R. STEVEN WHALEN, Magistrate Judge.
Plaintiff Kimberly Hoffman brings this action under 42 U.S.C. §405(g), challenging a final decision of Defendant Commissioner denying her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act. Parties have filed cross motions for summary judgment which have been referred for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B). For the reasons set forth below, I recommend that Defendant's Motion for Summary Judgment be GRANTED [Docket #14] and that Plaintiff's Motion for Summary Judgment be DENIED [Docket #9].
On June 3, 2008, Plaintiff applied for DIB and SSI, alleging disability as of May 1, 2003 (Tr. 144-154). Upon initial denial of the claim, Plaintiff requested an administrative hearing, held on December 6, 2010 in Flint, Michigan before Administrative Law Judge ("ALJ") Joanne Adamczyk (Tr. 30). Plaintiff, unrepresented, testified, (Tr. 38-59), as did vocational expert ("VE") Tim Shaner (Tr. 59-63). On February 24, 2011, ALJ Adamczyk found Plaintiff not disabled (Tr. 23-24). On May 11, 2012, the Appeals Council declined to review the administrative decision (Tr. 1-5). Plaintiff filed suit in this Court on June 18, 2012.
Plaintiff, born January 3, 1969, was 42 at the time of the administrative decision (Tr. 24, 144). She completed high school (Tr. 185) and worked previously as a cleaner and receptionist/clerical worker (Tr. 181). She alleges disability as a result of bipolar disease, lupus, fibromyalgia, carpel tunnel syndrom ("CTS"), tendinitis, and scoliosis (Tr. 180).
The ALJ prefaced Plaintiff's testimony by noting that the date last insured ("DLI") was December 31, 2007 (Tr. 37). Therefore, to be eligible for DIB under Title II of the Social Security Act, Plaintiff would be required to establish disability on or before that date (Tr. 37).
Plaintiff offered the following testimony:
She currently lived in an apartment with her two children, ages five and seven (Tr. 38). She denied significant problems reading, writing, or performing calculations (Tr. 39). She supported herself and her children with public assistance, food stamps, and sporadic child support payments from her children's father (Tr. 39).
Plaintiff's last job before the 2003 onset of disability was performing clerical work in a dental office (Tr. 39-40). She admitted that she currently worked between four and eight hours a week as a cashier (Tr. 40). She wore wrist splints at night for symptoms of CTS but none of her treating sources recommended surgery (Tr. 40, 55). She held a valid driver's license and drove short distances (Tr. 41). She experienced difficulty performing self care and household activities (Tr. 41-42). She was able to grocery shop, but experienced anxiety in public places (Tr. 42). She denied current hobbies, church attendance, or computer use, but visited with a friend each morning for coffee when possible (Tr. 42-43). Her parents lived in the area and she visited them occasionally (Tr. 42). She smoked approximately a half a pack of cigarettes each day (Tr. 43).
On a typical day, Plaintiff arose at 6:30 a.m., prepared her children for school, then often reclined for the next two or three hours (Tr. 43-44, 49). She experienced joint stiffness upon arising a second time (Tr. 44). She denied performing stretching exercises but used a TENS unit three to four times a week to address mobility problems (Tr. 44). She did not use Vicodin every day, noting that she had not taken the pain medication in the last four days (Tr. 46-47). She currently took prescribed medicine for fibromyalgia and a bipolar disorder (Tr. 46). She also relieved body aches by taking hot showers (Tr. 48). Plaintiff had full custody of both children (Tr. 48).
Plaintiff estimated that she could walk for up to a half mile and sit or stand for about 20 minutes (Tr. 50). She experienced problems bending, kneeling, and crouching but did not use an ambulatory device (Tr. 51). She also experienced throbbing neck pain and "level seven" right knee pain (Tr. 52). She denied physical therapy (Tr. 52). She experienced depression and anxiety and "all-year" allergies (Tr. 56).
Plaintiff denied problems interacting with friends or family but was distracted by workplace activity and crowds (Tr. 57). She did not experience substance abuse problems (Tr. 58). She denied agoraphobia (Tr. 58).
