Opinion
Case No. 1:13-cv-842
02-03-2015
GRACE E. BALLARD, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED; AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding the Plaintiff "not disabled" and therefore not entitled to supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 11-24) (ALJ's decision)).
I.
On May 13, 2010, Plaintiff filed an application for SSI. (Tr. 226-229). Plaintiff alleged disability beginning January 15, 2009 due to insulin-dependent diabetes, obesity, asthma, low back pain, peripheral neuropathy, depressive disorder, anxiety disorder, and a personality disorder. (Tr. 226-229, 255-262). The Social Security Administration denied Plaintiff's claim initially and upon reconsideration. (Tr. 122-123). Plaintiff timely requested a hearing before an ALJ. (Tr. 141-143). The ALJ conducted a hearing on June 5, 2012, at which Plaintiff and a vocational expert ("VE") testified. (Tr. 32-111). The ALJ issued an unfavorable decision on July 13, 2012. (Tr. 8-31). Plaintiff filed a request for review with the Social Security Administration's Appeals Council on August 31, 2012. (Tr. 7). On September 28, 2013, the Appeals Council denied further review (Tr. 1-6), and Plaintiff filed a timely appeal with this Court.
At the time of the hearing, Plaintiff was 53 years old. (Tr. 22, 257, 261). Plaintiff completed ninth grade, got her GED, and attended two years of college. Plaintiff has relevant work experience as a picker/packer, fast food worker, and a short order cook. (Tr. 22, 36, 257, 261).
Plaintiff attended the Ohio College of Business and Technology, a non-accredited school for business administration with accounting. (Tr. 36) The eighteen month course took her three years to complete. (Tr. 36-37). Plaintiff alleged that she reads at a sixth grade level. (Tr. 37).
Past relevant work experience is defined as work that the claimant has "done within the last 15 years, [that] lasted long enough for [the claimant] to learn to do it, and was substantial gainful activity." 20 C.F.R. § 416.965(a).
Plaintiff left her last job at McDonald's because she was incarcerated for possession of cocaine. (Tr. 39).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since May 13, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: diabetes, obesity, asthma, depressive disorder, anxiety disorder, and personality disorder (20 CFR 416.920(c)).
3. 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 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform work activity except as follows: She can lift/carry and push/pull up to 20 pounds occasionally, 10 pounds frequently; in an eight-hour workday, she can stand and/or walk a total of six hours and sit a total of six hours, she can only occasionally stoop, kneel, crouch, and climb ramps or stairs; she should never crawl or climb ladders, ropes, and scaffolds; she should not work at unprotected heights or around hazardous machinery; and she should have no concentrated exposure to fumes, noxious odors, dusts, or gases. The claimant is able to perform only simple, routine, repetitive tasks; the job should not require more than superficial and minimal interaction with the general public, coworkers, and supervisors; it should not require a rapid production-rate pace, and should not require more than ordinary and routine changes in work setting or duties. Additionally, the claimant must be able to be off-task for five minutes out of the hour (i.e., her attention to the task may be somewhat less than it would otherwise be or she may work at a slower rate or stop what she's doing for a minute or two), but she will not need to be away from the workstation.(Tr. 13-23).
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. Born April 2, 1959, the claimant was 51 years old and "closely approaching advanced age" on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not an issue in this case because the claimant's past relevant work is unskilled (20 CFR 416.968).
9. 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 she can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since May 13, 2010, the date the application was filed (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI. (Tr. 24).
