CHARLES A. STAMPELOS, Magistrate Judge.
This is a Social Security case referred to the undersigned magistrate judge for a report and recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.2(D). It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Commissioner of the Social Security Administration (SSA) denying Plaintiff's applications for a period of disability and Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). After careful consideration of the entire Record, it is recommended that the decision of the Commissioner be affirmed.
On June 22, 2010, Plaintiff, Carol Ann Johnston, filed a Title II application for a period of disability and DIB and a Title XVI application for SSI alleging disability beginning October 31, 2009, due to back injury, migraine headaches, wrist problems, depression, bronchitis, and asthma. R. 21, 247-52, 283. (Citations to the Record shall be by the symbol ("R.") followed by a page number that appears in the lower right corner.) Plaintiff's date last insured, or the date by which his disability must have commenced in order to receive DIB under Title II, is December 31, 2013. R. 21.
Plaintiff's applications were denied initially on October 29, 2010, and upon reconsideration on January 28, 2011. R. 21. On March 10, 2011, Plaintiff requested a hearing. R. 21. On January 13, 2012, Plaintiff appeared and testified at a hearing conducted in Jacksonville, Florida, by Administrative Law Judge (ALJ) Brendan F. Flanagan. R. 21, 49-95. A. Mark Capps, MS, CRC, CVE, an impartial vocational expert, testified during the hearing. R. 21, 96-100, 238-39 (Resume). Plaintiff was represented by Elizabeth F. Stakenborg, an attorney. R. 21, 40-43, 127-28.
On February 29, 2012, the ALJ issued a decision and denied Plaintiff's applications for benefits concluding that Plaintiff was not disabled from October 31, 2009, through the date of the ALJ's decision. R. 31. On March 22, 2012, Plaintiff requested review of this decision, R. 5,15-17, 415-19 (post-hearing brief), 712-15 (post-hearing patient records), which the Appeals Council considered and denied on August 13, 2012. R. 1-5. The ALJ's decision stands as the final decision of the Commissioner.
On October 5, 2012, Plaintiff filed a Complaint with the United States District Court seeking review of the ALJ's decision. Doc. 1. The parties filed memoranda of law, docs. 14 and 16, which have been considered.
The ALJ made several findings relative to the issues raised in this appeal:
R. 31.
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
"In making an initial determination of disability, the examiner must consider four factors: `(1) objective medical facts or clinical findings; (2) diagnosis of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by [other observers, including family members], and (4) the claimant's age, education, and work history.'"
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); see 20 C.F.R. §§ 404.1509, 416.909 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months.
The Commissioner analyzes a claim in five steps. 20 C.F.R. §§ 404.1520(a)(4)(i)-(v), 416.920(a)(4)(i)-(v).
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden, however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work in the national economy in light of the claimant's RFC, age, education, and work experience.
As the finder of fact, the ALJ is charged with the duty to evaluate all of the medical opinions of the record resolving conflicts that might appear. 20 C.F.R. §§ 404.1527, 416.927. When considering medical opinions, the following factors apply for determining the weight to give to any medical opinion: (1) the frequency of examination and the length, nature, extent of the treatment relationship; (2) the evidence in support of the opinion, i.e., "[t]he more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight" that opinion is given; (3) the opinion's consistency with the record as a whole; (4) whether the opinion is from a specialist and, if it is, it will be accorded greater weight; and (5) other relevant but unspecified factors. 20 C.F.R. §§ 404.1527(b) & (c), 416.927(b) & (c).
The opinion of the claimant's treating physician must be accorded considerable weight by the Commissioner unless good cause is shown to the contrary.
The reasons for giving little weight to the opinion of the treating physician must be supported by substantial evidence,
The ALJ may discount a treating physician's opinion report regarding an inability to work if it is unsupported by objective medical evidence and is wholly conclusory.
In September 2006, Plaintiff sustained a fracture of her left upper extremity radius. R. 420-49, 546-62. She had a surgical repair of her fracture as well as formal decompression of the carpal canal (left carpal tunnel release) due to resulting nerve symptoms. R. 427-46. As of November 2006, she was advised she could return to work with light-duty, no lifting greater than five pounds with the left hand, and no twisting of the left-hand. R. 441.
On September 28, 2007, Plaintiff injured her right wrist. R. 474-80. An x-ray showed a comminuted distal radius fracture of the right wrist. Id. In October 2007, Plaintiff was treated by Dr. Dell and underwent surgery for her fracture. R. 474-73.
On August 30, 2009, shortly before her alleged onset date, Plaintiff was treated at the Wheeling Emergency Room for low back pain that she had for two days. R. 452. She reported doing a lot of lifting and could not get out of bed. No known injury is noted. R. 454. Under the musculoskeletal entry, it is noted that Plaintiff's strength is 5/5; gait normal; no limitation as to range of motion indicated; no indication of radicular pain; and a handwritten notation—pain getting out of bed. The impression is lumbar muscle strain. Plaintiff was given Valium 5 mg by IV and Oxycodone by mouth. R. 453.
