THOMAS M. PARKER, Magistrate Judge.
Plaintiff Cynthia A. Stockdale seeks judicial review of the final decision of the Commissioner of Social Security denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). This matter is before the court pursuant to 42 U.S.C. §405(g), 42 U.S.C. §1383(c)(3) and Local Rule 72.2(b).
Because substantial evidence supported the Commissioner's disposition of plaintiff's application before the Commissioner, I recommend that the final decision of the Commissioner be
Plaintiff protectively applied for DIB on August 14, 2013. (Tr. 150) Ms. Stockdale alleged that her disability began on September 3, 2012. (Tr. 150) Plaintiff's application was denied initially and after reconsideration. (Tr. 104, 113) On February 7, 2014, plaintiff requested an administrative hearing. (Tr. 120)
Administrative Law Judge Tammy Georgian. ("ALJ") heard the case on May 5, 2105. (Tr. 27-76) The ALJ denied plaintiff's applications for benefits on June 12, 2015. (Tr. 10-22) Plaintiff requested review of the ALJ's decision on August 6, 2015. (Tr. 6) The appeals council denied review in a decision dated July 26, 2016 (Tr. 1), rendering the ALJ's decision the final decision of the Commissioner.
Ms. Stockdale was 56 years old at the time of her administrative hearing. (Tr. 150) She completed high school and has past work experience as an accounting clerk, an order clerk and administrative assistant. (Tr. 18, 35-38)
Plaintiff's primary care doctor, David C. Parris, diagnosed plaintiff with depression. She saw him on July 10, 2009 (more than three years before the alleged disability onset date) to follow up on this condition. Plaintiff reported feeling "OK" and denied having any crying spells. Dr. Parris discussed plaintiff's prescriptions with her and noted that her depression was stable. (Tr. 464)
Plaintiff returned to Dr. Parris on September 26, 2009 with a cough and congestion. Dr. Parris noted that plaintiff was doing well on Pristiq and that she had "no depression." She was still looking for a job. (Tr. 463) On September 21, 2011, Dr. Parris continued to note that Pristiq was helping with plaintiff's depression. (Tr. 462)
On July 23, 2012, plaintiff met with Dr. Parris for medication refills. She still was taking Pristiq and took Lorazepam every couple of days. She denied any dyspnea at rest or exertion, chest pain, palpitations, or edema. (Tr. 461)
Plaintiff was admitted to the hospital on September 3, 2012 for a myocardial infarction of her acute interior wall. (Tr. 212) She complained of chest pain and shortness of breath at the emergency room. (Tr. 235) Plaintiff underwent a left heart catheterization, a coronary artery angiography, followed by stent of the left coronary artery. (Tr. 209-211) Before the procedure, plaintiff's' left coronary artery was totally occluded; after the procedure occlusion was at 0%. (Tr. 211) Two days later, plaintiff had a stent placed in her right coronary artery. (Tr. 207, 255)
On September 20, 2012, plaintiff returned to the emergency room complaining of weakness, lethargy, and fatigue. (Tr. 387) Dr. Shreeniwas Lele admitted Stockdale to the hospital because of severe anemia. Blood infusions were administered. (Tr. 387) Plaintiff followed up with Dr. Lele on September 28, 2012. She reported that she was back to normal and feeling better overall. (Tr. 459) She denied any chest pain or shortness of breath. (Tr. 459) Physical examination returned normal results. (Tr. 459)
From December 8, 2012 to December 13, 2012 plaintiff received in-patient care at Lake Hospital for rectal bleeding. (Tr. 323) Plaintiff underwent a colonoscopy and had a small polyp removed. (Tr. 310) She had bleeding following the polypectomy, but cauterization stopped the bleeding. (Tr. 310)
Plaintiff had a follow-up appointment with Dr. Lele on December 20, 2012. (Tr. 457) Dr. Lele noted that plaintiff was "a happy fellow." She was doing much better and had no further bleeding or black stool. She also denied any chest pain or shortness of breath. (Tr. 457)
On January 10, 2013, plaintiff had another follow-up appointment with Dr. Lele. Plaintiff denied any chest pain or shortness of breath. With the exception of a small amount of bleeding from a hemorrhoid, her rectal bleeding had stopped. She did report, however, that she was feeling weak, tired, fatigued and exhausted. Dr. Lele noted plaintiff's coronary artery disease and hypertension were stable with her current medications and that her anemia was much better. (Tr. 455)
Plaintiff followed up with Dr. Parris on April 12, 2013. (Tr. 454) She denied chest pains or difficulties breathing. She complained of being tired and forgetful. She was having hot flashes and was moody. Dr. Parris told plaintiff she could stop taking iron. He noted that she was going to start Weight Watchers. Her weight was 311 pounds. (Tr. 454)
