KENNETH S. McHARGH, Magistrate Judge.
This case is before the Magistrate Judge pursuant to the consent of the parties. (Doc. 12). The issue before the undersigned is whether the final decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Larry Perkins's ("Plaintiff" or "Perkins") applications for Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., and for a Period of Disability and Disability Insurance ("DIB") benefits under Title II of the Social Security Act, 42 U.S.C. §§ 416(i) and 423, is supported by substantial evidence and, therefore, conclusive.
For the reasons set forth below, the Court AFFIRMS the Commissioner's decision.
Plaintiff filed prior applications for SSI and DIB benefits in December 2005. (Tr. 130). After the Social Security Administration denied these applications initially and upon reconsideration, Administrative Law Judge ("ALJ") Peter Beekman issued an unfavorable decision dated September 20, 2007. (Tr. 130-39). This decision is hereinafter referred to as the "2007 Disability Determination." Perkins did not appeal this decision to the Appeals Counsel, thus making the ALJ's September 20, 2007, decision the final decision of the Commissioner.
On January 22, 2008, Perkins filed the SSI and DIB benefits applications that are currently at issue before the Court. (Tr. 253-55, 256-59). Plaintiff alleged that he became disabled on October 1, 2007, due to suffering from arthritis of both feet and diabetes. (Tr. 253, 256, 281). The Social Security Administration denied his claims initially and upon reconsideration. (Tr. 172-78, 186-94).
At Plaintiff's request, an administrative hearing was held before ALJ Dennis LeBlanc on May 7, 2010. (Tr. 153). On July 21, 2010, ALJ LeBlanc issued an unfavorable decision. (Tr. 150-61). Plaintiff appealed the decision to the Appeals Council, which vacated ALJ LeBlanc's determination and remanded the case for further proceedings. (Tr. 166-70).
Pursuant to the Appeals Council's order, a supplemental administrative hearing was held on September 13, 2012, before ALJ Thomas Randazzo. (Tr. 28-82). Plaintiff, represented by counsel, appeared and testified before the ALJ. (Id). A vocational expert ("VE"), Nancy Borgenson, and a medical expert ("ME"), Hershel Goren, also appeared and testified. (Id.).
On November 16, 2012, ALJ Randazzo issued an unfavorable decision, finding Plaintiff was not disabled. (Tr. 12-22). After applying the five-step sequential analysis,
Plaintiff now seeks judicial review of the ALJ's final decision pursuant to
Plaintiff was born on December 28, 2015, and was 51-years-old on the alleged disability onset date, making him an "individual closely approaching advanced age."
In September 1999, Plaintiff was treated at the Cleveland Clinic for bilateral foot pain. (Tr. 343). He was diagnosed with bilateral sinus tarsi pain with subtalar arthrosis. The physician recommended the options of using a brace, medication, or surgery. (Id.).
On November 29, 2005, Plaintiff presented at South Pointe Hospital with complaints of nausea, vomiting, and dizziness. (Tr. 374). Perkins was admitted, treated for diabetes ketoacidosis, and subsequently discharged in an improved condition on December 2, 2005. (Id.). During the admission, Perkins underwent a psychological consultation which resulted in a diagnosis of alcohol dependency and depressive disorder. (Tr. 384).
On June 19, 2007, treatment notes from the emergency department at MetroHealth Medical Center indicated Plaintiff presented for the first time in a number of years. (Tr. 436). Plaintiff complained of polyuria, polyphagia, unintended weight loss, and pain to both feet and knees. Perkins explained he suffered from his pain symptoms for months, but the remainder of his symptoms began two weeks prior when he ran out of insulin, due to being unable to finance a refill. (Id.). The physician diagnosed hyperglycemia and noncompliance with medication. (Tr. 437). Plaintiff was treated with fluids and insulin, and was given a voucher for one month of medication. He was advised to get a job where he was required to sit, rather than stand. (Id.).
From August 2007 through January 2008, Perkins attended a monthly appointment to manage his diabetes at Care Alliance. (Tr. 452-61). During his October 2007 visit, Plaintiff reported that he had stopped smoking three months prior and drinking alcohol six months prior. (Tr. 457). He was diagnosed with diabetes mellitus, poorly controlled; diabetic neuropathy; and hypertension. Neurontin was added to his medications. (Id.).
