Opinion
Civil Action 2:13-cv-888
03-24-2015
FORREST R. HANSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OPINION AND ORDER
Plaintiff, Forest R. Hanson, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for social security disability insurance benefits and supplemental security income. This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 14), the Commissioner's Memorandum in Opposition (ECF No. 21), and the administrative record (ECF No. 9). For the reasons that follow, the Court OVERRULES Plaintiff's Statement of Errors and AFFIRMS the Commissioner's decision.
I. BACKGROUND
Plaintiff maintains that he became disabled on December 12, 2005, as a result of intellectual difficulties, a back injury/low-back pain, hand problems, hypertension, headaches, and obesity. (R. at 45, 244, 266, 283.) In October 2007, Plaintiff filed his applications for benefits. (R. at 200-06.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. (R. at 130-31.)
Administrative Law Judge Timothy G. Keller ("ALJ") held an initial hearing on May 20, 2010, at which Plaintiff appeared without counsel. (R. at 81-90.) The hearing was adjourned for Plaintiff to obtain counsel. Plaintiff appeared and testified at the rescheduled July 13, 2010 hearing and was represented by counsel. (R. at 67-75.) A vocational expert also appeared and testified at the hearing. (R. at 76-79.) On July 30, 2010, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 95-106.) On August 25, 2011, Plaintiff filed a Request for Review of Hearing Decision Order. (R. at 188-91.) On August 24, 2011, the Appeals Council vacated the ALJ's hearing decision and remanded this case to an ALJ for resolution of further issues, including reconsideration of Plaintiff's maximum residual functional capacity, evaluation of Plaintiff's treating source, evaluation of Plaintiff's obesity, clarification of Plaintiff's educational background and level of literacy, and identification and resolution of any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles ("DOT"). (R. at 111-15.)
On February 16, 2012, the ALJ held a supplemental hearing, at which Plaintiff, represented by counsel, appeared and testified. (R. at 45-54.) A vocational expert also appeared and testified at the hearing. (R. at 54-61.) On March 7, 2012, the ALJ found that Plaintiff was not disabled. (R. at 8-23.) On July 10, 2013, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-5.) Plaintiff then timely commenced the instant action.
II. HEARING TESTIMONY
A. Plaintiff's Testimony
At the July 13, 2010 hearing, Plaintiff testified that he stopped working in 2005 due to a lay-off and that he collected unemployment benefits for six months. (R. at 67-68.) Plaintiff stated that he had injured his back on three occasions, once in high school, then while serving in the military, and the third time was while he was working. (R. at 69.) He also stated that due to his back pain, he could not walk more than a quarter of a block, bending was difficult, and he experienced sharp radiating pains into his shoulders and down his left leg. (Id.) He also reported debilitating migraines. (R. at 69-70.) Plaintiff testified that he was unable to grasp "anything," but it was noted that he carried a cell phone in his front pocket and a wallet in his back pocket. He then suggested that he has a hard time holding on to things. (R. at 70-72.) He also testified that he was unable to move his arms away from his body. (R. at 73.)
Plaintiff next testified that he attended special education classes throughout his time in school. He stated that the school system did not want to "deal" with him so he was advanced in grades. (R. at 73.) He testified that he cannot read a grocery list or two- to three-letter words. He indicated that his brother completed his social security forms. (R. at 74.)
During the February 16, 2012 hearing, Plaintiff testified that he is 5'11" and weighs 290 pounds. (R. at 46.) Plaintiff testified that he is unable to work due to severe back pain that radiates into his legs, aching and swelling in his hands, and migraine headaches. (R. at 46-47.) He also described having "numb spots" on his right leg and his left foot. Plaintiff indicated that he experiences constant aching and swelling in his hands. He testified that loses his grip, causing him to drop items. He reported that he cannot open jars, that he has difficulty in the bathroom, and that he has spilled things and broken cups due to dropping them. (R. at 47.) Plaintiff further reported that he suffers from migraine headaches two to three times a month, with the most recent headache lasting for three days and causing vomiting and inability to sleep. (R. at 47-48.) In terms of treatment, Plaintiff said that he has had epidurals, pain medication, radio ablation, and a TENS unit.
