JULIET GRIFFIN, Magistrate Judge.
The plaintiff filed this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying the plaintiff's claims for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"), as provided by the Social Security Act ("the Act").
Upon review of the Administrative Record as a whole, the Court finds that the Commissioner's determination that the plaintiff is not disabled under the Act is supported by substantial evidence in the record as required by 42 U.S.C. § 405(g), and that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 6) should be denied.
The plaintiff filed applications for SSI and DIB on October 15, 2008, with a protected filing date of October 3, 2008, and alleging a disability onset date of December 15, 2000, due to right arm cramps, vision problems, and back and leg pain. (Tr. 108-13, 143, 148.) His applications were denied initially and upon reconsideration. (Tr. 66-73.) A hearing was held before Administrative Law Judge ("ALJ") Frank Letchworth on May 10, 2010. (Tr. 21-56.) The ALJ delivered an unfavorable decision July 9, 2010 (tr. 8-17), and the plaintiff sought review by the Appeals Council. (Tr. 107.) On April 7, 2011, the Appeals Council denied the plaintiff's request for review (tr. 1-3), and the ALJ's decision became the final decision of the Commissioner.
The plaintiff was born on October 30, 1969, and was 30 years old as of December 15, 2000, his alleged onset date. (Tr. 63.) The plaintiff completed eleventh grade and had worked as a core drilling assistant, robotic technician, and cab driver. (Tr. 149, 166.)
On April 23, 2002, the plaintiff presented to the emergency room at Cookeville Regional Medical Center ("CRMC") with complaints of a left eye injury and he was diagnosed with a corneal abrasion. (Tr. 211-12.) On May 25, 2002, the plaintiff returned to the emergency room at CRMC with a right eye injury suffered during a fishing accident and was transferred to the emergency room at Vanderbilt University Hospital ("VUH") for further examination. (Tr. 201, 210-11.) Dr. Joan Collier, an examining physician at VUH, diagnosed him with a "[r]ight eye traumatic injury with hyphema" and prescribed Pred Forte and antibiotic eye drops.
The record reflects no further medical treatment until February 13, 2007, when the plaintiff went to the CRMC emergency with mild right foot pain after he had "dropped a [unintelligible] app[roximately] 4-5 feet onto r[ight] foot," and he was diagnosed with a right foot laceration. (Tr. 205-06.)
On December 10, 2008, the plaintiff presented to Dr. Jerry Lee Surber, a consultative Disability Determination Services ("DDS") physician, for a disability evaluation. (Tr. 214-17.) The plaintiff related that he had shortness of breath; pain in his neck, shoulder, lower back, right toe, and both wrists; and "numbness, burning, and tingling in his hands and feet." Dr. Surber noted that the plaintiff had "full and unlimited mobility in his right and left shoulders, elbows, hips, knees, ankles, wrists, hands, and fingers including both thumbs;" "had no gross asymmetry in any of his major muscle groups nor any evidence of muscle wasting;" "had bilaterally equal upper and lower limb strengths and grip strengths at 5/5;" and had a limping gait but did not use an assistive device. (Tr. 216.) He diagnosed the plaintiff with Chronic Obstructive Pulmonary Disease ("COPD"), hypertension, "[p]ossible atherosclerotic coronary vascular disease," and "visual acuity . . . [of] 20/100 in his right eye compared to 20/20 in his left eye without glasses," and noted that "[h]e had no specific limitations regarding the functional mobility" of his neck, shoulder, or lower back. (Tr. 217.) Dr. Surber also opined that the plaintiff "would be able to occasionally lift or carry at least 10 to 45 pounds during up to one-third to one-half of an 8-hour workday;" could use his left hand for lifting and carrying; and "would be able to stand or walk with normal breaks for up to 2 to 4 hours in an 8-hour day or sit with normal breaks for up to 6 to 8 hours in an 8-hour work day." Id.
