SONJA F. BIVINS, Magistrate Judge.
Plaintiff Sherry Boler (hereinafter "Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security denying her claim for a period of disability and disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401, et seq. On May 10, 2018, the parties consented to have the undersigned conduct any and all proceedings in this case. (Doc. 23). Thus, the action was referred to the undersigned to conduct all proceedings and order the entry of judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. Upon careful consideration of the administrative record and the memoranda of the parties, it is hereby
Plaintiff filed her application for benefits on May 14, 2014. (Doc. 11 at 134). Plaintiff alleges that she has been disabled since February 1, 2013, due to "osteoarthritis, right foot, right hip," and high blood pressure. (
Plaintiff's application was denied and upon timely request, she was granted an administrative hearing before Administrative Law Judge Mary E. Helmer (hereinafter "ALJ") on March 10, 2016. (
Having exhausted her administrative remedies, Plaintiff timely filed the present civil action. (Doc. 1). The parties waived oral argument on May 10, 2018. (Doc. 22). This case is now ripe for judicial review and is properly before this Court pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).
Plaintiff was born on February 16, 1959, and was fifty-six years of age at the time of her administrative hearing on March 10, 2016. (Doc. 11 at 37, 141). Plaintiff graduated from high school and attended college for one year. (
Plaintiff last worked from 2011 to 2012 at a convenience store/restaurant as a cashier/cook. (
At her hearing, Plaintiff testified that she can no longer work due to pain from osteoarthritis in her hips and joints. (
In reviewing claims brought under the Act, this Court's role is a limited one. The Court's review is limited to determining 1) whether the decision of the Secretary is supported by substantial evidence and 2) whether the correct legal standards were applied.
An individual who applies for Social Security disability benefits must prove his or her disability. 20 C.F.R. §§ 404.1512, 416.912. Disability is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A);
The claimant must first prove that he or she has not engaged in substantial gainful activity. The second step requires the claimant to prove that he or she has a severe impairment or combination of impairments. If, at the third step, the claimant proves that the impairment or combination of impairments meets or equals a listed impairment, then the claimant is automatically found disabled regardless of age, education, or work experience. If the claimant cannot prevail at the third step, he or she must proceed to the fourth step where the claimant must prove an inability to perform their past relevant work.
If a claimant meets his or her burden at the fourth step, it then becomes the Commissioner's burden to prove at the fifth step that the claimant is capable of engaging in another kind of substantial gainful employment which exists in significant numbers in the national economy, given the claimant's residual functional capacity, age, education, and work history.
In her brief, Plaintiff argues that the Appeals Council erred in failing to remand her case on the basis of new opinion evidence from her treating physician, Dr. Huey Kidd. (Doc. 13 at 4; Doc. 11 at 15-16, 295-96). Plaintiff states that the Appeals Council admitted the new opinion evidence into the record but did not discuss it further. (Doc. 13 at 4). The Commissioner counters that the Appeals Council did not err in failing to grant review on the basis of Dr. Kidd's opinions, which were rendered three weeks after the ALJ's decision, because they were cumulative of the evidence that was before the ALJ and because substantial evidence supports the ALJ's decision. (Doc. 16 at 6). Having carefully reviewed the record in this case, the Court finds that Plaintiff's claim is without merit.
"With a few exceptions, the claimant is allowed to present new evidence at each stage of [the] administrative process."
In this case, Plaintiff submitted to the Appeals Council a Medical Source Statement ("MSS") (Physical) form completed by Dr. Huey Kidd, D.O., on April 27, 2016. In the MSS (Physical) form, Dr. Kidd opined that Plaintiff could sit, stand, and walk less than one hour in an eight-hour workday; could occasionally lift and/or carry up to five pounds; could occasionally perform gross or fine manipulation or operate motor vehicles; could rarely perform pushing and pulling movement; could never climb, balance, bend, stoop, reach or work with or around hazardous machinery; and that she would miss work more than three times a month. (Doc. 11 at 298). Plaintiff also submitted a Clinical Assessment of Pain ("CAP") form completed by Dr. Kidd on April 27, 2016. In the CAP form, Dr. Kidd opined that Plaintiff suffered from "virtually incapacitating" pain that prevented her from maintaining attention, concentration or pace for periods of at least two hours. (
In her brief, Plaintiff points to evidence that, on July 30, 2014, two years before Dr. Kidd became her treating physician and completed the forms in question, he performed a consultative examination of her and noted that she was unable to heel/toe walk, unable to bend and touch her toes, and unable to squat and stand; that she walked with a limp on the right side; that she had right-sided osteoarthritis of the hip; that she was receiving injections and taking Meloxicam and Aleve as needed for pain; and that she could not return to work until she had a hip replacement.
