MICHAEL J. NEWMAN, Magistrate Judge.
This is a Social Security disability benefits appeal. At issue is whether the Administrative Law Judge ("ALJ") erred in finding Plaintiff not "disabled" and therefore unentitled to Disability Insurance Benefits ("DIB") and/or Supplemental Security Income ("SSI").
Plaintiff filed for DIB and SSI alleging a disability onset date of September 30, 2008. PageID 325-38. Plaintiff suffers from a number of impairments including, among others, lumbar degenerative disc disease, fibromyalgia, obesity, vision problems, hearing loss, anxiety and depression. PageID 46.
After initial denial of her claims, Plaintiff received a hearing before ALJ Amelia G. Lombardo on April 9, 2013. PageID 76-134. The ALJ subsequently issued a written decision finding Plaintiff not "disabled." PageID 44-64. Specifically, the ALJ's findings were as follows:
PageID 46-63.
Thereafter, the Appeals Council denied Plaintiff's request for review, making the ALJ's non-disability finding the final administrative decision of the Commissioner. PageID 33-38. Plaintiff then filed this timely appeal. Cook v. Comm'r of Soc. Sec., 480 F.3d 432, 435 (6th Cir. 2007) (noting that, "[u]nder the Federal Rules of Appellate Procedure, [claimant] had 60 days from the Appeals Council's notice of denial in which to file his appeal").
In her decision, the ALJ detailed the medical evidence of record. PageID 47-62. Plaintiff, in her Statement of Errors, cites medical evidence relevant to her argument. Doc. 11 at PageID 2627-29. The Commissioner defers to the ALJ's statement of the medical evidence of record. Doc. 12 at PageID 2635. Accordingly, except as otherwise noted herein, the undersigned incorporates the ALJ's summary of the evidentiary record. Where applicable, the Court will identify the medical evidence relevant to this Report and Recommendation.
The Court's inquiry on a Social Security appeal is to determine (1) whether the ALJ's non-disability finding is supported by substantial evidence, and (2) whether the ALJ employed the correct legal criteria. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007). In performing this review, the Court must consider the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978).
Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). When substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found Plaintiff disabled. Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001). Thus, the ALJ has a "`zone of choice' within which he [or she] can act without the fear of court interference." Id. at 773.
The second judicial inquiry — reviewing the correctness of the ALJ's legal analysis — may result in reversal even if the ALJ's decision is supported by substantial evidence in the record. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). "[A] decision of the Commissioner will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen, 478 F.3d at 746.
To be eligible for disability benefits, a claimant must be under a "disability" as defined by the Social Security Act. 42 U.S.C. § 423(d)(1)(A). Narrowed to its statutory meaning, a "disability" includes physical and/or mental impairments that are both "medically determinable" and severe enough to prevent a claimant from (1) performing his or her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. Id.
Administrative regulations require a five-step sequential evaluation for disability determinations. 20 C.F.R. § 404.1520(a)(4). Although a dispositive finding at any step ends the ALJ's review, see Colvin, 475 F.3d at 730, the complete sequential review poses five questions:
20 C.F.R. § 404.1520(a)(4); Miller v. Comm'r of Soc. Sec., 181 F.Supp.2d 816, 818 (S.D. Ohio 2001). A claimant bears the ultimate burden of establishing that he or she is disabled under the Social Security Act's definition. Key v. Comm'r of Soc. Sec., 109 F.3d 270, 274 (6th Cir. 1997).
In her Statement of Errors, Plaintiff argues that the ALJ erred in: (1) weighing medical opinion evidence; (2) finding her able to perform "light work"; and (3) incorrectly assessing her credibility. Doc. 11 at PageID 2625-31. Having carefully reviewed the administrative record and the parties' briefs, and also having carefully considered the ALJ's analysis leading to the non-disability finding here at issue, the Court finds the ALJ carefully and reasonably reviewed the record, appropriately considered the medical evidence at issue (and applied the `good reasons' rule with respect to the medical evidence by Plaintiff's treaters), accurately determined Plaintiff's RFC, and properly assessed Plaintiff's credibility. Thus, as more fully explained herein, the Court finds the ALJ's decision supported by substantial evidence and affirms the ALJ's non-disability finding.
