ALJ rejected the
MSS [medical source statement], determining that it was not supported by the objective medical
evidence in the record, “as discussed above.”). See also Forrest v. Comm’r of Social Sec., 591
Fed. App’x. 359, 366 (6th Cir. 2014) (“here the ALJ made sufficient factual findings elsewhere in
his decision to support his conclusion at step three”); Bledsoe v. Barnhart, 165 Fed. App’x. 408,
411 (6th Cir.2006) (looking to findings elsewhere in the ALJ's decision to affirm a step-three
medical equivalency determination, and finding no need to require the ALJ to “spell out every fact
a second time.”)
The ALJ found that the restrictions the doctor provided were inconsistent with the
treatment record (Tr. 34). The ALJ previously summarized and documented consideration of these
records. For instance, the ALJ considered that, on her date of alleged onset, the doctor found
normal gait among other findings, and that she needed to return in a month (Tr. 25, 341-42). The
ALJ commented that, after some treatment with Dr. Thomasson, Plaintiff was seen for physical
therapy, but was discharged for noncompliance (Tr. 26, 307). The ALJ considered Plaintiff’s
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treatment with Dr. Thomasson in early 2013, the prescriptions for various medications, and the
lumbar MRI that showed only mild to moderate findings (Tr. 26, 347).
The ALJ considered Plaintiff’s treatment with Dr. Thomasson in the remainder of 2013 as
well (Tr. 27). She had essentially normal examinations and was prescribed many medications as
noted by the ALJ (Tr. 27, 381-97, 457-68). Continuing, the ALJ considered Plaintiff’s treatment
with the doctor in 2014 and 2015 as well, noting normal examinations and treatment with trigger
point injections and medications (Tr. 28, 413-56, 631-40). The ALJ’s analysis of a treating
physician’s opinion may cite inconsistencies in the evidence, but the ALJ need not refer again to
specific inconsistencies again when those were listed earlier in the decision. See e.g., Crum v.
Comm’r of Soc. Sec., No. 15-3244, 2016 WL 4578357, at *7 (6th Cir. Sept. 2, 2016) (“No doubt,
the ALJ did not reproduce the list of these treatment records a second time when she explained
why Dr. Bell's opinion was inconsistent with this record. But it suffices that she listed them
elsewhere in her opinion.”) (citing Forrest v. Comm’r of Soc. Sec., 591 F. App'x 359, 366 (6th Cir.
2014)).
The Court also notes that Dr. Thomasson’s treatment notes, by and large, did not indicate
the degree of pain plaintiff stated she was experiencing or state whether her pain levels were getting
better or worse. Generally, the treatment notes indicated the existence of pain but not the degree.
(See e.g., Tr. 429, 431, 433). Moreover, in both his opinions, Dr. Thomasson indicated Plaintiff
experienced no side effects from the medications she was taking to address fibromyalgia and her
other conditions (Tr. 404, 612). It is reasonable to conclude Plaintiff’s pain was being sufficiently
addressed with her medications, which were not causing her difficult side effects.
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Plaintiff also argues that the ALJ failed to evaluate opinion evidence from Raymond Capps,
M.D., a neurologist who treated her. Plaintiff apparently is referring to a “disability certificate”
provided to a private insurance carrier (Tr. 207).
While the ALJ did not discuss specific
consideration of this document, this omission does not require remand because the certificate
pertains only to a conclusion on disability, an issue reserved to the Commissioner. The ALJ
showed full consideration of Plaintiff’s treatment with Dr. Capps. The ALJ noted that Plaintiff
was seen by Dr. Capps upon referral from Dr. Thomasson, and the ALJ described this care (Tr.
26, 309-21). While it is correct that Dr. Capps provided a disability certificate, which was entered
into the record as part of the non-medical evidence, this is merely a conclusory form stating that
Plaintiff was permanently disabled for the purposes of a union pension fund (Tr. 207). A doctor’s
conclusion that a patient is disabled from all work may be given consideration, but could “never
be entitled to controlling weight or given special significance” because it may invade the ultimate
disability issue reserved to the Commissioner. SSR 96–5p (“Medical sources often offer opinions
about whether an individual . . . is ‘disabled’ or ‘unable to work [.]’ . . . Because these are
administrative findings that may determine whether an individual is disabled, they are reserved to
the Commissioner.”); see also 20 C.F.R. § 404.1527(a), (d). Any failure to mention this evidence
is harmless error since the certificate was of little value under the regulations. See Dutkiewicz v.
Comm'r of Soc. Sec., 663 F. App'x 430, 432 (6th Cir. 2016) (“But the ALJ's failure to explicitly
consider Dr. Kolinski's opinion was, at most, harmless error because the ALJ indirectly rejected
the conclusion that Dutkiewicz was unable to work by reasonably explaining that the majority of
medical evidence, the nature of Dutkiewicz's treatment, and the other medical opinions in the
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record showed that Dutkiewicz had the capacity to perform a limited range of sedentary work.”).
