KAREN L. LITKOVITZ, Magistrate Judge.
Plaintiff brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security (Commissioner) denying plaintiff's application for disability insurance benefits (DIB). This matter is before the Court on plaintiff's Statement of Errors (Doc. 11), the Commissioner's memorandum in opposition (Doc. 16), and plaintiff's reply memorandum (Doc. 19).
Plaintiff filed an application for DIB in December 2007, alleging disability since March 1, 2006, due to bilateral knee replacement, diverticulitis, tremors in both hands, high blood pressure, high cholesterol, and asthma. (Tr. 144). Plaintiff filed a Disability Report dated April 17, 2008, adding new conditions of tendonitis/bursitis of the right shoulder and bulging discs at C6-C7 with an onset date of February 2008 for each. (Tr. 167). Plaintiff's application was denied initially and upon reconsideration. Plaintiff, through counsel, requested and was granted a de novo hearing before Administrative Law Judge (ALJ) Deborah Smith. Plaintiff and a vocational expert (VE) appeared and testified at the ALJ hearing. On June 7, 2010, the ALJ issued a decision denying plaintiff's DIB application. Plaintiff's request for review by the Appeals Council was denied, making the decision of the ALJ the final administrative decision of the Commissioner.
To qualify for disability benefits, a claimant 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. 42 U.S.C. § 423(d)(1)(A). The impairment must render the claimant 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)(2).
Regulations promulgated by the Commissioner establish a five-step sequential evaluation process for disability determinations:
Rabbers v. Commissioner of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (citing §§ 404.1520(a)(4)(i)-(v), 404.1520(b)-(g)). The claimant has the burden of proof at the first four steps of the sequential evaluation process. Id.; Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004). Once the claimant establishes a prima facie case by showing an inability to perform the relevant previous employment, the burden shifts to the Commissioner to show that the claimant can perform other substantial gainful employment and that such employment exists in the national economy. Rabbers, 582 F.3d at 652; Harmon v. Apfel, 168 F.3d 289, 291 (6th Cir. 1999).
The ALJ applied the sequential evaluation process and made the following findings of fact and conclusions of law:
2. The [plaintiff] has not engaged in substantial gainful activity since March 1, 2006, the alleged onset date (20 CFR 404.1571 et seq.).
(Tr. 11-17).
Judicial review of the Commissioner's determination is limited in scope by 42 U.S.C. § 405(g) and involves a twofold inquiry: (1) whether the findings of the ALJ are supported by substantial evidence, and (2) whether the ALJ applied the correct legal standards. See Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see also Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
The Commissioner's findings must stand if they are supported by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,401 (1971) (citing Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). Substantial evidence consists of"more than a scintilla of evidence but less than a preponderance. . . ." Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). In deciding whether the Commissioner's findings are supported by substantial evidence, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359 (6th Cir. 1978).
The Court must also determine whether the ALJ applied the correct legal standards in the disability determination. Even if substantial evidence supports the ALJ's conclusion that the plaintiffs not disabled, "a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Rabbers, 582 F.3d at 651 (quoting Bowen, 478 F.3d at 746). See also Wilson, 378 F.3d at 545-46 (reversal required even though ALJ's decision was otherwise supported by substantial evidence where ALJ failed to give good reasons for not giving weight to treating physician's opinion, thereby violating the agency's own regulations).
The pertinent medical findings and opinions have been adequately summarized in plaintiff's Statement of Errors and will not be repeated here. (Doc. 11 at 2-7). Where applicable, the Court will identify the medical evidence relevant to its decision.
On appeal, plaintiff argues that: ( 1) the ALJ erred by failing to properly identify plaintiff's "severe" and "non-severe" impairments and by failing to account for all of the limitations imposed by both the severe and non-severe impairments in the RFC finding; (2) the ALJ improperly weighed the opinions of plaintiff's treating orthopedic surgeon, Dr. John Gallagher; and (3) the ALJ improperly evaluated plaintiff's credibility.
