KATHLEEN B. BURKE, Magistrate Judge.
Plaintiff Allen Mitchell ("Plaintiff" or "Mitchell") seeks judicial review of the final decision of Defendant Commissioner of Social Security ("Commissioner") denying his applications for social security disability benefits. Doc. 1. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to Local Rule 72.2(b)(1).
For the reasons stated below, the undersigned recommends that the Commissioner's decision be
Mitchell filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI) on December 1, 2009, alleging a disability onset date of May 1, 2009. Tr. 125-131, 132-141, 149. He alleged disability based on emphysema and chronic obstructive pulmonary disease (COPD). Tr. 67, 70, 86, 90, 154. After initial denial by the state agency (Tr. 67-69, 70-72), and denial upon reconsideration (Tr. 86-91, 92-98), Mitchell requested a hearing (Tr. 99-101). On November 19, 2010, an administrative hearing was held before Administrative Law Judge Dwight D. Wilkerson ("ALJ"). Tr. 25-62.
In his December 3, 2010, decision, the ALJ determined that Mitchell had not been under a disability from May 1, 2009, the alleged disability onset date, through the date of the ALJ's decision. Tr. 10-20. Mitchell requested review of the ALJ's decision by the Appeals Council. Tr. 9. On March 29, 2012, the Appeals Council denied Mitchell's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. 1-5.
Mitchell was born on October 9, 1961. Tr. 125, 132, 149. He is married and, at the time of the hearing, resided with his wife and seventeen year old son. Tr. 34-35.
He completed the ninth grade. Tr. 31, 158. He was not in special education classes. Tr. 31, 158. He left school before graduating because his father needed help with his construction business. Tr. 31.
Mitchell last worked on or about April 1, 2009. Tr. 154. He stopped working because he was unable to breathe when exerting himself. Tr. 31, 154. His past work consisted of laborer and/or construction jobs. Tr. 33-34, 155. Some of his past work involved supervisory responsibilities. Tr. 51, 155.
On July 8, 2008, Mitchell sought emergency room treatment at Pomerene Hospital for shortness of breath over the prior three days. Tr. 243. He reported using a Proventil inhaler for his shortness of breath but indicated that his inhaler had run out. Tr. 243. En route to the hospital, the paramedics administered a Proventil treatment because Mitchell had some wheezing. Tr. 243. At the hospital, no further respiratory treatments were necessary. Tr. 243. He was diagnosed with acute asthmatic bronchitis, alcohol intoxication,
On March 12, 2009, Mitchell again sought emergency room treatment at Pomerene Hospital and complained of shortness of breath for the prior two weeks. Tr. 233. He requested an inhaler. Tr. 237. Mitchell reported that his shortness of breath was worse at night. Tr. 233. He was smoking two packs of cigarettes per day and had been doing so for the past 30 years. Tr. 233. He was drinking over 6 beers per day. Tr. 237. He reported fevers, chills and vomiting in the morning. Tr. 237. The emergency room physician ordered a breathing treatment. Tr. 237. However, Mitchell left the hospital before receiving the treatment. Tr. 237.
On April 9, 2009, Mitchell sought treatment at Holmes County Health District Community Clinic. Tr. 241. He complained of shortness of breath for the prior two months. Tr. 241. He complained that his shortness of breath was worse when the weather changed. Tr. 241. He was still smoking 2 packs of cigarettes per day and drinking a 6 pack of beer each day. Tr. 241. His physician diagnosed COPD and counseled Mitchell on smoking cessation. Tr. 241. His physician also counseled him on cutting down on his drinking and noted that his physicians would watch his hypertension. Tr. 241.
On October 29, 2009, Mitchell again sought treatment at Holmes County Health District Community Clinic. Tr. 240. He complained of more shortness of breath. Tr. 240. He reported using his "puffer 6 times — 4 puffs at a time and [nebulizer] machine once in A.M.." Tr. 240. Regarding Mitchell's COPD, his physician indicated that Mitchell did not seem to be responding to steroid treatment. Tr. 240. His physician counseled him again on quitting smoking. Tr. 240.
