ROBERT E. LARSEN, Magistrate Judge.
Plaintiff Sarah Lee seeks review of the final decision of the Commissioner of Social Security denying plaintiff's application for disability benefits under Title XVI of the Social Security Act ("the Act"). Plaintiff argues that the ALJ erred in (1) relying on vocational expert testimony which conflicts with the Dictionary of Occupational Titles, (2) failing to consider the third-party statement of Mr. Merriman, (3) failing to consider the impact of plaintiff's obesity on her residual functional capacity, and (4) failing to include all of Mr. Keough's opinions in the residual functional capacity assessment. I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, plaintiff's motion for summary judgment will be denied and the decision of the Commissioner will be affirmed.
On February 28, 2006, plaintiff applied for disability benefits alleging that she had been disabled since July 11, 1999. She later amended her alleged onset date to February 28, 2006, to correspond with the filing date of her application for supplemental security income (Tr. at 10). Plaintiff's application was denied initially and by Administrative Law Judge Robert Evans on November 12, 2008. On July 30, 2010, the Appeals Council remanded the case and directed the ALJ to obtain additional evidence concerning plaintiff's post traumatic stress disorder, depression and social phobia; evaluate plaintiff's mental impairment; give further consideration to plaintiff's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to the evidence of record in support of assessed limitations; and if warranted, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the plaintiff's occupational base (Tr. at 60-61). On April 13, 2011, a second hearing was held before Administrative Law Judge George Bock. On June 15, 2011, the ALJ found that plaintiff was not under a "disability" as defined in the Act. On June 11, 2013, the Appeals Council denied plaintiff's request for review. Therefore, the decision of the ALJ stands as the final decision of the Commissioner.
Section 205(g) of the Act, 42 U.S.C. § 405(g), provides for judicial review of a "final decision" of the Commissioner. The standard for judicial review by the federal district court is whether the decision of the Commissioner was supported by substantial evidence. 42 U.S.C. § 405(g);
Substantial evidence means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
An individual claiming disability benefits has the burden of proving he is unable to return to past relevant work by reason of a medically-determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). If the plaintiff establishes that he is unable to return to past relevant work because of the disability, the burden of persuasion shifts to the Commissioner to establish that there is some other type of substantial gainful activity in the national economy that the plaintiff can perform.
The Social Security Administration has promulgated detailed regulations setting out a sequential evaluation process to determine whether a claimant is disabled. These regulations are codified at 20 C.F.R. §§ 404.1501,
1. Is the claimant performing substantial gainful activity?
2. Does the claimant have a severe impairment or a combination of impairments which significantly limits his ability to do basic work activities?
3. Does the impairment meet or equal a listed impairment in Appendix 1?
4. Does the impairment prevent the claimant from doing past relevant work?
5. Does the impairment prevent the claimant from doing any other work?
The record consists of the testimony of plaintiff and vocational expert Richard Sherman in addition to documentary evidence admitted at the hearing.
The record contains the following administrative reports:
The record shows that plaintiff's lifetime earnings total $751.88 (Tr. at 140, 148-149). She earned $325.00 in 1996, $25.18 in 1997, and $401.70 in 1998. Plaintiff's earnings were reported from the Full Employment Council, Hardee's, Sonic, Small World, and Richmond Public School District (Tr. at 154). She described her past work as a cook at two restaurants, a retail position at the Salvation Army, and a care giver at a day care (Tr. at 160). Plaintiff has not worked since 1998. On March 24, 2006, she reported, "I cannot find a job because when they hear about my back they never give me a job and my child support is so [sporadic] I can hardly pay my bills." (Tr. at 167).
In a Function Report dated March 24, 2006, plaintiff stated that she fills the dishwasher, sweeps the floors, mops once a week, makes dinner, takes care of three children, prepares meals daily for about an hour each time, cleans, does laundry, and sews clothes (Tr. at 168-175). Sometimes she gets friends to help her with some of her tasks. Plaintiff does not go outside often "because I have minor agoraphobia" (Tr. at 171). Plaintiff drives "but my car is broke down right now, can't afford to fix [it]" (Tr. at 171). Plaintiff shops for groceries in stores for 30 minutes once a week. Plaintiff visits family and friends once a week.
In an undated Disability Report plaintiff reported that she weighed 140 pounds (Tr. at 176-183). Plaintiff reported that she stopped working on June 1, 1997, because her husband did not want her to work (Tr. at 177). Her employment consisted of working in two fast food restaurants, working as a crossing guard at an elementary school, working a retail job at the Salvation Army, and working as a care giver in a day care (Tr. at 178).
