DAVID A. RUIZ, Magistrate Judge.
Plaintiff, Thomas Petro (hereinafter "Plaintiff"), challenges the final decision of Defendant Andrew Saul, Commissioner of Social Security (hereinafter "Commissioner"), denying his applications for 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 November 30, 2015, and March 24, 2016, Plaintiff filed his applications for DIB and SSI, respectively, and alleged a disability onset date of May 1, 2013. (Transcript ("Tr.") 186-193). The applications were denied initially and upon reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (Tr. 59-123). Plaintiff participated in the hearing on November 17, 2017, was represented by counsel, and testified. (Tr. 30-58). A vocational expert ("VE") also participated and testified. Id. On April 25, 2018, the ALJ found Plaintiff not disabled. (Tr. 12-29). On November 2, 2018, the Appeals Council denied Plaintiff's request to review the ALJ's decision, and the ALJ's decision became the Commissioner's final decision. (Tr. 1-6). On January 4, 2019, Plaintiff filed a complaint challenging the Commissioner's final decision. (R. 1). The parties have completed briefing in this case. (R. 10 & 12).
Plaintiff asserts the following assignment of error: (1) the ALJ erred at Step Five of the sequential evaluation. (R. 10).
On May 12, 2014, Plaintiff was hospitalized for a lung abscess, pneumonia and developed empyema, eventually undergoing a chest tube placement. (Tr. 377, 397, 433, 436, 441, 483-84). Plaintiff was unemployed at the time but told medical sources that he does do "odd jobs as well as cement work" (Tr. 441, 492). He was noted as having a long history of alcohol dependence. (Tr. 436). He was discharged on May 28, 2014. (Tr. 433).
On June 12, 2014, Plaintiff said he felt "okay," had no specific complaints, and indicated he was anxious to go back to work. (Tr. 374).
On August 11, 2014, Plaintiff saw Miodrag V. Zivic, M.D. (Tr. 309-311). A physical examination of Plaintiff yielded normal findings (Tr. 309, 320), although he was diagnosed with intractable back pain. (Tr. 321).
On November 18, 2014, Plaintiff saw Dr. Zivic, and he complained of severe bilateral leg pain and some weakness. (Tr. 320). On the same date, an MRI of the cervical spine showed degenerative changes with severe bilateral neural foraminal narrowing at C3/4 and C5/6 (Tr. 334-335). A lumbar MRI showed lumbar spondylosis. (Tr. 338-39).
On December 4, 2014, Fady Nageeb, M.D., indicated that Plaintiff had normal motor and sensory function in his arms and legs, but had positive facet loading on the lumbar spine. (Tr. 360-361). Dr. Nageeb did not believe narcotic treatment was appropriate, and prescribed a chronic pain rehabilitation program. Id.
On January 6, 2015, Teresa Ruch, M.D., opined that the cervical MRI did not show "anything that needs to be operated on. . ." (Tr. 357). Dr. Ruch noted slight weakness in Plaintiff's quads bilaterally, "[s]ensation appears to be intact to pin he has no reflexes in the upper and lower extremities", and normal gait (Tr. 357).
On January 29, 2015, an MRI of the lumbar spine revealed lumbar spondylosis with moderate central canal stenosis at L2/3 and L3/4. (Tr. 331). An X-ray taken the same date showed mild degenerative changes in the lumbar spine without instability. (Tr. 333). Dr. Ruch characterized the results as showing "very mild lumbar stenosis" at multiple levels that did not warrant surgery and she suggested an EMG nerve conduction study to rule out neuropathy. (Tr. 355).
On June 8, 2015, Plaintiff returned to Dr. Zivic and complained of a lot of pain in his back and legs. (Tr. 325). Physical examination findings were again normal. Id. Dr. Zivic recommended a pain management consultation (Tr. 326).
On September 8, 2015, Deidra Bobincheck, CNP, examined Plaintiff and found no abnormalities on physical examination. (Tr. 336). She assessed essential hypertension, unspecified lipidemia, and tobacco use disorder. Id.
