MARK R. ABEL, Magistrate Judge.
Plaintiff Christine Chapin brings this action under 42 U.S.C. §§405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security denying her application for Social Security Disability Insurance Benefits. This matter is before the Magistrate Judge for a report and recommendation on the parties' cross-motions for summary judgment.
Plaintiff argues that the decision of the Commissioner denying benefits should be reversed because:
(PageID# 59.)
The vocational expert initially testified that no jobs would be available. (PageID# 106.) The vocational expert misconstrued the time limitations to mean that, after sitting for 30 minutes, the person would be off-task and leave her work station. (PageID## 106-09.) The administrative law judge then clarified that the hypothetical person would continue to perform her work duties while changing her position. The vocational expert testified that the person could perform the jobs of waxer, table worker, and food and beverage order clerk. (PageID# 109.)
The vocational expert acknowledged that the alternate sit/stand option would be inconsistent with the Dictionary of Occupational Titles ("DOT"), but he explained that university studies by the rehabilitation department at the University of Texas at PanAmerica indicated that such jobs could be performed sitting or standing. (PageID# 110.) The vocational expert testified that he had personally observed the jobs of order clerk, waxer, and table worker, and based on his observation, these jobs could be performed by someone who required a sit-stand option. Id. The vocational expert testified that the results were published and the administrative law judge reiterated that the research had been posted publicly. (PageID# 111.)
A lumbar spine MRI taken on September 10, 2001, showed evidence of degenerative disc disease with a small left-far-lateral disc protrusion at L3-L4 and a small central and left paracentral disc protrusion at L4-LS, but no stenosis. (PageID# 321.) That same day, Chapin underwent an electromyographic examination of her left lower extremity which was suggestive of L4 radiculopathy. (PageID## 316-19.)
When seen by Dr. Boylan on October 29, 2001, Chapin reported that she had been through six sessions of therapy and had a significant reduction in her discomfort. She no longer had the pain into the thigh on the left side. She still had some mild discomfort in the back and toward the inguinal region on the left. She felt the therapy had been quite helpful. She also reported doing her home exercise On examination Chapin had no difficulty arising from the examining table. Her gait was not antalgic. She had full range of motion in flexion and extension without pain. No reproducible paraspinal tenderness. No pain with internal and external rotation of the hips. Reflexes and strength are normal. Femoral stretch test, as well as slump test is negative for pain into the leg. Dr. Boylan diagnosed resolving lumbar radiculitis. Dr. Boylan noted that Chapin's therapist felt that several more sessions would be helpful to progress with her stabilization program. "We will get her back in for another three or four sessions as this seems to be the only thing that has really provided her with any improvement in her symptoms." Dr. Boylan restricted Chapin to no lifting more than ten pounds frequently and 25 pounds occasionally. She can do occasional twisting, bending, pushing and pulling. (PageID# 313.)
On November 19, 2001, Dr. Boylan noted Chapin's continued improvement and that her prior complaint of pain shooting down into her leg had resolved. She exhibited good lumbar range of motion, no discomfort with rotation of her hips, no problems rising from a squatted position, and normal reflexes and strength in her legs. Dr. Boylan assessed that Chapin's lumbar radiculopathy was resolving. He advised Chapin to continue her home exercise program and take Ibuprofen. (PageID# 310.) Dr. Boylan indicated she could return to full work without any restrictions. (PageID# 311.)
On January 7, 2002, Chapin complained that her symptoms had worsened, she had pain in the back, buttock, and rather diffusely into her leg. She also reported episodes of her entire left leg going numb. Examination demonstrated difficulty arising from her chair and pain with lumbar range of motion. She was diagnosed with low back pain and intermittent lumbar radiculopathy. Dr. Boylan recommended a lumbar discogram at L3-L4, L4-L5, and L5-S1 to discern whether or not these discs were the source of her chronic pain. Since Ibuprofen was bothering Chapin's stomach, Dr. Boylan prescribed Vioxx. (PageID## 307-08.) Dr. Boylan indicated that Chapin could return to work immediately with regular duties. (PageID# 309.)
Chapin underwent an L3-S1 provocative diagnostic discography on January 23, 2002. Chapin reported that she had taken Vioxx recently, but currently was not on any medications. Testing was positive at L3-4 with high levels of low back and hip pain reported, negative at L4-5, and positive at L5-S1 again with very high levels of pain in the back and hip reported. (PageID## 303-06.)
Following the lumbar discogram, Dr. Boylan saw Chapin on January 28, 2002 to discuss treatment options. Dr. Boylan discussed the possibility of a four-level fusion surgery but cautioned against it because of Chapin's age. He also discussed, and recommended a two level IDET (intradiscal electrothermal therapy). Dr. Boylan kept Chapin's restrictions to lifting 10 pounds frequently and 25 pounds occasionally, and refilled her Vioxx prescription. (PageID## 301-02.)
