PATRICIA L. COHEN, Magistrate Judge.
Plaintiff Kimberly Fabrio seeks review of the decision by Defendant Social Security Commissioner Andrew Saul denying her application for a period of disability and Disability Insurance Benefits under the Social Security Act. Because the Court finds that substantial evidence supports the decision to deny benefits, the Court affirms the denial of Plaintiff's application.
In November 2015, Plaintiff, who was born on August 3, 1965, filed an application for a period of disability and Disability Insurance Benefits, alleging that she became disabled on February 1, 2010 due to "osteomyelitis of left ankle; torn meniscus on right knee; multiple levels of degenerative disc disease; disc extrusions in lumbar spine; depression; and anxiety." (Tr. 65-72) The Social Security Administration (SSA) denied Plaintiff's claims, and she filed a timely request for a hearing before an administrative law judge (ALJ). (Tr. 74-78, 81-83)
In November 2017, the ALJ conducted a hearing at which Plaintiff and a vocational expert testified. (Tr. 29-63) In a decision dated February 23, 2018, the ALJ found that Plaintiff "was not under a disability, as defined in the Social Security Act, at any time from February 1, 2010, the alleged onset date, through March 31, 2015, the date last insured[.]" (Tr. 15-24) Plaintiff filed a request for review of the ALJ's decision with the SSA Appeals Council, which denied review. (Tr. 1-8) Plaintiff has exhausted all administrative remedies, and the ALJ's decision stands as the SSA's final decision.
Plaintiff testified that she was fifty-two years old and had a GED and "some college," as well as a certificate in "medical assisting." (Tr. 32-33) Plaintiff lived with her "adopted granddaughters," who were eight and thirteen years old. (Tr. 33)
In 2014, Plaintiff worked as a CNA for Attending Angels until she injured her back lifting a patient. (Tr. 45, 49) Prior to that, Plaintiff worked various temporary services jobs for short periods of time because "that's how my jobs go because I just can't do it." (Tr. 45-46) Plaintiff explained that her pain and resulting attendance problems caused her to leave jobs at several factories, a nursery, and the Department of Corrections. (Tr. 46-48)
Plaintiff stated that she was first diagnosed with osteomyelitis when she was five years old "and ever since then I've been struggling with pain[.]" (Tr. 34) The osteomyelitis affected her left ankle but "it kind of messed up through the years all my other parts of my body with my work I did." (Tr. 34)
In addition to her left ankle, Plaintiff experienced pain in her knees, hips, and back. (
In regard to her mental impairments, Plaintiff testified that she had "anxiety, depression issues...[a] long time." (Tr. 52) Plaintiff explained "I get worked up about things" and "I cry a lot." (Tr. 53) Plaintiff also had difficulty concentrating, staying on task, and following instructions. (Tr. 54-55)
Plaintiff's primary care physician, Dr. Rose, treated her pain and her mental health symptoms. (Tr. 34-35) Plaintiff testified that she had been taking fluoxetine since 2010 and Norco since 2014. (Tr. 34-35) She also took Ambien, Lisinopril, hydrochlorothiazide, and metformin. (Tr. 35, 38) Plaintiff stated that her pain medication made her feel "tired, a little, you know, light-headed, loopy" and caused "stomach problems," and fluoxetine made her "a little drowsy." (Tr. 36) Plaintiff expressed concern that her pain medications were losing their effectiveness. (
Plaintiff appeared at the hearing with a crutch and stated that she had been using it "[o]ff and on since I was five years old. I have a wheelchair also, and it gets to the point where I have to use that at home." (Tr. 38-39) In addition, Plaintiff had "like an office chair with wheels so I can roll and do my dishes, or do some cooking." (Tr. 39) Plaintiff had been wearing a brace on her right knee for four years" and had "several ace bandages I wear on my ankle when it gets to the point to where I have to crawl, or something, where I can't walk for support, I guess." (Tr. 39)
Plaintiff was unable to tie her shoes and used a bench when she showered. (Tr. 40) Plaintiff testified that she was able to stand "maybe 15 minutes before I have to sit down" and "it's hard to get back up and be on my feet." (
A vocational expert also testified at the hearing. (Tr. 56-62) The ALJ asked the vocational expert to consider a hypothetical individual with Plaintiff's age, education, and work experience as Plaintiff that could:
(Tr. 59-60) The vocational expert stated that the hypothetical individual could not perform Plaintiff's past relevant work, but could perform the jobs of stock checker and routing clerk. (Tr. 61) When the ALJ limited the same hypothetical individual to sedentary work, "which would be a maximum lift of ten pounds, and a maximum stand and/or walk of about two out of eight hours with normal breaks," the vocational expert testified that such individual could perform the jobs of assembler and stuffer of toys, pillows, or other small objects. (Tr. 61)
