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 Paula Johnston (Plaintiff) for Supplemental Security Income (SSI), under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381
On December 12, 2011, Plaintiff filed an application for SSI. (Tr. 160-66). Plaintiff's claim was denied, and she requested a hearing before an Administrative Law Judge (ALJ). (Tr. 114-23). Following a hearing, an ALJ denied Plaintiff's application. (Tr. 14-35). On April 13, 2015, the Appeals Council denied Plaintiff's request for review. (Tr. 1-5). 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 forty-four years old at the time of the hearing, testified that she graduated high school and had a year of secretarial training; that she had panic attacks on a daily basis for the two months before the hearing; that prior to having panic attacks on a daily basis, the panic attacks were not bad; that she had been having headaches every other day for the two months prior to the hearing; that symptoms associated with her headaches included vomiting, dizziness, blurred speech and vision, and burning pain; and that, when she had pseudoseizures, she would lose control of her muscles in her arms and legs, could not speak, and would violently shake and "flop[] around." (Tr. 48-49, 54, 56-58). In regard to the severity of her physical conditions, Plaintiff stated, in a Function Report — Adult, that her illnesses affected her ability to lift, squat, bend, stand, walk sit, kneel, talk, hear, climb stairs, and use her hands. (Tr. 210). Further, Plaintiff stated that she had difficulty lifting anything over five pounds; that she could walk 150 yards before having to stop and rest; and that she used a wheel chair. (Tr. 210-11)
The ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date of December 12, 2011, and that Plaintiff had the severe impairments of degenerative disc disease, osteoarthritis of the cervical spine, Cushing's disease, status post resection of pituitary microadenoma, iron-deficiency anemia, type II diabetes, fibromyalgia, pseudoseizures, conversion disorder, bipolar affective disorder (alternately diagnosed as major depressive disorder not elsewhere classified), post-traumatic stress disorder (PTSD), generalized anxiety disorder (alternately diagnosed as panic disorder and anxiety disorder not otherwise specified), and histrionic personality disorder. The ALJ further found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment, and that Plaintiff had the RFC for medium work with the following additional limitations: Plaintiff could stand for 4 hours at a time, for 8 hours total in a workday; she could walk for 4 hours at a time, for 8 hours total in a workday; she could sit for 4 hours at a time, for 8 hours total in a workday; she could frequently balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; she could not climb ladders or scaffolds; she could not tolerate any exposure to unprotected heights, she could tolerate frequent exposure to moving mechanical parts and extreme cold; she could frequently operate a motor vehicle; and she was limited to understanding, remembering, and carrying out simple, repetitive tasks in a low-stress environment, defined as one requiring only occasional workplace changes and only occasional decision-making. Based on response of a VE to interrogatories and the ALJ's independent consideration of the Dictionary of Occupational Titles (DOT), the ALJ concluded that there were jobs in significant numbers in the national economy which Plaintiff could perform, and that, therefore, she was not disabled.
Plaintiff contends that the ALJ's decision is not based on substantial evidence because the ALJ failed to explain why he discounted a portion of the opinion of medical expert Anne Winkler, M.D., because the ALJ improperly considered Plaintiff's credibility, because the ALJ failed to credit information provided by Plaintiff's daughter, and because the ALJ's hypothetical to the VE was flawed. 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 and factors relevant to the ALJ's credibility determination.
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's work history. Indeed, Plaintiff testified at the July 2013 hearing that she attempted to work in May 2012, but she only worked for two days because of pain and exhaustion. Before that attempt to work, Plaintiff testified that she last worked in 2002, approximately eight years before her alleged disability onset date. (Tr. 49, 169, 179). A long and continuous past work record with no evidence of malingering is a factor supporting credibility of assertions of disabling impairments.
Second, the ALJ considered that the objective medical evidence was inconsistent with Plaintiff's claim regarding the severity of her physical conditions. In particular, the ALJ considered that the objective medical evidence did not support Plaintiff's allegations regarding the severity of her symptoms and functional limitations, and, therefore, found her allegations and testimony not fully credible. (Tr. 31).
