LOUISE W. FLANAGAN, District Judge.
This matter comes before the court on the parties' cross motions for judgment on the pleadings. (DE 24, 26). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge Robert B. Jones, Jr., issued a memorandum and recommendation ("M&R"), (DE 29), which recommended that this court deny plaintiff's motion, grant defendant's motion, and that the final decision by defendant be affirmed. Plaintiff timely filed objections to the M&R, (DE 30), and defendant's response time has expired. In this posture, the issues raised are ripe for ruling. For the reasons that follow, the court adopts the M&R and grants defendant's motion.
Plaintiff filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on July 29, 2010, alleging disability beginning on November 7, 2009. A hearing was held before an Administrative Law Judge ("ALJ"), who denied plaintiff's application on November 17, 2011. The appeals council denied plaintiff's request for review on February 8, 2013. Plaintiff filed a complaint in this court seeking review of the final administrative decision on April 16, 2013. On July 22, 2014, the magistrate judge issued the M&R.
This court has jurisdiction to review the Commissioner's final decision denying benefits under 42 U.S.C. § 405(g) . In conducting this review, the court must uphold the factual findings of the ALJ "if they are supported by substantial evidence and were reached through application of the correct legal standard."
To assist it in its review of the Commissioner's denial of benefits, the court may "designate a magistrate judge to conduct hearings . . . and to submit . . . proposed findings of fact and recommendations for the disposition [of the motions for judgment on the pleadings]." 28 U.S.C. § 636(b)(1)(B). The parties may object to the magistrate judge's findings and recommendations, and the court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made."
The ALJ's determination of eligibility for Social Security benefits involves a five-step sequential evaluation process. This five-step process asks whether:
In the instant matter, the ALJ performed the sequential evaluation. In step one, the ALJ found that plaintiff had not engaged in substantial gainful activity since November 7, 2009. (Tr. 34). At step two, the ALJ found that plaintiff had the following severe medical impairments: diabetes mellitus with neuropathy, hypertension with left atrial enlargement, asthma, mood disorder, irritable bowel syndrome, diverticulitis, and kidney stones.
Prior to proceeding to step four, the ALJ determined that plaintiff had residual functional capacity ("RFC") to perform "sedentary work," subject to the following restrictions: she can only stand short periods and walk short distances, and she would require a cane for anything further; she can never climb ladders, ropes or scaffolds; she can occasionally climb ramps or stairs; she can occasionally stoop, and frequently perform all other postural activities; she needs to avoid even moderate exposure to pulmonary irritants or work hazards; she must have restroom access in the work area; she is limited to simple, repetitive tasks in a routine, non-production work environment; and she can have only occasional interpersonal contact with others. (Tr. 37). In making this determination, the ALJ found plaintiff's statements about the severity, persistence, and limiting effects of her symptoms not wholly credible. (Tr. 37-38). At step four, the ALJ found that plaintiff did not have the RFC to perform her past relevant work. (Tr. 41). At step five, upon consideration of plaintiff's age, education, work experience, and RFC, in addition to the testimony of plaintiff's vocational expert ("VE"), the ALJ concluded plaintiff was capable of adjusting to the demands of other employment opportunities that exist in significant numbers in the national economy. (Tr. 41). Accordingly, the ALJ determined plaintiff had not been under a disability, as defined in the Social Security Act, during the relevant time period. (Tr. 42).
Plaintiff raises three objections to the M&R. Specifically, plaintiff argues that: 1) the ALJ did not properly weigh the medical testimony of plaintiff's treating physician; 2) the ALJ improperly found plaintiff not fully credible in testifying as to the side effects of her medication; and 3) the ALJ improperly found plaintiff not fully credible in testifying to her need for assistance to ambulate. The court addresses these objections in turn below.
Plaintiff objects to the ALJ's decision not to afford controlling weight to the opinion of Dr. Karen Skarda, plaintiff's treating physician. The ALJ must weigh and evaluate all medical opinions received, regardless of the source. 20 C.F.R. §§ 404.1527(c), 416.927(c). Generally, opinions of treating sources are given greater weight than opinions of non-treating sources, such as consultative examiners. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2). While a treating source's opinion usually is afforded "great weight," the ALJ is not required to afford it "controlling weight."
