NANCY A. VECCHIARELLI, Magistrate Judge.
Plaintiff, Juanita Delgado ("Plaintiff"), challenges the final decision of Defendant, Michael J. Astrue, Commissioner of Social Security ("the Commissioner"), denying Plaintiff's applications for a Period of Disability ("POD") and Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act,
On August 3, 2005, Plaintiff protectively filed applications for POD, DIB, and SSI and alleged a disability onset date of February 9, 2005. (Tr. 15.) The applications were denied initially and upon reconsideration, so Plaintiff requested a hearing before an administrative law judge ("ALJ"). (Tr. 15.) On December 4, 2008, an ALJ held Plaintiff's hearing. (Tr. 15.) Plaintiff appeared, was represented by counsel, and testified. (Tr. 15.) A vocational expert ("VE") and a medical expert ("ME") also appeared and testified, and a Spanish language translator appeared and translated portions of the hearing between English and Spanish. (Tr. 15.) On November 4, 2009, the ALJ found Plaintiff not disabled. (Tr. 34.) On December 20, 2010, the Appeals Council declined to review the ALJ's decision, so the ALJ's decision became the Commissioner's final decision. (Tr. 2.) On February 15, 2011, Plaintiff timely filed her complaint to challenge the Commissioner's final decision. (Doc. No. 1.)
On June 30, 2011, Plaintiff filed her Brief on the Merits. (Doc. No. 19.) On August 15, 2011, the Commissioner filed his Brief on the Merits. (Doc. No. 20.) On September 7, 2011, Plaintiff filed her Reply Brief. (Doc. No. 22.)
Plaintiff asserts five assignments of error: (1) the ALJ's analysis of the medical evidence is confusing; (2) the ALJ improperly assessed Plaintiff's functional limitations based on his personal opinion rather than the medical evidence and the opinions of physicians; (3) the ALJ improperly assessed Plaintiff's credibility; (4) the ALJ failed to account for all of Plaintiff's limitations in his residual functional capacity ("RFC") determination; and (5) the Commissioner failed to meet his burden of showing that Plaintiff could perform a significant number of jobs in the national economy.
From February 9, 2005, the alleged disability onset date, to March 28, 2008, Plaintiff qualified as a "younger individual age 18-44." (Tr. 30.) From March 29, 2008, through the date of the ALJ's decision, Plaintiff qualified as a "younger individual age 45-49." (Tr. 30.) She has a high school education and is able to communicate in English. (Tr. 30.) Her education did not provide for direct entry into skilled work. (Tr. 30.) She has past relevant work experience as a hand assembler; a person adding stickers to envelopes; sales attendant handling returns of merchandise; sewing machine operator for lampshades; assembler of aircraft plastics; cleaner; polisher and buffer; and glove repairer in the dry-cleaning industry. (Tr. 28-29.)
On or around February 8, 2005, Plaintiff fractured her right ankle. (Tr. 110, 112, 423.) On February 17, 2005, Plaintiff underwent surgery on her right ankle, whereupon her ankle was reinforced with a plate, screws, and a wire to correct the fracture. (Tr. 360-62.) X-rays authenticated by Dr. Harvey J. West, M.D., revealed that, by April 6, 2005, the fracture was healing without complications. (Tr. 417.)
On April 7, 2005, Plaintiff presented to the Med Care Clinic with a complaint of left ankle pain and swelling after twisting the ankle the night before. (Tr. 368, 415.) Attending physician Charles L. Emerman, M.D., indicated that Plaintiff had no other complaints. (Tr. 368.) An x-ray authenticated by Dr. Alexander J. Kondow, M.D., revealed a "[s]mall avulsion fracture of the distal left fibula with soft tissue swelling." (Tr. 415.)
On April 11, 2005, Plaintiff presented to Dr. Laurie McCreery, M.D., and Dr. William S. Barnes, D.M.D., with complains of neck, shoulder, and back pain. (Tr. 363-64.) Dr. Barnes reported the following. Plaintiff presented in a wheel chair; explained her ankle injuries; and reported that she had suffered generalized neck and back pain and pain in her left shoulder that extended into her upper left arm that began when she injured her right ankle in February 2005. (Tr. 363.) Dr. Barnes suspected that Plaintiff's shoulder pain was caused by Plaintiff's crutches and recommended that Plaintiff receive training on their proper use. (Tr. 364.) Dr. Barnes also set up a follow-up appointment for Plaintiff with the orthopedic department. (Tr. 364.)
