TIMOTHY S. BLACK, District Judge.
This case is before the Court pursuant to the Order of General Reference in the United States District Court for the Southern District of Ohio Western Division to United States Magistrate Judge Michael J. Newman. Pursuant to such reference, the Magistrate Judge reviewed the pleadings filed with this Court, and, on December 1, 2011, submitted a Report and Recommendations. (Doc. 19). Subsequently, Plaintiff filed Objections to the Report and Recommendations (Doc. 20) and the Defendant responded (Doc. 21).
As required by 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b), the Court has reviewed the comprehensive findings of the Magistrate Judge and considered de novo all of the filings in this matter. Upon consideration of the foregoing, the Court does determine that such Report and Recommendations should be and is hereby adopted in its entirety; and Plaintiffs objections to the Report and Recommendations are overruled.
Accordingly:
MICHAEL J. NEWMAN, United States Magistrate Judge.
This is a Social Security disability benefits appeal brought pursuant to 42 U.S.C.
This case is before the Court upon Plaintiff's Complaint (Doc. # 2), Plaintiff's Response to the Order to Show Cause/Plaintiff's Statement of Errors (Doc. # 10), the Commissioner's Memorandum in Opposition (Doc. # 14), the administrative record (Doc. # 7), and the record as a whole.
Plaintiff filed applications for SSI and DIB on October 25, 2006, claiming that she has been under a "disability" since December 1, 2001. PAGE ID 132-37. At the time of her initial applications, Plaintiff claimed to be disabled because of lower back strain and bilateral carpal tunnel syndrome ("CTS"). PAGEID 197. In a supplemental disability report, Plaintiff additionally claimed that she began suffering from depression on July 25, 2007. PAGEID 224.
Following initial administrative denials of her applications, Plaintiff was granted a hearing before ALJ Peter Silvain, where she was unrepresented by counsel. PAGEID 35-44. The ALJ heard testimony from Plaintiff and Charlotta Ewers, a vocational expert. PAGEID 51-93. The ALJ issued an unfavorable decision on April 8, 2010. PAGEID 35-44.
The ALJ's "Findings," which represent the rationale of the decision, were as follows:
PAGEID 35-44.
The Appeals Council thereafter denied Plaintiff's request for review, PAGEID 28-30, making the decision of the ALJ the final administrative decision of the Commissioner. Plaintiff's concise Statement of Errors alleges that remand is warranted due to the existence of additional evidence not considered by the ALJ at the time he rendered his decision. PAGEID 534. Because Plaintiff is pro se, the Court liberally construes her Statement of Errors to also challenge the ALJ's decision on the ground that it is unsupported by substantial evidence.
On the date of her alleged disability onset, Plaintiff's age placed her in the category of a "younger person" for purposes of resolving her DIB and SSI applications. See 20 C.F.R. §§ 404.1563(c), 416.963(c).
At both hearings, the ALJ reviewed with Plaintiff her right to be represented by counsel. PAGEID 53, 65. Plaintiff articulated her understanding of that right, and waived it both orally and in writing. Id.; PAGEID 145, 164.
Although Plaintiff denied having an addiction to alcohol or any present addiction to drugs, Plaintiff's struggle with alcohol is well-documented throughout the record,
Plaintiff testified that she stopped working in 2001 due to back pain. PAGEID 82-83. She alleges that she is unable to return to work due to pain in her hands and back. PAGEID 85. Plaintiff described her back pain as dull and constant, which she believes to be caused by "a pinched nerve ... in the lower back." PAGEID 73. Her pain sometimes radiates to her legs, but the medication she has been prescribed temporarily relieves her pain. PAGEID 74. Plaintiff described her CTS as akin to having "arthritis in both hands." PAGEID 75. She testified that her hands occasionally swell and lock up. Id.
As to her activities of daily living, Plaintiff testified that she is able to shower, cook, and make her bed; she gets assistance with laundry, dishes, housework, and shopping. PAGEID 76-77. Plaintiff further testified that she walked approximately six blocks to get to the hearing. PAGEID 69-70. She generally spends her days meditating and reading. PAGEID 70, 79. She smokes one-half pack of cigarettes per day. PAGEID 71. At the time of the hearing, she was not receiving any regular medical treatment, but was taking Naproxen, Lexapro, Aleve and Tylenol. Id.; PAGEID 73.
