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 Acting Commissioner (Commissioner) of the Social Security Administration (SSA) denying Plaintiff's application for a period of disability and Disability Insurance Benefits (DIB) filed pursuant to Title II of the Social Security Act (Act). After consideration of the record, it is recommended that the decision of the Commissioner be affirmed.
On June 28, 2011, Plaintiff, Paula Saunders, filed an application for DIB alleging disability beginning May 12, 2011, due, in part, to heart and back problems, hypothyroidism, severe hypertension, osteoarthritis, diverticulosis, anxiety and depression, and severe muscular spasm.
Plaintiff's application was denied initially on October 4, 2011, and upon reconsideration on December 6, 2011. R. 23, 100-27, 130-42. On January 11, 2012, Plaintiff requested a hearing. R. 23, 144-51. On May 9, 2013, the ALJ held a hearing in Tallahassee, Florida. R. 23, 40-99. Plaintiff testified. R. 23, 50-90. Gail E. Jarrell, an impartial vocational expert, testified during the hearing. R. 23, 91-99, 177-79 (Resume). Plaintiff was represented by Leanne J. Little, a non-attorney representative. R. 23, 128-29. On May 22, 2013, the ALJ entered a decision and denied Plaintiff's application for benefits concluding that Plaintiff was not disabled from May 12, 2011, through the date of her decision. R. 23-34.
On July 26, 2013, Heather Freeman, an attorney, on behalf of Plaintiff, requested review of the ALJ's decision, R. 8-12, and on October 21, 2013, filed a brief, R. 308-10 (Exhibit 21E), and additional evidence, R. 706-791 (Exhibits 23F-28F). On December 18, 2013, the Appeals Council considered the reasons Plaintiff disagreed with the ALJ's decision and the additional evidence, but concluded "that this information does not provide a basis for changing the [ALJ's] decision." R. 1-6. The Appeals Council denied Plaintiff's request for review of the ALJ's decision making the ALJ's decision the final decision of the Commissioner. R. 1-6; see 20 C.F.R. § 404.981.
On February 20, 2014, Plaintiff, by counsel, 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. 16 and 17, which have been considered.
The ALJ made several findings relative to the issues raised in this appeal:
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 (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).
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. 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, such as "[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).
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.
Plaintiff bears the burden of proving that she is disabled, and consequently, is responsible for producing evidence in support of her claim. See 20 C.F.R. § 404.1512(a); Moore, 405 F.3d at 1211.
A May 12, 2006, cardiac catheterization revealed mild, non-obstructive coronary artery disease. R. 342-43. A May 13, 2006, echocardiogram identified normal left ventricular systolic function; left ventricular diastolic dysfunction; right ventricular systolic function; trace mitral regurgitation, and mild pulmonary hypertension. R. 340-41.
On November 9, 2006, Leonard Leichus, M.D., performed a colonoscopy on Plaintiff resulting in two impressions — small hemorrhoidal plexus and colon diverticula. R. 327; see R. 328 (Sept. 8, 2004, colonoscopy with similar impressions); R. 321-322 (Nov. 30, 2006, and Jan. 16, 2007, follow-up visits); R. 330-31 (Nov. 16, 2009, pathology report of specimens from Plaintiff duodenum, gastric mucosa, and esophageal).
On December 1, 2008, Brian Deem, M.D., Plaintiff's primary care provider, completed paperwork requesting an apartment for the handicapped due to Plaintiff's dizziness when reaching over her head. He noted this was "not because of a permanent disability but basically for safety reasons." R. 533; see R. 526-37 (April 21, through Sept. 22, 2009, for follow-up visits with Dr. Deem or another health care provider). On November 3, 2009, Plaintiff was prescribed Lexapro for depression and anxiety, which improved her symptoms. R. 524-25.
On November 16, 2009, Dr. Leichus performed an esophagogastroduodenoscopy with Maloney dilation and a colonoscopy and several impressions are noted including distal esophagitis, distal esophageal ring status post dilation to 54-French, hiatal hernia, gastritis, internal hemorrhoids, and colonic diverticula. R. 325. On December 1, 2009, Plaintiff had a CT of her abdomen with contrast. R. 335. The impression was: "No acute intradominal pathology identified." Id. Plaintiff had follow-up visits with Dr. Leichus in 2009 and 2010. See, e.g., R. 315-19. By August 23, 2010, Dr. Leichus continued Plaintiff on WelChol in order to give her full resolution of her post prandial diarrhea. Plaintiff was also given a prescription for HyoMax be used as needed for abdominal cramping. R. 315.
In April 2010, Plaintiff fell at work and sought treatment with J.T. Brown, M.D., for left knee pain. R. 313-14. On examination, Plaintiff had full range of motion (ROM); mild tenderness to valgus and varus stress; Lachman's test was negative; majority of her tenderness was anterior to her knee just below the patella; and primarily a contusion of the anterior knee. R. 313. Dr. Brown noted he would get an MRI and that Plaintiff should call workers' compensation to find out where the MRI could be done and the cost. Id.