On May 4, 2005, Plaintiff presented to Ms. Surekah Shah for physical therapy. (Tr. 377-82.) Ms. Shah indicated that Plaintiff reported the following. (Tr. 377.) Plaintiff injured her right ankle in February 2005 when she fell off her porch, and she injured her left ankle in April 2005 when she fell while getting out of a wheel chair. (Tr. 378.) Plaintiff underwent surgery on her right ankle on February 17, 2005. (Tr. 378.) A cast was applied to her right ankle until the end of April when Plaintiff was given an air cast and was cleared to put full weight on it. (Tr. 378.) Plaintiff also was given an air cast for her left ankle, but her physicians discontinued the left ankle air cast by the end of April. (Tr. 378.) Plaintiff continued to use two crutches because she was afraid she would fall again. (Tr. 378.) She "scooted" up and down the three steps that lead into her apartment, rather than ambulated, because she was afraid of falling again. (Tr. 378-79.) She did not go up or down the nine steps leading to her basement. (Tr. 378.) The pain in Plaintiff's right ankle was rated at 5 out of 10 in severity, and the pain in her left ankle was rated at 3 out of 10 in severity. (Tr. 378.) The pain was "stabbing," increased with weight bearing, and decreased with rest, elevation, and application of cold packs. (Tr. 378.)
On May 6, 2005, Plaintiff presented to Ms. Shah for physical therapy. (Tr. 375-77.) Ms. Shah reported that Plaintiff tolerated therapy well and indicated that, after therapy, Plaintiff reported that the pain in her left ankle resolved and the pain in her right ankle reduced to 4 out of 10 in severity. (Tr. 376.)
On May 19, 2005, Plaintiff presented to the emergency room with a complaint of pain in her right knee that radiated throughout her upper and lower leg, which began during a physical therapy session that day. (Tr. 393, 412.) An x-ray of Plaintiff's right knee authenticated by Dr. Avram E. Pearlstein, M.D., revealed "no identifiable fracture, dislocation, arthritic change or lytic or blastic lesion." (Tr. 411.)
On May 25, 2005, Plaintiff presented to Dr. Lynn Jedlicka, M.D., for a follow-up. (Tr. 398.) Dr. Jedlicka reported the following. Plaintiff had been using crutches and an air cast to assist with walking until her physical therapy session on May 19, 2005. (Tr. 398.) Plaintiff's right knee pain that began during that physical therapy session resolved completely after Plaintiff took Tylenol #3 and ibuprofen. (Tr. 398.) Plaintiff continued to complain of left ankle pain that worsened with walking. (Tr. 398.) Plaintiff rated her left ankle pain at 5 out of 10 in severity, although ibuprofen 600 helped the pain. (Tr. 398.) Dr. Jedlicka recommended that Plaintiff refrain from physical therapy until she obtained clearance from the orthopedic department; use a "walking boot"; bear weight as tolerated with crutches; and continue to take ibuprofen as prescribed. (Tr. 398.)
Also on May 25, 2005, x-rays authenticated by Dr. West revealed that Plaintiff's right ankle was healing without complications and Plaintiff's right foot was normal. (Tr. 409.)
On June 21, 2005, Plaintiff presented to the emergency room with complaints of J an onset and worsening of pain in her right hip and low back. (Tr. 39y.) X-rays of Plaintiff's lumbar spine authenticated by Dr. Zahid R. Shah, M.D., revealed the following. (See Tr. 408.) There was only "very mild end-plate spurring through [Plaintiff's] lumbar spine[; a]lignment of the vertebral bodies remain[ed] intact without evidence of fracture or subluxation[; t]he vertebral heights and disc spaces [were] maintained[; and f]acent sclerosis [was] seen at L4-5 and L5-S1." (Tr. 408.) X-rays of Plaintiff's pelvis also authenticated by Dr. Shah revealed "[n]o identifiable abnormalities." (Tr. 408.) Plaintiff was discharged in an improved condition. (Tr. 403.)