On December 26, 2008, Dr. John L. Humphreys, a nonexamining DDS consultative physician, reviewed the plaintiff's medical records and completed a "DDS Medical Consultant Analysis" ("DDS Analysis"). (Tr. 218-21.) He opined that the plaintiff's physical impairments were "not severe, singly or combined." (Tr. 218-21.) On January 5, 2009, Dr. Lina B. Caldwell, a nonexamining DDS consultative physician, reviewed the plaintiff's medical records and also completed a DDS Analysis. (Tr. 222-25.) She concluded that the plaintiff had "[n]o medically determinable physical impairment." (Tr. 222.)
Between June of 2009, and March of 2010, the plaintiff presented to Dr. Angela Moss, an examining physician, on five occasions with complaints of insomnia, and knee, neck, leg, and lower back pain. (Tr. 240-49.) Dr. Moss diagnosed the plaintiff with insomnia and knee, shoulder, lower back, and thoracic pain, and prescribed Ibuprofen, Tylenol, Benadryl, Robaxin, Zanaflex, and Lortab.
On April 27, 2010, the plaintiff deposed Dr. Moss and she testified that she treated the plaintiff five times and "authorize[d]" MRIs of his thoracic spine, which revealed "a compression fracture at T-5" and a "bone endema at T-1," and of his lumbar spine, which showed "facet disease noted at L4-5 and 5-1 and a bulging disc at L4-5." (Tr. 231, 235.) Dr. Moss related that the plaintiff had a decreased range of motion in his thoracic spine, chronic joint pain with stiffness, degenerative disc disease, and pain in both shoulders that affects his ability to "perform fine and gross movements," push, pull, grasp, and "fingering to carry out daily activities of living." (Tr. 232-34.)
Dr. Moss testified that the plaintiff's right shoulder impairment would affect his ability to file papers in a cabinet above waist level since he is right handed. (Tr. 234.) Dr. Moss related that the plaintiff was prescribed Lortab and Baclofen
At the hearing before the ALJ, the plaintiff was represented by counsel, and the plaintiff and Edward Smith, a vocational expert ("VE"), testified. (Tr. 21-56.) The plaintiff testified that he completed the eleventh grade and worked as a cab driver, core driller, robot technician, pipe fitter helper, and pipe expediter. (Tr. 28-32.) He related that he has difficulty driving at night because of a right eye impairment, and that he has severe back pain but did not seek treatment for his back pain for five to six years.
The plaintiff related that he is blind in his right eye after he was struck by a fishing lure and that his blindness causes dizziness and affects his balance, resulting in "several little slip and fall accidents." (Tr. 47.) He explained that after he injured his right eye, he was able to keep working at his core drilling jobs and robot technician job because his friends "helped [him] a lot." (Tr. 49-50.)
The VE, consistent with the Dictionary of Occupational Titles, classified the plaintiff's past relevant work as a core driller as heavy and unskilled and as a robotic technician and cab driver as medium and semiskilled. (Tr. 51.) The ALJ asked the VE what type of work the plaintiff could perform if he were limited to light exertion, could stand/walk for four hours in an eight hour day "in one hour increments," and had no sitting restriction, and the VE replied that the plaintiff could work as a security guard, sorter, and cashier. (Tr. 52.) Next, the ALJ asked the VE what type of work the plaintiff could perform if he were precluded from working any job "in which binocular vision or peripheral vision were a key element," and the VE answered that he could work as a cashier and security guard. (Tr. 53.)
The ALJ then asked the VE what type of work the plaintiff could perform if he could not make any overhead motion, reach, push, or pull over shoulder level with his right arm, and the VE replied that he could work as a security guard, parking lot attendant, laundry folder, and as an office helper. (Tr. 53-54.) The ALJ also asked the VE if any of his answers to the previous hypotheticals would be affected if the plaintiff could climb, crawl, stoop, bend, and crouch no more than occasionally, and the VE replied that those limitations would not affect his previous answers. (Tr. 54.) Finally, the ALJ asked the VE what type of work the plaintiff could perform if he "incorporate[d] every functional limitation [the plaintiff] mentioned in his testimony," and the VE answered that the plaintiff would be precluded from working. (Tr. 55.)