In this document, dated July 26, 2008, plaintiff reported that she weighed 170 pounds (Tr. at 200). She stopped working in 1998 because her ex husband made her quit. Since she stopped working, she has supported herself with AFDC, child support, and food stamps. When asked what she has done to find work since her last job ended, she wrote that no one will hire her with her injury and she is afraid of people. It takes plaintiff days to clean her house due to constant pain and sometimes her friends come to help. She is able to drive but after about 30 minutes the pain is almost unbearable. Nothing in her physical or mental condition had changed since she first filed her claim two years and five months earlier. Plaintiff had Medicaid coverage (Tr. at 202), yet she has not participated in or sought treatment through physical therapy, pain management clinic, acupuncture, biofeedback, chiropractor, TENS unit, or traction because she has no money and no car (Tr. at 203). Plaintiff was asked how her mental condition limits her ability to work. She reported that she is afraid of people she doesn't know and of large areas and has "some memory loss" (Tr. at 207).
On August 9, 2010, plaintiff completed a Function Report in which she reported that she prepares her own meals daily while sitting, she cleans once a week, and she shops in stores for groceries once or twice a week for less than an hour. Her condition does not affect her ability to reach, complete tasks, concentrate, understand, follow instructions, get along with others, or use her hands. She can pay attention for a long time, she follows written instructions very well, she follows spoken instructions well, she gets along with authority figures well, she handles changes in routine well, she gets very nervous when she is around groups of people she doesn't know (Tr. at 219-226, 239-246).
In this August 9, 2010, document plaintiff reported that she has a laptop so that she can use a computer lying down. She is not currently able to drive because she has an expired license (Tr. at 227-229, 247-249).
On September 5, 2010, plaintiff's fiancé, Randy Merriman, Jr., completed a Function Report — Third Party (Tr. at 263-270). He reported that plaintiff cooks dinner while sitting in a chair. It takes her two hours to cook meals and she does this daily. Plaintiff is able to go out alone, she can drive but does so rarely due to pain — "only drives if has no other choice". She shops in stores and on the computer. She shops once a week for about an hour. Plaintiff reads and watches television all the time but has to lie down while doing these things. People come to see plaintiff or she talks on the phone. She goes to the grocery store on a regular basis and does not need anyone to go with her. She has no problems getting along with family, friends, neighbors or others. Her condition does not affect her ability to understand, follow instructions, complete tasks, remember, concentrate, get along with others, or use her hands. She finishes what she starts, she can pay attention for "a while," she follows written and spoken instructions well, she gets along well with authority figures, she handles changes in routine "ok," she handles stress "fair." He concluded with the following:
In July 1999 plaintiff, age 21, was the unrestrained driver of a car that was struck by a train (Tr. at 470). She climbed out of the vehicle and was taken to Liberty Hospital and eventually transferred to Truman Medical Center for care of her spinal injury. Plaintiff had surgery to fuse T12 through L2 (Tr. at 422).
On October 18, 1999, plaintiff saw Dinesh Patel, M.D., for a follow up on her back (Tr. at 442-443). Plaintiff was told to start weaning herself from her back brace. She was using OxyContin (narcotic) for pain. She was told not to use Ibuprofen (non-steroidal anti-inflammatory) at that time because it may decrease bone healing. "The patient was also instructed that smoking cessation would be helpful to her in improving the healing of the bone and posterior fusion and also her left clavicular fracture."
Four years later, on December 5, 2003, x-rays of plaintiff's lumbar spine revealed a fracture of the fusion screw in the body of T12 (Tr. at 419-420). "No abnormal motion at T12 L1 is demonstrated." Plaintiff had satisfactory motion of L3 through S1 on flexion/extension and no motion at the fusion site of T12, L1 and L2.
Two days later, on December 7, 2003, plaintiff saw Jason Datta, M.D., an orthopaedic surgeon (Tr. at 422-423). Plaintiff had begun experiencing pain about two years earlier. "It is about the same and has progressed slightly. She has a few days that are worse than others. She does not currently take anything for the pain full time. She occasionally takes ibuprofen or Naprosyn when it is really bad, and that barely takes some edge off of it." Dr. Datta noted that the pedicle screws in T12 had fractured. "The patient had some endplate changes at T12-L1 mild degenerative changes probably due to slight motion through this segment, which is probably giving her pain." Plaintiff's physical exam was normal except that she could bend forward only about 45E due to pain, and she had mild paraspinous muscle tenderness. "I have discussed with the patient that there is no instability in her spine at this time, that her pain is not significant enough to address with any type of surgery. . . . I do not believe that she is a candidate for any type of surgical intervention for this, and she has no instabilities noted and no signs of stenosis present. I have discussed with her that this problem is probably going to be lifelong and we need to work on having her good days outweigh her bad days, but eventually, she may develop significant arthritis at this level in the far future." Dr. Datta recommended physical therapy and prescribed Relafen, a non-steroidal anti-inflammatory, as needed for pain.