Plaintiff estimated that he could sit for twenty minutes before he needed to change positions. (R. at 48.) He also indicated that he needed to lay down several times per day for an hour. (R. at 48-49.) He further stated that he could walk two-hundred feet without difficulty before needed to stop so that the pain could subside. Plaintiff added that he uses a cane at all times to take pressure off his left side. (R. at 49.) Plaintiff also testified that the pain affects his concentration. (R. at 49.) By way of example, Plaintiff said he has trouble following a movie. (R. at 50.)
Plaintiff testified that his past employment included working in maintenance and cleaning. (R. at 45-46.) With regard to his daily activities, Plaintiff testified that his girlfriend does everything for him, including cooking, cleaning, laundry, and grocery shopping, and also helps him bathe and takes him where he needs to go. (R. at 50-51.) He added that she also handles his financial matters. (R. at 53.) He stated that she has been caring for him in this way for approximately four years. (R. at 50.) Plaintiff's counsel asked Plaintiff about his responses to the consultative evaluation in November 2007 given that the evaluator noted that Plaintiff was able to care for himself and also cared for his girlfriend. Plaintiff stated that the consultative evaluator report was inaccurate, as he did not care for his girlfriend, but that he was unable to remember what he had said to the evaluator. (R. at 50-51.) Plaintiff also indicated that during the consultative evaluation, the evaluator used blocks and pictures for testing. (R. at 51.)
With regard to his ability to read, Plaintiff testified that he can only read two- and three-letter words and that family members have had to help him fill out job applications in the past. (R. at 52-53.) He indicated that his brother helped him fill out the forms for his Social Security benefit claim. (R. at 53-54.) He added that he had taken an oral test to obtain his driver's license. (R. at 53.)
B. Vocational Expert Testimony
Jerry A Olsheski, Ph.D., testified as the vocational expert ("VE") at the February 16, 2012 hearing. (R. at 54-61.) The VE testified that Plaintiff's past relevant work included a car detailer/car cleaner and a combination of cleaner/groundskeeper, both performed at the medium exertion, unskilled level; and a groundskeeper and janitor, both performed at the medium exertion, semi-skilled level. (R. at 55.)
The ALJ asked the VE whether Plaintiff would be able to return to any of his previous employment if he retained the residual functional capacity ("RFC") for light exertional work with the following additional limitations: occasional stooping and kneeling; precluded from overhead reaching and climbing ladders, ropes and scaffolds; avoid work environments with moving machinery and working at unprotected heights; borderline intellectual function with reading at the second-grade level; ability to understand, remember, and carry out simple tasks and instructions; ability to maintain concentration and attention for two-hour segments over an eight-hour work period; ability to respond appropriately to supervisors and co-workers; and ability to adapt to simple changes and avoid hazards. (R. at 55-56.) The VE responded that with that RFC, Plaintiff could not perform his past relevant work. (R. at 56.) The VE further testified that Plaintiff would, however, be capable of performing representative occupations such as a packing and filling machine operator, with 1,000 regional jobs and 150,000 jobs in the national economy; a handpacker, with 2,000 jobs in the regional economy and 275,000 national; and product inspector, with 2,000 local jobs and 250,000 jobs in the national economy. (R. at 56.) The VE testified that his testimony does not conflict with the Dictionary of Occupational Titles ("DOT"). (Id.)
When examined by Plaintiff's counsel, the VE stated that the jobs he identified do not require reading. (R. at 56.) The VE further testified that if Plaintiff was off task 25% of the time or limited to stooping only one-third of the time or had to miss four or more days per month, he could not perform the identified jobs.
III. MEDICAL AND EDUCATION RECORDS
A. Physical Impairments
1. Center Street Community Health Center
Plaintiff established care with Hafusat Oni, D.O., at the Center Street Community Health Center on May 5, 2010, to seek a physical for the Department of Job and Family Services. He reported a history of migraines. (R. at 398.)
