JEAN ROSENBLUTH, Magistrate Judge.
Plaintiff seeks review of the Commissioner's final decision denying her applications for Social Security disability insurance benefits ("DIB") and Supplemental Security Income benefits ("SSI"). The parties consented to the jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 28 U.S.C. § 636(c). This matter is before the Court on the parties' Joint Stipulation, filed March 14, 2013, which the Court has taken under submission without oral argument. For the reasons stated below, the Commissioner's decision is affirmed and this action is dismissed.
Plaintiff was born on August 31, 1964. (Administrative Record ("AR") 110, 113.) She completed high school and one year of college. (AR 37, 159.) She previously worked as a bus driver and a food demonstrator at grocery stores and markets. (AR 38-39, 139, 155.)
On September 22, 2008, Plaintiff filed applications for DIB and SSI, alleging that she had been unable to work since March 24, 2005, because of several medical conditions, including neck and back injuries, right-elbow tendonitis, and knee problems. (AR 39-40, 110-26, 154.) After her applications were denied, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 69.) A hearing was held on July 22, 2010, at which Plaintiff, who was represented by counsel, testified, as did a vocational expert. (AR 34-49.) In a written decision issued August 24, 2010, the ALJ found that Plaintiff was not disabled. (AR 22-29.) On February 28, 2012, the Appeals Council denied Plaintiff's request for review. (AR 1-5.) This action followed.
Pursuant to 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. The ALJ's findings and decision should be upheld if they are free of legal error and supported by substantial evidence based on the record as a whole. § 405(g);
People are "disabled" for purposes of receiving Social Security benefits if they are unable to engage in any substantial gainful activity owing to a physical or mental impairment that is expected to result in death or which has lasted, or is expected to last, for a continuous period of at least 12 months. 42 U.S.C. § 423(d)(1)(A);
The ALJ follows a five-step sequential evaluation process in assessing whether a claimant is disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4);
At step one, the ALJ found that Plaintiff had not engaged in any substantial gainful activity since March 24, 2005. (AR 24.) At step two, the ALJ concluded that Plaintiff had the severe impairments of obesity and degeneration of the cervical spine, lumbar spine, and bilateral knees. (
Plaintiff alleges that the ALJ's RFC finding and credibility determination lacked the support of substantial evidence. (J. Stip. at 4.)
Plaintiff contends that in determining her RFC, the ALJ erred by relying on the opinions of the consulting and reviewing physicians because they were rendered before her right-knee surgery and updated MRIs of her cervical and lumbar spine. (J. Stip. at 5.) Plaintiff further argues that in light of those later medical records, the ALJ should have "utilized the services of a medical expert" or "arranged for an updated orthopedic consultative examination." (J. Stip. at 5-6.) Remand is not warranted on this basis, however, because the ALJ properly determined Plaintiff's RFC.
A district court must uphold an ALJ's RFC assessment when the ALJ has applied the proper legal standard and substantial evidence in the record as a whole supports the decision.
Plaintiff alleged that her knees began hurting when she was working as a bus driver and that her back and elbow conditions resulted from being rear-ended while driving a bus. (AR 39.) She filed a worker's compensation case regarding her injuries. (
On May 4, 2005, Dr. Robert W. Hunt evaluated Plaintiff and later completed a report as part of Plaintiff's worker's compensation case. (AR 359-82.) Dr. Hunt noted that Plaintiff was five feet four inches tall and weighed 275 pounds. (AR 369.) She had normal range of motion of the neck but complained of tenderness and pain with neck motion. (AR 370.) Plaintiff had reduced range of motion of the elbows and knees and normal range of motion of the hips. (AR 370, 374-75.) Her sensation was decreased over the sole of her left foot but otherwise intact, and she had full motor power and reflexes. (AR 372, 376.) Plaintiff had normal gait and posture, some tenderness to palpation over the lumbar spine, no thoracic or lumbar muscle spasm, and full range of motion of the lumbar spine. (AR 373.)