On January 6, 2010, Plaintiff was treated at the Citrus County Health Department (CCHD) for back pain. R. 534. She reported falling down the steps, landing on her tailbone, and hitting her right wrist and right elbow. These events occurred two days prior. Examination revealed pain to palpation of her right thorax and sacrum. She was diagnosed with back pain and prescribed Meloxicam and Methocarbonal. She was told to apply ice and heat and to return if there was no improvement. A handwritten note states: no loss of back control. Straight leg raising, NL gait, and range of motion were noted as positive. R. 534.
On April 15, 2010, Plaintiff presented to the Shands at UF Emergency Department complaining of back pain. R. 461-67. She reported having right-sided back pain for several months and the pain had recently worsened. R. 461. The cause of the injury was unknown. R. 461. The symptoms were intermittent in nature, but currently present. R. 461. From a neurologic standpoint, Plaintiff was alert and oriented; her motor and sensory exams were non-focal; and she moved all extremities. R. 462. The final impression was back pain. Plaintiff was stable and discharged and prescribed Loratadine and Naprosyn. Plaintiff left the facility without assistance. R. 462, 465.
Between May and June 2010, Plaintiff was treated at the emergency department of Monroe Regional Medical Center for back pain. R. 481-513. During the May visit, a patient history was provided. The onset of the problem had begun two weeks prior. R. 500. Plaintiff had no trouble walking; no history of radiating pain; and no lower extremities weakness. Plaintiff described her symptom as a dull nagging pain. She was unaffected by movement or position. Plaintiff stated she "occasionally has RUQ pain radiating ot [sic] back." She described the pain as dull and aching—no aggravating or alleviating factors. R. 500. Plaintiff was taking Naprosyn. R. 501. A musculoskeletal examination revealed no extremity tenderness or edema. R. 503. Her mood and affect were normal. R. 503. It was also noted that Plaintiff complained of pain affecting her posterior chest wall and thoracic spine. She described the pain as sharp. There was no radiating pain. Plaintiff received verbal instructions and/or educational material relating to pain, treatment goals, expectations, and care. R. 504-5; see R. 506 (discharge instructions). Plaintiff was discharged with prescriptions for Flexeril and Lodine. Plaintiff was to arrange for a follow-up appointment with Heart of Florida, Clinic, in 3-5 days or immediately if her symptoms got worse. R. 505.
On June 5, 2010, Plaintiff presented to the same emergency department complaining of rib and chest wall pain. R. 486-97, 572-78. She reported shortness of breath. Neurological and musculoskeletal examinations were normal, including full range of motion in all extremities. R. 488. Plaintiff was discharged and prescribed Percocet. R. 489. Discharge instructions included a statement that Plaintiff had a deep bruise. R. 489-90.
In August and September 2010, Plaintiff was treated at Heart of Florida Health Center for low back pain. R. 516-19, 531-33. In August, Plaintiff reported being pulled into a pool ten years ago and that she had had back pain intermittently since then. R. 516. Plaintiff denied tingling or numbness, but admitted back pain. R. 517. On examination, Plaintiff had moderate bilateral paraspinal muscle tenderness in the lumbar region; leg raise test was negative; CVA tenderness noted bilaterally. R. 517. Plaintiff had no joint or limb tenderness to palpation; no edema or ecchymosis present; and range of motion was normal with no joint crepitations present and no pain on motion in the lower extremities. R. 517. Her gait was normal and mood and affect also normal. R. 518. Plaintiff was prescribed Septra, Ibuprofen, and Cyclobenzaprine. She was instructed to alternate heat and ice, increase fluids, no heavy lifting, and to return in two weeks. R. 518. A lumbar spine x-ray taken on August 31, 2010, showed disc space narrowing at L4-5 and L5-S1 levels. R. 519, 650.
On September 14, 2010, Plaintiff had a two-week recheck. R. 531. Plaintiff reported her back pain was unchanged and muscle relaxers helped a little, but not much. R. 531. Naprosyn was prescribed, but Cyclobenzaprine and Ibuprofen were discontinued. R. 532-33.
On October 15, 2010, at the request of the state agency, Samer Choksi, M.D. performed a consultative examination of Plaintiff. R 521-24. Plaintiff's chief complaints were back pain with radiculopathy and bilateral wrist pain and weakness. R. 521. After the examination, Dr. Choksi provided a functional assessment:
R. 524. (
Between January 26, 2011, and September 14, 2011, Plaintiff was treated at the CCHD for low back pain. R. 653-58. On January 26, 2011, presented with back pain and reported being out of her relaxers. Her blood pressure was elevated. Plaintiff was diagnosed with a herniated disc at L5 and hypertension, and prescribed Flexeril, Lidoderm patch, Lisinopril, and Tramadol. R. 658.