In particular, the ALJ considered, in regard to Plaintiff's alleged limitations related to her cervical spine, that she rarely was observed to have decreased range of motion (ROM) or tenderness of the cervical spine; that there were no objective findings of abnormal grip strength or bilateral upper extremity strength arising from Plaintiff's cervical spine; and that she consistently exhibited normal gait, station, balance, coordination, and overall had normal neurological examinations. As for Plaintiff's Cushing disease, the ALJ noted that the record showed "very few abnormalities arising" from it since her alleged onset date. (Tr. 31).
As for Plaintiff's pseudoseizures, the ALJ considered that Plaintiff was not observed to have weakness, impaired cognition, or impaired memory after a pseudoseizure, and she did not have bowel or bladder incontinence. The ALJ considered that Plaintiff reported a long history of having pseudoseizures, but that video monitoring showed no epileptic activity, and that there was no medical evidence supporting her subjective report that her seizure-like spells were caused by her cervical disc disease. The ALJ further considered that descriptions of Plaintiff's pseudoseizures have alternately been described as "sudden weakness or loss of muscle strength, tonic-clonic, and grand-mal in nature." The ALJ also considered that few of Plaintiff's pseudoseizures were observed, and that, upon examination, immediately after a pseudoseizure, "no objective findings of post-ictal, cognitive, or other neurological abnormalities were noted." The ALJ also noted that the frequency of Plaintiff's pseudoseizures varied, in that in February 2012, she reported experiencing them twice a week, but, in June 2012 and January 2013, she denied experiencing any pseudoseizures. Additionally, the ALJ considered that Plaintiff did not specify the frequency with which she had seizures, although she testified that, the night before the hearing she had a pseudoseizure which lasted for three hours. (Tr. 27-28, 59).
Indeed, the medical evidence reflects that, in April 2009, a neurologist reported that Plaintiff presented with a "longstanding history of prolonged episodes of poor energy associated with brief episodes of being limp and generalized weakness associated with pressure in the head, photophobia, [and] phonophobia." It was also reported that Plaintiff did not pass out in her most recent episodes; that Plaintiff had been monitored for her spells; and that the monitoring "did not show any abnormality during the recorded events." (Tr. 545-546).
Emergency room records from December 23, 2010, when Plaintiff presented with "drop attacks," state that, upon physical examination, Plaintiff had normal ROM, and "3/5 muscle [strength] in bilateral upper and lower extremities," and that Plaintiff had normal sensory, motor, speech, and coordination. No cardiovascular, respiratory, or gastrointestinal abnormalities were noted. (Tr. 415). The impression from Head Computed Tomograhy conducted on this date was that there were no acute intracranial findings. Plaintiff was also negative for "acute intracranial hemorrhage or focal mass effect. Ventricals [were] within normal limits," and within the visualized paranasal sinuses no significant inflammatory changes [were] identified." (Tr. 416).
A January 4, 2011 Magnetic Resonance Imaging (MRI) of Plaintiff's brain, conducted due her history of microadenoma, showed a "subtle lesion within the left pituitary fossa" which was "not well visualized." The MRI report states that "this may [have] represent[ed] an improvement or reduction in the size of the lesion." There was also a "small right frontal subcortical signal abnormality," which had not changed. (Tr. 326). On January 11, 2011, when Plaintiff presented with nausea, a physical examination of Plaintiff's eyes, neck respiratory system, cardiovascular system and skin were normal. (Tr. 320). On April 8, 2011, it was reported that Plaintiff had no difficulty when standing from a sitting position without assistance from her arms; that she had no atrophy or edema in her extremities; that she had normal gait; and that her abdomen was soft and nontender. (Tr. 385-86). On June 1, 2011, when Plaintiff presented complaining of "muscle failure attacks," Plaintiff did not complain of nausea, vomiting, chest pain, or shortness of breath. (Tr. 380). On September 29, 2011, when emergency services were summoned to Plaintiff's home due to reports of her having grand-mal seizures, it was noted that Plaintiff had strong radial pulse; that she was responsive to painful stimuli; and that she had normal respirations. (Tr. 285). Review of Plaintiff's systems was negative, and, on examination, she had no focal weakness or focal sensory loss, and her appearance, eyes, neck, respiratory system, cardiovascular system, "GI/GU"system, musculoskeletal system, and neurological system were normal. (Tr. 289-90). On October 4, 2011, it was reported that Plaintiff was negative for myalgias, joint swelling, and a gait problem; and that she was negative for dizziness, tremors, and seizures. (Tr. 351-52). On October 13, 2011, Plaintiff was positive for back pain and muscle weakness in her extremities. On examination, Plaintiff had a normal gait with "no abnormality upon inspection of the spine," and her extremities appeared normal, with no edema or cyanosis. (Tr. 689). On December 1, 2011, when Plaintiff presented for a cough, upon physical examination, no abnormalities were reported in regard to Plaintiff's neck, and respiratory, vascular, musculoskeletal, and neurological systems. In particular, it was reported that Plaintiff had a normal gait with no abnormality upon inspection of the spine. (Tr. 684). The impression from a chest x-ray performed this same date was "no acute pulmonary disease" and "old granulomatous disease." (Tr. 694).
