DAVID D. NOCE, Magistrate Judge.
This action is before the court for judicial review of the final decision of the defendant Commissioner of Social Security denying the application of plaintiff Brenett Robertson for disability insurance benefits under Title II of the Social Security Act (the Act), 42 U.S.C. § 401, et seq. The parties have consented to the exercise of plenary authority by the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). For the reasons set forth below, the decision of the Commissioner is affirmed.
Plaintiff was born on January 15, 1968. (Tr. 241.) She filed her application for Disability Insurance Benefits on October 17, 2011. (Tr. 156.) She alleged an onset date of October 6, 2011. (Tr. 204.) She alleged that she was unable to work due to spasms in the arteries, heart attacks, asthma, and chest pain. (
ALJ Ritter held a hearing on April 25, 2013 and issued an unfavorable decision on September 24, 2013. (Tr. 9, 11.) The Appeals Council denied the plaintiff's request for review on November 24, 2014. (Tr. 1.) The decision of the ALJ therefore is the final decision of the Commissioner. 20 C.F.R. § 404.984(d).
On October 6, 2011, plaintiff had a heart attack for which she was hospitalized at DePaul Health Center. (Tr. 336.) Cardiac catheterization showed a three-vessel coronary artery spasm in the right coronary artery and an ejection fraction of 25 percent. Plaintiff had stents inserted. (Tr. 354-55.) A later cardiac catheterization showed successful stenting of the left anterior descending artery. (Tr. 358.) She was discharged on October 12, 2011, and was advised to lose weight, follow a low fat/low sodium diet, regularly exercise, abstain from smoking, and to take all prescribed medications. (Tr. 338.)
On January 5, 2012, plaintiff followed up with her cardiologist Sundeep Das, M.D., who summarized a series of tests showing ejection fraction from July of 2009 to November of 2011. (Tr. 384.) These were as follows: July 13, 2009 (60 percent), January 7, 2011 (60 percent), October 7, 2011 (25 percent), October 27, 2011 (50 percent), and November 22, 2011 (55 percent). At this follow up she denied being in pain, however, she did have two episodes of intermittent chest pain since her October 2011 hospitalization. (Tr. 384-85.)
On January 30, 2012, plaintiff visited the DePaul emergency room complaining of chest pain and was admitted. (Tr. 401.) An endoscopy revealed that she had hiatal hernia. Plaintiff was started on a PPI (proton pump inhibitor) which resolved her chest pain and she was discharged. (Tr. 402.)
On March 13, 2012, plaintiff returned to the emergency room complaining of chest pain, describing it as a "sharp discomfort" with some symptom relief from her Nitroglycerin.
In a letter dated March 21, 2012, Dr. Das stated that plaintiff's main problem was intractable coronary artery spasm. In his opinion, due to her intractable symptoms and inability to predict the symptoms in a reliable fashion, she should be on long term disability. (Tr. 439.)
On April 12, 2012, plaintiff followed up with Dr. Das who noted that her weight increased from 210 to 221 pounds. (Tr. 491.) She complained of intermittent chest pains and asthma exacerbation. She had been undergoing ECP therapy but denied it had any effect on her chest pain. (Tr. 492.) Dr. Das recommended implanting a spinal cord stimulator and referred her to pain management. (Tr. 493.)
On August 14, 2012, plaintiff's visit noted intermittent resting palpitations, racing/skipping heartbeats, and chest pain. (Tr. 487-88.) The physical examination was normal. (Tr. 489.) Dr. Das recommended a new medication subject to whether her insurance would pay for it. (
On November 19, 2012, plaintiff returned complaining of a lot of fatigue. (Tr. 482-83.) Dr. Das ordered a repeat echo and a Holter to determine whether there was a recurrent ischemia. (Tr. 485.) Her medications remained unchanged. (Tr. 485-86.) On November 26, 2012, plaintiff underwent a transthoracic echocardiogram and Doppler examination which showed a left ventricular ejection fraction between 45-50 percent and "no significant valvular abnormalities." (Tr. 497-98.)
