DAVID A. RUIZ, Magistrate Judge.
Plaintiff, Leslie Mausar (hereinafter "Plaintiff"), challenges the final decision of Defendant Nancy A. Berryhill, Acting Commissioner of Social Security (hereinafter "Commissioner"), denying her applications for a Period of Disability ("POD"), Disability Insurance Benefits ("DIB"), and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. ("Act"). This court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.
On June 3, 2013, Plaintiff filed her applications for POD, DIB, and SSI, alleging a disability onset date of February 9, 2012. (Transcript ("Tr.") 242). The application was denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 77-148). Plaintiff participated in the hearing on June 16, 2015, was represented by counsel, and testified. (Tr. 42-76). A vocational expert ("VE") also participated and testified. Id. On July 27, 2015, the ALJ found Plaintiff not disabled. (Tr. 35). On January 9, 2017, the Appeals Council declined to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-4). On March 7, 2017, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 14 & 15).
Plaintiff asserts the following assignments of error: (1) the ALJ erred in assessing the Plaintiff's credibility, and (2) the ALJ erred in her evaluation of Plaintiff's fibromyalgia. (R. 14).
On January 23, 2012, Plaintiff was seen in the emergency room ("ER") at St. Francis Hospital in Columbus, GA for a headache and was diagnosed with a migraine. (Tr. 360-364).
On January 30, 2012, Plaintiff was seen by Terry Cone, M.D., for the first time. (Tr. 342). She complained of moles on her back and neck that she wanted removed. Id. She was 5'3" tall and weighed 218 pounds. Id. Although she had only 8 of 18 positive tender points, Dr. Cone noted that Plaintiff's medical history supported a diagnosis of fibromyalgia, but wrote that he had not found the requisite 11 tender points. Id. Dr. Cone speculated that treatment for fibromyalgia may have moderated her symptoms. Id. There was also a diagnosis of migraines and insomnia. Id. Plaintiff indicated joint pain in her wrists, elbows, ankles, knees, spine, and hips. (Tr. 343). Plaintiff related that she could not perform her activities of daily living without difficulty. Id.
On March 23, 2012, Plaintiff told Dr. Cone that she had difficulty sleeping, and that Propranolol made her drowsy during the day even when she only took it at night. (Tr. 340).
On April 25, 2012, Plaintiff again reported to the ER complaining of a headache and a history of previous headaches. (Tr. 380). Plaintiff had full, normal range of motion in her extremities. (Tr. 382). She was discharged the same day and diagnosed with a migraine. (Tr. 383).
On June 4, 2012, Plaintiff was seen by Mark R. Sexton, M.D., for the first time seeking treatment for fibromyalgia. (Tr. 537). On examination, Plaintiff had no muscle aches or weakness and no arthralgia/joint pain, swelling in the extremities, or back pain. (Tr. 538). She ambulated normally. Id. Dr. Sexton diagnosed "migraine with aura without mention of intractable migraine without mention of status migrainosus; without mention of refractory migraine without mention of status migrainosus," as well as myalgia and mytosis, unspecified. (Tr. 539).
On July 21, 2012, Plaintiff again reported to the ER complaining of a migraine headache. (Tr. 347-348). She also complained of nausea and photophobia. (Tr. 348). Plaintiff had full, normal range of motion in her extremities. (Tr. 382). She was discharged the same day and diagnosed with a migraine. (Tr. 351).
On September 1, 2012, Plaintiff again reported to the ER complaining of a migraine headache. (Tr. 354). She was discharged the same day, prescribed Vicodin, and diagnosed with a migraine. (Tr. 359).
On September 17, 2012, Dr. Sexton saw Plaintiff for right hip pain that started the previous day. (Tr. 526-527). A review of her musculoskeletal symptoms revealed "no muscle aches or weakness, and arthralgias/joint pain; swelling in the extremities, or back pain;
On November 4, 2012 and January 19, 2013, Plaintiff sought treatment for migraine headaches at the ER. (Tr. 365, 374)
On December 6, 2012, Plaintiff was seen at the Nexus Pain Center by Sung Chang, M.D. (Tr. 488-492). Plaintiff was diagnosed with sacroiliitis (primary), cervical disc degeneration, fibromyalgia, radicular syndrome of lower limbs, trochanteric bursitis, and headache, migraine. (Tr. 491). She was continued on Cymbalta for fibromyalgia. Id.
