NANCY A. VECCHIARELLI, Magistrate Judge.
Plaintiff, Barbara Randolph ("Plaintiff"), challenges the final decision of Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act,
On August 9, 2011, Plaintiff filed her application for SSI, alleging a disability onset date of December 30, 2009.
On July 23, 2015, Plaintiff filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 14, 16.)
Plaintiff asserts the following assignments of error: (1) the ALJ erred by failing to ascribe appropriate weight to the opinion of a non-treating physician; (2) the ALJ failed to perform a proper "materiality" analysis with respect to claimant's drug and alcohol abuse; and (3) the ALJ failed to perform a proper credibility analysis.
Plaintiff was born in May 1965 and was 43-years-old on the alleged disability onset date. (Tr. 41.) She had at least a high school education and was able to communicate in English. (Id.) She had past relevant work as a housekeeper/cleaner. (Id.)
On July 14, 2011, an x-ray of Plaintiff's cervical spine was taken secondary to an assault upon her person with a baseball bat leading to complaints of neck and shoulder pain. (Tr. 356.) The x-ray revealed that vertebral body heights were well maintained with mild disc space narrowing at C4 through C7, with findings most marked at C6-C7. (Id.)
On August 22, 2011, Plaintiff presented to Philip Tomsik, M.D., with complaints of anxiousness stemming from a PET scan performed a week earlier, which revealed a hypermetabolic nodule. (Tr. 1216-17.) She smoked 1 to 2 packs of cigarettes daily and took Xanax twice a day. (Id.)
On September 1, 2011, a biopsy revealed the presence of malignant cells derived from adenocarcinoma. (Tr. 412.)
On September 16, 2011, Plaintiff was diagnosed with mild chronic obstructive pulmonary disease ("COPD"), but clinically moderate to severe. (Tr. 485.)
On October 24, 2011, Plaintiff underwent a right upper lung lobectomy. (Tr. 526, 1118.)
On November 23, 2011, Plaintiff was seen by pain specialist Ellen W. King, M.D., at the request of Dr. Tomsik. (Tr. 1268.) Plaintiff reported right thoracic and chest wall pain post-thoracotomy. (Id.) She indicated that she had been taking Percocet with reduced relief, but that she had run out of her medication. (Tr. 1268-71.) Dr. King found Plaintiff's pain was consistent with neuropathic pain, explained that such pain can occur after a thoracotomy, and that medications that target neuropathic pain are more effective than opioid pain medications. (Tr. 1271.) Dr. King also recommended nerve blocks, which Plaintiff refused. (Id.) Plaintiff stated that she is "not going 6 weeks without pain pills." (Id.) Dr. King did not recommend the continued use of opioids and Plaintiff declined to begin any new medications without speaking to her oncologist. (Tr. 1271-72.)
On December 7, 2011, Plaintiff began chemotherapy treatment. (Tr. 1330-1333, 1345, 1354.) Plaintiff complained of severe chest pain. (Tr. 733, 1365-66.) Kevin J. Kerwin, M.D., noted that patient appeared to be in no acute distress and indicated that Plaintiff had declined Dr. King's pain management plan largely because it did not include opiates. (Id.) Dr. Kerwin stated that due to Plaintiff's history of "multiple opiate prescribers and many untruths about her care, drug-seeking behaviors and/or opiate addiction are strongly suspected." (Id.) Dr. Kerwin informed Plaintiff that neither he nor any of his partners would ever prescribe her any controlled substances for any reason. (Id.)
On December 28, 2011, a pulmonary function study revealed a mild obstructive ventilatory defect. (Tr. 632.)
On January 31, 2012, Plaintiff presented to Dr. Kerwin and denied any chest pain, shortness of breath at rest, or any other major problems. (Tr. 749.)
On February 15, 2012, Plaintiff reported nausea and vomiting secondary to chemotherapy treatment, as well as right lateral chest pain, back pain, and that her teeth hurt. (Tr. 1202.) She stated that she continued to suffer from anxiety with panic and takes Xanax, for which she requested a refill. (Id.) Dr. Tomsik noted there have been concerns about Plaintiff abusing her medications, but, nevertheless, prescribed Percocet and Xanax. (Tr. 1202-03.)
