NANCY A. VECCHIARELLI, Magistrate Judge.
Plaintiff, Dale W. Cunningham ("Plaintiff"), challenges the final decision of Defendant, Carolyn W. Colvin, Acting Commissioner of Social Security ("Commissioner"), denying his applications for Period of Disability ("POD") and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"),
On March 26, 2009, Plaintiff filed applications for DIB and SSI, alleging a disability onset date of January 26, 2009 ("March 2009 Application"). (Administrative Transcript ("Tr.") 318, 380.) The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 224.) In July 2010, an ALJ conducted a hearing on Plaintiff's March 2009 Application. (Tr. 61-105.) On October 27, 2010, the ALJ issued a decision finding that Plaintiff was not disabled. (Tr. 116-27.) Plaintiff requested review by the Appeals Council. (Tr. 241-42.)
On March 21, 2011, while his request for review of his January 2009 Application was still pending, Plaintiff filed a second application for DIB and SSI, alleging a disability onset date of October 28, 2010 ("March 2011 Application). (Tr. 338, 352.) The application was denied initially and upon reconsideration, and Plaintiff requested an administrative hearing. (Tr. 271.)
On May 15, 2012, the Appeals Council granted Plaintiff's request for review of the October 2010 ALJ decision denying his March 2009 Application. (Tr. 195.) The Appeals Council consolidated proceedings in the March 2009 Application with proceedings in the March 2011 Application, and directed that an ALJ conduct a hearing on both applications. (Tr. 195-97.)
On August 16, 2012, an ALJ conducted the hearing required by the Appeals Council. (Tr. 24-60.) Plaintiff, who was represented by counsel, appeared and testified, as did a vocational expert ("VE"). (Tr. 24.) On February 8, 2013, the ALJ issued a decision finding that Plaintiff had not been disabled at any time between January 26, 2009 and the date of the ALJ's decision. (Tr. 1138.)
Plaintiff requested Appeals Council review of the February 2013 ALJ decision. (Tr. 6.) On July 22, 2013, the Appeals Council granted Petitioner's request for review, and notified Plaintiff that it intended to issue a partially favorable decision, finding him disabled as of February 7, 2013, but affirming the ALJ's decision with respect to the period of time from January 26, 2009 through February 6, 2013. (Tr. 312-17.) Plaintiff filed a statement agreeing that he was disabled on February 7, 2013, and arguing that he was also disabled during the earlier relevant period. (Tr. 512-13.)
On September 9, 2013, the Appeals Council issued a decision finding that Plaintiff was disabled as of February 7, 2013, but finding that he was not disabled prior to that date. (Tr. 1115-20.) That decision constitutes the final decision of the Commissioner in this case.
On November 8, 2013, Plaintiff filed his complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 17, 23, 24, 25.) Plaintiff argues that the Appeals Council erred in analyzing the opinions of his treating physician and his chiropractor when it determined that he was not disabled for the period from January 26, 2009 to February 7, 2013.
Plaintiff was born in May 1958. (Tr. 318.) He had past relevant work as a car body repairperson. (Tr. 385.) He had less than a tenth grade education. (Tr. 54.)
On January 5, 2009, Plaintiff reported to family physician Patrick N. Andre, M.D., that he had been experiencing anxiety, characterized by shaking, headaches, burning eyes, nausea and night sweats, for the prior four days. (Tr. 522.) Plaintiff reported a history of hepatitis C. (Id.) Dr. Andre diagnosed Plaintiff with adjustment disorder with anxious mood, and prescribed Lexapro. (Tr. 523.) Three days later, Plaintiff reported feeling better on the medication. (Tr. 520.)
On March 23, 2009, gastroenterologist Michael B. Ibach, M.D., examined Plaintiff to assess his hepatitis C. (Tr. 528-30.) Plaintiff reported periods of nausea, shaking and weight loss. (Tr. 528.) Dr. Ibach diagnosed Plaintiff with chronic hepatitis C, but noted that Plaintiff had no peripheral stigmata of chronic liver disease. (Tr. 529.) Dr. Ibach recommended that Plaintiff undergo Interferon and Ribavirin therapy, but Plaintiff declined to do so until he obtained medical benefits. (Id.)
