JANET F. KING, Magistrate Judge.
Plaintiff in the above-styled case brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("SSA") which denied her applications for disability insurance benefits. For the reasons set forth below, the Court
On May 22, 2014, the claimant filed an application for disability insurance benefits ("DIB"), alleging that she became disabled on July 29, 2009.
The decision of the ALJ [R. 12-25] states the relevant facts of this case as modified herein as follows:
Plaintiff, born on February 7, 1967, has a high school education and last worked as an administrative clerk in 2009. At the hearing, the claimant testified that she was 50 years old and that she was 5 feet, 9 inches tall and weighed 230 pounds.
As previously noted, the relevant time period for the instant application for DIB is from October 19, 2011, through December 31, 2014. [R. 10]. A review of the medical evidence of record reveals that the claimant has a history of degenerative disc disease of the lumbar spine dating back to at least 2008. However, there are no records of Plaintiff receiving medical treatment between October 19, 2011, and April 1, 2012.
On April 2, 2012, Laurie M. Staub, CFNP ("Staub"), noted within treatment records that the claimant had a history of back surgery in 2001 and that she was taking chronic pain medication. Her depression and anxiety were controlled with Xanax. [Exhibit 5F at 33]. On physical examination, the claimant had diminished lung sounds but did not use accessory muscles for respiratory effort. Her judgment and insight were intact; she was oriented times three; her memory was intact; and she had no depression or anxiety. [Exhibit 5F at 34]. The claimant's prescribed medications were Amitriptyline, Effexor, Xanax, Lyrica, and Ultram. Staub ordered lumbar x-rays and referred the claimant to pain management. [Exhibit 5F at 35].
On July 9, 2012, the treatment note of Jack Cheng, M.D. ("Dr. Cheng"), indicated that the claimant presented to establish care and request medication refills. [Exhibit 6F at 26]. On physical examination, Dr. Cheng reported normal respiratory and cervical examinations. The claimant had tenderness elicited in the lumbar region with a shocking sensation down to the knee produced on deep palpations of her right buttock. The claimant had normal muscle tone, normal strength and normal sensation; her memory was not impaired; and she had a mildly antalgic gait and an euthymic mood with normal affect. [Exhibit 6F at 27-28]. By August 6, 2012, the claimant reported that Clonazepam was working very well. [Exhibit 6F at 24]. Dr. Cheng reported that he would not continue narcotics if the claimant did not get her magnetic resonance imaging ("MRI"). [Exhibit 6F at 25].
On August 29, 2012, a chest x-ray showed improvement of pneumonia. [Exhibit 6F at 66]. A computed axial tomography ("CT") scan of the chest of October 10, 2012, demonstrated left pleural effusion which infiltrated both lungs, most of which have a ground-glass appearance and were seen in the right upper, middle, and lower lung and left upper lung.
On September 4, 2012, Dr. Cheng's treatment notes report that the claimant presented for an emergency department ("ER") follow-up where she was found to have bilateral pneumonia. The claimant was using an inhaler as needed and reportedly began smoking again the moment she got in the car on discharge. [Exhibit 6F at 22]. Dr. Cheng noted that the claimant's pneumonia was resolving. [Exhibit 6F at 23].
A Pulmonary Function Test on October 16, 2012, revealed an FEV1 of 1.68 [Exhibit 6F at 42]. On October 31, 2012, Awungjia Leke-Tambo, M.D. ("Dr. Leke-Tambo"), reported that the claimant was using supplemental oxygen and was hypoxic on room air. She had expiratory wheezing on examination. [Exhibit 6F at 55]. She was smoking one pack per day and walked three to four times per week. [Exhibit 6F at 56]. Dr. Leke-Tambo reported a normal physical examination, including a normal gait and station. [Exhibit 6F at 57]. Dr. Leke-Tambo assessed pneumonia. [Exhibit 6F at 58]. A laboratory note of Dr. Cheng reported that the claimant had not refilled her Clonazepam in a month. [Exhibit 6F at 29]. In November 2012, Dr. Cheng reiterated the importance of smoking cessation. [Exhibit 6F at 16].