On July 20, 2011, Plaintiff presented (via ambulance) to the emergency department of Shands at the University of Florida complaining of back pain. Plaintiff stated that the pain increased after lifting packages of soda the prior day. R. 622. She was diagnosed with back pain and urinary tract infection, site not specified. R. 622. Plaintiff reported living in a shelter where she was required to perform household duties, including sweeping the floor and lifting objects. R. 624. (Plaintiff was a program participant at Another Way, Inc., a shelter and a 90-day program, from April 25, 2011, to August 6, 2011, R. 606, and thereafter. R. 614, 693.) The musculoskeletal examination revealed that Plaintiff's range of motion was normal; she exhibited tenderness but no edema; exhibited tenderness and pain in her lumbar back, with normal range of motion, no bony tenderness; no edema and no spasm. R. 625. Plaintiff's mood and affect were normal. R. 625. Plaintiff reported doing better with pain control and was discharged. R. 625.
Plaintiff's back pain continued and on July 26, 2011, Plaintiff was referred for an MRI of her lower back and spine. R. 656. On July 28, 2011, a MRI of Plaintiff's lumbar spine indicated bilateral mild to moderate neural foraminal stenosis at L5/S1 secondary to a broad based intervertebral disc herniation and Modic Type II degenerative endplate changes at L5/S1. R. 635. On August 5, 2011, Plaintiff reported to CCHD that her pain was unbearable and had no relief with medication. R. 655. It appears that a physician assistant discussed the MRI results with Plaintiff and advised her to continue with conservative treatment and/or that she would could be a possible surgical candidate. Plaintiff declined any chiropractic treatment. Plaintiff was prescribed Ibuprofen 800 mg, Flexeril 10 mg, and Prednisone. R. 655. On September 14, 2011, progress notes from CCHD indicated that Plaintiff had severe back pain that limited her movement. R. 654. It was noted that Plaintiff "goes to Meridian" for "PTSD." R. 654.
Plaintiff was treated at Meridian Behavioral Healthcare, Inc. (Meridian) for depression from June 2011 through November 2011, and was under the care of Gale Greeley, M.D., a psychiatrist. R. 606-620, 689-706. On June 14, 2011, at this initial evaluation that lasted 55 minutes, Plaintiff reported to Dr. Greeley being very depressed. R. 616-20, 701-07. She was tearful at times and reported a recent break up of a six-year relationship that was emotionally and physically abusive. She could not sleep or stand to be around noise or arguments, had nightmares, and could not make decisions. Examinations revealed her mood was depressed, tearful, and anxious, and her motor behavior was retarded. Her appearance was fair, speech normal, cognition was grossly intact, insight and judgment were fair, affect was appropriate, denial of homicidal/suicidal (HS) ideation, and thought process was logical. Plaintiff was diagnosed with major depressive disorder, severe, post-traumatic stress disorder, hypertension, and chronic back pain. She was assigned a current and "highest past year" Global Assessment of Functioning (GAF) score of 35.
A second evaluation occurred on July 12, 2011, which lasted 20 minutes and no improvements in Plaintiff's depression are noted. Ativan was prescribed. R. 612-13, 699-700. As of August 9, 2011, the third evaluation, Plaintiff's mental status remained about the same. (This evaluation was 30 minutes. R. 697.) She remained in the shelter, was very traumatized by it, and was having difficulty concentrating. R. 614, 697. The objective assessments were similar to the June 2011 assessments, although her motor behavior was normal. R. 615, 698; see R. 695-96 (9/9/11 notes for the fourth evaluation lasting 15 minutes; insight was fair to good and judgment was good).
On August 9, 2011, Dr. Greeley completed a questionnaire regarding Plaintiff covering the period of June 14, 2011, until August 9, 2011. R. 607-10. Signs and symptoms are checked. Dr. Greeley reiterated Plaintiff's prior diagnoses, including the 35 GAF score and that her condition was expected to last at least 12 months. Dr. Greeley expected Plaintiff to miss work more than three days a month and that during a typical workday Plaintiff's symptoms would become severe enough to interfere with attention and concentration needed to perform even simple work tasks, but that the psychiatric condition did not exacerbate Plaintiff's pain or other symptoms. Dr. Greeley indicated that she did not have a full-scale IQ for Plaintiff. Plaintiff was not a malingerer. R. 607-08. Dr. Greeley offered no opinions (check marks) regarding Plaintiff's mental abilities and aptitude to do unskilled work. R. 609. Dr. Greeley opined (used check marks) that Plaintiff had marked functional limitations regarding difficulties maintaining social functioning and extreme functional limitations regarding difficulties of concentration, persistence or pace, but no opinion regarding her limitations for activities of daily living and no episodes of decompensation. Plaintiff can manage her benefits in her own interest. No starting date was provided for the limitations. R. 610.