In June, 2006, Angie Sweeney, M.D. examined Plaintiff, noting joint stiffness and anxiety (Tr. 439). She referred Plaintiff to a rheumatologist for an evaluation of fibromyalgia symptoms (Tr. 439). In October, 2006, rheumatologist Ali A. Karrar, M.D. found the presence of fibromyalgia, recommending that Plaintiff exercise and continue the use of Elavil (Tr. 455). December, 2006 nerve conduction studies and an EMG of the lower extremities were negative for abnormalities (Tr. 351, 468). In February, 2007, Plaintiff's answers to a mood disorder questionnaire placed her in the "positive" category for depression (Tr. 343). The same month, nerve conduction studies of the upper extremities showed negative results on the left and "borderline abnormalities" on the right (Tr. 472). In September, 2007, Roger S. Kilbourn, D.O. noted the current diagnoses of fibromyalgia and anxiety (Tr. 358). Plaintiff reported "some relief" from Wellbutrin (Tr. 435).
In January, 2008, Dr. Kilbourn refilled a Cymbalta prescription (Tr. 365, 425). Dr. Kilbourn's March, 2008 treating notes state that Plaintiff had recently been punched in the shoulder by her husband (Tr. 369, 421). Imaging studies of the shoulder and cervical spine were negative for abnormalities (Tr. 410). Imaging studies of the thoracic spine showed a mild scoliosis of the lower thoracic spine (Tr. 411, 452). Treating notes from May, 2008 state that Plaintiff experienced anxiety, fibromyalgia, and headaches and was currently taking Neurontin, Valium, and Vicodin (Tr. 415-416). In January, 2009, Dr. Kilbourn noted the diagnoses of hand pain, fibromyalgia, and bipolar disorder (Tr. 321). Plaintiff was advised to quit smoking (Tr. 322). In April, 2009, Plaintiff requested a refill of fibromyalgia medication (Tr. 303). In August, 2009, Dr. Kilbourn noted on a "return to work/school statement" that Plaintiff had been diagnosed with fibromyalgia (Tr. 305, 556). The same month, treating notes by Delinah Anderson, M.D. state that Plaintiff requested refills of prescriptions for bipolar and fibromyalgia (Tr. 580).
In January, 2010, treating notes by Dr. Anderson indicate that Plaintiff experienced muscular pain and that Neurontin was "not helping" (Tr. 325). March, 2010 treating notes by Dr. Anderson state that Plaintiff requested a "medical marijuana" card (Tr. 324). April, 2010 nerve conduction studies of the left lower extremity were unremarkable (Tr. 543). Dr. Larisa Bruma, M.D.'s progress notes state that Plaintiff reported decreased symptoms of fibromyalgia after taking Savella (Tr. 547). In May, 2010, Dr. Bruma recommended the use of a TENS unit and wrist splints (Tr. 539). June, 2010 nerve conduction studies of the upper extremities show "very mild" nerve entrapment of the left mid palm and "mild" sensory entrapment of the right wrist (Tr. 538-539).
In March, 2007, Abdullah Raffee, M.D. examined Plaintiff on behalf of the SSA (Tr. 331-333). He observed that Plaintiff's gait and ability to move from chair to the examining table were unencumbered (Tr. 331). He noted mild weakness in the right hand (Tr. 332). The same month, Gordon R. Forrer conducted a psychological evaluation on behalf of the SSA, noting that while Plaintiff experienced personal unhappiness due to her husband's alcohol abuse, she was capable of "carrying out the activities of daily living and looking after her home adequately (Tr. 337). Dr. Forrer noted that Plaintiff stated that she had been fired from a job at a doctor's office after refusing to change her work shift (Tr. 335).