In this case, the ALJ's decision to give less weight to the opinion of plaintiff's treating physician is supported by substantial evidence. Dr. Skarda opined that plaintiff could lift ten pounds occasionally and five pounds frequently, sit one hour in an eight hour day, stand and/or walk one hour in an eight hour day, never push or pull, and never bend or stoop. Dr. Skarda also opined that plaintiff would miss more than four days per month (Tr. 408). The ALJ gave the opinion little weight, however, explaining that
(Tr. 40).
Plaintiff objects that the ALJ failed to counter Dr. Skarda's opinion regarding plaintiff's restricted ability to sit, bend or stoop. However, the ALJ explained that the record did not support her ability to bend or stoop, and that he had "accommodated the claimant's limitations by limit[ing] her to sedentary exertion, and the evidence supports a finding that she can work a full-time or equivalent work schedule." (
In sum, substantial evidence supports the ALJ's determination to give "little weight" to Dr. Skarda's opinion.
Plaintiff assigns error to the ALJ's determination that plaintiff lacked credibility in alleging fatigue from medication. Social Security Ruling 96-8p requires the ALJ to consider "all of the relevant evidence in the case record," in assessing RFC, including "side effects of medication." SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996). In addition, Social Security Ruling 96-7p requires the ALJ to consider the side effects of medication in assessing the credibility of plaintiff's statements about symptoms and their effects. SSR 96-7p, 1996 WL 374186, at *3. However, "[d]rowsiness often accompanies the taking of medication, and it should not be viewed as disabling unless the record references serious functional limitations."
In evaluating plaintiff's credibility and setting RFC, the ALJ noted that plaintiff had "alleged that her medications made her drowsy and tired, requiring her to lie down several times per day. She testified that she reported these complaints and side effects to her medical providers, but the record does not reflect such reports." (Tr. 41). Plaintiff argues that the ALJ erred because plaintiff did in fact report her fatigue to medical providers. However, as the M&R notes, the record does not reflect that plaintiff reported the need to lie down several times a day as a result of this fatigue. Thus, the ALJ was correct that plaintiff had not made "such reports" as she made at her hearing.
Plaintiff objects to this explanation of the ALJ's finding, arguing that it constitutes "hair-splitting." (Obj., 5). Yet plaintiff's allegation that her medicine required her to lie down several times each day was a critical consideration, because it purported to supply the "serious functional limitation" that must accompany drowsiness or fatigue from medication, as required by
Plaintiff also objects that the ALJ's decision did not itself make a distinction between reports of fatigue and reports of lying down, and therefore that this reasoning cannot be used to support the ALJ's decision. Plaintiff relies on
Finally, plaintiff objects that "[t]he ALJ suggested that [plaintiff] lacked credibility because she said she cannot walk for more than a short distance without needing a cane." (Obj., 9). Yet this mischaracterizes the ALJ's determination. The ALJ did not find plaintiff lacked credibility by alleging that she needed a cane to walk "for more than a short distance" without a cane — indeed, the ALJ's determination of plaintiff's RFC included the limitation that plaintiff "can only stand short periods and walk short distances, and she would require a cane for anything further." (Tr. 36) (emphasis added). Rather, the ALJ found plaintiff lacked credibility through her representation at hearing that her limitations were so severe that she needed a cane even for short distances.
At hearing, the ALJ noted that plaintiff "came in and actually Counsel was assisting you." (Tr. 13). As the decision states:
(Tr. 42) (emphasis added).
Thus, the ALJ found that plaintiff lacked credibility to the extent that she portrayed, through her actions, that she needed counsel's assistance to get in and out of her chair and to ambulate to the hearing room. In her briefs to support her motion on the pleadings and her objections, Plaintiff does not contend that she needs a cane to walk short distances. In light of the examination findings noted, along with plaintiff's activities of daily living, and where no medical record evidence otherwise suggests that plaintiff needs a cane for short distances, this finding of credibility had substantial evidentiary support.
Based on the foregoing, the court ADOPTS the recommendation of the magistrate judge, (DE 29), DENIES plaintiff's motion, (DE 24), GRANTS defendant's motion, (DE 26), and upholds the final decision of the Commissioner.
SO ORDERED.