Dr. Hunt diagnosed cephalgia, cerviothoracic strain, right-elbow strain, thoracolumbar strain, bilateral knee strain, and plantar fusion of the right foot. (AR 377.) He noted that Plaintiff's weight was "delaying her recovery" from her injury. (AR 379.) He prescribed Darvocet, a pain medication; Ativan and Soma, muscle relaxants; Relafen, a nonsteroidal anti-inflammatory agent; Lidoderm patches; and an anti-inflammatory topical ointment. (AR 378.) Dr. Hunt also recommended physical therapy, chiropractic therapy, braces and supports, a heating pad, biofeedback, and a weight-loss program. (AR 378-79.) Dr. Hunt believed that Plaintiff was temporarily totally disabled but estimated that she would be able to return to modified work in four to six weeks. (AR 380.)
On May 13, 2005, electromyographic and nerve-conduction studies were normal. (AR 393-97.) On May 27, 2005, an MRI of Plaintiff's right knee showed chondromalacia of the patella and a grade I sprain of the medial collateral ligament (AR 428), but MRIs of her left knee, right ankle, and right foot were normal (AR 427, 429-30). On June 21, 2005, a right-elbow MRI was normal. (AR 431.)
On June 6, 2005, a cervical-spine MRI showed at C2/3, disc desiccation with a 1.9-millimeter central-disc protrusion that produced mild spinal-canal narrowing; at C3/4 and C4/5, disc desiccation with 1.9-millimeter disc bulges, mild spinal-canal narrowing, and facet arthropathy producing mild neuroforaminal encroachment; at C5/6, disc desiccation with a 3.9-millimeter disc protrusion, mild spinal-canal narrowing, and bilateral facet arthropathy producing mild bilateral neuroforaminal encroachment; and at C6/7 and C7/T1, disc desiccation. (AR 280.) A thoracic-spine MRI showed disc desiccation at T1/2 through T8/9; 2.1-millimeter disc protrusions at T5/6 and T6/7 that produced mild spinal-canal narrowing; and a 1.5-millimeter disc protrusion at T8/9 that produced mild spinal-canal narrowing. (AR 417.) A lumbar-spine MRI showed a 2.3-millimeter disc bulge at L1/2 that produced mild spinal-canal narrowing and mild bilateral neuroforaminal encroachment; a 2.6-millimeter disc bulge at L2/3 that produced mild spinal-canal narrowing and mild bilateral neuroforaminal encroachment; a 3.5-millimeter disc bulge at L3/4 that produced mild spinal-canal narrowing and mild to moderate bilateral neuroforaminal encroachment; a 3.5-millimeter disc bulge and facet arthropathy at L4/5 that produced mild to moderate spinal-canal narrowing and mild bilateral neuroforaminal encroachment; and mild hypolordosis of the lumbar spine.
On December 8, 2005, Dr. Eduardo E. Anguizola, who was board certified in pain management, performed a pain-management evaluation of Plaintiff. (AR 323-30.) Plaintiff had normal reflexes, intact cranial nerves, and normal sensation. (AR 326.) Her cervical spine had reduced range of motion with pain and spasm; her thoracic spine had moderate muscle spasm with pain and tenderness; and her lumbar spine had decreased range of motion with pain, tenderness, and muscle spasm. (AR 326-27.) A straight-leg-raising test was positive bilaterally. (AR 327.) Dr. Anguizola diagnosed cervical disc disease, bilateral cervical facet arthropathy with cerviogenic headaches, cervical radiculopathy, thoracic disc disease, lumbosacral disc disease, bilateral lumbar radiculopathy, and bilateral lumbar facet arthropathy. (AR 328.) He recommended lumbar steroid injections and diagnostic facet blocks. (AR 329.)
On January 20, 2006, orthopedic surgeon Timothy J. Hunt evaluated Plaintiff's right knee.