Plaintiff followed up with her cardiologist, Roger Espinosa, M.D., on April 30, 2013. (Tr. 260) She denied any cardiac symptoms such as chest pain, shortness of breath, dizziness or fatigue. (Tr. 260) Plaintiff's physical exam was normal and she had no neurologic abnormalities. (Tr. 260)
Plaintiff met with Dr. Lele on May 6, 2013 complaining of a swollen right cheek, sinus pain and headache. (Tr. 450) Plaintiff reported that she was not feeling poorly or tired and she did not have a fever or chills. (Tr. 450) Plaintiff had a normal physical exam. Dr. Lele diagnosed facial cellulitis and thought that it might have been caused by dental issues. He prescribed antibiotics and told her to see her dentist. (Tr. 453)
Plaintiff followed up with Dr. Parris on July 12, 2013. (Tr. 446-449) By then, she had been off of iron for three months and had no cough, wheezing or labored breathing. She had no signs of bleeding. She reported feeling fatigued. Plaintiff's weight was 321 pounds. Plaintiff said she was seriously thinking about going on a diet. (Tr. 448-449)
Plaintiff saw Dr. Parris again on September 23, 2013 and reported right ankle pain. (Tr. 479) She denied any chest pain, palpitations, cough or dyspnea. She did, however, say that she tired easily on steps. Plaintiff also requested a Plavix refill. (Tr. 479-482) Plaintiff met with Dr. Parris again on April 10, 2014. She denied any chest pain or wheezing. But she reported being more depressed and weepy. She weighed 331 pounds. Dr. Parris noted that plaintiff's mood and affect were normal and she had a normal physical examination. (Tr. 508-511)
Plaintiff next saw Dr. Parris on October 13, 2014. She had twisted her knee at her daughter's wedding and was still having occasional medial pain. She reported moodiness and days that she would cry all day. She denied any chest pain or palpitations; she had no wheezing or dyspnea. Plaintiff's weight was up to 338 pounds. (Tr. 504-506) Examination revealed that plaintiff's left knee was "somewhat puffy," non-tender to palpation of the joint space, full range of motion without pain. (Tr. 507)
Plaintiff saw Dr. Parris on April 14, 2015. She complained of knee pain, ankle pain and finger pain "all the time." She reported hot flashes along with mood swings and anxiety. She requested a disabled parking pass due to her joint pain. She reported low moods and forgetfulness. She told Dr. Parris she had a disability hearing next week and that her attorney wanted Dr. Parris to complete a disability evaluation. Plaintiff's weight was 323 pounds. (Tr. 499 — 503)
Plaintiff met with Dr. Espinosa on April 14, 2015 for a follow up appointment for her coronary heart disease. (Tr. 496) Plaintiff denied any cardiac related symptoms such as chest pain, syncope, fatigue, shortness of breath or dizziness. (Tr. 496)
Paul G. Josell, Psy.D, conducted a psychological evaluation on September 17, 2013. (Tr. 470-473) Plaintiff reported that she tended to fatigue easily since her heart attack. She also reported some difficulty with short-term memory, even though it appeared to be intact during the examination. (Tr. 470) Plaintiff stated that she had never received any formal mental health treatment, she reported experiencing a major depressive episode and increased anxiety in 2009. Her primary care physician prescribed medication for these conditions. Dr. Josell diagnosed major depressive disorder, single episode, partial remission, heart disease, ulcers, high cholesterol hypertension and obesity. He did not find any work related impairments and assigned a GAF score of 68. (Tr. 472-473)
Non-examining state reviewing physician, Bruce Goldsmith, Ph.D. reviewed plaintiff's records on October 3, 2013. (Tr. 81-83) Dr. Goldsmith opined that plaintiff had no restrictions in her activities of daily living, no difficulties in maintaining social functioning, no difficulties in maintaining concentration, persistence or pace, and no repeated episodes of decompensation. (Tr. 83)
On February 3, 2014, Dr. Robelyn Marlow reviewed plaintiff's file and affirmed the opinions expressed by Dr. Goldsmith. (Tr. 96)
On October 7, 2013, Dr. Michael Lehv reviewed plaintiff's medical records and opined that she was capable of performing work at the light exertional level, but was limited to standing/walking for only four hours in an eight-hour workday; could not climb ladders, ropes or scaffolds; only occasional balancing; but unrestricted in her ability to perform other postural activities. She was also required to avoid all exposure to hazards. (Tr. 84-87)
Dr. Sreenivas Venkatachala also reviewed plaintiff's file on February 3, 2014 and affirmed that plaintiff could perform a reduced range of light work but restricted plaintiff to only occasional postural activities due to her obesity. (Tr. 98-99)
Plaintiff offered the following summarized testimony at the May 5, 2015 ALJ hearing:
Stephen Davis, a vocational expert ("VE"), also testified. (Tr. 49-75)
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)(A).