An August 28, 2009 image of Plaintiff's left shoulder revealed moderate rotator cuff tendinosis with a shallow partial-thickness cuff tear. (Tr. 563.) An image of Plaintiff's lumbar spine taken that same date showed herniated discs at L3-4 and L4-5. (Tr. 565.)
On September 8, 2009, chiropractor Geoffrey Poyle, D.C., examined Plaintiff, who complained of back, shoulder and neck pain.
On July 28, 2010, family physician Monica Seo, M.D., examined Plaintiff, who complained of a lump on his neck. (Tr. 953.) Plaintiff reported that the lump had been dime-sized for approximately six months, but had recently swollen to the size of a baseball. (Id.) Dr. Seo diagnosed Plaintiff with a cyst and prescribed an antibiotic. (Id.)
On August 24, 2010, Dr. Seo examined Plaintiff for "comprehensive problem evaluation." (Tr. 949.) During the examination, Plaintiff denied any joint swelling, crepitus, joint pain, back pain, or loss of range of motion. (Tr. 950.) Dr. Seo diagnosed Plaintiff with a smoking-related wheeze, benign essential tremors, and hepatitis C. (Tr. 951.) She recommended smoking cessation, a neurology consult related to Plaintiff's tremors, a gastroenterology consult related to Plaintiff's hepatitis C, and immunizations. (Id.)
On September 23, 2010, Plaintiff complained to Dr. Seo of burning, itching and blurred vision in his eyes. (Tr. 947.) Dr. Seo diagnosed Plaintiff with sinusitis/rhinitis. (Id.) On January 4, 2011, Plaintiff reported a recent emergency room visit related to his tremors, as well as pain in his left groin. (Tr. 945.) Dr. Seo instructed Plaintiff to follow up with a neurologist for his tremors, and recommended that he follow up with an orthopedic physician for the pain in his leg. (Id.) On January 25, 2011, Dr. Seo noted Plaintiff's complaint of anxiety symptoms. (Tr. 940.) Dr. Seo prescribed Prozac. (Id.)
On a date subsequent to January 18, 2011,
On a date subsequent to January 25, 2011, Dr. Seo completed a state agency medical form. (Tr. 747-48.) She opined that Plaintiff could: stand and/or walk for two hours in an eight-hour workday, in five minute increments; and sit for three hours, in 30 minute increments. (Tr. 747.) She noted Plaintiff's report that he could not lift any weight due to his rotator cuff tear. (Id.) She opined that Plaintiff was: extremely limited in his ability to push/pull (noting, "can only do 5 minutes at a time"), and bend ("has immediate pain in back"); and moderately limited in his ability to handle ("difficulty with left arm[,] right arm okay but limited by tremors"), use repetitive foot movements ("difficulty with tremors"), and see ("blurs vision 25-30% of the time"). (Id.) Although Dr. Seo did not assign a specific limitation to Plaintiff's ability to reach, she noted, "can't with l[ef]t arm due to pain; right arm ok[ay]." (Id.) She opined that Plaintiff was unemployable. (Id.)
On January 31, 2011, neurologist Andrey S. Stojic, M.D.; Ph.D., examined Plaintiff, who complained of tremors. (Tr. 834.) Examination revealed mild postural tremors but "also tremors that fluctuate in severity with mild distractability." (Tr. 836.) Dr. Stojic diagnosed Plaintiff with tremors, non-epileptic seizures, neck pain, headaches and depression/anxiety. (Tr. 837.) She prescribed Lyrica. (Id.)
On February 14, 2011, Plaintiff reported to the emergency department at Lakewood Hospital, complaining of tremors in his pelvic area, left arm and both legs. (Tr. 869.) During an examination, Plaintiff's tremors stopped with resistance to his lower extremities. (Id.) When the examining physician noted this, Plaintiff opined that it was likely the result of medication he had been given by the emergency department staff. (Id.) Plaintiff did not complain of any joint or muscle pain or swelling. (Tr. 871.) The emergency room physician opined that the tremors were non-physiologic and "stopped when [Plaintiff] was distracted then remained gone when we commented that they ha[d] stopped." (Tr. 872.) The physician adjusted Plaintiff's medication and recommended that he follow up with a neurologist. (Id.)
On February 16, 2011, Plaintiff reported to the emergency department at EMH Regional Medical Center, complaining of tremors after taking his medication. (Tr. 895.) He reported having daily tremors for the prior two months, and stated that he believed he was having an allergic reaction to the medication. (Id.) Emergency physicians diagnosed him with chronic chest pain, and prescribed him Valium. (Tr. 902.)