While Plaintiff alleges her onset date of disability as December 1, 2001, the administrative record contains only one treatment record prior to 2006.
The earliest record regarding Plaintiff's back pain is November 10, 2006. PAGEID 256-64. Plaintiff visited the emergency room and reported that she had "been taking other people's pain meds [for] 7 years" and that "she wants her own." PAGEID 264. Plaintiff was diagnosed as having chronic back pain, given pain medication, and discharged without the hospital taking x-rays or an MRI. PAGEID 256-64. Although Plaintiff was instructed by the attending physician to contact the Cassano Clinic for follow-up care within three days following her emergency room visit, the record is devoid of any evidence of treatment by that facility. See PAGEID 258.
On February 28, 2007, Plaintiff went to the emergency room, stating that she hurt her back in 1990 and was out of pain medication. PAGEID 505, 507. On the pain scale of one to ten, Plaintiff told the attending physician that her pain was at a three or four. PAGEID 514. Examination of Plaintiff's back showed diffuse non-localized tenderness over the lumbar back without localization or obvious deformity. PAGEID 508. During the examination, Plaintiff was found to be able to move easily, including sitting from a reclining position without issue. Id. The physician found no evidence to suggest any acute process that would require further evaluation, so Plaintiff was given two Vicodin and discharged. Id.
On February 7, 2009, Plaintiff went to the emergency room with complaints of back pain. PAGEID 457-73. Plaintiff was given Naprosyn for her pain and discharged. Id. On March 24, 2009, Plaintiff went back to the emergency room with complaints of back pain; she was given Vicodin and released. PAGEID 475-86.
Plaintiff was seen again at the emergency room on August 31, 2009, with complaints of back pain due to "lifting something too heavy" two days prior. PAGEID 491-503. Her toxicology report came back positive for cocaine. PAGEID 497. She was diagnosed with cocaine abuse and thoracic muscle strain on the left. Id. She was prescribed Vicodin and Flexeril before being discharged. Id.
When Plaintiff was seen for her initial visit with the Med-Surg clinic at Miami Valley Hospital, on May 15, 2009, her back pain was noted to be "well controlled." PAGEID 488.
The earliest record regarding treatment of Plaintiff's mental health is November 21, 2006. PAGEID 267-82. Plaintiff was referred to Samaritan Behavioral Health following an arrest for disorderly conduct. PAGEID 267. Plaintiff was diagnosed as having alcohol dependence, opioid dependence, cocaine dependence, and posttraumatic stress disorder ("PTSD"). Id. She was assigned a GAF of 55.
When assessed by Eastway Behavioral Health in May 2007, Plaintiff was diagnosed with psychotic disorder NOS (not otherwise specified), bi-polar disorder NOS, alcohol dependence, opioid dependence, and cocaine dependence. PAGEID 344. She was assigned a GAF of 34.
Plaintiff returned to Eastway in July 2008 and was referred to the Council for Alcohol & Drug Abuse Services ("CADAS") for AoD (alcohol and other drugs) treatment, but she did not attend. PAGEID 380.
In December 2008, Plaintiff was once again seen at Eastway, where she was diagnosed with major depressive disorder and alcohol dependence. PAGEID 380-81. She was assigned a GAF of 55. Id. Community Psychiatric Support Treatment ("CPST") was recommended due to Plaintiff's mental health treatment history, and
Plaintiff started regular treatment at Eastway in January 2009, and continued through July 2009. PAGEID 386-421. In January 2009, Plaintiff was diagnosed with major depressive disorder, alcohol dependence, along with a differential diagnosis of PTSD. PAGEID 412.