On September 23, 2004, plaintiff saw Ram Chandra, D.O., complaining of severe low back pain (Tr. at 404, 588). Dr. Chandra ordered plaintiff's surgical records and prescribed Amitriptyline (antidepressant) for her pain.
On October 25, 2004, plaintiff saw Dr. Chandra for a follow up on pain (Tr. at 332, 404, 588). Plaintiff told Dr. Chandra that the "Amitriptyline does help her pain".
On December 29, 2004, plaintiff saw Michael Johnston, RN, for treatment of a urinary tract infection (Tr. at 584).
On February 1, 2005, plaintiff saw Dr. Chandra for medication refills (Tr. at 330, 402, 584). He continued her on Amitriptyline and recommended Trazodone (antidepressant) for thoracic and lumbar pain. He also assessed nicotine addiction. "She wants medication for this, I don't think Wellbutrin would be a good choice since she is already on multiple other antidepressants but possibly she may be a good candidate for Nicotrol inhaler. She is going to check into whether she wants to pay for this or not."
On February 6, 2005, plaintiff had x-rays of her thoracic spine which showed that both pedicle screws of the T12 were fractured and the disk between T12 and L1 was narrow (Tr. at 400-401, 582-583).
On April 5, 2005, plaintiff saw Dr. Chandra and complained of insomnia (Tr. at 399, 581). She did not mention any back pain on this visit. Dr. Chandra prescribed Ambien.
On November 14, 2005, plaintiff had a psychological consultation with Gary Horner, Ph.D. (Tr. at 322-324). Plaintiff reported weighing 130 pounds. She was noted to be well groomed, her general activity level was relaxed, she was cooperative and appeared to talk easily. Her speech was logical and goal directed. Mood and affect were normal to mildly anxious. Attention and concentration were good. Memory for recent and distant events was good. Intellectual functioning was in the broad average range. Judgment and insight were fair. "Social skills in this interview are good. Eye contact is good." No specific nervous habits were noted. Plaintiff denied suicidal thoughts.
Plaintiff said her mother thought she was just being nosy, but plaintiff tended to agree with her boyfriend that she was paranoid and not nosy. Plaintiff said most of the time she is fine leaving the house. "Her energy level is okay. . . . Her attention and concentration is good. She has increased irritability due to pain. She has a hobby of reading. She walks and uses weights for regular exercise."
Dr. Horner found that plaintiff was able to understand and remember detailed and simple instructions. She was able to sustain concentration and persistence in most things (i.e., she could not work for a railroad). She was able to relate socially and she could adapt to changes in her social environment. He assessed post traumatic stress disorder, chronic; social phobia, mild; and dyssomnia not otherwise specified.
On December 6, 2005, plaintiff saw Dr. Chandra for a follow up (Tr. at 329, 399, 581). "She had her Medicaid disability evaluation and her T12 pedicle screws are fractured even worse now. She is going to have to have reconstruction. She is having a lot of thoracic pain." Dr. Chandra assessed T12 pedicle screw fractures and depression/chronic pain. He prescribed Amitriptyline, an antidepressant.
On February 16, 2006, plaintiff saw Dr. Chandra and reported that the Amitriptyline was not helping her back pain
On February 28, 2006, plaintiff completed her application for disability benefits. This is also her amended alleged onset date.
On March 16, 2006, plaintiff saw Dr. Chandra and reported that the Neurontin was not helping her (Tr. at 328, 398, 580). Dr. Chandra assessed chronic pain secondary to thoracic hardware abnormalities and dislodging. He discontinued Neurontin and prescribed Lyrica.
On March 23, 2006, plaintiff saw Dr. Chandra and reported that Lyrica was not helping her pain (Tr. at 327, 397, 579). Dr. Chandra assessed chronic thoracic pain secondary to a loose screw. He recommended a Toradol
On May 25, 2006, plaintiff saw Dr. Chandra for symptoms of a urinary tract infection (Tr. at 397, 579). Dr. Chandra refilled plaintiff's Toradol and Ultram
On June 5, 2006, plaintiff saw Dr. Chandra for a well woman exam (Tr. at 382, 575). He recommended that she be evaluated by a specialist in regard to her fractured pedicle screws.