On February 23, 2012, Plaintiff presented to the Emergency Room ("ER") with a left arm infection. (Tr. 662.) She admitted intravenous heroin use. (Tr. 662-63, 670.)
On April 25, 2012, Plaintiff reported to the ER complaining of worsening panic attacks. (Tr. 791.) She was diagnosed with anxiety. (Tr. 792.) She returned to the ER on April 28, 2012, complaining that she had lost the prescription for 20 pills of Valium she received at the visit three days earlier. (Tr. 799-800.)
On July 21, 2012, Plaintiff presented to the ER stating that she had been in a car accident the previous day. (Tr. 893.) She described her pain as burning and rated in 10 of 10. (Id.) She also complained of anxiety attacks the preceding month, but was not experiencing one at the time. (Id.) On examination, Plaintiff appeared to be in no acute distress, had mild tenderness over her chemotherapy port, and clear lungs. (Tr. 894.) After reviewing the OARRS ("Ohio Automated Rx Reporting System") report, the attending physician noted that Plaintiff had obtained several benzodiazepine prescriptions (e.g., Xanax or Valium) from multiple providers in the past year. (Id.) The physician had a lengthy discussion with patient regarding pain management, but Plaintiff wanted something stronger than Motrin. (Id.) The physician also told Plaintiff that she did not need benzodiazepine because she was not having an acute anxiety attack and, furthermore, that she needed to establish psychiatric care for her anxiety. (Id.) She was taken for an x-ray by a nurse, but Plaintiff eloped from the hospital before one was performed. (Id.)
On August 3, 2012, Plaintiff again reported to the ER with complaints of an anxiety attack. (Tr. 919.)
On October 14, 2012, Plaintiff presented to MetroHealth stating she had been having panic attacks all weekend. (Tr. 973.)
On September 17, 2012, an x-ray revealed no subluxation or fractures; verterbral bodies were preserved in height; severe narrowing of the L5-S1 disk space with endplate sclerosis and vacuum disk; moderate narrowing of the L3-L4 disk space with small endplate phytes at different levels; and no destructive bony lesions. (Tr. 1014.)
On October 23, 2012, Plaintiff presented to the ER complaining of anxiety, stated that she was out of medication, and requested Xanax. (Tr. 1020.) She was negative for chest pain and back pain. (Tr. 1022.)
On November 17, 2012, Plaintiff was ascribed a Global Assessment of Functioning ("GAF") score of 54.
On February 12, 2013, Plaintiff presented to the ER complaining of anxiety symptoms after she ran out of Xanax one week earlier and had to appear in traffic court. (Tr. 1062.) She was panicking because she believed she would be placed in jail for multiple traffic violations. (Tr. 1062.)
On June 6, 2013, Plaintiff was admitted for treatment upon the referral of the court after being charged with OVI in March of 2013. (Tr. 1098.) Treatments notes state that "Plaintiff indicated that she was very involved in gardening and running her farm and reports she `loves it.' She also enjoys spending time with her grandchildren, her animals, and fishing." (Tr. 1099.) Margaret Graham, PCC-S, diagnosed opioid dependence; sedative, hypnotic, and anxiolyic dependence; and, assigned a GAF score of 50.
On August 26, 2013, Plaintiff presented to the ER with complaints of anxiety, stating she had run out of Xanax and Lexapro two weeks earlier. (Tr. 1123.) She was negative for chest pain, shortness of breath, and back pain. (Tr. 1125.)
On September 1, 2013, Plaintiff was diagnosed with opioid overdose with dyspnea. (Tr. 1128.)
On December 4, 2013, Plaintiff reported that she was suffering from weekly panic attacks, but indicated Celexa helped some as she had no visits to the ER the past month. (Tr. 1190.)