On June 29, 2005, Plaintiff presented to Dr. John K. Sontich, M.D., for a follow-up on her ankles. (Tr. 406.) Dr. Sontich reported that x-rays evidenced boney healing of Plaintiff's right ankle fracture, but that Plaintiff continued to complain of pain upon weight bearing within her range of motion, grinding, and swelling. (Tr. 406.) Dr. Sontich was concerned that Plaintiff's pain was "hardware related," and recommended that Plaintiff continue to wear a "walking boot" and follow up with her primary surgeon, Dr. Patterson. (Tr. 406.)
On March 2, 2006, Plaintiff presented to Dr. J. Benjamin Smucker, M.D., to establish a treatment relationship at the orthopedic department regarding her right ankle, neck, and left shoulder pain. (Tr. 307.) Dr. Smucker indicated that Plaintiff reported that her neck pain predominantly was left paraspinal and along the left trapezius. (Tr. 307.) Dr. Smucker further reported the following. Plaintiff continued to wear an air cast walking boot. (Tr. 307.) An x-ray of Plaintiff's right ankle showed that Plaintiff's right ankle was well healed with intact hardware; an x-ray of Plaintiff's left shoulder was unremarkable; and an x-ray of Plaintiff's spine showed "straightening of normal lordosis and [degenerative disc disease] with anterior osteophytes [and] normal alignment." (Tr. 307.) Dr. Smucker recommended that Plaintiff undergo physical therapy for her left shoulder; resume physical therapy for her right ankle; wean off of using the air cast walking boot; and follow up with the spine clinic if her neck pain continued or worsened. (Tr. 307.) Dr. Smucker noted that, if physical therapy did not help Plaintiff's right ankle pain, Plaintiff could consider whether to have the hardware in her right ankle removed. (Tr. 307.)
On April 3, 2006, Plaintiff presented to Dr. Alexander C. Garber, M.D., at the orthopedic department with a complaint of pain in her right ankle. (Tr. 309.) Dr. Garber indicated that Plaintiff reported her pain at 5 out of 10 in severity. (Tr. 309.) Dr. Garber reported that he discussed the possibility of removing the hardware from Plaintiff's right ankle, and that Plaintiff indicated she preferred conservative treatment. (Tr. 309.)
On May 1, 2005, Plaintiff presented to Dr. Smucker with complaints of right ankle pain. (Tr. 310.) Registered nurse Kaye Sampson Collins noted on Plaintiff's chart that Plaintiff ambulated with a cane, limped, and had been non-compliant with physical therapy because, as Plaintiff reported, the physical therapy was too painful. (Tr. 310.) Dr. Smucker noted that Plaintiff rated her pain at 6 out of 10 in severity and was considering removal of the hardware in her right ankle. (Tr. 310.)
On November 3, 2006, Plaintiff presented to the hospital with complaints of facial pain, frontal headaches, congestion, and upper back and neck pain. (Tr. 311.) Certified nurse practitioner Mirna Carias noted that Plaintiff rated her pain at 8 out of 10 in severity, and Ms. Carias diagnosed Plaintiff with acute sinitus, and myalgias and myositis not otherwise specified. (Tr. 312.) Ms. Carias gave Plaintiff Nasonex nasal spray, ibuprofen, and flexeril, and recommended that Plaintiff drink fluids. (Tr. 311-12.)
On November 13, 2006, Plaintiff presented to Dr. Mahidhar M. Durbhakula, M.D., with continued complaints of right ankle pain. (Tr. 313.) Dr. Durbhakula diagnosed Plaintiff with a closed bimalleolar fracture of the ankle and Achilles tendinitis; opined that most of Plaintiff's symptoms appeared to be caused by the tendinitis; and deferred an evaluation for any need to remove the hardware in Plaintiff's right ankle until after the tendinitis resolved. (Tr. 313.)