Notably, on March 2, 2012, when Plaintiff had a "mild seizure type episode," she did not lose control of her bowels or bladder. (Tr. 673). Also, on this date Plaintiff was negative for musculoskeletal symptoms, positive for tenderness in the spine, and her extremities appeared normal with no edema or cyanosis. (Tr. 675). On February 27, 2012, pursuant to a physical examination, no abnormalities were reported in Plaintiff's back/spine, musculoskeletal system, or her extremities. Specifically, Plaintiff had normal gait "with no abnormality upon inspection of the spine." (Tr. 679) (emphasis added).
Diagnostic testing of Plaintiff's cervical spine on May 16, 2012 showed a "slight straightening of lordosis, without subluxation"; that the marrow signal was within normal limits; that "soft tissues were unremarkable"; that, at C3-C4, there was "mild facet arthropathy and a posterior disc-osteophyte complex resulting in mild bilateral foraminal narrowing and mild central canal narrowing; that C4-C5 had "only mild uncovertebral and facet arthropathy bilaterally," "with minimal/mild narrowing of the central canal and foramina"; that C5-C6 had advanced left-sided uncovertebral arthropathy, with "moderate narrowing the canal, without causing frank cord compression"; that, also at C5-C6, there was left-sided "mild/moderate" foraminal narrowing and "mild facet arthropathy bilaterally, with only minimal/mild narrowing of the right foramen"; that C6-C7 had "a small central disc-osteophyte complex, without significant stenosis"; and that C7-T1 was "unremarkable." (Tr. 730, 822).
On June 11, 2012, when Plaintiff presented for her Cushing disease, Plaintiff denied respiratory, cardiovascular, and neurological problems, and said that "climbing stairs cause[d] [an] increase in pain in the neck and dizziness." It did "not feel that [her] legs [were] weak." In regard to Plaintiff's musculoskeletal system, upon examination, it was noted that she had "no difficulty when standing from [a] sitting position without assistance from [her] arms." Further, Plaintiff had no atrophy or edema in her extremities, and she had normal gait. Notably, Plaintiff's past medical history did not include pseudoseizures. (Tr. 815-18).
Further, August 21, 2012 diagnostic testing showed that Plaintiff had some abnormalities of the cervical spine, but that these abnormalities were mild. (Tr. 695). As considered by the ALJ, Plaintiff's doctors rarely observed that she had decreased range of motion (ROM) or tenderness. (Tr. 31). On November 27, 2012, upon physical examination, no back/spine irregularities were noted; Plaintiff's extremities were normal, with no edema or swelling; and she had a normal gait with no abnormality upon inspection of the spine. (Tr. 651).
On January 1, 2013, when Plaintiff's diabetes was assessed, she had no neuropathy with no foot ulcers. (Tr. 639). Also, on this date, Plaintiff was negative for chest pain, a gait disturbance, and for psychiatric symptoms; no spine abnormalities were observed; Plaintiff's extremities appeared normal, with no edema or cyanosis; and she had normal gait. (Tr. 639-41). The impression from a January 10, 2013 sonogram of Plaintiff's abdomen, which she had due to right upper quadrant abdominal pain, was "normal right upper quadrant sonogram." (Tr. 692).