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:
20 C.R.F. §§ 404.1520, 416.920; Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). Under this sequential analysis, the claimant has the burden of proof at Steps One through Four. Walters v. Comm'r of Soc. Sec. 127 F.3d 525, 529 (6
The ALJ issued a decision on June 12, 2015. A summary of her findings is as follows:
Based on the foregoing, the ALJ determined that Ms. Stockdale had not been under a disability from September 3, 2012, the alleged onset date. (Tr. 21-22)
This court's review is limited to determining whether substantial evidence in the record supports the ALJ's findings and whether the ALJ applied correct legal standards. See Elam v. Comm'r of Soc. Sec., 348 F.3d 124, 125 (6
The Act provides that "the findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. §§ 405(g) and 1383(c)(3). The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Buxton v. Halter, 246 F.3d 762, 772-3 (6
The court must also determine whether the ALJ applied correct legal standards. If not, reversal is required unless the legal error was harmless. See e.g. White v. Comm'r of Soc. Sec. 572 F.3d 272, 281 (6
Finally, a district court cannot uphold an ALJ's decision, even if there "is enough evidence in the record to support the decision, [when] the reasons given by the trier of fact do not build an accurate and logical bridge between the evidence and the result." Fleischer v. Astrue, 774 F.Supp.2d 875, 877 (N.D. Ohio 2011) (quoting Sarchet v. Chater, 78 F.3d 305, 307 (7
Plaintiff claims that the ALJ erred at Step Three of her sequential analysis in failing to explain why the claimant did not meet or medically equal the "appropriate Impairment Listing."
Defendant argues that plaintiff did not direct the court to any specific Listing the ALJ should have analyzed or pointed to medical evidence showing that she met all the criteria for any Listing.
At Step Two of her sequential evaluation, the ALJ found that plaintiff's obesity, cardiomyopathy and her hypertensive vascular disease were severe impairments. At Step Three, the ALJ stated:
(Tr. 15) Plaintiff argues that the Sixth Circuit Court of Appeals decision in Reynolds v. Comm'r, 424 Fed. App'x (6
In Reynolds, the ALJ found that plaintiff had a physical and mental impairment at Step Two of his analysis. At Step Three, the ALJ concluded that claimant did not "have an impairment or combination of impairments which, alone or in combination, meet sections 1.00 or 12.00 of the Listings." Id. at 415. He then thoroughly analyzed plaintiff's mental impairment pursuant to the substantial evidence standard but failed to complete his Step Three analysis for the claimant's physical impairment. Id. The court of appeals found that the ALJ erred by failing to analyze Reynolds' physical condition in relation to the Listed Impairments. Id. at 416. The court also held that the ALJ's error was not harmless and that correction of the error was not merely formalistic because it was possible, considering the evidence that he had put forth, that Reynold's impairment could meet the Listing. Id.
At first glance, the Reynolds holding and its progeny appear to be on point and lead to the conclusion that the ALJ here also failed to adequately conduct a Step Three analysis. However, Reynolds has been undermined by more recent Sixth Circuit decisions. See Roby v. Colvin, 2016 U.S. Dist. LEXIS 3924, *8 (W.D. Ky., Jan. 13, 2016). Current Sixth Circuit law shows how this action must be distinguished from Reynolds. In Forrest v. Comm'r of Soc. Sec., 591 F. App'x 359 (6
Similarly, in Malone v. Comm'r of Soc. Sec., 507 F. App'x 470 (6
Plaintiff had the burden of showing that her impairments were equal or equivalent to a listed impairment. Id., citing Foster v. Halter, 279 F.3d 348, 354 (6
Plaintiff has not met that burden in this case. Plaintiff did not argue that any of her impairments met the listings at the administrative hearing. Nor does her brief identify what Listing she claims to meet or identified medical evidence to support her argument.