Also on December 11, 2006, Plaintiff presented to Ms. Andrea Lamastra for physical therapy. (Tr. 314.) Ms. Lamastra indicated that Plaintiff reported she had gone on a walk with her daughter without need of a cane, and that she had no pain. (Tr. 314.) Ms. Lamastra noted that Plaintiff was "much improved with ambulation [and n]o longer using [a] cane [for] community distances," but "[c]ontinue[d] to be limited by decreased balance right." (Tr. 314.) On December 18, 2006, Ms. Lamastra indicated that Plaintiff reported no pain and that Plaintiff had no complaints. (Tr. 316.)
On January 15, 2007, Plaintiff presented to Dr. John M. Ryan, M.D., in the orthopaedics department with complaints of "increased sensitivity" in her right ankle. (Tr. 318.) Dr. Ryan indicated that Plaintiff was able to ambulate without pain, and that Plaintiff was not interested in surgery to remove the hardware in her right ankle at that time. (Tr. 318.) Dr. Ryan recommended that Plaintiff take NSAIDs, continue her home exercises as taught in physical therapy, and follow up in three months. (Tr. 318.)
On May 3, 2007, state agency reviewing medical consultant Elizabeth Das, M.D., performed a physical RFC assessment of Plaintiff, as follows. (Tr. 285-92.) Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently; and sit, stand, and walk for about 6 hours in an 8-hour workday with normal breaks. (Tr. 287.) Her abilities to push and pull were limited in her lower extremities because of a right ankle fracture from February 2005 that continued to cause her pain. (Tr. 287.) Plaintiff could occasionally climb ramps, stairs, ladders, ropes, and scaffolds. (Tr. 288.) She had no manipulative, visual, communicative, or environmental limitations. (Tr. 289-90.) Dr. Das noted that there were no treating or examining source statements in Plaintiff's records regarding Plaintiff's physical capacities. (Tr. 292.) Dr. Das concluded that Plaintiff could perform light work, which accounted for Plaintiff's right ankle pain that persisted for over twelve months. (Tr. 285.)
On September 10, 2007, Plaintiff presented to the orthopaedics department with complaints of ankle pain after falling four weeks prior, as well as left-sided neck pain that she had been suffering for approximately one month. (Tr. 273.) Dr. James H. Walsh, D.O., attended to Plaintiff and indicated that Plaintiff denied numbness, tingling, and perceived weakness. (Tr. 273.) Dr. Walsh diagnosed Plaintiff with a right ankle sprain and neck pain of muscular origin; gave Plaintiff Motrin; and instructed Plaintiff to follow up with her primary care physician. (Tr. 274.)
On December 11, 2007, Plaintiff presented to the emergency department with complaints of pain in her left arm and hand. (Tr. 268-73.) Dr. Jonathan E. Siff
On April 22, 2008, Plaintiff presented to the emergency department with complaints of pain in her neck, left shoulder, legs, and left ankle. (Tr. 264-66, 280.) Dr. Sara Laskey, M.D., attended to Plaintiff and indicated that Plaintiff reported her pain set in without injury, and that the pain felt like a "twisting" or "ache" that radiated into her wrist. (Tr. 264, 280.) X-rays of Plaintiff's left wrist and left foot were normal. (Tr. 277, 279.) An x-ray of Plaintiff's back revealed degenerative disc disease with narrowing of the neural foramina on the left at C2-3 and C5-6. (Tr. 278.) Dr. Laskey diagnosed Plaintiff with cervical radiculpathy and suspected it was caused by a herniated disc around C5-6 or C6-7. (Tr. 266.) Dr. Laskey also diagnosed Plaintiff with a left ankle/foot strain. (Tr. 266.) Dr. Laskey gave Plaintiff an ankle air cast and pain medication, and instructed Plaintiff to follow up with her primary care physician. (Tr. 266.)
On April 28, 2008, Plaintiff presented to Dr. Victoria Brobbey.
On May 22, 2008, resident physician Kermit Fox III, M.D., examined Plaintiff as a new patient at PM&R Clinic, under the supervision of Dr. Michael A. Harris, M.D. (Tr. 255-58.) Dr. Fox reviewed Plaintiff's medical history and reported the following. Plaintiff had "a history of progressive mid-cervical degenerative changes with myalgias in regional muscles," but with "no radicular symptoms." (Tr. 257.) Plaintiff also "present[ed] with one month of presumably non-traumatic, left wrist pain and swelling in [the] region of her TFCC."
