R. STEVEN WHALEN, Magistrate Judge.
Plaintiff Michelle Larner ("Plaintiff") 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") 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 and that Plaintiff's Motion for Summary Judgment be DENIED.
Plaintiff applied for DIB on December 16, 2010, alleging disability as of February 28, 2008 (Tr. 124). After the initial denial of the claim, Plaintiff requested an administrative hearing, held on November 17, 2011 in Mount Pleasant, Michigan before Administrative Law Judge ("ALJ") Kathleen Eiler (Tr. 29). Plaintiff, represented by attorney Daniel Pollard, testified, (Tr. 33-50), as did vocational expert ("VE") James Lozer (Tr. 51-55). On January 27, 2012, ALJ Eiler found Plaintiff not disabled (Tr. 24).
On February 2, 2013, the Appeals Council declined to review the administrative decision (Tr. 1-6). Plaintiff filed suit in this Court on April 1, 2013.
Plaintiff, born September 9, 1971, was 40 at the time of the administrative decision (Tr. 24, 124). She completed two years of college and worked previously as an "office professional" (Tr. 142-143). She alleges disability due to sarcoidosis, fibromyalgia, depression, anxiety, and migraines (Tr. 142).
Plaintiff's counsel reported that the correct disability onset date was February 28, 2009 rather than February 28, 2008 as stated on the DIB application (Tr. 33).
Plaintiff offered the following testimony:
She had not worked since the end of February, 2009 due to anxiety, depression, and fibromyalgia (Tr. 34). Due to shaking hands as a result of Effexor and Klonopin use, she was unable to keep her hands on a fingerboard (Tr. 34). She isolated herself due to depression and her inability to get along well with others (Tr. 35). Her physical problems were precipitated by erythema nodosum, a condition causing joint swelling (Tr. 35). After the condition did not respond to steroid treatment, she was referred to a rheumatologist who diagnosed her with fibromyalgia (Tr. 37).
She experienced anxiety and depression prior to the onset of the physical problems, but was able to hold long-term employment because her job allowed her to work in "relative isolation" (Tr. 37). She experienced migraine headaches up to two times a day, "continuous" hand shaking, and varying degrees of pain as a result of fibromyalgia (Tr. 38). She took Klonopin, Effexor, and Vitamin B12 daily (Tr. 38). In November, 2008, she attempted suicide by taking an overdose of Darvocet (Tr. 38).
Due to health insurance restrictions, she was unable to receive treatment from specialists for her physical problems (Tr. 41). She no longer experienced the condition of sarcoidosis (Tr. 44). She previously received counseling (Tr. 45). She lived with her parents (Tr. 46). She held a valid driver's license but drove rarely due to anxiety (Tr. 46-47). She had a dog which she took care of with the help of her father (Tr. 47). She checked her email daily and kept in touch with her friends on Facebook (Tr. 48). She denied eating out, going to movies, or attending church (Tr. 48-49). Her parents prompted her to perform personal care tasks and attend doctors' appointments (Tr. 49). She experienced trouble balancing and climbing stairs (Tr. 50). She spent most her daytime hours sleeping (Tr. 50).
April, 2008 imaging studies of the chest were negative for abnormalities (Tr. 305). In November, 2008, Plaintiff sought treatment for joint swelling (Tr. 225). January, 2009 notes state that "anti-inflammatories" did not improve the condition (Tr. 225). In February, 2009, rheumatologist Harris W. Weaver, M.D. noted diffuse tenderness "suggestive of a fibromyalgia type problem" (Tr. 212). He noted that he could not exclude "a sarcoidosis-related inflammation or other inflammatory disorder" (Tr. 212). The same month, Shahzad Manawar, M.D. noted that the sarcoidosis was not accompanied by pulmonary symptoms but included "arthralgias" of the elbows, knees, hands, and wrists (Tr. 317). May, 2009 treating notes by Mark Skory, D.O. state that Plaintiff attempted suicide in November, 2008 but currently denied thoughts of suicide (Tr. 279, 281).