On January 13, 2016, Plaintiff saw Dr. Nageeb for pain management, complaining of 8 out of 10 pain. (Tr. 1078). Dr. Nageeb noted positive facet loading on the lumbar spine suggestive of facet syndrome. (Tr. 1078-1079).
On April 6, 2016, Plaintiff had completed ten sessions of physical therapy, and reported that his pain has continued and possibly worsened. (Tr. 1044).
On May 20, 2016, Plaintiff began receiving facet injections administered by Dr. Nageeb. (Tr. 1039-1040).
On June 14, 2016, Plaintiff reported to Dr. Ruch that his back and leg pain are so great that he can hardly stand up or walk the length of his yard without stopping. (Tr. 1134). Dr. Ruch noted cervical spine MRIs show severe degenerative changes but no cord compression and a calcified posterior longitudinal ligament, which she speculated was "probably the reason for his pain." (Tr. 1134). She observed that an EMG nerve conduction study showed severe carpal tunnel syndrome. Id. There was no evidence of cervical radiculopathy. (Tr. 1135). Dr. Ruch discussed carpal tunnel release surgery with the Plaintiff. Id.
On June 7, 2016, Plaintiff reported he was positive for back, joint, and neck pain. (Tr. 1158). Dr. Zivic's physical examination found Plaintiff was in no distress, he had normal range of motion, normal reflexes, and normal gait. (Tr. 1158-1159).
On July 7, 2016, a new lumbar MRI showed that Plaintiff's lumbosacral spine was stable since January 29, 2015. (Tr. 1190). A new cervical MRI revealed no significant changes from Plaintiff's prior MRI. (Tr. 1186).
On October 31, 2016, Dr. Ruch suggested back surgery to Plaintiff, who indicated he was not interested in surgery at that time and expressed a desire to return to pain management. (Tr. 1142).
On November 8, 2016, Plaintiff reported a pain level of 9 out of 10 to Dr. Nageeb, but also reported that his medications were helping for the most part. (Tr. 1149). Plaintiff had a positive straight leg-raising (SLR) test on the left side, and Dr. Nageeb diagnosed spinal stenosis in the lumbar region without neurogenic claudification. (Tr. 1150).
On January 13, 2017, Plaintiff received a lumbar epidural steroid injection. (Tr. 1155).
On March 23, 2017, Dr. Zivic noted Plaintiff was negative for back pain, falls, joint pain, myalgias and neck pain. (Tr. 1160). Plaintiff was also negative for dizziness, tingling, tremors, sensory change, and weakness. Id. On examination, Plaintiff had normal range of motion, reflexes and gait. (Tr. 1161). Dr. Zivic assessed abrasion of the left big toe, a screening for depression, essential hypertension, and a colon cancer screening. Id.
On June 19, 2017, Dr. Zivic again observed that Plaintiff was negative for back pain, falls, joint pain, myalgias, neck pain, dizziness, tingling, tremors, sensory change, and weakness. (Tr. 1163). On examination, Plaintiff had normal range of motion, reflexes and gait. (Tr. 1164). Dr. Zivic assessed essential hypertension and chronic back pain. Id.
On August 18, 2017, Plaintiff was seen by Dr. Ruch and agreed to pursue carpal tunnel surgery on his left hand, reporting greater numbness, tingling, and some atrophy. (Tr. 1166).
On February 22, 2016, State Agency physician Anton Freihofner, M.D., reviewed Plaintiff's medical records and opined that Plaintiff could lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk about six hours and sit for about six hours each in an eight-hour workday. (Tr. 69). Dr. Freihofner further limited Plaintiff to occasional climbing of ramps/stairs, balancing, stooping, kneeling, and crouching with no crawling or climbing of ladders/scaffolds. (Tr. 69-70). Dr. Freihofner limited Plaintiff to no reaching overhead, and limited reaching and handling. (Tr. 70).
On June 7, 2016, Dr. Zivic completed a check-box style form indicating that Plaintiff had cervical radiculopathy with a two-year history and that his physical findings in support were "bilateral arm numbness, pain." (Tr. 1062). He indicated Plaintiff could stand/walk and sit for less than one hour each in an eight-hour workday. (Tr. 1063). He opined Plaintiff could lift/carry ten pounds frequently. Id. He assessed moderate limitations in Plaintiff's ability to push/pull, bend, reach, and handle. Id. The doctor noted the following findings in support of his opinion: "[d]ecreased motor strength of the arms, pain with movements." Id.