On December 14, 2012, Plaintiff was again seen by Dr. Chang. (Tr. 485-488). He assessed sacroiliitis and proceeded with bilateral SI joint injections for diagnostic and therapeutic purposes. (Tr. 486). Plaintiff's pre-operation pain was 7/10 lowered to 0/10 post-operatively. (Tr. 488).
On January 4, 2013, Dr. Chang administered a GTB injection for Plaintiff's trochanteric bursitis. (Tr. 479). On the same day, an MRI of Plaintiff's cervical spine yielded an impression of a one mm ventral bulging disc, no focal disc herniation nor bony spinal stenosis, and no narrowing of bony spinal canal of less than 10 mm. (Tr. 494-495). An MRI of Plaintiff's lumbar was unremarkable. (Tr. 496-497). Nonetheless, on January 25, 2013, Dr. Chang noted that an MRI of Plaintiff's lumbar spine was "remarkable for a small disc protrusion L5-S1 level. (Tr. 472). Dr. Chang went ahead with right-sided transforaminal epidural steroid injections at the L5-S1 level. Id.
On February 19, 2013, Plaintiff was seen by Jonathan Liss, M.D., a neurologist, for her migraine headaches. (Tr. 432). Plaintiff told Dr. Liss that her headaches were "constant" and throbbing;" accompanied by nausea, photopobia, and phonophobia; and were "incapacitating." Id. Plaintiff reported that some months she experienced fifteen or more days of headaches, and other months she was headache-free. (Tr. 435). On examination, Plaintiff's muscle bulk, tone, and strength were all normal. (Tr. 436). Dr. Liss diagnosed migraines and prescribed Depakote for migraine prevention. (Tr. 437). Dr. Liss told Plaintiff that she was at risk for developing rebound headaches due to overuse of narcotics. Id. Plaintiff indicated that she understood but would, nevertheless, continue to use them for treatment of fibromyalgia. Id.
On March 21, 2013, Plaintiff again complained of pain all over her body. (Tr. 460). Dr. Chang diagnosed bursitis of the knee and fibromyalgia. (Tr. 462). On the same day, Plaintiff was seen again by Dr. Liss complaining of a headache and noting five total over the previous month of which four were severe. (Tr. 426).
On March 27, 2013, Plaintiff was seen for a follow-up and requested an adjustment to her medications. (Tr. 457). She denied any change in bowel or bladder function, any weakness/numbness in the lower extremities, and denied any sedation or impairment. Id.
On April 15, 2013, Plaintiff was seen by Dr. Liss and diagnosed with migraines, nausea and vomiting, fibromyalgia, and morbid obesity. (Tr. 425).
On April 18, 2013 and April 25, 2013, Dr. Chang noted Plaintiff had "tender areas, both above and below the waist, bilaterally, on at least 11/18." (Tr. 452, 455). He noted the same presence of tender areas on May 2, 2013 and May 16, 2013. (Tr. 441-442 448).
On May 22, 2013, Dr. Liss wrote that the frequency of Plaintiff's headaches had decreased, with none over the past ten days. (Tr. 501). Her diagnosis remained unchanged. (Tr. 502).
On August 6, 2013, Plaintiff was seen by Kirstie Freeman, NPC. (Tr. 542-545). She had normal gait, and showed normal strength bilaterally in her upper and lower extremities. (Tr. 544).
On August 13, 2013, Plaintiff reported to Dr. Liss that her migraines had increased to about 20 days per month, most of which were "very bad." (Tr. 599). Dr. Liss also noted Plaintiff complained of blurred vision, vision change and visual disturbance; excessive daytime sleepiness; headache and speech difficulties; joint stiffness and back pain; and cold tolerance. Id. Dr. Liss stated that Plaintiff appears to be having "hypnic jerks," for which he prescribed Klonopin. (Tr. 601).
