DAVID A. RUIZ, Magistrate Judge.
Plaintiff, Diona Pettigrew (hereinafter "Plaintiff"), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter "Commissioner"), denying her applications for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
On September 21, 2015, Plaintiff filed her applications for POD, DIB, and SSI, alleging a disability onset date of March 25, 2014. (Transcript ("Tr.") 266-274). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 174-209). Plaintiff participated in the hearing on January 20, 2017, was represented by counsel, and testified. (Tr. 43-93). A vocational expert ("VE") also participated and testified. Id. On March 2, 2017, the ALJ found Plaintiff not disabled. (Tr. 36). On May 5, 2017, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-6). On May 30, 2017, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 11-1 & 13-1).
Plaintiff asserts the following assignments of error: (1) the ALJ erred by not giving deference to the opinions of her treating physician and medical providers; (2) the ALJ erred by failing to grant appropriate weight to the opinions of mental health providers, and (3) the ALJ's analysis of her pain failed to take into consideration all pain factors. (R. 11-1).
Before the alleged onset date, on August 22, 2013, Plaintiff saw Nicholas Herrera, M.D., to "reestablish PCP," but Plaintiff had "no issues or complaints" at that time. (Tr. 551). On physical examination, Plaintiff was 5'2" tall and weighed 201 pounds with a BMI of 36.92. (Tr. 552). Her general appearance was "healthy, pleasant, alert, no distress;" examination of her heart, lungs, and abdomen were normal; and her extremities were normal. Id. Dr. Herrera diagnosed benign hypertension that was well-controlled, hyperlipidemia, smoking history, depression but she was "doing well," and back pain that was chronic per the patient's history with "[n]o alarming symptoms or exam
On February 25, 2014, x-rays of Plaintiff's cervical spine revealed straightening of the cervical lordosis, degenerative changes, disc space narrowing at all levels except C2-C3 with marginal osteophytes at multiple levels, no definite acute fracture, slight retrolisthesis of C4 with respect to C5 and C5 with respect to C6, minimal foraminal encroachment on the right at C5-C6 and on the left at C4-C5 and C6-C7, intact odontoid, and prevertebral soft tissues were unremarkable. (Tr. 566). The same day, x-rays of Plaintiff's lumbar spine revealed mild lumbar levoscoliosis, degenerative changes of the lumbar spine although the disk spaces were preserved and vertebral body height was maintained with marginal osteophytes present at multiple levels. Id. Further, there was no definite acute fracture, slight anterolisthesis of L4 with respect to L5, and some sclerosis of the posterior elements at L4-L5 and L5-Sl. Id.
Between March 13, 2014 and May 5, 2014, Plaintiff attended physical therapy for back pain. (Tr. 465-491).
On October 23, 2014, Plaintiff saw Songqian Li, M.D. (Tr. 449-450). On physical examination, Plaintiff had tenderness to palpation along lumbar muscles, straight leg test bilaterally with pain to lower back. (Tr. 450). Dr. Li assessed back pain that was likely a lumbar sprain and noted Plaintiff may have some radiculopathy. (Tr. 451).
In November and December of 2014, Plaintiff attended physical therapy for a strained lumbar paraspinal muscle. (Tr. 440-448).
On March 30, 2015, Plaintiff was seen by Adam Margolius, M.D., for shoulder pain in connection with a fall nine days earlier. (Tr. 429). X-rays were negative. Id. He referred her to physical therapy for shoulder exercises, though plaintiff was reluctant stating that physical therapy had not helped her back pain. (Tr. 431).
On April 3, 2015, Sandra Hearn, M.D., diagnosed Plaintiff with right biceps tendinitis, likely rotator cuff tendinitis, and personal history of crack abuse (remote). (Tr. 426-428).
On September 28, 2015, plaintiff was seen by Kathryn A. Teng, M.D., and complained of uncontrolled back pain, asking for referral to pain management. (Tr. 682). Dr. Teng assessed back pain at L4-L5, uncontrolled, and prescribed a short supply of Vicodin until she can be seen in a pain management setting. (Tr. 684).
On October 28, 2015, nurse practitioner Anastasia Driscoll, noted tenderness in Plaintiff's cervical spine but no bony tenderness. (Tr. 1006). Plaintiff exhibited decreased range of motion and tenderness in the lumbar spine. Id. Nurse Driscoll assessed left-sided low back pain with left-sided sciatica (primary encounter diagnosis), referred to pain management for evaluation, and prescribed Cyclobenzaprine, Hydrocodone, and Oxycodone. Id.