On March 2, 2013, plaintiff spent one night in the hospital after going to the emergency room reporting chest pain. (Tr. 469.) She was advised to follow a cardiac diet and released to return to work after one day. (Tr. 475.) On March 18, 2013, plaintiff followed up with Dr. Das and continued to report intermittent chest discomfort as well as palpitations, fatigue, dizziness/lightheadedness, and shortness of breath when climbing stairs and walking around her home. (Tr. 477.) She admitted that her recent trip to the emergency room showed normal troponins. Dr. Das noted that an echocardiogram showed "some decline" in the left ventricle. (Tr. 479.)
On April 23, 2013, plaintiff underwent an exercise stress test which showed "negligible" functional limitation which may be heart or perfusion related and a result of "deconditioning." (Tr. 510.)
On April 30, 2013, Dr. Das added a new medication, Tracleer (also referred to as Bosentan). (Tr. 505, 508.) He noted possible improvement with Tracleer when plaintiff returned for her June 3, 2013 visit. (Tr. 500, 503.) Dr. Das discontinued plaintiff's use of aspirin and noted that she would undergo a repeat Holter study prior to her next visit in November 2013, at which time she would undergo a repeat echo. (Tr. 503, 504.) The echo was conducted on November 5, 2013, in which no "significant valvular abnormalities" were found. (Tr. 517.)
On December 26, 2013, plaintiff followed up complaining of worsening hypertension and sporadic intermittent chest pains which last about a minute and then resolve, usually one to two times a week. (Tr. 519.) Plaintiff had not been using her cpap. (
The ALJ held a hearing on April 25, 2013. (Tr. 30.) The plaintiff attended with her counsel present and testified to the following facts. She was at the time 45 years old and weighed 211 pounds. (Tr. 35.) She does not have any children living with her. Her husband is employed and lives with her. (Tr. 36.) She lives home alone during the day but her mother and sisters come over to spend time with her. (Tr. 36-37.) She drives her motor vehicle "at times," mostly twice a week. (Tr. 37.) Plaintiff puts in roughly an hour to an hour and a half in household chores. (Tr. 38.) She has two years of college experience in which her field of study was computer operations. (Tr. 39.) Plaintiff's past relevant work includes working in collections at a department store from 1996-1997, at a bank in collections from 1997-1998, billing and collections at a hospital from 1999-2008, and collections for a billing and collection company from 2009-2011. These jobs entailed desk work, telephone work, and inputting information into a computer about bills. (Tr. 40.) She classified the work as sedentary and agreed that she did not have to lift more than 10 pounds. (Tr. 41.)
Plaintiff had a heart attack on October 6th. She was admitted to the hospital and held for three days, sent home, and returned a day later. (Tr. 41.) She had stents put in. She admitted to having a long history of heart problems. She was treated by Dr. Das who placed some restrictions on her including avoiding strenuous activity and stressful work. She stated that Dr. Das does not want her working at all. (Tr. 42-43.) She worries about her heart because she is unsure when it is a real problem and when it is not. For chest pain, she takes three types of nitroglycerin including the patch, the pill, and the emergency spray.
Plaintiff states that sometimes she feels chest pain walking up her basement steps but other times she could be resting and gets chest pain. (Tr. 47.) These episodes of chest pain occur roughly three to four times a week and last approximately five to seven minutes. (Tr. 50.) Plaintiff takes nitroglycerin, which usually gives her headaches or makes her nauseous. (Tr. 50.) If the nitroglycerin does not work by the second spray, plaintiff usually goes to the emergency room. (Tr. 51.) Plaintiff also has asthma for which she uses an albuterol inhaler. She has a nebulizer with albuterol and she also takes Advair and Spiriva on a daily basis. She still gets asthma attacks despite the medication at times. (Tr. 47.) She also gets upper respiratory tract infections throughout the year. (Tr. 48.) Plaintiff claims that her asthma has gotten a little better since she stopped working. (
At the evidentiary hearing before the ALJ, George C. Oliver, M.D., a consulting cardiologist Medical Expert, testified. (Tr. 53-80) (see below).
On September 24, 2013, the ALJ found plaintiff not disabled. (Tr. 12-23.) At the first step the ALJ found that plaintiff met the insured status requirements of Title II of the Social Security Act through December 31, 2016, and had not been engaged in substantial gainful activity since October 6, 2011, her alleged onset date. (Tr. 14.)