On April 18, 2008, Plaintiff underwent a physical consultative evaluation conducted by Wilfredo Paras, M.D. (Tr. 493-94, 497-500). Based on Perkins's reports, Dr. Paras concluded that Perkins suffered from a history of diabetes mellitus; hypertension; arthritis in the knees, ankles, and low back; hepatitis B; and depression. (Tr. 493-94). Dr. Paras noted that recent xrays showed mild degenerative change in the right knee and no acute pathology in the right ankle. (Tr. 494-96).
Dr. Paras explained that based on Perkins's description of his medical history and objective findings, his ability to perform work related physical activities was limited by frequent dizzy spells, constant pain in both knees and ankles, pain in the low back, and symptoms of diabetic peripheral neuropathy. (Tr. 494). The doctor also stated that manual muscle testing and range of motion examination revealed pain in the knees on limited flexion, pain in the right elbow on limited range of motion testing, stiffness in the low back on limited range of motion testing, and limited flexion in the hips. (Id.).
On May 28, 2008, state agency reviewing physician Jon Starr, M.D., found that Plaintiff could perform a range of medium work that included lifting 50 pounds occasionally and 25 pounds frequently; standing, walking, or sitting for a total of 6 hours in an 8-hour workday; occasionally balancing; and avoiding concentrated exposure to hazards. (Tr. 502-05). Dr. Starr explained that he examined the findings from the 2007 Disability Determination, but that Perkins's current file contained new and material changes. (Tr. 508). The doctor further explained that the prior RFC was not being adopted because new information showed that Plaintiff had degenerative changes in his knees and a current physical examination revealed a reduced range of motion. Dr. Starr also opined that while Plaintiff suffered from diabetes, he was non-compliant with treatment and there was no objective medical evidence to show neuropathy. (Id.).
In August 2008, state agency reviewing physician Nick Albert, M.D., conducted a second review of Perkins's file. (Tr. 510-17). He concurred with Dr. Starr's opinion, but added limitations of frequent climbing, kneeling, crouching, and crawling, as well as occasional stooping. (Tr. 512).
Perkins presented to MetroHealth Medical Center on September 15, 2008, for treatment of diabetes. (Tr. 613). It was noted that Plaintiff's diabetes was poorly controlled and the concept of diabetic self-management was discussed. (Tr. 616).
In November 2008, Plaintiff treated with Kelly Jones, M.D., for pain in his low back, legs, and feet. (Tr. 591). Perkins's neurological examination was normal as was his gait. (Tr. 592). There was mild pain in range of motion of the lumbar spine and muscle weakness in the bilateral lower extremities. (Id.). Dr. Kelly prescribed pool therapy and a TENS unit. (Tr. 593). The doctor stressed the importance of showing up for appointments. (Id.).
November 2008 x-rays of Plaintiff's knees showed mild medial compartment narrowing with secondary osteoarthritis in the right knee. (Tr. 586). A small joint effusion was also present. The left knee showed mild medial compartment narrowing with minimal osteophyte formation. There was minimal joint effusion. (Id.).
On January 15, 2009, Perkins returned to MetroHealth due to continuous sharp, burning pain made worse by standing and walking. (Tr. 570). Plaintiff stated his pain was in his lumbar spine, knees, and feet. Plaintiff reported trying to exercise to bring his blood sugar down, but pain made it unable to tolerate. Perkins was given a prescription of Neurontin and instructed to continue Ultram and protect his back while performing a regular program of improving strength and flexibility. (Tr. 570-71).
On January 16, 2009, Plaintiff treated with podiatrist Michael Bodman for complaints of foot pain. (Tr. 567-69). A vascular examination showed the right and left posterior tibial pulses were not palpable and the right and left dorsalis pedis pulses were barely palpable. (Tr. 568). There was minor venous insufficiency. A neurological examination showed a lessened vibratory sensation in both feet. (Id.). The podiatrist also described Plaintiff's toenails as yellow, thickened, and subungual. (Tr. 569). Perkins had an adequate range of motion in his feet and ankles, no joint swelling, normal muscular strength, and a normal gait. Dr. Bodman diagnosed onychomycosis with pain, nail dystrophy, hyperkeratoses, and early vascular disease without acute ischemia. The doctor recommended treatment of Plaintiff's nail infection and a six week trial of Neurontin. (Id.).