On September 27, 2011, Lance I. Chodosh, M.D., performed a consultative physical examination. R. 662-75. Plaintiff reported "disability secondary to `back and bilateral wrist pain, CTS, migraine headaches, asthma, short of breath and depression.'" R. 672. Dr. Chodosh's examination of Plaintiff's back/spine revealed no deformity, tenderness, or paraspinal muscle spasm, and a straight-leg raising test (supine and sitting bilaterally) was negative to 90°. R. 674. A neurological examination revealed that Plaintiff had normal motor function and impact strength in her arms and legs; normal manual dexterity and grip, good coordination, and normal sensation. R. 674. Plaintiff's standing balance, gait, including heel and toe walk, were normal. R. 674. Plaintiff indicated an inability to squat and rise. R. 674. Dr. Chodosh reported a decreased range of motion of the cervical and lumbar spine on forward flexion, extension, lateral flexion, and rotation and shoulder forward elevation and adduction, but normal range of motion in all other categories. R. 662-64. Based only on the objective evidence, he also opined that Plaintiff was able to stand, walk, sit, bend at the waist, squat occasionally, kneel, lift, carry, handle objects, and hear and speak normally. R. 675, see R. 665-70. Nevertheless, Dr. Chodosh diagnosed Plaintiff with chronic pain, as described without physical signs of impairment; moderate obesity; history of depression, alcoholism, and current psychiatric care; and bilateral wrist pain after remote fractures, without physical signs of impairment. R. 675.
On November 4, 2011, at Plaintiff's fifth and final reported visit with Dr. Greeley (lasting 20 minutes), Plaintiff is reported not doing well and continued to live at the shelter. R. 693. Plaintiff received a referral to case management and was to return in two-and-one half months. The objective assessments were similar to prior assessments, except it was noted that Plaintiff "just wishes she weren't alive" under "H/S." R. 694.
On November 14, 2011, at the referral of her attorney, Plaintiff attended a one-time psychological evaluation with Carmen Tozzo-Julian, Ph.D. R. 679. The purpose of the evaluation was to assess Plaintiff's level of functioning, to rule out an effective disorder and determine variables that are affecting her ability to work. R. 679. Plaintiff was cooperative and responded to all inquiries. R. 680. Her gait, posture, and motor behavior were normative. Speech was fluent and expressive and receptive language were within the average range. Plaintiff's attention was mildly impaired although she was alert and oriented to time, place and person. Plaintiff was easily distracted by the noises outside the room and objects inside the room. Memory functions were moderately impaired. R. 680. Thought processes were logical, coherent, and consistent with the subject matter and no obvious delusions. Intelligence and verbal reasoning were estimated to be in the average range. R. 681. Plaintiff reported a history of depression for six years and symptoms were noted. Plaintiff also reported a history of anxiety. Plaintiff reported participating in individual therapy through Meridian and was also scheduled to begin group therapy. R. 681.
Plaintiff reported pain level of seven to eight out of ten; able to bathe and dress independently, complete light housework, sit for five to ten minutes before feeling an increase in pain, to lift and carry five to ten pounds, and able to drive 30 minutes. R. 681.
Dr. Tozzo-Julian opined that the mental status examination indicated mild attentional deficits and moderate impairment on memory tasks and that these deficits were likely due to her current anxiety. R. 681. Dr. Tozzo-Julian also opined that Plaintiff's reported symptoms were consistent with Bipolar II Disorder and PTSD. R. 681. Plaintiff strengths are the good prior work history and a supportive sister. Her liabilities include chronic pain, depression, and anxiety. R. 682. Dr. Tozzo-Julian also opined:
R. 682. Dr. Tozzo-Julian diagnosed Plaintiff with "Bipolar II Disorder, current episode: Major Depression and [PTSD]" and rated Plaintiff's current GAF score at 55. R. 682; see supra n. 2.
On November 21, 2011, Dr. Tozzo-Julian also completed an impairment form. R. 684-87. The diagnoses and GAF score were the same as on November 14. R. 684. Numerous symptoms were identified with a check mark. R. 684. It was noted that Plaintiff's attention was mildly impaired and memory moderately impaired and that Plaintiff appeared depressed and had difficulty focusing. R. 685. Her prognosis was guarded; Plaintiff's impairment lasted or could be expected to last at least 12 months; Plaintiff was considered to be very depressed and focused on negative aspects of life; Plaintiff's pain or other symptoms would frequently become severe enough to interfere with her attention and concentration need to perform even simple work tasks; Plaintiff could be expected to be absent from work about twice a month due to her impairments or treatment; and Plaintiff did not have a low IQ or reduced intellectual functioning. R. 685. On a section of the formed labeled "Mental Abilities and Aptitudes Needed to do Unskilled Work," Dr. Tozzo-Julian opined Plaintiff had fair to good mental abilities and aptitudes in all areas other than dealing with work stress, which she rated as "poor. R. 686. In the section labeled "Functional Limitation," Dr. Tozzo-Julian opined that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate deficiencies of concentration, persistence, or pace; one or two episodes of the decompensation; and that these limitations would have been in effect since November 2008. R. 687. Plaintiff could not manage benefits in her own best interest. R. 687. Dr. Tozzo-Julian did not expressly opine whether Plaintiff could perform her past relevant work.
After the ALJ entered her decision, Plaintiff's counsel provided the Appeals Council with additional patient records from CCHD. R. 5, 712-15. On January 4, 2012, Plaintiff was treated at the CCHD for low back pain. R. 711-13. Plaintiff reported low back pain with radiculopathy, stress, and was depressed while in the shelter. R. 711. Plaintiff was given a Depomedrol injection for back pain and was prescribed Lidoderm patches and HCTZ for hypertension and was told to continue on Celexa and Trazodone for depression. R. 711.