By November 16, 2001, Chapin had participated in 12 sessions of physical therapy. Her physical therapist, Andreas Lohmar, P.T., noted that Chapin was able to tolerate all therapeutic exercises and work simulation activities without leg pain. Ms. Lohmar felt it was appropriate for Chapin to return to her previous job and scheduled no further formal physical therapy. (PageID# 312.)
A helical CT scan of the lumbar spine with multiplanar reconstruction displays of April 1, 2002 showed no pars interarticularis or other defect, mild osteoarthritis of the lumbosacral facet joints, most pronounced on the right side, with some minimal fragmentation of or dystrophic ossification along the lower edge of that facet joint. The radiologist noted this was contralateral to Chapin's symptoms. (PageID# 352.)
On April 8, 2002, Dr. Rahn explained that the cause of Chapin's pain was likely myofascial as well as some degenerative disc disease, but he recommended a repeat discogram to better evaluate her state as he thought it was unusual for L4-5 to be negative for discogenic pain when the surrounding levels were positive. (PageID# 348-49.)
Chapin underwent a second discogram at L3-4, L4-5, and L5-S1 on May 23, 2002 which showed provocation at all three levels with annular tears at L3-4 and L4-5 discs and gross internal disruption of L5-S1. (PageID# 343-46.) When seen by Dr. Rahn on May 28, 2002, he opined that since the results were different from her prior discogram, Chapin would not be a candidate for IDET. Dr. Rahn referred Chapin for a Functional Capacity Evaluation. (PageID# 338.)
On June 20, 2002, Dr. Rahn opined that Chapin had reached maximal medical improvement and recommended that she return for care on an as-needed basis. He indicated that she could return to work with permanent work restrictions, as described in the June 2002 functional capacity evaluation. (PageID## 335-37.)
Functional Capacity Evaluation. On June 11, 2002, Chapin underwent a Functional Capacity Evaluation performed by physical therapist, Joe Simpao. (PageID## 268-96.) During the evaluation, Chapin could: lift from floor to waist up to eight pounds on an occasional basis, lift waist to shoulder up to thirteen pounds on an occasional basis, lift shoulder to overhead up to thirteen pounds on an occasional basis, carry up to thirteen pounds on an occasional basis, push up to twenty pounds on an occasional basis, pull up to ten pounds on an occasional basis, sit for 1/3 to 2/3 of the day for no more than thirty minutes in duration, stand for 1/3 of the day for no more than 10 minutes in duration, walk for 1/3 of the day for no more than five minutes in duration, use stairs/ladders up to 1/3 of the day for no more than five minutes in duration, bend/stoop for up to 1/3 of the day for no more than five minutes duration, crouch/squat for up to 1/3 of the day for no more than 3-5 minutes in duration, do above-shoulder work for up to 1/3 of the day for no more than ten minutes duration, do low level work for up to 1/3 of the day for no more than five minutes duration, and grasp between 1/3 and 2/3 of the day. (PageID## 270-71.)
Mr. Simpao concluded that Chapin was capable of sitting on a frequent basis; standing on an occasional basis; and walking on an occasional basis. (PageID## 271-72.) Mr. Simpao found Chapin capable of lifting, pulling, and carrying at a sedentary physical demand level and pushing at a light physical demand level. (PageID# 269.) Chapin's ability to engage in bending/stooping, crouching/squatting, and low-level work should be limited to an occasional basis. Id.
In a summary of reliability of client reports, Mr. Simpao noted that Chapin's perception of pain was at times inappropriate. (PageID# 269.) Chapin presented with three of seven inappropriate (anatomically unreasonable) responses to the Waddell Inappropriate Symptoms Questionnaire, which was "suggestive of inappropriate illness behavior," occasional inconsistency with pain ratings, and positive placebo tests. (PageID## 291, 294.) Chapin's subjective pain rating during administration of sitting tests was higher than her observed behavior. (PageID## 293-94.) However, Mr. Simpao concluded that overall inconsistencies were considered minor as Chapin's subjective reports generally matched well with distraction-based clinical observations. (PageID# 269.)
(Page ID## 55-61.)
Plaintiff next agues that the administrative law judge erred at Step 5 of the sequential process. According to Chapin, the administrative law judge attempted to rely upon vocational expert testimony to meet the Commissioner's burden, but a legally insufficient hypothetical question cannot result in according substantial weight to the vocational expert's testimony.
In his opinion, the administrative law judge found:
(PageID# 60, citation to record omitted.)
