THOMAS M. ROSE, District Judge.
John Mixon ("Mixon") brought this action pursuant to 42 U.S.C. § 405(g) for judicial review of the decision of the Defendant Commissioner of Social Security (the "Commissioner") that he is not disabled and, therefore, not entitled to Social Security disability benefits. On August 1, 2013, United States Magistrate Judge Michael J. Newman entered a Report and Recommendations (doc. # 12) recommending that the Commissioner's decision that Mixon was not disabled be affirmed. Mixon subsequently filed Objections. (Doc. # 13.) The time has run and the Commissioner has not responded to Mixon's Objections. This matter is, therefore, ripe for decision.
Mixon sought financial assistance from the Social Security Administration this second time by applying for Disability Insurance Benefits and Supplemental Security Income in January of 2008. Mixon claimed that he had been disabled since January 1, 2005, due to a "bad back," carpal tunnel syndrome, arthritis, a "bad heart," Dupuytren's contracture of his left hand, bone fragments in his right ankle, a broken left arm below the shoulder joint, fractured shoulder bones and triple bypass surgery.
The Commissioner denied Mixon's application initially and on reconsideration. Administrative Law Judge ("ALJ") Thomas
As required by 28 U.S.C. § 636(b) and Federal Rules of Civil Procedure Rule 72(b), the District Judge has made a de novo review of the record in this case. Based upon the reasoning and citations of authority set forth in the Magistrate Judge's Report and Recommendations (doc. # 12) and in Mixon's Objections (doc. # 13), as well as upon a thorough de novo review of this Court's file and a thorough review of the applicable law, this Court adopts the aforesaid Report and Recommendations in its entirety and, in so doing affirms the Commissioner's decision that Mixon was not disabled.
This Court's function is to determine whether the record as a whole contains substantial evidence to support the ALJ's decision. Bowen v. Commissioner of Social Security, 478 F.3d 742, 745-46 (6th Cir.2007). This Court must also determine whether the ALJ applied the correct legal criteria. Id.
Regarding the substantial evidence requirement, the ALJ's findings must be affirmed if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citing Consolidated Edison Company v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Landsaw v. Secretary of Health and Human Services, 803 F.2d 211, 213 (6th Cir.1986). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson, supra, at 401, 91 S.Ct. 1420; Ellis v. Schweicker, 739 F.2d 245, 248 (6th Cir.1984). Substantial evidence is more than a mere scintilla, but only so much as would be required to prevent a directed verdict (now judgment as a matter of law) against the ALJ/Commissioner if this case were being tried to a jury. Foster v. Bowen, 853 F.2d 483, 486 (6th Cir.1988); NLRB v. Columbian Enameling and Stamping Company, 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939).
The second judicial inquiry — reviewing the ALJ's legal criteria — may result in reversal even if the record contains substantial evidence supporting the ALJ's factual findings. See Bowen, 478 F.3d at 746. A reversal based on the ALJ's legal criteria may occur, for example, when the ALJ has failed to follow the Commissioner's "own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746 (citing in part Wilson v. Commissioner of Social Security, 378 F.3d 541, 546-47 (6th Cir. 2004)).
In this case, the ALJ applied the correct legal criteria and the record as a whole contains substantial evidence to support the ALJ's decision. WHEREFORE, Mixon's Objections to the Magistrate Judge's Report and Recommendations are OVERRULED, and this Court adopts the Report and Recommendations of the United States Magistrate Judge in its entirety. The Commissioner's decision that Mixon was not disabled is affirmed. Finally, the
MICHAEL J. NEWMAN, United States Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB"). This case is before the Court upon Plaintiff's Statement of Specific Errors (doc. 8), the Commissioner's Memorandum in Opposition (doc. 10), Plaintiffs Reply (doc. 11), the administrative record
This case involves Plaintiff's second application for disability benefits. Plaintiff initially filed for DIB in February 2003, alleging a disability onset date of September 1, 2000. PagelD 121. After initial denials of his application, Plaintiff received a hearing before ALJ George Spidel. PagelD 128. In a written decision issued on November 2, 2004, ALJ Spidel found Plaintiff not "disabled," see PageID 121-28, on the basis that Plaintiff retained the residual functional capacity ("RFC") to perform light work
PagelD 127. There is no evidence that Plaintiff appealed ALJ Spidel's decision.