In addition to documenting her struggle controlling her use of alcohol, Plaintiff's treatment records from Eastway generally reveal a positive response to medication for depression. For instance, in March 2009, Plaintiff reported that her depression was improving. PAGEID 401. On May 15, 2009, Plaintiff was seen at the Med-Surg clinic at Miami Valley Hospital where her depression was noted to be "well controlled by Lexapro." PAGEID 489. In June 2009, Plaintiff reported that she felt "less depressed" and that the "current meds are helping [h]er anxiousness and depression." PAGEID 388-89. On July 31, 2009, Plaintiff reported that she was "doing good," and that she obtained Lexapro, Naltrexone and Trazodone from the Reach Out clinic. PAGEID 386. Plaintiff further reported that she was eating and sleeping well. Id.
On February 17, 2007, Diane Manos, M.D. ("Dr. Manos") provided a "Case Analysis" on behalf of the state agency in reviewing Plaintiff's claim of disability due to back pain and CTS. PAGEID 283. Based upon her review of Plaintiff's November 2006 emergency room treatment records, Dr. Manos noted that Plaintiff had full, painless range-of-motion in her back. Id. Regarding Plaintiff's CTS, Dr. Manos noted that Plaintiff's right wrist was positive for Phalen's, but negative for Tinel's.
Joan Williams, Ph.D. ("Dr. Williams") was retained by the state agency to conduct a psychiatric review of Plaintiff in June 2007. PAGEID 294-308. However, Plaintiff failed to show up for either of the scheduled appointments. PAGEID 294, 307. Dr. Williams noted that the record contained no data regarding depression, anger problems, and bi-polar disorder during the DIB period of December 1, 2001 to December 31, 2001. PAGEID 307; see also PAGEID 35. Regarding the SSI claim, Dr. Williams found "insufficient evidence to determine the severity of [Plaintiff's] alleged mental conditions due to her failure to attend two scheduled psychological evaluations." PAGEID 307.
Following the first hearing before the ALJ, a consulting physician, Aivars Vitols, D.O. ("Dr. Vitols"), examined Plaintiff on behalf of the state agency on September 14, 2009. PAGEID 423-36. Plaintiff reported having constant low back pain. PAGEID 423. Examination revealed that Plaintiff suffered from painful, restricted motion in her lower back and her sacroiliac joint was tender to palpation. PAGEID 425. Plaintiff performed heel and toe touching satisfactorily. Id. Plaintiff was able to grasp and manipulate with both hands; her pinch and grip were intact and
Dr. Vitols diagnosed Plaintiff with chronic right SI joint sprain and strain and CTS. Id. Dr. Vitols accounted for a number of Plaintiff's functional limitations in his report, PAGEID 431-36, but noted that Plaintiff is nevertheless able to do many common activities such as shop at a store, travel without a companion, utilize public transportation, walk on uneven surfaces, climb a few steps at a reasonable pace, prepare simple meals, feed herself, groom herself, and sort or handle paper/files. PAGEID 436.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence and if the correct legal criteria were employed by the ALJ. 42 U.S.C. § 405(g); Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir.2007). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court must consider the record as a whole. Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.1984). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. Id. As the Sixth Circuit has explained:
Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.1994).
To qualify for DIB, Plaintiff must meet certain insured status requirements, be under age 65, file an application for such benefits, and be under a disability as defined by the Social Security Act. 42 U.S.C. §§ 416(l), 423. Establishment of a disability is contingent upon two findings: (1) Plaintiff must suffer from a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than 12 months; and (2) the impairments must render Plaintiff unable to engage in the work previously performed or in any other substantial gainful employment that exists in the national economy. 42 U.S.C. § 423(d).
To qualify for SSI benefits, plaintiff must file an application and be an "eligible individual" as defined in the Act. 42 U.S.C. § 1382(a); 20 C.F.R. § 416.202. Eligibility is dependent upon disability, income, and other financial resources. 20 C.F.R. § 416.202. To establish disability, plaintiff must demonstrate a medically determinable physical or mental impairment that can be expected to last for a continuous period of not less than twelve months. Plaintiff must also show that the impairment precludes performance of the work previously done, or any other kind of substantial gainful employment that exists in the national economy. 20 C.F.R. § 416.905.