On March 23, 2006, Dr. Anguizola noted that Plaintiff's cervical spine had decreased range of motion, pain, tenderness, and mild paraspinal muscle spasms. (AR 434.) He noted that Plaintiff's thoracic spine had pain and tenderness and her lumbosacral spine had reduced range of motion, pain, tenderness, and spasm. (AR 434-35.) A straight-leg-raising test was positive bilaterally. (AR 435.) Dr. Anguizola diagnosed cervical disc disease, bilateral cervical facet arthropathy with cerviogenic headaches, thoracic disc disease with facet arthropathy, lumbosacral disc disease, bilateral lumbar radiculopathy, and bilateral lumbar facet arthropathy. (
On May 1 and 15, 2006, Plaintiff received lumbar steroid injections. (AR 438-39, 447-48.) On June 1, 2006, Dr. Anguizola found that Plaintiff's cervical spine had decreased range of motion, pain, tenderness, and spasm; her thoracic spine had mild pain on palpation; and her lumbar spine had decreased range of motion, pain, and tenderness. (AR 454-55.) A straight-leg-raising test was negative. (AR 455.) Dr. Anguizola diagnosed cervical disc disease, bilateral cervical facet arthropathy, cerviogenic headaches, thoracic disc disease with mild facet arthropathy, lumbosacral disc disease, bilateral lumbar radiculopathy, bilateral lumbar facet arthropathy, and possible discogenic pain. (
On October 16, 2006, orthopedic surgeon Daniel A. Capen diagnosed Plaintiff with mulitlevel lumbar-disc protrusion and early degenerative discopathy, cervical- and lumbar-spine strain, and morbid obesity. (AR 536.) He noted that Plaintiff was receiving facet blocks and recommended that she join a weight-loss program and consider obesity surgery. (
On January 9, 2007, Dr. Hunt found that Plaintiff's neck was painful but had adequate range of motion, her right elbow was tender but had adequate range of motion, and her low back was tender but without paravertebral spasm. (AR 228.) He diagnosed cervical- and lumbar-disc displacement, "[c]ephalgia/[r]ight elbow strain," and "[c]ervicothoracic strain/bilateral knee strain." (
On June 8, 2007, an MRI of Plaintiff's cervical spine showed at C2/C3, a 2.2-millimeter broad-based disc protrusion that effaced the thecal sac, patent neural foramina, and normal exiting nerve roots; at C3/C4, a 2.1-millimeter broad-based disc protrusion that indented the spinal cord and left neuroforaminal narrowing causing encroachment on the left-C4 exiting nerve root; at C4/C5, a 2.1-millimeter broad-based disc protrusion that effaced the thecal sac and right neuroforaminal narrowing causing encroachment on the right-C5 exiting nerve root; at C5/C6, a 2.1-millimeter left lateral disc protrusion that effaced the thecal sac and left neuroforaminal narrowing causing encroachment on the left-C6 exiting nerve root; at C6/C7, a "subtle disc bulge" that effaced the thecal sac and bilateral neuroforaminal narrowing causing encroachment on the C7 exiting nerve root; and posterior osteophytes from C2 to C5. (AR 403.)
That same day, a lumber-spine MRI showed at L1/L2, a 2.8-millimeter broad-based disc protrusion that abutted the thecal sac, normal neural foramina and nerve roots, and facet-joint and ligamenta-flava hypertrophy; at L2/L3, a 2.8-millimeter broad-based disc protrusion with osteophyte that effaced the thecal sac, bilateral neuroforaminal narrowing causing encroachment on the nerve roots, and significant facet-joint and ligamenta-flava hypertrophy that contributed to spinal-canal narrowing; at L3/L4, a 2.8-millimeter broad-based disc protrusion with osteophyte that effaced the thecal sac, bilateral neuroforaminal narrowing causing encroachments on the nerve roots, and significant facet-joint and ligamenta-flava hypertrophy that contributed to spinal-canal narrowing; at L4/L5, a 2.8-millimeter broad-based disc protrusion with osteophyte that effaced the thecal sac, bilateral neuroforaminal narrowing causing encroachment on the right and effacement of the left nerve roots, and significant facet-joint and ligamenta-flava hypertrophy that was contributing to spinal-canal narrowing; at L5/S1, a 2.5-millimeter broad-based disc protrusion with osteophyte that was effacing the thecal sac, bilateral neuroforaminal narrowing causing encroachment on the right and effacement on the left nerve roots, and facet-joint and ligamenta-flava hypertrophy. (AR 399-400.)