On November 28, 2012, the claimant consulted with neurosurgeon John Gorecki, M.D. ("Dr. Gorecki"). Dr. Gorecki indicated that the claimant reported her back pain severity level to be an eight out of ten, with ten being the most severe pain. [Exhibit 6F at 8]. Dr. Gorecki conducted a thorough examination and reported a completely normal mental status examination. Dr. Gorecki reported a decreased range of motion of the lumbar spine and straight leg raise of the right leg was limited by stiffness. The claimant was observed to have normal muscle strength and tone; Romberg's sign
On November 28, 2012, Dr. Cheng noted that the claimant was to attend physical therapy. [Exhibit 6F at 6]. Dr. Cheng referred the claimant to pain management. [Exhibit 6F at 7]. On December 26, 2012, the claimant reported using oxygen although mainly at night. [Exhibit 6F at 4]. Dr. Cheng reported that the claimant was obese and appeared well though she smelled of smoke. According to Dr. Cheng, the claimant's mood was euthymic and her affect was normal. [Exhibit 6F at 5].
On April 16, 2013, Dr. Cheng's office notes indicated that NEGA Physician's Group ("NEGA") checked with the claimant's reported pulmonology group and learned that the claimant had only been seen by pulmonology twice with the last visit on October 31, 2012. NEGA staff noted that the claimant "is lying to us and prolonging her use of Percocet narcotic pills." [Exhibit 6F at 60]. In a letter dated April 19, 2013, NEGA informed the claimant that they would no longer treat her. [Exhibit 6F at 3]. On May 28, 2013, the claimant called NEGA requesting a prescription for Oxycodone. [Exhibit 6F at 59].
On June 5, 2014, a behavioral health note indicated that the claimant presented with complaints of withdrawal symptoms. [Exhibit 2F]. The claimant reported excessive pain because she ran out of medication. She had some depressive episodes, but she was improving. The claimant was assessed with generalized anxiety disorder, opioid dependence, depressive disorder, NOS (not otherwise specified), and a Global Assessment of Functioning ("GAF") value of 65.
On October 2, 2014, a behavioral note of Ganiat Jaiyesinmi Ajayi, M.D. ("Dr. Ajayi"), indicated that the claimant reported increased anxiety and panic attacks. The claimant reported that she was struggling to get back to baseline and was experiencing difficulty sleeping. She denied suicidal ideation, hallucinations, and paranoia. She was cooperative with eye contact and exhibited normal speech and logical thought. Dr. Ajayi observed anxious mood. The claimant was alert and oriented times four and exhibited fair concentration and judgment with poor memory. Dr. Ajayi assessed generalized anxiety disorder, major depressive disorder without psychosis, opioid dependence, and a GAF value of 65. [Exhibit 4F at l].
On January 16, 2015, the claimant presented to the ER with complaints of difficulty breathing. [Exhibit 3F at 21]. She reported dyspnea for several days and use of oxygen as needed. [Exhibit 3F at 8]. A chest x-ray showed no acute disease. [Exhibit 3F at 29]. The claimant received a breathing treatment, and there was no distress noted. [Exhibit 3F at 19]. She had wheezes but no pleuritic chest pain and no respiratory distress. [Exhibit 3F at 11]. ER records note that the claimant continued to smoke.
By January 28, 2015, the claimant reported that she was not experiencing panic attacks. The claimant relayed that she had some stress at home with money issues and car trouble. [Exhibit 4F at 4]. A chest x-ray of February 27, 2015, revealed patchy opacities at the left lung base possibly related to aspiration/pneumonia, trace bilateral pleural effusions, right greater than left, with bibasilar atelectasis, and linear opacity within the right mid-lung possibly related to atelectasis or scarring. [Exhibit 5F at 32].
Dr. Ajayi's March 3, 2015, behavioral notes indicate that the claimant's reported drug of choice was any opiate. The claimant represented that she had been sober for a year. She was doing okay with depression. The claimant stated that her only stressor was money and that her husband was out on Worker's Compensation for a year due to a neck injury. Dr. Ajayi assessed the claimant with a GAF value of 80. [Exhibit 4F at 5].
On August 26, 2015, a treatment note of Bethany R. Norwood, FNP ("Norwood"), indicated that the claimant reported no hospitalizations or health care treatment outside of the clinic since her last visit. According to the medical evidence of record, the claimant's last treatment was on April 2, 2012. It was also noted for the first time that the claimant had a history of chronic obstructive pulmonary disease ("COPD"). The claimant presented for medication refills. Norwood reported a normal physical examination. Norwood assessed tobacco abuse, anxiety state, NOS, depression, and insomnia. Ventolin for wheezing was prescribed. [Exhibit 5F at 27, 29-31]. On September 25, 2015, and December 9, 2015, Norwood again reported completely normal physical and psychiatric examinations. [Exhibit 5F at 10-11, 23-25].
