CHARLES A. STAMPELOS, Magistrate Judge.
This Social Security case was referred to the undersigned upon consent of the parties, ECF No. 8, by United States District Judge Mark E. Walker. ECF No. 9. It is now before the Court pursuant to 42 U.S.C. § 405(g) for review of the final determination of the Acting Commissioner (Commissioner) of the Social Security Administration denying Plaintiff's application for a period of disability and Disability Insurance Benefits (DIB) pursuant to Title II of the Social Security Act and Plaintiff's application for Supplemental Security Income (SSI) pursuant to Title XVI of the Act. See ECF No. 1. After careful consideration of the record, the decision of the Commissioner is affirmed.
On June 26, 2013, Plaintiff Kelly Lynn Crisci filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. Tr. 202-10, 218.
The ALJ issued a decision on February 10, 2016, finding that Plaintiff has not been under a disability as defined in the Social Security Act. Tr. 23-36. The ALJ made the following pertinent findings:
Based on these findings, the ALJ found that Plaintiff is not disabled under sections 216(i) and 223(d) of the Social Security Act and is not entitled to disability benefits. Tr. 36. The ALJ also found that Plaintiff is not disabled under section 1614(a)(3)(A)
This Court must determine whether the Commissioner's decision is supported by substantial evidence in the record and premised upon correct legal principles. 42 U.S.C. § 405(g);
A disability is defined as a physical or mental impairment of such severity that the claimant is not only unable to do past relevant work, "but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 423(d)(2)(A). A disability is an "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); see 20 C.F.R. § 404.1509 (duration requirement). Both the "impairment" and the "inability" must be expected to last not less than 12 months.
Pursuant to 20 C.F.R. § 404.1520(a)(4)(i)-(v),
A positive finding at step one or a negative finding at step two results in disapproval of the application for benefits. A positive finding at step three results in approval of the application for benefits. At step four, the claimant bears the burden of establishing a severe impairment that precludes the performance of past relevant work. Consideration is given to the assessment of the claimant's RFC and the claimant's past relevant work. If the claimant can still do past relevant work, there will be a finding that the claimant is not disabled. If the claimant carries this burden; however, the burden shifts to the Commissioner at step five to establish that despite the claimant's impairments, the claimant is able to perform other work available in significant numbers in the national economy in light of the claimant's RFC, age, education, and work experience.
Plaintiff bears the burden of proving that she is disabled and, consequently, is responsible for producing evidence in support of his claim. See 20 C.F.R. § 404.1512(a);
The opinion of the claimant's treating physician must be accorded considerable weight by the Commissioner unless good cause is shown to the contrary.
The reasons for giving little weight to the opinion of the treating physician must be supported by substantial evidence,
The ALJ may discount the treating physician's opinion if good cause exists to do so.
Some opinions on issues such as whether the claimant is unable to work, the claimant's RFC, and the application of vocational factors "are not medical opinions, . . . but are, instead, opinions on issues reserved to the Commissioner because they are administrative findings that are dispositive of the case; i.e., that would direct the determination or decision of disability." 20 C.F.R. § 404.1527(d); see
Generally, more weight is given to the opinion of a specialist "about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist." 20 C.F.R. § 404.1527(c)(2), (5)
Plaintiff first contends that the ALJ erred in the RFC determination that Plaintiff can perform light work involving lifting and carrying 10 pounds frequently and 20 pounds occasionally; sitting, standing, and walking each for up to 8 hours in the workday; never climbing ropes, ladders, or scaffolds; occasional climbing of ramps and stairs, and occasional balancing, bending, stooping, squatting, crouching, crawling, and kneeling; using upper extremities in all ways; but must avoid heights, extreme temperatures, humidity, dust, odors, chemicals, and fumes; must not work directly with the public in a customer service or public relations way; and can be in the vicinity of co-workers, but not work in tandem with them. Tr. 28. Plaintiff contends that in reaching this determination, the ALJ failed to reconcile the opinion evidence of Lance Chodosh, M.D., concerning Plaintiff's ability to sit, stand, and walk during the workday with the RFC determination.