Social Security Regulations and case law require administrative law judges to apply controlling weight to a treating medical source's opinion when it is both well supported by medically acceptable data and not inconsistent with other substantial evidence of record. See 20 C.F.R. §404.1527(d)(2); see also Rabbers v. Comm'r. of Social Security, 582 F.3d 647, 660 (6th Cir. 2009); Rogers v. Comm'r. of Social Security, 486 F.3d 234, 242 (6th Cir. 2007); Wilson v. Commissioner of Social Sec., 378 F.3d 541, 544 (6th Cir. 2004). If a treating medical source's opinion is not entitled to controlling weight, it must be weighed under "a host of other factors, including the length, frequency, nature, and extent of the treatment relationship; the supportability and consistency of the physician's conclusions; the specialization of the physician; and any other relevant factors." Rogers, 486 F.3d at 242.
The administrative law judge holds the responsibility to weigh the record evidence — including medical source opinions — and to determine whether Plaintiff was under a "disability." See 20 U.S.C. §404.1527(e). The administrative law judge's decision in Chapin's case reveals that he weighed the medical source opinions and other evidence of record under the required legal criteria and reasonably concluded that Chapin was not under a "disability" as defined by the Social Security Act. For example, the administrative law judge considered and rejected Dr. Rahn's opinion, the medical source opinion most favorable to Chapin, under the correct legal criteria. Recalling that Dr. Rahn thought that Chapin had reached maximal medical improvement and had a permanent partial impairment rating of 5%
Plaintiff also argues that the administrative law judge improperly assigned "greater weight" to the opinion of a physical therapist than to Dr. Rahn. See Doc. #18 at 14. A review of the administrative law judge's decision does not show that the administrative law judge gave greater weight to the physical therapist over Dr. Rahn. The administrative law judge noted, "In accordance with 06-03p, the undersigned assigns greater weight to opinions offered by the physical therapist who conducted 12 treatment sessions with the claimant in October 2001 and November 2001, rather than the physical therapist who conducted the functional capacity evaluation on June 11, 2002 and had no further contact with the claimant." See PageID# 60. As the Commissioner argues, Dr. Rahn needed a functional capacity assessment to assess Chapin's limitations (PageID# 338) and he acknowledged that his opinion regarding Chapin's limitations was "based on the functional capacity evaluation placed in the chart." (PageID# 335.) See Doc. # 23 at 12. The Court agrees that a comparison between the physical therapists' assessments was entirely appropriate in order to properly assess Dr. Rahn's opinion.
In addition, based on the administrative law judge's consideration of the record evidence as a whole, he reasonably concluded that Chapin was capable of performing the full range of light work activities consistent with the limitations in the opinions provided by Drs. Dobson, Montoya and Boylan. (PageID## 259-66, 267, 301-02, 309, 311, 313.) The administrative law judge reasonably relied on these medical source opinions as he believed their opinions best reflected an evaluation of the record evidence as a whole and accounted for Chapin's credible limitations. (PageID## 59-60.) Indeed, the administrative law judge considered that Dr. Dobson found Chapin to be "partially credible but not to the extent of severity alleged based on clinical findings." (PageID# 264.) The administrative law judge also considered, in arriving at the conclusion that Chapin could perform a light work that it was noted that claimant's perception of pain was at times inappropriate. (PageID## 293-94.) According to the administrative law judge:
(PageID# 59, citation to record omitted.) This evidence tends to diminish the accuracy of Plaintiff's allegations of disabling pain, and the administrative law judge properly considered it.
Moreover, the administrative law judge further considered Chapin's treatment history, and noted that she has had no treatment and has not required prescription medications for pain relief since 2002. (PageID# 59.) Chapin reported that she only took Tylenol for pain or no medication at all. (PageID## 253, 303, 328.) In addition, the administrative law judge noted that Chapin was not a surgical candidate. (PageID# 59.) The administrative law judge observed: "After a course of physical therapy in late 2001, claimant was able to tolerate all therapeutic exercises and work simulation activities without provocation of leg pain. She reported that her symptoms had improved by at least 60%. It was felt appropriate for the claimant to be returned to her previous job. No further formal physical therapy had been scheduled." Id. Her lack of significant treatment during that time was a proper consideration under the Regulations in his evaluation of Chapin's credibility. See 20 C.F.R. §404.1529(c)(v), (vi) (treatment and other measures to relief symptoms considered in evaluating credibility); See also Social Security Ruling 96-7p, 1996 WL 374186 (claimant is less credible if level of treatment is inconsistent with level of complaints).
Plaintiff also argues that the opinions of the state agency reviewers should be given less weight because these physicians never examined Chapin. The opinions of non-examining state agency medical consultants have some value and can, under some circumstances, be given significant weight. This occurs because the Commissioner views non-examiners "as highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the [Social Security] Act." Social Security Ruling 96-6p. Consequently, opinions of one-time examining physicians and record-reviewing physicians are weighed under the same factors as treating physicians including supportability, consistency, and specialization. See 20 C.F.R. §404.1527(d), (f); See also Ruling 96-6p at *2-*3.