Plaintiff argues that the ALJ erred by: (1) incorrectly weighing the medical opinion evidence; and (2) assessing the VE's testimony. The Court will address each error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
"The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm."Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
A. Medical Evidence
Plaintiff has a very long history of diabetes mellitus and asthma, and has sought treatment through the University of Cincinnati's hospital system since at least 2008. (Tr. 516-557, 575-679). Plaintiff has been seen in the OB/GYN Clinic, the Ophthalmology Clinic, and by their Pharmacotherapy Department (for diabetes and hypertension medication). (Tr. 797-811, 812-818, 819-824). Plaintiff has primarily been treated for her impairments at the General Practice/Internal Medicine Clinic at the Hoxworth Center from University of Cincinnati, and several resident and attending physicians treated Plaintiff there over the years. (Tr. 712-733, 825-890). One in particular, Ryan Munyon, M.D., treated Plaintiff from mid-2010 through mid-2011, and he is the physician who first diagnosed Plaintiff with diabetic peripheral neuropathy. (Tr. 845-854, 861-872, 877-884). Dr. Munyon referred Plaintiff to physical therapy for her chronic back pain, and Plaintiff participated in physical therapy from December 2010 through February 3, 2011 at the Drake Rehabilitation Center. (Tr. 1030-1036). Unfortunately, Plaintiff did not benefit from physical therapy, and her physical therapist discharged her from therapy because she was not making any progress in treatment. (Id.)
Peripheral neuropathy is nerve damage caused by chronically high blood sugar and diabetes. It leads to numbness, loss of sensation, and sometimes pain in feet, legs, or hands.
Dr. Munyon provided opinion statements about Plaintiff's functional capacity in February 2011 and September 2011. (Tr. 777-779, 1038). In both, Dr. Munyon opined that Plaintiff is limited to a reduced range of sedentary exertion. (Id.)
After being referred by the Bureau of Vocational Rehabilitation, Plaintiff underwent a Functional Capacities Evaluation on May 22, 2009 at Workability, performed by Physical Therapist Rick Wickstrom, overseen by Paul Hogya, M.D. (Tr. 1023-1029). Physical Therapist Wickstrom took at detailed history from Plaintiff and then conducted a thorough physical examination and a series of objective tests designed to measure Plaintiff's functional capacity. (Id.) Based upon the results of that testing, PT Wickstrom and Dr. Hogya concluded that Plaintiff was capable of performing a full range of sedentary work and a partial range of light work. (Tr. 1029).
Plaintiff has also been treated for psychiatric impairments. She began treatment at Centerpoint Health in June 2008, and the evidence of record includes progress notes from that organization that date through April 2012. (Tr. 558-572, 680-685, 943-1022, 1039-1050). Although Plaintiff had a problem with polysubstance abuse, she has been sober since before May 2008. (See, e.g., Tr. 1013). Plaintiff was diagnosed with major depressive disorder, a personality disorder, and polysubstance abuse in sustained remission. (See, e.g., Tr. 1002). Plaintiff has treated with a psychiatrist and a case manager on a regular basis throughout the years, but continues to experience depression. (Tr. 558-572, 943-1022, 1039-1050).
Susan Kenford, Ph.D., conducted a psychological consultative evaluation of Plaintiff at the request of the Social Security Administration in August 2009. (Tr. 492-500). After a clinical interview, Dr. Kenford diagnosed Plaintiff with Major Depressive Disorder with panic episodes and assigned a GAF score of 40, which indicates very serious functional limitations. (Tr. 497). Dr. Kenford opined that Plaintiff had moderate impairments in her ability to get along with others, her ability to perform a simple repetitive tasks, and her ability to concentrate on manipulating information in her short-term memory store. (Tr. 498). On the other hand, Dr. Kenford opined that Plaintiff was markedly limited in her ability to handle the stress and pressures of a general work environment. (Id.)
The Global Assessment of Functioning ("GAF") is a numeric scale (1 through 100) used by mental health clinicians and physicians to rate subjectively the social, occupational, and psychological functioning of adults, e.g., how well or adaptively one is meeting various problems-in-living. A score of 31-40 indicates some impairment in reality testing or communication or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood.