On February 29, 2012, Plaintiff was seen by Thomas M. Evans, Ph. D., for a psychological evaluation at the request of the Ohio Division Determination for evaluation of the presence or absence of a mental disorder, and for evaluation of any resulting limitations in mental activities required for work. (Tr. 635.) Plaintiff indicated that she believed she was disabled due to lung cancer and anxiety. (Tr. 636.) She had been to prison twice, "mostly for drugs, theft, and fraud." (Id.) Despite admitting to heroin use one week prior, she told Dr. Evans she never used illegal drugs. (Id.) She had never been psychiatrically hospitalized, been under the care of a psychiatrist, or received mental health counseling. (Tr. 637.) Dr. Evans observed that Plaintiff had good grooming and hygiene; no problems with flow of conversation or thought; mildly anxious mood and affect; no evidence of psychosis, hallucinations, or delusional ideation; oriented to person, place, and time; and had adequate social judgement and insight into her problems. (Tr. 637-38.) He diagnosed depressive disorder, not otherwise specified; panic disorder, without agoraphobia; and assigned a GAF score of 53. (Tr. 638.)
On March 9, 2012, State Agency psychologist Caroline Lewin, Ph. D., reviewed Plaintiff's medical records and determined that she had mild restriction of activities of daily living; moderate difficulties maintaining social functioning; mild difficulties in maintaining concentration, persistence, or pace; and, no repeated episodes of decompensation of extended duration. (Tr. 102.) Dr. Lewin assessed Plaintiff as being moderately limited in her ability to: carry out detailed instructions; maintain attention and concentration for extended periods; interact appropriately with the general public; accept instructions and respond appropriately to criticism from supervisors; and, respond appropriately to changes in the work setting.
On September 4, 2012, State Agency psychologist Leslie Rudy, Ph. D., reviewed Plaintiff's medical records and determined that she had mild restriction of activities of daily living; moderate difficulties maintaining social functioning; moderate difficulties in maintaining concentration, persistence, or pace; and, no repeated episodes of decompensation of extended duration. (Tr. 118-119.) Dr. Rudy agreed with Dr. Lewin's mental RFC assessment. (Tr. 122-123.)
On September 11, 2012, State Agency physician Teresita Cruz, M.D., completed a physical RFC assessment and opined that, in an 8-hor workday, Plaintiff could lift 10 pounds frequently and 20 pounds occasionally; stand/walk 6 hours; sit for 6 hours; frequently climb ramps and stairs; never climb ladders, ropes, or scaffolds; frequently kneel, crouch, or crawl; and, avoid concentrated exposure to extreme temperature, humidity, and even moderate exposure to fumes, odors, gases, and hazards. (Tr. 121-122.)
On December 14, 2013, psychologist Douglas Pawlarczyk, Ph. D., completed a Mental Functional Capacity Assessment. (Tr. 1658.) He opined that Plaintiff was unemployable. (Id.) Dr. Pawlarczyk found marked limitations in Plaintiff's ability to interact appropriately with the general public; to accept instructions and respond appropriately to supervisors; to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; to respond appropriately to changes in the work setting; and to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Id.)
At the September 23, 2013 hearing, Plaintiff testified as follows:
The ME testified that Plaintiff suffered from the following "severe" impairments as that term is defined under the Social Security Administration's regulations: anxiety disorder, drug dependence, and history of lung cancer. (Tr. 72.) When the ALJ asked if the lobectomy would reduce Plaintiff' abilities, the ME responded "[n]ot for most people." (Tr. 72.) With respect to Plaintiff, the ME testified that there was nothing in the medical record concerning a decrease in functional capacity based on the removal of a portion of one lung. (Tr. 72-73.) With respect to the severity of the B criteria, the ME indicated that there is "little to go on in the record." (Tr. 77.) The ME opined Plaintiff's impairments, individually or in combination, did not meet or equal any Listing. (Tr. 77.) The ME pointed out the records which stated Plaintiff enjoyed gardening. (Tr. 78.) Plaintiff denied being able to garden since her lobectomy. (Tr. 78-79.) He did not see a diagnosis of asthma in the record, and indicated that a diagnosis of COPD was not supported. (Tr. 81.) In addition, the ME noted no evidence in the record of seizures, and that Plaintiff's panic attacks are self limiting. (Tr. 82.) The ME stated that if he credited Plaintiff's testimony that she becomes fatigued easily, Plaintiff should be limited to sedentary work. (Tr. 82.) The ME noted that lifting 20 pounds occasionally and 10 pounds frequently was reasonable based on the record, but based on Plaintif f's testimony "possibly a little less." (Tr. 83.)