Plaintiff also argues that the ALJ gave great weight to the opinion of a consulting
examining physician, Stephen Goewey, M.D., but that the ALJ did not explain how this opinion
was consistent with evidence in the record. (See Pl.’s Br. at 27, citing Tr. 32, 365). Dr. Goewey
examined Plaintiff on a consultative basis in April 2013. He assessed fibromyalgia, lumbago, and
alleged colitis (Tr. 367). The doctor opined that “no restrictions are endorsed at this time” based
on the history, normal physical findings, and limited medical records supplied (Tr. 368). The ALJ
considered the examination (Tr. 26-27), and cited this examination as generally unremarkable and
representative of mild findings (Tr. 29). The opinion was given significant weight, and, in
particular, the ALJ noted that Plaintiff had only provided “variable effort” according to the doctor
(Tr. 32, 366).
It is noteworthy that the ALJ considered this doctor's opinion that Plaintiff had “no
restrictions”; however, the ALJ did not adopt that opinion. Rather, the ALJ afforded Plaintiff
much greater limitations, finding that she was only able to perform a reduced range of light work
(Tr. 32). While this report was given “great weight,” it was not accepted in toto and did not form
the basis of the residual functional capacity since the ALJ did give Plaintiff restrictions. The Court
acknowledges that the doctor's "normal" examination results could provide no basis to assess pain
caused by fibromyalgia; however, Dr. Goewey also made his assessment based on medical records
provided to him. The Court concludes the ALJ properly considered Dr. Thomasson’s, Dr. Capps’
and Dr. Goewey’s opinions.
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2. Whether Substantial Evidence Supports the Administrative Law
Judge’s Evaluation of Plaintiff’s Subjective Complaints
Plaintiff argues that the ALJ erred in the evaluation of her subjective complaints. In
evaluating a claimant’s complaints of disabling pain, the ALJ engages in a two-step process:
First, the ALJ should determine whether the claimant has a medically determinable
impairment which could reasonably be expected to produce the pain. Second, the
ALJ should evaluate the severity of the alleged pain in light of all relevant evidence,
including the factors set out in 20 C.F.R. § 404.1529(c).
Kendrick v. Astrue, 886 F. Supp.2d 627, 638 (S.D. Ohio 2012) (citing Felisky v. Bowen, 35 F.3d
1027, 1039-41 (6th Cir. 1994)); see also Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th
Cir. 2007). Factors to consider when evaluating subjective symptoms such as pain include,
the claimant's daily activities; the location, duration, frequency, and intensity of
symptoms; factors that precipitate and aggravate symptoms; the type, dosage,
effectiveness, and side effects of any medication taken to alleviate the symptoms;
other treatment undertaken to relieve symptoms; other measures taken to relieve
symptoms, such as lying on one's back; and any other factors bearing on the
limitations of the claimant to perform basic functions.
Rogers, 486 F.3d at 247; see also 20 C.F.R. § 404.1529(c). These factors are especially
important where the claimant alleges disability in part or in whole due to fibromyalgia,
because “fibromyalgia is not susceptible of objective verification through traditional
means.” Rogers, 486 F.3d at 245. Rather, as the Sixth Circuit has explained,
unlike medical conditions that can be confirmed by objective testing, fibromyalgia
patients present no objectively alarming signs. See Preston v. Sec'y of Health &
Human Servs., 854 F.2d 815, 820 (6th Cir.1988) (per curiam) (noting that objective
tests are of little relevance in determining the existence or severity of fibromyalgia);
see also Swain v. Comm'r of Soc. Sec., 297 F.Supp.2d 986, 990 (N. D. Ohio 2003)
(observing that “[f]ibromyalgia is an ‘elusive’ and ‘mysterious' disease” which
causes “severe musculoskeletal pain”). Rather, fibromyalgia patients “manifest
normal muscle strength and neurological reactions and have a full range of motion.”
Preston, 854 F.2d at 820. The process of diagnosing fibromyalgia includes (1) the
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testing of a series of focal points for tenderness and (2) the ruling out of other
possible conditions through objective medical and clinical trials. Id.; Swain, 297
F.Supp.2d at 990.
Rogers, 486 F.3d at 245-46. The ALJ considered these various factors and found that
Plaintiff’s lack of credibility was supported by her conservative treatment, history of noncompliance, and wide ranging activities of daily living (Tr. 34).