On May 17, 2010, Plaintiff saw Dr. Deem due to continued right shoulder pain. Upon examination, Dr. Deem noted 1+ edema with a little bit of inflammation and pain with range of motion. An injection was provided. R. 518.
On May 20, 2010, Plaintiff returned to Dr. Brown due to continuing left knee pain. R. 311-12. Dr. Brown noted an MRI revealed an MCL (ligament) sprain, but no other acute issues. Id. However, he noted Plaintiff had "some chronic knee issues specifically mild lateral patellar subluxation with some patellar chondromalacia [and] mild semimembranosus bursitis but again no soft tissue tears, just moderate sprain." Id. Plaintiff had fair ROM with her left knee. Id. Physical therapy was prescribed and Dr. Brown opined: "I think she can return back to work with a light duty. I have asked her to send me the Worker's Comp paperwork so I can further delineate her restrictions. Basically I do not want her squatting or bending very frequently. Follow up with me in a month." Id.
On June 11, 2010, Plaintiff reported to her primary care provider difficulty with depression and anxiety, and was prescribed Lexapro. She also reported continuing right shoulder pain. R. 516-17; see R. 31.
A June 16, 2010, right shoulder MRI indicated a small tear involving the distal supraspinatus tendon, possibly full thickness and superimposed on tendinopathy; mild to moderate impingement; and altered bone marrow signal about the AC joint consistent with edema/inflammation. R. 555.
On July 7, 2010, Plaintiff saw Peter Loeb, M.D., and reported about a one-year history of right shoulder pain.
On July 12, 2010, Plaintiff reported to Judy Kleynen, ARNP (with Plaintiff's primary care physician) that the increased Lexapro dosage helped with her anxiety and depression symptoms. R. 516.
On August 19, 2010, Plaintiff returned to Dr. Loeb for an evaluation of her shoulder and arm complaints. R. 410; see supra at n.5. Dr. Loeb noted, "[s]he said the pain in her shoulder `hurts a lot,' although she is clearly having symptoms that are not only in her shoulder but also relative to carpal tunnel." Id. Dr. Loeb noted Plaintiff's dual diagnoses of carpal tunnel according to the EMG studies, and a potential rotator cuff tear in the shoulder. Id.
On August 23, 2010, Dr. Leichus noted that Plaintiff was known to have bile induced diarrhea, with medication providing some improvement of symptoms but not complete resolution. Dr. Leichus noted Plaintiff also had irritable bowel syndrome, and recommended an increase in the WelChol dosage and addition of HyoMax as needed with abdominal cramping. R. 315; see also R. 316-23.
On September 7, 2010, Plaintiff sought emergency treatment for chest pain at Capital Regional Medical Center (CRMC), in Tallahassee, Florida. Impressions included: chest pain, rule out coronary syndrome; hypertension; hypothyroidism secondary to thyroid ablation; cardiac catheterization three years ago; hypothyroidism; hyperlipidemia; seasonal allergy; hypokalemia; and chronic left ankle swelling. A chest x-ray was negative. R. 344-46, 351-56; see R. 350 (VQ scan; impression: low probability for pulmonary arterial embolus). A September 8, 2010, non-exercise stress test was deemed normal with an ejection fraction of 54%. R. 338. Plaintiff was discharged on September 9, 2010, with a provisional diagnosis of status post unstable angina with pending nuclear stress test and hypertension. R. 348.
On September 12, 2010, Plaintiff again sought emergency treatment at Archbold Medical Center (Archbold) in Thomasville, Georgia, for atypical chest pain with nausea and vomiting, which was deemed to be due to anxiety and hypertension.
On September 17, 2010, Plaintiff reported to Dr. Deem for a post-hospital follow-up. R. 513. She reported fatigue, but no chest or abdominal pain. Her pain scale was 3-4/10 just with her osteoarthritis. She was kept off work through Sunday and then to return as light duty with no lifting and no environmental extremes. Id. (This is the first of Dr. Deem's patient notes referred to by the ALJ. R. 29.)
On October 1, 2010, Plaintiff reported to Dr. Deem with fatigue that had been ongoing for the last month. R. 512; see R. 29. Blood tests were ordered. R. 512. On October 7, 2010, Dr. Deem completed an "initial disability claim form" noting that Plaintiff had chest pain and GERD, with symptoms first occurring on September 7, 2010, at the time of a hospital admission. R. 735. He opined that Plaintiff was first disabled in September 2010, but Plaintiff was released to work part time/light duty on September 20, 2010, and released to work on October 11, 2010. R. 736.