On December 28, 2015, clinical nurse specialist Ann M. Harrington recommended increased pain medication, referral to weight management, and an MRI of Plaintiff's lumbar spine at the patient's request. (Tr. 999).
On February 9, 2016, an MRI of Plaintiff's lumbar spine revealed "[m]ild-to-moderate lumbar arthropathy, most significant at the L4-L5 level." (Tr. 1109-1110, 1190).
On February 17, 2016, results from a pulmonary function study were normal. (Tr. 1090).
On February 22, 2016, Plaintiff received a left knee injection, which she received bilaterally in October of 2016. (Tr. 1145, 1269).
On April 14, 2016, Plaintiff was seen by Elena Gonzalez, M.D., who assessed dizziness and trigger finger, and referred Plaintiff to hand orthopedics for the latter. (Tr. 1118-1121).
On April 18, 2016, Plaintiff presented to the Emergency Room ("ER") with complaints of a cough, asthma, and pain in her left knee and right thumb. (Tr. 1167-1171). She indicated she was taking no medications for pain. (Tr. 1171). Thomas Collins, M.D., observed that "Pt appears to have typical exacerbation of asthma and appears clinically stable. Will start prednisone which may also benefit her chronic thumb and knee pain. No new falls/injuries, no not [sic] feel xrays indicated at this time. Advised to ice thumb after doing her therapy." (Tr. 1173).
On May 5, 2016, she was seen for a follow-up complaining of lower back (worse on the left) and left knee pain. (Tr. 1106-1107). Plaintiff had been denied an epidural steroid injection (EDSI) because she did not attend physical therapy. (Tr. 1107). Nurse Harrington recommended continuing Gabapentin, referral to a weight management clinic, renewed physical therapy for back and knee pain, an x-ray, but no opiates. (Tr. 1111). Her impression included chronic neck and back pain with a radicular component, mild to moderate degenerative changes of the lumbar and cervical spine, and left knee pain and swelling consistent with osteoarthritis. (Tr. 1110).
On May 18, 2016, an x-ray of Plaintiff's left knee later revealed "suprapatellar effusion, [but] otherwise normal knee radiographs." (Tr. 1188).
On May 19, 2016, x-rays of Plaintiff's hands/wrists showed "[m]inor spurring from the base of the distal phalanx of the 3
On August 29, 2016, physician's assistant Kathryn Wozniak wrote a letter stating that Plaintiff had surgery on her right hand on July 22, 2016, and was scheduled for surgery on her left hand on September 16, 2016. (Tr. 1258). She indicated that Plaintiff "will need to be excused from work for a period of 6 weeks after her second surgery. Id. The surgeries occurred as indicated/scheduled. (Tr. 1259-1260, 1282).
On September 15, 2016, Plaintiff went to the ER complaining of bilateral knee and lower back pain. (Tr. 1303-1305). On physical examination, her knees were normal and she appeared to be in no distress. (Tr. 1308).
On September 16, 2016, Plaintiff reported that she had right wrist pain at the surgical incision site, and reported that occupational therapy was not helping after 3 of 4 visits were completed. (Tr. 1282).
On October 19, 2016, occupational therapist Catherine Szado listed her prognosis for therapy as "[g]ood" following Plaintiff's surgeries (Tr. 1259-1263).
On October 26, 2016, an MRI of Plaintiff's left knee revealed a medial meniscus tear and arthritic changes in the medial compartment. (Tr. 1292). An MRI of her right knee showed degenerative changes. (Tr. 1296).
On October 31, 2013, prior to her alleged onset date, Plaintiff saw Nikona Thomas (qualifications not noted) for a mental status exam, which revealed Plaintiff was well groomed, had no hallucinations and was not delusional, had logical thought process, depressed mood, full affect, no reported impairment, and above average intelligence. (Tr. 602-603). On April 11, 2014, Plaintiff was seen by advanced practice nurse Ellen Alaimo, who assessed recurrent depression and complaints of mood swings. (Tr. 625). On October 16, 2014, advanced practice nurse Elizabeth Petitt noted Plaintiff was 5'2" tall and weighed 215 pounds. (Tr. 627). She also noted the presence of the following diagnoses stemming from November of 2013: major depressive disorder, single episode, moderate; and post-traumatic stress disorder (PTSD). (Tr. 626).