The VE testified that Plaintiff's past work would be classified as housekeeping cleaner, Dictionary of Occupational Titles ("DOT") 323.687-014 and industrial cleaner, DOT 381.687-018. (Tr. 86.) The ALJ instructed the VE that for the purposes of all hypothetical questions, the VE should assume the individual was of the same age as Plaintiff, with a high school education by way of a GED, and with the same past relevant work. (Tr. 87-88.) The ALJ then posed the following hypothetical to the VE:
(Tr. 88-89.) The VE testified that such an individual could not perform Plaintiff's past relevant work, but identified the following examples as jobs that such an individual could perform: charge account clerk, DOT 205.637-014 (300 jobs locally, 4,000 in Ohio, 100,000 nationally); addresser, DOT 209.587-010 (300 jobs locally, 4,000 in Ohio, 100,000 nationally)); and, food and beverage order clerk, DOT 208.567-014 (400 jobs locally, 4,000 in Ohio, 100,000 nationally). (Tr. 89-91.)
The ALJ inquired as to the impact of an additional limitation to the above hypothetical — being off task 20 percent of the workday due to psychological factors. (Tr. 91.) The VE responded that such a limitation would exclude all work. (Id.)
In response to a third hypothetical incorporating the first one, the VE testified that a person who missed two days of work per month would be within the range tolerated by employers, but three days would eliminate competitive employment. (Tr. 92.)
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process.
The ALJ made the following findings of fact and conclusions of law:
(Tr. 33-42.)
Judicial review of the Commissioner's decision is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards.
The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record.
In her second assignment of error, Plaintiff contends that the ALJ erred in failing to determine whether her substance abuse was material to her disability because, according to Plaintiff, the ALJ failed to comply with 20 C.F.R. § 404.1535 and Social Security Ruling ("SSR") 82-60.
The Act prohibits an individual from receiving disability benefits if drug or alcohol abuse is a "contributing factor material to the . . . determination that the individual is disabled." 42 U.S.C. §§ 423(d)(2)©, 1382c(a)(3)(J). The relevant portion of the regulations state as follows: "If we find that you are disabled
The Court agrees with the Commissioner. The language of the regulations is written in the conjunctive. Therefore, an ALJ need only inquire as to whether a claimant's substance abuse is material if a claimant is first found disabled. Plaintiff cites no authority suggesting that an ALJ must perform a materiality analysis even where the claimant was found "not disabled" with the inclusion of her substance abuse. Plaintiff contends that "the ALJ insinuates that Plaintiff's substance abuse is material, but deprives her of the required analysis to come to the conclusion." (Doc. No. 14 at p. 15.) Merely because a claimant's substance abuse is designated a "severe impairment" does not axiomatically mean that the claimant is disabled when the impact of the substance abuse is included. Nor is there any basis for Plaintiff's other assumption that an individual, who is found to be less than fully credible due to substance abuse/drug-seeking behavior, must be disabled. Simply put, there is no need for an ALJ to determine "whether [a claimant's] drug addiction or alcoholism is a contributing factor material to the determination of disability" when the claimant is not disabled even with the effects of the substance abuse.
Plaintiff's assignment of error is without merit.
Plaintiff third assignment of error is related to the second. She argues the ALJ did not engage in a proper credibility analysis and specifically takes issue with the ALJ's finding that her level of pain, shortness of breath, and panic attacks were not fully credible. (Doc. No. 14 at pp. 15-18.) Plaintiff further argues that her substance abuse was not a valid reason for finding her not credible. (Id.)
The Commissioner asserts the record supports the ALJ's reasoning, and Plaintiff's repeated drug-seeking behavior undermined her reliability concerning the alleged severity of her impairments. (Doc. No. 16 at pp. 7-13.)
It is well settled that pain alone, if caused by a medical impairment, may be severe enough to constitute a disability. See
If these claims are not substantiated by the medical record, the ALJ must make a credibility determination of the individual's statements based on the entire case record. Id. Credibility determinations regarding a claimant's subjective complaints rest with the ALJ. See
Reading the decision as a whole, the Court finds the ALJ properly evaluated Plaintiff's credibility. After an extensive discussion of the medical evidence (Tr. 36-41), the ALJ found Plaintiff was not credible explaining as follows:
(Tr. 41.)