The following year, on June 25, 2010, Mitchell sought treatment at Holmes County Health District Community Clinic. Tr. 293. He complained of chest pain and difficulty breathing. Tr. 293. He reported that he had to stop after walking about 10 feet. Tr. 293. He was counseled again about his smoking. Tr. 293. A stress test and CT chest scan were ordered. Tr. 293.
As a result of the July 15, 2010, CT chest scan, a thyroid ultrasound was suggested. Tr. 293. The CT chest scan showed no acute intrathoracic diseases. Tr. 296. During his July 15, 2010, stress test, Mitchell had significant shortness of breath while walking 1 mile per hour. Tr. 306. However, the stress test was "normal." Tr. 306. Additionally, at the end of recovery time, Mitchell was feeling comfortable and had no dyspnea or chest pain. Tr. 306. On July 21, 2010, Mitchell inquired about the results of his stress test and was informed that his stress test was normal. Tr. 320. Mitchell then asked what else he could do. Tr. 320. He was advised to "stop smoking!!" Tr. 320. Also, he was told that, based on the CT chest scan, a thyroid ultrasound could be scheduled. Tr. 320. On September 7, 2010, Mitchell ultimately had part of his thyroid removed. Tr. 42, 313. Following that procedure, Mitchell indicated that "it healed up pretty good" and he was not experiencing any continuing problems. Tr. 42.
On February 23, 2010, Yolanda Duncan, M.D., conducted a consultative examination of Mitchell. Tr. 256-258. Following her examination, she assessed Mitchell as having COPD, GERD, and hypertension. Tr. 258. She opined that Mitchell "should not have any difficulty with work related physical activities such as sitting. He may have difficulty standing more than 30 minutes, walking more than 100 feet, or climbing more than 1 flight of stairs." Tr. 258. Dr. Duncan also had Mitchell undergo a pulmonary function study. Tr. 259-262. She concluded that Mitchell understood the test but gave a suboptimal effort. Tr. 262. She also concluded that the test showed severe airway obstruction. Tr. 262.
On March 31, 2010, Eli Perencevich, D.O., completed a Physical Residual Functional Capacity ("RFC") Assessment. Tr. 274-281. He opined that Mitchell retains the ability to: lift/carry 50 pounds occasionally and 25 pounds frequently; stand and/or walk about 6 hours in an 8-hour workday; sit for about 6 hours in an 8-hour workday. Tr. 275. He also opined that, other than lifting/carrying limitations, Mitchell has no limitations in his ability to push/pull; no postural limitations; no manipulative limitations; no visual or communicative limitations; and no environmental limitations. Tr. 275-278. Dr. Perencevich concluded that Mitchell's report of his symptoms was only partially credible because he found that Mitchell's complaints of chest pain and stomach pain were excessive as compared to the medical record of evidence. Tr. 279.
On August 16, 2010, Walter Holbrook, M.D., reviewed Dr. Perencevich's RFC. Tr. 298. In connection with that review, Dr. Holbrook reviewed the July 15, 2010, CT chest scan and stress test results. Tr. 298. He also considered Mitchell's reports that his breathing had worsened; that he had had a severe cough over the prior month and a half; and that he needed to use his inhalers more frequently. Tr. 298. Dr. Holbrook affirmed Dr. Perencevich's March 31, 2010, RFC as written. Tr. 298.
With counsel present, Mitchell testified at the hearing. Tr. 31-44, 51-52. On a typical day, Mitchell wakes at about 5:00 a.m., fixes some iced tea, listens to the radio, makes his wife a pot of coffee, and waits for her to wake up at 6:00 a.m. Tr. 35-37. After his wife leaves for work, he watches movies. Tr. 37. During the day, he prepares dinner for his family. Tr. 37-38. After his wife returns from work, they eat supper and go to bed around 6:30 or 7:00 p.m. Tr. 38.