Plaintiff presented to the emergency room in July 2009 with right foot swelling and pain from an infected sore. (Tr. 292-99) Plaintiff returned to the emergency room in November 2010 with complaints of chest pain and weakness. (Tr. 315-24) On examination, Plaintiff was "positive for weakness" and "negative for myalgias, back pain and falls." (Tr. 317) Plaintiff's musculoskeletal examination revealed normal range of motion and an EKG "was within normal limits." (Tr. 319, 321) At the time, Plaintiff's medications included Xanax, diclofenac sodium, hydrochlorothiazide, and lisnopril. (Tr. 318) The doctor diagnosed Plaintiff with atypical chest pain and anxiety, instructed Plaintiff to stop taking Bystolic, prescribed lorazepam, continued lisinopril/HCTZ "as needed for anxiety," and instructed Plaintiff to follow-up with her primary care physician. (Tr. 316)
In September 2011, Plaintiff presented to the emergency room with low back pain and frequent urination. (Tr. 343-53) Plaintiff described the pain as mild, "intermittent bilateral flank tenderness" and rated its severity as a 1/10. (Tr. 346) Plaintiff's physical examination, including her range of motion and behavior, was normal. (Tr. 348) Plaintiff's symptoms resolved and she was discharged without medications. (Tr. 343, 350)
In January 2013, Plaintiff underwent a right knee x-ray, which showed "patellofemoral degenerative changes with suggestion of chondromalacia." (Tr. 421) The reviewing doctor suggested further evaluation by MRI. (
In January 2014, Plaintiff saw Dr. Moore, a primary care physician, for flank pain lasting about one month and a possible urinary tract infection (UTI). (Tr. 473-74) On examination, Plaintiff's lumbar region was tender to palpation. (Tr. 474) Her mood and affect were normal. (
Plaintiff presented to the emergency room on November 2, 2014 with complaints of leftsided low back pain after lifting a client at work on October 28. (Tr. 365-79) Plaintiff reported that the pain was "gradually worsening," "aching," and "mild." (Tr. 366) Plaintiff exhibited "pain and spasm," but her gait and range of motion were normal and she was "[n]egative for behavioral problems and agitation." (Tr. 367) Doctors prescribed Norco for pain as needed for up to three days. (Tr. 369)
Plaintiff returned to the emergency room with continued back pain ten days later. (Tr. 380-400) Plaintiff stated that the pain affected her thoracic spine and described it as "aching," "cramping," and "moderate." (Tr. 383) A physical examination revealed normal range of motion and tenderness in her thoracic back, but no bony tenderness. (Tr. 385) Plaintiff's strength, gait, mood, and affect were normal. (Tr. 386) An x-ray of Plaintiff's thoracic spine revealed thoracic spondylosis and no acute compression fracture. (Tr. 389) The doctor prescribed Norco, prednisone, and Flexeril. (Tr. 380)
On November 26, Plaintiff visited Dr. Keefe at Mercy Corporate Health Occupational Medicine Clinic. (Tr. 271-73) Plaintiff explained that she was "lifting a patient to put them back in bed, [and] she felt a strain on her upper back." (Tr. 272) Dr. Keefe completed a review of systems, which revealed anxiety and "[t]enderness from beltline up to mid-back level," "intact flexion with moderate pain," and intact right and left rotation "with moderate pain," "intact left lateral flexion with moderate pain," "intact right lateral flexion with mild pain," "stands upright with mild pain," and "normal gait." (Tr. 272) An x-ray showed mild levoscoliosis and mild degenerative changes in lumbar spine, especially L3-L4. (Tr. 426) Dr. Keefe diagnosed Plaintiff with "strain, mid to low back," prescribed acetaminophen/hydrocodone and cyclobenzaprine, referred Plaintiff to physical therapy, and imposed the following restrictions: "[N]o lifting over 10 pounds. No frequently or prolonged bending over. No pushing or pulling over 30 pounds." (Tr. 273)
When Plaintiff returned to Dr. Keefe's office on December 14 she reported continued "discomfort in mid back and low back," which "seems worse after doing any activities." (Tr. 277) Plaintiff stated that the Vicodin and ibuprofen were "helping some," and she did not attend physical therapy because "[n]o one called about PT app[ointments]." (
The next day, Plaintiff visited orthopedic surgeon Dr. Coyle. (Tr. 432-33) Dr. Coyle noted that Plaintiff had a "mild antalgic gait in the left due to her old ankle injury" and that she was "able to forward flex about ninety degrees at the waist." (Tr. 433) On examination, Dr. Coyle observed the following: "palpable muscle spasm over the latissimus muscles bilaterally"; "trace reflexes at the patella and ankle"; no focal motor deficits or sensory deficits in the lower extremities; negative straight leg raise test bilaterally; and "no sciatic notch tenderness." (