On July 23, 2015, advanced practice nurse Jeffrey Sims saw Plaintiff, who presented as "flat and somewhat solemn." (Tr. 663). Nurse Sims adjusted Plaintiff's medications after reports of uncontrollable crying and periodic sadness. (Tr. 662). On August 20, 2015, Plaintiff saw nurse Sims, complaining of stressors such as helping care for he mother who recently was released from rehabilitation and trouble obtaining disability benefits. (Tr. 668). She reported no adverse effects from her medications. Id. On September 17, 2015, Plaintiff reported to nurse Sims that her medication was working and denied side effects. (Tr. 1031). Nurse Sims noted that Plaintiff was "sullen and sad" because she was denied disability benefits. Id. He assessed a Global Assessment of Functioning ("GAF") score of 55, indicative of moderate symptoms. (Tr. 1028).
On September 30, 2015, Plaintiff related to nurse Sims that she was "somewhat sad based on a recent death in her family." (Tr. 1037). She stated that her medication was working but that she was gaining weight. Id. Nurse Sims again assessed a GAF score of 55. (Tr. 1034).
On November 12, 2015, Plaintiff was seen by registered nurse Tonya Moultrie, who noted that Plaintiff "is having a financial crisis and she is worried about getting her SSI," which may be contributing to her depression. (Tr. 1054). She also saw nurse Sims, who noted Plaintiff was sad, tearful, and reported anxiety attacks and crying spells. (Tr. 1062-1063). Nurse Sims, in reviewing Plaintiff's medication profile, believed that she may have stopped taking her medication, although Plaintiff adamantly denied it. (Tr. 1063). Nurse Sims again assessed a GAF score of 55. (Tr. 1060).
On December 30, 2015, Plaintiff told nurse Sims that her mother had died two weeks earlier. (Tr. 1082). The note indicates Plaintiff "was depressed but due to a stressor." Id. Plaintiff had a job interview that day, which she planned to attend. Id. Plaintiff told nurse Sims that she did not want any changes to her medication. Id. Nurse Sims again assessed a GAF score of 55. (Tr. 1079).
On January 28, 2016, nurse Sims noted that Plaintiff had "a long standing history of Depression," had a "recent stressor of the death of her mother," was "unemployed and has lost financial support with her mother's death," and reports experiencing insomnia, anxiety, and bad dreams." (Tr. 1198).
On February 26, 2016, Plaintiff saw consultative examining psychologist Herschel Pickholtz, Ed.D, for a mental status evaluation. (Tr. 1095-1103). Dr. Pickholtz found Plaintiff was "not a reliable and accurate respondent and informant." (Tr. 1103). Plaintiff stated that she could not work because of "[b]ack problems and I cannot drive because I hit a man and knocked him down." (Tr. 1096). The doctor opined that her symptoms appear to be in partial remission, and her residual symptoms appear to be mild to moderate at worst. (Tr. 1101). Dr. Pickholtz stated that:
(Tr. 1101-1102). Dr. Pickholtz diagnosed mild to moderate unspecified depressive disorder in partial remission; cocaine use disorder, severe, in remission; uncomplicated bereavement, and tendencies toward exaggeration. (Tr. 1102). Dr. Pickholtz's functional assessment is set forth below.
On March 3, 2016, Plaintiff told nurse Sims that she continued to have "a lot of stressors, most recently a string of deaths: mom, sister in law, cousins, etc." (Tr. 1232). Plaintiff acknowledged that it was hard to determine whether she had an increase in depressive symptoms or was just dealing with symptoms of grief. Id. She also reported struggling with the disability appeal process. Id. She indicated she was trying to find a job and takes care of her autistic granddaughter (Tr. 1233, 1242).
On March 31, 2016, Plaintiff saw nurse Alaimo, and reported being upset because she was denied SSI and her mother passed away several months earlier. (Tr. 1214). She feared eviction, as she had been living off her mother's income. Id. On June 1, 2016, Plaintiff informed nurse Alaimo that she was fired from a telemarketing job after one month based on performance, and she felt discouraged and depressed. (Tr. 1204).
