JOSEPH A. DiCLERICO, JR., District Judge.
Katherine Minahan seeks judicial review, pursuant to 42 U.S.C. § 405(g), of the Commissioner's decision that denied her application for disability insurance benefits under Title II. In support, she contends that the Administrative Law Judge ("ALJ") erred in assessing her residual functional capacity and made other errors in finding that she was not disabled. The Commissioner moves to affirm.
In reviewing the final decision of the Acting Commissioner in a social security case, the court "is limited to determining whether the ALJ deployed the proper legal standards and found facts upon the proper quantum of evidence."
Under the Local Rules in this district, the plaintiff is required to file a statement of material facts to accompany her memorandum of law in support of her motion to reverse the decision of the Commissioner. LR 9.1(c). In response, the Commissioner files a motion to affirm the decision, accompanied by a supporting memorandum of law, and may file a statement of facts but "
The Commissioner filed a five-page statement of facts in support of his memorandum to affirm. Some of the facts merely repeat facts stated by Minahan, which violates LR 9.1(d). In addition, the Commissioner states in his memorandum: "the Commissioner incorporates by reference the facts set forth in the ALJ's decision (Tr. 17-27)." Doc. 8-1, at *2. Local Rule 9.1 does not provide for incorporating facts by reference. Further, the Commissioner may only provide facts that were omitted by Minahan, which precludes a general incorporation of facts by reference. Therefore, the court will not consider the ALJ's decision as part of the Commissioner's factual statement. Counsel is cautioned about using this approach in the future.
Katherine Minahan has a high school education and a year of college. She worked as a credit manager with Datawatch Corporation until September of 2014. She then worked on a part time basis as a massage therapist for Ataraxia, LLC. She was sixty-three years old when she left Datawatch.
Minahan was diagnosed with breast cancer in August of 2015. As a result, she had a left partial mastectomy, or a lumpectomy, in September of 2015. She then had radiation therapy for six weeks, which caused side effects of fatigue, nausea and vomiting, and loss of appetite.
In December of 2015, Minahan applied for social security benefits. As part of her application process, she met with Benjamin Garber, Ph.D., for a psychological examination. Dr. Garber found that Minhan had had major depression in reaction to her medical issues but that condition was remitted. Dr. Garber found that Minahan could manage activities of daily living and social functioning and had the ability to understand and remember short and simple instructions, to concentrate and complete tasks, and to tolerate stress. Dr. Garber recommended psychotherapy and outpatient psychopharmacological management. Minahan has addressed her mental health issues with alternative methods such as yoga and medication.
Minahan was screened for colon cancer and then underwent procedures to remove a polyp found in her colon. She has been diagnosed with osteoporosis and osteoarthritis.
Because of asymmetry in her breast size caused by the lumpectomy, Minahan states that she experienced pain in her back and her shoulder from the asymmetry. The Commissioner notes Minhan's hearing testimony where she stated that she chose to have reconstructive surgery because she had problems buying clothes due to the asymmetry and because she thought she might have problems with her shoulders in the future. She elected to have reconstructive surgery to correct breast asymmetry in November of 2017. The recuperation post surgery included pain and limitation of movement in her shoulder.
Minahan continued to work part time as a massage therapist after her first breast surgery and again after reconstructive surgery. Her last insured date was June 30, 2017.
A hearing was held on June 14, 2018, on Minahan's application for benefits when Minhan testified, and a vocational expert also testified. A second hearing was held before an ALJ on October 9, 2018, which included testimony from a medical expert. Minahan testified at the hearing and was represented by counsel. Dr. Joseph Gaeta testified as a medical expert, and Susan Gaudette testified as the vocational expert. The ALJ issued a decision on October 31, 2018, finding that Minahan was not disabled from her alleged onset date of September 14, 2015, through her last insured date of June 30, 2017. The Appeals Council denied Minahan's request for review, making the ALJ's decision the final decision of the Commissioner.
Minahan moves to reverse the decision of the Commissioner, arguing that the ALJ erred in relying on the medical expert and in assessing her residual functional capacity. Minahan also contends that the ALJ erred in failing to consider a closed period of disability. The Commissioner moves to affirm, asserting that substantial evidence supports the decision.