On June 13, 2006, plaintiff, age 28, was seen by Syed Hasan, M.D. (Tr. at 337-340).
Plaintiff was taking Toradol (non-steroidal anti-inflammatory), 50 mg as needed, and Ultram (a narcotic-like pain reliever), 50 mg, 1 to 2 at night. She was taking no other medications. Plaintiff was smoking a pack of cigarettes per day. She reported drinking alcohol occasionally. Plaintiff's physical examination was normal except she had tenderness in the area of T11-L2 and mild restriction of flexion, extension, and lateral flexion of the lumbar spine. "Otherwise all bones and joints of all four extremities revealed full range of motion." She had no weakness in any extremity. Gait was normal. "She had no difficulty dressing and undressing or getting on and off the examination table. She walked slowly without any assistive device."
Her memory was normal. Her mini mental status exam was normal (Tr. at 346).
(Tr. at 337-340).
Dr. Hasan completed a range of motion values chart that same day showing that plaintiff's range of motion was entirely normal except flexion/extension (bending forward at the waist) was 70E while normal is 90E, and lateral flexion to the right and left (bending sideways at the waist) was 15E on each side while normal is 25E. Her grip strength was normal, muscle strength was normal (Tr. at 343-344).
On June 14, 2006, plaintiff had x-rays which showed fracture of the pedicle screws at T12 (Tr. at 391-394, 571-574).
On July 3, 2006, plaintiff had a CT scan of her spine (Tr. at 569-570). The central canal was clear. The results of the CT scan were consistent with the June 14, 2006, x-rays.
On July 5, 2006, plaintiff had x-rays which showed fracture of the pedicle screws at T12 (Tr. at 385).
On July 6, 2006, plaintiff saw Dr. Chandra for a follow up (Tr. at 382, 575). He recommended she see a neurologist "and hopefully she will get set up for surgery."
On July 12, 2006, plaintiff saw John Gianino, M.D., a neurologist, after having been referred by Dr. Chandra (Tr. at 378-381, 417-418). Plaintiff reported that her pain is constant but has not worsened over time. It is located in her upper lumbar region with no radiation. Her pain is worse with activity but present when lying down or sitting. Plaintiff had no instability and her compression fracture had healed well. "Her only medication is Soma [muscle relaxer]. She is unemployed and on disability. She is divorced, with children. She smokes one pack of cigarettes per day and denies alcohol use." On exam, Dr. Gianino noted that plaintiff's back "has relatively good range of motion with mild pain." Straight leg raising was negative. She had no tenderness and normal strength.
On August 21, 2006, plaintiff saw Dr. Chandra and reported that the specialist at Truman indicated that there was no reason to surgically remove the fractured pedicle screws, "that it may make it worse. She is just trying to deal with the pain." No physical exam was performed other than to check plaintiff's vital signs, heart and lungs. Dr. Chandra assessed chronic thoracic pain. He increased her Amitriptyline (antidepressant) and prescribed Skelaxin, a muscle relaxer (Tr. at 412, 566, 638).
On August 24, 2007, plaintiff saw Dr. Chandra for a follow up and medication refills (Tr. at 374, 412, 566, 638). The physical exam consisted of listening to her heart and lungs. He assessed chronic thoracic pain. He refilled her Amitriptyline at the same dose and prescribed Robaxin (muscle relaxer).
On December 21, 2007, plaintiff saw Dr. Chandra complaining of ear pain (Tr. at 411, 515, 565, 637). During this visit he refilled her Amitriptyline and Robaxin for back pain.
On March 25, 2008, plaintiff saw Dr. Chandra for a follow up on pain (Tr. at 411, 515, 565, 637). Dr. Chandra's physical exam consisted of checking plaintiff's heart and lungs. He assessed chronic thoracic pain and continued her on Amitriptyline. He switched her from Robaxin to Skelaxin, both muscle relaxers.
On September 15, 2008, plaintiff saw Dr. Chandra for a follow up (Tr. at 515, 565, 637). Her Amitriptyline and Skelaxin were refilled.
On April 10, 2009, plaintiff saw Dr. Chandra for a cough (Tr. at 514, 564, 636). She reported having quit smoking a week earlier. She was assessed with COPD exacerbation and given several prescriptions.
On April 27, 2009, plaintiff was seen at Lafayette Regional Medical Center where she was diagnosed with pneumonia (Tr. at 500-502, 526-528, 561-563, 599-613, 633-635). She reported having quit smoking three weeks earlier. Plaintiff also reported depression. "We will get her [to] resume her amitriptyline and we will offer some Ambien . . . at night as needed."
