SUZANNE H. SEGAL, Magistrate Judge.
Melody Soyka ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (the "Commissioner" or "Agency") denying her application for Disability Insurance Benefits ("DIB"). On May 10, 2016, Plaintiff filed a complaint (the "Complaint") commencing the instant action. On October 4, 2016, Defendant filed an Answer to the Complaint (the "Answer") along with the Administrative Record ("AR"). On November 8, 2016, Plaintiff filed a memorandum in support of the Complaint ("Pl. MSO"). On January 17, 2017, Defendant filed a memorandum in support of the Answer ("Def. MSO"). On January 31, 2017, Plaintiff filed a reply (the "Reply"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 7, 12). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.
Plaintiff filed an application for DIB on September 5, 2013. (AR 118-121). Plaintiff alleged a disability onset date of August 6, 2012. (AR 118). The Agency denied Plaintiff's application on December 30, 2013. (AR 60-62). On January 29, 2014, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 63-64). On September 12, 2014, ALJ Joan Ho conducted a hearing to review Plaintiff's claim. (AR 24-48). Plaintiff, represented by Troy Monge, testified before the ALJ. (AR 30-43). At the hearing, Plaintiff requested to amend her alleged disability onset date to July 16, 2013. (AR 29). Vocational expert ("VE") Susan Allison also testified at the hearing. (AR 44-47). On November 12, 2014, ALJ Ho found that Plaintiff was not disabled under the Social Security Act. (AR 9-20). Plaintiff sought review of the ALJ's decision before the Appeals Council on January 7, 2015. (AR 7-8). On March 25, 2016, the Appeals Council denied review. (AR 1-3). As such, the ALJ's decision became the final decision of the Commissioner. (AR 1). Plaintiff commenced the instant action on May 10, 2016. (Dkt. No. 1).
Plaintiff was born on March 10, 1958. (AR 118). She was 55 years old as of the alleged disability onset date of July 16, 2013. She was 56 years old when she appeared before the ALJ. (AR 30). Plaintiff completed the twelfth grade and received a high school diploma. (AR 31, 202). For fifteen years prior to her alleged disability onset date, Plaintiff worked as a nanny. (AR 134, 139). Prior to that, Plaintiff worked as a file clerk, preschool teacher, and cashier. (AR 202).
In the Disability Report, Plaintiff alleged that back problems, peripheral neuropathy, chondromalacia patellae, ulcerative colitis, a learning disability, osteoporosis, and "knees, stomach, etc." limit her ability to work. (AR 132). According to medical records, Plaintiff has chronic low back pain that worsened in September of 2012 when a vehicle that was backing up struck her car. (AR 215).
At the hearing, Plaintiff testified that she no longer has problems with ulcerative colitis (AR 36), but that she has "scoliosis, arthritis . . . osteoporosis sponlykiosis [phonetic] . . . [and] neuritis." (AR 35).
Plaintiff testified that she stopped working on August 6, 2012 because she "fractured [the] 5th metatarsal in [her] left foot." (AR 32). She was out on disability from August until October and was subsequently let go for not coming back to work at a particular time. (
Plaintiff testified that her physician restricted her to standing and walking twenty-five percent of the time and sitting only a certain percentage of the time. (AR 33). She testified that she looked for work adhering to these restrictions but was unable to find anything. (AR 32). Specifically, Plaintiff testified that she looked for office work and nanny jobs. She testified that, had she received an office job allowing her to work within the guidelines of her restrictions, she would have been able to do it. (AR 33).
Plaintiff testified that she has been unable to work since July 16, 2013 because her back has gotten increasingly worse and she feels that "no employer will hire [her]" with her postural restrictions. (AR 32). She stated that her back pain is "really bad" and that every day she has to "lie in bed because the pain is so great." (AR 34). Plaintiff further testified that the pain is located in her lower back, below the belt line, and that doctors gave her pain medications and back exercises to decrease her pain. (
Plaintiff testified that she also has neuritis, meaning that she does not have enough padding in her feet and is "stepping on [her] nerves all the time, and [her] feet are in pain 24/7." (AR 35). Plaintiff testified that, on a scale from 1 to 10, she would rate her pain an 8. (AR 38). When she takes her medication, which consists of Evista for osteoporosis, Tylenol, Codeine, and another medication that she could not recall the name of, Plaintiff would rate her pain a 7. (AR 38) Plaintiff testified that, at the time of the hearing, she did not have problems with ulcerative colitis (AR 36), though it was alleged in the Disability Report. She also stated that her knees pop if she repetitively kneels, bends, and stoops, but that she stays in the guidelines of what she is not supposed to do and has been doing well. (AR 42-43).