At his May 12, 2010 follow-up visit, Dr. Oni noted that Plaintiff had an antalgic gait. Plaintiff complained of constant low-back pain with radiculopathy and migraines. He also reported numbness and tingling in his right leg and rated his low-back pain at 9 out of 10. Plaintiff took Vicodin for pain. (R. at 399.) On May 17, 2010, Plaintiff's indicated that his hands were swollen and painful. Plaintiff reported that the Neurontin prescribed did not help his pain. (R. at 400.)
Plaintiff underwent a MRI of his lumbar spine on May 20, 2010, that showed minor lower lumbar disc protrusions at L3-4 through L5-S1; minor foraminal encroachment involving the right L4-5 and L5-S1 levels due to facet arthropathy; and retrolisthesis of L5 measuring approximately 3mm. (R. at 401.)
At his June 14, 2010 follow-up visit, Plaintiff reported that he had been experiencing bilateral leg pain for two and a half years and that the pain was worsening. He further reported that the combination of Vicodin and Neurontin lessened his low-back and leg pain. Dr. Oni noted that Plaintiff's hypertension was controlled by medication, continued the same medication, and prescribed medication for Plaintiff's migraines. (R. at 402.)
On June 30, 2010, Plaintiff complained the he was experiencing trouble reaching with his hands and arms. Dr. Oni prescribed Lyrica. (R. at 403.) Dr. Oni wrote on a prescription sheet, "Plaintiff has severe low back pain due to lumbar disc protrusions and foraminal encroachment. As a result, he is unable to work physically." (R. at 404.)
On August 31, 2010, Dr. Oni completed a Physical Residual Functional Capacity Questionnaire. (R. at 405-09.) Dr. Oni listed Plaintiff's diagnoses as hypertension, hyperlipidemia, chronic low back pain, migraines, depression, and arthritis. (R. at 405.) Dr. Oni found that Plaintiff could walk one city block without needing to rest or experiencing severe pain. (R. at 406.) Dr. Oni also opined that in an eight-hour work day that Plaintiff could sit for one hour, stand for 30 minutes, and would need frequent breaks lasting 10 minutes. (R. at 407.) He further opined that Plaintiff could frequently lift up to 10 pounds, and occasionally lift up to 20 pounds. (Id.) He also indicated that Plaintiff could rarely stoop and did not have significant limitations with reaching, handling, or fingering. Dr. Oni concluded that Plaintiff's physical impairments would likely cause Plaintiff to be absent from work for more than four days per month. (R. at 408.)
In November 2010, Plaintiff complained of low-back pain and reported that the day of the visit was the first time he had been out of bed for two months. Plaintiff noted that his pain had been ongoing and he had not injured his back recently. Plaintiff also stated that he still had tingling in his left foot. He reported that the prescription Neurotin he took was not helping, but that he had not filled his prescription for Lyrica yet. Plaintiff requested a note saying that he was disabled for 12 months. Dr. Oni referred Plaintiff to pain specialists. (R. at 413-14.)
On January 3, 2011, Dr. Oni completed a Basic Medical form for the Department of Job and Family Services in which he opined that Plaintiff could essentially sit, stand or walk less than 2 hours in an 8 hour work day. (R. at 412.) Dr. Oni based this opinion on his clinical findings including an antalgic gait in which Plaintiff favors his left leg, wheezing, increased lordosis, and tenderness upon palpitation in his back. (R. at 410.)
In February 2011, Plaintiff requested a higher dose of Vicodin, stating that he could not tolerate Lyrica because it made him nauseous. Plaintiff reported that his back pain was getting worse and that he was having trouble ambulating. (R. at 415-17.)
2. Marion Pain Clinic
Plaintiff was seen at the pain clinic in August and September 2011. During this time, he continued to complain of pain. Examinations showed decreased range of motion in his lumbar spine, but that his reflexes were intact. Plaintiff received three epidural steroid injections. (R. at 426-32.)