A severe impairment or combination of impairments is one that significantly limits the physical or mental ability to perform basic work activities. 20 C.F .R. § 404.1521. Basic work activities relate to the abilities necessary to perform most jobs, such as the ability to perform physical functions. 20 C.F.R. § 404.1521 (b). In the physical context, a severe impairment or combination of impairments means a significant limitation upon a plaintiff's ability to walk, stand, sit, lift, push, pull, reach, carry or handle. See 20 C.F.R. § 404.1521 (b)(1). Plaintiff is not required to establish total disability at this level of the sequential evaluation. Rather, the severe impairment requirement is a threshold element that plaintiff must prove in order to establish disability within the meaning of the Act. Gist v. Secretary of HHS., 736 F.2d 352, 357 (6th Cir. 1984). An impairment will be considered non-severe only if it is a "slight abnormality which has such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education, and work experience." Farris v. Secretary of HHS., 773 F.2d 85, 90 (6th Cir. 1985) (citing Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984)). The severity requirement is a "de minimis hurdle" in the sequential evaluation process. Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988). See also Rogers v. Commissioner, 486 F.3d 234, 243 n.2 (6th Cir. 2007).
Here, the ALJ found "severe" impairments of (1) a history of bilateral knee replacement, and (2) obesity. (Tr. 11 ). Plaintiff alleges the ALJ nonetheless failed to properly account for the limitations caused by his knee impairment. Plaintiff asserts that the bilateral knee replacement was not entirely successful and that his treating orthopedic surgeon, Dr. John Gallagher, recommended a number of accommodations for his knee impairment, including the need to alternate sitting and standing approximately every 30 minutes, the need to take unscheduled breaks, a restriction against crouching or squatting, and a limitation on standing/walking no more than two hours per 8-hour workday and sitting no more than two hours per 8-hour workday. (Doc. 11 at 14). As this particular argument goes to the weight accorded the treating physician's opinion, which plaintiff raises as his second assignment of error, the Court will address the ALJ's alleged failure to account for the restrictions imposed by Dr. Gallagher to accommodate plaintiff's knee impairment in connection with that assignment of error.
Plaintiff also alleges the ALJ failed to recognize he suffers from additional "severe" impairments of bilateral hand tremors, diverticulitis, cervical spine degenerative disc disease, and right shoulder arthritis, and to incorporate the limitations imposed by these impairments into the RFC finding. (Doc. 11 at 11 ).
The ALJ acknowledged that imaging evidence showed cervical degenerative disc disease (Tr. 13), but plaintiff points to no evidence showing any physical restrictions resulting from this impairment. An MRI of plaintiff's cervical spine performed in January 2008 disclosed only minimal changes. (Tr. 500). The findings included minimal hypertrophic changes at midcervical levels; no cervical cord signal abnormalities; minimal facet arthropathy with no compressive abnormality at the C2-3 level; a very small broad based noncompressive central disc protrusion with patent neural foramina at C3-4; a small broad based disc protrusion causing mild central stenosis with no cord compression or high grade foraminal stenosis at C4-5; a small broad based left central disc protrusion with partial annular tear causing borderline to mild central stenosis and borderline narrowing of the left C6 foramen at C6-7, but no significant abnormality of the disc or neural foramina at that level; and similar findings at C7-Tl. (Id.). The impression was "mild noncompressive multilevel cervical degenerative disc disease." (Id.). There is no evidence in the record that plaintiff obtained any type of treatment for his mild cervical degenerative disc disease or that any physician imposed functional limitations to account for this condition. Plaintiff points to no evidence mentioning this condition subsequent to the MRI. Moreover, consultative examining physician Dr. Bailey noted plaintiff's complaint of chronic neck pain exacerbated by overhead reaching with his right arm and chronic upper back pain in her February 2008 report, but range of motion of the cervical spine was within normal limits, and the overall results of her examination were "normal" in this regard.