On June 10, 2016, Staub indicated that the claimant presented with complaints of urinary problems. The claimant reported using oxygen at home, although mostly at night, and she continued to smoke. [Exhibit 5F at 2]. The claimant ambulated without difficulty and had no problems with meal preparation or eating. [Exhibit 5F at 3]. On physical examination, Staub reported that the claimant had scattered wheezing with diminished lung sounds, that the claimant did not use accessory muscles, and that she had no depression or anxiety. [Exhibit 5F at 4].
On September 29, 2015, approximately nine months after the date last insured, Plaintiff saw Dr. Gorecki again for evaluation. [Exhibit 8F]. Dr. Gorecki recalled his original consultation with Plaintiff in 2012 for possible surgical solutions as well as the October 2012 MRI of her lumbar area and explained that his previous, more conservative intervention was due largely to Plaintiff's "oxygen dependent COPD." [Exhibit 8F at 2, 6]. Dr. Gorecki described Plaintiff's back pain as "incapacitating pain radiating into the right lower extremity" and recognized that Plaintiff's symptoms "have gradually worsened" and "are made worse by prolonged standing or walking." [Exhibit 8F at 2]. Dr. Gorecki observed that Plaintiff uses a cane and that she is "stooped forward and leans to the right." [Exhibit 8F at 2]. Dr. Gorecki opined (in an undated letter) that Plaintiff was "clearly disabled by severe ongoing back and right leg pain with foot drop[.]" [Exhibit 8F at 2]. Nonetheless, Dr. Gorecki did not identify any specific functional limitations. [Exhibit 8F at 2]. Dr. Gorecki's treatment note indicated that the claimant presented using a cane and reported being treated for depression by her psychiatrist and being followed by Athens Pulmonology.
On October 9, 2015, the treatment notes of Angela Calvert ("Calvert") indicated that the claimant presented with complaints of leg swelling for a couple of months, improved with elevation. The claimant was ambulating with a cane. [Exhibit 7F at 6]. The claimant had bilateral 1+ pedal edema, and she had no focal deficits and was alert, cooperative with normal mood and affect, and normal attention span and concentration. She had a decreased range of motion with an abnormal gait and observed to be leaning to the right and bent forward during ambulation. She had decreased breath sounds bilaterally smelling of smoke. She was not in acute distress and had poor dentition. [Exhibit 7F at 8]. A Bilateral Lower Extremity Venous Duplex showed right galvanic vestibular stimulation ("GSV") measured at 10 mm at the junction and demonstrated reflux lasting longer than five seconds. The left GSV was normal. [Exhibit 7F at 10]. The recommended treatment was for the claimant to wear compression hose. [Exhibit 7F at 9].
On February 9, 2017, the claimant had an MRI of the lumbar spine, which demonstrated post-surgical changes at L4-5 and L5-S1. At L4-5, there was an asymmetric degenerative endplate change present encroaching on the right lateral recess and proximal right neural foramen. The record states that a portion of this fining might represent granulation tissue and that there appears to be compromise of the right lateral recess and right neural foramen. Other observations include central disc herniation at L1-2 contributing to canal compromise and displacement of multiple nerve roots but no definite mass effect seen, plus additional levels of degenerative disc disease, facet arthropathy, and superimposed on degenerative change was levoconvex scoliosis. [Exhibit 9F at 2-3]. Staub's treatment notes dated January 18, 2017, indicate that the claimant continued to smoke and that she had scattered wheezing throughout and lumbar spine tenderness. [Exhibit 9F at 8-13].
During the hearing before the ALJ, the claimant acknowledged that her back symptoms have worsened since 2009. The claimant described her consultation with the neurosurgeon in 2012 and the fact that surgery was not recommended because surgery could potentially make the claimant's symptoms worse. The claimant reported being given a couple of injections to alleviate back pain in addition to physical therapy. The claimant also reported using a cane for the last three years for walking and getting up and down. The claimant represented that she was starting to have walking issues while she was working and that she has fallen on occasion. The claimant further stated that she gets stiff when sitting. The claimant, admittedly still a smoker, testified that she has used supplemental oxygen since 2012, primarily at night but sometimes during the day. The claimant represented that weather, dust, fumes, and perfumes affect her breathing. She stated that she experienced depression when her husband lost his job. The claimant alleged that her depression limits her activities and that her back pain factors in her depression.