On July 17, 2008, psychologist Marianne Goergen performed a consultative examination on behalf of the SSA, noting Plaintiff's allegations of forgetfulness, isolation, and mood swings (Tr. 476). Plaintiff reported that she sought inpatient psychiatric treatment in 2000 because she believed she "`was losing her mind'" (Tr. 476). She admitted to marijuana use until quitting in April, 2008 (Tr. 477). Dr. Goergen noted that Plaintiff was well groomed with a slow gait and good self esteem (Tr. 477). Plaintiff reported being "angry and depressed" (Tr. 477). Dr. Goergen assigned Plaintiff a GAF of 58 with a "fair" prognosis
On July 29, 2008, Rom Kriauciunas, Ph.D. performed a non-examining Psychiatric Review Technique on behalf of the SSA, finding the presence of affective, anxiety-related, somatoform, and substance addiction disorders between May 2003 to the date of the evaluation (Tr. 271-281, 496-509). Under the "`B' Criteria," Dr.Kriauciunas found that Plaintiff experienced moderate limitations in social functioning and concentration, persistence, and pace (Tr. 281). However, in a second evaluation, Dr. Kriauciunas found that prior to December 31, 2007, Plaintiff's psychological conditions were non-severe
The following month, John Tofaute, M.D. examined Plaintiff on behalf of the SSA, noting Plaintiff's complaints of back pain due to scoliosis (Tr. 514). Plaintiff exhibited some pareshesias in the right palm and volar aspect of the left thumb (Tr. 515). She demonstrated good grip strength and was able to perform fine manipulative functions in both hands (Tr. 516-517). Dr. Tofaute found that Plaintiff did not require a walking aid (Tr. 518). The same month, Kimberly Falor performed a Physical Residual Functional Capacity Assessment on behalf of the SSA, finding that Plaintiff could lift 20 pounds occasionally and 10 frequently; sit, stand, or walk for up to six hours in an eight-hour workday; and push and pull without limitation (Tr. 308, 522). Falor limited Plaintiff to occasional climbing balancing, stooping, kneeling, crouching, and crawling (Tr. 309, 523). She limited Plaintiff to frequent (as opposed to constant) bilateral reaching and handling (Tr. 310, 524). Falor found the absence of visual, communicative, or environmental limitations (Tr. 310-311, 524-525). In support of her conclusions, she cited Plaintiff's admissions that she could lift up to 15 pounds and walk one quarter of a mile (Tr. 312).
In January, 2009, Dr. Kilbourn refilled Vicodin, Xanax, and Trazadone prescriptions (673-675). Treating notes from August, 2010 state that Plaintiff did not "have work [schedule] yet" and was thus unable to make a gynecological appointment (Tr. 630). December, 2010 treating records show that Plaintiff requested Lyrica instead of Savella for fibromyalgia (Tr. 622). April, 2011 treating records state that Plaintiff received refills of Vicodin and Xanax (Tr. 613). In July, 2011, Dr. Almed composed a letter stating that Plaintiff was currently "unable to work due to multiple health conditions" (Tr. 666).
VE Tim Shaner classified Plaintiff's former work as an insurance clerk/receptionist as exertionally sedentary and semiskilled, and cleaner as light/unskilled
The VE responded that given the hypothetical limitations, the individual would be unable to perform Plaintiff's past relevant work but could perform the sedentary, unskilled work of a surveillance system monitor (400 positions in the regional economy); information clerk (2,500); and packager (2,100) (Tr. 62). The VE testified that if the individual were limited to frequent rather than constant manipulative activity, the job findings would remain unchanged (Tr. 62). The VE stated that if the same individual were also limited by Plaintiff's professed psychological and physical deficiencies, she would be unable to perform any work (Tr. 62).
Citing the medical records, ALJ Adamczyk found the severe impairments of "fibromyalgia, an adjustment disorder with mixed anxiety, major depression, scoliosis and a substance use disorder" but found that none of the conditions met or equaled a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 17). The ALJ determined that Plaintiff had the Residual Functional Capacity ("RFC") for sedentary work with the following additional restrictions:
Citing the VE's testimony, the ALJ determined that while Plaintiff was unable to perform either of her former jobs, she could work as a surveillance monitor, information clerk, or packager (Tr. 23).
The ALJ discounted Plaintiff's allegations of disability, noting that despite the presence of a number of medically determinable impairments, Plaintiff was able to care for her school-age children, work one day a week, and visit with friends and family (Tr. 21-22). The ALJ also observed that symptoms of depression were stable with medication (Tr. 21).
The district court reviews the final decision of the Commissioner to determine whether it is supported by substantial evidence. 42 U.S.C. §405(g); Sherrill v. Secretary of Health and Human Services, 757 F.2d 803, 804 (6
Disability is defined in the Social Security Act 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). In evaluating whether a claimant is disabled, the Commissioner is to consider, in sequence, whether the claimant: 1) worked during the alleged period of disability; 2) has a severe impairment; 3) has an impairment that meets or equals the requirements of an impairment listed in the regulations; 4) can return to past relevant work; and 5) if not, whether he or she can perform other work in the national economy. 20 C.F.R. §416.920(a). The Plaintiff has the burden of proof at steps one through four, but the burden shifts to the Commissioner at step five to demonstrate that, "notwithstanding the claimant's impairment, he retains the residual functional capacity to perform specific jobs existing in the national economy." Richardson v. Secretary of Health & Human Services, 735 F.2d 962, 964 (6th Cir.1984).