The evaluation
of Plaintiff’s alleged symptoms rests with the ALJ, and “[a]s long as the ALJ cite[s]
substantial, legitimate evidence to support his factual conclusions, we are not to secondguess.” Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 713–14 (6th Cir. 2012). Plaintiff
specifically complains that the ALJ should not have found that she had “conservative”
medical treatment. (See Pl.’s Br. at 28, citing Tr. 28). The ALJ considered Plaintiff’s care
on multiple occasions in the record (Tr. 24, 28, 29, 32) and concluded that it was
conservative.
An ALJ may consider the treatment an individual has had and whether the treatment is
indicative of disability. See Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 473 (6th Cir. 2014).
Modest treatment is “inconsistent with a finding of total disability.” Helm v. Comm’r of Soc. Sec.,
405 F. App’x 997, 1001 (6th Cir. 2011) (treatment consisted “solely of pain medication”).
Plaintiff’s arguments to the contrary merely call for an alternative conclusion based on the same
evidence. “Peterson undeniably has pointed to pieces of evidence in the record that indicate that
he might be disabled . . . . Merely marshalling evidence to suggest that he is disabled, however, is
insufficient; to prevail on appeal, Peterson must demonstrate that the ALJ’s determination that he
was not disabled is not supported by substantial evidence.” Peterson v. Comm’r of Soc. Sec., 552
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F. App’x 533, 540 (6th Cir. 2014). The ALJ noted that plaintiff had not seen a pain management
specialist, and that she had had minimal visits to her rheumatologist, Dr. Steigelfest, who
specializes in the treatment of conditions such as fibromyalgia. She had not been hospitalized or
sought emergency care for pain, and she had not followed the consistent recommendations of Dr.
Steigelfest to exercise, engage in physical therapy, and lose weight.
Plaintiff also argues that the ALJ improperly evaluated and relied on her activities of daily
living. See Pl.’s Br. at 30, citing Tr. 29. However, the ALJ may consider daily activities as one
factor in the evaluation of subjective complaints (Tr. 29). See Temples v. Comm’r of Soc. Sec.,
515 F. App’x 460, 462 (6th Cir. 2013) (“Further, the ALJ did not give undue consideration to
Temples’ ability to perform day-to-day activities. Rather, the ALJ properly considered this ability
as one factor in determining whether Temples’ testimony was credible.”); see also 20 C.F.R. §
404.1529. At a May 2013 examination, Plaintiff reported she could manage her medications with
no difficulty, could make simple meals and do simple chores at home. She drove herself to the
doctors and occasionally picked up a grandchild from school. She occasionally went out with
friends and attended church. Her hobbies included working puzzles, coloring, and watching TV.
(Tr. 373-74). Her doctors encouraged her to be more active (Tr. 26, 354 (“Encouraged swimming,
outside activities that give her pleasure.”)). While these activities are not dispositive as to the issue
of whether Plaintiff can engage in substantial gainful activity, they tend to indicate she can do
more than she has asserted.
Plaintiff also argues that the ALJ should not have considered her non-compliance with
treatment. See Pl.’s Br. at 33. The Court disagrees. The ALJ properly considered many examples
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of noncompliance (Tr. 24-29). Plaintiff was discharged from physical therapy for non-compliance
(Tr. 26, 307). She failed to appear for mental health treatment (Tr. 29, 482 (“… erratic compliance
with therapy.”)). She improperly took her medications (Tr. 32, 538) (“indicated that she is mixing
the alcohol w/ muscle relaxants and other pain meds Rx by her rheumatologist and other
specialists. And sometimes also taking more than Rx dose of these meds.”). She did not engage
in the recommended aerobic exercise (Tr. 421). An ALJ may use a claimant’s non-compliance
with treatment as a credibility factor. See Ranellucci v. Astrue, No. 3:11-cv-00640, 2012 WL
4484922, *10 (M.D. Tenn., September 27, 2012) (finding noncompliance with prescribed
treatment is appropriate factor with which to assess claimant’s credibility) (citing Holley v.
Massanari, 253 F.3d 1088, 1092 (8th Cir. 2001)); see also SSR 96-7p (claimant’s claims of
disabling impairment “... may be less credible if … not following treatment as prescribed …”).
In sum, the ALJ carefully considered numerous factors bearing on Plaintiff’s credibility
and concluded that her statements regarding the degree of her limitations was not credible. He
then made an assessment of her limitations based on the numerous factors cited above in addition
to the opinion evidence provided in this case. The ALJ sufficiently evaluated Plaintiff’s subjective
complaints and the Court concludes that the ALJ’s decision as to Plaintiff’s credibility is supported
by substantial evidence.