On July 22, 2008, Raymond A. Lumpkin, Plaintiff's physical therapist, indicated that Plaintiff reported she began having daily headaches since July 19, 2008. (Tr. 171.) Mr. Lumpkin further reported the following. Plaintiff reported she awoke with her headaches and that they lasted most of the day; and that she had been feeling a lot of stress because of "family issues." (Tr. 171.) Cervical manipulation and traction helped relieve some of Plaintiff's headache pain. (Tr. 239, 241.)
On August 29, 2005, Plaintiff indicated to Social Security that she felt anxious, nervous, and depressed all of the time. (Tr. 153.) On October 6, 2005, Plaintiff's daughter brought Plaintiff to the hospital after Plaintiff complained of depression and suicidal ideation. (Tr.302.) Dr. Lance D. Wilson, M.D., attended to Plaintiff and reported the following. (Tr. 302-03.) Plaintiff initially indicated that she felt like she wanted to die, but she did not have a plan for suicide. (Tr. 303.) During her stay in the emergency department, she began speaking of how she valued her life, and a psychologist who examined her believed she was stable and appropriate for discharge with outpatient therapy. (Tr. 303.) The resident psychiatrist gave Plaintiff a prescription for Zoloft, and Plaintiff was discharged. (Tr. 303.)
On October 6, 2005, Plaintiff underwent a consultative psychological examination by Dr. David V. House, Ph.D., upon the request of the Bureau of Disability Determination. (Tr. 338-44.) Dr. House noted that Plaintiff's "[g]rooming and hygiene appear noticeably poor because of body odor." (Tr. 340.) Dr. House assessed Plaintiff as follows. Plaintiff's concentration and attention were markedly impaired because of what appeared to Dr. House to be disturbances in thought. (Tr. 343.) Plaintiff's ability to understand and follow directions "appear[ed] moderately limited." (Tr. 343.) She would have difficulty following simple directions beyond one or two steps on a consistent basis because of disruptions in her thinking. (Tr. 343.) Her ability to withstand stress and pressure was "at least moderately limited" primarily because of her depression related to her health. (Tr. 343.) Her ability to relate to others and deal with the general public "appear[ed] moderately to markedly limited." (Tr. 343.) She presented as socially isolated and demonstrated significant difficulties in terms of interacting with others. (Tr. 343.) Her level of adaptability "appear[ed] mildly limited," as she received no treatment. (Tr. 343.) And her insight and judgment "appear[ed] markedly limited." (Tr. 343.) Dr. House concluded that Plaintiff participated in all routine daily activities minimally; that she would require some supervision in managing her daily activities and handling her finances; and that her overall level of functioning was at a reduced level of efficiency. (Tr. 343.)
Dr. House diagnosed Plaintiff with a mood disorder secondary to her health issues and with major depressive features, as well as a psychotic disorder not otherwise specified. (Tr. 344.) Dr. House assigned Plaintiff a Global Assessment of Functioning ("GAF") score of 15
On December 6, 2005, state agency reviewing psychological consultant Mel Zwissler
Plaintiff testified as follows. She last worked as a paper packer a month prior, for two or three days a week and sometimes for 8 hours a day. (Tr. 437-38.) The job had lasted for three months and ended because there was no more work to be done. (Tr. 438.) Nevertheless, Plaintiff was not able to perform her work as a paper packer because she suffered back and leg pain, and her leg would swell. (Tr. 438.)
Plaintiff did not go grocery shopping. (Tr. 449.) She could not lift a five pound bag of sugar or a gallon of milk. (Tr. 449.) She could, however, lift and carry a cup of coffee. (Tr. 449.) Also, if she were at a grocery store, she would be able to pick a jar off a shelf and place it in a shopping cart. (Tr. 453.)