The ALJ gave substantial weight to the opinion of consultative examiner Dr. Chodosh, who opined in pertinent part that Plaintiff could "stand, walk, sit, stoop, squat, kneel, lift and carry occasionally, handle objects, see, hear, and speak normally." Tr. 32. Plaintiff contends that in making this statement, Dr. Chodosh was opining that Plaintiff could stand, walk, and sit only occasionally, which under the Social Security Ruling 83-10 definition of "occasional" is for "very little up to one-third of the time." ECF No. 16 at 16 (citing SSR 83-10, 1983 WL 31251 (Jan. 1, 1983)). Based on this alleged discrepancy between Dr. Chodosh's opinion and the RFC determined by the ALJ, Plaintiff contends that testimony of a vocational expert is necessary to determine if there are jobs that Plaintiff can perform if she is limited to occasional standing, walking, and sitting.
Plaintiff misinterprets the application of the modifier "occasionally" in Dr. Chodosh's opinion. The word "occasionally" in Dr. Chodosh's opinion described a limitation only on Plaintiff's ability to lift and carry, not Plaintiff's ability to stand, walk, and sit.
Moreover, in making the RFC assessment, the ALJ relied on the totality of the medical and other evidence in the record. Under Social Security Ruling 96-8p, the RFC assessment "must be based on all of the relevant evidence in the case record." SSR 96-8p, 1996 WL 374184 (Jul. 2, 1996). That evidence includes, but is not limited to, medical history, signs and laboratory findings, effects of treatment, medical source statements, recorded observations, reports of daily activities, lay evidence, and effects of symptoms. Id.
The ALJ relied not only on Dr. Chodosh's opinion but also on the physical examinations throughout the record that failed to identify significant musculoskeletal abnormalities or other significant limitations. Tr. 30. The ALJ explained that records of objective testing revealed only mild to moderate abnormalities; and physical examinations have revealed no significant functional limitations beyond that allowed for in the RFC. Tr. 29. The ALJ recognized that a February 2010 MRI of the lumbar spine revealed a small right disk protrusion at L2-3, a broad central L3-4 disk protrusion, and a broad L4-5 disk protrusion, but none of these findings resulted in clear neural compression. Tr. 30 (citing Tr. 583). The ALJ cited reports that show Plaintiff has a functional range of motion for all joints, normal strength, no evidence of muscle wasting, and no significant motor, sensory, or reflex deficits. Id. The office notes of treating provider Dr. David Kemp, over a substantial period of time, reflect that physical examination results were normal. Tr. 30 (citing Tr. 366-400; 433-56; 621). The ALJ noted that Dr. Kemp did not do thorough physical examinations and did not provide detailed notes. Tr. 30. The ALJ also cited the lack of medical evidence of diagnostic testing or evaluation for self-reported arthralgia in Plaintiff's hands and the lack of medical documentation of the need for a cane or stick for balance when outside, as is required under Social Security Ruling 96-9p to find that such an assistive device is medically necessary. Tr. 30; SSR 96-9p, 1996 WL 374185 (Jul. 2, 1996).
As for the effect of Plaintiff's COPD on her RFC, the ALJ explained that the records from the emergency department reflect that her condition was improved with, and managed by, treatment with inhaler therapy. Tr. 30, 31 (see Tr. 331, 338, 494, 510, 511, 523, 525-526, 533, 547, and 554). The ALJ noted that the fact that Plaintiff has not stopped smoking cigarettes in spite of medical recommendations to do so, while not a basis to deny a finding of disability, suggests that the effects of her breathing impairment were not as severe as alleged. Tr. 32. The ALJ also relied on evidence of Plaintiff's activities of daily living, which included living independently within her household, performing light household chores, driving, shopping, caring for pets, attending medical appointments, and other activities. Tr. 32.
