SHARON L. OVINGTON, Chief Magistrate Judge.
Plaintiff Tabetha Kohler brings this case challenging the Social Security Administration's denial of her application for Supplemental Security Income. She asserts here, as she did before the administration, that she has been under a benefits-qualifying disability — starting on January 15, 2007 — due to bipolar disorder, severe anxiety, severe depression, post-traumatic stress disorder, cervical degeneration, cervical stenosis, and osteoarthritis in her lower back.
The case is presently before the Court upon Plaintiff's Statement of Errors (Doc. #9), the Commissioner's Memorandum in Opposition (Doc. #10), Plaintiff's Reply (Doc. #13), the administrative record (Doc. #6), and the record as a whole.
Plaintiff was 24 years old on her alleged disability onset date, placing her in the category of a "younger person" for purposes of resolving her claim for SSI. See 20 C.F.R. § 416.963(c). She has a high school education. Her past relevant employment includes work as a cashier and telemarketer.
At her administrative hearing in October 2012, Plaintiff testified she lives with her boyfriend and two children. (PageID# 72). Her son was born in 2005 and her daughter was born in 2009. Plaintiff is 5' 6" tall and weighs approximately 220 pounds. She has not had a full-time job since 2006, when she was a cashier at a Meijer gas station. (PageID# 75). She quit that job because it was "stressful on [her] body." (PageID# 78). She last worked part-time in 2009, packaging small items into bags. She has not worked since she had her daughter in 2009. When asked why she has not applied for any jobs since then, Plaintiff stated, "I have severe anxiety. My body limits me to, to what I can do. And the sitting and the standing and the lifting, it really takes a toll on my body, and that's why I haven't." (PageID# 78).
Plaintiff described her typical day as follows:
(PageID# 79). Plaintiff also indicated she is able to drive and goes to the grocery store once a month, around midnight, to avoid crowds. She stated she does not have any hobbies, does not have a computer, and does not have a cell phone. (PageID# 80). Approximately 3 days per week she does not bathe or change her clothes. She believes she is unable to work because of anxiety talking with people and depression. Her ankles, feet, and fingers also swell. She has pain in her lower back. She estimates she can lift no more than a gallon of milk.
Her primary care physician prescribes her Abilify, Lexapro, Klonopin, and Vicodin. She has been taking Vicodin and a muscle relaxer for approximately 2½ years. She takes a 500 mg dosage of Vicodin 3 times per day and a muscle relaxer about 2 to 3 times per day. (PageID# 89). The Vicodin usually helps with the pain but makes her "very tired." (PageID# 87). The last time she saw a mental health professional was approximately 6 months prior to the hearing. She has not gone back because of her "children's schedules and it was chaotic taking them . . . to therapy or to the psychiatrist." (PageID# 85). Plaintiff has migraines approximately once a week. She testified they last from 30 minutes to 2 days. She last went to the ER for a migraine 3 days prior to the hearing. (PageID# 88). Plaintiff testified she does not smoke, drink, or abuse drugs. (PageID# 90). When she takes her children to the park she is not able to play with them; she only sits and watches. She stated, "I don't get involved in activities because it's too strenuous moving around and bending up and down." (PageID# 92).
The administrative record contains many medical records plus opinions from Plaintiff's treating and non-treating medical sources. A detailed description of those records and opinions is unnecessary because the undersigned has reviewed the entire administrative record and because the ALJ, Plaintiff's counsel, and the Commissioner have accurately summarized the relevant records concerning Plaintiff's physical and mental impairments with citations to specific evidence.
The Social Security Administration provides Supplemental Security Income (SSI) to indigent individuals, subject to several eligibility requirements. Chief among these, for purposes of this case, is the "disability" requirement. To receive SSI, an applicant must be a "disabled individual." 42 U.S.C. § 1381a; see Bowen v. City of New York, 476 U.S. 467, 470 (1986). The phrase "disabled individual" — as defined by the Social Security Act — has specialized meaning of limited scope. It encompasses "any medically determinable physical or mental impairment" that precludes an applicant from performing a significant paid job — i.e., "substantial gainful activity," in Social Security lexicon.
To determine whether Plaintiff was under a benefits-qualifying disability, Administrative Law Judge (ALJ) Kim S. Nagle applied the Social Security Administration's 5-Step sequential evaluation procedure. See 20 C.F.R. § 416.920(a)(4)(I)-(v). Steps 2, 3, and 4 are the most significant in this case.
At Step 2, the ALJ concluded that Plaintiff had several impairments, namely, "spinal disorder, obesity, affective disorder, anxiety disorder and personality disorder." (PageID# 46).
At Step 3, the ALJ concluded that Plaintiff's impairments or combination of impairments did not meet or equal the criteria in the Commissioner's Listing of Impairments, including Listings 1.04, 12.04, 12.06, and 12.08. (Id.).
At Step 4, the ALJ concluded that Plaintiff retained the residual functional capacity
(PageID# 49). The ALJ also concluded at Step 4 that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . ." (PageID# 50).