On February 8, 2013, when Plaintiff was seen for iron deficiency anemia, Plaintiff reported having fatigue, weakness, fever, headaches, dizziness, fainting, and memory loss. (Tr. 835). Upon physical examination, Plaintiff's lungs were clear; her extremities had no clubbing, cyanosis, or edema; and she had no neurological deficits. (Tr. 835). On March 1, 2013, when Plaintiff presented to the hospital complaining of "right flank pain radiat[ing] into [the] right side of [her] abdomen," pursuant to a physical examination, it was reported that she had normal ROM in her neck and in her musculoskeletal system. No abnormalities were noted in regard to her cardiovascular, neurological, and pulmonary systems. (Tr. 731-36). On March 2, 2013, Plaintiff was negative for back pain and seizures, and she was positive for headaches. (Tr. 764). Also, on this date Plaintiff hand normal ROM in her neck and musculoskeletal system. (Tr. 767). On March 12, 2013, Plaintiff's musculoskeletal and neurological systems were negative; she was negative for headaches; and a diabetic foot examination revealed no polyneuropathy. (Tr. 599).
On April 18, 2013, pursuant to examination, no respiratory or cardiac abnormalities were reported, and Plaintiff had normal ROM in all extremities. (Tr. 580). On May 20, 2013, Plaintiff complained of fatigue, headaches, stiff joints, neck and back pain, and muscle weakness, and denied gait problems, dizziness, muscle weakness, and difficulty saying words. (Tr. 793). Plaintiff's doctor reported that she was healthy appearing, active and in no distress; that she had "normal 5/5 strength" in her extremities and mild joint tenderness, with no deformity or swelling; that she had normal gait; that her sensory examination was normal; and that Plaintiff had no abnormalities upon examination of her heart, abdomen, skin, throat, head, ears, and lungs. (Tr. 609, 794). On May 28, 2013, Plaintiff's doctor reported that her extremities were normal, with no cyanosis or edema; that Plaintiff moved all extremities equally; that Plaintiff had normal strength and tone; that she had full ROM; and that she had no joint tenderness, deformity, or swelling. (Tr. 629). On June 24, 2013, Plaintiff stated she had neck pain. Upon examination, her neck was supple, with full ROM. Also, Plaintiff had intact ROM, with no abnormalities, in her musculoskeletal system, and no clubbing cyanosis, or edema in her extremities. (Tr. 853). On July 9, 2013, when Plaintiff was seen for iron deficiency anemia, on examination, she had no cardiovascular or pulmonary irregularities; her abdomen was soft and non-tender; no irregularities were noted in her extremities; and she had no neurological deficits. (Tr. 835). Also, on this date, Plaintiff had normal muscle strength and tone abnormality; she had no difficulty when standing from a sitting position without assistance from her arms; and her gait was normal. (Tr. 829).
Third, the ALJ considered the objective medical evidence relevant to Plaintiff's alleged mental limitations, and concluded that it did not support Plaintiff's allegations regarding the extent of her symptoms and functional limitations. (Tr. 31)
A January 31, 2012 psychosocial assessment conducted by Michael Cundiff, Ph.D., states that Plaintiff was driven, hopeful, detail-oriented, determined, and caring. It was also reported that she was well-groomed, cooperative, and agitated; that she had normal speech; that her mood and affect were appropriate; that she had obsessions; that she was fully oriented; and that her judgment and insight were fair. (Tr. 562). On February 27, 2012, Plaintiff was positive for anxiety and had a depressed affect. (Tr. 677-79). On March 2, 2012, upon examination, Plaintiff was oriented and had normal insight, mood, affect and behavior; she had poor attention span and concentration; and she did not have suicidal ideation. (Tr. 675, 767). On June 11, 2012, upon examination, Plaintiff was oriented and in no distress, and had normal mood and affect. (Tr. 818). On November 27, 2012, Plaintiff was oriented with normal insight. (Tr. 651).
On January 18, 2013, Plaintiff was alert, followed commands, was oriented, and had normal insight. (Tr. 641). On March 1, 2013, when Plaintiff presented for abdominal pain, it was noted that Plaintiff was oriented to person, place, and time; she was alert; her speech, behavior, judgment, thought content, cognition, and memory were normal; and her mood appeared anxious. (Tr. 736). It was also reported that there were negative findings in regard to "psychiatric/behavioral" abnormalities. (Tr. 352). On March 2, 2013, Plaintiff was positive for "disturbed wake/sleep cycle." On physical examination, it was reported that she was alert and oriented, and had normal mood, affect, and behavior. (Tr. 764, 767). On March 12, 2013, Plaintiff's "Psychiatric/Behavioral" system was negative, and she was alert and oriented. (Tr. 599).