The ALJ issued an unfavorable decision on July 9, 2010. (Tr. 8-17.) Based on the record, the ALJ made the following findings:
The determination of disability under the Act is an administrative decision, and the only questions before this Court are whether the decision of the Commissioner is supported by substantial evidence and whether the Commissioner employed the proper legal standards in reaching his conclusion. 42 U.S.C. § 405(g). See Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed. 2d 842 (1971) (adopting and defining substantial evidence standard in context of Social Security cases); Kyle v. Comm'r Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010). The Commissioner's decision must be affirmed if it is supported by substantial evidence, "even if there is substantial evidence in the record that would have supported an opposite conclusion." Blakely v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir.1997)); Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 477 (6th Cir. 2003); Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). Substantial evidence is defined as "more than a mere scintilla" and "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007); Le Master v. Weinberger, 533 F.2d 337, 339 (6th Cir. 1976) (quoting Sixth Circuit opinions adopting language substantially similar to that in Richardson).
A reviewing court may not try the case de novo, resolve conflicts in evidence, or decide questions of credibility. See, e.g., Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972)). The Court must accept the ALJ's explicit findings and determination unless the record as a whole is without substantial evidence to support the ALJ's determination. 42 U.S.C. § 405(g). See, e.g., Houston v. Sec'y of Health & Human Servs., 736 F.2d 365, 366 (6th Cir. 1984).
The Commissioner must employ a five-step evaluation process in determining the issue of disability. See, e.g., Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001) (citing Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)). The original burden of establishing disability is on the plaintiff, and impairments must be demonstrated by medically acceptable clinical and laboratory diagnostic techniques. See 42 U.S.C. § 1382c(a)(3)(D); 20 C.F.R. §§ 404.1512(a), (c), 404.1513(d). First, the plaintiff must show that he is not engaged in "substantial gainful activity" at the time he seeks disability benefits. Id. (citing 20 C.F.R. § 404.1520(b); Cruse v. Comm'r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007). A plaintiff who is performing substantial gainful activity is not disabled no matter how severe the plaintiff's medical condition may be. See, e.g., Dinkel v. Sec'y of Health & Human Servs., 910 F.2d 315, 318 (6th Cir. 1990).
Second, the plaintiff must show that he suffers from a severe impairment that meets the twelve month durational requirement. 20 C.F.R. § 404.1520(a)(4)(ii). See Edwards v. Comm'r of Soc. Sec., 113 Fed. Appx. 83, 85 (6th Cir. Sept. 24, 2004). A "severe impairment" is one which "significantly limits . . . physical or mental ability to do basic work activities." Barnhart v. Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (citing 20 C.F.R. § 404.1520(c)). Basic work activities are "the abilities and aptitudes necessary to do most jobs," such as "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; [c]apacities for seeing, hearing, and speaking; [u]nderstanding, carrying out, and remembering simple instructions; [u]se of judgment; [r]esponding appropriately to supervision, co-workers and usual work situations; and [d]ealing with changes in a routine work setting." 20 C.F.R. § 404.1521(b). The Commissioner is required to consider the combined effects of impairments that individually are not severe but cumulatively may constitute a severe impairment. 42 U.S.C. § 423(d)(2)(B); Foster v. Bowen, 853 F.2d 483, 490 (6th Cir. 1988).
Third, if the plaintiff is not engaging in substantial gainful activity and is suffering from a severe impairment that has lasted or is expected to last for a continuous period of at least twelve months, and his impairment meets or equals a listed impairment, the plaintiff is presumed disabled without further inquiry, regardless of age, education or work experience. Id. (citing 20 C.F.R. § 404.1520(d)). The plaintiff may establish that he meets or equals a listed impairment, and that the impairment has lasted or is expected to last for at least twelve months or result in death. See Listenbee v. Sec'y of Health & Human Servs., 846 F.2d 345, 350 (6th Cir. 1988). The plaintiff is not required to show the existence of a listed impairment in order to be found disabled, but such a showing results in an automatic finding of disability. See Blankenship v. Bowen, 874 F.2d 1116, 1122 (6th Cir. 1989).