On May 7, 2009, plaintiff saw Dr. Chandra for a follow up on pneumonia (Tr. at 513, 560, 632). Her medications were continued and she was assessed with "pneumonia resolving."
On June 18, 2009, plaintiff saw Dr. Chandra for a follow up (Tr. at 513, 560). "Her biggest complaint is she has had a lot of weight gain and having some fatigue." She was assessed with weight gain/fatigue and chronic thoracic pain secondary to thoracic screw that is fractured. Dr. Chandra recommended blood work and he refilled her Amitriptyline.
On November 16, 2009, plaintiff saw Jackie Hamilton, a nurse practitioner, for treatment of a urinary tract infection (Tr. at 512, 554, 629).
On January 12, 2010, plaintiff saw Dr. Chandra for a follow up on pain management (Tr. at 511, 553, 625). His examination was limited to checking her vital signs, heart and lungs. He refilled plaintiff's Amitriptyline. "She has been stable on this medication for quite some time."
On February 16, 2010, plaintiff went to the emergency room complaining of a tooth ache (Tr. at 596-598). Plaintiff was given a prescription for antibiotics. The medical records indicate that plaintiff was the driver when she left the hospital (Tr. at 596).
On March 26, 2010, plaintiff saw Dr. Chandra for cough and congestion (Tr. at 510, 552, 624). She was diagnosed with bronchitis.
On May 2, 2010, plaintiff saw Jackie Hamilton, a nurse practitioner, for treatment for a urinary tract infection (Tr. at 509, 548, 623).
On June 4, 2010, plaintiff saw Jackie Hamilton, a nurse practitioner, about left elbow pain (Tr. at 508, 547, 619). Plaintiff was given a prescription for a steroid to reduce the inflammation.
On September 3, 2010, plaintiff saw Dr. Chandra complaining of low back pain (Tr. at 547, 619). He checked her heart and lungs and assessed low back pain. He refilled her Amitriptyline.
On November 5, 2010, plaintiff saw Dr. Chandra for a non-healing second degree burn without blistering on the back of her neck "from some type of hair dye" (Tr. at 546, 68).
On November 15, 2010, plaintiff saw Dr. Chandra for treatment for a urinary tract infection and for a burn on her neck from a curling iron (Tr. at 545, 617).
On January 5, 2011, plaintiff went to the emergency room complaining of a tooth ache (Tr. at 594-595). Plaintiff was smoking a pack of cigarettes per day. She was told to stop smoking and was given an antibiotic and a prescription for Vicodin, a narcotic pain medication.
On January 21, 2011, plaintiff underwent a consultative examination by John Keough, M.A., a licensed psychologist (Tr. at 529-531).
Mr. Keough completed a Medical Source Statement (Mental) that same day (Tr. at 532-535). He found that plaintiff's ability to understand, remember and carry out instructions is not affected by her impairment. He found that she had mild restriction in her ability to interact appropriately with the public, supervisors, and co-workers and to respond appropriately to usual work situations and to changes in a routine work setting.
Plaintiff's weight was shown in her medical records as follows:
During the April 13, 2011, hearing, plaintiff testified; and Richard Sherman, a vocational expert, testified at the request of the ALJ.
At the time of the hearing, plaintiff was 33 years of age (Tr. at 33). She was 28 on her amended alleged onset date. Plaintiff has a 10th grade education (Tr. at 33). Plaintiff last worked in 1996 in a fast food restaurant (Tr. at 33). She left that job because she lost her babysitter (Tr. at 33). Plaintiff has three children who were 15, 12 and 10 at the time of the administrative hearing (Tr. at 33-34). Plaintiff lives with her fiancé and he takes care of her and her three children financially (Tr. at 34, 36). She lives in a house with stairs to get into the back door and stairs leading to the second floor (Tr. at 37-38).
Plaintiff is unable to work due to constant pain from her mid shoulder blade to her tail bone (Tr. at 34). She also has pain in her left collarbone and her left knee (Tr. at 35). She takes Amitriptyline and 600 mg of Ibuprofen for her pain (Tr. at 34). Plaintiff has trouble with her hands sometimes (Tr. at 35). They ache and she is unable to grasp small objects since her car accident in 1999 (Tr. at 36).
Plaintiff had surgery on her back in 1999 (Tr. at 36).
Plaintiff is 5'7" tall and weighs 195 pounds (Tr. at 34). In February 2006 (her amended alleged onset date) she weighed 150 pounds
Plaintiff has been treated for anxiety and depression but at the time of the hearing was taking no medication for those conditions (Tr. at 36). She stopped taking medication in 2000 or 2001 because she is unable to afford it, but her mental condition continues to be a problem (Tr. at 37).
