KIMBERLY A. JOLSON, Magistrate Judge.
Plaintiff Sylvia Ison filed this action under 42 U.S.C. §§ 405(g) seeking review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying her application for disability insurance benefits. For the reasons that follow, it is
Plaintiff filed her application for benefits on November 20, 2012, and her application for supplemental security income on November 22, 2012, alleging that he has been disabled since October 10, 2008. (Doc. 10, Tr. 61-84, 198-210). On May 15, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Id., Tr. 12). On April 8, 2016, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (Id., Tr. 1).
Plaintiff filed this case on May 27, 2016, and the Commissioner filed the administrative record on August 5, 2016. (Doc. 10). Plaintiff filed a Statement of Specific Errors on September 13, 2016 (Doc. 13), and the Commissioner responded on October 25, 2016 (Doc. 12).
Plaintiff was born on March 2, 1983, and was 31 years old on the date of the hearing. (Doc. 10, Tr. 39). Plaintiff has a high school education and has past relevant work as a cashier, assistant retail manager, a sales clerk, and a packager. (Id., Tr. 24).
According to the medical records in this case, Plaintiff has a number of neurological ailments and symptoms, including, inter alia, Chiari I malformation, chronic headaches, dizziness, and vertigo. The onset date of these various issues is somewhat unclear, but it appears that Plaintiff's chronic headaches began around 2008 (see, e.g., id., Tr. 279), while her dizziness and vertigo began in 2012 (see, e.g., id. Tr. 280). Plaintiff has undergone a number of neurological tests. An MRI of Plaintiff's brain performed on July 9, 2012, was "[n]ormal except for a 5-6 mm with low lying cerebellar tonsil without nodular modeling." (Doc. 10, Tr. 256). A brain with a 2D cine phased contrast CSF flow study performed on October 29, 2012, was likewise normal as was an MRI on that same date. (Id., Tr. 283). MRIs of the claimant's cervical spine and thoracic spine revealed no evidence of cord signal abnormality. (Id., Tr. 514). A neurovestibular test performed on October 13, 2012, was abnormal because of rightward beating nystagmus during upward gaze without fixation rightward tilt of subjective visual vertical at baseline with no response to eccentric vertical axis rotational testing of the right ear. These findings suggest incomplete compensation from a right utricular otolith loss, which might be causing Plaintiff's episodes of dizziness. (Id., Tr. 287-88). A brain MRI performed on September 30, 2014, revealed that Plaintiff's low lining cerebellar tonsils and borderline Chiari I malformation was "unchanged in appearance." (Id., Tr. 545).
Despite these (and other) tests, Plaintiff's medical providers are not completely sure as to the cause of her symptoms. On October 16, 2012, records from the James Skull Base Surgery Clinic reported a diagnosis of Chiari malformation and extrinsic symptomology. (See, e.g., id., Tr. 292). On January 15, 2013, however, medical professionals at the Ohio State University indicated that Plaintiff was asymptomatic and that her reported dizziness was most likely due to migraines. (Id., Tr. 279). Other records suggest the claimant's low Body Mass Index ("BMI") and other abdominal problems may be contributing to her headaches. (See, e.g., id., Tr. 348; see also id., Tr. 361 (encouraging Plaintiff to "cut down on headache medicine")).
As for treatment, Plaintiff has received injections but discontinued use after she lost her sense of taste for a week. (Id., Tr. 279). More recently, she has received Botox injections. (Id., Tr. 352). Plaintiff also had nerve blocks with some success at least as to neck pain. (See, e.g., id., Tr. 352 ("[l]ast block was very effective in reduction of neck pain for 7 days")). Plaintiff additionally treats her migraines with medication. (See id., Tr. 279 (noting "medication-overuse headache")). At the time of the hearing, Plaintiff had not undergone surgery, however on April 20, 2015, Plaintiff's counsel submitted a letter indicating that the claimant will have surgery in the "near future." (Id., Tr. 239).
To further investigate the cause of Plaintiff's vertigo and dizziness, her medical providers referred her for an otologic exam. The results of the exam were normal. (Id., Tr. 282-83).
It is undisputed that Plaintiff is very thin (see, e.g., id., Tr. 411), and has a low BMI (see, e.g., id., Tr. 279). For example, on January 15, 2013, she weighed 97 pounds and had a BMI of 16.64. (Id.). However, tests for malabsorption have been negative, and recent records show an ability to gain weight (see, e.g., id., Tr. 368-69; see also id., Tr. 363). In addition, some doctors have attributed Plaintiff's weight to undernourishment. (See, e.g., id., Tr. 405).