Plaintiff could walk for only five minutes before she needed to sit down (Tr. 449); however, she could walk one block on level ground. (Tr. 452.) She could stand for one hour before she needed to sit; and she could sit for between an hour and an hour-and-a-half before she needed to stand. (Tr. 450.) Walking down steps caused Plaintiff pain. (Tr. 450.) If she stooped, crouched, or squatted, she would not be able to return to a standing position. (Tr. 450.) She could not kneel. (Tr. 45.) She could crawl, and she did so when she was not able to stand and walk. (Tr. 450.) She could not bend at the waist. (Tr. 450.)
Further, Plaintiff could not use public transportation, although she could get on and off a bus if she had to. (Tr. 452-53.) She also could not perform business transactions at a bank. (Tr. 452.)
The ME reviewed Plaintiff's medical evidence, heard Plaintiff's testimony, and opined as follows. Plaintiff's activities of daily living were mildly impaired; her ability to maintain concentration, persistence, and pace was mildly impaired; and Plaintiff had no episodes of decompensation. (Tr. 448.) The ME could not give an opinion regarding Plaintiff's ability to maintain social functioning because there was a lack of evidence on that issue. (Tr. 448.) However, Plaintiff did not have a "big psychological problem as far as dealing with other people is concerned." (Tr. 456.) Accordingly, Plaintiff's impairments, either singly or in combination, did not meet or medically equal an impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). (Tr. 447-49, 451.)
Plaintiff could lift 20 pounds occasionally and 10 pounds frequently. (Tr. 454.) She could stand and walk for 6 hours in an 8-hour workday with normal breaks. (Tr. 454.) A sit/stand option "would be good" for Plaintiff. (Tr. 455.) She would be able to pick something up off the floor if she dropped it, but she would not be able to crawl under a table two or three times a day. (Tr. 456.) She could climb steps with the assistance of a railing. (Tr. 456.) But she could not perform work that involved high, strict production quotas, or assembly line work. (Tr. 456-57.)
Plaintiff's counsel stipulated to the VE's qualifications. (Tr. 468.) The ALJ posed the following hypothetical to the VE:
(Tr. 478-79.) The VE testified that such a person could not perform Plaintiff's past relevant work but could perform other work as a cashier, for which there were approximately 500 jobs in the region, 1,400 jobs in Ohio, and 34,000 jobs in the nation. (Tr. 481.) The VE explained that, although cashier jobs often were considered "light" jobs because they required standing, some cashier jobs could be classified as sedentary; accordingly, her testimony was based on a reduction in cashier jobs to account for the hypothetical limitation to sedentary work and the need for a sit/stand option. (Tr. 480-83.) She further explained that her testimony was based on the Occupational Employment Statistic ("OES"), data from County Business Patterns, and an estimate based on her experience. (Tr. 482.) The VE conceded that the OES and County Business Patterns did not indicate a specific number of cashier jobs that could be performed at a sedentary level with a sit/stand option, and that there was no single source of information to determine the number of sit down cashier jobs. (Tr. 484-85.) However, the VE explained that she obtained a statistical number of general cashier jobs from the OES, compared that number to the number of locations provided in the County Business Patterns where, based on her experience, a cashier could be expected to perform her job sitting, and conservatively estimated the number of sit down cashier jobs as one percent of the total domain of general cashier jobs. (Tr. 486.)
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act.
The Commissioner reaches a determination as to whether a claimant is disabled by way of a five-stage process.
The ALJ made the following findings of fact and conclusions of law:
(Tr. 17-33) (footnote omitted).
Judicial review of the Commissioner's decision is limited to determining whether the Commissioner's decision is supported by substantial evidence and was made pursuant to proper legal standards.
The Commissioner's conclusions must be affirmed absent a determination that the ALJ failed to apply the correct legal standards or made findings of fact unsupported by substantial evidence in the record.
Plaintiff contends that remand is warranted because the ALJ's analysis of the record medical evidence is confusing. For the following reasons, the Court disagrees.
The ALJ stated the following:
(Tr. 27.) The ALJ concurrently gave varying weights to the opinions of examining medical sources and reviewing medical sources. (See Tr. 27-28.) Plaintiff essentially contends that the ALJs decision is contradictory—that the ALJ cannot simultaneously give the opinions of Plaintiff's medical sources great weight and little weight. A review of the ALJ's decision, however, supports the conclusion that it is not contradictory—the ALJ gave great weight to the opinions of those medical sources who treated Plaintiff, but gave varying weights to the opinions of those medical sources who merely examined Plaintiff or reviewed Plaintiff's medical records. Accordingly, this assignment of error is not well taken. See
Plaintiff contends that the ALJ improperly assessed the severity of Plaintiff's pain in her left arm, headaches, and mental condition based on his personal opinion rather than the medical evidence and the opinions of physicians. For the following reasons, this assignment of error is not well taken.