The sum and substance of the ALJ's sequential evaluation ultimately led the ALJ to conclude that Plaintiff was not under a benefits-qualifying disability.
Judicial review of an ALJ's decision proceeds along two lines: "whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence." Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 745-46 (6th Cir. 2007).
Review for substantial evidence is not driven by whether the Court agrees or disagrees with the ALJ's factual findings or by whether the administrative record contains evidence contrary to those factual findings. Gentry v. Comm'r of Soc. Sec., 741 F.3d 708, 722 (6th Cir. 2014); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Instead, the ALJ's factual findings are upheld if the substantial-evidence standard is met — that is, "if a `reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Blakley, 581 F.3d at 407 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance . . ." Rogers, 486 F.3d at 241; see Gentry, 741 F.3d at 722.
The second line of judicial inquiry — reviewing for correctness the ALJ's legal criteria — may result in reversal even when the record contains substantial evidence supporting the ALJ's factual findings. Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009); see Bowen, 478 F.3d at 746. "[E]ven if supported by substantial evidence, `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 in part Bowen, 478 F.3d at 746, and citing Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 546-47 (6th Cir. 2004)).
Plaintiff first contends the ALJ erred by failing to determine whether her migraines constitute a severe impairment and any resulting limitations caused as a result. (Doc. #9, PageID# 877-78). Plaintiff argues that the focus on her migraines during the administrative hearing "serves to highlight and magnify the unreasonableness of the ALJ's failure to substantively discuss this impairment or to identify what limitations have been reasonably occasioned by the same." (Id.).
The Commissioner contends the fact the ALJ did not consider Plaintiff's migraines as a severe impairment at Step 2 is legally irrelevant. (Doc. #10, PageID# 890). The Commissioner further argues that, even if Plaintiff's migraines should have been considered severe, she has nonetheless failed to prove they caused any additional limitations on her ability to work, or lasted, for 12 months or more in duration. (Id.).
The Commissioner is correct in noting that the ALJ's failure to consider Plaintiff's migraine headaches as a severe, instead of non-severe, impairment in this case is "legally irrelevant." The ALJ determined Plaintiff had other severe impairments, namely spinal disorder, obesity, affective disorder, anxiety disorder and personality disorder. (PageID# 46). Thus, Plaintiff cleared Step 2. See Simpson v. Comm'r of Soc. Sec., 344 Fed. Appx. 181, 190-91 (6th Cir. 2009) ("This Court has previously found it `legally irrelevant' that some of a claimant's impairments were considered non-severe, when others were found to be severe, because a finding of severity as to even one impairment clears the claimant of step two of the analysis and should cause the ALJ to consider both the severe and nonsevere impairments in the remaining steps.") (internal citations omitted).
The question next becomes whether the ALJ properly considered and accounted for any limitations caused by Plaintiff's migraines throughout the rest of her decision. The ALJ did. Plaintiff may have desired specific limitations be included in her residual functional capacity to account for symptoms she alleged occurred as a result of migraine headaches, however, the residual functional capacity formulated by the ALJ is supported by substantial evidence and should not be disturbed. Blakley, 581 F.3d at 406 ("The substantial-evidence standard . . . presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts."). Moreover, it cannot be said the ALJ overlooked or completely ignored Plaintiff's migraine headaches. In fact, she spent a significant portion of her decision discussing them, as follows:
[Plaintiff] also reported suffering from migraine headaches, which allegedly occurred once a week for 30 minutes to 2 days in duration, were triggered by light or sound and relieved by being in a dark, quiet room or with hospital treatment. She reported she last went to the emergency room on October 9, 2012, due to her migraines.
(PageID## 50, 53-54). The minimal treatment records relating to her migraines do not tend to support a finding that Plaintiff had any work-related limitations as a result of her migraines. In fact, as the ALJ noted, Plaintiff drove herself to the hospital during one such migraine and ran off before treatment had finished during another. (PageID## 53). In addition, the ALJ was not required to accept as true every symptom she reported and provide a corresponding limitation in the residual functional capacity assessment to account for it. Plaintiff fails to take into account the ALJ did not find her credible, specifically noting that "the information provided by [her] generally may not be entirely reliable," and her "statements concerning the intensity, persistence and limiting effects of ... symptoms are not entirely credible . . . ." (PageID# 50). In particular, the ALJ noted her claims of "debilitating symptoms and headaches" were not credible. (Id.). Given the ALJ's discussion regarding Plaintiff's migraines, the minimal treatment records, and Plaintiff's lack of credibility,
Plaintiff's second assignment of error is much like her first: the ALJ erred by failing to properly determine whether her ovarian cysts constitute a severe impairment and any resulting limitations. (Id.).