July, 2010 physical therapy discharge notes state that Plaintiff denied discomfort (Tr. 255). She reported "90 percent" improvement, noting that she had no problems sitting, was able to lift a laundry basket, and experienced improved sleeping patterns (Tr. 255). A "psychosocial" intake assessment created the same month, states that she was subject to emotional abuse during her previous marriage, but was now in a new, non-abusive relationship (Tr. 259). Plaintiff reported that she would receive unemployment benefits for another five months and was not seeking work due to anxiety (Tr. 260). She indicated that depression, anxiety, anger control, mood changes, and hostility were "serious" problems and lack of energy, low self esteem, social withdrawal, and spousal problems were "severe" (Tr. 262). She reported a 2008 suicide attempt (Tr. 263). She was diagnosed with bipolar disorder and assigned a GAF of 50
In February, 2011, Dr. Skory found that Plaintiff experienced the conditions of anxiety, fibromyalgia, migraine headaches, and sarcoidosis, opining that Plaintiff was unable to lift more than five pounds due to symptoms of fibromyalgia (Tr. 337). The following month, S. Nagarkar, M.D. performed an intake psychiatric evaluation, noting Plaintiff's claim of ongoing stress due to abuse by her former husband (Tr. 338). She also reported problems interacting with her parents and had declared bankruptcy (Tr. 338). Plaintiff indicated that she tired easily and worried excessively (Tr. 338). She reported that she was currently in a good romantic relationship (Tr. 339). Dr. Nagarkar diagnosed Plaintiff with dysthymia, combined with a generalized anxiety disorder (Tr. 339). He assigned her a GAF of 55
In December, 2010, Daniel Dolanski, D.O. completed a Disability Determination Explanation on behalf of the SSA, concluding that the treating records supported a nondisability finding (Tr. 57-68). He found mild restriction in activities of daily living and moderate difficulties in social functioning and concentration, persistence, or pace (Tr. 62). In support of his determination, Dr. Dolanski noted that Plaintiff was able to carry a laundry basket, walk half a mile, and did not seek regular treatment for either fibromyalgia or migraine headaches (Tr. 63). He found 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. 64). He found further that Plaintiff should be limited to occasional climbing, balancing, stooping, kneeling, and crawling but found the absence of manipulative, visual, communicative, or environmental limitations (Tr. 65). As to mental limitations, he found that Plaintiff was moderately limited in understanding, remembering, and carrying out detailed instructions; maintaining concentration for extended periods, sustaining an ordinary routine; and getting along with coworkers (Tr. 66). Dr. Dolanski found that Plaintiff was capable of performing "simple and repetitive tasks on a sustained basis" (Tr. 66).
Dr. Nagarkar's records state that in March, 2011, Plaintiff completed a self assessment, reporting that she shopped for groceries, read books about vampires and emailed others but saw friends in person on a rare basis (Tr. 409-410). In March, 2011, Marc D. Davis, M.D. stated that Plaintiff exhibited a normal mood and affect with normal behavior (Tr. 391). He noted that Plaintiff's anxiety and panic disorder was "well controlled" (Tr. 382). In January, 2012, Plaintiff reported pain upon twisting but denied psychological symptoms (Tr. 417). Dr. Nagarkar's April, 2012 progress notes state that Plaintiff's disability claim had been denied (Tr. 414). Dr. Davis' September, 2012 treating records state that Plaintiff's depression and panic disorder were "well controlled" with medication (Tr. 427).
VE Lozer classified Plaintiff's former work as a secretary as skilled and exertionally sedentary (as generally performed in the national economy) but exertionally medium as described by Plaintiff
The VE responded that given the hypothetical limitations, the above-limited individual would be unable to perform any of Plaintiff's past relevant work but could perform the light, unskilled work of a custodian (5,000 positions in the State of Michigan); office clerk (11,000); and dishwasher (5,000) (Tr. 54). She stated that if the individual were limited to sedentary rather than light work, it would allow for the work of a sedentary office clerk (3,000); bookkeeper (2,000); and security guard monitor (1,000) (Tr. 54). She testified that if the individual also required "three unscheduled breaks each day lasting 60 minutes each," all work would be precluded (Tr. 54).