On May 19, 2014, resident in training, Dr. Herrera, completed a checklist medical statement and a pain questionnaire. (Tr. 363-364). In the medical statement, he listed Plaintiff's diagnoses as chronic lower back pain, cervical spondylosis without myelopathy, and hand osteoarthritis. (Tr. 363). Dr. Herrera opined that Plaintiff could work one hour per day; could stand for 30 minutes at a time but for less than 60 minutes total in a workday; sit for 2 hours at a time and no more than a total of 2 hours in a workday; and lift 10 pounds occasionally and less than 5 pounds frequently. (Tr. 363). Plaintiff could never stoop or work around dangerous equipment; could occasionally bend, balance, and perform fine manipulation bilaterally; and frequently perform gross manipulation bilaterally, raise her arms over her shoulder, and operate a motor vehicle, and tolerate heat, cold, dust, smoke, fumes, noise exposure, and heights.
On November 11, 2015, David Knierim, M.D., a state agency medical consultant, found there was insufficient evidence to evaluate Plaintiff's physical impairments. (Tr. 126-127).
On May 5, 2016, nurse Harrington completed a checklist physical medical source statement. (Tr. 1104-1105). She indicated Plaintiff could lift 16 pounds occasionally and 11 pounds frequently based on an "office test." (Tr. 1104). Nurse Harrington indicated that Plaintiff's ability to stand/walk and to sit were affected by her impairments, but did not specify her functional capabilities. Id. She did, however, note that Plaintiff was undergoing a work-up for new onset knee pain. Id. She further indicated Plaintiff could occasionally climb, balance, stoop, crouch, kneel, and crawl. Id. She could frequently reach, push, pull, and perform fine and gross manipulation (Tr. 1105). She was restricted in her exposure to heights and pulmonary irritants. Id. Nurse Harrington indicated that Plaintiff had been prescribed a cane, brace, and TENS unit, and needed to alternate at will between sitting, standing, and walking. Id. Finally, nurse Harrington indicated that Plaintiff subjectively reported severe pain, which would interfere with her ability to concentrate, take her off task, and cause absenteeism. Id.
On May 19, 2014, in response to a question on a form asking whether there was a psychological component to Plaintiff's pain, resident in training Dr. Herrera wrote that Plaintiff "has depression/[illegible] but [illegible] are reasonably controlled." (Tr. 364).
On September 30, 2015, nurse Sims completed a mental medical source statement. (Tr. 351-353). He assessed a moderate limitations in Plaintiff's ability to understand, remember and carry out short and simple instructions and to make judgments on simple work-related decisions; a marked impairment in the ability to understand, remember, and carry out complex instructions; and an extreme impairment in the ability to make judgments on complex work-related decisions. (Tr. 351). He assessed moderate limitations in Plaintiff's ability to interact appropriately with the public, supervisors, and coworkers, and in the ability to respond appropriately to usual work situations and changes in a routine work setting. (Tr. 352). When asked to identify the factors supporting his assessment, nurse Sims wrote, "information received from internal medicine practitioner" (Tr. 352).
On November 12, 2015, Karla Voyten, Ph.D., a state agency psychological consultant, found there was insufficient evidence to evaluate Plaintiff's alleged mental impairments. (Tr. 133).
On February 26, 2016, consultative psychologist Dr. Pickholtz interviewed Plaintiff and opined that Plaintiff's ability to understand, remember, and carry out instructions for work comparable to her past work were "slightly impaired at worst" and are "difficult to assess due to her exaggeration." (Tr. 1102). With respect to maintaining attention and concentration, Dr. Pickholtz opined that while "her capacities for attention and concentration based upon her responses to the evaluation fell within the extremely low range of functioning," those responses were "inconsistent with her daily activities and abilities to understand and remember written and verbal information, suggestive of exaggeration." (Tr. 1102) He found that "[h]er abilities to perform 1 to 3-step tasks comparable to the type of work she did in the past with her current medications and ongoing support are somewhat impaired at worst but not preclusive of work with appropriate motivation." Id. Dr. Pickholtz found her capacity to respond to supervision and relate to coworkers are "difficult to assess due to tendencies toward exaggeration," but noted Plaintiff did not have a lot of problems relating to family members. Id. Similar problems assessing Plaintiff's ability to respond to work pressures were noted, but Dr. Pickholtz opined that, based on her daily activities and other interview responses, her impairment did not preclude work as long as she remained sober, took her medications, and continued with therapy. (Tr. 1103).
On March 9, 2016, Courtney Zeune, Psy.D., a state agency psychological consultant, adopted the mental RFC findings from the prior ALJ decision dated March 24, 2014, pursuant to the Drummond ruling, explaining that there was no new/material evidence. (Tr. 148, 163).