On October 13, 2010, Dr. Deem referred Plaintiff to cardiologist Akash Ghai, M.D., from Southern Medical Group, for ongoing chest pain. Further tests were ordered to determine if the pain was cardiac in nature. R. 451-53, 473-75. An October 18, 2010, cardiac CT calcium score report indicated definite, at least moderate atherosclerotic plaque, with highly likely moderate artery disease and possible significant narrowings. R. 447. A November 11, 2010, cardiac CT report indicated an abnormal study; the presence of non-obstructive coronary artery disease; an estimated ejection fraction of 60%; normal left ventricular size and function. R. 444-45, 488-89. A November 24, 2010, Holter monitor study indicated normal sinus rhythm present throughout the recording; occasional isolated atrial premature beats; occasional isolated ventricular premature beats; and no evidence of atrial fibrillation or flutter or of advanced heart block. R. 433, 498. On the same date, a carotid duplex study indicated one to 20% stenosis of both the left and right internal carotid arteries, and less than 50% stenosis of both the left and right external carotid arteries. No significant vertebral artery disease was noted. R. 435. On December 21, 2010, Plaintiff saw Dr. Ghai due to ongoing chest pain with exertion, which would sometimes alleviate with nitroglycerin. Imdur was prescribed due to possible coronary spasm. R. 430-32, 470-72. Dr. Ghai opined that with only mild disease on the CT scan, it was unlikely that her chest pains were due to cardiac disease. Instead, he opined Plaintiff could be experiencing coronary spasm. R. 432.
On December 27, 2010, Plaintiff reported to Dr. Deem with multiple medical problems including having lost some hair, chest pain, and some anxiety issues. Her pain scale was 0/10. R. 511; see R. 29.
On January 13, 2011, Plaintiff saw Dr. Deem due to continuing right shoulder pain. R. 510, 682; see R. 29. Dr. Deem noted Dr. Loeb's comment that Plaintiff needed surgery for a shoulder repair. Plaintiff reported the pain was "getting to the point that she cannot do much of anything with it" and requested another steroid injection. Dr. Deem told her to see Dr. Loeb. Her pain scale was 7/10; she had pain with abduction and pain with palpation to her right shoulder. Vicodin was also prescribed. Id.; see R. 509 (0/10 pain scale-Jan. 27, 2011).
On January 24, 2011, Plaintiff saw Dr. Ghai after experiencing dizziness and chest pain.
On February 15, 2011, Dr. Loeb noted Plaintiff was still having some symptoms around her right shoulder and requested another injection with consideration for surgical treatment in the summer. R. 409. X-rays demonstrated mild subacromial changes and hume-acromial narrowing, with mild changes in the area of greater tuberosity. Upon examination, Dr. Loeb noted rotator cuff symptoms with some breakaway strength. Plaintiff would continue with therapy and an exercise program. Id.
On February 24, 2011, Plaintiff saw Dr. Deem for tailbone pain, resulting in difficulty sitting. Naproxen and Vicodin were prescribed. Her pain scale was 5/10. R. 508, 680. On March 18, 2011, and April 22 and 27, 2011, Plaintiff's pain scale was 0/10. R. 506-07, 677-79.
On April 12, 2011, Plaintiff saw Dr. Ghai due to intermittent episodes of dull chest pain. R. 419-22, 460-63. Plaintiff reported being under a lot of stress at work, resulting in chest pain. Dr. Ghai did not think a stress test, echocardiogram, or a cardiac catheterization were needed. Id. On May 23, 2011, Plaintiff saw Dr. Ghai due to sharp chest pains. R. 415-17, 457-59. Dr. Ghai thought she might be having pericarditis and recommended an echocardiogram to rule out pericardial effusion and chest x-ray to rule out pleural effusion. R. 415.
On May 26, 2011, Plaintiff saw Dr. Deem for low back pain and hypertension. R. 504, 676; see R. 29 (ALJ discussing these patient notes).
On May 27, 2011, Dr. Loeb noted Plaintiff's right shoulder was "clearly not as bad as it was when I saw her in February [2011], but she still has some moderate symptoms." R. 408. She was given an injection and instructed to work on strengthening. Id.
On June 14, 2011, Plaintiff's chest x-ray was a negative study. R. 414, 485. A July 1, 2011, echocardiogram indicated the left ventricle was normal in size and function with an ejection fraction of 60%, but with grade 1 left ventricular diastolic dysfunction, and mild left atrial enlargement. There was mild left arterial enlargement; no significant valvular lesions or pericardial effusion. R. 412-13, 494-95. On July 1, 2011, Plaintiff reported no recent chest pains with Imdur and Dr. Ghai opined that Plaintiff's cardiac pain was likely related to spasm or anxiety. R. 454-55.
On August 3, 2011, Plaintiff saw Dr. Ghai reporting recurrent chest pain, brought on by physical exertion. R. 634. An August 4, 2011, cardiac catheterization indicated normal coronary arteries. R. 631.
On September 7, 2011, Plaintiff was evaluated by Philip J. DuBose, Jr., Psy.D., at the Commissioner's request.
R. 560.
On September 12, 2011, Plaintiff was examined by Wayne Sampson, M.D., at the Commissioner's request.
On October 3, 2011, Plaintiff presented to the emergency room at CRMC complaining of sinus pain. R. 572. A physical examination noted in part that Plaintiff was in no acute distress. R. 573. Plaintiff's extremities exhibited normal ROM; no lower extremity edema; Plaintiff was oriented x3; and had no motor deficit. Id. Her condition was good, prescribed Azithromycin, and she was discharged. Id.