While there is no question that Plaintiff has been diagnosed with osteoarthritis in multiple sites, and that this condition results in tenderness, pain, and muscle spasms, the objective record evidence shows that Plaintiff's osteoarthritis during the relevant time period has been "mild." For example, two months before Dr. Kidd opined that Plaintiff could not return to work until she received a hip replacement, Dr. King, on May 2, 2014, examined Plaintiff and noted that she was in no acute distress, that she had no significant pain or tenderness with internal and external rotation of the hips, and that x-rays showed only "mild hip osteoarthritis." (Doc. 11 at 236). Dr. King encouraged Plaintiff to continue with the anti-inflammatory medication and advised her to follow-up with him if she decided on surgery. (
The record also reflects that on November 14, 2014, Dr. Fitzgerald observed, "[w]e did x-rays of her cervical spine, lumbar spine, and right shoulder, and all of them show some mild arthritic changes, but nothing serious." (Doc. 11 at 253). Indeed, Plaintiff's treatment records during the relevant time period also contain various notations indicating normal gait, largely normal overall physical findings, no muscle pain, no joint pain, no stiffness, and normal back, and they reflect that Plaintiff's medications and injections have provided some relief.
In her decision, the ALJ discussed Dr. Kidd's 2014 opinion that Plaintiff could return to work if she had hip replacement surgery and found the opinion to be completely inconsistent with the objective medical evidence showing only "mild" osteoarthritis. (Doc. 11 at 30-31). Given the substantial objective medical evidence detailed above, the Court finds that the ALJ properly gave little weight to Dr. Kidd's 2014 opinion. In addition, Plaintiff's new evidence, namely Dr. Kidd's 2016 opinion that Plaintiff cannot work due to her osteoarthritis, is merely cumulative of the same opinion offered in 2014 and is likewise inconsistent with the objective medical evidence that Plaintiff's osteoarthritis is "mild." Therefore, the new evidence from Dr. Kidd does not render the denial of benefits erroneous, and Plaintiff has not established a reasonable possibility that Dr. Kidd's new opinion evidence would change the administrative outcome. Accordingly, the Appeals Council did not err in failing to grant review on the basis of Dr. Kidd's 2016 opinions, and, thus, Plaintiff's claim must fail.
Next, Plaintiff argues that the ALJ erred in assigning great weight to the opinions of non-examining, State Agency physician, Dr. Maria Wellman, M.D., that Plaintiff can perform light work. (Doc. 13 at 7). Plaintiff maintains that, because Dr. Wellman did not examine Plaintiff and did not have the benefit of all of Plaintiff's medical records at the time of her assessment, the ALJ erred in assigning her opinions great weight. (
As part of the disability determination process, the ALJ is tasked with weighing the opinions and findings of treating, examining, and non-examining physicians. In reaching a decision, the ALJ must specify the weight given to different medical opinions and the reasons for doing so.
When weighing the opinion of a treating physician, the ALJ must give the opinions "substantial weight," unless good cause exists for not doing so.
Whether considering the opinions of treating, examining, or non-examining physicians, good cause exists to discredit the testimony of any medical source when it is contrary to or unsupported by the evidence of record.
The record shows that on September 15, 2014, State Agency reviewer, Dr. Wellman, completed a Physical RFC assessment and opined that Plaintiff could occasionally lift/carry twenty pounds, frequently lift/carry ten pounds, stand/walk for approximately six hours in an eight-hour workday, and sit for approximately six hours in an eight-hour workday, concluding that Plaintiff is not disabled. (Doc. 11 at 60-61). The ALJ accorded great weight to Dr. Wellman's assessment, finding her opinions to be consistent with the medical evidence. (
Based on the evidence detailed above, the Court finds that Dr. Wellman's opinions are consistent with the substantial medical evidence in this case and do not conflict with the credible opinions of any examining sources. Therefore, the ALJ properly accorded them great weight.
In her brief, Plaintiff argues that the ALJ erred in failing to find that her hypertension, diabetes, and osteoarthritis are severe impairments. (Doc. 13 at 8-9). The Commissioner counters that the ALJ's failure to find that these impairments are severe at step two of the sequential evaluation process is, at best, harmless error given the ALJ's consideration of all of Plaintiff's impairments, including these, at the subsequent steps of the sequential analysis. The Commissioner further argues that the ALJ's RFC is supported by substantial evidence. (Doc. 16 at 8). Having carefully reviewed the record in this case, the Court finds that, assuming arguendo, that the ALJ erred in not finding some of Plaintiff's impairments to be severe, said error was harmless.
"At step two the ALJ must determine if the claimant has any severe impairment. This step acts as a filter; if no severe impairment is shown the claim is denied, but the finding of any severe impairment, whether or not it qualifies as a disability and whether or not it results from a single severe impairment or a combination of impairments that together qualify as severe, is enough to satisfy the requirement of step two."
In this case, the ALJ determined at step two of the sequential evaluation process that Plaintiff's obesity was a severe impairment, but that her hypertension, diabetes, and osteoarthritis were not severe impairments. (Doc. 11 at 25). The ALJ then proceeded with the subsequent steps of the determination process and rendered an RFC finding, based on all of Plaintiff's impairments and the record as a whole.
Accordingly, because the ALJ determined at step two that Plaintiff suffered from the severe impairment of obesity and then proceeded beyond step two in the sequential analysis to consider the combined effect of all the claimant's impairments, any error in failing to find that Plaintiff suffered from other severe impairments is rendered harmless.
Moreover, based on the record evidence detailed above, the Court is satisfied that substantial evidence supports the ALJ's RFC determination that Plaintiff can perform a range of light work with the stated restrictions.
For the reasons set forth herein, and upon careful consideration of the administrative record and memoranda of the parties, it is hereby