NOELLE C. COLLINS, Magistrate Judge.
This is an action under Title 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner denying the application of Dawn M. Tindall-Kolthoff (Plaintiff) for Disability Insurance Benefits (DIB) under Title II of the Social Security Act (the Act), 42 U.S.C. §§ 401
On February 6, 2012, Plaintiff filed an application for DIB, and, on April 16, 2012, she filed an application for SSI. In both applications she alleged a disability onset date of January 1, 2012. (Tr. 139-44, 145-46). Plaintiff's applications were denied, and she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 78-79, 90-91). After a hearing, by decision, dated February 12, 2014, the ALJ found Plaintiff not disabled. (Tr. 11-25). On June 5, 2015, the Appeals Council denied Plaintiff's request for review. (Tr. 1-3). As such, the ALJ's decision stands as the final decision of the Commissioner.
Under the Social Security Act, the Commissioner has established a five-step process for determining whether a person is disabled. 20 C.F.R. §§ 416.920, 404.1529. "`If a claimant fails to meet the criteria at any step in the evaluation of disability, the process ends and the claimant is determined to be not disabled.'"
Third, the ALJ must determine whether the claimant has an impairment which meets or equals one of the impairments listed in the Regulations. 20 C.F.R. §§ 416.920(d), 404.1520(d); pt. 404, subpt. P, app. 1. If the claimant has one of, or the medical equivalent of, these impairments, then the claimant is per se disabled without consideration of the claimant's age, education, or work history.
Fourth, the impairment must prevent the claimant from doing past relevant work. 20 C.F.R. §§ 416.920(f), 404.1520(f). The burden rests with the claimant at this fourth step to establish his or her Residual Functional Capacity (RFC).
Fifth, the severe impairment must prevent the claimant from doing any other work. 20 C.F.R. §§ 416.920(g), 404.1520(g). At this fifth step of the sequential analysis, the Commissioner has the burden of production to show evidence of other jobs in the national economy that can be performed by a person with the claimant's RFC.
It is not the job of the district court to re-weigh the evidence or review the factual record de novo.
To determine whether the Commissioner's final decision is supported by substantial evidence, the court is required to review the administrative record as a whole and to consider:
Additionally, an ALJ's decision must comply "with the relevant legal requirements."
The Social Security Act defines disability 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 has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 416(i)(1)(A); 42 U.S.C. § 423(d)(1)(A). "While the claimant has the burden of proving that the disability results from a medically determinable physical or mental impairment, direct medical evidence of the cause and effect relationship between the impairment and the degree of claimant's subjective complaints need not be produced."
The absence of objective medical evidence is just one factor to be considered in evaluating the plaintiff's credibility.
The ALJ must make express credibility determinations and set forth the inconsistencies in the record which cause him or her to reject the plaintiff's complaints.
RFC is defined as what the claimant can do despite his or her limitations, 20 C.F.R. § 404.1545(a)(1), and includes an assessment of physical abilities and mental impairments. 20 C.F.R. § 404.1545(b)-(e). The Commissioner must show that a claimant who cannot perform his or her past relevant work can perform other work which exists in the national economy.
To satisfy the Commissioner's burden, the testimony of a vocational expert (VE) may be used. An ALJ posing a hypothetical to a VE is not required to include all of a plaintiff's limitations, but only those which the ALJ finds credible.
The issue before the court is whether substantial evidence supports the Commissioner's final determination that Plaintiff was not disabled.
Plaintiff, who was born on April 28, 1974, testified at the administrative hearing that she lived with her husband and ten-year-old son; that she last worked in January 2012; that she had a high school equivalency diploma; that she could read, write, and do simple math; that she could walk for about 15 minutes before having to sit down; that she could stand in one place for about 10 minutes; that she could sit for about 25 minutes; that she dropped things a lot; that she had headaches 2 to 3 times a week, which lasted from 1 to 3 hours; that she had ringing in her ears which sounded like a train; that she had numbness from her left elbow down to the tips of her fingers; that she had numbness in her right hand and toes; that she had low back pain which went into her buttocks on both sides; that she felt nauseous and had to vomit at least once a day; that this vomiting had happened for the 3 or 4 years prior to the hearing; that she had bad days with her bipolar disorder 3 to 4 times a week; that she had anxiety attacks at about 4:00 p.m. every day; that she had manic days at least once a week; and that, when she had manic attacks, she could not sleep for two to four days. (Tr. 34-36, 39-40, 43-44, 46-49, 51-52).