On June 11, 2007, Dr. Andrew R. Jarminski noted that Plaintiff had a mild antalgic gait; her right knee had some tenderness but full extension; her lumbar spine was tender with limited range of motion; and her cervical spine had tenderness, spasm, and pain. (AR 442.) He noted that Plaintiff had undergone a percutaneous sterostatic and radiofrequency rhizotomy in Febraury 2007, and he recommended that she obtain updated MRIs, lose weight through a weight-loss program or gastric bypass surgery, and attend pool therapy. (AR 442-43.) Dr. Jarminski opined that Plaintiff was temporarily totally disabled. (AR 443.)
On July 23, 2007, Dr. Capen noted that Plaintiff had difficulty with bending and rotation of both the cervical and lumbar spine and that her obesity contributed to her low-back condition. (AR 523.) He found that surgery was not warranted and recommended conservative care. (
On December 13, 2007, neurologist Robert A. Rafael found that Plaintiff had full neck range of motion, normal cranial nerves, "5/5" motor strength, "2+" reflexes, normal gait and station, normal coordination, and intact sensation. (AR 273-75, 387-88.) Dr. Rafael noted that Plaintiff's neurological exam was within normal limits and diagnosed posttraumatic headaches and headaches secondary to cervical strain, but he found "no history" that was "suggestive of migraine headaches." (AR 274.)
On January 28, 2008, Dr. Khiem D. Dao diagnosed Plaintiff with right chronic lateral epicondylitis and recommended a cortisone injection. (AR 470.) On February 3, 2009, Dr. Arthur Q. Nuval and Dr. Douglas E. Garland noted that Plaintiff was complaining of neck, right-elbow, low-back, and bilateral knee problems. (AR 720.) They noted that x-rays showed loss of lordosis of the neck and bilateral chondromalacia patella and that MRIs showed some cervical- and lumbar-spine degenerative disc disease and possible tear of the meniscus. (
On February 12, 2008, orthopedic surgeon Dr. T. Hunt evaluated Plaintiff's right knee. (AR 252-57.) He noted that Plaintiff was five feet, four inches tall, weighed 270 pounds, and denied taking medications at that time. (AR 254.) He found that Plaintiff's right knee was tender with "slightly decreased" mobility, and she had a negative straight-leg-raising test. (
On November 17, 2008, Dr. Concepcion A. Enriquez, who was "board eligible" in internal medicine, examined Plaintiff at the Social Security Administration's request. (AR 598-602.) Dr. Enriquez noted that Plaintiff weighed 270 pounds. (AR 599.) Her cervical spine was tender with decreased range of motion of 70/80 degrees on left lateral rotation. (AR 600.) Plaintiff's lumbar spine was tender with decreased range of motion, but she had no muscle spasms and a negative straight-leg-raising test. (
On December 9, 2008, state-agency medical consultant Dr. R. May reviewed Plaintiff's medical records and completed a physical-residual-functional-capacity assessment. (AR 608-13.) Dr. May found that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand and walk for about six hours and sit for about six hours in an eight-hour day; occasionally climb, balance, stoop, kneel, crouch, or crawl; and never climb ladders, ropes, or scaffolds or be exposed to hazards. (AR 609, 611-12.) On May 16, 2009, state-agency medical consultant Dr. Henry Scovern reviewed Dr. May's opinion and agreed with it. (AR 626-28.)
On December 9, 2008, Dr. Nuval noted that Plaintiff complained of right-knee meniscal tear and degenerative disc disease of the lumbosacral spine. (AR 605.) He discussed weight-reduction diet and exercise; referred her to a dietician and the orthopedics clinic; and prescribed ibuprofen, omeprazole, and cyclobenzaprine.