On October 20, 2011, Plaintiff had a follow-up visit with Dr. Deem for consideration of multiple medical problems including hypothyroidism, coronary artery disease, hypertension, anxiety, and depression. R. 585; see R. 29. She had been taking Lexapro but had been off of it for a couple of months. She felt she needed it as she was having trouble "with get up and go and just does not feel like she wants to do things." Id. She was taking Levothyroxine, Lisinopril, Zyrtec, and Flexeril at bedtime. Id. Plaintiff had osteoarthritis "that causes her a problem as well." Id. She had no other issues, including that neurologically, Plaintiff appeared grossly intact. Id. Plaintiff's pain scale was 2-3/10. Id.
On October 25, 2011, Dr. Ghai noted that the cardiac catheterization showed normal coronary arteries, essentially ruling out both spasm and coronary disease. Control of blood pressure was recommended. R. 587-89.
On December 5, 2011, Frank Walker, M.D., a Disability Determination Service medical consultant, completed a RFC. R. 123-26. He determined that Plaintiff was capable of work at the light exertional level. R. 123. He based his opinion, in part, on hospital admissions and other treatment records, including Dr. Deem's May 26, 2011, treatment notes, R. 504. R. 123
On January 9, 2012, Plaintiff had a follow-up visit with Dr. Ghai. Plaintiff's blood pressure was creeping up a little bit and Dr. Ghai suggested she start taking Bystolic. R. 593, 626. Dr. Ghai's assessment was consistent with prior assessments with cardiovascular, extremities, and psychiatric examinations normal. R. 594-95. On February 2, 2012, Dr. Ghai prescribed Clonidine for Plaintiff's hypertension, which he also hoped would help her insomnia. R. 596-97. Plaintiff denied chest pain or shortness of breath or palpitations or dizziness. Physical examination was normal. R. 597, 624. On March 21, 2012, Plaintiff had a follow-up visit with Dr. Ghai and reported her blood pressure under control, but taking a lot of medicines. She liked Clonidine because it made her sleep better. Plaintiff denied any myalgias or arthralgias; feelings of depression. She is taking Lexapro. She denied palpitations or dizziness; she denied weight gain and was trying her best to lose weight. R. 599, 620-22. Her pain scale was 0. R. 600, 621. Plaintiff's depression and hypothyroidism were stable. R. 601, 622.
On May 17, 2012, Dr. Deem noted Plaintiff sought treatment at the hospital several times due to back pain, despite prescriptions of a muscle relaxer and narcotic for pain. Physical therapy was recommended, but Plaintiff could not afford it. Dr. Deem noted Plaintiff also had depression and anxiety. Plaintiff's pain scale was 0/10. Back pain was intermittent and SLR testing was negative. Neurologically, Plaintiff appeared to grossly intact and she had no edema, cyanosis, or clubbing of her extremities. R. 606-08, 673-75; see R. 29-30.
On June 22, 2012, Plaintiff sought emergency treatment for lower extremity pain. An x-ray of the right hip indicated mild degenerative spurring and degenerative changes of the lower lumbar spine. Plaintiff was released with a diagnosis of acute right-sided sciatica. R. 610, 706-09 (Exhibit 23F submitted post-ALJ decision).
On July 19, 2012, Dr. Deem saw Plaintiff as a follow-up for multiple complaints. A history of present illnesses was noted. A review of all systems was negative. R. 602-05, 669-71. He noted Plaintiff had asymptomatic primary hypertension, and noted a new diagnosis of peripheral neuropathy. R. 602. Her pain scale was 0. R. 603. On August 27, 2012, Dr. Ghai noted that Plaintiff reported doing quite well, with no new episodes of chest pain, shortness of breath, or palpitations. R. 613. Her physical results were normal. R. 614-15. Her pain scale was 0. R. 614. Her depression and anxiety were stable on Celexa. R. 615.
On April 4, 2013, Plaintiff had an eye examination that showed Plaintiff was having trouble reading and seeing the television. R. 703; see R. 30. She was assessed with bilateral nuclear sclerosis and bilateral cortical senile cataracts. R. 702. Plaintiff elected to proceed with cataract surgery at that time. Id. Plaintiff testified she underwent surgery on her left eye on April 24, 2013, without complications and was scheduled for surgery on her right eye in May 2013. R. 70.
After the ALJ entered her decision on May 22, 2013, Plaintiff's counsel submitted additional evidence. R. 706-91 (Exhibits 23F-28F). Some of these documents are duplicates of documents that were before the ALJ, others are not. On December 18, 2013, the Appeals Council considered the reasons Plaintiff disagreed with the ALJ's decision and the additional evidence, but concluded "that this information does not provide a basis for changing the [ALJ's] decision." R. 1-6. The Appeals Council denied Plaintiff's request for review of the ALJ's decision making the ALJ's decision the final decision of the Commissioner. R. 1-6.