Plaintiff presented to the emergency room for right knee pain in late-December 2014. (Tr. 401-21) Plaintiff reported that Dr. Harris evaluated her in early 2013 and scheduled arthroscopy for a medial meniscus tear and chondromalacia of patella, but Plaintiff cancelled because she wanted a second opinion. (Tr.404) Plaintiff also stated that the "[k]nee pain and swelling [were] worse over the past couple of days after straining to pull a trailer." (
Plaintiff followed up with Dr. Coyle in March 2015. (Tr. 430-31) Dr. Coyle reviewed the notes from Plaintiff's physical therapist, which "as of January indicate that her back improved overall, and she no longer had spasms[.]" (Tr. 430) Dr. Coyle noted: "On examination, she localizes her pain to the lumbosacral junction; this is not where her pain was localized when I last saw her. She also reports intermittent radiating pain in her thighs." (Tr. 430) Dr. Coyle observed that Plaintiff was able to forward flex and touch the floor and she had no muscle atrophy, weakness, or lower extremity deficits except left ankle range of motion where she had undergone an ankle fusion. (Tr. 428, 431) Dr. Coyle opined that her symptoms were not consistent with lumbar radiculopathy, there was "no evidence or indication for surgery," her current complaints were "unrelated to those she had when [he] first evaluated her in December," and "she is, in general, very poorly conditioned." (
Eligibility for disability benefits under the Social Security Act requires a claimant to demonstrate that he or she suffers from a physical or mental disability. 42 U.S.C. § 423(a)(1). The Act defines disability as "the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period not less than 12 months." 42 U.S.C. § 423(d)(1)(A);
To determine whether a claimant is disabled, the Commissioner engages in a five-step evaluation process.
The ALJ found that Plaintiff: (1) did not engage in substantial gainful activity during the period from her alleged onset date of February 1, 2010 through her date last insured of March 31, 2015; (2) had the severe impairments of "degenerative disc disease, history of a left ankle fracture, depression and anxiety"; and (3) did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 17)
The ALJ reviewed Plaintiff's testimony and medical records and determined that "the evidence contained in the record prior to the claimant's date last insured [of] March 31, 2015, fails to support allegations of a severe and debilitating impairment or combination of impairments." (Tr. 21) The ALJ explained: "The treatment notes indicate at best, ailments that appeared troublesome, but did not impose limitations of such significance as to preclude sustained competitive employment." (
(Tr. 19)
Based on the vocational expert's testimony, the ALJ found that Plaintiff was unable to perform any past relevant work but "there were jobs that existed in significant numbers in the national economy that the claimant could have performed[.]" (Tr. 21-23) More specifically, the ALJ determined that Plaintiff was able to perform the jobs of stocker/checker-apparel and routing clerk. (Tr. 24) The ALJ therefore concluded that Plaintiff "was not under a disability...at any time from February 1, 2010, the alleged onset date, through March 31, 2015, the date last insured." (
Plaintiff claims that substantial evidence did not support the ALJ's decision because the ALJ failed "to fully and fairly develop the record regarding this claim with a date last insured of March 31, 2015." [ECF No. 13 at 5] More specifically, Plaintiff contends the ALJ improperly relied on evidence of Plaintiff's condition at the time of the November 2017 hearing when he found that Plaintiff was not disabled during the period of February 2010 through March 2015. Plaintiff further argues that the vocational expert's testimony lacked "evidentiary value because it is based on evidence of her condition as of the November 2017 hearing, two and one-half years after....the end of the period at issue." [
A court must affirm an ALJ's decision if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion."
A court does not "reweigh the evidence presented to the ALJ, and [it] defer[s] to the ALJ's determinations regarding the credibility of testimony, as long as those determination are supported by good reasons and substantial evidence."
Plaintiff asserts that the ALJ did not satisfy his duty to develop the record with regard to Plaintiff's impairments during the relevant period of February 2010 through March 2015. In particular, Plaintiff contends that the ALJ improperly relied on Plaintiff's testimony about her symptoms at the time of the November 2017 hearing when assessing the severity of her symptoms prior to March 31, 2015.
If a claimant makes statements about the intensity, persistence, and limiting effects of her symptoms, the ALJ must determine whether the statements are consistent with the medical and other evidence of record. SSR 16-3p, 2017 WL 5180304, at *8 (SSA. Oct. 2017).
An ALJ has a duty to fully and fairly develop the record, and failure to do so is reversible error when the record "does not contain enough evidence to determine the impact of a claimant's impairment on his ability to work."