Plaintiff testified that she does household chores, including loading the dishes as she eats her meals and the laundry when necessary. (AR 43). She testified that she drives every day without limits. (AR 31). However, she does not vacuum because it hurts her back (AR 43) and she cannot lift two gallons of milk. (AR 35).
On March 29, 2013, Plaintiff visited her treating physician, Dr. Diane A. Song, M.D., to follow-up on back pain. (AR 463). Pursuant to this visit, Dr. Song completed a progress note, wherein she stated that Plaintiff "completed a course of physical therapy and was also evaluated by physical medicine and given work restrictions." (AR 463). Under "Assessment/Plan", Dr. Song wrote "Low back pain: Ok to return to work as a nanny." (
On July 16, 2013, Dr. Song completed a "Work Status Report", diagnosing Plaintiff with "strain of back", stating that she "is placed on permanent modified work/activity restrictions" including that she could sit and stand "[o]ccasionally (up to 25% of shift)" and could lift/carry/push/pull no more than 10 pounds. (AR 214). On August 2, 2013, Dr. Song completed another "Work Status Report", diagnosing Plaintiff with "osteoporosis, spondylosis cervical joint wo myelopathy, chronic neck pain, strain of lumbar region" and opining the same restrictions to Plaintiff's activities. (AR 213).
On August 6, 2013, Plaintiff's treating family physician, Dr. Alberto Ezroj, M.D., examined Plaintiff and noted that she had normal range of motion of back without spasm or exacerbation of pain, normal strength in her extremities, and did not exhibit any musculoskeletal tenderness. (AR 514). Dr. Ezroj listed Plaintiff's primary encounter diagnosis as "strain of back." (
On September 11, 2013, Dr. Ezroj completed a "Medical Assessment of Ability to do Work-Related Activities" form. (AR 198). Therein, Dr. Ezroj opined that Plaintiff can only lift/carry up to 10 pounds, can only stand or walk for 30 minutes without interruption, and can only stand/walk for two hours total in an eight-hour workday. Dr. Ezroj commented that x-rays "revealing Grade 2 spondylolisthesis and osteophytes throughout lumbar spine" support these assessments. (
On January 31, 2013, Plaintiff visited Dr. Andrew Kahn, M.D., for a physical medicine and rehabilitation outpatient consultation. Notes from this visit indicate that Plaintiff walked without an assistive device and moved easily from sit to stand and with transfers to the exam table. (AR 217). Physician notes indicate that Plaintiff's lumbar spine was nontender to palpation, with tenderness only noted in the paraspinal muscles at L5 to S1. (
On November 15, 2013, State Agency reviewing physician, Dr. James Wellons, M.D., reviewed Plaintiff's medical records and provided a medical assessment. (AR 54-55). Dr. Wellons noted that Plaintiff's "MDIs include: Spondylolisthesis of the LS" and stated that these "MDI's cannot reasonably be expected to produce the alleged pain and symptoms." (AR 55). He further noted that "[t]here is no PE that describes abnormalities that support" limiting Plaintiff to standing or walking two hours during the workday and lifting or carrying no more than ten pounds. (
Vocational Expert ("VE") Susan Allison testified at Plaintiff's hearing before the ALJ. (AR 44-47). The ALJ asked the VE to consider a series of factors in creating two hypotheticals for determining Plaintiff's ability to work. (AR 45-46). The ALJ's first hypothetical included an individual with certain postural limitations who could perform light work, as defined in the Dictionary of Occupational Titles
The ALJ's second hypothetical included all the limitations described in the first hypothetical, however the individual could only perform work at a sedentary level
On October 27, 2013, Plaintiff's father, Robert Soyka, completed a Third Party Adult Function Report on Plaintiff's behalf. (AR 145-154). Plaintiff's father stated that he lives in a mobile home with Plaintiff and that they talk, watch TV, and go to dinner together. (AR 145). He noted that Plaintiff helps with light chores (AR 146), can only lift fifteen lbs. (AR 147), goes on short walks, drives a car, and goes out alone. (AR 149). He also indicated that Plaintiff is able to pay bills, count change, handle a savings account, and use a checkbook/money orders. (AR 15). Plaintiff's father stated that Plaintiff goes to the movies and to concerts with friends and her mother. (AR 151). When prompted to describe any changes in social activities since Plaintiff's conditions began, Plaintiff's father noted that she "[n]ever did go out much." (AR 151). He noted that Plaintiff's injury affects her ability to lift, climb stairs, bend, stand, kneel, walk, and sit. (AR 151). He elaborated that Plaintiff can walk 50 yards before needing to stop and rest. (AR 152).