On May 20, 2013, Plaintiff reported having anxiety, behavior problems, "bipolar, depression and irritability." (Tr. 793). Plaintiff's doctor reported that she was alert and oriented; that she had appropriate affect and quality, quantity, and organization of sentences; that she had normal thought content; that her insight and judgment were age appropriate; that she was alert and cooperative; and that her affect was anxious and restless. (Tr. 609, 794). On May 28, 2013, it was reported that Plaintiff self-reported that her depressed mood occurred most of the day and nearly every day, and that Plaintiff also self-reported "diminished interest or pleasure in all, or almost all, activities on most days." (Tr. 631). Plaintiff's doctor reported on this date that Plaintiff's orientation was normal; that she was alert and oriented; that she had appropriate affect; that her behavior was restless; and that her insight and judgment were age appropriate. (Tr. 629). On June 24, 2013, Plaintiff's affect and mood were appropriate, and she was alert and oriented with no focal deficits. (Tr. 853). On July 9, 2013, Plaintiff's affect and mood were normal, and she was alert, oriented, and cooperative. (Tr. 829, 835).
Fourth, the ALJ considered Plaintiff's description of her daily activities. In this regard, Plaintiff testified that, on a good day, she would take a shower and help around the house, and that, if she was able, she would go to the grocery store with her daughter. (Tr. 54). Plaintiff also stated, in a Function Report — Adult, that she supervised her eleven-year old daughter when she got ready for school; that she took care of her dogs by giving them food and water; that she showered every other day; that she did not need special reminders to take care of her personal grooming or to take her medicine; that she shopped for necessities, clothes, and gifts in stores, on the telephone, and by mail; and that she could pay bills, handle a savings account, count change, and use a checkbook. (Tr. 201-210). Also, Plaintiff reported reading the Bible. (Tr. 589).
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.
Fifth, the court notes contradictions between Plaintiff's testimony and assertions regarding the severity of her limitations and her medical records, including what she actually told physicians. (Tr. 32).
Sixth, the court notes that, on January 18, 2013, it was reported that Plaintiff's diabetes was stable, and that her hyperlipidemia could be controlled with medication. (Tr. 639). When Plaintiff presented to her doctor, on May 28, 2013, due to a grand-mal seizure the previous night, she said that she had the seizure "due to mold exposure," and that after she took Benadryl it was better. (Tr. 628). Also, on March 12, 2013, it was noted that Plaintiff's blood pressure was "well controlled," and that, with medication, Plaintiff's abdominal pain improved from a "10" to a "4." (Tr. 600). On May 28, 2013, Plaintiff denied side effects from her medication. (Tr. 631). As considered by the ALJ, Plaintiff reported significant symptom improvement with an epidural steroid injection to the cervical spine. (Tr. 31). Indeed, on May 18, July 20, and October 11, 2012, Plaintiff "reported 100% relief of [her] pain secondary to the local anesthetic." (Tr. 712, 719, 726). In June 2012, it was reported that Plaintiff said she had pain relief, "mostly from a steroid shot in her back," and that it was the first time she had "been pain free in nine years except when taking Vi[c]odin." (Tr. 588).
Seventh, as considered by the ALJ, Plaintiff's treatment was generally conservative, and she did not pursue pain management after October 2012. (Tr. 31-33). Conservative treatment and no surgery are consistent with discrediting a claimant's allegation of disabling pain.
In regard to Plaintiff's alleged disabling mental health conditions, the ALJ considered that she did not seek treatment with a psychiatrist despite her receiving a psychiatry referral (Tr. 29, 32, 429), and that her mental health treatment included only counseling for four months in 2012 and two sessions in 2013 (Tr. 32, 558-63, 585-96).
Eighth, Plaintiff's doctors frequently advised her to cease smoking but she continued to do so. (Tr. 32, 385, 630, 639, 649, 653, 687). Notably, on January 18, 2013, when her doctor recommended that she stop smoking, Plaintiff said that she was not interested in stopping. (Tr. 639). It was also reported, in January 2013, that Plaintiff's compliance with dietary and exercise recommendations was fair. (Tr. 639).
Ninth, as previously addressed, the ALJ considered that Plaintiff's reports of mental problems "occurred in the context of numerous life stressors." (Tr. 33, 558-58).