On June 9, 2009, Dr. Garland noted that Plaintiff was following up for her tennis elbow and neck. (AR 945.) He injected Plaintiff's right elbow with steroids and lidocaine and prescribed physical therapy and Tramadol. (
On April 15, 2010, an MRI of Plaintiff's cervical spine showed at C2/C3, normal disc height, normal spinal canal, and normal neural foramina; at C3/C4, mild loss of disc height, a one-to-two-millimeter broad-based protrusion that deformed the thecal sac but did not result in central spinal stenosis, and a mildly narrowed left neural foramen; at C4/C5, mild loss of disc height, a one-millimeter broad-based protrusion resulting in mild central spinal stenosis, and mild right and moderate left neural-foraminal narrowing; at C5/C6, a mild loss of disc height, two-millimeter protrusion resulting in mild central spinal stenosis, and mild bilateral neural-foraminal narrowing, left greater than right; at C7/T1, normal disc height, normal central spinal canal, and normal neural foramina; and at T1/T2, normal disc height, normal central spinal canal, and normal neural foramina.
That same day, an MRI of Plaintiff's lumbar spine showed at L1/L2, mild loss of disc height and disc desiccation with normal central spinal canal and neural foramina; at L2/L3, mild loss of disc height and disc desiccation, two-millimeter disc bulge resulting in mild central spinal stenosis, a two-millimeter left-paracentral extrusion, patent right neural foramen, and mildly narrowed left neural foramen; at L3/L4, mild loss of disc height and disc desiccation, normal central spinal canal, mild bilateral neural foraminal narrowing that was greater on left, and hypertrophic changes of the facet joints; at L4/L5, normal disc height, normal central spinal canal, normal right neural foramen, a two-millimeter left extraforaminal protrusion resulting in moderate left neural foraminal narrowing but without evidence of neural compression, and hypertrophic changes of the facet joints; and at L5/S1, normal disc height, normal central spinal canal, mild to moderate bilateral neural foraminal narrowing, and hypertrophic changes of the facet joints. (AR 963-64.) The radiologist's impression was mild diffuse facet arthropathy of the lumbar spine, mild discogenic changes of the lumbar spine at L1-S1, mild central spinal stenosis at L2-L3 associated with a two-millimeter left paracentral extrusion that did not result in neural compression, and mild to moderate neural foraminal narrowing at L3-S1 related to disc bulge and facet arthropathy. (AR 964.)
On June 16, 2010, Dr. Garland performed an arthroscopy, menisctomy, and debridement of Plaintiff's right knee. (AR 958-60.)
The ALJ found that Plaintiff retained the RFC to perform a limited range of light work. (AR 24.) In doing so, the ALJ accepted the findings of examining physician Enriquez and reviewing physicians May and Scovern, who were the only doctors who offered opinions as to Plaintiff's functional limitations. (AR 26.)
The ALJ was entitled to rely on the opinions of Drs. Enriquez, May, and Scovern to find that Plaintiff retained the RFC to perform a limited range of light work. (AR 24, 26.) Dr. Enriquez's opinion was supported by independent clinical findings and thus constituted substantial evidence upon which the ALJ could properly rely.
Consistent with those findings, Dr. Enriquez concluded that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; stand or walk for six hours and sit for six hours in an eight-hour workday; and occasionally bend, stoop, twist, squat, crouch, or kneel. (AR 602.) She believed Plaintiff must avoid unprotected heights and operating dangerous machines. (
Plaintiff nevertheless argues that the opinions of Drs. Enriquez, May, and Scovern could not serve as substantial evidence supporting the ALJ's decision because they were rendered before Plaintiff underwent right-knee surgery and obtained updated cervical- and lumbar-spine MRIs. (J. Stip. at 5.) The ALJ, however, acknowledged Plaintiff's right-knee surgery but found "no reason to believe it was not successful," a finding Plaintiff does not challenge. (AR 26.) Indeed, Plaintiff cites no evidence showing that her condition worsened, rather than improved, as a result of her surgery, or even that she had any specific knee limitations that were inconsistent with her RFC. (
Plaintiff also fails to cite any specific findings from the 2010 MRIs that conflicted with her RFC (
Plaintiff also argues that the ALJ's finding that she could stand for six hours in an eight-hour day "borders on the fantastic . . . in light of [her] degenerative disease of the cervical and lumbar spine and bilateral knees with the added impairment of extreme obesity." (J. Stip. at 5.) Plaintiff again cites no evidence in support of her assertions, and all three doctors who offered opinions as to Plaintiff's functional limitations found otherwise.