The ALJ's review of the evidence showed that none of plaintiff's impairments interfered with her ability to do unskilled work. The ALJ recognized that plaintiff had a heart attack in September 2012 and underwent a successful heart surgery with associated artery stenting. Plaintiff was described on numerous later occasions as "not being in any physical distress." The ALJ also placed great significance on the fact that "the claimant had been described on numerous occasions since September 3, 2012, as being neurologically intact, and/or as having normal strength and sensation, and/or essentially normal strength and sensation, in her lower and upper extremities, and/or as having a normal gait." (Tr. 17)
In considering plaintiff's obesity, the ALJ noted that the plaintiff had been able to engage in substantial gainful activity in her past relevant work despite her obesity. (Tr. 17) The ALJ also noted that many of the plaintiff's subjective statements suggested that her impairments were not causing significant functional limitations.
(Tr. 17-18) The ALJ also noted that there was no evidence that the claimant had experienced significant, adverse, or ongoing medication side effects. (Tr. 18) Nor was there any evidence that any treating source had restricted the claimant in terms of basic work activities. (Tr. 18)
The undersigned finds that this case must be distinguished from the cases cited by plaintiff. Although the ALJ's Step Three analysis was arguably too conclusory, a review of the entire ALJ decision leads to the inescapable conclusion that the ALJ's finding that plaintiff met no listed impairments was supported by substantial evidence. Therefore, even if the ALJ erred in her Step Three analysis, it was a harmless error. Plaintiff identified no medical signs or laboratory findings showing that her impairments met or equaled a listed impairment in duration and severity. Plaintiff did not meet her burden of proof. The undersigned recommends that the court affirm the ALJ's decision at Step Three.
Plaintiff's second argument relates to her first. She argues that the ALJ did not properly evaluate or analyze her obesity at Step Three. As discussed above, the ALJ's alleged failure to provide a more thorough discussion of her Step Three finding was harmless error at worst. Plaintiff produced no evidence establishing that her obesity, singularly or in combination with her other impairments, met or medically equaled a listed impairment. There is no evidence that plaintiff's obesity caused any functional deficits beyond those identified by the ALJ, and she was previously able to engage in substantial gainful activity despite her obesity. Plaintiff argues that the ALJ erred by failing to consider SSR 02-01p. However, that policy interpretation ruling on obesity actually demonstrates why a remand to the ALJ would be pointless in this case. See Roby, 2016 U.S. Dist. LEXIS at *10.
SSR 02-01p, 2002 SSR LEXIS 1, states, in relevant part:
SSR 02-01p, 2002 SSR LEXIS at **12-15. (Emphasis added) Plaintiff argues that the ALJ did not consider SSR 02-01p when evaluating her obesity, but she points to no evidence showing that her obesity increased the severity of her functional limitations beyond those accommodated in the RFC. The ALJ discussed plaintiff's medical records and pointed to numerous records describing plaintiff as not having any cardiac symptoms. Plaintiff offered no evidence showing that she had trouble ambulating or that she had other functional limitations due to obesity. Plaintiff testified that she had a driver's license and was able to drive; she regularly went grocery shopping and refused to use the riding carts at the store, even though she testified that she had trouble walking. (Tr. 44) She showered, did housework, prepared meals, crocheted and used a computer on a daily basis. (Tr. 42, 43) Plaintiff indicated that her knee hurt when she walked, possibly due to her weight. (Tr. 42) However, Stockdale's past relevant work did not require a significant amount of walking, and the ALJ limited plaintiff's RFC to light work with walking limited to four hours. Plaintiff testified that the main issues that prevented her from working were her mood swings and anxiety attacks. (Tr. 39)
SSR 02-1p "does not mandate a particular mode of analysis," but it "directs an ALJ to consider the claimant's obesity in combination with other impairments at all states of the sequential evaluation." Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 577 (6
Plaintiff cites Shilo v. Comm'r of Soc. Sec., 600 F.App'x 956, 959 (6
As noted above, plaintiff had the burden of showing that her impairments were equal or equivalent to a listed impairment. Malone, 507 F. App'x at 472. Plaintiff did not meet that burden in this case. She has not directed the court to any medical evidence showing that she met or medically equaled any listing. Nor has she offered any objective medical evidence to show that her obesity, singularly or in combination with her other impairments, met or medically equaled a listed impairment. The ALJ's failure to more thoroughly evaluate plaintiff's obesity at Step Three of her sequential evaluation was inconsequential. See Roby, 2016 U.S. Dist. LEXIS, at *8; Forrest, 591 F.App'x at 364, 366; Malone, 507 F. App'x at 472.