Plaintiff appears to argue that the ALJ failed to fully and fairly develop the record because he did not ask Plaintiff more date-specific questions during the hearing. However, the record as a whole contained sufficient evidence for the ALJ to assess the credibility of Plaintiff's subjective complaints and determine that she was not disabled prior to her date last insured.
At the hearing, Plaintiff testified that she was diagnosed with osteomyelitis in her left ankle and began using a crutch when she was five years old. In regard to her right knee pain, Plaintiff stated that in 2013 an orthopedic surgeon diagnosed a torn meniscus and recommended surgery. Plaintiff also testified that she suffered pain in her back and hips, and she had been taking Norco since 2014. When asked about her mental health, Plaintiff stated she had suffered anxiety depression "a long time" and began taking fluoxetine in 2010.
In addition to Plaintiff's testimony, the record contained over sixty pages of medical notes discussing Plaintiff's condition prior to the date last insured. The records reveal that Plaintiff sought treatment for chest pain/anxiety in November 2010 and low back and flank pain in September 2011 and January 2014. A right knee x-ray in January 2013 showed patellofemoral degenerative changes with suggestion of chondromalacia.
In late-October 2014, Plaintiff injured her back lifting a patient at work and, in November, Dr. Keefe began treating Plaintiff's mid-to-low back strain with medication. In December, an MRI revealed multilevel degenerative disc disease, small protrusion on the left at L4-5, and chronic herniation on the left L5-S. Orthopedic surgeon Dr. Coyle diagnosed Plaintiff with latissimus strain, prescribed a Medrol Dosepak and Soma, recommended physical therapy, and restricted Plaintiff to lifting no more than twenty pounds.
Later that month, Plaintiff presented to the emergency room with right knee pain after "straining to pull a trailer." Plaintiff had decreased range of motion in the right knee, as well as swelling, effusion, and bony tenderness, but she denied back pain. The doctor prescribed Norco and an Ace bandage. When Plaintiff followed-up with Dr. Coyle in March 2015, she identified pain in the lumbosacral junction, not the latissimus muscles.
The ALJ reviewed the testimony and medical records and determined that the "evidence contained in the record prior to the claimant's date last insured March 31, 2015, fails to support allegations of a severe and debilitating impairment or combination of impairments." (Tr. 21) The ALJ discounted Plaintiff's subjective complaints during the period in question because they were not supported by medical evidence. (Tr. 19) In particular, the ALJ noted that the following "were inconsistent with the severity and pain levels" alleged by Plaintiff: images showing mild levoscoliosis and mild degenerative changes, Dr. Coyle's findings upon examination in December 2015, and Plaintiff's "essentially normal physical examination" in March 2015. The lack of supporting objective medical evidence is a proper factor for an ALJ to consider when discounting a claimant's subjective complaints.
The ALJ also discredited Plaintiff's subjective complaints of pain because, during the period in question, Plaintiff did not require surgery or hospitalization and she received conservative treatment. The need for only conservative treatment undermines allegations of disabling pain.
Additionally, although not addressed in the context of Plaintiff's subjective complaints, the ALJ discussed Plaintiff's activities of daily living, which suggested that her symptoms were less severe than alleged. For example, the ALJ noted that, in December 2014, Plaintiff informed Dr. Coyle that she farmed, owned horses, and rode a motorcycle. (Tr. 21) When she presented to the emergency room with knee pain later that month, she reported that she injured her knee "straining to pull a trailer." An ALJ may discount a claimant's subjective complaints if they are inconsistent with her activities of daily living.
In regard to Plaintiff's anxiety and depression, the ALJ observed that Plaintiff "has had no inpatient psychiatric hospitalization or outpatient treatment" and "has never sought or been referred to a psychiatrist, psychologist or other mental health professional." (Tr. 22) Instead, Plaintiff received treatment, in the form of medication, from her primary care physician "as part of her routine visits." (
The records support the ALJ's finding that Plaintiff received routine and conservative mental health treatment from her primary care provider. Plaintiff did not seek treatment from a mental health specialist. Failure to seek mental health treatment is a relevant consideration when evaluating a claimant's mental impairment.
Based on the Court's review, the evidence in the record provided sufficient basis for the ALJ to assess Plaintiff's subjective complaints and physical and mental impairments from February 2010 through March 2015. The ALJ, therefore, did not err in failing to obtain additional testimony from Plaintiff. The Court further notes that Plaintiff was represented by counsel at the hearing and the ALJ provided counsel the opportunity to ask questions and develop the record.
For the reasons discussed above, the undersigned finds that substantial evidence in the record as a whole supports the Commissioner's decision that Plaintiff is not disabled. Accordingly,
A separate judgment in accordance with this Memorandum and Order is entered this date.
