ANTHONY P. PATTI, Magistrate Judge.
Plaintiff, Janice Renae Maciag, brings this action under 42 U.S.C. §§ 405(g), 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for disability insurance (DI) and supplemental security income (SSI) benefits. This matter is before the United States Magistrate Judge for a Report and Recommendation on Plaintiff's motion for summary judgment (DE 13), the Commissioner's cross-motion for summary judgment (DE 14), and the administrative record (DE 10).
Plaintiff alleges her disability began on February 21, 2015, at the age of 43. (R. at 199, 197.)
Plaintiff requested a hearing by an Administrative Law Judge ("ALJ"). (R. at 151-152.) On February 15, 2017, ALJ Allison Dietz held a hearing, at which Plaintiff and a vocational expert (VE), James Lozer, Ed.D. testified. (R. at 36-97, 260.) On May 22, 2017, ALJ Dietz issued an opinion, which determined that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 17-35.)
Plaintiff submitted a request for review of the hearing decision/order. (R. at 190-192.) However, on March 23, 2018, the Appeals Council denied Plaintiff's request for review. (R. at 1-7.) Thus, ALJ Dietz's decision became the Commissioner's final decision.
Plaintiff timely commenced the instant action on May 16, 2018.
The administrative record contains approximately 486 pages of medical records, which were available to the ALJ at the time of her May 22, 2017 decision. (R. at 268-753 [Exhibits 1F-15F].) These materials will be discussed in detail, as necessary, below.
Pursuant to 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4), at
The District Court has jurisdiction to review the Commissioner's final administrative decision pursuant to 42 U.S.C. § 405(g). When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it `is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)). In deciding whether substantial evidence supports the ALJ's decision, the court does "not try the case de novo, resolve conflicts in evidence or decide questions of credibility." Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Rogers, 486 F.3d at 247 ("It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant.").
Although the substantial evidence standard is deferential, it is not trivial. The Court must "`take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding `even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)). Finally, even if the ALJ's decision meets the substantial evidence standard, "`a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
Plaintiff contends that the ALJ erred in her consideration of the opinion evidence and in her credibility assessment. (DE 13 at 8-12.)
In her review of the opinion evidence, the ALJ assigned:
Plaintiff treated with the Slaim Office — Michelle Dolson, ANP-BC, John Slaim, D.O., Abraham Slaim, D.O. — as early as April 23, 2013. (See R. at 303-378 [Ex. 2F], 560-573 [Ex. 5F], 593-615 [Ex. 9F], 635-736 [Ex. 12F]). The ALJ cited many of these exhibits in her review of Plaintiff's musculoskeletal impairments, diabetes, CAD and sleep apnea. (R. at 26-27.) As to musculoskeletal impairments, the ALJ noted, inter alia:
(R. at 26.)
Then, in assigning "partial weight" to the functional limitations set forth in Dolson's/Dr. John Slaim's January 16, 2017 MSS, the ALJ explained:
(R. at 28, 750.) In other words, the ALJ discounted Dr. Slaim's functional limitations on the basis of the supportability and/or consistency factors. 20 C.F.R. §§ 404.1527(c)(3),(4), 416.927(c)(3),(4).
Plaintiff takes issue with the ALJ's assignment of "only `partial weight' to the treating doctor, Dr. John Slaim." (DE 13 at 8.) Plaintiff argues that "Dr. Slaim's records for over five years of consistent treatment, do support such finds and such limitations." (DE 13 at 9.) Ultimately arguing that "Dr. Slaim's opinion should be given great weight[,]" Plaintiff cites:
(DE 13 at 7, 9.)
Plaintiff's argument is unavailing. As for the treating source's long lists of diagnoses, "[t]he mere diagnosis of [a condition] says nothing about the severity of the condition." Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Moreover, to the extent the other notes reference Plaintiff's reports during the "history of present illness," they are more appropriately evaluated in a credibility argument. See Young v. Sec'y of Health & Human Servs., 925 F.2d 146, 151 (6th Cir. 1990) (a multidisciplinary examination report failed to provide "objective evidence of a condition of disabling psychological pain" where it was based on "claimant's subjective complaints."). In the present appeal, Plaintiff's credibility argument, which is addressed below, is limited to compliance with cardiac rehabilitation and diabetes treatment and her hearing testimony. (DE 13 at 10-12.) Finally, and perhaps most importantly, as an ANP, Dolson is an "other source," rather than an "acceptable medical source." See 20 C.F.R. §§ 404.1513(a),(d), 416.913(a),(d) (effective Sept. 3, 2013 to Mar. 26, 2017).
Beyond Dr. Slaim's records, Plaintiff takes issue with the ALJ's failure to mention her "100% occlusion in [blockage of] the distal circumflex," or her "two right shoulder tears." (DE 13 at 9-10.) Here, Plaintiff expressly refers to:
(DE 13 at 9-10.)