On September 19, 2012, Plaintiff sought hospital treatment due to chest pain, dizziness, and nausea. A CT of the head indicated no acute intracranial process identified; mild atrophy and microvascular ischemic changes; and minimal chronic sinus disease. The impression of a chest view of Plaintiff was borderline cardiomegaly likely accentuated with no acute cardiopulmonary disease identified. For the most part, her physical examinations were normal. R. 713-33.
On February 27 and May 29, 2013, Dr. Ghai noted Plaintiff's coronary disease was stable. Plaintiff was doing well since her last visit. Her physical examination results were normal. Her mood and affect were appropriate. Her hypertension was worsening due to medication non-compliance. She reported she was compliant with her cholesterol medication. R. 765-68. (On February 27, 2013, Plaintiff's pain scale was 0. R. 766.)
On April 3, 2013, Dr. Deem prescribed cyclobenzaprine for Plaintiff's spinal muscle spasm. Her pain scale was 8. R. 789-91. On May 29, 2013, Plaintiff had a follow-up visit with Dr. Ghai. R. 768. She denied any flare-ups of her angina from the spasm; her blood pressure remained well-controlled as was her cholesterol; she was a little overweight so she was challenged do get her weight down and exercise; she was compliant with her medications; and she denied any myalgias, arthralgias, or ankle edema. Id.
On September 18, 2013, Plaintiff sought treatment for back pain with Dr. Deem. R. 778-81. X-rays indicated osteoarthritis of the cervical and lumbar spine. Her physical examination was generally normal, although inspection/palpation of her joints, bones, and muscles were abnormal such that there was "[p]ain in the paraspinal muscles lumbar spine and cervical spines. SLR neg, neuro intact." R. 780. Her orientation to person, place, and time was normal and her mood and affect were also normal. Her pain scale was 6. Id. Dr. Deem noted that Plaintiff had not been able to go to a pain clinic due to cost. R. 781. Dr. Deem further opined regarding her lower back and neck pain that Plaintiff "should be able to do non-manual labor jobs where she can sit or stand without lifting, pushing, pulling or major exercise. [F]ollow up after pain clinic. Send a note to disability attorney." R. 781.
On July 24, 2011, Plaintiff informed the Commissioner that she experienced pain when bending and walking, and did not stand too long. R. 242, 244, 250. She also reported dizziness, and leg cramps resulted in her only being able to walk short distances. R. 243-44. Plaintiff also reported that she could lift and carry about ten pounds. R. 249, 258. Plaintiff reported that she was "tired all of the time, this interferes because I can't keep up with the children on the playground[.] I noticed that I wasn't as energetic as I had been before I started having chest pains and shortness of breath. I couldn't do it anymore. It took a lot out of me." R. 253. She was able to sit through church. R. 258.
On October 24, 2011, Plaintiff reported that, "it's very painful doing my activities of daily living. I stop and rest during the day to cope." R. 273. On November 1, 2011, Plaintiff reported pain with walking long distances, and tailbone pain if sitting for a long period of time. R. 277. Plaintiff reported receiving help with laundry and shopping, had difficulty performing some chores, and sometimes ate pre-prepared meals when she was in too much pain to cook. R. 278-79.
On September 11, 2013, Mattie Leland, Plaintiff's friend and former coworker provided a statement. R. 777. Ms. Leland noted she worked with Plaintiff from 2005 through 2009, and Plaintiff had difficulty performing her job tasks due to back and shoulder pain. She also noted Plaintiff's frequent absences, and difficulty standing and keeping up with the children. Id.
The ALJ considered portions of Plaintiff's hearing testimony at step two, when determining whether Plaintiff had any severe impairments and discussing the three functional areas. R. 25-27. The ALJ also considered Plaintiff testimony when determining her RFC. R. 28.
R. 28.
Plaintiff argues that the ALJ erred not in giving Dr. Deem's opinion "significant weight," but in not properly interpreting his opinion to reflect that Plaintiff is only capable of performing sedentary work rather than light work. Doc. 16 at 11-14.
Dr. Deem was Plaintiff's primary care and one of her treating physicians. He began his examination and treatment of Plaintiff in and around December 1, 2008. R. 533. Over the course of several years, Plaintiff reported numerous ailments to Dr. Deem including problems with her right shoulder, R. 510, 518, 682, having difficulty with anxiety and depression, R. 511, 516-17, tailbone pain, R. 508, fatigue, R. 512, chest pain, R. 511, low back pain, R. 504, and hypertension, id., which led up to Dr. Deem's May 26, 2011, evaluation. R. 504. It is Dr. Deem's opinion rendered this day that is the center of this controversy, doc. 16 at 11-14, although other issues are raised by Plaintiff and discussed herein. Doc. 16 at 14-17.
By May 26, 2011, Plaintiff had been examined by several physicians for a variety of ailments and Dr. Deem referred to Dr. Ghai in his May 26th patient notes. Dr. Ghai had examined and treated Plaintiff for chest and cardiac-related problems prior to May 26th and for the first time on October 13, 2010, at the request of Dr. Deem. See, e.g., R. 415-17, 419-25, 426-28, 451-53, 457-59, 460-63, 467-69, 473-75; see infra at 29 n.15.