Mitchell has difficulty sleeping. Tr. 38. He can sleep only for about an hour at a time. Tr. 38. He gets short winded and cannot sleep lying down. Tr. 38-39. Notwithstanding his inability to sleep for extended periods at night, he generally does not nap during the day. Tr. 43. He has difficulty showering; the humidity from a shower makes his breathing worse. Tr. 36.
Mitchell's primary difficulty with working is that, sometimes during the day, he experiences a breathing attack, i.e., shortness of breath of such a degree that his inhaler does not help and he needs to use his nebulizer machine.
At the ALJ's request, Dr. Donald W. Junglas, M.D., appeared at the hearing and testified as a medical expert.
Dr. Junglas confirmed that a nebulizer is a standard form of treatment for Mitchell's condition. Tr. 48. He opined that, based on the evidence, it would be necessary to use a nebulizer every three to four hours during an eight-hour workday and that a nebulizer treatment takes about 15 minutes. Tr. 48-49.
Vocational Expert Lynn Kaufman ("VE") testified at the hearing. Tr. 49-60. The VE described Mitchell's past work experience. Tr. 52-53. He worked as a contractor which is a light, skilled position; he worked as a construction worker which is a heavy, semi-skilled position; and he worked as a construction labor supervisor which is a light, skilled position.
The ALJ asked the VE to assume a hypothetical individual with Mitchell's education, past work and age who is limited to light work except cannot walk for more than 100 feet or for more than two minutes without needing to take a two minute break before proceeding to walk; must avoid even moderate exposure to fumes, dust, gases, poor ventilation, chemicals, or other pulmonary irritants, including extreme cold, heat, or humidity; cannot climb stairs at all, or ladders, ropes, or scaffolds; and would require two to three 15-minute breaks in an eight-hour day. Tr. 53-54. Based on the ALJ's hypothetical, the VE opined that such an individual would be unable to perform Mitchell's past work. Tr. 54. With the added limitation of being able to stand and walk for a total of two hours in an eight-hour day, including the limitation of being able to walk only 100 feet or for one or two minutes, the VE opined that there would be other jobs that such an individual could perform. Tr. 54-55. Because of the limited distance and/or time that the individual would be able to walk, the VE indicated that she was primarily looking at sedentary positions. Tr. 54-55.
The ALJ clarified that the individual would need to be able to take his breaks as needed, approximately once every three to four hours, which the ALJ translated into two to three times each day. Tr. 55. The VE stated that the flexibility in the timing of when breaks are taken may restrict availability of work. Tr. 55-56. The VE also indicated that most employers do allow three breaks and there are some employers who allow for flexibility in the timing of breaks. Tr. 55-56, 58. Thus, she opined that there would be work available for such an individual. Tr. 55-56, 58. She listed the following jobs: (1) sedentary unskilled clerical jobs with there being approximately 2,000 statewide and 52,000 nationwide; (2) sedentary packing (banders) jobs with there being approximately 3,000 statewide and 7,800 nationwide; and (3) sedentary table assembler jobs with there being approximately 2,400 statewide and 65,000 nationwide. Tr. 56-57.
The VE also estimated that 20% of the unskilled sedentary base would be available to the hypothetical individual as described by the ALJ. Tr. 57. The VE translated that percentage to equate to approximately 9,000 jobs statewide and 234,000 nationwide. Tr. 57-58. In response to Mitchell's counsel's questions regarding the need for breaks, the VE indicated that going beyond the norm of three breaks per day may impact an employee's productivity and therefore require an accommodation. Tr. 59-60.
Under the Act, 42 U.S.C § 423(a), eligibility for benefit payments depends on the existence of a disability. "Disability" is defined 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 which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore:
42 U.S.C. § 423(d)(2).
In making a determination as to disability under this definition, an ALJ is required to follow a five-step sequential analysis set out in agency regulations. The five steps can be summarized as follows:
20 C.F.R. §§ 404.1520, 416.920; see also Bowen v. Yuckert, 482 U.S. 137, 140-42, 96 L. Ed. 2d 119, 107 S.Ct. 2287 (1987).