The ALJ found that Plaintiff met the insured status requirements since January 1, 2012, her alleged onset date; that she had the severe impairments of degenerative disc disease, borderline personality disorder, bipolar disorder, depression and anxiety; and that she did not have an impairment or combination of impairments which met or medically equaled a listed impairment. The ALJ further found that Plaintiff had the RFC to perform a range of sedentary work, with the following limitations: Plaintiff would require a sit/stand option allowing her to sit or stand alternatively, at will, provided that she was not off task by ten percent of the work period; she could occasionally push and pull bilaterally; she could never climb ladders, ropes, or scaffolds; she could occasionally climb ramps or stairs, stoop, crouch, kneel and crawl; she could have only occasional rotation, flexion, and extension of the neck; she could frequently reach, including overhead reaching, bilaterally; she could frequently handle and finger bilaterally; she had to avoid concentrated exposure to extreme cold and heat; she had to avoid all exposure to use of hazardous machinery and unprotected heights; she was limited to simple, routine, and repetitive tasks, with no strict production quotas; she could only occasionally interact with the general public; and she could be around co-workers throughout the day, but with only occasional interaction with them. The ALJ concluded that Plaintiff could not perform her past relevant work; that, based on the testimony of a VE, there was work in the national economy which Plaintiff could perform; and that, therefore, she was not disabled within the meaning of the Act.
Plaintiff argues that the ALJ's decision is not based on substantial evidence because: (1) the ALJ failed to give controlling weight to the opinion of Nitin Kukkar, M.D.; (2) the ALJ failed to find that Plaintiff's bipolar disorder equaled the criteria for Listing 12.04; and (3) the ALJ's credibility determination was "patently erroneous." For the following reasons, the court finds that Plaintiff's arguments are without merit and that the ALJ's determination that Plaintiff is not disabled is based on substantial evidence and is consistent with the Regulations and case law.
The court will first consider the ALJ's credibility determination, as the ALJ's evaluation of Plaintiff's credibility was essential to the ALJ's determination of other issues.
To the extent that the ALJ did not specifically cite
In any case, "[t]he credibility of a claimant's subjective testimony is primarily for the ALJ to decide, not the courts."
First, the ALJ considered Plaintiff had a mild restriction in regard to her daily activities. In this regard, the ALJ considered Plaintiff was able to care for her ten-year-old son; that she prepared meals, made beds, and folded laundry; and that she enjoyed gardening for herself and her neighbors. (Tr. 15). The court notes that Plaintiff stated, in a Function Report — Adult dated May 31, 2012, that she made breakfast for her son; that she went to physical therapy three days a week; that she went outside with her son and "walk[ed] around the yard"; that she fixed dinner; that she fixed her own meals, although, "at times, friends ma[d]e" meals; that she dusted occasionally and made the bed and did laundry daily; that she went outside on a daily basis; that she went out alone; that she drove; that she shopped in stores for groceries and clothing; that she could pay bills, handle a savings account, count change and use a checkbook; that she spent time with others, including her son and his friends; that she did not need reminders to go places or need someone to accompany her; that she did not have any problems getting along with family friends, neighbors, or others; and that her disabling conditions did not affect her ability to talk, hear, see, and get along with others. (Tr. 173, 175-78). Also, as considered by the ALJ, Plaintiff told her counselor, on May 9, 2013, that she was gardening for herself and her neighbors; that her staying active was something she liked; and that staying active helped her to focus less on the negative things and to feel better about herself. (Tr. 21, 722).
While the undersigned appreciates that a claimant need not be bedridden before she can be determined to be disabled, a claimant's daily activities can nonetheless be seen as inconsistent with her subjective complaints of a disabling impairment and may be considered in judging the credibility of complaints.