3. Whether Substantial Evidence Supports the ALJ’s Evaluation of
the Opinion of Plaintiff’s Counselor
Plaintiff asserts that the ALJ erred in evaluating the opinion of her counselor, Kathryne
Shapard, who treated her at Centerstone. Ms. Shapard opined that Plaintiff would miss more than
three days a month at work, and that her physical symptoms along with her psychiatric symptoms
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would cause an inability to function on the job (Tr. 411). The ALJ found this assessment to be
inconsistent with the treatment notes (Tr. 34).
Plaintiff concedes that Ms. Shapard is not an “acceptable medical source” under the
regulations in effect at the time that Plaintiff filed her application for disability (See Pl.’s Brief at
p. 16, Doc. 16). The regulations describe “acceptable” medical sources as those who may establish
whether an individual has a medically determinable impairment. See 20 C.F.R. § 404.1513(a) (in
effect until March 27, 2017). “Acceptable” sources of medical evidence include doctors and
psychologists, and in some situations optometrists, podiatrists, and speech pathologists. See 20
C.F.R. § 404.1513(d) (in effect until March 27, 2017). Social Security requests and evaluates
opinions from acceptable medical sources, but “other” medical sources (including nurse
practitioners, physician assistants, chiropractors, and therapists) may also provide opinions and
evidence.
Id. An ALJ is not held to the same standards when evaluating this type of opinion
when compared to the evaluation of an opinion provided by a doctor. “[O]ther-source opinions are
not entitled to any special deference.” Hill v. Comm’r of Soc. Sec., 560 F. App’x 547, 550 (6th Cir.
2014). An ALJ has broad discretion when evaluating the opinion of an “other” source.
See
Brown v. Comm’r of Soc. Sec., 591 F. App’x 449, 451 (6th Cir. 2015).
The ALJ found Ms. Shapard’s opinion inconsistent with the record from Centerstone. This
finding is sufficient to constitute substantial evidence for the ALJ to give little weight to Shapard’s
opinion. The ALJ found that, contrary to Shapard's opinion, the record indicated more favorable
global assessment of functioning (GAF) ratings and documented improvement with treatment and
medications (Tr. 29, 412). Shapard's opinion is contrasted with a February 2015 treatment record
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showing some improvement (Tr. 495), as well as a medical progress note from March 2015
showing a fairly normal psychiatric examination (Tr. 488) and recommending a continuation of
the medication regimen (Tr. 489). The ALJ properly considered (Tr. 34) that the GAF scores
assessed during treatment were in the 50s (Tr. 523, 532, 542, 548, 558, 562, 575, 580, 588), while
Ms. Shapard’s opinion stated that the rating was 48 (Tr. 408). This represented an additional
inconsistency. The ALJ also found that Shapard's opinion was inconsistent with the conservative
treatment record as a whole. The ALJ specifically noted there were no emergency room visits or
hospitalizations for Plaintiff’s mental health.
The ALJ also noted that Plaintiff had been
noncompliant with treatment by failing to appear at appointments, by failing to take her
medications as prescribed, and by mixing alcohol with her prescribed medications on occasions
(Tr. 29, 340). The ALJ concluded that a limitation to unskilled work accommodated Plaintiff’s
mental health issues (Tr. 34).
Plaintiff appears to argue that SSR 06-03p required more consideration. See Pl.’s brief at
37-38. Specifically, Plaintiff asserts that the ALJ should have discussed Ms. Shapard’s opinion in
light of several factors including length and frequency of treatment, her opinion’s consistency with
other evidence, how well the opinion is explained, and the source’s area of expertise. Id. However,
SSR 06-03p also provides in relevant part:
Since there is a requirement to consider all relevant evidence in an
individual's case record, the case record should reflect the consideration of opinions
from medical sources who are not “acceptable medical sources” and from “nonmedical sources” who have seen the claimant in their professional capacity.
Although there is a distinction between what an adjudicator must consider and
what the adjudicator must explain in the disability determination or decision, the
adjudicator generally should explain the weight given to opinions from these “other
sources,” or otherwise ensure that the discussion of the evidence in the
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determination or decision allows a claimant or subsequent reviewer to follow the
adjudicator's reasoning, when such opinions may have an effect on the outcome of
the case.
(Emphasis added). The ALJ recognized Ms. Shapard’s opinion and adequately explained the
weight given to it. The Court concludes the ALJ properly considered the opinion of the counselor.
IV.
Conclusion
Having carefully reviewed the administrative record and the parties’ briefs filed in support
of their respective motions, the Court finds the decision of the Commissioner is supported by
substantial evidence and shall be AFFIRMED. Accordingly, Plaintiff’s Motion for Judgment on
the Pleadings [Doc. 14] will be DENIED, and Defendant’s Motion for Summary Judgment [Doc.
17] will be GRANTED. Judgment will be entered in favor of the Commissioner.
ENTER.
/s/ Thomas Phillips
THOMAS PHILLIPS
UNITED STATES DISTRICT JUDGE
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