On January 7, 2014, Plaintiff was seen by Dr. Liss for Botox injections to treat her headaches. (Tr. 646). Plaintiff reported significant benefit from Klonopin for treatment of her hypnic jerks. (Tr. 648).
On January 17, 2014, Plaintiff presented for a planned right side joint injection in her knee. (Tr. 626). On January 31, 2014, she received a steroid injection. (Tr. 624). On February 7, 2014, Plaintiff was diagnosed with radicular syndrome of lower limbs, and again received a lumbar, transforaminal steroid injection. (Tr. 618-620). Dr. Chang noted the presence of crepitus on extension of the right knee. (Tr. 619). At a follow up on March 3, 2014, Plaintiff reported that the right lumbar injections had reduced her pain by 98%, and that the injections in the left knee had yielded a 90% reduction in pain. (Tr. 644). However, Plaintiff reported that she could not tolerate further Suparz injections to the right knee. Id.
On April 1, 2014, Plaintiff reported to Dr. Liss that the Botox injections had not been helpful. (Tr. 650).
On May 2, 2014, Dr. Chang recommended a referral to a rheumatologist for pain in multiple joints. (Tr. 641).
On June 11, 2014, Plaintiff told Dr. Liss that her Atacand medication had failed to reduce the frequency of her migraines. (Tr. 654). At that visit, Dr. Liss performed another Botox injection. (Tr. 656). Plaintiff was also started on Keppra. Id.
On January 30, 2015, Dr. Chang noted normal gait, and normal strength bilaterally in the upper and lower extremities. (Tr. 709). Plaintiff was observed to have lumbar spinal pain with radicular pain consistent with the L5 dermatome and was administered an epidural injection. (Tr. 709-710).
On April 10, 2015, Dr. Chung noted that Ms. Mausar's low back pain had not returned since the last epidural steroid injections he had performed. (Tr. 835). She did, however, report radicular pain. Id.
On October 9, 2015, Plaintiff was seen by Dr. Sexton. (Tr. 851-52). Plaintiff was diagnosed with fibromyositis, chronic pain syndrome, and depressive disorder. (Tr. 852). Plaintiff reported "arthralgias/joint pain," but "no muscle aches, no muscle weakness, no back pain, and no swelling in the extremities . . . no sleep disturbance . . . no night sweats, no significant weight gain, no significant weight loss, and no exercise intolerance." (Tr. 851). On physical examination, she ambulated normally. (Tr. 852).
On February 10, 2011, Plaintiff underwent a psychological consultative examination at the request of the Bureau of Disability Determination. (Tr. 334). She was seen by clinical psychologist Richard Halas, M.A. Id. Mr. Halas assessed a Global Assessment of Functioning ("GAF") score of 55, indicative of moderate symptoms.
On September 19, 2013, State Agency physician Glenn James, M.D., reviewed the record and determined that Plaintiff suffers from fibromyalgia and migraines. (Tr. 135-138). He opined that, in an 8-hour workday, Plaintiff could lift 20 pounds occasionally and 10 pounds frequently, stand/walk for 6 hours, and sit for 6 hours. (Tr. 136). He did not find any postural, manipulative, visual, communicative, or environmental restrictions. Id. Dr. James explained that the assessed limitations were based on Plaintiff's pain symptoms to the extent they were credible, but noted that treatment notes found Plaintiff had normal "gait, neuro, motor function despite pain." (Tr. 136).
At the June 16, 2015 hearing, Plaintiff testified as follows:
The VE classified Plaintiff's past relevant work as follows: delivery truck driver, Dictionary of Occupational Titles ("DOT") 905.663-014, heavy and semi-skilled with an SVP of 4;
The ALJ posed the following hypothetical question to the VE:
(Tr. 68). The VE testified that such an individual could not perform Plaintiff's past relevant work. (Tr. 68-71). However, the VE identified the following jobs that such an individual with the aforementioned limitations could perform: mail clerk, DOT 209.667-026 (18,000 jobs nationally); ticket seller, DOT (10,000 jobs or more nationally); and, laundry folder, DOT 369.687-018 (16,000 jobs nationally). (Tr. 72-73).