According to the claimant, she experiences panic attacks approximately three to four times per week, and she gets jittery, nervous, and sweaty around people. The claimant states that her medication for panic attacks takes between one to one and a half hours to work. The claimant reported that she occasionally requires oxygen during panic attacks.
In terms of daily activities, the claimant reported that her husband does a lot of the cooking and that he and their daughter manage household chores. She stated that they live with their son and his wife who also help with chores. Since 2014, the claimant stated that she could no longer perform any chores and that she would get
The VE first characterized Plaintiff's past relevant work as an administrative clerk (DOT # 219.362-010, light and semi-skilled, SVP of 4). [R. 49]. The ALJ then posed several hypotheticals to the VE to determine whether Plaintiff was capable of performing her past relevant work or other work. [R. 49-50]. In response to the first hypothetical question, premised upon the residual functional capacity ("RFC") ultimately adopted by the ALJ,
As a result, the ALJ found that the claimant was not under a disability from July 26, 2009, the alleged onset date, through December 31, 2014, the date last insured.
Additional facts will be set forth as necessary during discussion of Plaintiff's arguments.
An individual is considered to be disabled if she is unable 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 impairment or impairments must result from anatomical, psychological, or physiological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques and must be of such severity that the claimant is not only unable to do her previous work but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.
"We review the Commissioner's decision to determine if it is supported by substantial evidence and based upon proper legal standards."
The ALJ made the following findings:
[R. 12-13, 16, 18, 24-25].
Plaintiff's primary challenge to the denial of benefits is that the medical evidence relied upon and credited by the ALJ simply cannot be reconciled with a light work RFC because light work by definition requires "a good deal of walking or standing."
"The [RFC] is an assessment, based upon all of the relevant evidence, of a claimant's remaining ability to do work despite [her] impairments. . . . Along with [her] age, education and work experience, the claimant's [RFC] is considered in determining whether the claimant can work."
Here, the ALJ's RFC for Plaintiff reads:
[R. 18]. The ALJ's RFC contemplates the ability to stand and/or walk for approximately 6 hours.
On appeal, Plaintiff identifies two medically determinable impairments, both deemed to be severe by the ALJ, and attendant symptoms that she contends are inconsistent with the RFC: 1) degenerative disc disease/lumbar radiculopathy, which she asserts causes her to rely on a cane for walking; and 2) COPD, which she asserts requires her to use supplemental oxygen four to five times per week for several hours. The Court briefly discusses both of these impairments.
Plaintiff underwent back surgery in 2001. By 2012, Plaintiff asserts that she was experiencing chronic back pain and was taking pain medications without relief. [Exhibit 5F]. In April 2012, Plaintiff established care with The Longstreet Clinic for her back pain. [Exhibit 5F]. In October 2012, Plaintiff had an MRI of her lumbar spine to explore possible causes for her low back pain. [R. 404-05]. Plaintiff was referred to a neurosurgeon to discuss treatment options. [R. 404-05 ("Your MRI does show findings that may cause your back pain.")]. On November 28, 2012, Plaintiff was seen by neurosurgeon Dr. Gorecki, who confirmed that her MRI supported her claim of back pain. [R. 351]. Dr. Gorecki found that Plaintiff's MRI revealed loss of disk height at L4-5 and 5-1 and possibly a herniated disc at L5-S1. [R. 354]. Upon physical examination, Dr. Gorecki noted limitation of full range of motion of the lumbosacral spine, positive straight leg raising on the right, a motor exam showed dysfunction on the right, tandem gait was abnormal, and he observed a positive Romberg's sign and abnormal ankle reflex. [R. 353]. Dr. Gorecki diagnosed lumbar radiculopathy and considered, but did not ultimately recommend, lumbar fusion from L4-S1. [R. 353-54]. Plaintiff reported constant pain and rated the level of pain as an eight out of ten, with ten being the most severe pain. [R. 349].
Plaintiff testified that she has required use of a cane to ambulate since 2012. [R. 41]. According to Plaintiff, she uses the cane "[a]ny time [she] walk[s]" or has to "get[ ] up and down." [R. 41]. She reported a couple of falls and stated that she used the cane "all the time now." [R. 41]. Plaintiff testified that she would not be able to do the walking and standing on her previous job (superior court clerk in real estate section, lien division). [R. 38-39, 41 ("No, I don't think so, not at all.")]. Plaintiff also testified that she experiences back pain with sitting. [R. 42]. Counsel argued at the administrative hearing that Plaintiff's back pain precluded her from performing even a sedentary job on a full-time basis prior to her date last insured, December 31, 2014. [R. 36-37].