A claimant has the burden of establishing disability by a preponderance of the evidence. Born v. Sec'y of H.H.S., 923 F.2d 1168, 1173 (6th Cir.1990). Once a claimant establishes a prima facie case by showing an inability to perform his or her past relevant work, the burden shifts to the Commissioner to show that Plaintiff can perform other substantial gainful employment, and that such employment exists in the national economy. Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir.1999). To rebut a prima facie case, the Commissioner must come forward with particularized proof of the claimant's individual capacity to perform alternate work considering the claimant's age, education, and background, as well as the job requirements. O'Banner v. Sec'y of H.E.W., 587 F.2d 321, 323 (6th Cir.1978).
Liberally construed, Plaintiff's Statement of Errors challenges the ALJ's finding of non-disability on the grounds that 1) it is unsupported by substantial evidence, and 2) remand is warranted because additional evidence submitted to the Appeals Council (and unavailable to the ALJ) would produce a finding of disability if it had been considered. For the reasons that follow, the Court finds that the Plaintiff's challenges to the ALJ's finding of non-disability are without merit, and that Plaintiff's additional evidence would have had no impact on the ALJ's finding had it been considered.
The Court has carefully reviewed the ALJ's decision to determine whether the ALJ's critical findings of fact were made in compliance with the applicable law and whether substantial evidence in the record supports those findings. Based upon its review, the Court finds that the decision of the ALJ is supported by substantial
Under the Regulations, "some issues are not medical issues regarding the nature and severity of an individual's impairments but are administrative findings that are dispositive of a case; i.e., that would direct the determination or decision of disability." Social Security Ruling (SSR) 96-5p, 61 Fed.Reg. 34471, 34474 (1996). One such issue is the residual functional capacity ("RFC") finding. RFC is an adjudicator's administrative assessment of "what an individual can still do despite his or her limitations." SSR 96-8p, 61 Fed.Reg. 34474, 34475 (1996); 20 C.F.R. § 404.1520.
The determination of a claimant's RFC is a legal decision rather than a medical one. 20 C.F.R. § 404.1527(e). Thus, the final responsibility for deciding a claimant's RFC is reserved to the Commissioner. 20 C.F.R. § 404.1549(e)(2). Based on substantial evidence in the record, the ALJ found that Plaintiff retained the RFC to perform a limited range of light work, stating:
PAGEID 40.
Furthermore, the ALJ found that although Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, Plaintiff's statements concerning the intensity, persistence and limiting effects of those symptoms lacked credibility to the extent that they are inconsistent with her RFC. See PAGEID 41-43.
Using Medical-Vocational ("Grid") Rule 202.20, as a framework for decision-making, and relying on the testimony of the vocational expert, the ALJ determined that Plaintiff is incapable of performing her past relevant work. PAGEID 43-44. The ALJ further determined, on the other hand, that Plaintiff is capable of performing a significant number of jobs in the national economy such as warehouse checker, mail clerk, copy machine operator, officer helper, and order caller. PAGEID 44. Consequently, the ALJ concluded that Plaintiff is not "disabled" under the Act, and is therefore not entitled to disability benefits. Id.
Plaintiff bore the responsibility of not merely producing a diagnosis of an impairment, but of demonstrating correlative functional limitation. See 20 C.F.R.
The Court finds no apparent error in the ALJ's evaluation of the medical evidence. The medical evidence Plaintiff submitted took the form of treatment notes, forms and similar records rather than actual opinions of her treating physicians regarding her condition. See PAGEID 251-82, 287-91, 309-525. The record contains no opinion by any of Plaintiff's treating physicians indicating that she suffers from any ailment that precludes her from conducting light work as accommodated by the limitations imposed by the consultative physician and adopted by the ALJ. Due to the absence of any treating physician opinion stating otherwise, the ALJ was justified in relying heavily upon the consultative examination performed by Dr. Vitols. PAGEID 423-36; see, e.g., Peebles v. Chater, 1996 WL 229528, at *5, 1996 U.S.App. LEXIS 42593, at *15 (6th Cir. May 6, 1996)(finding that "in the absence of any evidence from treating physicians... the ALJ was required to rely on the reports of the consulting physician.").