In determining whether a claimant is disabled for purposes of social security benefits, the ALJ follows a five-step sequential analysis. 20 C.F.R. § 416.920. The claimant bears the burden through the first four steps of proving that her impairments preclude her from working.
Residual functional capacity is what the claimant "can still do despite his or her limitations." Social Security Ruling 96-8p, 1996 WL 374184, at *2 (July 2, 1996). A residual functional capacity assessment is a determination of the claimant's "ability to meet the physical, mental, sensory, and other requirements of work." 20 C.F.R. § 404.1545(a)(4). In assessing a claimant's residual functional capacity, an ALJ considers "only limitations and restrictions attributable to medically determinable impairments" and cannot consider the claimant's age, size, physique, or weight unless those factors are related to a medically determinable impairment. SSR 96-8p, at *2. The claimant is responsible for providing the evidence that the ALJ uses to make the residual functional capacity assessment. § 404.1545(a)(3).
In this case, the ALJ found that Minahan has the residual functional capacity "to perform a full range of work at all exertional levels" except that she "can never reach overhead with her right arm." AR, p. 22. That finding was based on the opinion of the medical expert, Dr. Gaeta, who found that Minahan had no limitations except that she was unable to reach overhead with her right arm, which the ALJ found was supported by Minahan's records.
The ALJ noted that after her first surgery in September of 2015, Minahan completed radiation treatment and made a good recovery. Minahan was able to exercise, drive, shop, and do housework. Her medical care providers reported that she appeared to be well and that she said she was feeling well.
Minahan challenges the residual functional capacity assessment on the grounds that she could not work at all exertional levels immediately after her breast surgery and that other concerns related to her breast cancer impaired her ability to work. She also contends that the ALJ should have limited her to sedentary work, that he failed to include a limitation for being repeatedly off task and absent, that he failed to consider the impairments caused by breast asymmetry and reduction surgery, that he failed to properly consider her testimony about the intensity and persistence of pain, and that he erred in relying on the medical expert's opinion that lymphedema was not an issue. The Commissioner points to evidence in the record that supports the ALJ's decision.
"Medical opinions are statements from acceptable medical sources that reflect judgments about the nature and severity of [the claimant's] impairment(s), including [the claimant's] symptoms, diagnosis and prognosis, what [the claimant] can still do despite impairment(s), and [the claimant's] physical or mental restrictions." 20 C.F.R. § 404.1527(a)(1).
During the hearing, Minahan's counsel asked Dr. Gaeta about Minahan's post-surgery care and specifically about her own responsibility to prevent lymphedema. Dr. Gaeta testified that lymphedema did not usually occur with Minahan's procedure and that she did not have a diagnosis of lymphedema. He described what he thought would be the appropriate treatment for someone with lymphedema but said that Minahan would not have had to do anything to treat lymphedema because she did not have it and did not need to do anything to prevent it. Minahan's counsel persisted in asking about post-surgical care, and Dr. Gaeta explained that the questions were beyond his area of expertise.
Minahan faults the ALJ for coming "to a conclusion on an important medical issue in rel[ia]nce upon the testimony of a medical expert, when the medical expert testifi[ed] that he was not an expert on that issue." Doc. 6-1, at *8. Minahan states:
Although far from clear, Minahan appears to interpret the ALJ's decision to find that she could have worked full time immediately following breast surgery in September of 2015 when she was recovering and receiving treatment.
Minahan is mistaken. The ALJ did not make a finding that she could work full time immediately after her surgery. Instead, he found that the record evidence did not show that she was disabled by impairments for a continuous period of twelve months. Therefore, Minahan's challenge is based on a misunderstanding of the decision.
In addition, based on Minahan's testimony, the treatment she used to prevent lymphedema was her own creation, based on her experience as a massage therapist. She did not testify that the treatment was prescribed by her physicians and did not cite medical records to show that the treatment was prescribed.
Further, Dr. Gaeta did not say he lacked expertise in understanding lymphedema. He said post-surgical care was not his area of expertise. Because Minahan lacks any evidence that she had lymphedema or that her physicians prescribed the treatments she used to prevent lymphedema, Dr. Gaeta's opinion is unchallenged, and the ALJ properly relied on it. Minahan's argument lacks merit.