At the second step the ALJ found plaintiff did have severe impairments that have more than minimal effect on her ability to engage in work: prinzmetal angina status post insertion of six stents, hiatal hernia with complaints of heartburn (gastroesophageal reflux disease or "GERD"), hypertension, and obesity. (Tr. 14.)
At step three the ALJ found plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). The ALJ found that medical evidence did not document listing-level severity and no acceptable medical source mentioned findings equal in severity to the criteria of any listed impairment. In addition, there are no specific listings for hypertension or obesity. (Tr. 15.)
The ALJ then considered the entire record and determined plaintiff had the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) except no concentrated exposure to respiratory irritants such as fumes, odors, dusts, gases, and poor ventilation. (
The court's role on judicial review of the Commissioner's decision is to determine whether the Commissioner's findings comply with the relevant legal requirements and are supported by substantial evidence in the record as a whole.
To be entitled to disability benefits, a claimant must prove that she is unable to perform any substantial gainful activity due to a medically determinable physical or mental impairment that would either result in a death or which has lasted or could be expected to last for at least twelve continuous months. 42 U.S.C. §§ 423(a)(1)(D), (d)(1)(A);
Steps One through Three require the claimant to prove (1) she is not currently engaged in substantial gainful activity, (2) she suffers from a severe impairment, and (3) her disability meets or equals a listed impairment. 20 C.F.R. § 404.1520(a)(4)(i)-(iii). If the claimant does not suffer from a listed impairment or its equivalent, the Commissioner's analysis proceeds to Step Four and Five. Step Four requires the Commissioner to consider whether the claimant retains the RFC to perform past relevant work (PRW).
Plaintiff argues that the ALJ erred by discrediting the opinion of the treating specialist while giving great weight to the opinion of the medical expert who testified at plaintiff's hearing, failed to consider the plaintiff's subjective complaints under the standards contained in
Plaintiff argues that the ALJ failed to articulate a legally sufficient rationale for the weight accorded the various medical opinions in formulating the residual functional capacity. Additionally, plaintiff argues that the ALJ erred in failing to give legally proper weight to her treating physician's opinion. (Pl.'s Br. 6, 8.)
RFC is a medical determination.
The RFC conclusions were reached by a non-examining State Disability Determination Services physician, Kenneth Smith, M.D., who found plaintiff not disabled. Dr. Smith's opinion was given some weight particularly in a case like this where it is possible to reach similar conclusions based on a number of reasons. Dr. Smith found plaintiff was capable of sedentary work with occasional climbing of ramps and stairs, but never ladders, ropes, and scaffolds; occasional stooping, kneeling, crouching, and crawling; no concentrated exposure to extreme cold, extreme heat, and humidity; not even moderate exposure to hazards (including moving machinery and unprotected heights); and no exposure to pulmonary irritants such as fumes, odors, dusts, gases, and poor ventilation. Dr. Smith's opinion was based on plaintiff's history of coronary artery disease and asthma. On obesity, while there is no specific medical listing for obesity, the ALJ noted that plaintiff is obese with a body mass index (BMI) of 32 (height of five feet nine inches, weight of 220 pounds based on the stress test administered on April 23, 2013). (Tr. 20, 505, 510.) Social Security Ruling (SSR) 02-1p recognizes that obesity can cause limitation of function and obesity combined with other impairments may be greater than without obesity. Therefore, plaintiff's obesity was taken into consideration in the limitations assessed.
Dr. Oliver, the medical expert, testified at the hearing before the ALJ that there was no reason to limit plaintiff's physical activity because her chest pain was not triggered by the activity. (Tr. 21.) Dr. Oliver testified that based on the record and from plaintiff's testimony, she could be sitting in a chair doing nothing or talking or reading a book and get chest discomfort. Therefore, in Dr. Oliver's opinion, activity is not a provoking factor in plaintiff's chest pain because she appears to get them at unpredictable times, and she is frightened by them. (Tr. 66.)