3. Dorsey Gilliam, M.D.
On November 30, 2007, consulting physician Dr. Gilliam examined Plaintiff. (R. at 346-54.) Plaintiff's chief complaint was an old injury to his low back, 2 bulging discs, painful joints, the inability to raise his arms, and numbness in most of his leg. (R. at 346.) Examination reflected that Plaintiff was 70 inches tall and weighed 278 pounds. Dr. Gilliam observed that Plaintiff walked with a normal gait and without ambulatory aids. He noted that Plaintiff's "[j]oints show[ed] swelling of MPS [metacarpophalangeal] of both hands." (R. at 347.) Dr. Gilliam x-rayed Plaintiff's lumbar spine which showed degenerative arthritic changes without acute or chronic fracture, pars defect or spondylolisthesis. (R. at 348.) Dr. Gilliam assessed presumptive rheumatoid arthritis, hypertension, low-back pain, and inguinal hernia. (R. at 347.) Dr. Gilliam concluded that Plaintiff "is able to sit and stand at will, walk little to moderately[,] [l]ift and carry 3 to 5 lbs. occasionally[,] and [h]andle objects with difficulty." (Id.) He further found that Plaintiff had good hearing and speaking skills and could travel. Dr. Gilliam opined that the evidence did not reflect that Plaintiff had a mental impairment or depression that would impact his work abilities. (Id.)
4. State-Agency Evaluations
On December 21, 2007, state-agency physician Anton Freihofner, M.D., reviewed the record and opined that Plaintiff could lift and/or carry twenty pounds occasionally and ten pounds frequently; stand and/or walk about six hours in a workday; and sit for about six hours in a workday. (R. at 386.) He further opined that Plaintiff is also limited to frequently climb ramps/stairs, balance, kneel or crawl; occasionally stoop or crouch; and never climb ladders/ropes/scaffolds. (R. at 387.) According to Dr. Freihofner, Plaintiff is limited to no overhead reaching in his bilateral upper extremities and no sustained fingering bilaterally. (R. at 388.) Dr. Freihofner opined that Plaintiff's back complaints were credible and supported by objective evidence. (R. at 390.)
B. Mental Impairments
1. Consulting psychologist, Sudhir Dubey, Psy.D.
On November 26, 2007, Dr. Dubey evaluated Plaintiff on behalf of the state agency. (R. at 338-44.) Plaintiff arrived on time and had driven himself to the evaluation. Plaintiff reported that he had good relationships with his family and friends. (R. at 338.) Dr. Dubey noted Plaintiff was neat and clean in appearance. Plaintiff reported that he completed the ninth grade in school and received special education services. (R. at 339.) Plaintiff stated that his physical symptoms affect his ability to work. Dr. Dubey noted that Plaintiff appeared to be oriented to person, place, time, and evaluation situation. Dr. Dubey also noted that Plaintiff had the ability to shop independently and that his daily activities included cooking, cleaning, and caring for his disabled girlfriend. Plaintiff did not report any recreational activities or hobbies. Dr. Dubey assessed Plaintiff's eye contact and mood and affect as normal, and noted that his thought processes were coherent and logical, with no signs of anxiety. (R. at 340.)
Plaintiff was administered the Wechsler Adult Intelligence Scale - Third Edition (WAIS-III). He scored a verbal IQ score of 82, a performance IQ score of 79, and a full scale IQ score of 79. In testing with the Wechsler Memory Scale - III Edition (WMS-III), Plaintiff obtained an immediate memory index score of 86, which is in the low-average range of function. (R. at 344.)
Dr. Dubey diagnosed Plaintiff with a pain disorder with general medical and psychological factors and borderline intellectual functioning. He assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 70, indicative of only mild symptoms. (R. at 342.)
Dr. Dubey opined that Plaintiff had no impairment in his ability to relate to others or stress tolerance and that he was mildly impaired in his ability to understand and follow directions and in his ability to maintain attention, concentration, persistence, and pace for repetitive tasks. (R. at 342-43.)