Fourth, if the plaintiff's impairment does not prevent him from doing his past relevant work, he is not disabled. Id. The plaintiff has the burden of proving inability to perform past relevant work, or proving that a particular past job should not be considered relevant. Cruse, 502 F.3d at 539; Jones, 336 F.3d at 474 ("Through step four, the claimant bears the burden of proving the existence and severity of limitations caused by her impairments and the fact that she is precluded from performing her past relevant work. . . ."); Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 109 (6th Cir. 1989). If the plaintiff fails to carry this burden, he must be denied disability benefits.
Once the plaintiff establishes a prima facie case that he is unable to perform his prior relevant employment, the burden shifts in step five to the Commissioner to show that the plaintiff can perform other substantial gainful employment, and that such employment exists in significant numbers in the national economy. Longworth v. Comm'r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005). See also Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994). To rebut a prima facie case, the Commissioner must come forward with proof of the existence of other jobs a plaintiff can perform. Longworth, 402 F.3d at 595. See Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 528 (6th Cir. 1981), cert. denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983) (upholding the validity of the medical-vocational guidelines grid as a means for the Commissioner of carrying his burden under appropriate circumstances). It remains the plaintiff's burden to prove the extent of his functional limitations. Her, 203 F.3d at 391. Even if the plaintiff's impairment does prevent him from doing his past relevant work, if other work exists in significant numbers in the national economy that the plaintiff can perform, he is not disabled. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009); Her, 203 F.3d at 391. See also Tyra v. Sec'y of Health & Human Servs., 896 F.2d 1024, 1028-29 (6th Cir. 1990); Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 88-89 (6th Cir. 1985); Mowery v. Heckler, 771 F.2d 966, 969-70 (6th Cir. 1985).
If the question of disability can be resolved at any point in the sequential evaluation process, the claim is not reviewed further. 20 C.F.R. § 404.1520(a)(4). See also Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (holding that resolution of plaintiff's claim at step two of the evaluative process is appropriate in some circumstances).
In the instant case, the ALJ decided the plaintiff's claim at step five of the five step process. (Tr. 16.) At step one, the ALJ found that the plaintiff demonstrated that he had not engaged in substantial gainful activity since December 15, 2000, the alleged disability onset date. (Tr. 10.) At step two, the ALJ determined that the plaintiff's right eye vision problems, knee problem, back impairment, and bilateral carpal tunnel syndrome were severe impairments. Id. At step three, the ALJ determined that the plaintiff's impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, and that he had the residual functional capacity ("RFC") to perform light work
(Tr. 13.) At step four, the ALJ concluded that he could not perform his past relevant work. (Tr. 15.) At step five, the ALJ found that the plaintiff's RFC allowed him to perform work as a security guard, cashier, parking lot attendant, laundry folder, and office helper. (Tr. 16.)
The plaintiff argues that the ALJ failed to provide good reasons for rejecting the opinions of his treating physician, Dr. Moss; erred in concluding that he did not meet Listing 1.02B; and failed to properly evaluate his subjective complaints of pain. Docket Entry No. 7, at 6-16.
The plaintiff contends that "the ALJ failed to provide good reasons for rejecting the opinions of Dr. Moss regarding [the plaintiff's] abilities to perform fine manipulative tasks." Docket Entry No. 7, at 7. Given the regularity with which Dr. Moss examined the plaintiff (tr. 240-49), she is classified as treating source under 20 C.F.R. §§ 404.1502, 416.902.
Generally, an ALJ is required to give "controlling weight" to the medical opinion of a treating physician, as compared to the medical opinion of a non-treating physician, if the opinion of the treating source is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] case record." 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2) (quoted in Tilley v. Comm'r of Soc. Sec., 394 Fed. Appx. 216, 222 (6th Cir. Aug. 31, 2010), and Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009)). This is commonly known as the treating physician rule. See Soc. Sec. Rul. 96-2p, 1996 WL 374188 (July 2, 1996); Wilson, 378 F.3d at 544 (6th Cir. 2004).