On March 7, 2011, neurologist Kamal R. Chemali, M.D., performed a neuromascular assessment of Plaintiff. (Tr. 763-66.) Plaintiff described a 16-year history of chronic pain, as well as problems performing daily personal activities. (Tr. 765-66.) Dr. Chemali did not detect any neuromascular weakness. (Tr. 764.)
On March 9, 2011, neurologist Anwar Ahmed, M.D., examined Plaintiff "for a second opinion regarding his history of tremor." (Tr. 965.) Plaintiff reported experiencing "whole body tremor" at least five times each week. (Id.) Dr. Ahmed noted that Plaintiff's tremors were distractable. (Tr. 966.) Dr. Ahmed recommended that Plaintiff undergo testing for hypothyroidism and Wilson's disease. (Id.) He opined that the etiology of Plaintiff's tremors was unclear, but advised Plaintiff to follow up on an as-needed basis. (Id.)
On March 15, 2011, Dr. Stojic examined Plaintiff. (Tr. 845-46.) He opined that Plaintiff's tremors and other symptoms were "largely due to stress." (Tr. 845.) On August 23, 2011, Steven G. Gunzler, M.D., examined Plaintiff in consultation for his tremors. (Tr. 1068-72.) Plaintiff reported first experiencing tremors in 1995, and that he experienced an episode of tremors approximately once or twice each month. (Tr. 1068-69.) Dr. Gunzler noted continuous tremors affecting Plaintiff's arms, neck and trunk. (Tr. 1070.) He opined that Plaintiff had "an early and subtle sign" of Parkinson's disease, and noted Plaintiff's report of a history of that disease in his paternal family. (Id.) Dr. Gunzler recommended that Plaintiff take primidone, and that he re-examine Plaintiff within the following months to determine whether there were any more signs of Parkinson's disease. (Tr. 1071.)
On December 6, 2011, Dr. Gunzler noted Plaintiff's report that his tremors continued unchanged. (Tr. 1073.) Plaintiff sat comfortably in the chair, but also stood and paced. (Tr. 1074.) Dr. Gunzler noted mild resting tremors, mild action tremors and rigidity. (Id.) Plaintiff had a slightly stooped posture and shuffling gait. (Id.)
On March 6, 2012, Dr. Gunzler noted Plaintiff's complaint of increased tremors, including episodes of lower eyelid twitching and tremors in his head and torso. (Tr. 1075.) Dr. Gunzler observed mild intermittent resting tremors, moderate action tremors, mild rigidity and mild rapid repetitive movements. (Tr. 1076.) He opined that Plaintiff could be in the early stages of Parkinson's disease. (Id.)
On April 14, 2009, agency consulting physician Joe G. Allison, M.D., performed a physical residual functional capacity ("RFC") assessment. (Tr. 530-38.) He opined that Plaintiff could: lift 50 pounds occasionally and 25 pounds frequently; and stand and/or walk and sit for six hours in an eight-hour workday. (Tr. 531-34.) Dr. Allison noted that he had reviewed records from Drs. Andre and Ibach. (Tr. 537.) Dr. Allison opined that Plaintiff's RFC was reduced "due to pain [and] fatigue," but that Plaintiff was capable of sustaining an eight-hour workday. (Id.)
On December 30, 2009, agency consulting physician Gary Hinzman, M.D., performed a physical RFC assessment. (Tr. 600-07.) He opined that Plaintiff could: lift 20 pounds occasionally and 10 pounds frequently; stand and/or walk and sit for six hours in an eight-hour day; occasionally climb ramps and stairs, stoop, kneel, crouch and crawl; and never balance. (Tr. 601-02.) Dr. Hinzman stated that Plaintiff could occasionally reach overhead and frequently reach in other directions with his left arm. (Tr. 603.)
At his November 2012 administrative hearing, Plaintiff testified as follows:
He stopped working a car body repairperson because he could no longer perform the physical aspect of the work. (Tr. 31.) He experienced body tremors, and had difficulties caused by hepatitis C and rheumatoid arthritis. (Tr. 31-32.) He felt like "the tremors cause me problems getting the thoughts from my brain to my mouth." (Tr. 32.) Eventually, his medical issues caused him to miss work, and his employer replaced him. (Tr. 32-33.)