2. State-Agency Evaluations
On December 18, 2007, after review of Plaintiff's medical record, William Benninger, Ph.D., a state-agency psychologist, assessed Plaintiff's mental condition. (R. at 367-84.) Dr. Benninger opined that Plaintiff had mild restrictions in his activities of daily living; mild difficulties in maintaining social functioning; and moderate difficulties in maintaining concentration, persistence, or pace; and no episodes of decompensation of an extended duration. (R. at 381.) He further determined that the evidence did not establish the presence of the "C" criteria. (R. at 382.) Dr. Benninger gave weight to Dr. Dubey's findings, but not his conclusions. Dr. Benninger concluded that Plaintiff's statements are only partially credible as it appears he tends to present himself as being worse off than he actually is. By way of example, Dr. Benninger noted that Plaintiff told an adjudicator that he had no driver's license, but that the consultive examiner's notes reflected that he had driven himself to his evaluation. (R. at 369.) Dr. Benninger opined that "it is likely that [Plaintiff] would have moderate impairments in understanding, remembering and following detailed instructions" given his "past performance in school and performance at his consultative evaluation." (Id.) Dr. Benninger concluded that Plaintiff is capable of simple, routine tasks. (Id.)
Plaintiff's medical record was reviewed on March 10, 2008, by Cynthia Waggoner, Psy.D., who affirmed Dr. Benninger's assessment. (R. at 394.)
C. Education Records
Records from Marysville Exempted Schools reflect that Plaintiff was tested for re-evaluation of special education services when he transferred to the school district. (R. at 36365.) He had previously attended Columbus Public Schools, where his grades reflected poor performance. (R. at 358-62.) He underwent the Wechsler Intelligence Scale for Children-R (WISC-R), on September 9, 1975, when he was 15, and obtained a verbal IQ score of 91, a performance IQ score of 92, and a full scale IQ score was listed as "low avg." (R. at 363.) Additional testing revealed that Plaintiff read at a second-grade level and that his math skills were in the third-grade level. (R. at 364.)
IV. THE ADMINISTRATIVE DECISION
On March 7, 2012, the ALJ issued his decision. (R. at 8-23.) The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2008. (R. at 13.) At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantially gainful activity since December 12, 2005. (R. at 14.) The ALJ found that Plaintiff had the severe impairments of history of brain damage, limited reading level, borderline intellectual functioning, degenerative changes in his lumbar spine, and obesity. (Id.) The ALJ also found that Plaintiff's hypertension, migraines, and difficulties with his hands are not severe impairments because they cause no more than minimal limitations to Plaintiff's ability to perform basic work-related activities. (R. at 14.) The ALJ concluded that "the record does not document evidence of a hand impairment beyond an occasional mention by the claimant and a couple description[s] of acute swelling in his fingers." (Id.) He further found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 15.) At step four of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC"). The ALJ set forth Plaintiff's RFC as follows:
Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step terminates the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?
After careful consideration of the entire record, the [ALJ] finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b) except he is limited to occasional stooping and kneeling. He is precluded from overhead reaching and climbing ladders, ropes and scaffolds. He should also avoid work environments with moving machinery and working at unprotected heights. He is able to understand, remember and carry out simple tasks
and instructions. He is able to maintain concentration and attention for two-hour segments over an eight-hour work period. He is able to respond appropriately to supervisors and co-workers and is able to adapt to simple changes and avoid hazards.(R. at 17.) In reaching this determination, the ALJ gave some weight to the opinions of Dr. Freihofner, but rejected his finding of mild limitations in manipulation, reasoning that such a limitation is not supported by the record. (R. at 20.) As to Plaintiff's mental limitations, the ALJ accepted and adopted the opinions of the state-agency medical consultants, Drs. Benninger and Waggoner, concluding that their opinions were consistent with the medical evidence of record. (Id.) The ALJ assigned Dr. Gilliam's opinion little weight, noting that there was little record support for Dr. Gilliam's conclusions, which appeared to be based mostly on Plaintiff's subjective complaints. (R. at 20.) The ALJ further concluded that Dr. Oni was not a completely reliable source, reasoning that the record did not support that Plaintiff was as limited as Dr. Oni found and that Dr. Oni's records "lack significant notes regarding any physical examinations during his appointments." (R. at 20-21.)