The ALJ did not assign controlling weight to Dr. Moss's findings. (Tr. 14.) Even if a treating source's medical opinion is not given controlling weight, it is "still entitled to deference and must be weighed using all of the factors provided in 20 C.F.R. 404.1527. . . ." Fisk v. Astrue, 253 Fed. Appx. 580, 585 (6th Cir. Nov. 9, 2007) (quoting Soc. Sec Rul. 96-2p, 1996 WL 374188, at *4) (emphasis in original). The ALJ must consider
McGrew v. Comm'r of Soc. Sec., 343 Fed. Appx. 26, 30 (6th Cir. Aug. 19, 2009) (citing Wilson, 378 F.3d at 544); Meece v. Barnhart, 192 Fed. Appx. 456, 461 (6th Cir. Aug. 8, 2006) (quoting 20 C.F.R. § 404.1527(d)(2)-(6)). The ALJ must also provide "good reasons" for the resulting weight given to the treating source. Soc. Sec Rul. 96-2p, 1996 WL 374188, at *5 (citing 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2)); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Brock v. Comm'r of Soc. Sec., 2010 WL 784907, at *2 (6th Cir. Mar. 8, 2010). The "good reasons" 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," Cole, 661 F.3d at 937 (quoting Soc. Sec Rul. 96-2p, 1996 WL 374188, at *5), and so that the plaintiff understands the disposition of his case. Wilson, 378 F.3d at 544 (citing Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999)).
The Sixth Circuit has plainly held that a reversal of a denial of benefits and remand are warranted, even if the record may contain substantial evidence that supports the Commissioner's decision, when the ALJ fails to provide good reasons for discounting the medical opinion of the plaintiff's treating physician. Friend v. Comm'r of Soc. Sec., 375 Fed. Appx. 543, 551 (6th Cir. Apr. 28, 2010) (citing Wilson, 378 F.3d at 544). The failure to follow "the procedural requirement `of identifying the reasons for discounting the opinions and for explaining precisely how those reasons affected the weight accorded the opinions denotes a lack of substantial evidence, even where the conclusion of the ALJ may be justified based upon the record.'" Friend, 375 Fed. Appx. at 551 (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 243 (6th Cir.2007)). See also Wilson, 378 F.3d at 546 ("A court cannot excuse the denial of a mandatory procedural protection simply because . . . there is sufficient evidence in the record for the ALJ to discount the treating source's opinion and, thus, a different outcome on remand is unlikely.").
However, the Sixth Circuit has also determined that there are circumstances when noncompliance with the good reasons requirement is "harmless error," if: "`(1) a treating source's opinion is so patently deficient that the Commissioner could not possibly credit it;' (2) `if the Commissioner adopts the opinion of the treating source or makes findings consistent with the opinion;' or (3) `where the Commissioner has met the goal of § 1527(d)(2)-the provision of the procedural safeguard of reasons-even though she has not complied with the terms of the regulation.'" Friend, 375 Fed. Appx. at 551 (quoting Wilson, 378 F.3d at 547). Should the third situation occur, "the procedural protections at the heart of the rule may be met when the `supportability' of a doctor's opinion, or its consistency with other evidence in the record, is indirectly attacked via an ALJ's analysis of a physician's other opinions or his analysis of the claimant's ailments." Friend, 375 Fed. Appx. at 551 (citing Nelson v. Comm'r of Soc. Sec., 195 Fed. Appx. 462, 470-72 (6th Cir. 2006); Hall v. Comm'r of Soc. Sec., 148 Fed. Appx. 456, 464 (6th Cir. 2006)). The function of the good reason requirement is to provide clarity and transparency to the reviewing body and, more importantly, to the plaintiff, but it is not a "procrustean bed" that requires "an arbitrary conformity at all times." Friend, 375 Fed. Appx. at 551.
In this case, the ALJ noted that
(Tr. 14-15) (Internal citations omitted.)
The ALJ failed to assign a specific amount of weight to Dr. Moss's medical findings, to comply with the good reasons requirement, or to address Dr. Moss's testimony that the plaintiff is not able to perform fine and gross movements, such as pushing, pulling, grasping, and fingering due to his right shoulder pain.