In his December 3, 2010, decision, the ALJ made the following findings:
Based on the foregoing, the ALJ determined that Plaintiff has not been under a disability from May 1, 2009, through the date of the decision. Tr. 20.
First, Plaintiff argues that the ALJ's determination that he can perform a range of sedentary work is not supported by substantial evidence. Doc. 13, pp. 8-12. Plaintiff asserts that the ALJ erred in his identification of Mitchell's RFC as light rather than sedentary. Doc. 13, p. 8. Plaintiff also asserts that the ALJ erred in his determination that Mitchell requires only two minutes of rest after walking approximately 100 yards or one or two minutes at a time. Doc. 13, pp. 9-10. Plaintiff argues that this finding was speculative and is not supported by substantial evidence. Doc. 13, pp. 9-10. Finally, Plaintiff asserts that the ALJ erred in his determination that Mitchell needs only two to three 15-minute breaks during an eight-hour workday, averaging a break once every two to three hours. Doc. 13, pp. 10-12. Plaintiff asserts that, in reaching this finding, the ALJ did not properly assess his credibility. Doc. 13, pp. 10-12.
Second, Plaintiff asserts that the ALJ posed an inadequate hypothetical question and erroneously relied on portions of the VE's testimony to find Mitchell not disabled at Step Five. Doc. 13, pp. 12-14. Plaintiff asserts that the ALJ failed to account for Plaintiff's episodic worsening of his COPD; his need to use a nebulizer four or more times a day on a regular basis; and his intermittent need to leave the work setting to use his nebulizer on an unscheduled basis. Doc. 13, pp. 12-14.
In response, Defendant argues that the ALJ's decision is supported by substantial evidence (Doc. 14, pp. 6-7); the ALJ properly evaluated the credibility of Plaintiff's subjective complaints (Doc. 14, pp. 7-9); and the ALJ's VE hypothetical contained all of Plaintiff's credibly established limitations (Doc. 14, pp. 9-11).
A reviewing court must affirm the Commissioner's conclusions absent a determination that the Commissioner has failed to apply the correct legal standards or has made findings of fact unsupported by substantial evidence in the record. 42 U.S.C. § 405(g); Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003). "Substantial evidence is more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Besaw v. Sec'y of Health & Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1992) (quoting Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). A court "may not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility." Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Plaintiff's request for reversal and remand of the Commissioner's decision is based, in part, on his claim that the ALJ did not properly assess his credibility. Doc. 13, pp. 10-14. However, Plaintiff fails to demonstrate that the ALJ's credibility assessment is not supported by substantial evidence. Social Security Ruling 96-7p and 20 C.F.R. § 404.1529 describe a two-part process for assessing the credibility of an individual's subjective statements about his or her symptoms. First, the ALJ must determine whether a claimant has a medically determinable physical or mental impairment that can reasonably be expected to produce the symptoms alleged; then the ALJ must evaluate the intensity and persistence associated with those symptoms to determine how those symptoms limit a claimant's ability to work. When evaluating the intensity and persistence of a claimant's symptoms, consideration is given to objective medical evidence and other evidence, including: (1) daily activities; (2) the location, duration, frequency, and intensity of pain or other symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate pain or other symptoms; (5) treatment, other than medication, received for relief of pain or other symptoms; (6) any measures used to relieve pain or other symptoms; and (7) other factors concerning functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. § 404.1529(c); Soc. Sec. Rul. 96-7p, 1996 WL 374186, at 3 (July 2, 1996). "[A]n ALJ's findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility. Nevertheless, an ALJ's assessment of a claimant's credibility must be supported by substantial evidence." Calvin v. Comm'r of Soc. Sec., 437 F. Appx. 370, 371 (6th Cir. 2011) (citing Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir.1997)).