Plaintiff argues first that the ALJ erred by rejecting her claims of mental and physical limitation. Plaintiff's Brief at 6-16, Docket #9 (citing Felisky v. Bowen, 35 F.3d 1027 (6
The credibility determination, guided by SSR 96-7p, describes a two-step process for evaluating symptoms. Duncan, supra, 801 F.2d at 853. "First, the adjudicator must consider whether there is an underlying medically determinable physical or mental impairment . . . that can be shown by medically acceptable clinical and laboratory diagnostic techniques." Id. Plaintiff does not contest the ALJ's finding that fibromyalgia, anxiety, and depression were severe impairments, but instead, seems to argue that the ALJ did not comply with the second prong of SSR 96-7p which directs that whenever a claimant's allegations regarding "the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence," the testimony must be evaluated "based on a consideration of the entire case record."
Contrary to Plaintiff's argument, the ALJ's reasons for rejecting Plaintiff's allegations of disability are well supported and thoroughly explained. He noted that in February, 2007, Plaintiff described herself as a "stay-at-home" parent to a treating source rather than disabled (Tr. 18). The ALJ noted that while Plaintiff was diagnosed with fibromyalgia, the records contained no evidence of "trigger point tenderness" used to identify the condition (Tr. 18). The ALJ found that Plaintiff's claims of postural limitations were undermined by Dr. Karrar's findings of a full range of motion and the ability to move from a chair to an examining table without difficulty (Tr. 19-20). The ALJ noted that despite the diagnoses of anxiety, depression, and fibromyalgia, Plaintiff was able to meet the needs of her school age children, stand through an eight-hour shift as a cashier, shop, visit friends, use a checkbook, and attend medical appointments (Tr. 21-22). Citing the treating records, the ALJ noted that symptoms of depression were well controlled with medication (Tr. 21). Because the credibility determination is well explained and well supported, the discretion generally allotted to the credibility determination is appropriate here. Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 1234 (6
Plaintiff's additional argument that the Dr. Almed's July, 2011 opinion was entitled to the deference accorded a treating source does not provide grounds for remand under either the fourth or sixth sentence of 42 U.S.C. § 405(g). Dr. Ahmed's opinion, stating that "[a]t this time, [Plaintiff] is unable to work due to multiple health conditions," was written over four months after the ALJ's decision. The physician's four-sentence statement does not refer to Plaintiff's condition before the date of the ALJ's decision. As such, the July 11, 2011 opinion that she was unable to work is intrinsically irrelevant to whether she was disabled on or before the date of ALJ's decision (Tr. 666). Sizemore, supra, 865 F.2d at 712. If Plaintiff believes that records created after February 24, 2011 (either those before the Court or more recent evidence) support a disability finding, the proper remedy is to initiate a new claim for benefits.
In closing, it must be noted that the recommendation to uphold the Commissioner's decision on this application is not intended to trivialize Plaintiff's difficulties. However, substantial evidence supports the administrative decision. Because the ALJ's determination is easily within the "zone of choice" accorded to the fact-finder at the administrative hearing level it should not be disturbed by this Court. Mullen v. Bowen, supra.
I recommend that Defendant's Motion for Summary Judgment be GRANTED and that Plaintiff's Motion for Summary Judgment be DENIED.
Any objections to this Report and Recommendation must be filed within 14 days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6
Within 14 days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than 20 pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections.
Even assuming that Plaintiff's pro se status at the administrative level satisfies the "good cause" requirement for considering the new evidence, she cannot show that it is material to the ALJ's non-disability finding. Most of the newly submitted records are copies of the material included in the original transcript or prescription slips for medication referenced in treating records reviewed by the ALJ and are thus not "new." The small number of non-duplicative records (1) pertain to conditions unrelated to the disability (2) restate Plaintiff's original diagnoses but do not shed new light on her alleged disabilities or, (3) refer to her condition subsequent to the February 24, 2011 decision. None of these records is likely to change the ALJ's original findings. See Sizemore v. Secretary of Health & Human Services, 865 F.2d 709, 711 (6