The ALJ found that, to the extent Plaintiff's pain in her left arm and headaches were secondary to Plaintiff's degenerative disc disease, they were accounted for in his finding that her degenerative disc disease was a severe impairment; and further found that, to the extent they were separate impairments, the evidence did not support the conclusion that they were severe. (Tr. 20.) The ALJ also rejected Dr. House's diagnosis of a psychotic disorder for the following reason:
(Tr. 21.)
Plaintiff contends that the ALJ rendered improper medical opinions by considering Plaintiff's pain in her left arm and headaches separately from her degenerative disc disease. Plaintiff cites no case law in support of this proposition. Further, an ALJ is required to consider a claimant's impairments separately and in combination when determining whether the claimant suffers any sever impairments. See
Plaintiff also contends that the ALJ erroneously substituted his lay opinion for that of Dr. House's opinion when he rejected Dr. House's diagnosis of a psychotic disorder. The Court disagrees. The ALJ merely gave Dr. House's opinion little weight because it was unsupported by the record evidence. Plaintiff has provided no basis to conclude that this was improper. Accordingly, this assignment of error is not well taken.
Plaintiff contends that the ALJ failed to assess the credibility of her subjective complaints of pain properly. For the following reasons, this assignment of error is not well taken.
It is well settled that pain alone, if caused by a medical impairment, may be severe enough to constitute a disability. See
The Duncan Test does not require objective evidence of the alleged pain itself.
See
Here, the ALJ found that Plaintiff had medically determinable impairments that could cause Plaintiff's alleged pain, including degenerative disc disease of the cervical spine with radiculitis, degenerative disc disease of the lumbar spine, status post fractures of the right and left ankles, and an injury to the left wrist that at times was suspected to be a TFCC. (Tr. 18-21.)
To the extent that Plaintiff's alleged headaches and pain in her knees, hips, left wrist, left arm, and left shoulder were separate and distinct impairments, the ALJ found that there was insufficient evidence to conclude that they caused more than minimal limitations in Plaintiff's ability to perform work for a continuous period of at least twelve months. (Tr. 19-21.) The ALJ further noted: that Plaintiff acknowledged that her left wrist pain was reduced when she wore a splint (Tr. 19); that on at least one occasion Plaintiff said she was not suffering from headaches (Tr. 20); and that on at least one occasion Plaintiff acknowledged that she could use public transportation (Tr. 23).
In his credibility assessment, the ALJ explained that he considered all the required factors in assessing Plaintiff's credibility; and that he found Plaintiff's statements credible only to the extent that they supported his RFC determination. (Tr. 26.) The ALJ otherwise found Plaintiff not fully credible because the record evidence showed that Plaintiff was engaged in activities she said she was not able to perform:
(Tr. 26-27.)
Plaintiff alleges that "it is not clear what [the ALJ's] credibility finding is." The Court disagrees. The ALJ is quite clear that he gave Plaintiff's statements credit only to the extent that they were consistent with the evidence and his RFC determination.