Nor is there evidence that shows plaintiff's right shoulder impairment, which the ALJ thoroughly discussed in her decision (Tr. 13), was more than a slight abnormality that could be expected to interfere with plaintiff's ability to work. Plaintiff first complained of right shoulder pain to his family physician, Dr. Prasad Chandra, in January 2008, stating that the pain went from his right shoulder to his elbow, and that he felt weak when lifting a gallon of milk. (Tr. 487). Dr. Chandra referred plaintiff to Dr. Gallagher for right shoulder pain later that month. (Tr. 486). Plaintiff saw Dr. Gallagher on March 5, 2008, at which time he reported right shoulder pain of two months duration that was aggravated by overhead activities or reaching behind his back. (Tr. 495). Dr. Gallagher obtained x-rays, diagnosed right shoulder rotator cuff tendonitis, administered an injection for pain relief, and referred plaintiff to physical therapy. (Id.). Plaintiff began participating in physical therapy for his right shoulder on March 11, 2008. (Tr. 506-520). Plaintiff reported to Dr. Gallagher on April 16, 2008, that he had improved 80% with the injection and physical therapy but he still had significant symptoms when attempting to lift an object with his right shoulder fully abducted to the side. (Tr. 499). Dr. Gallagher noted on examination that plaintiff had improved range of motion, particularly internal rotation, but that he had positive impingement testing and pain with supraspinatus function. (Id.). Dr. Gallagher's impression was improvement with the injection and physical therapy. Since plaintiff was improved, the plan was to continue plaintiff in physical therapy for the next few weeks and, if the improvement decreased or if his pain persisted, plaintiff was to call back for an MRI scan. (Id.). Plaintiff was discharged from physical therapy on May 2, 2008, after 15 sessions due to meeting his goals.
Further, the ALJ did not err by finding plaintiff's diverticulitis to be a "non-severe" impairment and by not including any functional limitations to account for this impairment in the RFC finding. (Doc. 11 at 13-14). The ALJ acknowledged that plaintiff suffers from diverticulitis and that he underwent surgery for the condition in 2004. (Tr. 13, 214). Plaintiff was subsequently hospitalized in August 2005 for abdominal pain "of undetermined etiology suggestive of diverticulitis." (Tr. 223-264). ACT scan in June 2007 confirmed that plaintiff suffered from "[m]ild uncomplicated descending colon diverticulitis." (Tr. 387). However, there is no indication in the record that plaintiff's diverticulitis causes debilitating symptoms, and no medical provider imposed any functional limitations resulting from the condition. Plaintiff relies solely on his testimony at the ALJ hearing and representations in the Statement of Errors to argue the ALJ should have accommodated flare-ups of his diverticulitis, which he alleges cause pain and require him to use the restroom on a frequent and urgent basis, by including limitations of ready access to restroom facilities and absences averaging one day per month due to abdominal pain and gastrointestinal distress. (Doc. 11 at 14, citing Tr. 38). However, plaintiff's testimony is insufficient to show his diverticulitis imposes these or any other functional limitations. Plaintiff testified that his diverticulitis flares up only "occasionally" and that he had not experienced a flare-up in approximately one year as of the date of the ALJ hearing. (Tr. 38). The Statement of Errors includes a citation to one treatment record of Dr. Chandra dated October 2007 to show plaintiff has flare-ups of his diverticulites which are treated with antibiotics, but these notes are not clear as to whether Dr. Chandra actually diagnosed and treated plaintiff for a diverticulitis flare-up. (Doc. 11 at 12-13, citing Tr. 487). There are no other treatment records pertaining to plaintiff's diverticulitis. Plaintiff's diagnosis of diverticulitis, without any related evidence showing recurring or severe symptoms or functional limitations, does not denote significant limitations on the ability to perform basic work activities. See Farris, 773 F.2d at 90.