The record contained treatment notes and three medical opinions, which the administrative law judge considered. The record also contains assessments from Drs. Dobson and Montoya, who reviewed the record and opined that Chapin was able to work with light exertional restrictions. The evidence was sufficient to support the administrative law judge's decision that Chapin was not under a disability.
Chapin contends in her second Statement of Error, "a legally insufficient hypothetical question cannot result in according substantial weight to the vocational expert''s testimony." (Doc. #18 at 16). Plaintiff reasons that the administrative law judge has mistakenly taken the position that even if she were to give more weight to the opinion of Dr. Rahn, Chapin could still perform the other jobs of blending tank operator, furniture rental consultant, and thermal surfacing machine worker. Plaintiff argues that these jobs were cited by the vocational expert in response to limitations of the FCE, not based upon the limitations identified in Dr. Rahn's opinions.
A proper hypothetical question accurately describes the claimant "in all significant, relevant respects; for a response to a hypothetical question to constitute substantial evidence, each element of the hypothetical must accurately describe the claimant." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); See Varley v. Secretary of H.H.S., 820 F.2d 777, 779 (6th Cir. 1987). "[T]he administrative law judge is not obliged to incorporate unsubstantiated complaints into his hypotheticals." Stanley v. Secretary of H.H.S., 39 F.3d 115, 118 (6th Cir. 1994).
A review of the administrative law judge's hypothetical questions reveal that he asked the vocational expert to consider the jobs available to a person with her age, education, work history, and residual functional capacity. See PageID## 105-06. The limitations asked in the hypothetical question model the limitations in Dr. Rahn's assessment. See PageID# 377. Because the administrative law judge did not err in discounting Dr. Rahn's opinion or in assessing plaintiff's residual functional capacity, the vocational expert's testimony addressing a hypothetical person with these limitations and abilities, which incorporated the administrative law judge's residual functional capacity, constituted substantial evidence to support the administrative law judge's conclusion at step 5 of the sequential analysis. Wright v. Massanari, 321 F.3d 611, 616 (6th Cir. 2003) (citing Varley, 820 F.2d at 779. ("Substantial evidence may be produced through reliance on the testimony of a vocational expert. . . .")).
In addition, Chapin contends that the administrative law judge's back-up argument does not accurately account for the vocational expert's testimony, and her attorney was not provided with the vocational expert's report. Chapin was represented at the hearing, and her counsel was afforded a full opportunity to cross-examine the vocational expert. The administrative law judge reiterated that the university studies from the University of Texas at PanAmerica had been posted publicly "within the last year" on the boards that Social Security practitioners follow. (PageID# 111.) The administrative law judge had no duty under S.S.R. 00-4p to interrogate the vocational expert further. See Martin v. Comm'r of Soc. Sec., 170 Fed.Appx. 369, 374 (6th Cir. 2006) ("Nothing in S.S.R. 00-4p places an affirmative duty on the administrative law judge to conduct an independent investigation into the testimony of witnesses to determine if they are correct.").
In addition, social security regulations do not require the Commissioner or the vocational expert to rely on classifications in the DOT. Therefore, an administrative law judge may rely on the vocational expert's testimony even if it is inconsistent with the DOT. Conn v. Secretary of Health and Human Services, 51 F.3d 607, 610 (6th Cir.1995).
In the specific context of this case, the Court finds that if a remand were ordered, the result would not change. Even if the administrative law judge gave significant weight to the opinion of Dr. Rahn, Chapin could still perform the job of blending tank operator, furniture rental consultant and thermal surfacing machine worker, which are within the residual functional capacity limitations assessed by Dr. Rahn. (PageID# 61.)
Given Plaintiff has not shown error in the administrative law judge's assessment of her residual functional capacity, she, therefore, has not demonstrated any error in the administrative law judge's hypothetical questions or the vocational expert's testimony.
From a review of the record as a whole, I conclude that there is substantial evidence supporting the administrative law judge's decision denying benefits. Accordingly, it is
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days, file and serve on all parties a motion for reconsideration by the Court, specifically designating this Report and Recommendation, and the part thereof in question, as well as the basis for objection thereto. 28 U.S.C. §636(b)(1)(B); Rule 72(b), Fed. r. Civ. P.
The parties are specifically advised that failure to object to the Report and Recommendation will result in a waiver of the right to de novo review by the District Judge and waiver of the right to appeal the judgment of the District Court. Thomas v. Arn, 474 U.S. 140, 150-52 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). See also, Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989).