On June 1, 2016, nurse Alaimo completed a checklist medical source statement concerning Plaintiff's mental capacity. (Tr. 1196-1197). She listed Plaintiff's diagnoses as recurrent depression and comorbid medical problems (Tr. 1197). In the area of making occupational adjustments, she indicated that Plaintiff could occasionally follow work rules, maintain attention and concentration for extended periods of two-hour segments, respond appropriately to changes in routine settings, deal with the public, relate to coworkers, interact with supervisors, function independently without redirection, deal with work stress, complete a normal workday and workweek without interruption from psychologically based symptoms, and perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 1196). However, she could rarely maintain regular attendance and be punctual within customary tolerance. Id. In the area of intellectual functioning, Plaintiff could occasionally understand, remember, and carry out detailed to complex job instructions. (Tr. 1197). In the area of making personal and social adjustment, she could occasionally socialize, behave in an emotionally stable manner, and leave home on her own. Id.
On November 14, 2016, nurse Alaimo completed a second checklist mental medical source statement. (Tr. 1300-01). She listed Plaintiff's diagnoses as recurrent depression and PTSD. (Tr. 1301). She opined Plaintiff could occasionally maintain attention and concentration for extended periods of 2 hour segments, maintain regular attendance and be punctual within customary tolerances, deal with the public, work in coordination with or proximity to others without being distracted or distracting, deal with work stress, and complete a normal workday/workweek without interruption from psychologically based symptoms. (Tr. 1300). In the area of intellectual functioning, Plaintiff could constantly or frequently perform all tasks. (Tr. 1301). In the area of making personal and social adjustment, Plaintiff could occasionally behave in an emotionally stable manner and relate predictably in social situations. Id.
At the January 20, 2017 hearing, Plaintiff testified as follows:
The ALJ found that the following jobs qualified as past relevant work: telemarketer, psychiatric aide, fast food manager, and customer service representative. (Tr. 85). The ALJ posed the following hypothetical question to the VE:
(Tr. 85-86).
The VE testified that such an individual could perform the telemarketer job and the customer service representative job. (Tr. 86). The VE further identified the following jobs as representative examples of work that the hypothetical individual could perform: office helper, Dictionary of Occupational Titles ("DOT") 239.567-010, light, unskilled, SVP of 2 (90,000 jobs nationally); mail clerk, DOT 209.687-026, light, unskilled, SVP of 2 (90,000 jobs nationally); copy machine operator, DOT 207.685-014, light, unskilled, SVP of 2 (55,000 jobs nationally). (Tr. 86).
The ALJ posed a second hypothetical asking the VE to assume the same hypothetical person but who can "only lift and/or carry 10 pounds occasionally and less than 10 pounds frequently some, she can sit for six hours in an eight-hour workday as well as stand and/or walk for two hours in an eight-hour workday." (Tr. 87). The VE testified that the telephone solicitor and customer service representative jobs again remained. (Tr. 87). The VE further identified the following jobs as representative examples of work that the hypothetical individual could perform: charge account clerk, DOT 205.367-014, sedentary, unskilled, SVP of 2 (65,000 jobs nationally); bench assembler, DOT 713.687-026, sedentary, unskilled, SVP of 2 (100,000 jobs nationally); and, surveillance system monitor, DOT 375.367-010, sedentary, unskilled, SVP of 2 (60,000 jobs nationally). Id.
The ALJ proceeded to inquire about the impact of a limitation to simple, routine tasks and only simple work-related decisions to the previous hypotheticals. (Tr. 88). The VE responded that such limitations would eliminate all past relevant work, but the previously identified jobs would remain. (Tr. 88).
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6
The Commissioner determines whether a claimant is disabled by way of a five-stage process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6
The ALJ made the following findings of fact and conclusions of law:
(Tr. 21-35).
Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6
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. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6
In her first assignment of error, Plaintiff asserts that the ALJ violated the treating physician rule by failing to ascribe appropriate weight to the opinions of Dr. Herrera and clinical nurse specialist Harrington. (R. 11-1, PageID# 1386-1391).
The court finds that the treating physician rule is not implicated by the opinions of Dr. Herrera or nurse Harrington.