The plaintiff defines the inability to perform fine and gross movements as not necessarily limited "to the inability to prepare a simple meal and feed oneself, the inability to take care of his personal hygiene, [or] the inability to sort and handle papers or files," and notes that Dr. Moss determined that the plaintiff's ability to sort, handle, or file papers or place files in a cabinet at or above waist level would be affected. Docket Entry No. 7, at 13; Tr. 234. Yet the plaintiff testified that he collects cans by either putting the cans in bags himself or by having people save and put cans in bags for him (tr. 42-43), and that the "pulling sensation" starts in his back when he lifts his right arm up to "just about shoulder level." (Tr. 41.) The ability to lift a can and place it in a bag appears comparable in level of difficulty to the sorting, handling, or filing papers, and the ALJ even accounted for the plaintiff's inability to raise his right arm above shoulder level in his RFC determination. (Tr. 13.)
Finally, the record medical evidence indicates that between 2003 and 2009, the plaintiff sought medical treatment on only one occasion and that was for a right foot laceration. (Tr. 205-06.) The plaintiff's lack of medical treatment for nearly a six year period undercuts the severity of the limitations that Dr. Moss assigned to him. See tr. 231-35. In sum, the ALJ failed to assign a specific amount of weight to Dr. Moss's medical findings, to comply with the good reasons requirement, and to address Dr. Moss's testimony, but he satisfied the third prong of Wilson's harmless error provision since he indirectly attacked the supportability of Dr. Moss's conclusions by analyzing the plaintiff's impairments, concluding that the "diagnostic imaging" of his back revealed only "mild objective findings," and noting that he was able to collect cans and that he had "no medical treatment" from 2004 to 2009. (Tr. 15.)
The plaintiff argues that injuries to both of his shoulders and to his lower back satisfies Listing 1.02B. Docket Entry No. 7, at 13-14. Specifically, the plaintiff contends that his shoulder injuries "result in an inability to perform fine and gross movements such as pushing, pulling, and grasping."
"`[T]he burden of proof lies with the [plaintiff] at steps one through four of the [sequential disability benefits analysis],' including proving presumptive disability by meeting or exceeding a Medical Listing at step three." Little v. Astrue, 2008 WL 3849937, at *4 (E.D.Ky. Aug. 15, 2008) (quoting Her, 203 F.3d at 391). Thus, the plaintiff "`bears the burden of proof at Step Three to demonstrate that he has or equals an impairment listed in 20 C.F.R. part 404, subpart P, appendix 1.'" Little, 2008 WL 3849937, at *4 (quoting Arnold v. Comm'r of Soc. Sec., 238 F.3d 419 (table), 2000 WL 1909386, at *2 (6th Cir. Dec. 27, 2000)). The plaintiff's impairment must meet all of the listing's specified medical criteria and "[a]n impairment that meets only some of those criteria, no matter how severely, does not qualify." Sullivan, 493 U.S. at 530-532 (1990). If the plaintiff does demonstrate that his impairment meets or equals a listed impairment, then the ALJ "`must find the [plaintiff] disabled.'" Little, 2008 WL 3849937, at *4 (quoting Buress v. Sec'y of Health & Human Servs., 835 F.2d 139, 140 (6th Cir.1987)).
Listing 1.02 provides that disability caused by major joint dysfunction is
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02.
The Regulations define the "[i]nability to perform fine and gross movements effectively" as
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2c.
To meet Listing 1.02B, the plaintiff must show that his upper extremity injuries to both shoulders resulted in an extreme loss of function, preventing him from effectively performing fine and gross movements as defined in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B2c. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02B. The plaintiff's longitudinal medical history of left and right shoulder pain is, at best, sparse. The record shows that on December 10, 2008, the plaintiff presented to Dr. Surber with complaints of shoulder pain, but Dr. Surber opined that he had "full and unlimited mobility in his right and left shoulders, . . . hands, and fingers including both thumbs;" "had no gross asymmetry in any of his major muscle groups nor any evidence of muscle wasting;" and "had bilaterally equal upper and lower limb strengths and grip strengths at 5/5." (Tr. 214-17.) Dr. Surber noted that "[h]e had no specific limitations regarding the functional mobility" of his neck, shoulder, or lower back, and he concluded that the plaintiff "would be able to occasionally lift or carry at least 10 to 45 pounds during up to one-third to one-half of an 8-hour workday;" could use his left hand for lifting and carrying; and "would be able to stand or walk with normal breaks for up to 2 to 4 hours in an 8-hour day or sit with normal breaks for up to 6 to 8 hours in an 8-hour workday. Id.