Citing the medical and therapy records, ALJ Eiler found that Plaintiff experienced the severe impairments of sarcoidosis, fibromyalgia, migraines, depression, and anxiety but that none of the conditions met or equaled a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 16). As to the mental impairments, the ALJ found that Plaintiff experienced mild limitation in activities of daily living and moderate limitation in social functioning and "concentration, persistence, or pace" (Tr. 17). The ALJ determined that Plaintiff had the Residual Functional Capacity ("RFC") for light work with the following additional restrictions:
Citing the VE's testimony, the ALJ determined that while Plaintiff was unable to perform her past relevant work, she could perform the work of a custodian, office clerk, and dishwasher (Tr. 23-24).
The ALJ discounted Plaintiff's allegations that she was unable to perform even unskilled work. She cited medical records showing that the condition of sarcoidosis was stable and that Plaintiff did not experience respiratory symptoms (Tr. 19). The ALJ noted that Plaintiff obtained good results from physical therapy (Tr. 19). She observed that despite the alleged psychological impairments, the treating records did not show that the conditions were disabling or created greater limitations than those found in the RFC (Tr. 20).
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 that the hypothetical question to the VE did not account for her full degree of impairment. Plaintiff's Brief at 6-12, Docket #8 (citing Tr. 53). He contends that the omission of critical psychological and physical limitations from the hypothetical question invalidates the Step Five finding that she was capable of a significant range of work. Id. at 6 (citing Felisky v. Bowen, 35 F.3d 1027 (6
Plaintiff contends, in effect, that critical omissions in the hypothetical question stem from the ALJ's erroneous credibility determination. The credibility determination, guided by SSR 96-7p, describes a two-step process for evaluating symptoms. "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." 1996 WL 374186 at *2. The second prong of SSR 96-7p 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."Id.
Substantial evidence amply supports both the credibility determination and by extension, the ALJ's choice of hypothetical limitations. The ALJ supported the rejection of Plaintiff's physical limitations by citing physical therapy records showing 90 percent improvement in symptoms, the ability to lift a laundry basket, and no limitations in sitting (Tr. 19). She noted that Plaintiff was able to drive to the store, shop, read, and interact with others online (Tr. 21). She cited Dr. Nagarkar's treating notes stating that her mental status was "within normal limits" (Tr. 20). See Stanley v. Secretary of Health and Human Services, 39 F.3d 115, 118-119 (6th Cir.1994)(ALJ not obliged to include properly discredited allegations of limitation in hypothetical to VE). Because the ALJ's credibility determination was well supported and explained, she did not err in excluding Plaintiff's unsupported claims from the hypothetical limitations.
Plaintiff's brief also contains a recitation of the "treating source rule," but is unaccompanied by any citation to a treating source opinion, much less a fact-based explanation of how the ALJ erred in the analysis of the treating records.
Finally, although Plaintiff has not cited the material she submitted after the ALJ's decision, I have considered this evidence in making my recommendation (Tr. 369-43). To establish grounds for remand based on such material, the claimant must show that the "new evidence is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. § 405(g); see Cotton v. Sullivan, 2 F.3d 692, 696 (6th Cir.1993). Plaintiff has not provided "good cause" for the tardy submission of the newer material. Moreover, a portion of the evidence pertains to Plaintiff's condition subsequent to the January 27, 2012 administrative decision and as such, is intrinsically irrelevant to whether she was disabled on or before that date. Sizemore v. Secretary of Health & Human Services, 865 F.2d 709, 712 (6th Cir.1988)(records related to a claimant's condition after the administrative decision not "material" to the ALJ's findings). If Plaintiff believes that she can establish disability after the date of the decision, her remedy would be to apply for benefits for the later period.
In closing, I note that my recommendation to uphold the Commission's decision should not be read to trivialize Plaintiff's physical and mental conditions. Still, the ALJ's determination that she was capable of performing a significant range of work was comfortably within the "zone of choice" accorded to the fact-finder at the administrative hearing level. As such, 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.
20 C.F.R. § 404.1567(a-d) defines sedentary work as "lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools; light work as "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds;" medium work as "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds;" and that exertionally heavy work "involves lifting no more than 100 pounds at a time with frequent lifting or carrying of objects weighing up to 50 pounds. Very Heavy work requires "lifting objects weighing more than 100 pounds at a time with frequent lifting or carrying of objects weighing 50 pounds or more. § 404.1567(e).