Moreover, while the Commissioner has not specifically argued that Dr. Herrera was not a licensed physician when the opinion in question was rendered, the Commissioner expressly points out in her recitation of the facts that Dr. Herrera was "graduating" at some time after the disputed opinion was rendered. (R. 13-1, PageID# 1409). Other portions of the treatment record clearly indicate Dr. Herrera was being supervised by another physician. (Tr. 553). This reference to graduation naturally raises the question of whether Dr. Herrera was a licensed to practice medicine in the State of Ohio and whether his opinions constitute "medical opinions," or whether he can reasonably be construed as a "treating source."
Pursuant to the regulations, "[m]edical opinions are statements from physicians and psychologists or other acceptable medical sources . . ." 20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2). Thus, in order to be considered a "medical opinion," a statement must come from an "acceptable medical source." To clarify any ambiguity in the regulations, Social Security Ruling ("SSR") 06-03p, 2006 WL 2329939 (S.S.A. Aug. 9, 2006), states as follows:
SSR 06-03p. 2006 WL 2329939 at *2 (emphasis added). In pertinent part, "acceptable medical sources" are defined by the regulations as follows:
(2) Licensed or certified psychologists. Included are school psychologists, or other licensed or certified individuals with other titles who perform the same function as a school psychologist in a school setting, for purposes of establishing mental retardation, learning disabilities, and borderline intellectual functioning only;
20 C.F.R. §§ 404.1513(a) and 416.913(a) (emphasis added).
At the time Dr. Herrera rendered his opinion on May 19, 2014, he had an "MD Training Certificate" from the State Medical Board of Ohio, as he did not become licensed as a "Doctor of Medicine" until August 27, 2014.
See http://www.med.ohio.gov/Apply/Training-Certificate-MD-DO-DPM#PracticeLimits (last accessed April 2, 2018) (emphasis added).
Therefore, on the date Dr. Herrera completed the forms, he had only a training certificate, and was not a "licensed physician" (i.e. medical doctor or doctor of osteopathic medicine). Because Dr. Herrera was not an "acceptable medical source" when he authored the opinion, he also cannot be construed as a treating source per SSR 06-03p. Consequently, the treating physician rule is inapplicable to Dr. Herrera's opinion. At most, Dr. Herrera could be construed as an "other source" under the regulations, which include "medical sources" who are not designated as "acceptable medical sources," such as nurse practitioners, physicians assistants, chiropractors, and therapists. 20 C.F.R. §§ 404.1513(d), 416.913(d). This finding is consistent with other decisions from this court. See, e.g. Thurman v. Comm'r of Soc. Sec., No. 1:12-CV-2034, 2013 WL 2358579, at *6 (N.D. Ohio May 29, 2013) (finding that because Dr. Ibrahim "had a training certificate, he was not a `licensed physician' under the regulations" and could only be considered an "other" medical source);
The opinions of "other sources" such as Dr. Herrera and nurse Harrington, however, should be considered. SSR 06-3p states:
SSR 06-3p, 2006 WL 2329939 at *6. The ALJ addressed Dr. Herrera's opinion as follows:
(Tr. 29-30).
Here, the ALJ plainly satisfied the requirement that the opinion of an "other source" be considered, and spent a full paragraph explaining why Dr. Herrera's opinion was afforded little weight. Therefore, the ALJ carried out the duty to consider and generally explain the evidence from an "other source." To require greater articulation or to require that the ALJ give "good reasons" for rejecting the opinion of another source would impermissibly extend the scope of the treating physician rule.
With respect to the checklist opinion competed by nurse Harrington on May 5, 2016, (Tr. 1104-1105), the ALJ plainly identified her opinion and reiterated the limitations set forth therein. (Tr. 32). The ALJ noted that nurse practitioner's opinions are not considered the opinions of acceptable medical sources. Id. However, while the ALJ considered the opinion, the ALJ did not expressly explain the weight ascribed to the opinion, but it can be inferred that the ALJ rejected her opinion to the extent it conflicted with the RFC.
Nevertheless, to the extent any error resulted from the ALJ's failure to further articulate the weight accorded to nurse Harrington's opinion, the court finds any error harmless. Numerous decisions have found that the use of checklist or check-the-box forms that contain little to no accompanying explanation for the assessed limitations—even when utilized by a treating physician or acceptable medical source—are unsupported opinions and, therefore, an ALJ may properly reject source opinions contained in such forms.