On June 21, 2016, State Agency physician Elizabeth Das, M.D., reviewed Plaintiff's medical records and opined that Plaintiff could lift/carry twenty pounds occasionally and ten pounds frequently, stand/walk about six hours and sit for about six hours each in an eight-hour workday. (Tr. 82). Dr. Das further limited Plaintiff to frequent kneeling, occasional climbing of ramps/stairs, balancing, and no climbing of ladders/scaffolds. (Tr. 82-83). Dr. Das limited Plaintiff to occasional reaching overhead, limited reaching, and unlimited handling and fingering. (Tr. 83).
On July 18, 2016, Dr. Zivic completed a Physical RFC questionnaire indicating that Plaintiff could lift/carry less than ten pounds frequently, stand/walk for less than two hours, and sit for about three hours in an eight-hour workday. (Tr. 1115). He circled boxes indicating Plaintiff would need to shift positions every 15 to 20 minutes, and needed to lie down at unpredictable intervals during a work shift due to back and neck pain. (Tr. 1115). Dr. Zivic indicated Plaintiff could occasionally reach, handle, finger, and feel, and push/pull "less than occasionally." (Tr. 1116). When asked what findings support his assessment, Dr. Zivic only noted "MRI degenerative changes." (Tr. 1116).
A claimant is entitled to receive benefits under the Social Security Act when he 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:
(Tr. 17-24).
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 the sole assignment of error, Plaintiff asserts the ALJ erred at Step Five of the sequential evaluation and contends that the RFC is not supported by substantial evidence. (R. 10, PageID# 1261-1263).
Plaintiff's brief contains several propositions of law that have not been fully developed into arguments. (R. 10, PageID# 1263-1265). First, Plaintiff makes the assertion that "sporadic daily activities may not indicate what a claimant can do on a sustained basis particularly where the claimant experiences periods of remission and exacerbation," but fails to develop any related argument. (R. 10, PageID# 1263). Later in his brief, Plaintiff cites his own testimony and suggests he had difficulty performing household chores. Id. at PageID# 1265. As stated below, however, the ALJ did not find Plaintiff's statements as to the intensity, persistence, or limiting effects of his symptoms to be consistent with the evidence of record, and Plaintiff has not argued any error with respect to the ALJ's credibility finding. (Tr. 20). Plaintiff also suggests that his daily activities do not necessarily translate to an ability to perform light work. (R. 10, PageID# 1263). However, the RFC finding is not predicated upon Plaintiff's ability to perform activities of daily living ("ADLs"). The ALJ does mention Plaintiff's ADLs as one of several reasons for ascribing Dr. Zivic's opinion little weight.
State Agency consultative opinions may constitute substantial evidence supporting an ALJ's decision. See, e.g., Lemke v. Comm'r of Soc. Sec., 380 Fed. App'x. 599, 601 (9
Next, Plaintiff asserts that "[t]he evidence demonstrates that Plaintiff has a well-established low back impairment, as well as a cervical spine impairment and moderately severe bilateral carpal tunnel syndrome. These impairments impose significant limitations on the plaintiff's ability to stand and/or walk for longer periods of time; as well as the use of his hands, including handling, fingering and feeling." (R. 10, PageID# 1263). Again no argument is developed. Further, Plaintiff's assertion that his impairments necessitate greater limitations than found in the RFC, without more, is simply an unsubstantiated conclusion. The ALJ recognized that Plaintiff suffers from the above impairments when he determined that Plaintiff's severe impairments included cervical and lumbar degenerative disc disease and carpal tunnel syndrome. (Tr. 17). Although an impairment is severe, it is not necessarily debilitating. A diagnosis alone is of little consequence, as it is well established that a diagnosis alone does not indicate the functional limitations caused by an impairment. See Young v. Sec'y of Health & Human Servs., 925 F.2d 146, 151 (6
In addition to the above statements in Plaintiff's brief, he also includes a limited discussion of his MRI and EMG results, but that discussion fails to demonstrate any error in the RFC determination. (R. 10, PageID# 1263-1264). Plaintiff also offers his own lay interpretation of the MRI and EMG findings, concluding, without explanation, that they corroborate the severity of his alleged limitations and, therefore, the RFC is untenable. (R. 10, PageID# 1264). Such an "argument" fails to demonstrate the need for a remand.