In assessing Mitchell's credibility consistent with the foregoing regulations, the ALJ considered the evidence and made clear the basis for his decision. For example, he properly considered that, although advised to stop smoking on more than one occasion, Mitchell continued to smoke two packs of cigarettes each day. Tr. 17-19, 240, 241, 320. See Stull v. Comm'r of Soc. Sec., 2011 WL 861901, *2-3 (N.D. Ohio Mar. 9, 2011) (allowing for consideration of a claimant's failure to follow medical advice to stop smoking in a case where "the treatment recommendation is for an impairment that a claimant alleges causes disabling limitations") (citing Sias v. Sec'y of Health & Human Servs., 861 F.2d 475, 480 (6th Cir. 1988). The ALJ considered the fact that there was a significant gap in treatment. Tr. 17. The ALJ considered the fact that a July 15, 2010, stress test was normal. Tr. 17, 306. The ALJ also considered Plaintiff's daily activities, i.e., performing light household chores, cooking, and sitting to watch movies and found those activities to be consistent with the RFC. Tr. 18.
The ALJ also considered medical opinions, or the lack thereof. For example, the ALJ considered and relied upon consultative examining physician Dr. Duncan's opinion that Plaintiff would have some difficulty with standing walking and climbing but would not have difficulty with work activity involving sitting. Tr. 18, 258. The ALJ also considered and relied upon Dr. Junglas's medical expert testimony. Tr. 18. Dr. Junglas's testimony included his opinion that, based on the evidence, a nebulizer would be necessary every three to four hours during an eight-hour workday. Tr. 18, 48-49. Finally, the ALJ considered the fact that no treating provider had placed restrictions on Mitchell or his activity level. Tr. 18.
The foregoing demonstrates that the ALJ sufficiently evaluated Mitchell's credibility and properly concluded that Mitchell's statements concerning the intensity, persistence, and limiting effects of his symptoms could not be fully credited.
Additionally, as to Mitchell's more specific claim that the ALJ did not consider and/or fully credit his statements that he uses a nebulizer four times every day (Doc. 13, pp. 10-12, pp. 13-14), the ALJ considered Mitchell's statements regarding his use of the nebulizer but found that testimony uncorroborated by evidence of record.
Notwithstanding the foregoing lack of corroboration, the ALJ gave Mitchell the benefit of the doubt and accounted for his need to take breaks throughout the workday in order to use his nebulizer. Tr. 18. The RFC provides for two to three 15-minute breaks, averaging once every two to three hours. Tr. 16.
For the foregoing reasons, the ALJ properly assessed Mitchell's credibility. The ALJ's decision not to give full credit to Mitchell's statements regarding the frequency with which he uses a nebulizer throughout the day is supported by substantial evidence. Accordingly, a decision requiring remand and/or reversal is not warranted.
A claimant's RFC is the most that he can do despite his limitations. 20 C.F.R. § 404.1545(a). The regulations make clear that a claimant's RFC is an issue reserved to the Commissioner and the ALJ assesses a claimant's RFC "based on all of the relevant medical and other evidence" of record. 20 C.F.R. §§ 404.1545(a)(3), 404.1546(c), 404.1527; see also Coldiron v. Comm'r of Soc. Sec., 391 Fed. Appx. 435, 439 (6th Cir. 2010) ("The Social Security Act instructs that the ALJ — not a physician — ultimately determines a Plaintiff's RFC."); Poe v. Comm'r of Soc. Sec., 342 Fed. Appx. 149, 157 (6th Cir. 2009) ("an ALJ does not improperly assume the role of a medical expert by assessing the medical and non-medical evidence before rendering a residual functional capacity finding"). "Hypothetical questions . . . need only incorporate those limitations which the ALJ has accepted as credible." Parks v. Soc. Sec. Admin., 413 Fed. Appx. 856, 865 (6th Cir. 2011) (citing Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)). As shown below, the ALJ's RFC is supported by substantial evidence and the hypothetical properly incorporated those limitations that the ALJ determined to be credible.