A. Mark Capps testified without objection as a vocational expert. R. 96-100. Mr. Capps testified that Plaintiff's past relevant work as a lens fabricating machine tender was light and unskilled; her past relevant work as a supervisor was light and skilled; her past relevant work as an administrative clerk was light and semi-skilled; and her past relevant work as a machine setter was medium and skilled. R. 96-97. The ALJ asked Mr. Capps:
R. 97. Mr. Capps opined that these limitations would eliminate the medium position as a machine setter, but not the other light occupations. R. 97-98. Mr. Capps was unclear how the ALJ arrived at the "two hours of ability to concentrate." R. 98. Mr. Capps used "the standard breaks," i.e., "take a break after two hours . . . of a four-hour schedule . . . and then resume for two more hours until your lunch break." R. 98. He did not believe Plaintiff's former supervisory position involved continuous interaction with coworkers. R. 98.
Mr. Capps was also asked to assume that the hypothetical person is not capable of performing at any exertional level for eight hours a day/40 hours a week or assume that the claimant has a substantial loss in the ability to perform at least one of the basic mental demands for unskilled work. Mr. Capps opined that the claimant could not perform any of her past relevant work. R. 98-99.
In response to inquiries from Plaintiff's attorney, Mr. Capps stated that excessive tardiness is in the same category with absenteeism as far as the frequency, i.e., two or more per month, if not correctable, would lead to termination. R. 99. If the hypothetical person needed more than the regular breaks at least two or three times in excess of what is standard, then the employer would need to modify the job requirements to allow that. R. 100. Further, if the hypothetical person had the same limitations presented by the ALJ and added that the hypothetical person had only occasional use of the upper extremities, that factor would significantly impact the number of jobs available because approximately 94% of the jobs require frequent reaching and handling. R. 100.
Plaintiff testified during the hearing. R. 49-95. Plaintiff was born in 1955, and graduated from high school. R. 51-52. As of the hearing date, Plaintiff had lived in a shelter for eight months. R. 50. She previously lived in a mobile home for approximately one year and in another mobile home nearby prior to that time. She had lived in the mobile homes with her ex-boyfriend. She is not married and has no children. R. 51.
Plaintiff has a driver's license and drives a 1998 automobile. R. 53. She visits her sister who lives about five miles from the shelter. Prior to the administrative hearing, the shelter gave her a map and MapQuest (indicating 102 miles from the shelter to the hearing site in Jacksonville). She drove with her sister to the hearing. The trip took four hours. They got lost while driving 150 miles. Her sister gave her shortcuts. R. 53-54.
Plaintiff described her work history. R. 55-66. Plaintiff has not worked since 2009; she had been receiving unemployment compensation until she had to re-pay money due to an overpayment and the amount due was taken out of her unemployment check. She received unemployment benefits through approximately November 2010. R. 66-67. Plaintiff first applied for unemployment through Work Force. R. 67-68. Prior to receiving unemployment, Plaintiff had to look for a job. R. 68. She applied for several jobs without success. In fact, Plaintiff went door-to-door applying for jobs at stores and gas stations, although she was not hired. R. 68. She would have worked even though she was "really hurting" and claimed to be disabled. R. 69. She is receiving food stamps and her sister helps her by paying for gasoline and helps her with the doctor. R. 69, 84-85. Her doctor is approximately 30 miles from the shelter and she drives, accompanied by her sister. R. 69-70. While she was looking for work in 2010, Plaintiff also assisted an elderly couple at least two or three times a week. R. 71. She has not provided this assistance during the past three years. R. 71.
At the shelter, Plaintiff keeps her bedroom clean and helps with the kids if they need help. R. 73-74. She performs her personal care and does everything for herself except touch her toes. She sits down and slowly pulls her leg up to put on a shoe. R. 74-75. Food is provided; she does not cook, but cooked a lot, did housework, including laundry, making the beds, and cleaning dishes, prior to going to the shelter. R. 75. She also sewed by hand. R. 76. She had other interests including singing, dancing, camping, but these ended about six years ago. R. 76-77. She tries reading once in a while. R. 77. She stated that she last saw Dr. Greeley in November 2011 and typically saw her on prior occasions on a monthly basis for about half an hour or more. R. 79-80.
Plaintiff hurt herself the prior summer while lifting groceries. R. 80-81. Now, she could carry a gallon of milk in two hands, but she would not want to try to carry more— she fears hurting her back. R. 81. She walks around the shelter. She takes her sister shopping, e.g., to Walmart. Her sister uses a cane. R. 82. Plaintiff shops at Walmart without using a motorized cart, but she leans on a buggy. R. 82. Plaintiff can stand on her feet for about 20 minutes before she has to sit down because of the pressure on her legs and back. R. 83. Other than going to Walmart, the doctor, and other described places, Plaintiff does not go to movies, restaurants, church, and other places outside the shelter—she would not be able to sit that long and cannot afford movies and restaurants. R. 83. Her sister pays for gas and sometimes for her doctor visits and medicines. Plaintiff has no other source of funds. R. 69, 84-85. Plaintiff described her medications. R. 85-87. She takes Celexa every day and Trazodone when she feels bad. R. 85-86.