On January 10, 2008, Plaintiff filed a new application for DIB,
PageID 64-72.
Thereafter, the Appeals Council denied Plaintiff's request for review, making ALJ McNichols' non-disability finding the final administrative decision of the Commissioner. PagelD 53-57. See Casey v. Sec'y of H.H.S., 987 F.2d 1230, 1233 (6th Cir.1993). Plaintiff then filed this timely appeal on August 21, 2012. Doc. 2.
At the administrative hearing before ALJ McNichols, Plaintiff testified that he was 56 years old, stood 5'6" tall, and weighed 205 pounds. PagelD 84. He stated that he lives with his wife, has a driver's license, and drives once or twice per week. PagelD 85-86. He testified that he does not drive more frequently due to the side effects from his pain medication. Id. He stated that he stopped working in September 2002 when his union went on strike, and his employer replaced the entire workforce. PagelD 87. He has not attempted to work since then. Id.
Plaintiff further testified that, he has a heart condition, and experiences chest pains as well as shortness of breath "off and on" throughout the week. PageID 87-88. He takes nitroglycerin and a number of other medications for his heart condition. PagelD 88. Plaintiff also testified to experiencing constant arthritic pain in his back and hands. PagelD 89, 94.
Plaintiff testified that on a typical day, he is able to use his hands "most of the time." PagelD 89. He acknowledged that he can typically use his hands to button and zip his clothing. PageID 90. Plaintiff also testified that his fingers lock in place at times, and he must bend them manually. Id. Plaintiff stated that he has mashed his thumbs "so many times that they don't work real well." Id. He also reported that he has carpal tunnel syndrome. Id. He has trouble picking up glasses and cups of coffee. PagelD 105.
Plaintiff testified that he had back surgeries in 1983 and 1992. PagelD 90. He rated his pain at a four or five (out of ten), but stated that it reaches an eight or nine on bad days, which occurs three or four days a week. PagelD 94, 100, 105. Plaintiff stated that he is most comfortable laying in his recliner with his feet up. PagelD 95.
Plaintiff estimated that can walk 50 or 75 yards before stopping to relieve his pain. PagelD 95. He estimated that he can stand for 15 to 20 minutes at a time, and he can sit for approximately 20 minutes at a time. PagelD 96. He stated that he can lift 10-20 pounds on a good day, and acknowledged doing so causes pain. Id. He also stated that, on a bad day, lifting 10 pounds may be difficult, as he "can't carry a cube of Pepsi anymore." PagelD 96-97, 102.
Regarding his ability to perform household chores, Plaintiff testified that he occasionally washes dishes, vacuums, and gardens, but is unable to mow the lawn. PagelD 97-98. He visits his mother and sister in Fairborn two or three times per week. PagelD 101.
In addition to Plaintiff, a Vocational Expert ("VE"), Charlotta Ewers, testified at the administrative hearing. PagelD 106-11. The VE classified Plaintiff's past work as a general operator at the heavy, semiskilled level. PagelD 107.
ALJ McNichols proposed a series of hypotheticals regarding Plaintiff's RFC to the VE. PagelD 108-10. Based on Plaintiff's age, education, work experience, and RFC, the VE testified that Plaintiff could not perform his past work, but could nevertheless perform, in the regional economy, 6,000 jobs at the light exertional level, and 3,800 jobs at the sedentary exertional level. Id. The VE additionally testified that all jobs at the light level would be eliminated if an individual was limited to lifting 10 pounds, with an alternate stand/ sit opportunity, where the individual would not be able to stand more than three hours out of the eight-hour workday. PageID 111.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir.1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir.2001). Thus, the ALJ has a "`zone of choice' within which he can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir.2009). "[A] decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
To be eligible for DIB, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.2007), the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D.Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is "disabled" under the Social Security Act's definition. Key v. Callahan, 109 F.3d 270, 274 (6th Cir.1997).