Tenth, in regard to Plaintiff's allegations regarding the severity of her pseudoseizures, the ALJ considered inconsistencies in Plaintiff's medical records. Specifically, the ALJ noted that, although Plaintiff claimed she was aware of what was happening and could not respond or interact, in December 2010, when Plaintiff reported that she was having a pseudoseizure, Plaintiff's doctor reported that during the one-minute episodes of "drop attacks" while in the hospital, Plaintiff had "normal VS, no movements, no incontinence and had no respiratory problems or cyanosis." "During one episode the nurse placed the IV which prompted [Plaintiff] to pull her arm away." Also, when the doctor entered the room to examine Plaintiff while she was having a pseudoseizure, Plaintiff had her legs crossed. When the doctor asked Plaintiff to uncross her legs, "she did so and had normal strength of left leg but when asked to lift the right leg she was unable to do so." When the doctor asked Plaintiff how she could cross and uncross her legs but not lift her left leg, Plaintiff "then closed her eyes and stopped responding again." (Tr. 27, 413).
As also considered by the ALJ, when Plaintiff presented complaining of a pseudoseizure in June 2011, the doctor noted that that the doctor was "unable to get a reliable exam on [Plaintiff] based on her uncooperativeness. [Plaintiff] [would] alternatively answer questions clearly without any slurred speech and look directly in [the doctor's] eyes, and then just close her eyes and not respond to requests." The doctor also reported that Plaintiff showed voluntary motor control, "but then let[] her hands fall into her lap, gently controlled," when the doctor pulled up Plaintiff's right hand. The doctor noted that Plaintiff "fairly quickly, within 30 minutes seemed to have recovered from her weakness, [] left the wheelchair and the room and walked to the front of the building to go to the bathroom." (Tr. 380).
Eleventh, to the extent Plaintiff argues that the ALJ gave insufficient consideration to a Function Report — Adult — Third Party, completed by Plaintiff's daughter, Melanie Camden (Doc. 12 at 20-21), the ALJ noted that Ms. Camden's assertions were nearly identical to Plaintiff's. The ALJ discounted Ms. Camden's assertions regarding the severity of Plaintiff's limitations for the same reasons that he found Plaintiff's assertions not credible. (Tr. 33, 220-27). An ALJ may discount corroborating testimony from third parties on the same basis used to discredit a claimant's testimony.
The court finds, to the extent Plaintiff argues to the contrary, that the ALJ's determination that Plaintiff was not fully credible is based on substantial evidence and is consistent with the Regulations and case law.
Plaintiff contends that the ALJ did not properly determine her RFC. (Doc. 12 at 7-20). The ALJ found that Plaintiff could perform medium work, as she could stand, walk, and sit for 4 hours continuously and 8 hours total in an 8-hour workday. (Tr. 22).
The Regulations define RFC as "what [the claimant] can do" despite his or her "physical or mental limitations." 20 C.F.R. § 404.1545(a). "When determining whether a claimant can engage in substantial employment, an ALJ must consider the combination of the claimant's mental and physical impairments."
To determine a claimant's RFC, the ALJ must move, analytically, from ascertaining the true extent of the claimant's impairments to determining the kind of work the claimant can still do despite his or her impairments.
First, to the extent Plaintiff suggests that her RFC was a medical question and that it should have been determined or confirmed by a medical source (Doc. 12 at 8), Plaintiff is mistaken. As stated above, it is the ALJ's role to evaluate the record in its entirety, including medical opinions and testimony, and formulate a claimant's RFC based on all the relevant, credible evidence of record.
Consistent with the Regulations and case law, upon making his RFC assessment, the ALJ identified Plaintiff's functional limitations and restrictions, and then assessed her work-related abilities on a function-by-function basis.
To the extent Plaintiff argues that the ALJ failed to include symptoms related to her anxiety, PTSD, and seizures in the RFC which the ALJ assigned to her (Doc. 12 at 11-12), the ALJ was only required to include Plaintiff's credible limitations in her RFC.