On October 30, 2013, Plaintiff completed an Adult Function Report (AR 157-164), wherein she stated that she is in pain "24/7" with her back (AR 157). She stated that she helps take care of her mother, who is very ill. (AR 158). She noted that she has no problems with personal care (
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents him from engaging in substantial gainful activity
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five.
On November 12, 2014, after employing the five-step sequential evaluation process, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the Social Security Act. (AR 20). At step one, the ALJ observed that Plaintiff had not engaged in substantial gainful activity since July 16, 2013, the alleged disability onset date. (AR 14). At step two, the ALJ found that Plaintiff's severe impairments were spondylolisthesis, lumbosacral spondylosis, and lumbar strain. (
(AR 15-16).
At step four, the ALJ determined that Plaintiff is "capable of performing past relevant work as a nanny. This work does not require the performance of work-related activities precluded by the [plaintiff's] residual functional capacity." (AR 19).
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. "The court may set aside the Commissioner's decision when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole."
"Substantial evidence is more than a scintilla, but less than a preponderance."
Plaintiff challenges the ALJ's decision on two grounds. First, Plaintiff contends that the ALJ committed legal error in not adequately assessing her testimony regarding her pain and limitations. (Pl. MSO at 2). Second, Plaintiff contends that the ALJ failed to properly consider the opinions of Plaintiff's treating physician, Dr. Alberto Ezroj. (
The Court disagrees. The record demonstrates that the ALJ conducted a thorough and proper analysis of Plaintiff's testimony and gave proper weight to Dr. Ezroj's opinions. Accordingly, for the reasons discussed below, the Court finds that the ALJ's decision must be AFFIRMED.
Plaintiff argues that the ALJ committed legal error in not adequately assessing Plaintiff's testimony regarding her pain and limitations. (Pl. MSO at 2). Specifically, Plaintiff contends that the ALJ failed to provide clear and convincing reasons for rejecting Plaintiff's allegations. (
When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis.
Further, the ALJ must make a credibility determination with findings that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit [plaintiff's] testimony."
The ALJ considered evidence in most of the categories enumerated above when determining that Plaintiff's symptoms are not as severe as alleged. First, objective evidence contradicted allegations in Plaintiff's Disability Report and her testimony, making these allegations appear less than candid and thereby undermining her credibility. For example, x-rays of Plaintiff's knees were normal, suggesting that she has no significant knee problems, despite Plaintiff listing "knees" in her Disability Report. (AR 17, 132). Moreover, there is no objective evidence of peripheral neuropathy in her feet (AR 17), despite Plaintiff's testimony that her feet are in pain 24/7. (AR 35). Plaintiff contends that while the ALJ is correct in her assertions that there is no evidence of peripheral neuropathy, significant knee problems, ulcerative colitis or a learning disability, Plaintiff did not testify that these conditions rendered her disabled and that, "[s]ince they were not a basis of her testimony, the citations are irrelevant." (Pl. MSO at 3). However, it is appropriate for the ALJ to consider objective medical evidence that contradicts Plaintiff's alleged symptoms in finding her less than fully credible, whether or not she testified to total disability from these symptoms.
The ALJ did note that an MRI taken on September 23, 2013 supports Plaintiff's back allegations and acknowledged Plaintiff's diagnosis of spondylolisthesis, lumbosacral spondylosis, and lumbar strain. (AR 17). However, the ALJ noted that other than physical therapy and medication, doctors have prescribed a conservative treatment path for these conditions, indicating that Plaintiff's condition is not as severe as alleged. (
Additionally, the ALJ noted that no specialists have treated Plaintiff for her alleged conditions and, rather, only her family primary care physicians have administered treatment. (AR 17). Plaintiff argues that her physicians did not offer or recommend additional treatment options and that "[s]ince no additional treatment was offered or suggested, [her] testimony should not be discounted for failure to obtain additional treatment." (Pl. MSO at 4). However, an ALJ "is permitted to consider lack of treatment in his credibility determination."