Mitchell's first challenge to the RFC relates to the ALJ's inclusion of a limitation requiring two to three, rather than four, 15-minute breaks in an eight-hour workday.
Dr. Junglas opined that, based on the evidence, it would be necessary to use a nebulizer every three to four hours during an eight-hour workday. Tr. 48-49. The ALJ gave great weight to Dr. Junglas's opinion (Tr. 18) and the RFC is consistent with and supported by that opinion. Tr. 18. See Besaw, 966 F.2d at 1030 ("Substantial evidence is more than a scintilla of evidence but less that a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.") (quoting Brainard, 889 F.2d at 681).
Finally, the ALJ specifically made clear to the VE that the breaks would have to be flexible. Tr. 55. Thus, to the extent that Mitchell claims the ALJ did not account for, or relied upon a VE hypothetical that failed to account for, the fact that Mitchell may need to use his nebulizer on an unscheduled basis, his claim is without merit.
Mitchell contends that the ALJ's finding that he requires only two minutes to rest after walking approximately 100 yards
Mitchell also argues that there was no medical opinion that addressed the period of time that he needs to rest before he resumes walking and, therefore, remand is warranted. Doc. 13, p. 9-10. However, the ALJ, not a physician, ultimately determines a claimant's RFC. See Coldiron, 391 Fed. Appx. at 439 ("The Social Security Act instructs that the ALJ — not a physician — ultimately determines a Plaintiff's RFC."). Moreover, "an ALJ does not improperly assume the role of a medical expert by assessing the medical and non-medical evidence before rendering a residual functional capacity finding." See Poe, 342 Fed. Appx. at 157. Here, Mitchell himself testified about his recovery time and the ALJ had Mitchell's medical records and evidence concerning Mitchell's daily activities. The lack of medical opinion as to the specific time period Mitchell needs to rest before resuming to walk does not warrant reversal or remand in light of the record available to the ALJ when assessing Mitchell's RFC and because Mitchell has not demonstrated that the ALJ's finding of no disability is not supported by substantial evidence.
Mitchell also argues that the ALJ relied upon and posed an improper hypothetical to the VE. Doc. 13, pp. 12-14. He contends that the hypothetical the ALJ relied upon and posed to the VE did not account for the episodic worsening of his COPD; did not account for his need to use a nebulizer four times each day; and did not account for his intermittent need to leave the work setting to use his nebulizer on an unscheduled basis. Doc. 13, pp. 12-14. Mitchell's argument lacks merit. The ALJ incorporated into the hypothetical those limitations that the ALJ found credible. See Parks, 413 Fed. Appx. at 865 (citing Casey v. Sec'y of Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993)) ("[h]ypothetical questions . . . need only incorporate those limitations which the ALJ has accepted as credible.").
The VE hypothetical accounted for Mitchell's COPD. Tr. 16. The hypothetical included limitations for walking, standing, climbing, exposure to environmental conditions, and the need for breaks to allow for use of a nebulizer. Tr. 53-56. Also, as shown above, the ALJ properly accounted for Mitchell's need to use a nebulizer and limited Mitchell to the extent the ALJ determined him to be credible, i.e., that he would need two to three breaks in an eight-hour workday. Tr. 53-55. Further, as discussed above, when posing the hypothetical to the VE, the ALJ made clear that the hypothetical individual would need to be able to take his breaks as needed. Tr. 55. In responding to the hypothetical, the VE noted that such a limitation would restrict the availability of jobs. Tr. 55-56. However, she also indicated that there were jobs available that would allow for flexibility in the timing of the breaks. Tr. 56-57. She then proceeded to identify examples, i.e., clerical jobs, packing jobs and table assembler jobs. Tr. 56-57.
Because the VE hypothetical upon which the ALJ relied adequately accounted for and incorporated the limitations that the ALJ found to be credible and supported by the record, the ALJ's reliance upon the VE testimony in response to that hypothetical was proper and constitutes substantial evidence to support his Step Five determination.
For the foregoing reasons, the undersigned recommends that the Commissioner's decision be