In her Statement of Errors, Plaintiff argues that the ALJ erred in weighing all medical source opinions, but only specifically mentions the ALJ's assigning of "little weight" to the opinion of treater Jill Vosler, D.O. — Plaintiff's primary care doctor.
The ALJ declined to give Dr. Vosler's opinion controlling or deferential weight and, instead, assigned it little weight. PageID 60. In so doing, the ALJ explained:
PageID 60-61 (internal citations omitted).
With regard to Dr. Vosler's opinion, "the Commissioner's regulations establish a hierarchy of acceptable medical source opinions[.]" Snell v. Comm'r of Soc. Sec., No. 3:12-cv-119, 2013 WL 372032, at *9 (S.D. Ohio Jan. 30, 2013). Treating physicians like Dr. Vosler top the hierarchy. Id. "Next in the hierarchy are examining physicians and psychologists, who often see and examine claimants only once." Id. "[N]on-examining physicians' opinions are on the lowest rung of the hierarchy of medical source opinions." Id. "The regulations provide progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual [claimant] become weaker." Id. (citing SSR 96-6p, 1996 WL 374180, at *2 (July 2, 1996)).
"An ALJ is required to give controlling weight to `a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impairment(s)' if the opinion `is wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record.'" LaRiccia v. Comm'r of Soc. Sec., 549 F. App'x 377, 385 (6th Cir. 2013) (citation omitted) (alterations in original). This requirement is known as the "treating physician" rule. Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (citation omitted).
Greater deference is given to treating source opinions "since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations[.]" 20 C.F.R. § 440.1527(c)(2); see also Blakley, 581 F.3d at 406. Thus, an ALJ must give controlling weight to a treating source if the ALJ finds the treating physician's opinion well-supported by medically acceptable evidence and not inconsistent with other substantial evidence in the record. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Closely associated with the treating physician rule is the "good reasons rule," which "require[s] the ALJ to always give good reasons in [the] notice of determination or decision for the weight given to the claimant's treating source's opinion." Blakley, 581 F.3d at 406-07. "Those good reasons must be `supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight.'" Id. Thus, when the ALJ declines to give controlling weight to a treating physician's assessment, "the ALJ must still determine how much weight is appropriate by considering a number of factors, including the length of treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and any specialization of the treating physician." Id. at 406.
In her Statement of Errors, Plaintiff merely summarizes the ALJ's analysis of Dr. Vosler's opinion without arguing that the ALJ failed to perform the controlling/deferential weight analysis required under 20 C.F.R. § 404.1527, or that any of the specific reasons given in assessing the opinion "little weight" were unsupported by substantial evidence. Doc. 11 at PageID 2627-29. In her reply, Plaintiff expands on the conclusory contention set forth in her Statement of Errors by generally arguing that the ALJ should have relied solely on Dr. Vosler's opinion because it is the only opinion offered by a medical source who actually examined Plaintiff. See doc. 13 at PageID 2662.
Plaintiff is correct that, "[g]enerally, more weight is given to the medical `opinion of a source who has examined [the claimant] than to the opinion of a source who has not examined [the claimant].'" Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 642 (6th Cir. 2013) (citing 20 C.F.R. § 404.1527(c)(1)). But Plaintiff fails to acknowledge that, "[i]n appropriate circumstances, opinions from State agency medical and psychological consultants . . . may be entitled to greater weight than the opinions of treating or examining sources." Id. (citing SSR 96-6p, 1996 WL 374180, at *3). Absent some developed argument by Plaintiff as to why the circumstances of this case do not present an appropriate circumstance for relying on the opinions of non-examining physicians over the opinion of a treater, the undersigned finds no merit to Plaintiff's general contention in this regard. See Curler, 561 F. App'x at 475; see also Baldwin, supra note 6; Reed v. Colvin, No. CIV. 13-54-GFVT, 2014 WL 318569, at *4 (E.D. Ky. Jan. 29, 2014).
Plaintiff's main contention throughout her briefing is the assertion that the ALJ failed to identify any evidence to support her conclusion Plaintiff can perform "light work," as that term is defined by the Commissioner's regulations. Doc. 11 at PageID 2626. "Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds." 20 C.F.R. § 404.1567(b). Light work jobs also require "a good deal of walking or standing, or when it involves sitting most of the time[,]" it requires "some pushing and pulling of arm or leg controls[.]"