The ALJ posed a second hypothetical keeping "the same vocational profile as Exhibit 7B, can perform sedentary work," with "no operation of foot controls, no climbing stairs, ladders, ropes, scaffolds, no kneeling, bouncing, crawling, no excessive vibration, unprotected heights, hazardous machinery, as well as stick to unskilled work activity with no more than occasional direct contact with the general public." (Tr. 73). The VE identified the following jobs that such an individual could perform: final assembler, DOT 713.687-018 (67,000 jobs nationally); cutter and paster, press clippings, DOT 249.587-014 (38,000 jobs national); and, semiconductor bonder, DOT 726.685-066 (27,000 jobs nationally). (Tr. 73-74).
The VE testified that at the unskilled level, employers tolerate between one and two unscheduled, unplanned absences per month. (Tr. 74). In response to a question from Plaintiff's counsel, the VE testified that an individual who is going to be absent five to ten days of work per month on a consistent basis and who required extra work breaks would be incapable of full-time work. (Tr. 75).
A claimant is entitled to receive benefits under the Social Security Act when she establishes disability within the meaning of the Act. 20 C.F.R. § 404.1505 & 416.905; Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524 (6
The Commissioner determines whether a claimant is disabled by way of a five-stage process. 20 C.F.R. § 404.1520(a)(4); Abbott v. Sullivan, 905 F.2d 918, 923 (6
The ALJ made the following findings of fact and conclusions of law:
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Claimant is "not disabled," whether or not Claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
(Tr. 22-35).
Judicial review of the Commissioner's decision is limited to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512 (6
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. White v. Comm'r of Soc. Sec., 572 F.3d 272, 281 (6
In her first assignment of error, Plaintiff contends that the ALJ erred in the assessment of her credibility. According to SSR 96-7p, 1996 WL 374186 (July 2, 1996) (as well as SSR 16-3p), evaluating an individual's alleged symptoms entails a two-step process. First, an ALJ must determine whether a claimant has a "medically determinable impairment" that could reasonably produce a claimant's alleged symptoms.
However, "an ALJ is not required to accept a claimant's subjective complaints and may properly consider the credibility of a claimant when making a determination of disability." Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6
Nevertheless, while an ALJ's credibility determinations concerning a claimant's subjective complaints are left to his or her sound discretion, those determinations must be reasonable and supported by evidence in the case record. See, e.g., Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 249 (6
Here, the ALJ expressly acknowledged she must follow a two-step process to determine whether Plaintiff's symptoms were credible. (Tr. 26). Plaintiff asserts the ALJ's reasoning was "inaccurate and inconsistent" and failed to follow the applicable regulations. (R. 14, PageID# 925). Conversely, the Commissioner asserts that the ALJ conducted a proper credibility analysis, which comported with the regulations and the Social Security Administration's policies. (R. 15, PageID# 948-955).
First, the decision provided a thorough and extensive summary of Plaintiff's alleged limitations as set forth in the hearing testimony. (See Tr. 27-28). The ALJ also recounted Plaintiff's alleged limitations as stated in the "Function Report — Adult" form Mausar completed on August 21, 2013. (Tr. 26-27, citing Exh. B9E). The ALJ proceeded to address the credibility of these allegations in a lengthy analysis:
(Tr. 28-33).
In addition to discussing the objective medical evidence that revealed normal gait, normal muscle strength in all areas, lack of any muscle atrophy, observations by medical personnel inconsistent with Plaintiff's allegations, and other evidence tending to discredit the extremely restrictive limitations alleged by Plaintiff, the above cited passage reveals that the ALJ discussed several of the above-cited seven factors for finding Plaintiff less than fully credible. These included Plaintiff's daily activities, the frequency and intensity of Plaintiff's fibromyalgia and migraines, the effectiveness and side effects of medication, as well as other treatment such as epidural steroid injections. (Tr. 28-33). Plaintiff concedes the ALJ did consider some of the seven factors, but characterizes the analysis as "woefully deficient" because it did not discuss other factors. (R. 14, PageID# 926, 928). An ALJ, however, is not required to analyze all seven factors, but should consider the relevant evidence. See, e.g., Cross v. Comm'r of Soc. Sec., 373 F.Supp.2d 724, 733 (N.D. Ohio 2005) (Baughman, M.J.) ("The ALJ need not analyze all seven factors identified in the regulation but should provide enough assessment to assure a reviewing court that he or she considered all relevant evidence"); Masch v. Barnhart, 406 F.Supp.2d 1038, 1046 (E.D. Wis. 2005) (finding that neither SSR 96-7p nor the regulations "require the ALJ to analyze and elaborate on each of the seven factors when making a credibility determination"); Wolfe v. Colvin, No. 4:15-CV-01819, 2016 WL 2736179 at *10 (N.D. Ohio May 11, 2016) (Vecchiarelli, M.J.); Allen v. Astrue, No. 5:11CV1095, 2012 WL 1142480, at *9 (N.D. Ohio Apr. 4, 2012) (White, M.J.).