Plaintiff stated she could not work because she cannot do the things she once did. R. 87. She is not able to sit or stand for any length of time because of pain felt from her back down into her butt. She also feels she cannot concentrate. R. 87-88. Plaintiff is left-handed and has problems lifting under ten pounds. R. 88. She gets cramps in her arms and then drops things. She has had this problem for three days lately. R. 89-90. She gets migraines once a week or every two weeks. She takes Excedrin, but took another mediation previously, but can no longer afford it. R. 90. The doctor told her to go to pain management and to have surgery, but she has not gone to any doctor in these fields because she cannot afford the services and has no money for medicine. R. 90-91.
Over the last eight months, Plaintiff received three certificates in courses given at the shelter for domestic violence, self-esteem, and parenting. R. 93-94. She is currently taking a course in financial empowerment to help her after she leaves the shelter. R. 94. She goes to classes about an hour to an hour and a half every week and does her own reading. R. 95.
Prior to receiving treatment at Meridian, Plaintiff had not seen a psychiatrist or mental health counselor. R. 95.
The ALJ summarized part of Plaintiff's testimony:
R. 27.
Plaintiff raises three issues for consideration: (1) whether the ALJ erred in not explaining why he did not accept all of the opinions of Dr. Tozzo-Julian, a psychologist, regarding Plaintiff's RFC despite affording greater weight to her opinions; (2) whether the ALJ erred in not providing good cause for not crediting the opinion of Dr. Greeley, Plaintiff's treating psychiatrist; and (3) whether the ALJ's conclusions regarding Plaintiff's RFC are internally inconsistent.
Plaintiff alleges that her disability began on October 31, 2009. R 21. Plaintiff reported having problems with depression for several years (six years reported to Dr. Tozzo-Julian on November 14, 2011, R. 681) prior to and after the alleged onset date. It was not until June 14, 2011, when Plaintiff first sought and received evaluations and treatment from Dr. Greeley for a mental impairment at Meridian. R. 24, 606-620, 689-708. (The ALJ noted that "the record fails to document any evaluation or treatment of a mental health condition until June 2011. R. 29.) The initial session on June 14 lasted 55 minutes. R. 701. Later sessions on July 12, 2011, August 9, 2011, and November 4, 2011, the last session at Meridian, lasted approximately 15-30 minutes each. R. 693-700.
The ALJ summarized the treatment notes from Dr. Greeley:
R. 29-30.
At the request of Plaintiff's attorney, on November 14, 2011, Plaintiff attended a one-time psychological evaluation with Dr. Tozzo-Julian, a psychologist. R. 679. The purpose of Dr. Tozzo-Julian's evaluation was to assess Plaintiff's level of functioning, to rule out an affective disorder and determine variables that are affecting her ability to work. R. 679. The ALJ considered this evaluation. R. 29-30.
R. 29-30. These findings are supported by Dr. Tozzo-Julian's evaluation notes. R. 679-87; see supra at 17-19.
Specifically, on a section of the form labeled "Mental Abilities and Aptitudes Needed to do Unskilled Work," Dr. Tozzo-Julian opined Plaintiff had fair to good mental abilities and aptitudes in all areas other than dealing with work stress, which she rated as "poor." R. 686. In the section labeled "Functional Limitation," Dr. Tozzo-Julian opined that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate deficiencies of concentration, persistence, or pace; one or two episodes of the decompensation; and that these limitations would have been in effect since November 2008. R. 687. Plaintiff could not manage benefits in her own best interest. R. 687. Dr. Greeley opined she could. R. 610.
The ALJ gave "little weight to the opinion of Dr. Greeley as it is not consistent with the claimant's actual level of functioning or the opinion of Dr. Tozzo-Julian. Greater weight is provided to the opinion of Dr. Tozzo-Julian, as it is more consistent with the demonstrated activities of the claimant and is better supported by the record as a whole." R. 30.
Plaintiff argues that the ALJ did not explain why he did not adopt Dr. Tozzo-Julian's opinion as to Plaintiff's limitation, "including her limitations to unskilled work which would have precluded her ability to do any of her past work which was all semi-skilled or skilled in nature and would have resulted in a finding of disability under the Medical Vocational Guidelines [the Grids]." Doc. 14 at 10.