Moreover, as the ALJ also observed, Plaintiff's activities of daily living suggest that her conditions are not as severe as alleged. (AR 17). The evidence reflects that Plaintiff is capable of handling personal care, preparing meals, washing dishes, doing laundry, dusting, driving, shopping, handling finances, and playing guitar. (
Plaintiff next argues that the "ALJ fails to show how these sporadic activities are consistent with light work." (Pl. MSO at 7). However, an ALJ may rely on a claimant's activities of daily living in assessing credibility not only if the activities are directly applicable to work, but also when they are inconsistent with the claimant's subjective allegations of disability.
The ALJ also noted that one of Plaintiff's primary care physicians, Dr. Song, commented in March of 2013 that Plaintiff could return to work as a nanny. (AR 18). Plaintiff argues that this is not relevant because Plaintiff is not alleging disability until July 16, 2013. (Pl. MSO at 5). However the ALJ specifically stated that the "medical evidence does not reflect a significant deterioration in the [plaintiff's] lifting and carrying or sitting and standing abilities between March 2013 and July 2013." (AR 18).
In sum, there are legally sufficient reasons for the ALJ to have declined to credit Plaintiff's subjective statements in their entirety. For these reasons, the ALJ's ultimate determination that Plaintiff's testimony was not credible is valid.
Plaintiff next contends that the ALJ failed to properly consider the opinions of Plaintiff's treating physician, Dr. Ezroj. (Pl. MSO at 8). The Court disagrees and finds that the ALJ provided specific and legitimate reasons for rejecting Dr. Ezroj's opinions.
Social Security regulations require the ALJ to consider all relevant medical evidence when determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520(e), 404.1527(c), 416.927(c). Where the Agency finds that the treating physician's opinion about the nature and severity of the claimant's impairments is well-supported by accepted medical techniques and is not inconsistent with the other substantive evidence in the record, that opinion is ordinarily controlling. 20 C.F.R. § 404.1527(c)(2);
Nevertheless, the ALJ is also "responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities."
Furthermore, "[t]he treating physician's opinion is not, however, necessarily conclusive as to either a physical condition or the ultimate issue of disability."
Here, the ALJ cited several specific and legitimate reasons supported by the record for giving minimal weight to Dr. Ezroj's opinions. First, the ALJ noted that Dr. Ezroj's opinion does not provide for any postural movement limitations despite Plaintiff's severe spinal impairment. (AR 18). The ALJ indicated that such limitations would be to accommodate pressure and rapid movement on the spine. (AR 18). Thus, it was inconsistent to find that Plaintiff was severely limited with regards to standing and walking but not to provide restrictions on activities such as bending and stooping.
Second, the ALJ found that Dr. Ezroj's opinion was inconsistent with objective medical evidence, stating that "[n]othing in the MRI ... or other notes in the record support or suggest why such extreme sitting and standing limitations are necessary." (AR 18). The ALJ was referring to a September 19, 2013 MRI of Plaintiff's lumbar spine which showed Grade 1 spondylolisthesis (AR 18, 207), rather than Grade 2, as reported by Dr. Ezroj (AR 198). An ALJ is free to disregard conclusory opinions that lack support in the record.
The ALJ also noted that nothing in the treatment notes or physical therapy notes supported such extreme limitations. (AR 18). The fact that Dr. Ezroj's conclusion conflicted with his own treatment notes provides another valid basis upon which to reject his opinions.
Plaintiff also argues that the ALJ's rejection of State Agency physician Dr. Wellons' opinion demonstrates that "the ALJ failed to properly reject the opinion of Dr. Ezroj because the ALJ is relying on no medical opinion or evidence to the contrary, and she is improperly interpreting the medical evidence as it concerns [Plaintiff's] spine impairment." (Pl. MSO at 10). The ALJ found that, while Dr. Wellons' opinion that Plaintiff did not have a medically diagnosable knee condition was accurate, his conclusions that there was only a non-severe spinal impairment was inconsistent with the spinal MRI, treatment notes, and physical therapy demonstrating a severe impairment. (AR 18). Additionally, the ALJ found that, although Dr. Wellons did not recommend any postural or exertional limitations, evidence suggested that Plaintiff required such limitations to reduce mobility requirements and spinal pressure. (
The Court therefore disagrees with Plaintiff's contention that the ALJ improperly rejected Dr. Ezroj's opinions and finds that the ALJ provided specific and legitimate reasons for doing so.
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.