Second, the ALJ considered inconsistencies in the record and that the record "tended to diminish the credibility of [Plaintiff's] testimony." (Tr. 18). In this regard, the ALJ considered that, on August 8, 2012, approximately eight months after her alleged onset date, Plaintiff told a medical provider that she was looking for work (Tr. 553); that, on October 3, 2012, ten months after her alleged onset date, Plaintiff told another medical provider that she would like to work, "although she wanted to do something that she liked to do" (Tr. 537); and that the evidence suggested that Plaintiff "believes that there was some kind of work activity she could perform." (Tr. 18). The ALJ also considered that although Plaintiff testified that she had been vomiting daily for the last three or four years, on March 22, 3012, she told a provider that she had occasional nausea, but no vomiting (Tr. 327); that, on September 1, 2013, a provider noted that Plaintiff said that her back and neck pain were worse after a couple of days of riding a motorbike (Tr. 709); that, when asked at the hearing about this statement, Plaintiff testified that she did not remember making it; and that, on May 9, 2013, as discussed above, Plaintiff told a mental health provider that she liked to say active (Tr. 722).
Plaintiff contends that the ALJ improperly considered Plaintiff's reports that she wanted to work. (Doc. 20 at 22). Nonetheless, contradictions between a claimant's sworn testimony and what she actually told health care providers weighs against the her credibility.
Third, the ALJ considered Plaintiff's non-compliance with the recommendations of her health care providers, and that, in order to receive benefits, a claimant must follow her doctor's treatment plan if "this treatment can restore her ability to work." Specifically, as provided by the case law and Regulations, the ALJ considered that "failure to follow prescribed treatment can be taken into consideration in not awarding benefits." (Tr. 18-19).
In regard to Plaintiff's non-compliance, the ALJ considered, and the record establishes, that Plaintiff's "flare-ups of [her] mental symptoms often occur[red] after she ha[d] stopped taking prescribed medications" (Tr. 252, 490); that, in February 25, 2011, after she presented to the emergency room (ER) with chest pain, Plaintiff "was adamant that she be discharged [] the next day before testing was completed" (Tr. 320-322); that, in December 2012, prior to surgery Plaintiff reported smoking for 28 years and her orthopedic surgeon told her that smoking cessation would help with her general health and bone healing after surgery (Tr. 498, 513); and that, when Plaintiff established care with a new doctor, in October 2013, she reported that she was "still a current every day smoker" (Tr. 716). The court also notes that, on April 19, 2011, when Plaintiff had been off her medications since October 2010, she presented with complaints of anxiety, which was acute and persistent (Tr. 252), and that, in February 2012, while in the ER, Plaintiff declined tobacco cessation education. (Tr. 263).
To the extent Plaintiff contends that the ALJ improperly considered her non-compliance because she had a mental impairment (Doc. 20 at 22), courts have recognized that a mental impairment can interfere with a claimant's ability to follow prescribed treatment and her ability to have sufficient insight into her illness.
To the extent Plaintiff specifically argues that the ALJ erred in considering that she failed to follow the recommendations of health care providers that she cease smoking because the record does not establish that if she stopped smoking she would be able to work (Doc. 20 at 23), as acknowledged by the Commissioner and the ALJ (Doc. 17 at 14, Tr. 19), the Regulations provide that an ALJ should find a claimant not disabled based on failure to follow treatment only if the treatment would restore her ability to work. 20 C.F.R. §§ 404.1530, 416.930. Nonetheless, the ALJ did not find Plaintiff's failure to stop smoking was the only reason she was not credible and, ultimately, not disabled; her failure in this regard was one of many factors considered by the ALJ upon determining that Plaintiff's assertions regarding the severity of her conditions were not fully credible.
Fourth, the ALJ considered the clinical and objective findings in regard to Plaintiff's alleged physical impairments. (Tr. 19).
As considered by the ALJ, November 23, 2012 magnetic resonance imaging (MRI) showed spinal stenosis with cervical spinal cord deformity at C5-6 and C6-7. An MRI of the lumbar spine, of this same date, showed moderate to severe disc bulging with regions of protrusion producing displacement of traversing nerve roots and Grade 1 anterolisthesis of L5-S1. (Tr. 539-40). After Plaintiff underwent an anterior cervical discectomy and fusion done by Dr. Kukkar, on December 11, 2012, on physical examination at discharge, Plaintiff had full range of motion (ROM) in the major muscle groups; her strength and sensation were grossly intact and symmetric; and Plaintiff said she no longer had pain in her hand. (Tr. 19, 513). Dr. Kukkar recommended that Plaintiff not have physical therapy for the first six weeks after her surgery. Plaintiff then had physical therapy between February 12, 2013 and March 27, 2013. At her first session, Plaintiff's loss of function and motion/stiffness were rated as "mild." Plaintiff was discharged pursuant to her own request. (Tr. 595-637). Cervical spine x-rays of March 28, 2013, showed her prior fusion at C6-7, a prosthesis at C5 and C6, with the remaining disc spaces well maintained, and no interval changes in comparison to Plaintiff's prior study of December 2012. (Tr. 545, 638).