Plaintiff spends most of her time lying on the couch (Tr. at 38). Lying down relieves her pain a little bit (Tr. at 38). During the past five years, plaintiff's fiancé and children have done the cooking, cleaning, laundry, yard work and picking up around the house (Tr. at 38). Plaintiff has not driven in more than five years (Tr. at 39). She stopped driving because she could not take the pain (Tr. at 39). Plaintiff visits her family in Higginsville and Lexington (Tr. at 39). She does not attend her children's school activities because she is afraid of people (Tr. at 39). Her fiancé does the grocery shopping and runs the errands (Tr. at 39). In the past 30 days, though, she had been to a store twice (Tr. at 40). Plaintiff is unable to sit at a computer because her back and hands hurt too much (Tr. at 40). She is able to cut food, shower, and dress herself without difficulty (Tr. at 40).
Vocational expert Richard Sherman testified at the request of the Administrative Law Judge. Plaintiff has no substantial gainful activity (Tr. at 41). She previously worked in fast food and as a cashier in a retail establishment but not at the substantial gainful activity level (Tr. at 41).
The first hypothetical involved a person who could lift, carry, push and pull 10 pounds except lifting from below waist level would be limited to less than 5 pounds; stand and walk for six hours per day and for 30 minutes at a time; sit for six hours per day and for 30 minutes at a time. The person could not climb ladders, ropes or scaffolds or crawl or work at unprotected heights. The person could occasionally perform all other postural activities; could have no interaction with the general public and only occasional interaction with coworkers (Tr. at 41-42). Such an individual would be able to work as a small parts assembler, DOT 706.684-022, light with a sit/stand option. There are 8,600 jobs in Missouri and 345,000 in the country (Tr. at 42). The person could also work as a photocopy machine operator, DOT 207.685-014, light with a sit/stand option. There are 1,900 in Missouri and 70,000 in the country (Tr. at 42). The person could work as an electronic sub-assembler, DOT 729.684-054, light with a sit/stand option. There are 4,500 in Missouri and 90,000 in the country (Tr. at 42). All three of these jobs are SVP 2 (Tr. at 42).
The Dictionary of Occupational Titles does not describe whether a particular job has a sit/stand option (Tr. at 42). That portion of the expert's testimony is based on his training and experience (Tr. at 42-43). Apart from that difference, the expert's testimony is consistent with the Dictionary of Occupational Titles (Tr. at 42).
The second hypothetical involved a person who had to take unscheduled breaks beyond the normal mid-morning, lunch, and mid-afternoon breaks (Tr. at 43-44). Such a person could not work (Tr. at 44).
Administrative Law Judge George Bock entered his opinion on June 15, 2011 (Tr. at 10-23).
Step one. Plaintiff has no earnings at the substantial gainful activity level and has not worked since her amended alleged onset date (Tr. at 12-13).
Step two. Plaintiff has the following severe impairments: history of L1 compression fracture and T12-L2 pedicle screw fixation and fusion, obesity, post traumatic stress disorder, and anxiety also diagnosed as mood disorder (Tr. at 12-13). Plaintiff's history of left clavicle fracture and history of left knee problem are nonsevere (Tr. at 13). Plaintiff has had no treatment for these impairments (Tr. at 13). Plaintiff's alleged hand problem is not a medically determinable impairment (Tr. at 13).
Step three. Plaintiff's impairments do not meet or equal a listed impairment (Tr. at 13).
Step four. Plaintiff's subjective allegations are not credible (Tr. at 18). She has been absent from the workforce for most of her adult life for reasons unrelated to the allegedly disabling impairments (Tr. at 18). Plaintiff's statements about her symptoms and limitations are greatly exaggerated (Tr. at 19). She testified to constant pain throughout her entire back, but described her pain to her doctor as a "dull ache" (Tr. at 19). Imaging studies show relatively minimal findings (Tr. at 19). Her doctor described her as "stable for quite some time" on conservative treatment consisting of non-narcotic medications (Tr. at 19). Her treating doctor described her back as having relatively good range of motion "with mild pain" (Tr. at 20). Plaintiff's doctors have not imposed any restrictions on her activities (Tr. at 21).
Plaintiff retains the residual functional capacity to perform light work except she must be able to change positions (i.e., have a sit/stand option) every 30 minutes; she cannot crawl, climb ladders, ropes or scaffolding, or work at unprotected heights; she can lift less than 5 pounds from below waist level; she should not be required to interact with the general public; and she should have only occasional interaction with coworkers (Tr. at 17). Plaintiff has no past relevant work (Tr. at 21).