In July 2010, Plaintiff's case manager and psychiatrist completed questionnaires at the request of the Social Security Administration, in which they reported that Plaintiff is easily distracted and easily frustrated, and that she is quite uncomfortable when she has to be in proximity to strangers, particularly male strangers. (Tr. 681-685). In September 2011, Sharon Stanford, M.D., one of Plaintiff's psychiatrists at Centerpoint, completed a Mental Impairment Questionnaire. (Tr. 780-788). Dr. Stanford reported that Plaintiff exhibited clinical signs including fair grooming, some paranoid thoughts, and anxious affect, and she assessed Plaintiff with a GAF score of 45, which indicates serious limitations. (Tr. 782). Dr. Stanford opined that Plaintiff is "unable to meet competitive standards" in working in coordination with or proximity to others, completing a normal workday or workweek without interruptions from psychologically based symptoms, performing at a consistent pace without an unreasonable number or length of rest periods, dealing with normal work stress, and traveling in unfamiliar places. (Tr. 784-785). She also opined that Plaintiff is "seriously limited but not precluded" in eleven other categories of mental work-related functions. (Id.) Dr. Stanford concluded that Plaintiff has "marked" limitations in restrictions of daily living; difficulties maintaining social functioning; and in difficulties maintaining concentration, persistence, or pace. (Tr. 785). In addition, she opined that Plaintiff is expected to miss four or more workdays per month due to her psychiatric impairments. (Tr. 787).
A GAF score of 41-50 indicates serious symptoms or any serious impairment in social, occupational, or school functioning.
B. ALJ Decision
In July 2012, the ALJ determined that Plaintiff's diabetes, obesity, asthma, depressive disorder, anxiety disorder, and personality disorder are "severe" impairments. (Tr. 13). The ALJ then held that Plaintiff did not have an impairment or combination of impairments which meets or equals a Listing of Impairments. (Tr. 15). He held that Plaintiff has the residual functional capacity for light work. She can:
Lift/carry and push/pull up to 20 pounds occasionally, 10 pounds frequently; in an eight-hour workday, she can stand and/or walk a total of six hours and sit a total of six hours; she can only occasionally stoop, kneel, crouch, and climb ramps or stairs; she should never crawl or climb ladders, ropes, and scaffolds; she should not work at unprotected heights or around hazardous machinery; and she should have no concentrated exposure to fumes, noxious odors, dusts, or gases. The claimant is able to perform only simple, routine, repetitive tasks; the job should not require more than superficial and minimal interaction with the general public, coworkers, and supervisors; it should not require a rapid production-rate pace, and should not require more than ordinary and routine changes in work setting or duties. Additionally, the claimant must be able to be off-task for five minutes out of the hour (i.e., her attention to the task may be somewhat less than it would otherwise be or she may work at a slower rate or stop what she's doing for a minute or two), but she will not need to be away from the workstation.(Tr. 16). The ALJ held that Plaintiff is unable to perform her past relevant work, but held that there are other jobs in the national economy which she could perform. (Tr. 22-23). Therefore, the ALJ held that Plaintiff was not disabled. (Tr. 23).
B.
Plaintiff argues that the ALJ erred by failing to properly weigh the medical opinion evidence.
"In assessing the medical evidence supporting a claim for disability benefits, the ALJ must adhere to certain standards." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009).
One such standard, known as the treating physician rule, requires the ALJ to generally give greater deference to the opinions of treating physicians than to the opinions of non-treating physicians because these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s) and may bring a unique perspective to the medical
evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.(Id.) "The ALJ 'must' give a treating source opinion controlling weight if the treating source opinion is 'well supported by medically acceptable clinical and laboratory diagnostic techniques' and is 'not inconsistent with the other substantial evidence in [the] case record.'" Id. "If the ALJ does not accord controlling weight to a treating physician, the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id.
The Commissioner's regulations establish a hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists. 20 C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2). Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once. See 20 C.F.R. §§ 404.1527(d) and 416.927(d). In general, more weight is given to examining medical source opinions than is given to the opinions of non-examining medical sources. See 20 C.F.R. §§ 404.1527(d)(1) and 416.927(d)(1). Still, non-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions.
The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker. For example, the opinions of
physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations of the opinions, than are required to treating sources.SSR 96-6p, 1996 SSR LEXIS 2. "The opinion of a non-examining physician is entitled to little weight if it is contrary to the opinion of the claimant's treating physician." Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
The ALJ gave "little weight" to the opinions of Plaintiff's treating physician, Dr. Ryan Munyon (Tr. 777-779, 1038), and to the opinion of Physical Therapist Rick Wickstrom and Dr. Paul Hogya, who conducted a Functional Capacities Evaluation ("FCE") (Tr. 1023-1029).