On appeal, Plaintiff argues that ALJ McNichols improperly applied Drummond v. Comm'r of Soc. Sec., 126 F.3d 837 (6th Cir.1997), and failed to adequately weigh the opinion of treating physician Harry Fronista, M.D. Doc. 8 at PagelD 482-89. Plaintiff also argues that ALJ McNichols improperly evaluated his pain and credibility. Id. at PagelD 489-90.
Plaintiff argues that, in light of the record demonstrating a worsening of his medical impairments between November 3, 2004 (the day after ALJ Spidel's November 2, 2004 decision) and March 31, 2006 (the date of his last insured status), ALJ McNichols committed reversible error under Drummond by adopting essentially the same RFC as ALJ Spidel. Id. Plaintiff's argues that ALJ McNichols should have found an even more restrictive RFC — i.e., a limitation to sedentary work, which would have yielded a finding of disability pursuant to the Medical-Vocational Guidelines (the "Grids"). Id.
"Social Security claimants are bound by the principles of res judicata." Drummond, 126 F.3d at 841. In Drummond, the Sixth Circuit held that the Commissioner is bound by a prior ALJ's findings with regard to a claimant's disability application unless new evidence or changed circumstances require a different finding. Id. at 842; AR 98-4(6), 1998 SSR LEXIS 5, at *9, 1998 WL 283902, at *2-3. Moreover, Social Security Acquiescence Ruling 98-4(6), issued by the Commissioner following the Sixth Circuit's ruling in Drummond, mandates that:
It is the claimant's burden to present evidence showing that his or her symptoms have changed since the time of the Commissioner's prior determination obviating the application of the ruling in Drummond. See Casey, 987 F.2d at 1232-33. The Sixth Circuit has held that "when a plaintiff previously has been adjudicated not disabled, [he or] she must show that [his or] her condition so worsened in comparison to [his or] her earlier condition that [he or] she was unable to perform substantial gainful activity." Id. at 1232 (emphasis added). See also McCracken v. Comm'r of Soc. Sec., No. 1:08-CV-327, 2009 WL 2983049, at *10 (S.D.Ohio Sept. 14, 2009) ("new and material evidence must document a significant change in the claimant's condition") (emphasis in original).
As applied here, the record supports ALJ McNichols' RFC determination. Even though Plaintiff underwent a triplebypass operation in January 2006, there is an appreciable amount of evidence in the record supporting ALJ McNichols' finding that the "[RFC] for the reduced range of light work set forth above takes into account the location, duration, frequency, and intensity of the claimant's alleged symptoms, as well as precipitating and aggravating factors through the date of last insured of March 31, 2006." PagelD 69.
ALJ McNichols noted that Plaintiff "received only conservative care for his alleged impairments following his surgery, and treatment notes from his cardiologist [George Broderick, M.D.] demonstrate that he did extremely well for a long period after surgery." Id. Indeed, the treatment notes of Dr. Broderick in 2005 — approximately six months prior to the surgery — document Plaintiff's "vague angina but only with maximal exertion," as well as occasional shortness of breath and chest pain. PagelD 337-38, 340. Most telling, however, are Dr. Broderick's treatment notes from the months following the bypass surgery.
For instance, on February 14, 2006, Dr. Broderick noted, "[Plaintiff] denies any episodes of lightheadedness, chest pain, or shortness of breath.... He denies fever. He does not wish to participate in cardiac rehab. He has been walking slowly on his treadmill at home and his states he is up and about doing some activities though he naps frequently." PagelD 336. Similarly, on March 14, 2006, Dr. Broderick noted, "[Plaintiff] denied any chest pain, heaviness, shortness of breath, syncope, dizziness, palpitations or swelling.... The cardiac exam revealed a normal PMI with a regular rate and rhythm, a normal S1 and S2 without murmur, rub or gallop.... He has been doing quite well." PagelD 335.