Dr. Das, however, indicated in a letter dated March 21, 2012, that because of plaintiff's intractable symptoms and inability to predict the symptoms in a reliable fashion, she should be on long-term disability as she is not going to be able to obtain any reasonable employment of any capacity. (Tr. 439.) The ALJ gave no weight to this opinion because the decision did not provide specific medical evidence on which the determination was based. (Tr. 21.) In addition, the determination of whether or not plaintiff is disabled under the Social Security Act rests exclusively with the Commissioner. (
Dr. Oliver testified there are a number of factors to consider in order to determine the severity of the heart condition. (Tr. 56.) First, one looks to the stress test (conducted on April 23, 2013-post hearing date) (Tr. 510.) Plaintiff's stress test showed "negligible" functional limitation which may be heart or perfusion related. (
There is substantial evidence supporting the ALJ's RFC finding. This evidence includes: (a) plaintiff's visit to Dr. Das only every three to four months; (b) results of the April 23, 2013 exercise stress test; (c) successful treatment of her symptoms with stenting and medication; (d) repeated objective medical testing that showed her chest pain was not cardiac in nature; (e) plaintiff's failure to follow recommendations made by her treating physicians; (f) plaintiff's ability to work prior to alleged onset date with the same intensity of her cardiac symptoms; (g) opinion of the State agency medical consultant; and (h) opinion of Dr. Oliver, the medical expert. (Tr. 22.) Dr. Das's opinion, while entitled to special consideration, was not automatically controlling in light of other substantial evidence in the record.
Plaintiff argues that the ALJ erred in failing to consider her subjective complaints of unpredictable chest pains, complaints of anxiety and depression, and side effects of her medication resulting in headaches and nausea under the standards contained in
In evaluating a plaintiff's subjective symptoms using the
Substantial evidence supports the ALJ's finding that plaintiff's chest pains were not so severe in intensity or persistence that she could not perform light work. The plaintiff's treatment records between January 2011 and December 2013 reveal that she described her chest pain as only moderate (4/10) in severity, she experienced chest pain only a "few" or one or two times weekly, her chest pain generally resolved within minutes by the intake of the nitroglycerin spray, and furthermore her pain was not triggered by activity or exertion. (Tr. 18, 20, 241, 245, 249, 253, 313, 455, 463-64, 477, 482, 501, 519, 524, 530.) Plaintiff also testified at her hearing that her chest pain would usually resolve by taking the nitroglycerin spray which "pretty much works" right away or within a minute. (Tr. 43-45.) As far as plaintiff's argument concerning side effects of the medication are concerned, the record shows that plaintiff did not experience such side effects in a manner which would render her disabled. Dr. Oliver's testimony revealed that headaches and nausea were possible side effects of nitroglycerin. (Tr. 18, 73.) However, aside from plaintiff's report of experiencing nausea with chest pain in her emergency visit in October 2011, she did not report to nurses or doctors that she was experiencing nausea or headaches as side effects to her medication. Plaintiff denied experiencing headaches during doctor visits in January 2011, February 2011, March 2011, March 2012, and November 2013. (Tr. 245, 250, 413, 464-65, 531.) In addition, she denied experiencing nausea on doctor visits in January 2011, February 2011, June 2011, March 2012, April 2013, June 2013, and November 2013. (Tr. 242, 250, 254, 327, 463-65, 478, 502, 531.)
Plaintiff testified at the ALJ hearing that she is depressed, however, she also admitted that she had never been treated for depression or anxiety. (Tr. 49.) Plaintiff did not indicate that she suffered from a mental impairment when she applied for disability, listing only spasms in arteries, heart attacks, asthma, and chest pains. (Tr. 204.) In addition, plaintiff consistently denied to her health care providers that she was experiencing unusual stress, difficulty concentrating, anxiety, or depression. (Tr. 242, 246, 250, 254, 502.)
The ALJ lawfully discounted plaintiff's subjective complaints because there were several inconsistencies in the record which showed her chest pain was not as severe, the pain usually resolved by the intake of her medication, and she did not report side effects of the medication. In reaching this conclusion, the ALJ applied the
Plaintiff argues that once significant non-exertional impairments are shown to exist, vocational expert testimony is required, and in its absence the ALJ's decision is not supported by substantial evidence. Plaintiff argues that the ALJ made no explicit findings with respect to the mental demands of plaintiff's past work and only cited the Dictionary of Occupational Titles to show the physical demands of her past relevant work.
The ALJ is required to make specific findings as to plaintiff's RFC and past work demands.
In
For the reasons set forth above, the decision of the Commissioner of Social Security is affirmed. An appropriate Judgement Order is issued herewith.