Finally, plaintiff contends the ALJ erred by failing to find that his hand tremors, which he asserts progressed over time from a minor annoyance into a constant problem, are a severe impairment. (Doc. 11 at 11-12). The ALJ acknowledged plaintiff's allegation that he suffered from hand tremors his entire life. (Tr. 13). However, the ALJ found the tremors were not a severe impairment, stating that plaintiff had been able to work as a carpenter and construction worker despite the tremors. (Id.).
Substantial evidence supports the ALJ's decision in this regard. In her consultative examination report dated February 2008, Dr. Bailey described only a "[m]ild bilateral hand tremor." (Tr. 470). Dr. Bailey also observed that plaintiff had some mild difficulty writing legibly.
As substantial evidence supports the ALJ's severity and RFC findings, plaintiff's first assignment of error should be overruled.
It is well-established that the findings and opinions of treating physicians are entitled to substantial weight. "In general, the opinions of treating physicians are accorded greater weight than those of physicians who examine claimants only once." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 530-31 (6th Cir. 1997). See also Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985) ("The medical opinions and diagnoses of treating physicians are generally accorded substantial deference, and if the opinions are uncontradicted, complete deference."). "The treating physician doctrine is based on the assumption that a medical professional who has dealt with a claimant and his maladies over a long period of time will have a deeper insight into the medical condition of the claimant than will a person who has examined a claimant but once, or who has only seen the claimant's medical records." Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
The treating physician rule mandates that the ALJ "will" give a treating source's opinion controlling weight if it "is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record." Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011) (citing former 20 C.F.R. § 404.1527(d)(2)).
"Importantly, the Commissioner imposes on its decision makers a clear duty to `always give good reasons in [the] notice of determination or decision for the weight [given a] treating source's opinion.'" Cole, 661 F.3d at 937 (citing former 20 C.F.R. § 404.1527(d)(2)). Those reasons must be "supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Id. (citing SSR 96-2p).
Plaintiff contends that the ALJ erred by improperly analyzing the opinion of his treating orthopedist, Dr. Gallagher. (Doc. 11 at 14-18). Plaintiff argues that none of the ALJ's stated reasons for discounting Dr. Gallagher's February 2009 opinion are valid. Plaintiff asserts that the ALJ erroneously relied on Dr. Gallagher's earlier assessments of plaintiff's functional limitations as compared to Dr. Gallagher's February 2009 assessment and failed to consider the progressive nature of plaintiff's conditions when rejecting the latter assessment. Plaintiff also argues that the ALJ erred by discounting Dr. Gallagher's opinion as inconsistent with the record and too restrictive based on an erroneous interpretation of Dr. Gallagher's report of plaintiff's activities. (Doc. 11 at 16-17). Finally, plaintiff argues that the ALJ improperly discounted Dr. Gallagher's opinion based on her incorrect finding that Dr. Gallagher sees plaintiff only once a year and is thus "not really a treating source," (Doc 11 at 17, citing Tr. 15-16), when in fact this is the accepted frequency of visits for an orthopedic surgeon; Dr. Gallagher saw plaintiff more frequently until he "had nothing more to offer" plaintiff; and the ALJ's discounting of Dr. Gallagher's opinion on this ground is illogical given that the ALJ purportedly relied on the opinion of a reviewing physician who never saw or examined plaintiff.
The ALJ gave good reasons for discounting Dr. Gallagher's assessment. Contrary to plaintiff's argument, the ALJ expressly acknowledged that Dr. Gallagher is a "treating physician" but reasonably took into account the frequency of plaintiff's visits with Dr. Gallagher, which the ALJ noted were limited to approximately once a year. (Tr. 15-16). The ALJ recognized that although Dr. Gallagher was a treating physician, his opinions were entitled to "little weight" because his most recent assessment of February 2009 was "markedly inconsistent" with his earlier assessments and office notes, and Dr. Gallagher had provided no explanation showing that plaintiff's condition had deteriorated. The ALJ decided to give greater weight to Dr. Gallagher's opinions from 2006 and 2007 (Tr. 342, 344, 350), which the ALJ found differed markedly from the opinion he provided in February 2009 (Tr. 523-27). (Tr. 16).