"`To find that a hand-held assistive device, such as a cane, is medically required, there must be medical documentation establishing the need for a hand-held assistive device to aid in walking or standing, and describing the circumstances for which it is needed (i.e., whether all the time, periodically, or only in certain situations; distance and terrain; and any other relevant information)[.]'"
Here, it is not clear from the record whether Plaintiff's cane was prescribed by a physician.
Plaintiff is diagnosed with COPD and testified that her breathing problems bother her "[m]ost of the time" and that her breathing is affected by the weather, dust, and other irritants. [R. 42-43]. Plaintiff has been using supplemental oxygen at home since being hospitalized for a bout with "double pneumonia" in 2012. [R. 48]. Plaintiff takes oxygen at night and "whenever needed during the day." [R. 42]. According to Plaintiff, she requires oxygen during the day if she has a panic attack, which she estimated as occurring as often as four to five times a week. [R. 47]. She reported getting "really winded" with exertion. [R. 47]. Plaintiff is still a smoker despite efforts to quit. [R. 42].
As noted supra, Plaintiff was prescribed supplemental oxygen while being treated for lingering pneumonia. The ALJ acknowledged Plaintiff's testimony concerning her oxygen use and stated, "She uses oxygen at night and sometimes during the day. . . . Sometimes when she has a panic attack, she uses oxygen. She uses it 4-5 times per week for a couple of hours. The claimant has been using oxygen since 2012." [R. 20]. As detailed within the ALJ's decision, Plaintiff's testimony and her treatment record document Plaintiff's oxygen use at night. [Exhibit 5F at 2; Exhibit 6F at 4].
It is well established that determination of the RFC is an administrative task reserved for the ALJ.
It is Plaintiff's burden to provide medical evidence establishing her asserted functional limitations.
Finally, to the extent that Plaintiff, through counsel, faults the ALJ for not ordering a consultative examination to flesh out the claimant's representations concerning her asserted exertional limitations (i.e., standing and walking and/or dependence on a cane or impact of potential need to supplement oxygen during the workday), the propriety of doing so is a decision for the ALJ — not this Court. [Doc. 12 at 11 n.4 (noting that no physical or mental consultative examinations were obtained)]. The governing regulation reads in part:
20 C.F.R. § 404.1545(a)(3) (emphasis provided). "The [ALJ] has a duty to develop the record where appropriate but is not required to order a consultative examination as long as the record contains sufficient evidence for the [ALJ] to make an informed decision."
The Court also finds that the ALJ's evaluation of Plaintiff's subjective complaints of pain and limitations comports with proper legal standards and is supported by substantial evidence. When a claimant seeks to establish disability through subjective testimony concerning pain or other symptoms, a "pain standard" established by the Eleventh Circuit applies.
Where a claimant's testimony, if credited, could support the claimant's disability, the ALJ must make and explain a finding concerning the credibility of the claimant's testimony.
In this case, the ALJ found that while the "claimant's medically determinable impairments could reasonably be expected to cause some symptoms . . ., the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely consistent with the medical evidence and other evidence . . . ." [R. 20]. The ALJ described Plaintiff's testimony regarding her impairments as "out of proportion with the objective medical findings." [R. 23]. In support of this finding, the ALJ pointed to the "very conservative and infrequent" treatment during the relevant time period. [R. 20]. Specifically, the ALJ noted that, despite the benefit of insurance coverage, there was no medical evidence that the claimant engaged in physical therapy or underwent injections for her back pain. [R. 20]. The ALJ also pointed to Plaintiff's decision to continue smoking, the fact that Plaintiff's medication was managed and prescribed by her primary care physician, and the reporting of "normal mental status evaluations." [R. 20]. In evaluating Plaintiff's subjective allegations, the ALJ noted Plaintiff's testimony that she had been using a cane for three years and stated that "the first reports of cane use by the claimant was in October 2015, well after the date last insured."
In sum, the Commissioner persuasively argues that Plaintiff failed to meet her burden of proving that she had disabling symptoms and limitations. [Doc. 13 at 6].
For all the foregoing reasons and cited authority, the Court concludes that the decision of the ALJ was supported by substantial evidence and was the result of an application of proper legal standards. It is, therefore,