On May 26th, Plaintiff presented to Dr. Deem complaining of back pain. R. 504. Dr. Deem noted:
Id. Plaintiff's reported pain scale was 5/10; she had pain in the paraspinal musculature in her low back; a straight leg raise was negative; and neurologically, she was intact. Id. Dr. Deem's assessment was low back pain and hypertension. Id. His plan provided:
R. 504. (On April 27, 2011, Plaintiff presented to Dr. Deem with a cough and congestion; her pain scale was 0/10. R. 505.)
The ALJ "considered Dr. Deem's acceptable, treating opinion that [Plaintiff's] conditions would not be permanently disabling and that she was capable of a sedentary job with some light work in May 2011." R. 32. The ALJ "considered this assessment only to the extent that it addresses the nature and severity of [Plaintiff's] impairments, and not as it addresses disability or [RFC] under Social Security Administration standards, issues ultimately reserved to the Commissioner per Social Security Ruling [SSR] 96-5p. In that context, significant weight is given to his overall assessment based in its consistency with the overall evidence of record in this case." Id.
The ALJ also gave significant weight to the opinion of state agency, non-examining physician and medical consultant Dr. Walker who opined that Plaintiff could perform light work. R.32; see R. 123-26. Although Plaintiff argues that Dr. Walker did not consider Dr. Deem's May 26th evaluation, doc. 16 at 13, he did. R. 122-23; see supra at 21 n.11.
The ALJ properly declined to accept Dr. Deem's opinion as controlling regarding Plaintiff's RFC that Plaintiff had a limited ability to perform only sedentary work. "[S]ome issues are not medical issues regarding the nature and severity of an individual's impairment(s) but are administrative findings that are dispositive of a case, i.e., that would direct the determination or decision of disability. The following are examples of such issues: . . . 2. What an individual's RFC is." SSR 96-5p, 1996 SSR LEXIS 2, at *5 (July 2, 1996). Social Security Ruling 96-5p provides further guidance regarding the RFC assessments and medical source statements:
1996 SSR LEXIS 2, at *10-11. Additionally, ALJs have been cautioned not to assume that a medical source use of terms such as "sedentary" and "light" are consistent with the Commissioner's regulations.
1996 SSR LEXIS 2, at *13-14. Thus, even if the ALJ had not expressly rejected the RFC portion of Dr. Deem's statement, it would have been within the ALJ's discretion to determine the actual impact. See
The ALJ considered treatment notes from Dr. Deem from September 17, 2010, through May 2012, both before and after Plaintiff's alleged onset of disability of May 12, 2011. R. 29-30, 32. At various times, Dr. Deem noted that Plaintiff had a negative SLR and that she was neurologically intact, see, e.g., R. 504 (May 2011); no problem found with Plaintiff's lower extremities and she was neurologically intact in October 2011, R. 585. By May 17, 2012, Dr. Deem noted that Plaintiff reported her pain level at 0/10; Plaintiff was taking medication for her pain; back pain was intermittent; she had no problems with her extremities; intact neurologically; and had a negative SLR currently. R. 608. The ALJ considered Dr. Deem's notes and gave his "overall assessment" "significant weight" because it was consistent "with the overall evidence of record in this case." Dr. Deem's evaluations of Plaintiff's physical condition, as opposed to his opinion of Plaintiff's limited ability to work (limited to sedentary work), are substantial evidence supporting the ALJ's RFC assessment. R. 30-32.
In addition to Dr. Deem's May 26, 2011, evaluations, the ALJ considered the written evaluation and opinion of examining physician Dr. Sampson. R. 30-31; see R. 562-68. Dr. Sampson examined Plaintiff on September 12, 2011, and found intact reflexes and motor strength with no abnormalities. R. 563. Plaintiff's ROM, gait and tandem walk were normal; she was able to walk on her heels and toes. Sensation was within normal limits. Motor strength was 5/5 throughout, including hand grip. Her hand dexterity was preserved and she had full ROS in her hands and fingers. R. 563, 566. Plaintiff was able to get up from a seated position without difficulty and able to get on and off the exam table without difficulty; had no pain but some tenderness in her back; and had negative SLR testing while in the city and supine positions. She had no tenderness or pain with our ROM with her shoulders. She had left ankle swelling involving lateral malleolus, but no tenderness or pain with ROM. Dr. Sampson diagnosed Plaintiff with dyspnea and fatigue with moderate exertion; history obstructive sleep apnea; morbid obesity; chronic lower back pain; depression/anxiety disorder; and arthropathy of the right shoulder. As noted by the ALJ, "Dr. Sampson offered no assessment of the claimant's functional abilities (11F)." R. 564. Dr. Sampson's findings are additional substantial evidence supporting the ALJ's RFC assessment.