State agency medical consultant Loc Kim Le, M.D., also noted, based on a review of the record and Dr. Chodosh's report, that Plaintiff was capable of standing and/or walking about six hours in a workday and can only occasionally lift 20 pounds. Tr. 116. State agency consultants are highly qualified and their opinions may be entitled to great weight if the evidence supports the opinions. See Social Security Ruling 96-6p, 1996 WL 374180 (Jul. 2, 1996); 20 C.F.R. § 404.1527(e)(2)(i) (2016). The ALJ found that the medical consultants' opinions were consistent with Plaintiff's history of routine and conservative treatment, adequate response to treatment, and only mild to moderate abnormalities demonstrated on pulmonary function testing. Tr. 33.
The ALJ did not give significant weight to the opinions of Dr. Kemp, who completed multiple medical source statements and reported restrictions on Plaintiff's abilities that would preclude all work. Tr. 33. In residual functional capacity questionnaires, Dr. Kemp opined that Plaintiff would need to take unscheduled breaks every one to two hours for ten to fifteen minutes at a time, and would likely miss work more than four times a month. See, e.g., Tr. 424-25; 473-74. He also opined that Plaintiff could sit and stand/walk for only one hour each in a workday. Id. Dr. Kemp did see Plaintiff numerous times over several years, but his office notes do not indicate he did thorough physical examinations. His notes focus primarily on chronic pain for which he prescribed pain medication and anxiety for which he prescribed medication. See, e.g., Tr. 366-400, 457, 433, 435-457, 621. He also saw Plaintiff concerning her COPD on a number of occasions and prescribed medication for that condition. See, e.g., Tr. 366-69, 378-81, 434, 445, 447, 450-52, 454-56.
The ALJ explained that she did not give significant weight to Dr. Kemp's opinions because he did not perform thorough examinations, and because the general examinations he did perform were consistently reported to be "normal." Tr. 30 (citing examination notes at Tr. 366-84, 390-97; Tr. 400, 433-54, 621).
Based on the testimony of the impartial vocational expert, after having been provided with a hypothetical question containing certain limitations applicable to Plaintiff, the ALJ found that Plaintiff could perform three representative jobs in the national economy: marker, DOT #209.587-034, light unskilled, SVP of 2, with 319,657 jobs in the national economy; sub assembler, DOT #729.684-054, light unskilled, SVP of 2, with 9,312 jobs in the national economy; and mail clerk, DOT #209.687-026, light unskilled, SVP of 2, with 2,489 jobs in the national economy. Tr. 36, Tr. 73-74. The vocational expert's testimony was based on a hypothetical question assuming a person could lift and carry 10 pounds frequently and 20 pounds occasionally; sit, stand, and walk each for up to 8 hours in a workday; never climb ropes, ladders, and scaffolds; occasionally climb ramps and stairs; occasionally bend, balance, stoop, squat, crouch, crawl, and kneel; use upper extremities in all ways; see, hear, and talk; must avoid heights, extreme temperatures, humidity, dust, odors, chemicals, and fumes; must not involve working directly with the public in a customer service or public relations way; and can work in the vicinity of coworkers. Tr. 73-74. These limitations were incorporated into the RFC found by the ALJ in her decision. Tr. 28. Because the RFC was based on substantial evidence, no error has been shown.
Relying on the "totality of the medical evidence of record" and the Plaintiff's activities of daily living, the ALJ found that Plaintiff can sustain greater capacity for work than was alleged in the application. Tr. 33. Because the ALJ's findings and her assessment of Plaintiff's RFC were based on substantial evidence in the record, this issue is without merit.