Plaintiff also argues that the ALJ did not support her RFC finding with substantial evidence.
An ALJ's residual functioning capacity determination is proper when it is based upon "all of the relevant medical and other evidence." 20 C.F.R. § 416.945 (a) (3). At its most basic level, a claimant's residual functional capacity is simply an indication of [her] work-related abilities despite her limitations. See 20 C.F.R. § 404.1545(a)(1). The residual functional capacity is not a medical opinion, but an administrative determination reserved to the Commissioner. See 20 C.F.R. § 404.1527(e)(2). Accordingly, the ALJ bears the responsibility for determining a claimant's residual functional capacity, based on all of the relevant evidence. See 20 C.F.R. § 404.1545(a)(3).
Under 42 U.S.C. § 405(g), the findings of the ALJ are conclusive if they are supported by substantial evidence. The substantial evidence standard presupposes that there is a "zone of choice" within which the Agency may proceed without interference from the courts. Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). The ALJ's decision must be affirmed if it is supported by substantial evidence even if the reviewing court would have decided the matter differently and substantial evidence also supports a different conclusion. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999); Mullen, 800 F.2d at 545.
Plaintiff first complains that the ALJ erred in relying on the reviewing physician's opinions because they were formed before all of the medical records were reviewed. After the administrative hearing, plaintiff submitted an additional 32 pages of medical records. (Tr. 496-527) As argued by defendant, "[t]here is no regulation or case law that requires the [administrative law judge] to reject an opinion simply because medical evidence is produced after the opinion is formed." Mount v. Comm'r of Soc. Sec., 2013 U.S. Dist. LEXIS 83358 *29 (S.D. Ohio June 13, 2013) (quoting Williamson v. Comm'r of Soc. Sec., No. 1:11-cv-828, 2013 U.S. Dist. LEXIS 10706, 2013 WL 121813, at *7 (S.D. Ohio Jan. 9, 2013)). "Indeed, the regulations provide only that an [administrative law judge] should give more weight to an opinion that is consistent with the record as a whole." Id. (citing 20 C.F.R. §§ 404.1527(c)(4), 416.927(c)(4)). Here, the ALJ had the opportunity to review the entire record including the additional medical records submitted by plaintiff after the hearing. The ALJ determined that the opinions of the reviewing physicians were supported by the evidence in the record and noted that they were uncontradicted. (Tr. 18) Plaintiff's additional medical records do not contradict the opinions formed by the reviewing physicians. These records show little change in plaintiff's medical condition and contain additional notes stating that plaintiff was not having any cardiac related symptoms. (Tr. 496, 508) Indeed, plaintiff does not argue otherwise. Nor does she identify what information in these records contradicts the findings of the reviewing physicians. Consequently, this argument is unpersuasive as applied to the facts of this case.
Plaintiff next argues that the ALJ improperly weighed the reviewing physicians' opinions because they were not examining sources. Plaintiff cites 20 C.F.R. 404.14527(c) which provides factors to be considered in weighing medical opinions, including whether the opinion is from an examining source. The regulation states that more weight is given to "the medical opinion of a source who has examined you than to the medical opinion of a medical source who has not examined you." Id. However, plaintiff does not specifically indicate how the ALJ improperly weighed the opinions here. The fact that the reviewing physicians were non-examining sources is a factor to be considered. However, in this case, there were no opinions from examining sources. Thus, this is not a case in which the ALJ improperly assigned more weight to the opinion of a non-examining source than to an examining one. And it is otherwise unclear why plaintiff believes the ALJ did not apply the factors stated in 20 C.F.R. 404.14527(c). This argument also lacks merit.
Finally, plaintiff cites cases holding that the ALJ cannot speculate about the seriousness of the claimant's medical condition. See Liskowitz v. Astrue, 559 F.3d 736 (7
The court should find that the ALJ properly considered and weighed the evidence, including the medical opinion evidence; that she properly determined that plaintiff did not meet or medically equal the criteria for a listed impairment; and that she properly determined plaintiff's residual functional capacity. The court should further find that substantial evidence supported the ALJ's decision and that Ms. Stockdale has not demonstrated a basis upon which to reverse or remand the Commissioner's decision. Accordingly, I recommend that the final decision of the Commissioner be AFFIRMED, pursuant to 42 U.S.C. § 405(g).