On September 12, 2006, Dr. Broderick noted, "[Plaintiff] is doing well. He gets a little short of breath in the evenings at rest, but this is only rare. It does not bother him too much. Overall, he is doing quite well, and he is in good spirits..... From a cardiovascular standpoint, things are going well since his [operation] back in January. He will continue his usual medicines." PagelD 334. On September 11, 2007, Dr. Broderick noted, "[Plaintiff] has overall been doing relatively well. He gets rare chest pain and tightness but he doesn't use any nitroglycerin for it. He has a little shortness of breath when he wakes up in the morning.... At this point, he refuses further evaluation ...." PageID 333.
Dr. Broderick's notes are consistent with the March 6, 2006 report of Mohey Saleh, M.D., who performed the bypass operation. See PagelD 308. Dr. Saleh
Although Plaintiffs bypass operation certainly constitutes a changed physical condition, Plaintiff has not met his burden of proving that his overall condition "so worsened" in comparison to his earlier condition at the time of ALJ Spidel's decision on November 2, 2004. See Casey, 987 F.2d at 1232-33. As such, and in light of the aforementioned treatment records, the Court finds ALJ McNichols' RFC determination to be supported by substantial evidence. Notably, the RFC accorded by ALJ McNichols is more restrictive than that determined by ALJ Spidel, as it includes additional limitations to jobs that do not involve climbing ladders, ropes or scaffolds or exposure to hazards or extreme hot, cold or humidity. PagelD 66, 127. Moreover, ALJ McNichols adequately explained why Plaintiff's cardiac condition did not necessitate more restrictions than those included in his RFC finding. See PageID 67-70. Accordingly, Plaintiff's argument — that ALJ McNichols misapplied Drummond — is unmeritorious, as is his argument that a sedentary RFC should have been accorded.
The Court also rejects Plaintiffs argument that Dr. Fronista's opinion was improperly weighed. Notably, in May 2009, Dr. Fronista completed interrogatories and a medical assessment of Plaintiff's ability to do work-related activities during the time period in question. PagelD 440-54. In those submissions, Dr. Fronista opined that Plaintiff's lifting and carrying are affected by his impairments, and that he can only lift/carry 10 pounds for 2.5 to 5 hours during the workday, and zero to 5 pounds for 2.5 up to 5 hours during the workday. PagelD 440-41. Dr. Fronista additionally opined that Plaintiff is unable to standing, walk, or sit in his recliner for more than 2 hours without interruption on any single occasion during an 8-hour workday. PagelD 441. Dr. Fronista concluded that Plaintiff is incapable of medium, light, or even sedentary work on a sustained basis, and noted on multiple occasions that Plaintiff is "unable to work" and "physically disabled." PagelD 444, 449, 451.
While the medical opinions of treating physicians are generally entitled to greater weight than those of consulting physicians, a treating physician's conclusory statement — that the claimant is disabled — is not determinative of the ultimate issue. Landsaw v. Sec'y of H.H.S., 803 F.2d 211, 213 (6th Cir.1986). Rather, a treating physician's opinion is to be given controlling weight only if it is well-supported by medically acceptable clinical and laboratory techniques, and not inconsistent with the other evidence of record. See 20 C.F.R. § 404.1527(c)(2); Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir.1993). An ALJ may properly reject a treating physician's opinion that does not meet these standards. See Walters v. Comm'r of Soc.