On November 19, 2009, Perkins presented at MetroHealth due to right shoulder pain and dizziness. (Tr. 523). He indicated that his blood sugar was high, though he rarely checked it. Plaintiff stated that he felt dizzy everyday throughout the day. It was noted that his schizophrenia was poorly controlled and he had been cutting his medication in half for months to make it last, though he had finally run out. (Id.). Perkins was diagnosed with diabetes and poorly controlled schizophrenia, which was making him unable to properly care for his diabetes. (Tr. 525). He was also diagnosed with rotator cuff syndrome and prescribed Naproxen. (Tr. 526).
In January 2010, Plaintiff presented to MetroHealth for a diabetes follow up, and also complained of right shoulder pain and bilateral knee pain. (Tr. 623-26). A physical examination was normal aside from decreased strength in the lower extremities, though poor effort was noted. (Tr. 625).
On December 30, 2010, Plaintiff returned to MetroHealth for a refill of blood pressure medication, but was agitated due to leg pain. (Tr. 698). He reported having trouble walking and using a cane. The physician recommended knee x-rays and Motrin for pain. (Id.).
Plaintiff underwent a series of x-rays in January 2011. (Tr. 704). An x-ray of the lumbar spine showed degenerative changes throughout. An x-ray of the left knee showed mild degenerative changes. The right knee had mild narrowing of the medial aspect of the knee joint space, which was slightly worse than the prior study of November 2008. (Id.).
In February 2011, Plaintiff was seen by Brendon Astley, M.D. (Tr. 713-18). The physician reviewed Plaintiff's x-rays and conducted a physical examination. (Id.). Plaintiff's lumbar spine flexion was not painful and extension was mildly painful. (Tr. 717). The lumbar spine was tender to palpation. (Id.). His sensation was decreased to vibration and strength was slightly decreased in the right and left lower extremities. (Tr. 718). Dr. Astley diagnosed primarily localized osteoarthrosis in the lower leg and recommended pool therapy, weight control, and physical therapy. The doctor also noted that diabetic neuropathy was Plaintiff's main issue and prescribed Lyrica because Neurontin failed in the past. (Id.).
On April 7, 2011, Plaintiff attended a follow up appointment for high blood sugar. (Tr. 759-62). His Metformin and insulin were increased. (Tr. 762).
On March 26, 2008, Perkins underwent a mental status examination with psychologist Sally Felker, Ph.D. (Tr. 468-72). Plaintiff indicated that he had problems with depression, anxiety, trouble sleeping, frequent crying spells, and physical pain. (Tr. 469). Dr. Felker observed no delusional or paranoid thoughts or hallucinations. (Id.). Plaintiff's attention span and ability to concentrate were restricted, while his insight and judgment were fair. (Tr. 470). Dr. Felker diagnosed dysthymia and chronic pain disorder associated with psychological factors and a medical condition. (Tr. 471). She assigned a Global Assessment of Functioning ("GAF")
Dr. Felker opined that Perkins had mild impairments in his ability to concentrate and attend to tasks. His ability to understand and follow directions was not impaired, but his capacity for carrying out tasks was compromised because of chronic pain and a depressed mood. Plaintiff's ability to relate to others and deal with the public was moderately impaired. Additionally, Plaintiff's ability to relate to work peers, supervisors, and to tolerate stress in the workplace was moderately restricted due to chronic pain and depression. (Id.).