Finally, Plaintiff argues that the ALJ "failed in his affirmative obligation to fully and fairly develop the record" because he "made no effort to utilize a medical expert or arrange a consultative examination" after she submitted her surgery report and 2010 MRIs. (J. Stip. at 5-6.) But those records were not ambiguous, nor did they in any way conflict with the earlier evidence. As such, they did not trigger the ALJ's duty to develop the record.
Plaintiff is not entitled to remand on this ground.
Plaintiff argues that the ALJ's credibility determination must be reversed because it "lacks the requisite support of substantial evidence" and was "a result of legal error." (J. Stip. at 10.)
An ALJ's assessment of pain severity and claimant credibility is entitled to "great weight."
In an undated disability report, Plaintiff wrote that she was unable to work because of "[t]wo disc injuries in [her] neck and five on [her] lower back," right-elbow tendonitis, "planter problems," and "left foot surgeries." (AR 154.) She said that her conditions caused pain and difficulty bending, standing, pushing, pulling, and grasping with her hands. (
In an October 5, 2008 function report, Plaintiff wrote that her daily activities included watching television, making lunch and dinner, and sometimes going to the doctor. (AR 171.) She tried to go for walks but had to stop and rest after about five minutes. (
Plaintiff said that she went outside a few times a week and would travel as a passenger in a car or by public transportation. (AR 174.) She did laundry but needed help carrying it up the stairs. (AR 173.) Plaintiff shopped for food every few days for about an hour at a time. (AR 174.) She could count change, handle a savings account, and use a checkbook or money orders. (
At the July 22, 2010 hearing before the ALJ, Plaintiff testified that she was unable to work because her knees hurt and because, while working as a bus driver, she had developed neck, back, and elbow pain after "a couple of rear endings of the bus." (AR 39.) She said her neck injuries caused headaches and pain that radiated down her back and that her lower-back pain radiated down her hips and to both knees. (AR 39-40.) She said her doctors had recommended that she lose weight.
The ALJ found that Plaintiff's impairments could reasonably be expected to cause the alleged symptoms but that her "statements concerning the intensity, persistence and limiting effects of these symptoms [were] not credible to the extent they [were] inconsistent with" an RFC for a limited range of light work. (AR 25.) Reversal is not warranted based on the ALJ's alleged failure to make proper credibility findings or properly consider Plaintiff's subjective symptoms.
First, the ALJ properly discounted Plaintiff's credibility based on her "poor work history," which showed that she had "earned amounts above the substantial gainful activity level in only four years." (AR 27.) Indeed, Plaintiff's work-history report shows that she had no earnings at all from 1984 to 1985 and from 1988 to 1998. (AR 129.) And in eight of the 12 years that she did work, her wages ranged from only a couple hundred dollars to about $8000 a year. (
The ALJ also permissibly discounted Plaintiff's credibility because her statements regarding her medications conflicted with the medical record. (AR 27.)
Plaintiff contends that her "prescription history demonstrates that the ALJ's statement is factually inaccurate," and cites, in support, a June 2009 medication list. (J. Stip. at 13 (citing AR 630-31).) That list of "active medications" does include carisoprodol, the generic form of Soma, but states only that it was last filled in May 2009, well after Plaintiff's November 2008 examination with Dr. Enriquez. (AR 630.) The medication list also notes that Plaintiff filled a prescription for the narcotic pain relievers hydrocodone-acetaminophen in March 2009 and tramadol in February 2009, also postdating her November 2008 examination.
One of the ALJ's reasons for finding that Plaintiff's subjective symptoms were not as bad as she claimed might not have been clear and convincing, however. The ALJ found that Plaintiff received only "conservative care" for her impairments, including physical therapy and steroid injections to her spine and elbow, up until the time of her surgery. (AR 27.) Indeed, Plaintiff's treatment included lumbar and cervical epidural injections (AR 217, 438-39, 447-48), a right-lumbar facet block (AR 508-09), and a stereostatic and radiofrequency rhizotomy (AR 442-43). Epidural and steroid injections, however, may not be consistent with a finding of conservative treatment.
Consistent with the foregoing, and pursuant to sentence four of 42 U.S.C. § 405(g),