Dr. Tozzo-Julian did not opine that Plaintiff was limited solely to unskilled work and she did not expressly opine whether Plaintiff could perform her past relevant work or whether she could perform any work at the light, skilled, or semi-skilled level. Rather, on a section of the form labeled "Mental Abilities and Aptitudes Needed to do Unskilled Work," Dr. Tozzo-Julian opined Plaintiff had fair to good mental abilities and aptitudes in all areas other than dealing with work stress, which she rated as poor. R. 686. In the section labeled "Functional Limitation," Dr. Tozzo-Julian opined that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate deficiencies of concentration, persistence, or pace; one or two episodes of the decompensation; and that these limitations would have been in effect since November 2008. R. 687. The form was limited and did not request an opinion regarding Plaintiff's ability and aptitude to do light skilled or semi-skilled work (work that that the ALJ found Plaintiff could do, R. 30-31).
Although it is true that the ALJ did not discuss all of Dr. Tozzo-Julian's findings and opinions, he sufficiently discussed them in order for the reviewing court to determine the basis for the weight the ALJ gave to the doctor's opinions. Even though the doctor's prognosis was "guarded" and she made several other observations not expressly discussed by the ALJ, such as that Plaintiff "is unable to produce quality work consistently because of emotional deficits" and that Plaintiff "will have difficulty learning new tasks because of moderate deficits," the doctor also opined that the "[m]ental status examination indicated mild attentional deficits and moderate impairment on memory tasks." R. 681 (emphasis added). Further, the ALJ adopted Dr. Tozzo-Julian's opinions that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; moderate deficiencies of concentration, persistence, or pace. R. 29, 687. The ALJ gave Plaintiff the benefit of the doubt regarding reported and found mental limitations and included restrictions "that allow for [Plaintiff's] recently diagnosed mental health condition in the [RFC] assessment." R. 24, 26.
Prior to June 2011, although Plaintiff reported being depressed for about six years and receiving sporadic treatment at various health care providers, Plaintiff did not seek medical assistance for her depression or any other mental health condition, a point not lost on the ALJ. R. 29, 95. In June 2011, Plaintiff was evaluated by Dr. Greeley and reported a recently terminated abusive six-year relationship and reported living in a shelter for one-and-half months. R. 29, 793. Plaintiff found shelter-life quite traumatizing and was uncomfortable with the loud noises and discord between other residents. She stated that she did not feel safe at the shelter. After a 55-minute interview, Plaintiff was diagnosed with major depressive disorder, severe, single episode, and PTSD. Prognosis was fair and Plaintiff received a GAF score of 35. R. 706; see R. 705 for other ratings.
Plaintiff met with Dr. Greeley on July 12, 2011, for 20 minutes and was reported as not making any improvement in her depression. R. 699-700. On August 9, 2011, after a 30-minute visit (the third), Dr. Greeley reported Plaintiff had marked difficulties in maintaining social functioning and extreme deficiencies in concentration, persistence and pace. R. 607-10, 697-98. (Dr. Greeley did not check any boxes under the heading "Mental Abilities and Aptitude to do Unskilled Work. R. 609; see R. 48 (ALJ generally questioning whether an inference could be drawn when there is no limitation found).
The ALJ explained that he gave only limited weight to Dr. Greeley's August 9, 2011, opinion of essentially disabling mental limitations because "it was completed on only the claimant's third visit" and "those visits were brief." R. 30; see supra n.6. The ALJ also found Dr. Greeley's opinion inconsistent with Dr. Tozzo-Julian's findings and with Plaintiff's greater level of functioning in her daily activities. R. 30. As noted above, Dr. Tozzo-Julian reported fairly unremarkable results on a mental status examination and opined Plaintiff had only mild difficulties in maintaining social functioning and moderate deficiencies of concentration, persistence or pace. R. 687.
Dr. Greeley also reported rather standard findings on a mental status examination, noting that Plaintiff had good activities of daily living, normal motor behavior and speech, intact cognition, logical though processes, no suicidal/homicidal ideation (except on November 4, 2011, when Plaintiff reported "just wishes she weren't alive"), fair to good insight, and fair to good judgment. R. 694, 696, 698, 700, 705. Aside from Dr. Greeley routinely noting that Plaintiff was depressed or very depressed and anxious, these fairly normal mental status examination findings were inconsistent with Dr. Greeley's opinion that Plaintiff had marked difficulties in maintaining social functioning and extreme deficiencies of concentration, persistence or pace.
Additionally, aside from getting lost when traveling to the hearing with her sister, Plaintiff reported few to no difficulties driving 30 miles, assisting an elderly couple with getting to their appointments, helping other women at the shelter and caring for their children, maintaining her living space at the shelter, and registering with Work Force and going door-to-door looking for work. R. 53-54, 66-68, 71-76, 82-83; see R. 30. Plaintiff testified that she was ready, willing, and able to work—she simply was unable to find a job at stores and gas stations in the area where she lived. R. 66-69. Substantial evidence supports the ALJ's conclusion that these daily activities conflicted with Dr. Greeley's opinion that Plaintiff suffered from disabling limitations.