The fact the ALJ did not determine whether Plaintiff's ovarian cysts constitute a severe impairment is, as with her migraines, "legally irrelevant." See Simpson, 344 Fed. Appx. at 190-91. The Commissioner is also again correct in noting that Plaintiff did not allege any disabling limitations from the ovarian cysts and the record does not support a finding that any limitations existed. Plaintiff's reliance on Cox v. Comm'r of Soc. Sec., 3:14cv23, 2015 U.S. Dist. LEXIS 25168 (S.D. Ohio Mar. 2, 2015) is also misplaced. (Doc. #13, PageID# 912). In Cox, the ALJ failed entirely to provide any indication that he actually considered plaintiff Charles Cox's carpal tunnel syndrome at any step in the sequential analysis. Cox, 2015 U.S. Dist. LEXIS 15880 at *14. The Court noted that the failure to consider Cox's carpal tunnel syndrome was "particularly troublesome" in light of the ALJ's colloquy with plaintiff at the administrative hearing. During that discussion, Mr. Cox stated he had been diagnosed with carpal tunnel syndrome in both hands, specifically discussing how it prevents him from using both hands because they constantly curl up and cause him significant pain. (Id. at *13). In this case, unlike the ALJ in Cox, the ALJ did not ignore or completely overlook Plaintiff's impairment. She noted and properly considered Plaintiff's abdominal pain and ovarian cysts in her decision. (Doc. #54). Moreover, while the plaintiff in Cox testified his carpal tunnel syndrome prevented him from using his hands on a daily basis, Plaintiff in this case made no similar statements that her ovarian cysts somehow caused her any limitations, let alone work-preclusive ones. The minimal treatment records, with infrequent trips to the emergency room, likewise do not support such a finding. For these reasons, Plaintiff has not shown any error in the ALJ's consideration of her ovarian cysts and her argument lacks merit.
Plaintiff also challenges the ALJ's assessment regarding her credibility. (Docs. ##9 and 13). She contends the ALJ's adverse findings regarding her daily activities and reliance upon select portions of Dr. Flexman's report do not support her conclusions. (Doc. #13, PageID## 912-13). The Commissioner contends the ALJ properly considered Plaintiff's daily activities and substantial evidence supports her credibility assessment. (Doc. #10, PageID# 895).
The ALJ concluded that Plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, [her] statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible . . . ." (PageID# 50). The ALJ then supported her credibility finding in great length, as follows:
(PageID# 51).
"[A]n ALJ's findings based on the credibility of the applicant are to be accorded great weight and deference, particularly since an ALJ is charged with the duty of observing a witness's demeanor and credibility." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). "It is of course for the ALJ, and not the reviewing court, to evaluate the credibility of witnesses, including that of the claimant. However, the ALJ is not free to make credibility determinations based solely upon an `intangible or intuitive notion about an individual's credibility.'" Rogers, 486 F.3d at 247 (internal citations omitted). Substantial evidence must support the ALJ's reasons for discounting the applicant's statements. See id. at 248-49. In addition, Social Security Ruling 96-7p, 1996 SSR LEXIS 4 (July 2, 1996), instructs ALJs to "consider the entire record and give specific reasons for the weight given to the individual's statements." And, the ALJ's "reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision . . . ." Id.
Plaintiff's argument regarding the ALJ's credibility decision is without merit. The ALJ in this case not only properly considered Plaintiff's activities of daily living, but also her medical treatment records, medical source examinations, lack of objective evidence in the records, and non-compliance. The ALJ provided numerous examples supporting her finding, with specific references to the record. For example, in support of her credibility finding the ALJ noted that Plaintiff was non-compliant with treatment and left a treating facility against medical advice. (PageID# 51, citing to Exhibits 6F, 30F, 31F, and 22F). The ALJ also accurately noted the lack of support in the record for Plaintiff's allegations and the fact a physician opined that Plaintiff should undertake gainful employment. (PageID# 51, citing to Exhibit 4F); see PageID# 366 ("[Plaintiff] should be encouraged to undertake normal activities including gainful employment, etc."). In addition, while the ALJ did consider Plaintiff's activities of daily living, she did not, as Plaintiff asserts, principally rely upon such findings to support her credibility assessment. The ALJ considered the overall evidence in the record and noted, with specific citation to exhibits, numerous examples not relating to Plaintiff's activities of daily living that support her conclusions regarding credibility.
Substantial evidence supports the ALJ's findings when "a `reasonable mind might accept the relevant evidence as adequate to support a conclusion.'" Blakley, 581 F.3d at 406 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004)). Substantial evidence consists of "more than a scintilla of evidence but less than a preponderance . . ." Rogers, 486 F.3d at 241. In this case, a reasonable mind could conclude the evidence relied upon by the ALJ is adequate to support her credibility finding, and thus, substantial evidence supports her conclusion. Accordingly, deference is given to the ALJ's credibility finding regardless of whether or not the Court agrees with it. Blakley, 581 F.3d at 406; see Rogers, 486 F.3d at 241.
For these reasons, Plaintiff's Statement of Errors lacks merit and the ALJ's decision should not be disturbed.
1. The Commissioner's non-disability determination be
2. The case be terminated on the docket of this Court.