The ALJ further found that although the evidence establishes underlying medical conditions capable of producing some pain or other limitations, the evidence does not support a finding of disabling pain or other limitations arising from those impairments. (R. at 21.)
Relying on the VE's testimony, the ALJ determined that even though Plaintiff is unable to perform his past relevant work, other jobs exist in the national economy that he can perform. (R. at 21-23.) He therefore concluded that Plaintiff was not disabled under the Social Security Act. (R. at 23.)
V. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it 'is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is defined as '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.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Hum. Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must "'take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding 'even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "'a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
VI. ANALYSIS
In his Statement of Errors, Plaintiff first asserts that the ALJ failed to properly evaluate his obesity and the effect it has on his physical ability to perform substantial gainful activity. Plaintiff next posits that the ALJ failed to adequately accommodate the effect of his illiteracy on his ability to perform substantial gainful activity. Finally, Plaintiff maintains that the ALJ erred in failing to include a hand limitation in the hypothetical he presented to the VE. The Court considers each of these contentions of error in turn.
A. Obesity
The Court finds that the ALJ did not error with regard to his consideration of Plaintiff's obesity. Social Security Ruling 02-1p addresses the evaluation of obesity for the purpose of disability claims. The Ruling assures that the Commissioner will consider a claimant's obesity in evaluating steps two through five of the sequential analysis. SSR 02-1p, 2000 WL 628049, at *3 (Sept. 12, 2003). When the medical or clinical records display a consistently high body weight or body mass index ("BMI"), an ALJ will typically rely on his or her "judgment to establish the presence of obesity based on the medical findings and other evidence in the case record, even if a treating or examining source has not indicated a diagnosis of obesity." Id. Obesity will qualify as a severe impairment pursuant to step two "when, alone or in combination with another medically determinable physical or mental impairment(s), it significantly limits an individual's physical or mental ability to do basic work activities." Id. at *4. "[N]o specific level of weight or BMI [] equates with a 'severe' or 'not severe' impairment." Id. The ALJ "will do an individualized assessment of the impact of obesity on an individual's functioning when deciding whether the impairment is severe." Id.
Ruling 02-1p further recognizes that obesity may contribute to and complicate "chronic diseases of the cardiovascular, respiratory, and musculoskeletal body systems." Id. at *3. The Ruling also cautions against making "assumptions about the severity or functional effects of obesity combined with other impairments" and stresses that "[o]besity in combination with another impairment may or may not increase the severity of functional limitations of the other impairment." Id. at *6.
The United States Court of Appeals for the Sixth has emphasized that "Social Security Ruling 02-01p does not mandate a particular mode of analysis." Bledsoe v. Barnhart, 165 F. App'x 408, 411 (6th Cir. 2006) (finding, in case where medical reports described claimant as morbidly obese, that "the ALJ does not need to make specific mention of obesity if he credits an expert's report that considers obesity."); see also Young v. Comm'r of Soc. Sec., No. 3:09 CV 1894, 2011 WL 2182869, at *7 ("The Sixth Circuit requires the ALJ to mention obesity either expressly or indirectly where the record includes evidence of obesity's effects on the claimant's impairments."). Rather, Social Security Ruling 02-01p "only states that obesity, in combination with other impairments, 'may' increase the severity of the other limitations." Bledsoe, 165 F. App'x at 412. Further, when the record contains only a limited amount of information concerning obesity, the Sixth Circuit has indicated that an ALJ may provide less articulation. Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 577 (6th Cir. 2009) (holding that when the claimant failed to list obesity in his application and when there was scant evidence of obesity in the record, it was sufficient for the ALJ to merely acknowledge the obesity diagnosis in his decision).