The ALJ's reasons for discounting Dr. Gallagher's opinions find substantial support in the record. The objective findings Dr. Gallagher made following plaintiff's bilateral knee replacement were minimal, and plaintiff was not initially assessed as having severe functional limitations resulting from his knee impairment. In October 2006, six months after plaintiff's surgery, some weakness, swelling, and giving away of the left knee was noted, as well as intermittent pain which plaintiff rated as 0-5 at rest and 0-8 with activities. (Tr. 348). However, x-rays showed no loosening, and Dr. Gallagher assessed plaintiff as able to lift 100 pounds, climb a 10-foot ladder, and kneel, although knee pads were recommended. (Tr. 350). Plaintiff next saw Dr. Gallagher in April of 2007, at which time mild swelling, effusion, and tenderness of the left knee were noted, and plaintiff's condition was rated as "improving." (Tr. 342-343). The same restrictions from the prior visit were continued. (Tr. 342). Dr. Gallagher assessed no limits on activities of daily living; plaintiff's walking endurance was unlimited; and plaintiff could walk stairs unaided. (Id.). Bilateral x-rays showed the prosthesis to be in good position and there were no signs of loosening. (Tr. 344). The plan/treatment was for "HEP [home exercise program], bicycling, elliptical training."
Despite a lack of objective medical findings to show plaintiff's condition deteriorated to a significant degree following his bilateral knee replacement, Dr. Gallagher issued an assessment in February 2009 that imposed significantly greater functional limitations than those found in his earlier reports. (Tr. 523-27). Whereas Dr. Gallagher's April 2008 report noted that plaintiff's walking endurance was unlimited and mentioned no restrictions on sitting, in February 2009 Dr. Gallagher opined that plaintiff was limited to walking 3 blocks at a time without rest or severe pain; sitting for 30 minutes at a time and less than 2 hours in an 8-hour workday; standing for 45 minutes at a time; and standing/walking less than 2 hours in an 8-hour workday. (Tr. 525). Dr. Gallagher also opined, without explanation, that plaintiff is likely to be absent from work more than four days per month as a result of his left knee impairment. (Tr. 527). Dr. Gallagher offered no explanation for the change in his assessment of plaintiff's functional limitations. In light of the absence of objective evidence showing plaintiff's left knee condition deteriorated following Dr. Gallagher's initial assessments to the point where the impairment became debilitating, the ALJ reasonably decided not to give Dr. Gallagher's February 2009 opinion controlling weight. (Tr. 16). Substantial evidence supports the ALJ's decision to give greater weight to Dr. Gallagher's earlier opinions concerning plaintiff's limitations and to the assessment of consultative examining physician Dr. Bailey that plaintiff can perform at least a mild to moderate amount of sitting, ambulating, and standing, which the ALJ found to be consistent with Dr. Bailey's objective findings and with plaintiff's ability to care for three young children during the day while his wife works. (Tr. 16, citing Tr. 470-71).
For these reasons, plaintiff's second assignment of error should be overruled.
Plaintiff argues the ALJ erred in assessing his credibility. (Doc. 11 at 18-20). Plaintiff asserts the ALJ improperly discounted evidence of progressively worsening hand tremors based on the report of Dr. Bailey (Id. at 18, citing Tr. 468-71); erroneously relied on plaintiff's role as "stay-at-home" father to find plaintiff was not wholly credible (Id., citing Tr. 15); and ignored evidence that plaintiff had difficulty performing some household tasks. (Id. at 20, citing Tr. 487, 512, 520).