Step five. Plaintiff is capable of performing jobs available in significant numbers such as small parts assembler, photocopy machine operator, and electronic subassembler (Tr. at 22). Therefore, plaintiff is not disabled (Tr. at 23).
Plaintiff argues that the ALJ erred in relying on testimony of the vocational expert when that testimony conflicts with the Dictionary of Occupational Titles.
Plaintiff's argument is without merit. The Dictionary of Occupational Titles defines light work as:
(emphasis added).
The vocational expert's testimony did not conflict with the Dictionary of Occupational Titles because the hypothetical question described the lifting requirements, and those lifting requirements are included in the strength requirement of light work. As shown by the definition of light work in the Dictionary of Occupational Titles, an ability to lift 20 pounds is not a requirement for every light job.
Plaintiff argues that the ALJ erred in failing to mention the third-party statement of plaintiff's fiancé.
Social Security Ruling (SSR) 06-3p, 71 Fed. Reg. 45,593 (Aug. 9, 2006), clarifies how SSA considers opinions from sources who are not what the agency terms "acceptable medical sources." SSA separates information sources into two main groups: "acceptable medical sources" and "other sources." It then divides "other sources" into two groups: medical sources and non-medical sources. 20 C.F.R. §§ 404.1502, 416.902 (2007).
Acceptable medical sources include licensed physicians (medical or osteopathic doctors) and licensed or certified psychologists. 20 C.F.R. § § 404.1513(a), 416.913(a) (2007). According to Social Security regulations, there are three major distinctions between acceptable medical sources and the others:
3. Only acceptable medical sources can be considered treating sources. 20 C.F.R. §§ 404.1527(d) and 416.927(d) (2007).
In the category of "other sources," again, divided into two subgroups, "medical sources" include nurse practitioners, physician assistants, licensed clinical social workers, naturopaths, chiropractors, audiologists, and therapists. "Non-medical sources" include school teachers and counselors, public and private social welfare agency personnel, rehabilitation counselors, spouses, parents and other care givers, siblings, other relatives, friends, neighbors, clergy, and employers. 20 C.F.R. §§ 404.1513(d), 416.913(d) (2007).
"Information from these `other sources' cannot establish the existence of a medically determinable impairment," according to SSR 06-3p.
The courts have consistently criticized the Social Security Administration for failing to discuss third-party statements:
However, the fact that the courts have made this criticism on a regular basis does not mean that in every case the failure of an ALJ to analyze the credibility of third-party witnesses remand is automatic. For example, in
In this case, plaintiff's fiancé, Randy Merriman, Jr., completed a Function Report — Third Party (Tr. at 263-270). He reported that plaintiff cooks dinner while sitting in a chair. It takes her two hours to cook meals and she does this daily. Plaintiff is able to go out alone, she can drive but does so rarely due to pain — "only drives if has no other choice". She shops in stores and on the computer. She shops once a week for about an hour. Plaintiff reads and watches television all the time but has to lie down while doing these things. People come to see plaintiff or she talks on the phone. She goes to the grocery store on a regular basis and does not need anyone to go with her. She has no problems getting along with family, friends, neighbors or others. Her condition does not affect her ability to understand, follow instructions, complete tasks, remember, concentrate, get along with others, or use her hands. She finishes what she starts, she can pay attention for "a while," she follows written and spoken instructions well, she gets along well with authority figures, she handles changes in routine "ok," she handles stress "fair." He concluded with the following:
Mr. Merriman's statement is consistent with plaintiff's testimony and her own administrative documents. Therefore, because the same evidence also supports discounting the testimony of plaintiff's fiancé, the ALJ's failure to give specific reasons for disregarding his testimony is inconsequential. The ALJ found that plaintiff's statements about her symptoms and limitations were greatly exaggerated. He compared her description of constant pain to the relatively minimal findings on objective imaging studies, and he noted that plaintiff has been prescribed nothing more than an antidepressant and an occasional non-steroidal antiinflammatory for pain. Physical therapy was recommended on one occasion. No narcotic medication has been prescribed for her back pain since shortly after her surgery in 1999. Her medication dosages have remained steady for years. Her treating doctor described her back pain as a dull ache and noted that she has been "stable for quite some time" on conservative treatment. The ALJ pointed out the findings of examining doctors. For example, Dr. Hasan found that plaintiff had only mild restriction of flexion, extension and lateral flexion of the lumbar spine and that she otherwise had full range of motion. Plaintiff had no difficulty getting on or off the exam table or getting dressed and undressed. She had no motor weakness and she had normal strength and gait. With only a few restrictions, Dr. Hasan found that plaintiff could work a full-time job. Dr. Gianino found no instability in plaintiff's spine. She had good range of motion with only mild pain. Her strength, reflexes and sensation were all normal.