Plaintiff testified that she has suffered from headaches since childhood, with a worsening of symptoms in 2008. (Id., Tr. 44). Her headaches make her nauseous, and she also experiences numbness, leg and back pain, and loss of appetite. (Id., Tr. 52). She testified that she suffers from daily headaches in the back of her head, with symptoms in the front of her head that come and go throughout the day. On a scale of one to ten, she rated her pain severity at a seven. (Id., Tr. 45). She testified that her headaches require her to lie down 2-3 times a day for 1-2 hours. (Id., Tr. 51, 53). She described her vertigo as causing imbalance, problems with gait, blurry vision, dizziness, and lightheadedness. (Id., Tr. 37, 40, 43, 46, 49-50,). Claimant also had trouble gaining weight and had experienced extreme weight loss; as of the hearing date, she weighed only approximately 98 pounds. (Id., Tr. 52-53, 282, 339, 343, 403).
A vocational expert ("VE") also testified. (Id., Tr. 55-59). The ALJ asked if a hypothetical individual with Plaintiff's:
(Id., Tr. 56). The VE answered affirmatively. (Id.) The ALJ changed the hypothetical question by adding a restriction of being off-task ten percent of the time due to headaches and dizziness. (Id., Tr. 57). The VE answered that such an individual would not be able to maintain employment. (Id., Tr. 57-58). Plaintiff's counsel then asked the VE if employment would be maintained if this hypothetical individual missed two days of work per month. (Id., Tr. 58). The VE stated that only one day of absenteeism per month would be tolerated. (Id.).
Under 42 U.S.C. § 405(g), "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." "[S]ubstantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner's findings of fact must also be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must "take into account whatever in the record fairly detracts from [the] weight" of the Commissioner's decision. Rhodes v. Comm'r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
Plaintiff has assigned three errors. (See generally Doc. 12).
Plaintiff challenges the ALJ's analysis at step three. The third step of the disability evaluation process asks the ALJ to compare the claimant's impairments with an enumerated list of medical conditions found in the Listing of Impairments within 20 C.F.R. Part 404, Subpart P, Appendix 1. See 20 C.F.R. § 416.920(a)(4)(iii); Turner v. Comm'r of Soc. Sec., 381 F. App'x 488, 491 (6th Cir. 2010). The Listing of Impairments recites a number of ailments which the Social Security Administration has deemed "severe enough to prevent an individual from doing any gainful activity, regardless of his or her age, education, or work experience." 20 C.F.R. § 416.925(a). Each listing describes "the objective medical and other findings needed to satisfy the criteria of that listing." 20 C.F.R. § 416.925(c)(3). A claimant has the burden at step three of showing that her impairment meets or medically equals a listing. See Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). Here, Plaintiff argues that the ALJ erred with respect to three different listings.
At the hearing before the ALJ, Plaintiff's counsel argued that Plaintiff's headaches satisfied Listing 11.02. Now, before this Court, Plaintiff argues that her headaches meet or equal Listing 11.03. (Doc. 11 at 5). While Listing 11.03 recently was amended (see Doc. 12 at 3 n.2), at all times relevant to Plaintiff's claims, the Listing stated:
20 C.F.R. Pt. 404, Subpt. P, App. 1 § 11.03.
Plaintiff argues that, although she does not suffer from seizures, her migraines "result in many of the same associated phenomena of epileptic seizures." (Doc. 11 at 5). Assuming arguendo that Plaintiff has a seizure disorder that satisfies the Listing, she still must show that she suffered from the symptoms contemplated by Listing 11.03. In particular, she must have "alteration of awareness or loss of consciousness" or "unconventional behavior or significant interference with activities during the day."
The ALJ considered Plaintiff's headaches in the context of Listing 11.00 with a particular emphasis on 11.02 because Plaintiff's counsel argued at the hearing that Plaintiff's chiari malformation and headaches satisfied that Listing. (See id., Tr. 38). On this point, the ALJ concluded:
(Id., Tr. 18).