In light of the ALJ's opportunity to observe the individual's demeanor at the hearing, the ALJ's credibility finding is entitled to deference and should not be discarded lightly. Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001); Kirk v. Sec. ofH.H.S., 667 F.2d 524, 538 (6th Cir. 1981). "If an ALJ rejects a claimant's testimony as incredible, he must clearly state his reasons for doing so." Felisky v. Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994). The ALJ's articulation of reasons for crediting or rejecting a claimant's testimony must be explicit and "is absolutely essential for meaningful appellate review." Hurst v. Sec. of H.H.S., 753 F.2d 517, 519 (6th Cir. 1985) (citing Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir. 1984)).
Social Security Regulation 96-7p describes the requirements by which the ALJ must abide in rendering a credibility determination:
SSR 96-7p, 1996 WL 374186, at *2 (emphasis added).
Here, the ALJ found plaintiff's testimony was not fully credible. The ALJ's decision sets forth the reasons for her credibility finding and reflects consideration of the required factors for determining plaintiff's credibility, including his allegations of disabling pain. See 20 C.F.R. § 404.1529(c). (Tr. 15). The ALJ considered the inconsistency between plaintiff's allegations concerning the severity of his symptoms and the objective medical evidence; the inconsistency between plaintiff's ability to manage a career in construction/carpentry, which presumably requires considerable use of the hands, and his report that he has suffered hand tremors his entire life; plaintiff's failure to seek treatment for diverticulitis and his testimony that he has not had a flare-up for a year; Dr. Bailey's normal findings on examination of plaintiff's neck and right arm notwithstanding plaintiff's complaints of chronic pain; and plaintiff's ability to care for three young children — a three year old and six year old twins — while his wife is at work, which requires some standing and level of exertion. (Tr. 15). Plaintiffhas not shown the ALJ erred by discounting his credibility based on these factors or that the ALJ's credibility finding is not supported by substantial evidence.
Plaintiff argues that the ALJ improperly discounted his testimony as to the severity of his hand tremors based on the report of Dr. Bailey, who described only a "mild bilateral hand tremor" and no difficulty with manipulation. (Tr. 469, 471). Plaintiff argues that the observations of his family physician, Dr. Chandra, are more reliable because whereas Dr. Bailey allegedly focused her examination largely on plaintiff's orthopedic complaints, Dr. Chandra saw plaintiff several times and on occasion saw plaintiff specifically for his tremors. (Doc. 11 at 18, citing Tr. 440-41, 542). Contrary to plaintiff's argument, there is no indication in Dr. Bailey's report that she focused on orthopedic issues. (Tr. 468-75). In addition, Dr. Chandra reported tremors, but his office notes include only plaintiff's subjective reports as to the severity of the tremors. (Tr. 542). Aside from plaintiff's self-reported symptoms, there is nothing in the record to show plaintiff's tremors increased in severity. Thus, the ALJ did not err by discounting plaintiff's credibility on this ground.
Nor did the ALJ err by assuming plaintiff's role as a "stay-at-home" father required some level of exertion and standing and by indicating plaintiff's extreme allegations were inconsistent with an ability to perform the duties demanded by this role. (Tr. 15). It is not unreasonable to conclude that an individual with the exertional limitations described by plaintiff would be unable to care for three young children on a sustained daily basis. In addition, the ALJ did not err by failing to consider plaintiff's complaints as to difficulty performing household tasks, such as lifting a gallon of milk or lifting a young child. (Doc. 11 at 20, citing Tr. 486, 487, 512). Plaintiff's complaints in this regard predate his course of physical therapy (Tr. 506-520), and there is no evidence that he experienced neck and right shoulder symptoms that precluded him from performing these activities or imposed any functional limitations after he completed physical therapy.
Accordingly, the Court finds substantial evidence supports the ALJ's credibility finding in this matter. Plaintiff's third assignment of error should be overruled.
The decision of the Commissioner be