Plaintiff lived in a garage apartment at his son's home. (Tr. 34.) His son paid all of the utility bills. (Tr. 35.) Plaintiff tried to help his son with yard work, but was not able to sustain activity for more than 15 minutes without experiencing tremors and shaking. (Id.) Plaintiff's body tremors affected his ability to prepare food, eat and engage in other daily personal activities. (Tr. 35-36.) Plaintiff's son and daughter-in-law did his grocery shopping for him. (Tr. 36-37.) If he walked even a short distance, Plaintiff experienced shaking and dizziness. (Tr. 37.) Plaintiff experienced shaking spells even when sedentary, while watching television. (Id.)
Plaintiff was "sore daily from head to toe," due to an enzyme deficiency.
The ALJ described the following hypothetical individual of Plaintiff's age, education and work experience:
(Tr. 55.) The VE testified that the hypothetical worker would not be able to perform Plaintiff's past relevant work. (Tr. 55.) She opined that the hypothetical worker would be able to perform work as a housekeeper/cleaner, sales attendant, or cafeteria attendant. (Tr. 56-57.)
A claimant is entitled to receive benefits under the Social Security Act when he 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.
In its September 9, 2013 decision, the Appeals Council made the following findings of fact and conclusions of law:
(Tr. 1119-20.)
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 Appeals Council failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record.
In his arguments, Plaintiff refers to the ALJ's decision throughout his brief. The Government contends that, because the Appeals Council issued a subsequent decision in this matter, Plaintiff's reliance on the ALJ decision is misplaced. Because the Appeals Council granted Plaintiff's request for review and then issued a decision, that decision is the final decision of the Commissioner in this case. See
(Tr. 1115-16 (emphasis added).) Where the Appeals Council relies on or adopts the findings of an ALJ, "the substantial evidence standard of review applies to the findings regardless of whether they were made by the Appeals Council, the ALJ, or were made by the Appeals Council in reliance on the ALJ's findings."
Plaintiff contends that substantial evidence does not support the Appeals Council's conclusion because the Appeals Council erred in analyzing the opinions of Plaintiff's treating physician, Dr. Seo, and of his chiropractor, Dr. Poyle. In his decision, the ALJ made the following observations that are relevant to this issue, and which are supported by the record:
• In May 2009, Plaintiff reported that he was able to take care of household chores,
take care of his personal hygiene, grocery shop, pay bills, manage a bank account and manage his medication needs.
• While Plaintiff had severe hepatitis C, the record showed that he had no evidence of liver disease.
• Plaintiff's allegations regarding the severity of his tremors were not credible. Plaintiff reported that the tremors began before his alleged onset date, a time when he was able to work. Further, the record revealed that Plaintiff's tremors stopped when he was distracted by an examining physician, who had recommended medication to control the tremors.
• The record contained no evidence either that Plaintiff was prescribed an ambulatory aid or that he experienced any adverse side effects from any of his medications.
(Tr. 1131, 1135.)
In addition to affirming the ALJ's assessment of Plaintiff's RFC and his analysis of the medical opinions in the record, the Appeals Council made the following observations that are relevant to the medical opinions at issue, and which are supported by the record:
• Agency consulting physician Dr. Hinzman's assessment that Plaintiff could perform light work with occasional postural positions was consistent with evidence that Plaintiff reported no joint or back pain, and retained normal muscle bulk and strength.
• Plaintiff's ability to perform light work with occasional postural positions and fingering or feeling was consistent with treatment notes reflecting that Plaintiff had a medium frequency, distractible tremor.
(Tr. 1116.)
Plaintiff contends that the Appeals Council and the ALJ erred in analyzing the opinion of his treating physician, Dr. Seo, who opined that Plaintiff had severe limitations in all physical abilities enumerated on the form provided by the state agency. "An ALJ must give the opinion of a treating source controlling weight if he finds the opinion `well-supported by medically acceptable clinical and laboratory diagnostic techniques' and `not inconsistent with the other substantial evidence in the case record.'"
In his February 2013 decision, the ALJ declined to assign controlling weight to Dr. Seo's opinion:
(Tr. 1136.) The Appeals Council concluded that, "Dr. Seo's opinion cannot receive controlling weight because [her] opinion is not consistent with other substantial evidence. . . . [This opinion is] not consistent with the medical evidence of record described above that report that [Plaintiff] had no pains, muscular weakness, or atrophy. [This opinion is] also inconsistent with the medical opinions from [agency consulting physicians] Drs. Hinzman and Allison." (Tr. 1117.)