To be clear, the Undersigned does not interpret these citations as a direct attack on any assignment of weight to the October 12, 2015 cardiac catheterization/interventional procedure report of Dr. Asfour, Plaintiff's then-treating physician. (R. at 505-507, 379-381.) Instead, Plaintiff cites these pieces of evidence to illustrate that the ALJ did not mention the 100% occlusion, the shoulder tears or the MRI. (DE 13 at 9-10.) However, even if the ALJ's written decision does not expressly mention Plaintiff's 100% blockage or occlusion, it was discussed at the February 15, 2017 administrative hearing, during her counsel's opening statement and upon examination by the ALJ, and the written decision unquestionably considers Plaintiff's CAD. (R. at 42, 67, 27.) The SSA classifies jobs as "sedentary, light, medium, heavy, and very heavy." 20 C.F.R. §§ 404.1567, 416.967.
The ALJ determined that Plaintiff was limited to sedentary work, the most restrictive of the exertional categories, "with additional restrictions[,]" which included postural, manipulative, and environmental limitations. (R. at 25, 28.) The Undersigned agrees with the Commissioner that "Plaintiff fails to identify any additional RFC limitations that would be attributable to her CAD . . ., beyond the limited range of sedentary work found by the ALJ[.]" (DE 14 at 9.) Moreover, if Plaintiff is asking the Court to adopt Dr. Slaim's opinion that she is "functionally disabled from all gainful employment, including sedentary or less than sedentary jobs[,]" (R. at 749), opinions as to whether an individual is disabled are reserved to the Commissioner. 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1).
Likewise, even if the ALJ's written decision does not expressly mention the right shoulder tendon tears, her consideration of right shoulder MRI is obvious, not only because she mentions Exhibit 15F as added to the record after the hearing, but also because her RFC discussion acknowledges that "[d]iagnostic imaging also corroborated the examination findings by showing the claimant had mild changes in her shoulder and spine (EX. 15F)." (R. at 20, 26.) Indeed, the shoulder MRI revealed, inter alia, "mild subacromial subdeltoid bursitis[,]" and "mild to mild spur and subchondral cyst formation as well as moderate patchy marrow edema." (R. at 752-753.) Accordingly, the ALJ assessed manipulative limitations, which included occasionally reaching overhead with the right upper extremity and frequently handling and fingering with the bilateral upper extremities. (R. at 25.)
Plaintiff contends that, given the MRI findings and the findings of her treating doctor, presumably those within Dr. Asfour's cardiac catheterization report, she "should be limited to never using the right upper extremity." (DE 13 at 10 (emphasis added), 752-753, 691.) Preliminarily, this difference between "occasional" versus "no" overhead reaching with the right arm was explored by the ALJ's first and third hypotheticals. (R. at 91, 93; see also R. at 95-96.) The ALJ determined that Plaintiff had an RFC consistent with the combined first and second hypotheticals, as to which the VE testified that such an individual could perform the jobs of surveillance system monitor or order clerk. (R. at 25, 30, 91-93.) True, as Plaintiff points out, at the administrative hearing, her counsel observed that Plaintiff had only raised her arm from her elbow to her hand when taking the oath, which Plaintiff agreed was due to her shoulder pain. (R. at 83-84.) (DE 13 at 9.) Nonetheless, as the Commissioner points out, reaching, handling, and fingering, as well as feeling, are not present or do not exist in the surveillance-system monitor job. See DICOT 379.367-010, 1991 WL 673244. (DE 14 at 10.) Thus, even if Plaintiff had been limited to never using her right upper extremity, she could still have performed the surveillance-system monitor job.
The ALJ's review of Plaintiff's mental health impairments included citations to various records. (R. at 27, 587-592, 295, 311, 312, 324, 410, 478, 341.) In assigning "great weight" to Dr. Bray's adult mental status evaluation, the ALJ specifically referenced Dr. Bray's discussion of the four work-related mental activities, which included several moderate or moderate to significant impairments. (R. at 28, 590-591.)
Given the ALJ's assignment of "great weight" to the opinion of consultative examiner Dr. Bray, Plaintiff takes issue with the fact that the mental RFC limitations do not include "any amount of time off task due to attention and concentration impairments." (DE 13 at 10; see also R. at 42, 94-95.) However, after recognizing Dr. Bray's opinions on the work-related mental activities, the ALJ further stated:
(R. at 28.)