First, the ALJ gave little weight to the two conflicting assessment forms completed by Dr. Munyon. (Tr. 19-20). On February 7, 2011, Dr. Munyon prepared a form for the Bureau of Vocational Rehabilitation, listing diagnoses of carpal tunnel, back pain, and neuropathy. (Tr. 1038). Dr. Munyon checked boxes indicating that Plaintiff could lift up to ten pounds occasionally, stand/walk a total of one to four hours, sit a total of three hours, but that she would be unable to reach above shoulder level, and could not use her hands for simple grasping and fine manipulation. (Id.) Dr. Munyon did not provide any explanation for his limitations or discuss any supporting clinical observations or diagnostic testing. (Id.)
On September 20, 2011, Dr. Munyon completed a different questionnaire for the claimant's attorney, in which he opined that the claimant could lift and carry ten pounds occasionally, due to limited range of motion. (Tr. 777). She could only stand/walk up to 30 minutes at a time for a total of three hours due to a "gait exam." (Id.) In support of his restriction that Plaintiff could only sit for up to an hour uninterrupted for a total of three to four hours, he explained that Plaintiff reported that sitting longer made her neuropathy worse. (Tr. 778). On this form, however, Dr. Munyon explicitly indicated that Plaintiff had no limitations on handling or fingering. (Id.)
The ALJ noted that Dr. Munyon's assessments "are not supported by objective imaging studies and clinical findings in his own treatment records, or elsewhere." (Tr. 20). See, e.g., Freudenberger v. Astrue, No. 1:09cv745, No. 1:09cv745, 2011 U.S. Dist. LEXIS 30508, at *7 (S.D. Ohio Feb. 28, 2011) ("where conclusions regarding a claimant's functional capacity are not substantiated by objective evidence, the ALJ is not required to credit those conclusions."). As the ALJ discussed, there were no x-rays or MRIs of the claimant's lumbar spine to confirm the existence or severity of Plaintiff's back pain; likewise, there are no EMG or nerve conduction studies of the upper or lower extremities to diagnoses or assess the severity of alleged carpal tunnel syndrome. (Tr. 20). In fact, x-rays of the left hand and wrist showed no abnormalities. (Tr. 892). The ALJ documented that when Plaintiff complained of pain in her legs and feet, diabetic peripheral neuropathy was diagnosed without any corroborative physical findings on exam or an EMG, and Dr. Munyon adopted this diagnoses based only on decreased sensation in monofilament testing over the toes. (Tr. 14, 869, 873-874). Aside from a lack of diagnostic testing, the ALJ also noted normal clinical findings, such as examination in October 2012, where Plaintiff had minimal abnormalities, 5/5 strength in the upper and lower extremities bilaterally, intact sensation, and symmetric deep tendor reflexes. (Tr. 14, 835-836). Accordingly, the ALJ was entitled to discount Dr. Munyon's opinions. Cutlip v. Sec'y of HHS, 25 F.3d 284, 287 (6th Cir. 1994) (treating physician opinions are "only accorded great weight when they are supported by sufficient clinical findings and are consistent with the evidence").
Plaintiff argues that there was objective evidence of her diabetic peripheral neuropathy, radiographic evidence of osteoarthritis in her foot, evidence of abnormal cells on her foot, and documentation of the amputation of her right big toe, which provides further objective support for Dr. Munyon's limitations. (Doc. 18 at 2). While the ALJ should have referenced these findings, substantial evidence still supports the ALJ's decision. The Court's duty on appeal is not to re-weigh the evidence, but to determine whether the decision below is supported by substantial evidence. Raisor v. Schweiker, 540 F. Supp. 686 (S.D. Ohio 1982). The issue is not whether the record could support a finding of disability, but rather whether the ALJ's decision is supported by substantial evidence. Casey v. Sec'y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993).