Plaintiff's brief recounts some of the evidence that she believes would support a finding that she is credible. While Plaintiff may disagree with the inferences the ALJ drew from the evidence of record, that does not provide a basis for remand given the considerable deference accorded credibility determinations. The Court also does not perform a de novo determination of Plaintiff's credibility. The ALJ noted that there is little to no objective medical evidence to support the severity of Plaintiff's alleged symptoms, a finding that is supported by the ALJ's recitation of the evidence. Furthermore, the reasons given by the ALJ for finding Plaintiff less than fully credible incorporate several of the seven factors, as they discuss Plaintiff's medication, lack of any significant treatment other than medication, Plaintiff's rejection any pain management that did not involve opiates,
Plaintiff contends that the ALJ may not "have it both ways," arguing that she should not be deemed less than fully credible due to substance abuse and drugseeking behavior while, at the same time, not be entitled to an analysis of materiality. (Doc. No. 14 at pp. 16-17.) As discussed above, there was no need for a materiality analysis because the ALJ did not find that Plaintiff was disabled even with the inclusion of her substance abuse. Plaintiff appears to assume that an individual with substance abuse problems who engages in drug-seeking behavior is per se disabled when taking into account the effects of that person's substance abuse. Plaintiff's argument, moreover, suffers from a lack of any citation to legal authority.
"With respect to plaintiff's drug seeking behavior, courts have held that such behavior can form a basis for rejecting a claimant's testimony regarding pain and limitations."
It was not inappropriate for the ALJ to find Plaintiff less than credible based, in part, on her drug-seeking behavior. As such, Plaintiff's assignment of error is without merit.
In her final assignment of error, Plaintiff contends the ALJ erred by rejecting the opinion of one-time examining physician, Dr. Pawlarczyk. (Doc. No. 14 at pp. 11-13.) Plaintiff contends that the ALJ should have ascribed more weight to Dr. Pawlarczyk's opinion, who examined Plaintiff, than the testimony of the ME or the opinion of a nonexamining source, Dr. Rudy. (Id.)
It is well established that an ALJ is not required to discuss each and every piece of evidence in the record for his decision to stand. See, e.g., Thacker v. Comm'r of Soc. Sec., 99 F. App'x 661, 665 (6th Cir. 2004). However, where the opinion of a medical source contradicts his RFC finding, an ALJ must explain why he did not include its limitations in his determination of a claimant's RFC. See, e.g., Fleischer v. Astrue, 774 F.Supp.2d 875, 881 (N.D. Ohio 2011) (Lioi, J.) ("In rendering his RFC decision, the ALJ must give some indication of the evidence upon which he is relying, and he may not ignore evidence that does not support his decision, especially when that evidence, if accepted, would change his analysis."). Social Security Ruling 96-8p provides, "[t]he RFC assessment must always consider and address medical source opinions. If the RFC assessment conflicts with an opinion from a medical source, the adjudicator must explain why the opinion was not adopted." SSR 96-8p, 1996 WL
The ALJ addressed Dr. Pawlarczyk's opinion as follows:
(Tr. 40-41.)
Plaintiff is correct that the regulations state: "[g]enerally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you." 20 C.F.R. § 416.927(c)(2). However, the mere fact that the ALJ gave more weight to non-treating non-examining physicians than to a non-treating but examining physician is not grounds for remand. Here, the ALJ plainly explained why he was not ascribing any weight to Dr. Pawlarczyk's opinion — it was not consistent with the record as a whole. The explanation requirement with respect to non-treating medical sources "should not be confused with the standard required for the weight ascribed to treating sources [as] [t]he Sixth Circuit has held that the regulation requiring an ALJ to provide `good reasons' for the weight given a treating physician's opinion does not apply to an ALJ's failure to explain his favoring of one non-treating source's opinion over another." See
While the Court's analysis could very well end here, it is worth noting that Plaintiff overlooks that the ALJ ascribed substantial weight to the opinion of psychologist Dr. Evans. (Tr. 38.) Like Dr. Pawlarczyk, Dr. Evans, was also a non-treating but examining source. There is nothing unreasonable about the ALJ's decision to accord less weight to a decision he deemed an outlier in comparison to the opinions of another examining source (Dr. Evans), a non-examining source (Dr. Rudy), and the ME (Dr. Macklin). As such, Plaintiff's assignment of error is without merit.
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