Plaintiff raises several objections to the Commissioner's analysis of Dr. Seo's opinion. He contends that the ALJ did not point to specific medical evidence in the record to support his analysis of Dr. Seo's opinion. This arguments lack merit.
Plaintiff further argues that neither the ALJ nor the Appeals Council assigned specific weight to Dr. Seo's opinion. This is an accurate statement, as neither decision assigns specific weight to the opinion. Generally, the failure to assign specific weight to a treating physician's opinion "constitutes error."
Here, Plaintiff raises only the technical violation of the requirement that the Commissioner assign specific weight to a treating sources's opinion, and then makes the conclusory argument that general references to the medical records are not sufficient to adequately explain the relevant findings. This argument lacks merit. Although neither the ALJ nor the Appeals Council assigned specific weight to Dr. Seo's opinion, the two decisions clearly explain that her opinion was entitled to less than controlling weight because it was inconsistent with other record evidence. Although neither the ALJ nor the Appeals Council discusses that evidence in detail in the portion of the relevant decision that addresses Dr. Seo's opinion, each decision — in particular the ALJ's decision — contains a discussion of the relevant record evidence. In other words, this is not a case in which the claimant is unable to ascertain the Commissioner's reasons for assigning less than controlling weight to the opinion of his treating physician. Accordingly, the Commissioner's failure to assign a specific weight to Dr. Seo's opinion presents no basis for remand in this case.
Plaintiff also argues that the Commissioner erred in assigning greater weight to the opinions of the non-examining consulting physicians than to Dr. Seo. He relies on
Plaintiff also contends that the ALJ erred in reasoning that Dr. Seo's opinion would require Plaintiff to be bedridden for 19 hours each day. According to Plaintiff, "[t]his reasoning is a non-sequitur" because the medical form requested that Dr. Seo state the number of hours that Plaintiff could stand in an eight-hour period. Even to the extent that the ALJ overstated the extent of the limitation assigned by Dr. Seo, any resulting error would not require remand in this case. The ALJ and the Appeals Council identified other bases for assigning less than controlling weight to Dr. Seo's opinion, and those reasons are evident in the record. See
Plaintiff further argues that the Appeals Council misstated the controlling-weight test. Specifically, Plaintiff notes that the Appeals Council characterized Dr. Seo's opinion as "not consistent with other substantial evidence" (tr. 1117), whereas the treating physician rule requires the Commissioner to assign controlling weight to a treating physician's opinion "where it is not inconsistent" with substantial evidence in the record,
Finally, Plaintiff argues that the Appeals Council erred in failing to discuss the fact that the non-examining consultant physicians had not reviewed medical records later than April and December 2009. He does not, however, explain how medical records for examinations and treatment after April and December 2009 would have rendered the opinions of those physicians unsupported by substantial evidence. Accordingly, this argument does not merit remand in this case.
In his decision, the ALJ declined to assign any weight to Dr. Poyle's opinion because "[a] chiropractor is not an acceptable medical source." (Tr. 1136.) The Appeals Council made the same conclusion, and also noted that Dr. Poyle's "opinion is not consistent with other substantial evidence." (Tr. 1117.) Plaintiff contends that, although Dr. Poyle is not an acceptable medical source, the Commissioner erred in failing to weigh the relevant factors required by
Plaintiff also argues that the ALJ violated Social Security Ruling 06-03p when he assigned no weight to Dr. Poyle's opinion. That ruling, which guides the agency's consideration of opinions from medical sources that are not "acceptable medical sources," provides factors for use in assessing these types of opinions.
Finally, Plaintiff argues that the Commissioner overlooked Dr. Poyle's 2009 opinion. Review of the ALJ's decision reveals that the ALJ does not specifically mention Dr. Poyle's 2009 responses to a medical source questionnaire. (Tr. 568, 1136.) The Appeals Council decision does not specify whether it refers to Dr. Poyle's 2009 opinion, his 2011 opinion, or both. (Tr. 1117.) It is well established that, "`[a]n ALJ can consider all the evidence without directly addressing in his written decision every piece of evidence submitted by a party.'"
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.