In fact, Dr. Munyon's treatment notes did not support his own conclusions. There were "no documented findings in Dr. Munyon's treatment notes with respect to spinal range of motion, gait, grip strength, or manipulative ability." (Tr. 20). Dr. Munyon saw Plaintiff "five times between December 2010 and July 2011...and none of those clinic visits produced even a cursory musculoskeletal examination." (Tr. 20, 845, 852, 861, 867, 877). As the ALJ documented, "the only abnormal neurological findings (decreased sensation to monofilament testing over the toes) is outweighed by other reports of intact sensation (Tr. 836), no focal sensory deficits (Tr. 892), and a steady gait (Tr. 892)." Therefore, the ALJ reasonably discounted Dr. Munyon's assessments because there were no treatment notes that supported such extreme limitations; and the examinations in the records directly contradicted Dr. Munyon's findings. See also Driggs v. Astrue, No. 2:11cv229, 2011 U.S. Dist. LEXIS 137791 (S.D. Ohio Nov. 29, 2011) ("an ALJ may reject the opinion of a treating source 'where the treating physician's opinion is inconsistent with [that source's] own medical records'").
With limited clinical observations and diagnostic testing, the ALJ reasonably concluded that Dr. Munyon's assessments "appear to be based primarily on speculation and the claimant's subjective complaints." (Tr. 20). It is proper for an ALJ to discount opinion evidence that is based on Plaintiff's self-interested complaints rather than the doctor's own clinical observations or objective medical data. Poe v. Comm'r of Soc. Sec., 342, F. App'x 149, 156 (6th Cir. 2009) ("Here, substantial evidence supports the ALJ's determination that the opinion of Dr. Boyd, Poe's treating physician, was not entitled to deference because it was based on Poe's subjective complaints, rather than objective medical data."). In fact, some of Dr. Munyon's opinions are directly contradicted by the record. For example, on his February 2011 assessment, Dr. Munyon indicated that Plaintiff's limitations began in October 2000, despite the fact that Plaintiff continued working in 2001, 2002, 2003, and 2006 and did not allege that her disability began until 2009. (Tr. 11, 235, 779). Moreover, Plaintiff first saw Dr. Munyon in 2010, so it is unclear how he could have known about her condition a decade earlier. Therefore, the ALJ reasonably afforded Dr. Munyon's assessments little weight. (Tr. 20).
Additionally, Dr. Munyon's assessments are internally inconsistent. On the February 2011 form he listed considerable handling and fingering limitations, whereas on the September 2011 form, there were no such restrictions. (Tr. 19-20, 777-779, 845-884, 1038). The ALJ is entitled to discount an internally inconsistent opinion where there is no explanation for a changed opinion. Goodman v. Astrue, No. 3:11cv12, 2012 U.S. Dist. LEXIS 12112, at *10 (S.D. Ohio Feb. 1, 2012) (internal inconsistency is "a basis for which it is acceptable to disregard the opinion of a treating doctor"). Dr. Munyon did not note loss of sensation, range of motion, or strength in either upper extremity, thus it was unclear why Plaintiff would have any restrictions in handling and fingering . (Tr. 756).
Next, Plaintiff argues that more weight should have been given to a May 2009 FCE performed by Physical Therapist Rick Wickstrom. (Tr. 1024-1030). The FCE noted that Plaintiff was working third shift at a McDonald's doing food preparation and cleaning until she was incarcerated for drug possession. (Tr. 1024-1025). After she was released from jail, Plaintiff claimed that she could not work because she could not stand as long as required and had difficulties with balance and stairs. (Tr. 1024). However, she had only mild problems in activities of daily living, had good range of motion, and normal upper extremity strength. (Tr. 1025-1026). Although Mr. Wickstrom performed this exam on May 22, 2009, Paul Hogya, M.D., did not sign the form agreeing with these findings until eight days later. (Tr. 1029).
The ALJ properly discounted this FCE for multiple reasons. (Tr. 20).