In assessing residual functional capacity, an ALJ must consider a claimant's statements about her symptoms and pain in addition to the objective medical evidence and other evidence in the record.
The ALJ in this case found that Minahan had "chronic right shoulder dysfunction, secondary to breast cancer treatment." AR, p. 18. That finding was based on Dr. Gaeta's testimony. The ALJ found that other impairments were not severe based on Minahan's testimony, the reports of her medical care providers in the record, Dr. Gaeta's testimony, and objective medical evidence. He also found that depression was not a severe impairment based on Dr. Garber's examination and functional report.
Minahan contends that the ALJ failed to look at her impairments in combination and, in particular, failed to consider the effects of her demanding self-care regimen on her ability to work.
Minahan also faults the ALJ for failing to find a severe impairment due to depression, relying on her own reports of self care for depression. She states: "[T]here is no question that Ms. Minahan has suffered from major depression." In support, she cites page 384 of the Administrative Record which is a page in Dr. Garber's report that says nothing about depression. Later in the report, on page 386, Dr. Garber noted that Minahan had had major depression in reaction to her medical status but that her depression was in remission. Dr. Garber found no limitations in Minahan's functional capacity based on depression or on any other mental impairment. Dr. Craig Stenslie, a state agency consultant psychologist, also found no significant functional impairments caused by depression. Therefore, the ALJ's finding that depression was not a severe impairment is supported by substantial evidence in the record.
Minahan argues that the ALJ should have limited her to sedentary work which would have resulted in a finding that she was disabled under the Medical-Vocational Guidelines. In support, Minahan contends that she could only do sedentary work because that was the nature of the work she had done previously and because it was necessary to prevent lymphedema. She cites no medical evidence or opinion that shows she was limited to sedentary work. Minahan, therefore, has not shown the ALJ erred in failing to impose that limitation.
The vocational expert testified that all of the jobs she had cited would be eliminated if the worker would be off task for fifteen percent of the day because of fatigue or if the worker could not complete an eight-hour work day. She also testified that an average of two absences per month would eliminate the jobs she had listed. Minahan argues that the ALJ erred in finding her not disabled in light of that testimony. In support, Minahan states: "Even a cursory review of the voluminous medical record would suggest that [she] would be off pace due to fatigue and miss significant time out of work due to medical care." Doc. 6-1, at *4.
As explained by the ALJ, the medical record actually shows that after her initial surgery and treatment, Minahan recovered well. Minahan provides no evidence that she would likely have been off task or would have required frequent absences after that time. Therefore, Minahan has not shown an error based on the vocational expert's testimony.
Minahan contends that the ALJ erred in concluding that evidence of her second breast surgery, to correct asymmetry, was not relevant because it occurred after her last insured date. She argues that the ALJ should have considered the disabling effects of pain that she experienced because of asymmetry before her last insured date. The testimony she cites, however, does not support her claim.
In her cited testimony, Minahan describes difficulty finding clothing. She also testified that she had reconstructive surgery because of a possibility that her "shoulder alignment was off and I got down the line [sic] I might have some problems so it was the best avenue to go because I was doing stretches to align myself all the time because of the weight and the way I carried myself so I decided to do that to ward off any possible shoulder issues down the line." AR, pp. 49-50. She testified later that she had had "[s]ome discomfort" when she worked. None of the cited testimony suggests disabling pain.
Substantial evidence in the record supports the ALJ's residual functional capacity assessment.
Minahan argues that the ALJ erred in not finding her disabled during a closed period. A closed period of disability occurs when a claimant is found to be disabled and then, on review, the Commissioner determines that the claimant has improved so that she is no longer disabled. 20 C.F.R. § 404.1594;
Minahan has not shown that she applied for a closed period of disability and does not identify what twelve-month period she believes would qualify as a closed period of disability. She cites no authority that an ALJ is required to consider and find a closed period of disability
Therefore, the ALJ did not err in failing to find an unspecified closed period of disability.
For the foregoing reasons, the claimant's motion to reverse (document no. 6) is denied. The Commissioner's motion to affirm (document no. 8) is granted. The Commissioner's decision is affirmed.
The clerk of court shall enter judgment accordingly and close the case.
SO ORDERED.