On April 10, 2008, state agency reviewer Steven Meyer, Ph.D., assessed the record. (Tr. 473-89). He found evidence of an affective disorder and substance abuse disorder. (Tr. 473). Dr. Meyer opined that Plaintiff was mildly limited in activities of daily living and maintaining social functioning. (Tr. 483). Perkins was moderately limited in his ability to maintain concentration, persistence, or pace. (Id.). Dr. Meyer adopted the findings of the prior ALJ because there was no substantive or material change in the current medical evidence. (Tr. 489). The prior mental residual functional capacity was that Plaintiff had mild limitations in his ability to perform non-complex work. On August 13, 2008, state agency reviewer Vicki Casterline, Ph.D., affirmed Dr. Meyer's assessment. (Tr. 509).
On October 8, 2008, Pamela Budak, LISW, performed a mental health assessment of Perkins. (Tr. 603-07). Plaintiff explained that he was experiencing auditory hallucinations, which had begun one year prior. (Tr. 603). His other symptoms included depression, anxiety, decreased sleep, agitation, decreased concentration, visual hallucinations, an increase in isolation, crying spells, and anhedonia. (Tr. 604). Budak described Perkins as having poor hygiene, but being well-oriented and cooperative, having clear and coherent speech, displaying a logical and organized thought process, having good judgment, and demonstrating sustained attention and concentration. (Tr. 606). Plaintiff described his mood as "like a roller coaster." (Id.). Budak diagnosed major depression with psychotic features and assigned a GAF score in the range of 51 to 60, indicating moderate symptoms. (Tr. 607). She recommended outpatient psychiatric treatment. (Id.).
On October 10, 2008, Plaintiff met with Michael Tran, M.D. (Tr. 600-01). Aside from Plaintiff's statements of auditory and visual hallucinations and a depressed mood, his mental status examination was largely normal. (Tr. 600-01). Plaintiff's thought process was logical, he was calm and friendly, his speech was clear, and his attention and concentration were sustained. (Id.). Dr. Tran opined that Perkins was stable but depressed and stressed. (Tr. 601). Plaintiff was prescribed Abilify and instructed to continue Zoloft. (Id.).
Perkins returned to Dr. Tran on November 12, 2008. (Tr. 589-90). Plaintiff stated that he was doing better, including feeling less depressed and anxious and having improved sleep. (Tr. 589). However, he also indicated that his concentration was poor; he had decreased energy, motivation, and interest; and increased worry. Plaintiff indicated that Abilify decreased his auditory hallucinations, but he had run out of medication about one week prior and the hallucinations had returned. A mental status examination was normal aside from an anxious and sad mood. (Id.). Dr. Tran opined that Perkins was stable, but depressed, stressed, and psychotic. (Tr. 590). The doctor increased Abilify and continued Plaintiff on Zoloft. (Id.).
On December 12, 2008, Plaintiff returned to Dr. Tran and reported a better mood and less auditory hallucinations due to taking Abilify. (Tr. 582-83). Dr. Tran opined that Perkins was stable but stressed. (Tr. 583). The doctor discontinued Abilify due to cost and started Plaintiff on Invega. (Id.). Later that month, Plaintiff returned to Dr. Tran with reports that he was doing worse, with feelings of depression, anxiety, poor sleep, confused thinking, and auditory hallucinations. (Tr. 578-79). Plaintiff felt Invega was not helpful. Perkins' mental status examination was normal, aside from a depressed and anxious mood. (Tr. 578-79). Dr. Tran discontinued Invega and restarted Abilify. (Tr. 579).
On January 6, 2009, Plaintiff's behavioral health care was transferred to Tina Oney, APN. (Tr. 565). Oney performed an examination of Perkins, during which he described auditory hallucinations, depression, loneliness, low motivation, anxiety, and poor concentration. (Tr. 574). After an objective mental status examination, Oney described Perkins as cooperative, anxious, well oriented, displaying clear and goal-directed speech, having a logical and organized thought process, good recent and remote memory, sustained attention and concentration, and having a depressed mood. (Id.). Oney diagnosed major depression with psychotic features and assigned a GAF score in the range of 51-60. (Tr. 576).
Plaintiff treated with Oney again on February 12, 2009. (Tr. 553). Plaintiff indicated that he was easily agitated, forgetful, and paranoid. (Id.). Aside from a depressed mood and auditory hallucinations, Perkins's mental status examination was generally normal. (Tr. 553-54).