The ALJ's analysis was sufficient and finds support in the record. Specifically, the ALJ noted the lack of medical records supporting Plaintiff's assertion, and the ALJ properly relied upon the state agency reviewers' opinions. (Id., Tr. 23). Further, the ALJ found Plaintiff's description of her own limitations "not entirely credible." (Id., Tr. 20). That was within the ALJ's discretion. See infra. Finally, no medical professional opined that Plaintiff satisfies Listing 11.03. Considering all of this, substantial evidence supports the ALJ's decision. See White v. Comm'r of Soc. Sec., No. 2:13-cv-934, 2015 U.S. Dist. LEXIS 32012, at *46 (S.D. Ohio Mar. 16, 2015) (affirming Commissioner's denial of benefits where no "medical expert opined that [claimant] met or medically equaled in severity Listing 11.03").
Plaintiff additionally argues that the ALJ or Appeals Council should have sought more information pursuant to SSR 96-6p in order to have further analysis by a medical expert to determine whether Plaintiff's headaches medically equal Listing 11.03. (Doc. 11 at 6). Under SSR 96-6p, an updated medical opinion is required:
1996 SSR LEXIS 3, at *9-10. Plaintiff does not inform the Court that additional evidence was received, so the Court assumes that Plaintiff contends that the ALJ should have sua sponte requested an additional medical opinion. "[An] ALJ has discretion to determine whether additional evidence is necessary." See Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 275 (6th Cir. 2010); see also Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 156 n.3 (6th Cir. 2009) ("[A]n ALJ is required to [supplement the record] only when the information received is inadequate to reach a determination on claimant's disability status. . . ."). Here, considering the record as a whole, the undersigned concludes that the ALJ did not abuse his discretion.
Plaintiff next argues that the ALJ erred when he found that Plaintiff's vertigo or balance problems did not meet or equal Listing 2.07. Listing 2.07 is a disturbance of labyrinthinevestibular function "characterized by a history of frequent attacks of balance disturbance, tinnitus, and progressive loss of hearing. With both A and B: A. Disturbed function of vestibular labyrinth demonstrated by caloric or other vestibular tests; and B. Hearing loss established by audiometry." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 2.07. (emphasis added).
In his opinion, the ALJ noted Plaintiff had some abnormalities in her neurovestibular testing report; however, there is "no record that the claimant has hearing loss established by audiometry," which is a requirement under listing 2.07. (Id., Tr. 18). Plaintiff does not offer any evidence to dispute the ALJ's determination. Consequently, the undersigned concludes that the ALJ reasonably applied Listing 2.07 and properly concluded that Plaintiff did not meet or medically equal the Listing.
As to this Listing, Plaintiff again claims that the ALJ or Appeals Council should have obtained an updated medical opinion. The undersigned disagrees and concludes that the ALJ did not abuse his discretion on this point. See Ferguson, 628 F.3d at 275; see also Poe, 342 F. App'x at 156 n.3 ("[A]n ALJ is required to [supplement the record] only when the information received is inadequate to reach a determination on claimant's disability status . . . .").
Plaintiff also challenges the ALJ's consideration of Listing 5.08. Listing 5.08 states, "
Plaintiff next argues that the ALJ did not account fully for the limiting effects of her headaches. (See Doc. 11 at 8). The undersigned disagrees.
The ALJ considered Plaintiff's impairment of chronic headaches, determined it was a severe impairment, and analyzed the evidence relating to this impairment throughout his decision. (See, e.g., id., Tr. 18-24). Specifically, the ALJ considered Plaintiff's testimony that her headaches had worsened since 2008 and that she was mostly unable to work due to her headaches. (Id., Tr. 20). The ALJ also considered the objective evidence in the record, including MRIs of Plaintiff's brain and spine, treatment notes from the James Skull Base Surgery Clinic and Ohio State University, and medical notes regarding Plaintiff's headache symptoms and treatments, including injections and medication. (Id., Tr. 20-21).