The evidence showed that Plaintiff's mental health symptoms were largely related to situational stressors, such as Plaintiff's recent break-up from a long-term abusive relationship and subsequent move into a domestic violence shelter where she did not feel safe. R. 697-98. Even with the mental symptoms brought on by her situational stressors, Plaintiff required no psychiatric hospitalizations, and her sole treatment was monthly medication management appointments (of short duration) with Dr. Greeley. R. 689-709. During her appointments, Dr. Greeley noted fairly normal mental status examination. R. 696. At her one-time evaluation, Dr. Tozzo-Julian reported fairly unremarkable findings, including that Plaintiff had some mild attention deficits and a moderate memory impairment due to situational anxiety, but otherwise had normal though processes and speech, and average verbal reasoning skills and intelligence. R. 680-81. Dr. Tozzo-Julian rated Plaintiff's GAF score at 55, indicating only moderate psychological symptoms. R. 682; see supra n. 2.
Based on all of the evidence, the ALJ reasonably found that Plaintiff had the mental RFC to perform work that allowed her to concentrate and persist for two-hour segments with one-to-two minute breaks and that did not require more than frequent interaction with crowds, the public, or coworkers. R. 26. These findings are consistent with Dr. Tozzo-Julian's finding that Plaintiff had mild to moderate problems with her attention and memory and problems working with the public due to her history of anxiety. R. 680-82. Dr. Tozzo-Julian also found that Plaintiff would not likely have problems getting along with supervisors or coworkers, although she would have problems working with the public and coping with everyday work stressors because of her history of anxiety. R. 682. (The ALJ acknowledged in his RFC assessment that Plaintiff "is limited to work that requires no more than frequent interaction with crowds, public, or co-workers." R. 26.)
Based on the foregoing, substantial evidence supports the ALJ's consideration of and the weight given to Dr. Tozzo-Julian's and Dr. Greeley opinions. Plaintiff's arguments to contrary should be rejected.
Plaintiff also argues the ALJ's conclusions concerning her RFC are internally inconsistent. Doc. 14 at 17-20. As explained below, substantial evidence supports the physical components of the ALJ's RFC assessment, finding that Plaintiff was physically capable of performing light work. R. 26.
Except for periods of increased symptoms, Plaintiff's physical examinations revealed minimal objective findings over the course of her treatment. Diagnostic studies did not reveal evidence of any disease process significant enough to preclude Plaintiff from performing a limited range of light work. R. 28. For example, Plaintiff was seen at the emergency room in May 2010 complaining of back pain. The attending physician reported that a physical examination was essentially normal, with no motor or sensory deficits. R. 503. In October 2010, Dr. Choksi reported that a neurological examination was normal, with no motor or sensory deficits and a negative straight-leg raising test. R. 521-24. Dr. Choksi also reported that Plaintiff's gait was normal and Plaintiff was able to squat and heel-to-toe walk. R. 523. Plaintiff demonstrated some limitation of motion of her lumbar spine. Dr. Choksi, however, felt that Plaintiff did not put forth her best effort with range of motion testing. R. 523-24. In July 2011, after Plaintiff suffered an episode of acute back pain resulting from lifting heavy groceries, an emergency room physician reported that despite that Plaintiff's lumbar spine was painful and tender, her range of motion was normal with no bony tenderness, swelling, edema, or spasm. R. 625. In September 2011, Dr. Chodosh reported that Plaintiff's gait and station were normal and a neurological examination revealed that Plaintiff had normal motor function and intact strength in her arms and legs; normal manual dexterity and grip; good coordination; and normal sensation. The back/spine examination revealed no deformity, tenderness, or paraspinal muscular spasm; straight-leg raise is negative to 90°, supine and sitting bilaterally. R. 674.
Although the ALJ gave no weight to Dr. Chodosh's opinion that Plaintiff's back impairment caused no functional limitations, R. 29, the ALJ implicitly did not totally discount Dr. Chodosh's objective medical clinical findings that are consistent with other medical evidence discussed by the ALJ. R. 27-30. The ALJ expressly found that Plaintiff "has a severe back impairment, and is limited to some extent by this impairment." R. 29.
The ALJ also found that Plaintiff's back impairment required conservative treatment with muscle relaxers and analgesics and that none of Plaintiff's physicians felt that her degree of back pain warranted more aggressive treatment such as the consistent use of narcotic pain medication, referral to physical therapy, or hospitalization. R. 28. See
Based on his consideration of the objective medical evidence and Plaintiff's daily activities, the ALJ reasonably assessed that Plaintiff was capable of performing a limited range of light work despite her back impairment. The ALJ considered Plaintiff's difficulties with performing postural activities and reduced Plaintiff's RFC to work that required no more than occasional climbing of ramps, stairs, ropes, ladders, or scaffolds, or crouching. Weight limitations were also considered. R. 26. Notwithstanding, Mr. Capps testified that Plaintiff would be capable of returning to her past relevant light, semi-skilled work as a lens fabricating machine tender, supervisor, and administrative clerk. R. 30-31, 97-98. The ALJ accepted Mr. Capps' testimony. R. 31. Substantial evidence supports the ALJ's reduction of Plaintiff's physical RFC and overall RFC assessment.
Considering the Record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly applied the law. Accordingly, it is respectfully recommended that the decision of the Commissioner to deny Plaintiff's applications for Social Security benefits be