Plaintiff also attempts to rebut the ALJ's analysis regarding the credibility as to the frequency of her migraines and her pain levels by pointing to her own statements made to medical providers regarding the same. (R. 14, PageID# 926-927). Plaintiff asserts that her statements to treatment providers throughout the record were consistent with her hearing testimony. Id. Plaintiff, however, cites no law suggesting that an ALJ must find a claimant credible simply because her statements regarding the severity of her symptoms may have been consistent.
The ALJ's credibility discussion adequately comported with the regulations and SSR 96-7p. Thus, Plaintiff's first assignment of error is without merit.
In the second assignment of error, Plaintiff asserts the ALJ fails to grasp the nature of fibromyalgia, noting that the "ALJ seem[ed] to expect to find objective findings, but with fibromyalgia, there are none to be found." (R. 14, PageID# 929). The Commissioner argues that the Plaintiff is incorrect in asserting that an ALJ is prohibited from considering the lack of objective evidence in a case that involves fibromyalgia. (R. 15, PageID# 950).
In the case at bar, the ALJ specifically found that claimant suffered from fibromyalgia, and designated it as a "severe" impairment. (Tr. 22). A finding that fibromyalgia constitutes a severe impairment, however, does not equate to a finding of disability, nor does a diagnosis of fibromyalgia corroborate the severity of a claimant's pain symptoms. See Vance v. Comm'r of Soc. Sec., 260 Fed. App'x 801, 806 (6
Social Security Ruling ("SSR") 12-2p, sets forth the Social Security Administration's directions for evaluating fibromyalgia. SSR 12-2p; 2012 WL 3104869 (July 25, 2012). It also sets forth the manner to evaluate a person's statements about his or her symptoms and functional limitations (i.e. credibility). Id. Essentially, ALJs are instructed to use the same method in determining credibility as set forth in SSR 96-7p. Id. First, the ALJ must determine whether "medical signs and findings that show the person has an MDI(s) which could reasonably be expected to produce the pain or other symptoms alleged," recognizing that fibromyalgia "satisfies the first step of our two-step process for evaluating symptoms." Id. Second, and more pertinent to the case at bar, SSR 12-2p specifically allows the ALJ to consider whether "objective medical evidence . . . substantiate[s] the person's statements about the intensity, persistence, and functionally limiting effects of symptoms." Id. If not, the ALJ is to consider "all of the evidence in the case record, including the person's daily activities, medications or other treatments the person uses, or has used, to alleviate symptoms; the nature and frequency of the person's attempts to obtain medical treatment for symptoms; and statements by other people about the person's symptoms." Id. Therefore, Plaintiff's suggestion that the ALJ erred by considering the lack of objective evidence to support the severity of Plaintiff's pain symptoms simply because this case involves fibromyalgia is not well taken.
Moreover, this case is distinguishable from the cases upon which Plaintiff relies.
Furthermore, the ALJ's expectation is supported by the opinion of Dr. James, cited above, whose opinion the ALJ accorded "substantial weight." (Tr. 33). Dr. James found Plaintiff could sit/stand/walk for six hours despite her fibromyalgia and migraines, noting that Plaintiff had normal "gait, neuro, motor function despite pain." (Tr. 136).
Therefore, the court finds Plaintiff's second assignment of error to be without merit.
For the foregoing reasons, it is recommended that the Commissioner's final decision be AFFIRMED.