On May 17, 2013, Plaintiff underwent a neural foraminal block, after which Plaintiff reported complete cessation of pain. (Tr. 704). She had an epidural injection on July 1, 2013, after which Plaintiff "experienced complete relief of her left-sided pain." (Tr. 705). When Plaintiff presented in the ER, on September 1, 2013, with back and neck pain after riding a motor bike for several days, physical examination showed that Plaintiff had "mild" tenderness to palpation of the lumbosacral region of her back; that Plaintiff's lungs were clear; that her vital signs were within normal limits; that she was "in no acute distress other than mild pain and discomfort noted"; that her extremities had no cyanosis, clubbing, or edema; that her cranial nerves "2 through 12 [were] intact; that she had no focal sensory or motor deficits; and that she was able to stand and ambulate without difficulty. (Tr. 709).
When Plaintiff presented for care with Jeffrey Wells, D.O., on October 18, 2013, she complained of back pain which radiated to her head and numbness in her arms from her elbows down, and said she had this pain since her surgery ten months earlier. On examination, Dr. Wells reported that Plaintiff was alert and in no acute distress; that her gait and motor examinations were normal; that she had equal movement in all extremities; that she had full ROM, no asymmetry, deformities, or peripheral edema; that she had no speech difficulties; and that Dr. Wells told Plaintiff he would not be giving her any more narcotic pain medications. (Tr. 716-18).
As for objective findings relevant to Plaintiff's mental conditions, on June 7, 2012, Plaintiff underwent a mental health examination in connection with her application for Medicaid benefits with Licensed Clinical Social Worker Janet Hultgren. David Goldman, J.D., D.O., a psychiatrist, signed off on Ms. Hultgren's report. Ms. Hultgren reported that Plaintiff denied homicidal/suicidal ideations; that Plaintiff's recent memory was good; that her remote memory was fair; that her intellectual functioning, insight, and concentration were good; that she was oriented; that her mood was labile; and that her impression was that Plaintiff had bipolar disorder and a Global Assessment of Functioning (GAF) of 55.
On December 6, 2012, Valentina Vrtikapa, M.D., conducted a psychiatric evaluation of Plaintiff and reported that, on examination, Plaintiff made good eye contact; that her language was appropriate; that her mood was depressive and anxious; that her affect was "somewhat constricted"; that Plaintiff denied hallucinations, paranoia, and delusions; and that she was awake and oriented. Dr. Vrtikapa diagnosed Plaintiff with bipolar disorder, not otherwise specified, borderline personality disorder, and a GAF of 50. (Tr. 490-91). On December 20, 2012, Plaintiff reported feeling happier following neck surgery, as she had a reduction in pain. (Tr. 515). On January 3, 2013, Plaintiff told Dr. Vrtikapa that she was "doing well." (Tr. 673). On January 10, 2013, Plaintiff told Ms. Shields that she had "improved mood and energy which she link[ed] to continued recovery from surgery." (Tr. 678). On January 17, 2013, Ms. Shields reported that Plaintiff had made progress that day "in the area of exploring [the] impact of her past on her present." (Tr. 679). On February 5, 2013, Ms. Shields reported that Plaintiff had "improved life satisfaction," and was "okay with spacing appts out further." (Tr. 680). On February 25, 2013, Ms. Shields reported that Plaintiff was more open about her past" and was tearful. Ms. Shields further reported that progress had been made, and that Plaintiff said "she felt lighter after [that] session and [thought] it was productive." (Tr. 681). On March 19, 2013, Ms. Shields reported that Plaintiff appeared sad, tired, withdrawn and anxious, and was "receptive to anxiety management techniques but unable/unwilling to talk about other subjects" that day. (Tr. 684). On April 23, 2013, Dr. Vrtikapa increased Plaintiff's medication to reduce her symptoms. (Tr. 691). When Plaintiff saw Dr. Vrtikapa, on May 2, 2013, she reported that she was doing well. (Tr. 664).