Tellingly, Dr. Bray noted that, during the examination, Plaintiff "was able to perform simple repetitive tasks. It is likely [she] could handle more complex tasks." (R. at 591.) As such, the Commissioner is correct that "the ALJ was not required to include a limitation for being off task due to problems with attention and focus[.]" (DE 14 at 11.) In addition, the state agency psychological consultant opined:
(R. at 113, 129.) The ALJ found the state agency consultant's determination "consistent with the evidence available at the time of . . . review of the record[,]" and assigned it "some weight." (R. at 27.) Accordingly, there is substantial evidence for the ALJ's mental RFC assessment, which, in addition to including social interaction limitations, also included limitations of "simple routine tasks in a work environment free from fast-paced production requirements, . . . and involving only simple work-related decisions with few, if any, workplace changes." (R. at 25.)
By way of background, Plaintiff was admitted to Oakwood Hospital and Medical Center (OHMC) on January 6, 2014 with a chief complaint of chest pain. (R. at 382-449.) During this stay, Dr. Asfour performed:
Plaintiff was again admitted to Oakwood on July 8, 2014. (R. at 450-498.) That same day, a "5 French sheath" was placed in Plaintiff's right radial artery. (R. at 496-498, 290-292; see also R. at 293-298.)
Plaintiff was also admitted to Oakwood on October 9, 2015, with complaints of chest pain and shortness of breath. (R. at 499-559.) This appears to have been Plaintiff's third heart attack. (See R. at 105-106, 569.) On October 12, 2015, "a 6 French sheath was placed in the [right] femoral artery[,]" and Dr. Asfour noted that the distal circumflex was "occluded 100%." (R. at 506, 380.)
As the ALJ later observed, Plaintiff has had "three heart attacks, which required two heart stents within a six-month period." (R. at 27.)
The administrative transcript contains several medical records that comment upon non-compliance, such as:
There is some evidence that Plaintiff quit smoking in October 2015.
Plaintiff's compliance with treatment was also addressed at the February 15, 2017 hearing. Among other things, Plaintiff was asked, "When your doctors give you treatment or recommendations, things that you need to be doing, telling you how often to take your medication, and in which doses to take your medication, so on and so forth — are you compliant with your doctor's instructions?" (R. at 69.) Plaintiff answered, "Taking my medication, absolutely." (Id.) However, when asked about "pretty consistent recommendations that [she] stop smoking[,]" Plaintiff admitted she had not stopped, although she had "tried everything, literally[,]" and she was still trying to quit. (Id.) She also stated that she had been successful in cutting back. (R. at 70.) She further testified: "my insurance will not cover an MRI for my neck, my shoulder, my arm. They have denied it now, I believe, two times or three times and — for my lower back." (R. at 72; see also R. at 73 (emphasis added).)
In her May 22, 2017 decision, the ALJ concluded that Plaintiff's statements about the intensity, persistence and limiting effects of her symptoms were "not entirely consistent with the medical evidence and other evidence in the record . . . ." (R. at 26.) Plaintiff's credibility argument concerns:
Plaintiff addressed cardiac rehabilitation, diabetes treatment, and her testimony, among other issues, in an October 1, 2017 letter to the Appeals Council. (R. at 193-194.) On March 23, 2018, the Appeals Council acknowledged Plaintiff's argument that she was unfairly considered non-complaint for having refused cardiac rehabilitation, because she was unable to afford it. (R. at 1.) Having determined that the ALJ "did not abuse her discretion and none of the other reasons in our rules exists to review [Plaintiff's] case[,]" the AC denied her request for review. (Id.)
Citing Dr. Asfour's July 22, 2014 note, seemingly for its statement that Plaintiff "refused cardiac rehab due to high expense on her co-payments[,]" (R. at 270-271 (emphasis added)), Plaintiff contends that she "was unable to go to cardiac rehab because she did not and does not have the money to pay for the rehab[,]" and her "medical insurance cut her off at that time and she would have had to pay out of pocket for the rehab with money that she simply does not have." (DE 13 at 11.)
At the outset, Plaintiff's counsel's statements about what Plaintiff can and cannot afford, unaccompanied by citation to some type of financial record, are unconvincing. Moreover, to the extent Plaintiff relies upon her doctor's remarks, Dr. Asfour's September 15, 2014 record simply notes, without further explanation that Plaintiff "refused to go to cardiac rehab." (R. at 269, 353.) Also, while the Court has noticed an OHMC Cardiac Cath Lab record that "Patient has no active insurance coverage on file for [January 6, 2014][,]" (R. at 370 (emphasis added)), she seems to have been covered by Blue Cross PPO or Molina at the time of her January 2014, July 2014 and October 2015 visits to OHMC. (R. at 382, 450, 499.) She also seemed to have insurance at the time of the February 15, 2017 hearing. (R. at 72-73.) Thus, I am inclined to agree that the record "does not reflect an inability to pay due to a loss of insurance . . . [,]" and "there is no indication she was unable to pay [the high co-pays][,]" only that she "refused" to do so. (DE 14 at 13-14 (emphasis in original); R. at 269, 270-271.)