In his decision, the ALJ weighed Plaintiff's credibility and found that her allegations — regarding the degree of severity of her limitations and impairments — were not credible. PAGEID 41-43. Although Plaintiff does not specifically challenge the ALJ's credibility finding, it is important to note that the ALJ's finding was proper as he reasonably considered Plaintiff's credibility in assessing her RFC. The ALJ's RFC finding was also supported by his careful consideration of Plaintiff's subjective symptoms. While the ALJ found that Plaintiff had severe chronic right sacroiliac joint strain/sprain, CTS, and depression, the mere presence of an underlying medical condition satisfies only one prong of the Sixth Circuit standard for evaluating subjective complaints. See PAGEID 37; see also Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir.1986).
To prove that her subjective complaints are disabling, Plaintiff must present objective medical evidence confirming the severity of the alleged symptoms or show that the medical condition is of such severity that it could reasonably be expected to produce disabling symptoms. Id. Here, not only did Plaintiff fail to submit objective evidence showing that her symptoms were of disabling severity, the record contains objective evidence showing otherwise. For example, on multiple occasions Plaintiff went to the emergency room with complaints of back pain, but was given pain medication and discharged without the need for further testing, x-rays or MRIs. See, e.g., PAGEID 457-73, 475-86, 491-503, 505-15. Moreover, there are significant gaps in the treatment records. Plaintiff alleges a disability onset date of December 1, 2001, but there are no treatment records relating to her back pain prior to November 2006 — a period of nearly five years. Similarly, there are no records showing that Plaintiff received any treatment for back pain between March 1, 2007 and February 6, 2009 — close to a two-year period.
Regarding Plaintiff's mental health, the record shows that she was referred to mental health treatment at Samaritan Behavioral Health in November 2006 because she was arrested for disorderly conduct, not because she sought out treatment or
The ALJ's findings regarding Plaintiff's credibility, functional limitations, and determination that Plaintiff is not disabled are all supported by substantial evidence. Furthermore, the Court finds that substantial evidence supports the ALJ's RFC finding, as it reasonably and adequately accommodates Plaintiff's credible symptoms.
Plaintiff submitted additional evidence in this case, specifically, treatment notes from the Samaritan Homeless Clinic dated December 9, 2010 and February 4, 2011 (Doc. # 10, Attachment 1 & 2), and emergency room records from Grandview Hospital dated from October 29, 2010 through January 16, 2011. (Id., Attachments 3-8). Where, as in Plaintiff's case, the Appeals Council denied review of the ALJ's decision, that decision constitutes the final decision of the Commissioner subject to review. Plaintiff's additional evidence was not, therefore, part of the record on which the Commissioner's final decision was based, and, consequently, it is not considered to be part of the administrative record for the purpose of judicial review. See Casey v. Secretary of Health & Human Services, 987 F.2d 1230, 1233 (6th Cir. 1993).
The Sixth Circuit has repeatedly held that evidence submitted in the first instance to the District Court may only be considered in determining whether remand is appropriate pursuant to Sentence Sue of § 405(g). Id. A Sentence Six remand is warranted only "upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." Id. (quoting 42 U.S.C. § 405(g)).
However, the additional evidence submitted by Plaintiff is neither new nor material. As the Commissioner correctly argues, the additional evidence is cumulative of evidence already in the record — evidence which shows that Plaintiff continued to complain of back pain and receive conservative treatment. Even if the ALJ had reviewed this evidence, there is no reasonable probability that a different disposition would have occurred here, or that the ALJ would have viewed the evidence before him differently. The additional evidence is, therefore, not material as a matter of law and does not warrant remand under Sentence Six. See Foster v. Halter, 279 F.3d 348, 358 (6th Cir.2001) (newly submitted evidence found to be not material where plaintiff "has not established that there was a reasonable probability that the [Commissioner] would have reached a different disposition of the disability claim if presented with this evidence.").
For the foregoing reasons, the Court finds Plaintiff's assignments of error without merit.
December 1, 2011.
2. The case be