The ALJ also gave significant weight to the opinion of non-examining physician Dr. Walker. In December 2011, and necessarily based on his consideration of Dr. Deem's May 26th treatment notes, R. 123, and other treatment records, R. 123-24, Dr. Walker opined that Plaintiff could perform light work, R. 123-24. The ALJ was allowed to give more weight to Dr. Walker's opinion because it was supported by the record. See 20 C.F.R. § 404.1527(c)(3);
At the hearing, the ALJ questioned the vocational expert about whether someone with the same RFC and vocational profile as Plaintiff could perform her past relevant work. R. 97-98. The vocational expert responded in the affirmative, excluding Plaintiff's past work as a certified nursing assistant. R. 98. Plaintiff argues, however, that the ALJ erred by not including the limitations from Dr. Deem's opinion in the hypothetical question. Doc. 16 at 13-14. The ALJ properly rejected Dr. Deem's statement regarding Plaintiff's ability to perform sedentary work, so there were no credited limitations to include in the RFC assessment. The vocational expert's testimony was substantial evidence supporting the ALJ's step four assessment. See
The burden is on the claimant to prove that she is disabled.
At step two, the ALJ found Plaintiff had several severe impairments. R. 25. Plaintiff argues that the ALJ erred because she did not address Plaintiff's carpal tunnel syndrome symptoms at step two or when she assessed Plaintiff's RFC. Doc. 16 at 14-15.
At step two, it is Plaintiff's burden to produce evidence and prove that she has severe impairments that significantly limit her ability to perform basic work-related activities. See generally
Plaintiff did not allege in her application or at the hearing that carpal tunnel syndrome was part of her disability. See, e.g., R. 44-50, 59-60,100, 135, 142, 232, 242, 269, 273, 277, 280. Plaintiff has not shown her carpal tunnel syndrome was a severe impairment. The ALJ did consider the diagnosis of carpal tunnel syndrome in her RFC finding. R. 29. Dr. Loeb issued this diagnosis on August 19, 2010, which preceded Plaintiff's alleged disability onset date of May 12, 2011. R. 410. Plaintiff returned to work as a "teacher" after the diagnosis, R. 409-10, which is consistent with the ALJ's determination that Plaintiff could continue to perform her past relevant work as a teacher's aide. R. 33.
Plaintiff does not point to evidence showing Dr. Loeb's carpel tunnel diagnosis limited her ability to work. Doc. 16 at 14-15. Dr. Sampson opined in September 2011 that Plaintiff's motor strength was 5/5 throughout, including handgrip, and her hand dexterity was preserved; and she had full ROM in her hands and fingers. R. 563. Dr. Walker also considered Dr. Sampson's findings, R. 124, and concluded that Plaintiff had no manipulative limitations. Id. (Limitations are a crucial factor to consider in determining whether a claimant is disabled. See
Plaintiff argues that the ALJs credibility determination is not supported by substantial evidence. Doc. 16 at 15-17.
In evaluating Plaintiff's RFC, the ALJ considered Plaintiff's statements about her symptoms and the limitations they allegedly caused. R. 27-33. For example, the ALJ noted Plaintiff's description of "her pain as radiating sharp, stabbing chest pain, back and leg cramps, back pain, side pain, coccyx pain, and joint aches" and that her pain "is exacerbated by walking, prolonged standing and sitting, and movement," although "relieved with medication, cortisone shots, physical therapy, and chiropractic treatment. (4E; 6E; 11E; testimony)." R. 28. Plaintiff also "alleged side effects of dizziness, leg cramps, dry mouth, headaches, fatigue, diarrhea, nausea, lightheadedness, and constipation from her medications (4E; 6E; 9E; 11E; 15E; 19E; 8F; testimony)." Id. Further, the ALJ noted from Plaintiff's testimony that she "is able to walk for about 10 minutes at once; stand in one place for 5 to 10 minutes at once; and sit for 5 to 10 minutes at once. It was noted, however, that the claimant was able to sit through the entire hearing without getting up even once. The claimant also testified that she experiences difficulty reaching overhead." R. 28; see R. 53, 56, 68, 73, 85-87 (Plaintiff's hearing testimony). The ALJ found Plaintiff's statements were "not entirely credible." R. 28. After summarizing the medical evidence, the ALJ also noted that Plaintiff
R. 33.
Pain is subjectively experienced by the claimant, but that does not mean that only a mental health professional may express an opinion as to the effects of pain. To establish a disability based on testimony of pain and other symptoms, the claimant must satisfy two parts of a three-part test showing: (1) evidence of an underlying medical condition; and (2) either (a) objective medical evidence confirming the severity of the alleged pain; or (b) that the objectively determined medical condition can reasonably be expected to give rise to the claimed pain.
To analyze a claimant's subjective complaints, the ALJ considers the entire record, including the medical records; third-party and a claimant's statements; the claimant's daily activities; the duration, frequency, intensity of pain or other subjective complaint; the dosage, effectiveness, and side effects of medication; precipitating or aggravating factors; and functional restrictions. See 20 C.F.R §§ 404.1529 (explaining how symptoms and pain are evaluated); 404.1545(e) (regarding RFC, total limiting effects). The Eleventh Circuit has stated that "credibility determinations are the province of the ALJ."