Plaintiff next contends that the ALJ erred by failing to provide legitimate reasons for the credibility determination that Plaintiff's medically determinable impairments, specifically her COPD,
Plaintiff testified at the hearing that she had been a convenience store cashier, then a manager until 2009. Tr. 61. She subsequently acted as babysitter to a grandchild until 2012. Tr. 57. Plaintiff moved in with her mother in 2015 because of problems with anxiety. Tr. 59. She testified that she drives but not very much because her car has a clutch, which is difficult. Tr. 60. During the day, Plaintiff takes care of her dogs, feeding them and walking them. She said the walking has been beneficial to her. Tr. 61. She shops some, but not like she did before, and she mostly stays home. She has stopped going to church because they changed pastors. Tr. 70.
Plaintiff watches television during the day and talks with her mother. She also sews and knits some, and plays electronic Bingo, although it has become more difficult to keep her focus during the game. Tr. 62-63. She cooks a little and helps with the dusting. Tr. 60. She has begun using a cane to walk outdoors to help with balance, although it was not prescribed by a doctor. Tr. 64. Plaintiff testified that she cannot return to cashiering because her fingers hurt all the time, and get red and swollen. Tr. 65. She said she shakes "real bad" and gets emotional. Id. She testified that she used to manage five employees but she could no longer do that because she gets upset and confused. Tr. 66. She described getting panic attacks six or seven times a week where she feels like she is suffocating, and has no explanation of the cause. Tr. 67-68. Plaintiff also testified to pain in her neck that also causes numbness in her fingers and hands. Tr. 68. She said her hands are numb when she wakes in the morning and she worries about dropping things. Tr. 69.
The ALJ concluded that the Plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms are not entirely credible and that, based on the totality of the medical record and her activities of daily living, she can sustain a greater capacity for work than she has alleged. Tr. 29, 33. In making this credibility determination concerning the effects of Plaintiff's COPD on her ability to work, the ALJ cited emergency department records that indicated her respiratory condition improved with treatment. Tr. 30 (see Tr. 334, 338, 523, 525-26, 533, 547). Emergency room records also did not indicate significant abnormalities related to the COPD. See, e.g., Tr. 331-32, 338, 491-94, 509-12, 510-11, 522-23, 526-27, 533, 547-48, 553-54. The record contains diagnostic reports indicating that, although Plaintiff has mild to moderate COPD, a chest X-ray in 2012 showed normal lung marking with no infiltrates; and pulse oximetry was normal with a 97% oxygen saturation rate. Tr. 332, 334, 345. A chest X-ray in 2014 showed clear lungs, as did a CT scan. Tr. 528, 533, 539-40. A 2015 chest X-ray showed no abnormality and the CT scan showed no evidence of central pulmonary embolism. Tr. 458-60, 496. Pulse oximetry in 2014 and 2015 consistently showed 96% to 100% oxygen saturation rates. Tr. 493, 496, 498, 511, 514-15, 526, 529-31, 533, 547, 550-51, 553.
Examiners usually noted that she was not in respiratory distress, that her lungs were clear, and that she had normal breath sounds. See, e.g., Tr. 331, 494, 511, 526, 533, 547, 554. Dr. Chodosh found that Plaintiff had clear lungs with slightly distant breath sounds, and a normal breathing pattern except for a slight but frequent cough. Tr. 421.
Title 20 C.F.R. § 404.1529 provides in pertinent part that `[t]here must be objective medical evidence from an acceptable medical source that shows you have a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged and that, when considered with all of the other evidence (including statements about the intensity and persistence of your pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion that you are disabled." 20 C.F.R. § 404.1529(a). Where substantial evidence in the record supports a clearly articulated credibility finding, that finding should not be disturbed by a reviewing court.
The ALJ did not make a broad, unexplained rejection of the credibility of Plaintiff's testimony regarding the intensity, frequency, or persistence of his symptoms, but considered the medical record and Plaintiff's testimony as a whole and explained the credibility determination. See
Considering the record as a whole, the findings of the ALJ are based upon substantial evidence in the record and the ALJ correctly applied the law. Accordingly, the decision of the Commissioner to deny Plaintiff's application for Disability Insurance Benefits and Supplemental Security Income is