KIMBERLY A. JOLSON, Magistrate Judge.
Plaintiff Christina L. Nuzum filed this action seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying her Title II Disability Insurance Benefits application. For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors (Doc. 10) be OVERRULED, and that judgment be entered in favor of Defendant.
Plaintiff filed her application for benefits on June 4, 2013, alleging that she has been disabled since July 26, 2012 due to herniated discs, sciatica, fibromyalgia, progressive nerve damage, and neuropathy. (Tr. 166-68, PAGEID #: 203-05). Plaintiff later amended her onset date to May 31, 2013, the date she stopped working full-time. (Tr. 22, PAGEID #: 56). Plaintiff was denied benefits on October 15, 2013 (Tr. 105-09, PAGEID #: 141-45), and upon reconsideration on February 11, 2014 (Tr. 111-14, PAGEID #: 147-50). Plaintiff filed a Request for Hearing on April 1, 2014 (Tr. 115-16, PAGEID #: 151-52), and an administrative hearing by video was held on December 3, 2015 (Tr. 41-72, PAGEID #: 75-106). Administrative Law Judge Christopher Tindale (the "ALJ") denied Plaintiff's claim in a decision issued on February 11, 2016. (Tr. 19-40, PAGEID #: 53-74). The Appeals Council denied Plaintiff's request for review on February 16, 2017, adopting the ALJ's decision as the Commissioner's final decision. (Tr. 5-10, PAGEID #: 39-44).
Plaintiff filed this case on June 16, 2017 (Doc. 1), and the Commissioner filed the administrative record on August 28, 2017 (Doc. 7). Plaintiff filed a Statement of Specific Errors on October 19, 2017 (Doc. 10), and the Commissioner responded on November 29, 2017 (Doc. 11). Plaintiff did not file a reply.
Plaintiff testified that she was born on July 3, 1975, and was 40 years old on the date of the hearing. (Tr. 49, PAGEID #: 83). She is married and has three children, who at the time of the hearing were 17 years old (twins) and 15 years old. (Tr. 50, PAGEID #: 84). Plaintiff earned a GED and had some college. (Id.).
Plaintiff stated that her medical impairments began on August 26, 2011, which she referred to as "the day [her] life ended." (Tr. 51, PAGEID #: 85). She explained:
(Tr. 51-52, PAGEID #: 85-86). Plaintiff testified that this condition led to a spinal cord stimulator implant inserted for pain management. (Tr. 52-53, PAGEID #: 86-87). Plaintiff explained:
(Tr. 53, PAGEID #: 87). After the implant, Plaintiff returned to work. (Id.). However, Plaintiff eventually stopped working after the success of the spinal cord stimulator waned in 2012 and 2013. (Tr. 53, PAGEID #: 87). Plaintiff believes this occurred because she "was pushing [herself] a little too hard." (Id.).
Plaintiff described the pain she feels as:
(Tr. 53-54, PAGEID #: 87-88). She also stated that her hands go numb and "won't work," and that she has been diagnosed with carpal tunnel syndrome. (Tr. 54, PAGEID #: 88; Tr. 59, PAGEID #: 93). Plaintiff also takes medication for psoriasis and suffers from anxiety and depression. (Tr. 59-61, PAGEID #: 93-95).
Plaintiff testified that she lies on the couch approximately 18 to 20 hours per day (Tr. 55, PAGEID #: 89), and gets four to eight injections in her upper back monthly (Tr. 56, PAGEID #: 90). Plaintiff's pain medications ease her pain enough for her "to get up and not be so angry at [herself]," but they also cause her stomach problems. (Tr. 57-58, PAGEID #: 91-92). Plaintiff is unable to go grocery shopping unless it is for one item. (Tr. 57, PAGEID #: 91). She has past work as a dental assistant. (Tr. 65-67, PAGEID #: 99-101).
Plaintiff testified that she can stand for approximately 15 minutes, walk for approximately 20 to 25 minutes, and sit for approximately 30 minutes. (Tr. 57-58, PAGEID #: 91-92). She maintains a driver's license and can drive short distances. (Tr. 58, PAGEID #: 92).
A Vocational Expert (the "VE") also testified at the hearing, stating that Plaintiff was incapable of performing her past work. (Tr. 67, PAGEID #: 101). However, a hypothetical person of Plaintiff's age, education, work history, with her residual functional capacity ("RFC") could perform unskilled, light work, such as an inspector, mail clerk, and routing clerk. (Tr. 67-68, PAGEID #: 101-102). The VE testified that, if the hypothetical person's exertional level was reduced to sedentary, she could perform jobs such as inspector and bench assembler. (Tr. 68, PAGEID #: 102).
The VE testified concerning additional limitations as follows:
(Tr. 68-70, PAGEID #: 102-04).
The ALJ found that Plaintiff met the insured status requirements through December 31, 2017, and that she has not engaged in substantial gainful activity since May 31, 2013, her alleged onset date. (Tr. 24, PAGEID #: 58). The ALJ determined that Plaintiff suffers from the following severe impairments: "degenerative changes in the spine; chronic pain secondary to fibromyalgia versus a chronic pain syndrome versus a possible unspecified neuropathy; a somatoform disorder; and an affective disorder...." (Id.). Concerning Plaintiff's chronic pain, the ALJ stated:
(Tr. 25, PAGEID #: 59). The ALJ found Plaintiff's other impairments to be non-severe. (Id.).