(Tr. at 21).
Finally, the ALJ addressed plaintiff's motivation:
(Tr. at 18).
Because plaintiff is living off her fiancé's income, he has the same motivation as plaintiff to exaggerate her limitations in an effort to secure disability income.
Because the same evidence cited by the ALJ to discredit plaintiff's testimony also supports discounting the testimony of plaintiff's fiancé, the ALJ's failure to address his Function Report — Third Party is inconsequential.
Plaintiff argues that the ALJ erred by failing to comply with SSR 02-1p by failing to address whether plaintiff's obesity meets or equals a listed impairment. This argument is without merit. First, I point out that the following occurred at the beginning of the administrative hearing:
(Tr. at 32).
SSR 02-1p states, in relevant part, as follows:
How Do We Evaluate Obesity at Step 3 of Sequential Evaluation, the Listings?
(footnote and references to child disability evaluations omitted).
In
In this case the ALJ referenced plaintiff's obesity. He was not required to state specifically which functional restrictions were the result of plaintiff's obesity versus her other impairments. Plaintiff does not adequately distinguish
Plaintiff cites only
In any event, I find that (1) the ALJ was not required to discuss how plaintiff's obesity affected each functional ability in her residual functional capacity, (2) plaintiff's counsel stated during the hearing that she did not meet or equal a listed impairment, and (3) plaintiff has failed to suggest how her residual functional capacity would have been assessed differently had the ALJ further discussed plaintiff's obesity at step three of the sequential analysis.
Plaintiff argues that the ALJ erred in assessing plaintiff's residual functional capacity because he failed to state specifically how plaintiff's impairments impacted her ability to interact with supervisors. This argument is without merit.
In a July 26, 2008, document, plaintiff was asked how her mental impairment affects her ability to work. She did not mention any difficulty with supervisors. On August 9, 2010, plaintiff completed a Function Report in which she reported that her condition does not affect her ability to get along with others and that she gets along with authority figures well. During an evaluation by Mr. Keough on January 21, 2011, plaintiff denied having any problems with authority figures.
Plaintiff's fiancé reported that plaintiff has no problems getting along with family, friends, neighbors or others; her condition does not affect her ability to get along with others; and she gets along well with authority figures.
Mr. Keough found that plaintiff's ability to deal with supervisors was mildly impaired due to anxiety disorder not otherwise specified as well as drug and alcohol abuse. However, the ALJ was not required to adopt every opinion of Mr. Keough. Additionally, the treatment records contain no complaints of anxiety, no observations of an anxious mood, and no treatment for anxiety; therefore, Mr. Keough's basis for a finding that plaintiff was mildly restricted in her ability to interact with supervisors due to anxiety is not well supported (and again is based in part on plaintiff's past alcohol and drug abuse).
I have reviewed the ALJ's residual functional capacity assessment, the medical evidence, observations of others, and plaintiff's testimony. Contrary to plaintiff's complaints of constant, severe, disabling pain, the record shows that her treating doctor considered her stable on an anti-depressant. Her medication was rarely changed, her doses were rarely changed. Plaintiff was covered by Medicaid and did indeed seek fairly regular medical care; however, it was rarely for her allegedly disabling impairments. In 2008 she went to the doctor twice. In 2009 she went to the doctor five times — once for a cough, twice for pneumonia, once for a urinary tract infection, and once for a follow up on her pain. In 2010 she went to the doctor eight times — once for a toothache, twice for a urinary tract infection, once for a cough, once for a burn, once for elbow pain, and twice for a follow up on her back pain. In the past several years, plaintiff's treatment for her back pain has consisted entirely of getting refills on her medications. No doctor has ever recommended any restrictions other than shortly after plaintiff had back surgery. She is not being treated for any mental impairment. No medical professional has ever observed any mental symptoms, plaintiff has never been noted to have any difficulty interacting with people at doctors' offices, hospitals or emergency rooms.
I find that the ALJ's residual functional capacity assessment is supported by the credible evidence in the record.
Based on all of the above, I find that the substantial evidence in the record as a whole supports the ALJ's finding that plaintiff is not disabled. Therefore, it is
ORDERED that plaintiff's motion for summary judgment is denied. It is further
ORDERED that the decision of the Commissioner is affirmed.