Plaintiff proceeds to mention his own testimony that he has difficulty standing/walking or using his hands. (R. 10, PageID# 1264). However, the ALJ did not fully credit Plaintiff's testimony, finding his statements were "not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (Tr. 20). Plaintiff's Brief on the Merits, however, has not supported a legal argument alleging any substantive or procedural deficiency regarding the ALJ's credibility analysis.
Finally, Plaintiff takes issue with the ALJ ascribing little weight to the opinion of treating physician, Dr. Zivic, and assigning greater weight to the opinions of State Agency physicians. (R. 10, PageID# 1265-1267). "Provided that they are based on sufficient medical data, `the medical opinions and diagnoses of treating physicians are generally accorded substantial deference, and if the opinions are uncontradicted, complete deference.'" Howard v. Comm'r of Soc. Sec., 276 F.3d 235, 240 (6
The ALJ addressed Dr. Zivic's opinion as follows:
(Tr. 22). The ALJ's statement is supported by his earlier discussion, which determined in pertinent part:
(Tr. 21).
Thus, the ALJ offers several good reasons for finding that Dr. Zivic's opinion should only be ascribed little weight: generally benign findings upon physical examination; conservative, treatment, Plaintiff's lack of interest in surgical intervention, and Plaintiff's ADLs. (Tr. 20). Indeed, "[i]nconsistencies with the treatment notes provide a good reason to not give the treating physician's opinion controlling weight." Landuyt v. Berry Hill, 2018 U.S. Dist. LEXIS 51239, *15 (N.D. Iowa, Mar. 28, 2018); see also Jung v. Comm'r of Soc. Sec., No. 1:11-CV-34, 2012 WL 346663, at *14 (S.D. Ohio Feb. 2, 2012) (finding the ALJ gave "good reasons" for discounting a treating physician's opinions "by citing their internal and external inconsistencies and contradictions"), report and recommendation adopted, 2012 WL 628459 (S.D. Ohio Feb. 27, 2012).
Plaintiff has failed to set forth any clear argument demonstrating that the reasons given by the ALJ for not ascribing greater weight to Dr. Zivic's opinion failed to constitute good reasons, other than Plaintiff's contrary but unsubstantiated interpretation of the record. Plaintiff's argument essentially asks the court to override the ALJ's weighing of the medical opinions in question based on Plaintiff's own interpretation of the medical evidence in his briefs. This is tantamount to an invitation for this court to reweigh the evidence and to assign greater weight to Dr. Zivic's opinions rather than an argument that the ALJ failed to provide good reasons for rejecting them. This court's role in considering a social security disability appeal, however, does not include reviewing the evidence de novo, making credibility determinations, or reweighing the evidence. Brainard, 889 F.2d at 681; see also Stief v. Comm'r of Soc. Sec., No. 16-11923, 2017 WL 4973225, at *11 (E.D. Mich. May 23, 2017) ("Arguments which in actuality require `reweigh[ing] record evidence' beseech district courts to perform a forbidden ritual."), report and recommendation adopted, 2017 WL 3976617 (E.D. Mich. Sept. 11, 2017).
Finally, to the extent Plaintiff argues it was error for the ALJ to assign little weight to Dr. Zivic's opinions while assigning partial weight to the State Agency physicians' opinions, there is no indication that the ALJ improperly discounted Dr. Zivic's opinion in favor of the State Agency physicians because it was inconsistent with the State Agency opinions.
Plaintiff's sole assignment of error is without merit for the aforementioned reasons.
It is recommended, for the foregoing reasons, that the Commissioner's final decision be AFFIRMED.