The Hernandez decision explained that "[e]ven if the ALJ erred in failing to give good reasons for not abiding by the treating physician rule, it was harmless error" where the opinion in question was an unsupported check-box opinion. Id.; accord Shepard v. Comm'r of Soc. Sec., No. 17-1237, 2017 WL 4251707, at *4 (6
Nurse Harrington's May 2016 opinion mirrors the unexplained and unsupported checklist/checkbox opinions disfavored in the above cited cases. As set forth in the recitation of the medical evidence, supra, the form completed by the nurse contains checked boxes devoid of any meaningful explanation for the limitations assessed. (Tr. 1104-1105). In fact, the form does not even contain a diagnosis that would suggest the conditions that cause the alleged limitations. Id. Where the form requests "the medical findings that support this assessment," nurse Harrington simply wrote "office test." (Tr. 1104). Given that the form does not contain a diagnosis—let alone any meaningful explanation as to how Plaintiff's symptoms would cause the alleged listed restrictions—the court deems the opinion "patently deficient." Therefore, any omission stemming from the ALJ's discussion of said opinion is harmless error.
Therefore, the court finds Plaintiff's first assignment of error is without merit.
In the second assignment of error, Plaintiff argues that the ALJ should have granted more weight to the opinions of the mental health nurses, Mr. Sims and Ms. Alaimo, who saw her for treatment purposes. (R. 11-1, PageID# 1392-1396). Plaintiff asserts that the ALJ erred by ascribing greater weight to the opinion of Dr. Pickholtz, who saw Plaintiff only once, over the opinions of the nurses who saw Plaintiff on a regular basis. (R. 11-1, PageID# 1395).
The ALJ gave less than full weight to nurse Sims's opinion finding it was "not consistent with his own treatment records." (Tr. 30). The ALJ also gave little weight to the opinion of nurse Alaimo because "it was not consistent with the examination findings or opinion of Dr. Pickholtz who is an acceptable medical source" and because "it was inconsistent with the claimant's own reported activities." (Tr. 33). The ALJ, conversely, gave "great weight to Dr. Pickholtz." (Tr. 31).
Plaintiff concedes that Dr. Pickholtz was an "acceptable medical source" while the nurses qualify merely as non-acceptable "other sources," but still maintains it was error for the ALJ to credit the former over the latter. (R. 11-1. PageID# 1395). Simply put, Plaintiff cites no authority that stands for the proposition that it is reversible error for an ALJ to credit the opinion of an examining and "acceptable medical source" such as Dr. Pickholtz over the opinion of an "other source" such as a nurse practitioner. Plaintiff's reliance on Snell v. Comm'r of Soc. Sec., No. 3:12-CV-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013), though a decision that is not binding on this court, is misplaced. Therein, the court noted that there is a "hierarchy of acceptable medical source opinions. The hierarchy begins at the top with treating physicians or psychologists, . . . [ne]xt in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once," followed lastly by non-examining physicians. Id. (emphasis added). The Snell case does not suggest that an ALJ errs by crediting an examining psychologist over a source that does not even appear in the hierarchy of acceptable medical sources.
The remaining regulations and cases cited by Plaintiff are similarly inapposite. (R. 11-1, PageID# 1396). As discussed above, "[m]edical opinions are statements from physicians and psychologists or other acceptable medical sources. . . ." 20 C.F.R. §§ 404.1527(a)(2) & 416.927(a)(2) (emphasis added). Thus, the opinions of the nurses do not fall into the category of "medical opinions." Further, the ALJ expressly set forth the weight he ascribed to the opinions of Mr. Sims and Ms. Alaimo, and explained his reasons why.
Plaintiff's second assignment of error is, therefore, without merit.
In her third assignment of error, Plaintiff contends that the ALJ failed to perform a proper pain analysis. Plaintiff contends that Social Security Ruling ("SSR") 16-3p, Evaluation of Symptoms in Disability Claims, 2017 WL 5180304 (S.S.A. Oct. 25, 2017) applies to this action. The court agrees. By its express terms, it applies to "determinations and decisions on or after March 28, 2016."
(2) the location, duration, frequency, and intensity of pain or other symptoms; (3) factors that precipitate and aggravate the symptoms; (4) the type, dosage, effectiveness, and side effects of any medication an individual takes or has taken to alleviate pain or other symptoms; (5) treatment, other than medication, an individual receives or has received for relief of pain or other symptoms; (6) any measures other than treatment an individual uses or has used to relieve pain or other symptoms; and, (7) any other factors concerning an individual's functional limitations and restrictions due to pain or other symptoms. SSR 16-3p at *4-8 (same factors as in SSR 96-7p).