First, the FCE clearly states that it was performed by Mr. Wickstrom, a physical therapist. (Tr. 20, 1029). Since a physical therapist is not a doctor, Mr. Wickstrom is not considered an acceptable medical source. 20 C.F.R. § 416.913(a). Therefore, an ALJ is not permitted to assign "controlling" weight to Mr. Wickstrom's assessment. SSR 96-2p.
While Plaintiff argues that Dr. Hogya also signed this form, there was "no indication that he personally examined her." (Tr. 20). In fact, Dr. Hogya signed the form 8 days after the examination. (Tr. 1029). Plaintiff had no treating relationship with Dr. Hogya and there are no other records from him in the midst of a 1000+ page administrative transcript. See, e.g., Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) ("Dr. Ruff examined Mr. Barker on only one occasion, and the rationale of the treating physician doctrine simply does not apply here.").
The FCE itself supported the ALJ's RFC finding. The results of the FCE concluded that Plaintiff was "physically capable of performing...a partial range of jobs that require light physical demands." (Tr. 1029). The ALJ found Plaintiff could perform light work, but the additional postural and environmental restrictions he added reduced that to only a partial range of light jobs. (Tr. 16).
The ALJ also took into consideration the fact that the FCE noted that Plaintiff was "generally deconditioned," meaning that she had increased physical limitations greater due to her past level of inactivity and her obesity. (Tr. 20, 1029). In fact, the FCE states that with "a regular program of exercise that includes stationary bike, elliptical and swimming exercises," Plaintiff could be capable of a "full range of jobs that require light physical demands and a partial range of jobs that require medium physical demands." (Tr. 1029). Plaintiff had been advised to improve her diet and exercise to control her diabetes and improve her overall health for many years. (Tr. 421, 479). However, in March 2009, Plaintiff admitted that she did not exercise or eat any special diet despite her diagnosis of diabetes. (Tr. 657-658). In June 2009, Dr. Gillen noted that he had "encouraged" exercise to help control her diabetes. (Tr. 598). Likewise, in October 2009, there was a "recommendation for exercise program" and a "discussion of diet." (Tr. 564). In March 2010, Plaintiff visited her pharmacist who "counseled patient on effect of diet and exercise on BR [blood glucose levels]" to control her type 2 diabetes. (Tr. 612). In June 2010, Plaintiff was "working on diet and exercise" but was also "still smoking 1 pack every day." (Tr. 603). In October 2010, Plaintiff again had a "recommendation for exercise program" and a "discussion of diet." (Tr. 1005). Still, in December 2010, Plaintiff stated that she did not exercise. (Tr. 878). In June 2011, Nurse Charlene Brown "discussed diet and need to decrease amounts of friend food patient consumes" as well as how to "avoid using added sodium and decrease amount of soda she consumes." (Tr. 853).
Accordingly, the ALJ reasonably considered Plaintiff's state of deconditioning as a lack of compliance with her treatment recommendations and found that it rendered the FCE less valuable. (Tr. 20). See 20 C.F.R. § 416.930(b) ("If you do not follow the prescribed treatment without a good reason, we will not find you disabled").
"Discretion is vested in the ALJ to weigh all the evidence," and he did not abuse that discretion in this instance. Collins v. Comm'r of Soc. Sec., 357 F. App'x 663, 668 (6th Cir. 2009). The opinions of the state agency physicians were consistent with the medical record as a whole, and thus were given more weight. SSR 96-6p ("In appropriate circumstances, opinions from State agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources [because it is based on the whole record]." See also Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999) ("Even if the evidence could also support another conclusion, the decision of the Administrative Law Judge must stand if the evidence could reasonably support the conclusion reached.").
The ALJ gave greater weight to the opinion of Nick Albert, M.D., a state agency reviewing physician, who opined that in August 2010, Plaintiff was not disabled and could work with certain limitations. (Tr. 20, 704-711). Dr. Albert opined that Plaintiff could lift and carry 10 pounds frequently and 20 pounds occasionally; stand and/or walk about six hours in an eight hour workday; and sit about six hours in an eight hour workday. (Tr. 705). This was consistent with light exertional work. 20 C.F.R. § 416.967(b). Dr. Albert also thought Plaintiff should never balance and avoid all exposure to hazards such as machinery and heights due to her poor control of her diabetes and avoid concentrated exposure to respiratory irritants due to asthma. (Tr. 706, 708).