Plaintiff also contends that "the ALJ did not discuss or analyze as required the location, duration, frequency, and intensity of her pain or other symptoms; did not discuss or describe precipitating and aggravating factors; [and] did not discuss or describe the type, dosage, effectiveness and side effects of her medication that she was taking." (Pl.'s Br. 19.) But the ALJ is not required to discuss and analyze every factor, see
Finally, Plaintiff suggests that the evidence upon which the ALJ relied to find Plaintiff's statements not fully credible actually supports the conclusion that her statements are credible. The ALJ found the facts that Plaintiff had been moving furniture or boxes and working outside were inconsistent with Plaintiff's alleged limitations; however, Plaintiff explains that the fact she injured herself while engaged in those activities shows that she was not capable of performing them, which is consistent with her alleged limitations. But credibility determinations regarding a claimant's subjective complaints rest with the ALJ, see
Plaintiff baldly asserts that the ALJ failed to include in his RFC determination functional limitations related to Plaintiff's left arm, left wrist, and headaches. However, the ALJ explained that, to the extent Plaintiff's left arm pain and headaches were secondary to Plaintiff's degenerative disc disease of the cervical spine, he considered such limitations in his RFC assessment. (Tr. 20-21.) The ALJ further explained that, to the extent that Plaintiff's left arm pain, headaches, and left wrist pain were individual impairments, there was insufficient evidence to conclude that they caused more than minimal limitations in Plaintiff's ability to perform work. (Tr. 19-21.) Plaintiff has provided no basis to conclude that the ALJ failed to consider Plaintiff's limitations related to her left arm, left wrist, and headaches in his RFC assessment. Accordingly, this contention is not well taken.
Plaintiff also contends that the ALJ erred by not including in his RFC determination limitations based on Dr. House's opinion that Plaintiff was markedly impaired in her ability to maintain attention, concentration, persistence, or pace; and that this was particularly erroneous because Dr. House's opinion was uncontradicted. These contentions also lack merit. The ALJ found that Dr. House's opinion was inconsistent with Plaintiff's activities of daily living. (Tr. 24.) Further, Dr. House's opinion was contradicted by the ME's opinion that Plaintiff was mildly impaired in her ability to maintain attention, concentration, persistence, or pace. In short, the ALJ rejected Dr. House's opinion because he found that it was unsupported by, and inconsistent with, the record evidence. Therefore, the ALJ was not required to include such a limitation in his RFC determination. Accordingly, this assignment of error is not well taken.
At the fifth and final step of an ALJ's analysis, the ALJ must determine whether, in light of the claimant's residual functional capacity, age, education, and past work experience, the claimant can make an adjustment to other work.
Here, the VE testified that a person with Plaintiff's personal and vocational characteristics, and physical and mental limitations as set forth in the ALJ's hypothetical, could perform work as a cashier, for which there were approximately 500 jobs in the region, 1,400 jobs in Ohio, and 34,000 jobs in the nation.
Plaintiff contends that the VE's testimony does not constitute substantial evidence to support the Commissioner's step five burden because the VE's testimony was based on only her experience and she was not able to provide a statistical basis or statistical method for arriving at the numbers to which she testified; and because the VE did not parse out how many jobs were part-time or full-time positions. Contrary to Plaintiff's contention, however, the VE provided a statistical basis for her testimony—the OES and County Business Patterns. Further, the VE provided a statistical method for arriving at the numbers of jobs to which she testified—she explained that she conservatively reduced the number of cashier jobs to one percent of the total number of cashier jobs based on her experience and the statistical data from the OES and County Business Patterns. Plaintiff provides no legal basis to conclude that this method was inappropriate or inadequate, and no legal basis to conclude that the VE should have specified how many jobs were part-time and full-time. Accordingly, these contentions are not well taken.
Plaintiff contends in her reply brief that the VE's testimony does not constitute substantial evidence to support the Commissioner's step five burden because the ALJ's hypothetical does not accurately portray Plaintiff's limitations. Plaintiff did not argue this issue in her Brief on the Merits.
As explained above, Plaintiff has provided no basis to conclude that the ALJ failed to consider Plaintiff's limitations related to her left arm, left wrist, and headaches; the ALJ found that the evidence did not support the conclusion that the impairments caused more than minimal limitations; and Plaintiff's statements of the extent to which those impairments limited her were not credible. Moreover, Plaintiff has provided no reason why the ALJ should have included limitations based on moderate limitations in her ability to maintain concentration, persistence, or pace; indeed, the ALJ rejected Dr. House's opinion of marked limitations, gave weight to the ME's opinion of mild limitations, and Plaintiff has not taken issue with those particular credibility determinations.
In sum, Plaintiff has failed to show that the VE's testimony does not constitute substantial evidence. Further, 34,000 jobs in the nation may amount to a significant number of jobs. See
For the foregoing reasons, the Commissioner's final decision is AFFIRMED.