Finally, pursuant to the regulations, a claimant "must furnish medical and other evidence that [the Comissioner] can use to reach conclusions about your medical impairment(s) and, if material to the determination of whether you are blind or disabled, its effect on your ability to work on a sustained basis." 20 CFR § 404.1512. Accordingly, a claimant relying on obesity should provide evidence that obesity affected his or her ability to work. See Cranfield v. Comm'r, Soc. Sec., 79 F. App'x 852, 857-58 (6th Cir. 2003) (concluding that even though doctor reports indicated obesity, the claimant's failure to provide evidence that her obesity affected her ability to work meant that "the ALJ and the district court had no obligation to address [her] obesity"); see also May v. Astrue, No. 4:10CV1533, 2011 WL 3490186, at *6 (N.D. Ohio June 1, 2011) (holding that an ALJ had no obligation to address a claimant's obesity when, even though the record contained a diagnosis of obesity, he did not demonstrate "functional limitations ascribed to the condition[]").
In this case, contrary to Plaintiff's assertions, the ALJ did, in fact, adequately consider Plaintiff's obesity throughout his decision. In the beginning of his decision, the ALJ first acknowledges that the Appeals Council had directed him to evaluate Plaintiff's obesity. (R. at 11.) In addition, the ALJ listed obesity as one of Plaintiff's severe impairments at step two. (R. at 14.) He then proceeds to note Plaintiff's self-reported height, weight, and approximate BMI of 40. (R. at 15.) The ALJ also explicitly states that "the effects of [Plaintiff's] obesity were considered in assessing [Plaintiff's] residual functional capacity pursuant to Social Security Ruling 02-01p." (Id.) In the RFC he set forth, the ALJ ultimately limited Plaintiff to a reduced range of light work, including limitations on Plaintiff's stooping, kneeling, overhead reaching, and climbing. (R. at 17.) And although the ALJ did not explicitly tie any of these specific limitations to Plaintiff's obesity, he was not required to do so, especially given that both Drs. Gilliam and Friehofner, the doctors upon whom the ALJ relied in formulating the RFC, both explicitly took note of Plaintiff's weight and incorporated it into their evaluation of the limiting effects of his impairments. See Colderon v. Comm'r of Soc. Sec., 391 F. App'x 435, 443 (6th Cir. 2010) ("[W]hen assigning Coldiron an RFC, the ALJ considered RFCs from physicians who explicitly accounted for Coldiron's obesity. . . . Thus, utilizing the opinions of these physicians in fashioning Coldiron's RFC, the ALJ incorporated the effect that obesity has on the claimant's ability to work into the RFC he constructed." (citations omitted)); Bledsoe, 165 F. App'x at 411-12.
Plaintiff's reliance upon Dr. Oni's notes that reflect that he had an antalgic gain and could only walk one city block without rest is unavailing because the ALJ did not rely upon Dr. Oni's opinion, a decision Plaintiff did not challenge. More specifically, in according "little weight" to Dr. Oni's opinions, the ALJ pointed out that Plaintiff "had a very limited treating relationship" with Dr. Oni, have established care in May 2010, more than two years after Plaintiff's date last insured. (R. at 20.) The ALJ further noted that Dr. Oni's "own records do not show evidence of any abnormal findings on physical examination" and that it "appears that the opinion is based solely on [Plaintiff's] subjective complaints and not medically acceptable and laboratory diagnostic techniques." (R. at 21-21.) Notably, Plaintiff does not challenge the ALJ's credibility determination. Accordingly, the Court overrules this assignments of error.
B. Illiteracy
Plaintiff's second contention of error is equally unavailing. Within this contention of error, Plaintiff alleges that the ALJ failed to properly consider his illiteracy. Plaintiff maintains that had the ALJ properly found Plaintiff to be illiterate or to have only a limited education as contemplated in the Medical-Vocational Guidelines, he would be considered disabled under Medical-Vocational Rule 202.17 or 201.09.
Plaintiff's illiteracy is not determinative of whether he is disabled under the Guidelines. Table 1 of 20 C.F.R. Part 404, Subpart P, Appendix 2, Rule 201.17 provides that a younger individual between the ages of forty-five and forty-nine, who has the RFC for sedentary work, is illiterate or is unable to communicate in English, and has an unskilled work experience, is disabled. 20 C.F.R. § 404.1520(a)(4)(i)-(v). Grid Rule 202.09 directs a disability finding for an individual who is closely approaching advanced age, has the RFC for light work, an unskilled work history, is illiterate or unable to communicate in English, and is approaching advanced age. (Id.). Thus, regardless of Plaintiff's proper education level, he does not satisfy Grid Rule 201.17 because he has an RFC for light work and also because his prior employment included semi-skilled work. Plaintiff's semi-skilled work history also means that regardless of his education level, he does not satisfy Grid Rule 202.17.