Plaintiff argues that the ALJ's conclusion concerning her ability to perform "light work" is the product of the ALJ interpreting raw medical data. See PageID 2629. Plaintiff is correct that "ALJs are not generally entitled to make their own medical findings or interpret raw medical data[.]" Mabra v. Comm'r of Soc. Sec., No. 2:11-CV-00407, 2012 WL 3600127, at *3 (S.D. Ohio Aug. 21, 2012). Here, however, the ALJ's conclusion concerning Plaintiff's ability to perform "light work" arose from giving "significant weight" to the opinions of record reviewing physicians Lynn Torello, M.D. and Maureen Gallagher, D.O., see PageID 58, both of whom found Plaintiff able to perform the exertional requirements necessary for "light work." PageID 158-59, 184-85.
As noted above, see supra note 6, Plaintiff failed to specifically challenge the ALJ's assessment of these opinions in her Statement of Errors — and to the extent she seeks to challenge this assessment the first time in her reply, such arguments are waived. See supra. Because the opinions of Drs. Torello and Gallagher both support the ALJ's conclusion that Plaintiff can perform a limited range of light work, the undersigned finds no merit to Plaintiff's contention to the contrary.
Plaintiff last challenges the ALJ's credibility determination. Doc. 7 at PageID 999. "Where the symptoms and not the underlying condition form the basis of the disability claim, a two-part analysis is used[.]" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007) (citing 20 C.F.R. § 404.1529(a); Buxton, 246 F.3d at 773; Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994)). "First, the ALJ will ask whether . . . there is an underlying medically determinable . . . impairment that could reasonably be expected to produce the claimant's symptoms." Id. (citation omitted).
Second, where the ALJ determines "that such an impairment exists, then he [or she] must evaluate the intensity, persistence, and limiting effects of the symptoms on the individual's ability to do basic work activities." Id. (citations omitted); see also SSR 96-7p, 1996 WL 374186, at *2 (July 2, 1996). In considering the second part of the two-part analysis, the ALJ must consider a number of "[r]elevant factors," including: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of symptoms; (3) factors that precipitate and aggravate symptoms; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment undertaken by the claimant; (6) measures undertaken by the claimant to relieve symptoms, such as lying on one's back; and (7) any other factors bearing on the limitations of the claimant to perform basic functions. 20 C.F.R. § 404.1529(c)(3); see also Rogers, 486 F.3d at 247.
With regard to credibility, the ALJ, and not this Court, "evaluate[s] the credibility of witnesses, including that of the claimant." Rogers, 486 F.3d at 247. A claimant's credibility comes into question when his or her "complaints regarding symptoms, or their intensity and persistence, are not supported by objective medical evidence[.]" Id. To assess credibility, the ALJ must consider "the entire case record," including "any medical signs and lab findings, the claimant's own complaints of symptoms, any information provided by the treating physicians and others, as well as any other relevant evidence contained in the record." Id. To that end, "the ALJ is not free to make credibility determinations based solely upon an `intangible or intuitive notion about an individual's credibility'" and such determinations "must find support in the record." Id. This Court is required to "accord the ALJ's determinations of credibility great weight and deference particularly since the ALJ has the opportunity, which we do not, of observing a witness's demeanor while testifying." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) (citations omitted).
However, the ALJ's decision "must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight." SSR 96-7p, 1996 WL 374186, at *2. "In other words, blanket assertions that the claimant is not believable will not pass muster, nor will explanations as to credibility which are not consistent with the entire record and the weight of the relevant evidence." Rogers, 486 F.3d at 248.
In this case, the ALJ found Plaintiff's "statements concerning the intensity, persistence and limiting effects of [her] symptoms are not credible" for a number for reasons, namely, because her statements are not supported by: (1) objective medical evidence, which the ALJ extensively detailed and assessed; (2) her treatment history, which the ALJ characterized as not of the type and frequency one would expect from someone as limited as Plaintiff alleges; and (3) her daily activities. See PageID52-57. Plaintiff asserts no error in the ALJ's conclusion that her credibility is belied by medical evidence and her treatment history. Instead, Plaintiff alleges that her daily activities do not support the contention that she can perform a limited range of light work on a sustained basis.
Even assuming, arguendo, that Plaintiff's summary of her daily activities
For the foregoing reasons, the Court finds no merit to Plaintiff's assignments of error, and further finds the ALJ's non-disability determination supported by substantial evidence.
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