The ALJ's RFC determination is consistent with the opinion of Marsha Toll, Ph.D., a State agency psychological consultant. After reviewing the record, Dr. Toll concluded that Plaintiff was able to perform unskilled work, although she had moderate limitations in sustaining concentration and persistence. (Tr. 564-77). The ALJ gave significant weight to Dr. Toll's opinion because it was "based upon a thorough review of the available medical evidence, and [was] consistent with and supported by the overall medical evidence of record." (Tr. 30). Indeed, as a State agency medical consultant, Dr. Toll is a highly qualified expert in Social Security disability evaluations. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i) (State agency medical consultants are highly qualified experts in Social Security disability evaluation; therefore, ALJs must consider their findings as opinion evidence);
Also, the ALJ considered the opinion of Dr. Winkler, an impartial medical expert. The ALJ gave significant weight to Dr. Winkler's opinion that, as of October 14, 2013, Plaintiff could frequently lift and carry up to 20 pounds and occasionally carry up to 50 pounds; that Plaintiff could sit for 4 hours at a time, for 8 hours total in an 8-hour workday; that Plaintiff could stand for 4 hours at a time, for eight hours total in an eight-hour workday; that Plaintiff could walk for 4 hours at a time, for 8 hours total in an eight-hour workday; that Plaintiff had no manipulative limitations; that she could continuously use her bilateral lower extremities for operation of foot controls; that she could frequently balance, stoop, kneel, crouch, and crawl; that Plaintiff was limited to frequent exposure to extreme cold, moving mechanical parts, and operation of a motor vehicle; and that Plaintiff could not tolerate any exposure to unprotected heights. (Tr. 885-90).
Upon determining that significant weight should be given to Dr. Winkler's opinion regarding Plaintiff's ability to perform work-related activities as of October 2013, the ALJ considered that Dr. Winkler is a rheumatologist, and, therefore, had "specialized knowledge and experience upon which to draw in evaluating the limiting effects of [Plaintiff's] fibromyalgia." (Tr. 23).
The ALJ also considered that Dr. Winkler's opinion regarding Plaintiff's functional limitations as of October 2013 was "particularly probative" as it was based on a "thorough and longitudinal perspective" of Plaintiff's impairments and limitations during the alleged period of disability,
The ALJ also gave less weight to Dr. Winkler's opinion that as of May 1, 2013, Plaintiff was limited to lifting and carrying 10 pounds frequently and 20 pounds occasionally, although her other limitations were the same as they were as of October 2013, except that from April 1, 2009, Plaintiff was limited to frequent, rather than being able to continuously, reach handle, finger, feel, and push/pull. (Tr. 887). Upon giving less weight to this aspect of Dr. Winkler's opinion, the ALJ reasoned that the medical evidence did not support Dr. Winkler's conclusions. In particular, the ALJ noted that the medical record contained "very little objective medical evidence showing a significant change in [Plaintiff's] conditions on or around May 1, 2003. (Tr. 24).
To the extent Plaintiff argues that the ALJ drew upon his own inferences upon his rejecting part of Dr. Winkler's opinion (Doc. 12 at 9), the court notes that it was the ALJ's role to review the record as a whole and determine how much weight should be given to medical opinions.
Most significantly, even if the ALJ had included the more restrictive lifting, crawling, and reaching limitations which Dr. Winkler imposed on Plaintiff as of May 2013, two of the three jobs which the ALJ ultimately found Plaintiff could perform were consistent with these more restrictive limitations.
To the extent Plaintiff argues that the ALJ improperly went to "great lengths in stating that there was no medical opinion evidence from the treating physicians" to establish that Plaintiff was disabled (Doc. 12 at 9), it is Plaintiff's burden to prove she was disabled.
Finally, to the extent Plaintiff suggests that the ALJ's RFC determination is not based on substantial evidence merely because a contrary conclusion can be drawn from the evidence, the standard of review is whether substantial evidence supports the ALJ's findings, not whether substantial evidence supports contrary findings.
The ALJ posed a hypothetical to a VE which described a person of Plaintiff's age, and with her education, work experience, and RFC. (Tr. 260). The VE responded that Plaintiff could perform her past relevant work.
Plaintiff contends that the ALJ posed an improper hypothetical to the VE, and that the hypothetical should have included limitations beyond those described in the RFC which the ALJ assigned to Plaintiff. (Doc. 12 at 20-21).
An ALJ posing a hypothetical to a VE, however, is only required to include a claimant's credible limitations.
The court has found that the ALJ's RFC determination is based on substantial evidence. As such, the court further finds that the hypothetical which the ALJ submitted to the VE was proper,
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,
A separate judgment shall be entered incorporating this Memorandum and Order.