Finally, as the ALJ pointed out in his decision, the VE testified that the identified jobs "can be performed if one were illiterate . . . ." (R. at 22, 56.) Thus, the ALJ properly accounted for Plaintiff's illiteracy at step five. This contention of error is likewise overruled.
C. Hand Limitation
Within this final contention of error, Plaintiff posits that the ALJ "failed to properly include [a] hand limitation in the hypothetical provided to the vocational expert." (Pl.'s Statement of Errors 8, ECF No. 14.) In support of this contention of error, Plaintiff points to Dr. Gilliam's opinion that Plaintiff would "handle objects with difficulty," (R. at 347), and Dr. Freihofner's opinion that Plaintiff is limited to no sustained fingering bilaterally, (R. at 388). Id. at 8-9.
As a threshold matter, to the extent Plaintiff contests the validity of the hypothetical question posed to the VE, his challenge fails given that the ALJ incorporated all of the limitations the he found credible and supported by the evidence. "In order for a VE's testimony to constitute substantial evidence that a significant number of jobs exists, the questions must accurately portray a claimant's physical and mental impairments." Cole, 661 F.3d at 939. In formulating the hypothetical, an ALJ is only "required to incorporate those limitations accepted as credible by the finder of fact." Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). Here, the ALJ considered Plaintiff's alleged hand limitations, but did not find those limitations credible. Accordingly, the ALJ did not err in relying on the VE's testimony.
In addition, the Court finds that substantial evidence supports the ALJ's exclusion of a hand limitation from Plaintiff's RFC. The ALJ explicitly rejected hand limitations from Plaintiff's RFC, reasoning that "limitations in manipulation . . . are not supported by the evidence or record." (R. at 20.) In support of his rejection of more restrictive RFC limitations, the ALJ noted that just days before his consultative visit with Dr. Gilliam, Plaintiff "reported that he was independent with his activities of daily living, performed household chores, and cared for a [disabled] girlfriend," which the ALJ found to be "wholly inconsistent" with a more restrictive RFC. (R. at 20.) Indeed, during the interview with Dr. Gilliam, Plaintiff reported that he was cooking, cleaning, and shopping, all of which undermine Plaintiff's alleged limitations in manipulation. (R. at 340.) The ALJ also found Plaintiff's subjective reports concerning his hand limitation to be not credible:
Further, at the prior hearing, the undersigned noted that although [Plaintiff] admitted that he stopped working in 2005 due to a lay-off and that he collected unemployment benefits for six months. He reported debilitating migraines, which were not reflected in the record. At that time, he initially stated that he was unable to grasp "anything," but it was noted that [Plaintiff] carried a cell phone in his front pocket and a wallet in his back pocket. He then changed his answer to suggest that perhaps he could grasp some things, then decided against that answer. He also stated that he was unable to move his arms away from his body, but this was also not reflected in the record.(R. at 19-20.) As noted above, Plaintiff does not challenge the ALJ's credibility determination. The ALJ further pointed out that Plaintiff's treating physician, Dr. Oni, concluded that Plaintiff did not have limitations in manipulation. (R. at 21.) The Court concludes that even though substantial evidence in the record exists that could support a hand limitation, the ALJ did not commit reversible error given that substantial evidence also supports the ALJ's RFC determination. Plaintiff's final assignment of error is overruled.
VII. CONCLUSION
In sum, from a review of the record as a whole, the Court concludes that substantial evidence supports the ALJ's decision denying benefits. Accordingly, Plaintiff's Statement of Errors is OVERRULED, and the Commissioner of Social Security's decision is AFFIRMED.
IT IS SO ORDERED. Date: March 24, 2015
/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge
See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001).