Between June of 2009, and March of 2010, the plaintiff presented to Dr. Moss on several occasions and she diagnosed him with shoulder pain but her treatment notes provide minimal insight into the severity of his shoulder impairment, she did not assign any functional mobility restrictions for his upper extremities, and she did not refer him to a specialist or to have additional diagnostic testing on his shoulders. (Tr. 240-49.) On April 27, 2010, Dr. Moss testified that the plaintiff's shoulder pain affects his ability to "perform fine and gross movements;" to push, pull, grasp, and finger; "to carry out daily activities of living;" and to file papers in a cabinet above waist level since he is right handed. (Tr. 232-34.) The plaintiff relies on Dr. Moss's testimony to show that he meets Listing 1.02B, but, as discussed supra, Dr. Moss's testimony is not supported by the record medical evidence or her own treatment notes since neither indicate that the plaintiff has a significant shoulder impairment.
The plaintiff testified that he collects cans by either putting the cans in bags himself or by having people save and put cans in bags for him (tr. 42-43), and that the "pulling sensation" starts in his back when he lifts his right arm up to "just about shoulder level." (Tr. 41.) Again the ability to lift a can and place it in a bag appears comparable in level of exertional difficulty to sorting, handling, or filing papers, and the ALJ even accounted for the plaintiff's inability to raise his right arm above shoulder level in his RFC determination. (Tr. 13.) Even assuming arguendo that the plaintiff suffered from a significant right shoulder impairment, Listing 1.02B requires him to have a significant impairment in "one major peripheral joint in each upper extremity," 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.02B, and the record medical evidence does not show that the plaintiff has a significant impairment in his left hand or his left upper extremity.
The plaintiff contends that his thoracic spine injury, "specifically a compression fracture at T-5 and bone edema at T-1," satisfied the requirements of Listing 1.02B because it is a "gross anatomical deformity." Docket Entry No. 7, at 13 (emphasis in original.) However, the record medical evidence does not show that the plaintiff suffered from a significant back impairment. Dr. Surber found that the plaintiff "had no gross asymmetry in any of his major muscle groups nor any evidence of muscle wasting;" "had bilaterally equal upper and lower limb strengths and grip strengths at 5/5;" had a limping gait but did not use an assistive device; and had no specific limitations regarding the functional mobility" of his neck or lower back. (Tr. 216-17.) Additionally, an MRI of the plaintiff's thoracic spine revealed an "[o]ld compression fracture of T5" and "[p]robable bone endema at T1; probably related to trauma," and of the plaintiff's lower back showed "[f]acet disease at 4-5 and 5-1" and "mild bulging of the disk at the 4-5 level" but "reveal[ed] no fracture or dislocation" and that "[t]he disk space appears normal." (Tr. 250-51.) The MRIs in March and April of 2010, indicate that the plaintiff's compression fracture was a result of an "old" injury
In sum, the record medical evidence does not show that the plaintiff suffered from significant impairments to both upper extremities, and thus he does not meet the requirements of Listing 1.02B.
The plaintiff argues that the ALJ erred in evaluating the credibility of his subjective symptoms. Docket Entry No. 7, at 14-17. Specifically, he asserts that Dr. Moss's testimony and his own statements demonstrate that his impairments "cause him a considerable amount of pain." Id. at 16.
In evaluating the plaintiff's credibility, the ALJ noted that
(Tr. 14-15) (Internal citations omitted).