However, an ALJ is not required to accept a claimant's subjective complaints. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6
The ALJ addressed the credibility of Plaintiff's alleged limitations in a lengthy discussion of the evidence:
(Tr. 25-26).
Plaintiff's argument sets forth some of the standards with respect to a pain analysis, but does not clearly pinpoint shortcomings in the ALJ's decision. Instead, Plaintiff's brief simply reiterates some of the medical evidence of record and suggests that, based on the evidence cited, the ALJ should have found greater limitations. (R. 11-1, PageID# 1397-1400). This is tantamount to an invitation for this court to reweigh the evidence and determine that it supports a finding that Plaintiff was more credible than determined by the ALJ. The court declines to do so, as this extends beyond the court's appropriate level of review. "When deciding under 42 U.S.C. § 405(g) whether substantial evidence supports the ALJ's decision, we do not try the case de novo, resolve conflicts in evidence, or decide questions of credibility." Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6
The closest Plaintiff's brief comes to identifying a deficiency in the ALJ's credibility analysis is the ALJ's failure to specifically discuss pain medication in his credibility analysis. (R. 11-1, PageID# 1397). The ALJ does not specifically discuss pain medications in the credibility portion of his discussion (Tr. 25-26), but does note later in the opinion that "on September 15, 2016 for bilateral knee pain [during an ER visit for] lower back pain and a sinus infection (Ex. B18F/4)[,] [s]he said that she did not have any pain medications at home (Ex. B18F/5)."
Moreover, the above quoted portion of the decision reveals that the ALJ discussed several of the seven factors set forth in SSR 16-3p for finding Plaintiff less than fully credible. These included Plaintiff's daily activities, the conservative nature of the treatment of Plaintiff's pain inducing ailments, and the rather mild to moderate objective and diagnostic findings in comparison to the high levels of pain alleged by Plaintiff. (Tr. 25-26). Though some greater discussion of Plaintiff's pain medications and their efficacy would undoubtedly have been preferable, an ALJ is not required to analyze all seven factors, but should consider the relevant evidence. See, e.g., Cross v. Comm'r of Soc. Sec., 373 F.Supp.2d 724, 733 (N.D. Ohio 2005) (Baughman, M.J.) ("The ALJ need not analyze all seven factors identified in the regulation but should provide enough assessment to assure a reviewing court that he or she considered all relevant evidence"); Masch v. Barnhart, 406 F.Supp.2d 1038, 1046 (E.D. Wis. 2005) (finding that neither SSR 96-7p nor the regulations "require the ALJ to analyze and elaborate on each of the seven factors when making a credibility determination"); Wolfe v. Colvin, No. 4:15-CV-01819, 2016 WL 2736179, at *10 (N.D. Ohio May 11, 2016) (Vecchiarelli, M.J.); Allen v. Astrue, No. 5:11CV1095, 2012 WL 1142480, at *9 (N.D. Ohio Apr. 4, 2012) (White, M.J.). SSR 16-3p itself states that where "there is no information in the evidence of record regarding one of the factors, we will not discuss that specific factor," but rather will only "discuss the factors pertinent to the evidence of record." Id. at *8. Furthermore, Plaintiff fails to offer any meaningful argument as to how greater discussion of her pain medications would have necessarily resulted in the conclusion that her pain allegations were more credible than found by the ALJ.
Given the high level of deference owed to an ALJ's findings with respect to the evaluation of a claimant's alleged symptoms and resulting limitations, under the circumstances presented herein, the court does not find the ALJ's pain analysis was insufficient. Thus, Plaintiff's final assignment of error is without merit.
For the foregoing reasons, it is recommended that the Commissioner's final decision be AFFIRMED.
Patterson v. Colvin, No. 13-CV-1040-JDB-TMP, 2016 WL 7670058, at *8 (W.D. Tenn. Dec. 16, 2016), report and recommendation adopted, 2017 WL 95462 (W.D. Tenn. Jan. 10, 2017). While the court applies the new SSR, it declines to engage in verbal gymnastics to avoid the term credibility where usage of the term is most logical. Furthermore, there is no indication that the voluminous case law discussing and applying the credibility or symptom analysis governed by SSR 96-7p has been invalidated by SSR 16-3p.