In addition to the previouslydiscussed treatment notes of Drs. Broderick and Saleh, Dr. Fronista's assessment is devoid of any detailed explanation, and is unsupported by his own treatment notes which do not reflect disabling impairments. See PageID 376-84. Although ALJ McNichols erroneously noted "[n]o physician reported that the claimant was disabled or more restricted [than] set forth above at any time relevant to the date last insured," see PageID 69, and appeared to discount Dr. Fronista's assessment — in part, because it was issued more than three years after the expiration of Plaintiffs insured status, see PageID 70 — such commentary is harmless error. ALJ McNichols gave good reasons for rejecting Dr. Fronista's opinion — i.e., that it is unsupported by objective evidence, and is inconsistent with the other evidence of record. Accord Lane v. Astrue, 839 F.Supp.2d 952, 970-71 (S.D.Ohio 2011) (Newman, M.J.), adopted by 839 F.Supp.2d 952, 955-56 (S.D.Ohio 2012) (Rose, J.) (finding the ALJ's decision — to not afford controlling weight to the treating doctors' opinions — supported by substantial evidence because the opinions were unsupported by the medical record). In addition, the fact that Plaintiff went to the hospital in February 2007 and August 2008, see PageID 322-26, 399-404, and had a heart catheterization procedure performed in April 2009, see PagelD 433-35, is not substantial evidence that Plaintiff was disabled as of March 31, 2006 — his date of last insured. In fact, the treatment notes from Plaintiffs February 2007 hospital visit — where Plaintiff was admitted for "chest pain" — state, "[s]ince being discharged from the hospital [in February 2006] he has not had any consistent chest pain. Occasionally he has had a twinge that was not with any regularity that he reported that he has barely noticed." PageID 322-23.
While the record contains some evidence that supports Plaintiffs argument, under the substantial evidence standard, the Commissioner's non-disability finding is "not subject to reversal merely because substantial evidence exists in the record to support a different conclusion." Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1996). It is the Commissioner's function to resolve conflicts in the evidence, see Hardaway v. Sec'y of H.H.S., 823 F.2d 922, 928 (6th Cir.1987), and that is exactly what the ALJ reasonably did here. Accordingly, because ALJ McNichols' decision is supported by substantial evidence, it must be affirmed. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 401, 91 S.Ct. 1420.
The last page of Plaintiffs Statement of Errors is devoted to summarily arguing that ALJ McNichols improperly evaluated Plaintiffs allegations of pain, as well as his credibility. See doc. 8 at PagelD 489. The Court has fully considered these arguments, but finds neither to be meritorious.
Plaintiff cites no evidence in the record indicating his pain to be greater than that determined by ALJ McNichols. Moreover, Plaintiff does not provide any evidence that his level of pain has "so worsened" since ALJ Spidel's November 2, 2004 decision, which would warrant reconsideration under Drummond or AR 98-4(6). See Casey, 987 F.2d at 1232-33. See also McCracken, 2009 WL 2983049, at *10.
Regarding Plaintiffs credibility, the ALJ found Plaintiffs "statements concerning the intensity, persistence and limiting effects of [his] symptoms are not credible to the extent they are inconsistent with the
An ALJ's credibility findings are entitled to considerable deference and should not be lightly discarded. Casey, 987 F.2d at 1234. The Court is "limited to evaluating whether or not the ALJ's explanations for partially discrediting [a claimant] are reasonable and supported by substantial evidence in the record." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir.2003) (brackets added). The Sixth Circuit has held that it accords great deference to an ALJ's credibility assessment, particularly because the ALJ has the opportunity to observe the demeanor of the claimant while he or she testifies at the administrative hearing. Id. Moreover, the Court "may not disturb" an ALJ's credibility determination "absent [a] compelling reason." Smith v. Halter, 307 F.3d 377, 379 (6th Cir.2001).
Here, Plaintiff has failed to provide a "compelling reason" to disturb the ALJ's credibility finding. See id. Contrary to Plaintiff's contentions, substantial evidence — including the evidence of record discussed supra — supports the ALJ's credibility determination.
For the foregoing reasons, the Court finds all of Plaintiffs assignments of error to be unmeritorious, and further finds ALJ McNichols' non-disability determination supported by substantial evidence.
Filed August 1, 2013.