Notes from May 2, 2013, reflect that Plaintiff's mental status examination was normal, including that her behavior, speech, affect, thought process, insight, judgment, and cognition were normal. (Tr. 664). On May 9, 2013, Ms. Shields reported that Plaintiff's response to the day's intervention was open; that her mood was more stable in the prior few weeks; that she had more energy and had been gardening; that Plaintiff's mood had improved; and that she focused less on negative events from her past. (Tr. 722).
Fifth, as considered by the ALJ, Plaintiff's conditions improved with treatment. As discussed above in regard to the medical evidence of record, after neck surgery, in December 2012, Plaintiff had full ROM, intact strength and sensation, and no longer had pain in her hand; in February 2013, at her first physical therapy session after surgery, Plaintiff had mild symptoms and a mild degree of loss of motion and functioning; on March 27, 2013, Plaintiff was discharged from physical therapy at her own request; after having a neural foraminal block, on May 17, 2013, Plaintiff reported cessation of low back pain; and, after a July 1, 2013 injection, Plaintiff reported complete relief of her left-side pain. (Tr. 19).
In regard to Plaintiff's mental conditions, as set forth above, Plaintiff reported, in August 2012, that her "general mood [was] much better"; that an increase in her dosage of Celexa had helped her mood; that trazadone had improved her sleep; and that she was not "groggy" in the morning. (Tr. 553). On December 11, 2012, Plaintiff stated that her mental impairments were fairly well controlled with medication and that counseling helped. (Tr. 498, 501). Also, on December 20, 2012, Plaintiff's counselor reported that Plaintiff had a "dramatic improvement in [her] mood and level of satisfaction following recent neck surgery." (Tr. 515). In January 2013, Plaintiff's counselor reported that Plaintiff was more relaxed and had improved mood and energy. The counselor associated these improvements with Plaintiff's continued recovery from surgery. (Tr. 677-78). After Plaintiff reported increased depression, in April 2013, her medication dosage was adjusted, and, on May 2, 2013, Plaintiff said that she was doing well on the increased dosage. In fact, on May 2, 2013, it was reported that Plaintiff's medication efficacy was good. (Tr. 688-92, 664). On May 9, 2013, Plaintiff said that her mood had been more stable in the prior few weeks; that she had improved energy; and, as discussed above, that she had been gardening for herself and her neighbors. (Tr. 722).
Sixth, the ALJ considered lapses in Plaintiff's medical treatment. In particular, the ALJ considered that although Plaintiff was advised to follow-up with her doctor when she presented to the ER on September 1, 2013, with back pain, the record does not reflect that Plaintiff presented for treatment until October 18, 2013, when she established care with Dr. Wells. (Tr. 20). A lack of regular treatment for an alleged disabling condition detracts from a claimant's credibility.
Seventh, the ALJ considered that Plaintiff underwent a mental health examination in connection with her application for Medicaid benefits with Ms. Hultgren, as described above; that Dr. Goldman, a psychiatrist, signed off on the examination; that both Ms. Hultgren and Dr. Goldman were specialists in their fields; that Ms. Hultgren recommended that Plaintiff receive Medicaid; and that Plaintiff was found disabled for purposes of receiving Medicaid based on the report of Ms. Hultgren and Dr. Goldman. The ALJ, however, found that this determination was not binding on the Commissioner in regard to Plaintiff's applications for disability under the Act, although the Medicaid determination was a factor to consider. The ALJ concluded that the determination that Plaintiff was disabled for purposes of Medicaid should be given "little weight" because the issue of Social Security disability is reserved for the Commissioner; the issue was whether Plaintiff had the RFC to perform work activity; and the medical evidence of record (MER) supported the conclusion that Plaintiff could "work well within" the RFC which the ALJ assigned to her. (Tr. 22).
Plaintiff contends that the ALJ erred in discounting the assessment of Ms. Hultgren because the evidence of disability from another governmental or non-governmental agency must be considered. (Doc. 20 at 23). Indeed, findings of disability by other federal agencies, even though they are not binding on an ALJ, are entitled to some weight and must be considered in the ALJ's decision.