Plaintiff questions the ALJ's reliance on Plaintiff's testimony that she could only sit for 5 to 10 minutes, but managed to sit through the entire hearing. Doc. 16 at 16; R. 28 (presumably referring to R. 86-87). During the hearing, the ALJ noted that "[y]ou've been in here . . . almost an hour" and Plaintiff informed the ALJ that her lower back and coccyx (tail) bone were hurting. R. 87. Plaintiff refers to the ALJ's reliance on this questioning as "sit and squirm jurisprudence," which "has been long condemned by the Eleventh Circuit," citing
In
The ALJ found the objective evidence did not support the severity of symptoms Plaintiff allegedly experienced, R. 28-32, which the ALJ is allowed to consider. 20 C.F.R § 404.1529(c)(2). Plaintiff argues that at the time of her alleged onset date, her "primary limitations were standing and walking" such that "she was able to sit through church, but her sitting limitation increased as her back pain increased over time. (R. 242-44, 250, 258)." Doc. 16 at 16. Plaintiff notes that by November 2011, she "reported pain with walking long distances, and tailbone pain if sitting for a long period of time" and that she "received help with laundry and shopping, had difficulty performing some chores, and sometimes ate pre-prepared meals when she was in too much pain to cook." Doc. 16 at 16 (citing R. 277-79).
As noted by the ALJ, imaging of Plaintiff's ankle, lower spine, and hip showed only mild degenerative changes. R. 28. A September 2010 x-ray of the left ankle showed "minimal calcaneal spurring" with "[n]o acute findings." R. 551. In June 2012, imaging of the right hip showed "mild degenerative spurring" of the lumbar spine with no acute bony abnormality of the hip. R. 610, 706-09. In September 2011, Dr. Sampson found intact reflexes and motor strength with no abnormalities in the extremities. R. 563. Plaintiff had normal tandem walk and could heel and toe walk. Id. Plaintiff was able to get up from a seated position without difficulty and able to get on and off the exam table without difficulty. Her neck had no tenderness or spasms. She had no back pain with flexion or extension, with some paraspinal tenderness. She had no tenderness or pain with ROM with her shoulders. She had left ankle swelling involving lateral malleolus, but no tenderness or pain with ROM. Plaintiff had a negative SLR while in the sitting and supine positions. R. 564. These rather mild findings and the mild imaging findings of Plaintiff's ankle, spine, and hip, do not support the extent of pain and other symptoms Plaintiff alleged experiencing while standing and walking.
The ALJ also considered Plaintiff's right shoulder impairment. R. 28-29. An MRI of the right shoulder in June 2010 showed mild to moderate impingement. R. 555. In August 2010, Dr. Loeb noted a potential rotator cuff tear. R. 410. By May 2011, Dr. Loeb stated Plaintiff's right shoulder impairment was "clearly not as bad" as in February 2011, but that she still had "some moderate symptoms." R. 408. Dr. Loeb noted Plaintiff "has done well" with her right shoulder impairment, which required only "general management and treatment" such as an exercise routine and strengthening. R. 408. The ALJ limited Plaintiff to only occasional overhead reaching with the right arm and no overhead lifting of more than 5 pounds with the right upper extremity. R. 27.
The ALJ also found that Plaintiff's medical history was relatively stable with mostly routine treatment. R. 33; see 20 C.F.R § 404.1529(c)(3)(v). Plaintiff argues that "stable does not mean not disabled," referring to Dr. Deem's statement about her RFC. Doc. 16 at 17. On May 26, 2011, Dr. Deem opined that Plaintiff was not disabled. R. 504. He opined that Plaintiff was stable in that she had reached maximum medical improvement, moderate limitation of functional capacity, and capable of "a sedentary job with a little bit of light work" that "would not be a problem for her." Id. The ALJ considered Plaintiff's assertion that [h]er pain is exacerbated by walking, prolonged standing and siting, and movement." R. 28. As of May 26, 2011, Plaintiff reported to Dr. Deem that her pain scale of 5/10, but her pain scale was 0/10 on March 18, 2011, and April 22 and 27, 2011. R. 505-07. Her reported pain scale to Dr. Deem was 2-3/10 on October 20, 2011, R. 585; 0/10 on May 17, 2012, R. 606-08, 673-75; and 0 on July 19, 2012, R. 603, 670; see supra at 29 n.15.
The Commissioner is charged with the duty to weigh the evidence, resolve material conflicts in the testimony, and to determine the case accordingly. Wheeler, 784 F.2d at 1075. Even if the Court disagrees with the ALJ's resolution of the factual issues and would resolve these issues differently, the ALJ's decision must be affirmed where it is supported by substantial evidence. In this case, substantial evidence supports the ALJ's finding the Plaintiff's statements about her symptoms were not entirely credible.
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 application for Social Security benefits be
R. 32; see R. 29 (ALJ discussing Dr. Deem's May 27 [26], 2011, patient notes, R. 504); see also R. 123 (Dr. Walker referring to Dr. Deem's May 26, 2011, evaluation).