Moreover, even if Plaintiff was unable to afford her copayment to go to cardiac rehab, the ALJ also stated that Plaintiff was "non-compliant with treatment[,]" for which the ALJ expressly pointed to the letters about smoking. (R. at 27, 268, 272, 352.) As the Sixth Circuit has stated:
Sias v. Sec'y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988) (internal footnote and paragraph break omitted). Thus, there is other support for the ALJ's conclusion that Plaintiff was noncompliant with treatment.
Plaintiff takes issue with the ALJ's statement Plaintiff "had admitted instances of medication non-compliance[,]" for which the ALJ cited one record — Dolson's October 16, 2015 notes. (R. at 26 (emphasis added), 560.) However, the notation that Plaintiff "is noncompliant with follow up and medication[,]" may, as the Commissioner asserts, "be fairly read as reflecting an on-going pattern of non-compliance[.]" (R. at 560, DE 14 at 14.) Moreover, while Plaintiff generally cites approximately 100 pages to illustrate that "despite the compliance she continued to have diabetes complications[,]" (DE 13 at 11, R. 635-736), the Commissioner points out that other records are "reflective of non-compliance with treatment regarding her overall health, including diabetes treatment[,]" such as Dolson's October 16, 2015 notes that Plaintiff was not taking her medication (R. at 341, 346, 565, 570) and Dolson's November 8, 2016 notes that Plaintiff is a "noncompliant diabetic" (R. at 691, 699, 704). (DE 14 at 14.) And, as noted above, the ALJ cited Plaintiff's own admission to medical personnel that "`she never checks her sugars.'" (R. at 26, quoting R. at 309.) Thus, the ALJ's statement is not materially inaccurate. Also, "[n]oncompliance is a sufficient reason to discount credibility." Reid v. Comm'r of Soc. Sec., No. 14-CV-11455, 2015 WL 5026118, at *9 (E.D. Mich. Aug. 25, 2015) (Murphy, J., adopting report and recommendation of Patti, M.J.) (referencing Sias, 861 F.2d at 480).
Finally, while the Court agrees that the ALJ did cite to Plaintiff's January 20, 2016 function report more than her February 15, 2017 testimony, the ALJ acknowledged the age of the function report when assigning it "some weight because it was completed over a year ago." (R. at 26, 28.) The ALJ characterized Plaintiff's testimony as "she can no longer work due to mental disorders and chronic musculoskeletal pain[,]" and "she wear[s] braces for her carpal tunnel syndrome." (R. at 26; see also, e.g., R. at 47-48, 70-71.) Yet, the ALJ also cited Plaintiff's function report when noting that certain "reported activities of daily living . . . [,]" namely concerning dog care, personal care, cooking and cleaning, "are generally inconsistent with the degree of functional limitation alleged." (R. at 28; see also, e.g., R. at 233-234.) The ALJ was not required to explain why she discredited each of the specific limitations about which Plaintiff testified at the hearing, and, in any event, Plaintiff's argument in this regard does not identify any contradictions between the "daily living and general limitations" described in the function report versus Plaintiff's testimony regarding those areas. (See DE 13 at 11-12.) In the end, as the Commissioner correctly points out, "[t]he ALJ's credibility findings are unchallengeable[.]" Payne v. Comm'r of Soc. Sec., 402 F. App'x 109, 113 (6th Cir. 2010). (DE 14 at 14-15.)
Plaintiff has the burden of proof on her statements of error. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) ("during the first four steps, the claimant has the burden of proof; this burden shifts to the Commissioner only at Step Five."). Plaintiff has not shown legal error that would upend the ALJ's decision. For the foregoing reasons, it is
The parties to this action may object to and seek review of this Report and Recommendation, but are required to file any objections within 14 days of service, as provided for in Federal Rule of Civil Procedure 72(b)(2) and Local Rule 72.1(d). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505 (6th Cir. 1981). Filing objections that raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health & Hum. Servs., 931 F.2d 390, 401 (6th Cir. 1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1273 (6th Cir. 1987). Pursuant to Local Rule 72.1(d)(2), any objections must be served on this Magistrate Judge.
Any objections must be labeled as "Objection No. 1," and "Objection No. 2," etc. Any objection must recite precisely the provision of this Report and Recommendation to which it pertains. Not later than 14 days after service of an objection, the opposing party may file a concise response proportionate to the objections in length and complexity. Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The response must specifically address each issue raised in the objections, in the same order, and labeled as "Response to Objection No. 1," "Response to Objection No. 2," etc. If the Court determines that any objections are without merit, it may rule without awaiting the response.