Eighth, the ALJ considered that Plaintiff "was able to participate in the administrative hearing closely and fully without being distracted and without any overt pain behavior," and that she was able to respond to questions by her examiners in an appropriate manner. (Tr. 18). Plaintiff contends that the ALJ erred in considering her demeanor at the hearing. (Doc. 20 at 21-22). While an ALJ cannot accept or reject subjective complaints solely on the basis of personal observations,
Ninth, the ALJ considered third-party function reports filed by Plaintiff's current and exhusbands, and that these reports generally supported Plaintiff's allegations regarding the severity of her impairments. The ALJ afforded these reports little weight for the same reasons he discounted Plaintiff's allegations regarding the severity of her conditions, and gave them weight only to the extent they were consistent with the medical evidence of record. (Tr. 22, 196-204, 212-15). An ALJ may discount corroborating testimony on the same basis used to discredit the claimant's testimony.
In conclusion, the court finds that the ALJ gave good reasons for finding Plaintiff's allegations regarding the severity of her conditions not fully credible, and that the ALJ's analysis was carefully linked to the evidence of record.
In a Medical Source Statement of Ability to Do Work-Related Activities (Physical), dated October 31, 2013, Dr. Kukkar opined that Plaintiff could lift and carry no more than 20 pounds on an occasional basis; that she could lift and carry no more than 10 pounds on a frequent basis; that she could stand and walk, with normal breaks, 4 hours in an 8-hour workday; that she could sit, with normal breaks, 6 hours in an 8-hour workday; that she could sit for 45 minutes before having to change positions; that she could stand 20 minutes before having to change positions; that she had to walk around "6-7" times in an 8-hour day; that she needed the opportunity to shift at will "from sitting or standing/walking"; that she needed to lie down at unpredictable intervals; that she could frequently twist, stoop, climb stairs and ladders, reach, handle, finger, and feel; that she could occasionally crouch and push/pull; that she should avoid concentrated exposure to extreme cold and heat, high humidity, perfumes solvents/cleaners, and chemicals; that she should avoid moderate exposure to fumes, odors, dusts, gases, and "soldering fluxes"; that she would have to be absent about 4 days a month; that 20% of the time during a typical workday Plaintiff's symptoms would be severe enough to interfere with her attention and concentration need to perform even simple work; that she needed to take unscheduled 10 minute breaks 4 to 5 times a day; and that these limitations were a result of her neck and/or back pain. (Tr. 712-15). The ALJ gave Dr. Kukkar opinion only partial weight. (Tr. 21). Plaintiff argues that the ALJ erred in doing so because Dr. Kukkar was her treating doctor and a specialist in orthopedics, and that, therefore, Dr. Kukkar's opinion should have been given controlling weight. (Doc. 20 at 15-25). For the following reasons, the court finds that the ALJ gave proper weight to Dr. Kukkar's opinion, and that the ALJ's decision in this regard is based on substantial evidence and is consistent with the case law and Regulations.
First, the ALJ gave Dr. Kukkar's opinion partial weight because "it appear[ed] that the limitations [he imposed] regarding [Plaintiff's] missing work and being off task appear[ed] to be sympathetic opinions," and were not consistent with Dr. Kukkar's own objective findings. (Tr. 21).
Second, upon determining the weight to be given Dr. Kukkar's opinion, the ALJ considered that his opinion was not consistent with the records of other medical providers. (Tr. 21).
Third, the ALJ considered that Dr. Kukkar's opinion that Plaintiff would miss work and be excessively off task was conclusory, with little explanation. Moreover, the limitations Dr. Kukkar indicated were limitations on Plaintiff's ability to perform work-related activities by making checkmarks on a form. (Tr. 21). An ALJ may discount an opinion that "`consists of nothing more than vague, conclusory statements.'"
Fourth, as stated above, when Dr. Kukkar rendered his opinion in October 2013 he had not seen Plaintiff since the prior May.
Fifth, the limitations imposed by the ALJ in his RFC determination reflect that he gave some weight to Dr. Kukkar's opinion, to the extent that Dr. Kukkar's opinion was consistent with the record as a whole.
Sixth, to the extent Plaintiff argues that the ALJ failed to explain how the weight he gave to Dr. Kukkar's opinion is partial weight (Doc. 20 at 15-17), the ALJ did engage in a lengthy detailed discussed regarding the reasons he gave Dr. Kukkar's opinion only partial weight and the reasons he discredited portions of Dr. Kukkar's opinion.