On May 4, 2009, Perkins reported to Oney that he was no longer as depressed and felt medication was helping. (Tr. 536). He indicated that auditory hallucinations had lessened since taking Seroquel. However, Perkins still felt unable to take the bus due to paranoia and was having issues with his physical health. (Id.). Oney diagnosed schizophrenia and recommended that Plaintiff continue his current Seroquel dose. (Tr. 538).
On December 12, 2009, Oney, under the supervision of K. Brocco, M.D., completed a mental residual functional capacity assessment. (Tr. 519-20). Oney opined that Perkins was "extremely limited" in all work-related mental activities. (Tr. 519). She explained that Plaintiff was very paranoid and unable to tolerate people or public places, was easily agitated by others, and had a low tolerance for frustration. (Tr. 520).
On May 11, 2010, Perkins reported to Oney that his medications were helpful and he was less depressed. (Tr. 639). He also indicated that his sleep had improved and auditory hallucinations were less. (Id.). Oney recommended continuing Seroquel for paranoia. (Tr. 640).
In July 2010, Plaintiff reported that his anxiety had recently worsened, but he was sleeping better and experienced less depression. (Tr. 657-58). His mental status examination was generally normal, aside from poor memory and a variable attention span (Id.). Plaintiff's mood was euthymic. (Tr. 658). During December 2010, Oney increased Zoloft to combat Perkins's depression and stopped Seroquel to see if Perkins's glucose control would improve. (Tr. 787-88).
During Plaintiff's administrative hearing, medical expert Dr. Hershel Goren testified as to Plaintiff's physical and mental impairments after having conducted a review of all the medical evidence. (Tr. 48). Dr. Goren testified that he could not identify any impairments arising from Plaintiff's physical ailments like diabetes or symptoms of pain. (Tr. 49).
In regard to mental impairments, Dr. Goren opined that Plaintiff had major depressive disorder and pain disorder associated with psychological factors and his general medical condition. (Id.). The doctor found that Plaintiff suffered from mild difficulties in activities of daily living and maintaining concentration, persistence, or pace. (Tr. 51). He indicated moderate difficulties in maintaining social functioning. (Id.). Dr. Goren testified that Plaintiff could perform work that involved only superficial interpersonal interaction with supervisors, coworkers, and the general public. (Tr. 52). Plaintiff could not be involved in arbitration; negotiation; confrontation; supervision of others; and having responsibility for the health, safety, or welfare of others. (Id.).
The ALJ made the following findings of fact and conclusions of law:
(Tr. 15-21) (internal citations omitted).
A claimant is entitled to receive Disability Insurance and/or Supplemental Security Income benefits only when she establishes disability within the meaning of the Social Security Act.
Judicial review of the Commissioner's benefits decision is limited to a determination of whether, based on the record as a whole, the Commissioner's decision is supported by substantial evidence, and whether, in making that decision, the Commissioner employed the proper legal standards.
The Commissioner's determination must stand if supported by substantial evidence, regardless of whether this Court would resolve the issues of fact in dispute differently or substantial evidence also supports the opposite conclusion.
Plaintiff contends that the ALJ erred under
The Commissioner maintains that the ALJ reasonably declined to be bound by the 2007 determination based on new and material evidence in the administrative record, including all of the updated medical evidence. The Commissioner specifically points to Plaintiff's failure to comply with treatment for his diabetes, and a lack of limitations arising from Plaintiff's degenerative joint and disc disease in the knees, back, and ankles.
In Drummond, the Sixth Circuit confronted the question of whether the principles of res judicata applied against the Commissioner of Social Security on claims which have been previously determined.