In January 2011, Dr. Rosenfeld re-evaluated Plaintiff's records. (Tr. 774). With regard to Plaintiff's diabetes, Dr. Rosenfeld noted that she was receiving regular follow-up and medication adjustment, and that there was no evidence of diabetic retinopathy. (Id.) Dr. Rosenfeld noted that there was no evidence of damage from Plaintiff's hypertension and that her cholesterol was actually at normal levels with medication. (Id.) Medications were controlling Plaintiff's asthma, with no recent hospitalizations, and no systemic steroid utilization; occasional exacerbations were well treated with bronchodilators. (Id.) Accordingly, Dr. Rosenfeld affirmed Dr. Albert's assessment that Plaintiff could perform light work with no balancing and restrictions against respiratory irritants and hazards. (Id.)
Diabetic retinopathy is the most common diabetic eye disease and a leading cause of blindness in American adults. It is caused by changes in the blood vessels of the retina.
The ALJ explained that the assessments of Drs. Alberts and Rosenfeld deserved great weight because they were "consistent with the overall evidence." (Tr. 20). See also 20 C.F.R. § 416.927(c)(4) ("Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion."). Plaintiff's alleged back impairments or neuropathy were "arguably mild given the unremarkable findings on physical examinations and the fact that her doctors have not deemed it necessary to order coorborative imaging studies or testing." (Tr. 20). Still, the ALJ was generous when he "included additional postural limitations" to account for Plaintiff's obesity - specifically that she "can only occasionally stoop, kneel, crouch, and climb ramps or stairs; she should never crawl or climb ladders, ropes, and scaffolds." (Tr. 16).
While additional evidence regarding Plaintiff's physical health was submitted after Dr. Albert's assessment, Dr. Rosenfeld considered this evidence and explained that it actually showed that Plaintiff's impairments were improving or at least well-controlled. (Tr. 774). Although Drs. Alberts and Rosenfeld did not have access to the entire record at the time they authored their opinions, the ALJ took this into account and considered the most recent evidence. See McGrew v. Comm'r of Soc. Sec., 343 F. App'x 26, 32 (6th Cir. 2009) ("McGrew also argues that the ALJ improperly relied on the state agency physicians' opinions because they were out of date and did not account for changes in her medical condition. It is clear from the ALJ's decision, however, that he considered the medical examinations that occurred after [the state agency physician's] assessment...and took into account any relevant changes in McGrew's condition.").
Accordingly, substantial evidence supports the ALJ's decision to adopt the state agency reviewing physicians' recommendations and restrictions.
C.
Next, Plaintiff maintains that the ALJ erred in his step five finding. Specifically, Plaintiff argues that the VE's testimony about jobs that were available to a hypothetical person with her age, education, work experience, and RFC was invalid. Plaintiff argues that while the VE gave examples of occupations with a reasoning level of 2, this reasoning level was inconsistent with the limitation to "simple, routine, repetitive tasks."
A job with a reasoning level of two requires that the worker "[a]pply common sense understanding to carry out detailed but uninvolved written or oral instructions" and deal with problems "involving several concrete variables..." DOT at 1011.
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First, Plaintiff does not provide any citation to support her claim that reasoning level 2 is inconsistent with "simple, routine, repetitive tasks." Simple work has been found consistent with level 2 reasoning. "The Social Security regulations do not obligate [the ALJ and consulting vocational experts] to rely on the Dictionary's classifications ... neither the Commissioner nor the VE has an obligation to employ the DOT, and there is no precedent that requires the Commissioner to align DOT 'reasoning levels' with RFC classifications." Monateri v. Comm'r of Soc. Sec., 436 F. App'x 434, 446 (6th Cir. 2011). Still, the Court rejected "the proposition that [DOT] jobs requiring reasoning levels two or three are inconsistent as a matter of law with a limitation to simple work." Id. Specifically, in Winslow v. Comm'r of Soc. Sec., the Court found that jobs with level 2 reasoning were consistent with simply tasks performed in a low-stress environment. 566 F. App'x 418, 421 (6th Cir. 2014).