Seventh, the extreme limitations imposed by Dr. Kukkar were inconsistent with what Plaintiff told medical providers. Indeed, after her December 2012 surgery, Plaintiff stated that her hand was no longer causing her pain. (Tr. 513). Plaintiff reported that she had complete cessation of pain after an injection in May 2013 and complete relief after a July 2013 injection. (Tr. 704-705). Also, as discussed above in regard to Plaintiff's credibility, she told her counselor, in May 2013, that she was gardening and staying active (Tr. 722), and, in August and October 2012, Plaintiff expressed a desire to work (Tr. 537, 553).
Eighth, although Plaintiff argues that the ALJ should have given Dr. Kukkar's opinion controlling weight because he was an orthopedist, and, therefore, a specialist in his field, the ALJ was not required to give Dr. Kukkar's opinion controlling weight to the extent it was not supported by medically acceptable clinical and laboratory diagnostic techniques and not inconsistent with substantial evidence in the record. In any case, Plaintiff did not receive regular treatment from Dr. Kukkar.
Ninth, Dr. Kukkar did not indicate Plaintiff had extreme limitations in her medical records.
Tenth, upon determining the weight to be given Dr. Kukkar's opinion, the ALJ was fulfilling his role to evaluate the record as a whole.
Accordingly, the Court finds that the ALJ gave proper weight to Dr. Kukkar's opinion upon determining the severity of Plaintiff's impairments and her RFC, and that the ALJ's decision, in this regard, is based on substantial evidence.
If an ALJ finds a claimant has a mental impairment, the ALJ must then analyze whether certain medical findings relevant to ability to work are present or absent. 20 C.F.R. § 404.1520a(b)(1). The procedure then requires the ALJ to rate the degree of functional loss resulting from the impairment in four areas of function which are deemed essential to work. 20 C.F.R. § 404.1520a(c)(2). Those areas are: (1) activities of daily living; (2) social functioning; (3) concentration, persistence or pace; and (4) deterioration or decompensation in work or work-like settings. 20 C.F.R. § 404.1520a(c)(3). (For § 12.04
The limitation in the first three functional areas of activities of daily living (social functioning and concentration, persistence, or pace) is assigned a designation of either "none, mild, moderate, marked, [or] extreme." 20 C.F.R. § 404.1520a(c)(4). The degree of limitation in regard to episodes of decompensation is determined by application of a four-point scale: "[n]one, one or two, three, four or more."
The Listings describe impairments severe enough to prevent a claimant from doing any gainful activity regardless of age, education, or work experience. 20 C.F.R. §§ 404.1525(a), 416.925(a). As stated by the Court in
Indeed, the burden is on the claimant to show that she meets a listing, including all of a listing's criteria because "[a]n impairment that manifests only some of [the] criteria, no matter how severely, does not qualify.
In relevant part, 20 C.F.R. Ch. lll, Pt. 404, Supt. P, App.1 § 12.00(a) states, that:
Section 12.00(a) further lists mental disorders in diagnostic categories. In particular, Listing § 12.04, affective disorder, states:
Thus, pursuant to Listing 12.04, a claimant's affective disorder is disabling when it satisfies, among other things, the Listing's paragraph B criteria. 20 C.F.R. Pt. 404, Subpt. P, App. 1, 12.04. Paragraph B requires the claimant to show that her affective disorder has resulted in at least two of the following: marked restriction in daily activities, marked difficulties in social functioning, marked difficulties in concentration, persistence, or pace, or repeated episodes of decompensation. Id. The ALJ found that Plaintiff's mental impairments had resulted in only mild limitation in daily activities, moderate limitation in social functioning, moderate limitation in concentration, persistence, or pace, and no episodes of decompensation. (Tr. 15-16). Thus, the ALJ found that Plaintiff did not meet Listing 12.04.
Plaintiff contends that the ALJ erred in this regard and that her mental impairments did meet Listing 12.04 because the ALJ ignored evidence from her May 2012 Function Report-Adult (Function Report) which shows that she had difficulty with daily activities, getting along with others, and completing tasks. Plaintiff further argues that the ALJ failed to consider her GAF scores and that they would have established that she met Listing 12.04. (Doc. 20 at 18-20). For the following reasons, the court finds that the ALJ's determination that Plaintiff did not meet Listing 12.04 is based on substantial evidence and is consistent with the Regulations and case law.