The ALJ also properly considered the medical opinions in the record, including those from Plaintiff's treating neurologists, Dr. Prevedello and Dr. Hussein, and from the state agency reviewing physicians. (Id., Tr. 23). Dr. Prevedello ordered MRIs of Plaintiff's brain and spine as well as a CSF study. Despite revealing a chiari malformation, these tests revealed otherwise mostly unremarkable findings. (Id., Tr. 23, (relying on id., Tr. 542-43)). Dr. Prevedello's physical exams likewise revealed mostly normal findings, and he noted that Plaintiff did not have depression or memory loss. (Id., Tr. 23 (relying on 545-46)). In addition, Dr. Hussein's treatment notes show mostly normal physical findings, and although he noted that some treatments for Plaintiff's migraines had not been successful, her last injection was very effective for her neck pain. (Id., Tr. 23, (relying on id., Tr. 358-60)). There is nothing in either of these providers' treatment notes that suggested that Plaintiff would miss more than two days of work per month due to her impairments, or that her headaches created severe enough functional limitations that she was not capable of work. Moreover, the state agency reviewing physicians, who reviewed the record in 2013, noted that Plaintiff was capable of a range of light work. (Id., Tr. 68-70, 80-82, 92-94, 104-06). In coming to this conclusion, the reviewers considered Plaintiff's history of chronic headaches, her allegations regarding her limitations, and treatment notes from Plaintiff's neurologists. (Id., Tr. 63-67, 75-80, 86-92, 98-104). (Id., Tr. 68-70, 80-82, 92-94, 104-06). See 20 C.F.R. § 404.1527(e)(2)(i) (State agency consultants are "highly qualified physicians and psychologists who are also experts in Social Security disability evaluation.").
On the other side of the equation, Plaintiff has not offered evidence to show that her headache impairment, or any other impairment, would prevent her from working. Plaintiff has the burden of proving she is disabled and for showing how her impairment affects her functioning. See 20 C.F.R. § 404.1512(a); see also Foster v. Bowen, 853 F.2d 483, 489 (6th Cir. 1988).
In sum, the ALJ reasonably considered the evidence in the record regarding Plaintiff's headaches and their functional impact (id., Tr. 18-24), and the undersigned concludes that substantial evidence supports the ALJ's RFC determination. See Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) ("This Court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record."). And, for the same reasons, Plaintiff's cursory argument regarding the hypothetical questions posed to the VE (see Doc. 8) is without merit.
An ALJ's credibility determination is afforded great weight and deference. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)). However, credibility determinations must be clearly explained, see Auer v. Sec'y of Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987), and must enjoy substantial support in the record, see Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). Here, the ALJ found Plaintiff "not entirely credible" regarding "the intensity, persistence and limiting effects of [her] [impairment-related] symptoms." (Doc. 10, Tr. 20). Plaintiff counters that the ALJ failed to consider the entire case, as SSR 16-3p requires, when assessing credibility. (Doc. 11 at 9). The undersigned disagrees for three primary reasons.
First, the ALJ considered that, despite Plaintiff's complaints of numbness, her sensation was intact at various medical appointments and, although Plaintiff testified that she had memory problems, her neurologist noted that Plaintiff did not have this symptom. (Doc. 10, Tr. 21, 23 (relying on id., Tr. 295, 331, 402, 409, 433, 439, 448, 452, 456, 461, 516, 522, 545, 550)). "One strong indication of the credibility of an individual's statements is [her] consistency, both internally and with other information in the case record." See SSR 96-7p; see also Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997) ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among the medical reports, claimant's testimony, and other evidence."). The ALJ did not err in finding Plaintiff's testimony partially inconsistent with the medial records.
Second, while medical professionals generally cannot directly observe headaches, the ALJ did not err in considering that Plaintiff was not in acute distress during her many appointments with medical providers; that her gait was normal despite her complaints of dizzy spells; and that she had normal coordination, reflexes, and fine motor functioning. (Doc. 10, Tr. 20-23 (citing id., Tr. 248, 259, 282-83, 302, 315, 359, 402-03, 408-09, 425, 463-77, 486, 516, 523, 542, 545, 550)). Put simply, the ALJ was within his discretion in determining that these medical findings undermined Plaintiff's own description of the disabling effects of her headaches.
Third, the ALJ properly considered Plaintiff's activities of daily living. In particular, he noted:
(Id., Tr. 22). Consideration of Plaintiff's daily activities was proper. See SSR 96-7p (instructing that an ALJ may consider statements about a claimant's daily activities while assessing credibility); Blacha v. Sec'y of HHS, 927 F.3d 228, 231 (6th Cir. 1990) (holding that the ALJ may consider a claimant's household and social activities when assessing credibility).
In sum, the ALJ's analysis of Plaintiff's credibility was proper, and the undersigned defers to the ALJ's ultimate determination on this issue. See Jones, 336 F.3d at 476 (deferring to ALJ's credibility determination).
For the foregoing reasons, it is
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
IT IS SO ORDERED.