Next, Plaintiff argues that the ALJ violated SSR 00-4p because he did not get an explanation for an alleged "discrepancy between [the VE's] testimony and the DOT." (Doc. 16 at 12). However, Social Security Ruling 00-4p affirmatively states that unskilled work corresponds to both SVP levels 1 and 2. See SSR 00-4p ("Using the skill level definitions in 20 C.F.R. Sections 404.1568 and 416.968, unskilled work corresponds to an SVP of 1-2...[T]he regulatory definitions of skill levels are controlling."). Additionally, Plaintiff cannot point to any evidence that the VE's testimony was actually inconsistent with the DOT. "[T]he Social Security Administration imposes an affirmative duty on ALJs to ask VEs if the evidence that they have provided conflicts with the information provided in the DOT." Lindsley v. Comm'r of Soc. Sec., 560 F.3d 601, 606 (6th Cir. 2009). Here, the VE explicitly stated that her testimony was consistent with the DOT. (Tr. 101) ("ALJ: [E]xcuse me, did I - I can't remember whether I asked you whether you classified the jobs you gave me consistently with the DOT and the SCO? VE: I did, yes.").
Additionally, Plaintiff and her attorney were given ample opportunity to question the VE about the subject of reasoning level 2 work at the hearing and they failed to do so. (Tr. 101-111). Baranich v. Barnhart, 128 F. App'x 481, 490 (6th Cir. 2005) (finding that the ALJ committed no error when the attorney voluntarily abandoned questioning of the vocational expert). Plaintiff's counsel cross-examined the VE about many other issues, but notably failed to raise any concern about whether "simple, routine, and repetitive tasks" can or cannot be performed at a job requiring level 2 reasoning. (Tr. 101-111). McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) ("[C]ounsel may not now complain because he failed to cross examine [the expert] when he had an opportunity to do so.").
Finally, with respect to the ALJ's hypothetical question, the VE properly included all of the limitations that were credibly supported by the evidence. Casey v. Sec'y of HHS, 987 F.2d 1230, 1235 (6th Cir. 1993) ("It is well established that an ALJ may pose hypothetical questions to a vocational expert and is required to incorporate only those limitations accepted as credible by the finder of fact."). Here, the ALJ asked a hypothetical question regarding the exact language regarding limiting Plaintiff to "simple, routine, repetitive tasks." (Tr. 16, 99). The ALJ appropriately relied upon the VE's testimony that there were a significant number of jobs in the economy for Plaintiff to perform, including: routing clerk (700 jobs regionally; 76,000 jobs nationally); mail sorter (1,000 jobs regionally; 71,000 jobs nationally), and price marker (2,000 jobs regionally; 215,000 jobs nationally). (Tr. 22-23, 99-101). See also Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) ("[T]he Commissioner may rely on the testimony of a vocational expert to find that the claimant possesses the capacity to perform other substantial gainful activity that exists in the national economy."). The VE testified that these were all "light, unskilled jobs" with SVP [specific vocational preparation] level 2. (Tr. 100). Smith v. Halter, 307 F.3d 377, 378 (6th Cir. 2001) ("A vocational expert's testimony concerning the availability of suitable work may constitute substantial evidence where the testimony is elicited in response to a hypothetical question that accurately sets forth the plaintiff's physical and mental impairments.").
Therefore, the ALJ's reliance on the VE's testimony constitutes substantial evidence.
III.
For these reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Grace E. Ballard was not entitled to supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED.
The Clerk shall enter judgment accordingly, whereupon, as no further matters remain pending for the Court's review, this case is CLOSED in this Court. Date: 2/3/15
s/ Timothy S. Black
Timothy S. Black
United States District Judge