First, the ALJ did consider Plaintiff's Function Report, as he specifically discussed Plaintiff's allegations regarding her abilities in explaining why she did not meet paragraph B criteria. (Tr. 15-16). Indeed, the ALJ cited Plaintiff's statements in the Function Report regarding things she could no longer do because of her conditions, but also noted that Plaintiff stated in the Function Report that she could care for her ten-year-old son, prepare meals, dust, make beds, and fold laundry. (Tr. 15, 174-75).
To the extent Plaintiff argues that the ALJ should have considered her statements in the Function Report in greater detail, the ALJ's failure to mention every statement made by Plaintiff in the Function Report does not mean that the ALJ did not consider the Function Report in its entirety.
The ALJ, moreover, included in Plaintiff's RFC several limitations which reflected Plaintiff's description in the Function Report of what she was capable of doing. For example, Plaintiff said, in the Function Report, that she had difficulty lifting objects, pulling, bending, squatting, and kneeling, and the ALJ limited her to sedentary work, with only occasionally pulling, stooping, crouching, and kneeling. Further, Plaintiff said she had problems concentrating, understanding, and following instructions, and the ALJ limited her to simple, routine, repetitive tasks with no strict production quotas. (Tr. 16-17, 178).
As for the ALJ's determination that Plaintiff had only a mild restriction in the area of activities of daily living, as discussed above in regard to Plaintiff's credibility, in addition to caring for her young son, Plaintiff reported, in the Function Report, that she did laundry, went outside with her son, attended physical therapy three days a week, dusted occasionally, drove, shopped, and spent time with others. Additionally, as discussed above, Plaintiff said she gardened and the record reflects that she went motorbike riding. As such, the court finds that the ALJ's determination that Plaintiff had only a mild restriction in regard to her activities of daily living is based on substantial evidence.
As for Plaintiff's concentration, persistence, or pace, the ALJ found that Plaintiff had moderate difficulties. (Tr. 16). In this regard, the ALJ considered that although Plaintiff claimed she had difficulty with understanding, memory, concentration, following instructions, and completing tasks, she also stated in the Function Report that she was able to count change, pay bills, handle bank accounts, and drive. Additionally, the medical providers reported that Plaintiff's recent memory was good; that her intellectual functioning, insight, and concentration were good; that she made good eye contact; that her behavior, thought process, insight, and judgment were normal; and that Plaintiff made progress in regard to her mental conditions with counseling, with her recovery from surgery, and with medication adjustment. (Tr. 478-79, 490-91, 527, 539, 664, 673, 679, 681, 691, 722). As such, the court finds that the ALJ's determination that Plaintiff had a moderate limitation in the area of concentration, persistence, or pace is based on substantial evidence.
As for episodes of decompensation, the ALJ considered there was no evidence that Plaintiff had inpatient psychiatric treatment or an exacerbation of her mental symptoms accompanied by a loss of adaptive functioning that lasted for an extended duration. The court finds, therefore, that the ALJ's determination that the B criteria for Listing 12.04 were not met is based on substantial evidence and is consistent with the Regulations and case law.
Although Plaintiff argues that the ALJ ignored her GAF scores, the ALJ did consider that Dr. Vrtikapa reported that Plaintiff's GAF was 50 (Tr. 491), and correctly noted that a score of 50 was borderline, in that scores of 41 to 50 indicate serious symptoms and a score of 51 indicates only moderate symptoms and limitations.
In conclusion, the court finds that the ALJ's determination that Plaintiff did not meet the criteria for Listing 12.04 is based on substantial evidence and is consistent with the Regulations and case law. Because the ALJ found that Plaintiff did not meet or medically equal Listing 12.04, the ALJ proceeded to determine Plaintiff's RFC. 20 C.F.R. § 404.1520a(d)(3). As discussed above, the ALJ found that Plaintiff had the RFC for sedentary work with additional environmental and exertional and non-exertional limitations. The court finds that the ALJ's RFC determination is based on substantial evidence and is consistent with the Regulations and case law.
For the reasons set forth above, the court finds that substantial evidence on the record as a whole supports the Commissioner's decision that Plaintiff is not disabled.
Accordingly,