Following the Drummond decision, the Social Security Administration ("SSA") issued Acquiescence Ruling 98-4(6), which explained how the SSA would apply Drummond within the Sixth Circuit, providing in relevant part:
In
In the present case, the ALJ acknowledged that the 2007 Disability Determination qualified as a prior final decision and described the res judicata principle and its application. (Tr. 12-13). The ALJ concluded that res judicata did not apply because there existed new and material evidence in the record regarding Plaintiff's impairments. (Id.). The ALJ acknowledged the existence of new non-severe physical impairments as well as an element of neuropathy connected to Plaintiff's diabetes. (Id.). Despite these new medical issues, the remainder of the ALJ's opinion adequately identified new and material evidence of improvement sufficient to overcome the res judicata effect of the prior determination that Plaintiff was limited to light work. For example, state agency reviewing physicians Drs. Starr and Albert both concluded that Perkins could perform medium work. (Tr. 19, 502-05, 510-17). Additionally, medical expert Dr. Goren had the opportunity to review the entire record and opined that Plaintiff did not have any exertional limitations. (Tr. 20, 48-49).
Although Plaintiff argues that the record supports the conclusion that his conditioned had worsened, the evidence he points to does not sufficiently undermine the substantial evidence of improvement set out in the ALJ's opinion. As the court explained in Drummond, the substantial evidence standard still applies to the review of the ALJ's conclusion that a claimant's condition has improved.
Perkins' second allegation of error provides that the ALJ inappropriately evaluated the opinion of advanced practice nurse Tina Oney. Plaintiff maintains that the ALJ's analysis of the opinion failed to comply with Social Security Ruling 06-03p. Furthermore, he argues that it was inappropriate for the ALJ to accord only little weight to Oney's opinion because Oney's treatment notes support the mental limitations she assigned and she had established a longitudinal treatment relationship.
Oney began treating Plaintiff in January 2009, after his care was transferred from Dr. Tran. (Tr. 565). On December 12, 2009, Oney, under a physician's supervision, completed a mental residual functional capacity assessment in which she opined that Perkins was "extremely limited" with regard to all types of work-related mental activities. (Tr. 519). In support of these findings, she cited Plaintiff's paranoia, inability to tolerate people or public places, and low tolerance for frustration. (Tr. 520).
Social Security Ruling ("S.S.R.") 06-03p explains how the Commissioner should address opinions from sources who are not "acceptable medical sources," but rather, are deemed "other sources."
Here, the ALJ's assessment of nurse Oney's opinion follows the requirements of the ruling and is supported by substantial evidence. The ALJ set forth grounds supporting his decision to assign little weight to the opinion. (Tr. 20). The ALJ explained that the extreme limitations assigned by the nurse were not supported by Plaintiff's mental health treatment records from MetroHealth. Specifically, the ALJ noted that within these records, treatment providers assigned Plaintiff a GAF score representative of only moderate symptoms. (Id.).
The ALJ's conclusion that treatment notes from MetroHealth fail to bolster the extreme limitations assigned by Oney is substantially supported in the record. Earlier in his opinion, the ALJ acknowledges that these notes show symptoms of agitation, loneliness, social withdrawal, and some auditory and visual hallucinations. (Tr. 18). Nevertheless, Oney and other healthcare providers consistently assigned GAF scores that represented only moderate impairments. (Tr. 18-20). Additionally, MetroHealth records indicate improvement with medication. (Tr. 19, 582-83, 536). These treatment notes also consistently showed that Plaintiff's thought process was logical and organized, he was well oriented, his memory was intact, his speech was clear and goaldirected, and his attention and concentration were sustained. (See, e.g., Tr. 553-54, 574, 589, 600-01, 657-58). These objective findings as reflected in the treatment notes relied up on by the ALJ undermine Oney's conclusion that Plaintiff was extremely limited in all work-related mental activities. The ALJ's reasoning adequately articulates and supports his decision to assign little weight to Oney's opinion.
Perkins maintains that the ALJ ought to have discussed the factors set forth in the regulations when evaluating Oney's opinion. While S.S.R. 06-3p instructs that the ALJ may apply these factors, neither the ruling nor the regulations require the ALJ to engage in a factorby-factor analysis. Plaintiff cites no authority, and the Court is unaware of any, to support the proposition that the ALJ must articulate an assessment of each factor. So long as the ALJ's opinion conveys why the opinion was credited or rejected, the ALJ has satisfied his burden. Accordingly, Plaintiff's allegation of error is not well taken.
For the foregoing reasons, the Magistrate Judge finds that the decision of the Commissioner is supported by substantial evidence. Accordingly, the final decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.