The ALJ is charged with evaluating the credibility of the plaintiff at the hearing, and the ultimate decision of credibility rests with the ALJ. The ALJ's credibility finding is entitled to deference "because of the ALJ's unique opportunity to observe the claimant and judge [his] subjective complaints." See Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001) (internal citations omitted). However, "[i]f the ALJ rejects the claimant's complaints as incredible, he must clearly state his reasons for doing so." Wines v. Comm'r of Soc. Sec., 268 F.Supp.2d 954, 958 (N.D. Ohio 2003) (citing Felisky, 35 F.3d at 1036).
Social Security Ruling 96-7p emphasizes that credibility determinations must find support in the record, and not be based upon the "intangible or intuitive notion[s]" of the ALJ. 1996 WL 374186, at *4. In assessing the plaintiff's credibility, the ALJ must consider the record as a whole, including the plaintiff's complaints, lab findings, information provided by treating physicians, and other relevant evidence. Id. at *5. Consistency between the plaintiff's subjective complaints and the record evidence "tends to support the credibility of the claimant, while inconsistency, although not necessarily defeating, should have the opposite effect." Kalmbach v. Comm'r of Soc. Sec., 2011 WL 63602, at *11 (6th Cir. Jan. 7, 2011). The ALJ must explain his credibility determination such that both the plaintiff and subsequent reviewers will know the weight given to the plaintiff's statements and the reason for that weight. Soc. Sec. Rul. 96-7p, 1996 WL 374186, at *4.
Both the SSA and the Sixth Circuit have enunciated guidelines for use in analyzing a plaintiff's subjective complaints of pain. See 20 C.F.R. § 404.1529; Felisky, 35 F.3d at 1037. While the inquiry into subjective complaints of pain must begin with the objective medical record, it does not end there. The Sixth Circuit in Duncan v. Sec'y of Health and Human Servs., 801 F.2d 847 (6th Cir. 1986), set forth the basic standard for evaluating such claims.
In this case, the ALJ concluded that the plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," thus satisfying the first prong of the Duncan test. (Tr. 13.) Given that the second prong of the Duncan test consists of two alternatives, the plaintiff must only meet one of the following two elements: the objective medical evidence "confirms the severity of the alleged pain arising from the condition" or the "objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain." The ALJ cannot ignore a plaintiff's statements detailing the symptoms, persistence, or intensity of his pain simply because current objective medical evidence does not fully corroborate the plaintiff's statements. 20 C.F.R. § 404.1529(c)(2). Besides reviewing medical records to address the credibility of a plaintiff's symptoms of pain, an ALJ must review the entire case record in light of the seven factors set forth in 20 C.F.R. § 404.1529(c)(3).
In making his credibility determination, the ALJ relied on the medical evaluation from an examining source, objective medical testing, the plaintiff's testimony, and the plaintiff's lack of medical care and prescribed treatment. (Tr. 14-15) Specifically, the ALJ discussed Dr. Surber's findings that showed the plaintiff's mobility was satisfactory, grip and limb strength were normal, vision was 20/25 in both eyes, and right shoulder was "palpably nontender." (Tr. 15, 214-17.) He noted that 2010 MRIs of the plaintiff's thoracic spine and lower back did not reveal a significant abnormality that would support the severity of the plaintiff's allegations of pain (tr. 15, 250-51) and that his alleged right eye "blindness" was undercut by his testimony that he drove a cab for several months in 2007.
In sum, the medical records from examining sources, objective diagnostic testing, lack of medical care, conservative medical treatment, and plaintiff's testimony demonstrate that his impairments cause him a certain amount of pain, but that same record evidence does not support his subjective complaints that his pain is disabling.
For the above stated reasons, it is recommended that the plaintiff's motion for judgment on the administrative record (Docket Entry No. 6) be DENIED and that this action be DISMISSED.
Any objections to this Report and Recommendation must be filed with the Clerk of Court within fourteen (14) days of service of this Report and Recommendation and must state with particularity the specific portions of the Report and Recommendation to which objection is made. Failure to file written objections within the specified time can be deemed a waiver of the right to appeal the District Court's Order regarding the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
20 C.F.R. §§ 404.1502, 416.902.