The ALJ examined Listings 1.04 (disorders of the spine), 12.04 (affective disorders), and 12.07 (somatoform disorders), but determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. (Tr. 26, PAGEID #: 60). In examining whether Plaintiff satisfied the requirements of Listings 12.04 and 12.07, the ALJ noted that Plaintiff has no more than a mild restriction in her activities of daily living. (Id.). The ALJ stated:
(Id.). The ALJ also examined Plaintiff's social functioning and determined:
(Id.).
Upon review of the record, the ALJ found that Plaintiff maintained:
(Tr. 27, PAGEID #: 61).
The ALJ likewise found that, although Plaintiff's medically determinable impairments could reasonably be expected to cause some of the alleged systems, her statements concerning the intensity, persistence, and limiting effects of the symptoms were not entirely credible. (Tr. 28, PAGEID #: 62). Specifically, the ALJ found that the objective medical evidence undermined Plaintiff's credibility concerning, inter alia, her chronic pain. (Tr. 29, PAGEID #: 63). To that end, the ALJ stated:
(Tr. 29-30, PAGEID #: 63-64) (footnote omitted). The ALJ likewise found that non-medical evidence undermined Plaintiff's credibility, stating:
(Tr. 30-31, PAGEID #: 64-65) (footnote omitted).
After weighing the opinion evidence, the ALJ determined that Plaintiff was unable to perform any past relevant work. (Tr. 33, PAGEID #: 67). He noted that Plaintiff was born on July 3, 1975, and was 37 years old (defined as a younger individual) on the alleged disability onset date. (Id.). The ALJ found that Plaintiff has a high school education, is able to communicate in English, and that transferability of job skills was not material to the disability determination. (Tr. 33-34, PAGEID #: 67-68). Considering Plaintiff's age, education, work experience, and RFC, the ALJ determined that there are jobs that exist in the national economy that Plaintiff can perform. (Tr. 34, PAGEID #: 68). Thus, the ALJ found that Plaintiff was not under a disability, as defined in the Social Security Act, from May 31, 2013, through the date of the decision. (Tr. 35, PAGEID #: 69).
Under 42 U.S.C. § 405(g), "[t]he findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive. . . ." "[S]ubstantial evidence is defined as `more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (quoting Cutlip v. Sec'y of HHS, 25 F.3d 284, 286 (6th Cir. 1994)). The Commissioner's findings of fact must also be based upon the record as a whole. Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985). To that end, the Court must "take into account whatever in the record fairly detracts from [the] weight" of the Commissioner's decision. Rhodes v. Comm'r of Soc. Sec., No. 1:13-cv-1147, 2015 WL 4881574, at *2 (S.D. Ohio Aug. 17, 2015).
In her sole statement of error, Plaintiff alleges that the ALJ's credibility analysis was deficient, particularly in light of her severe and chronic pain. (Doc. 10 at 9). More specifically, Plaintiff faults the ALJ for improperly "minimiz[ing] the supportive evidence of record" by, for example, placing it in a footnote. (Id. at 11). Plaintiff further contends that "the ALJ's inappropriate reliance on the lack of objective medical evidence to discount [Plaintiff's] allegations of pain and limitations, while minimizing objective evidence that supported her allegations, was reversible error particularly since the pain at issue bears a resemblance to fibromyalgia, which the ALJ noted and accepted as a possible cause of [Plaintiff's] pain." (Id.). Plaintiff likewise argues:
(Id. at 12-13). Based on the foregoing, Plaintiff argues that the ALJ's inadequate consideration of her testimony and statements regarding the severity of her symptoms "was egregious" and warrants remand. (Id. at 13).
At the time of the ALJ's decision, SSR 96-7p, 1996 WL 374186 (July 2, 1996), governed the ALJ's analysis of the credibility of Plaintiff's statements concerning her symptoms. That ruling was later superseded by SSR 16-3p, 2016 WL 1119029 (Mar. 16, 2016), which eliminated the use of the term "credibility" in order to "clarify that subjective symptom evaluation is not an examination of an individual's character." SSR 16-3p, 2016 WL 1119029 at *1. The new ruling directs the ALJ to look at whether the claimant's statements about the intensity, persistence, and limiting effects of symptoms are consistent with the objective medical evidence and other evidence of record. Id., 2016 WL 1119029 at *7. Although the Sixth Circuit has declined to determine if SSR 16-3p is retroactive, it has characterized SSR 16-3p as merely eliminating "the use of the word `credibility' ... to `clarify that subjective symptom evaluation is not an examination of an individual's character.'" Dooley v. Comm'r of Soc. Sec., 656 F. App'x 113, 119 n.1 (6th Cir. 2016). In this instance, however, neither party argues that applying SSR 16-3p over SSR 96-7p would change the outcome, and the Court finds that the ALJ's decision is supported by substantial evidence under either standard.
Here, the ALJ acknowledged that Plaintiff "has some legitimate issues with chronic pain," but found her treatment records "inconsistent with the level of severity she reported." (Tr. 29, PAGEID #: 63). The ALJ determined that Dr. Margolin was the pain management physician primarily treating Plaintiff's complaints of chronic pain since 2012, and that his treatment with injections and narcotic pain relievers had remained unchanged "for the past couple years." (Id. (citing Exhibits 6F; 20F; 21F; 22F; 23F; 24F)). The ALJ further noted that Dr. Margolin's treatment records demonstrated that she suffered no side effects from her medications, and that his approach "ha[d] been rather successful in mediating the claimant's pain with the claimant typically reporting average pain levels between 2 to 4 out of 10—i.e., mild to moderate pain—at least until August 2015." (Id.). The ALJ did not overlook Plaintiff's reporting of a minimal increase in her pain levels (3 to 5 out of 10) around September 2015, but he found that the record reflected "no intervening issues that clearly explain this reported increase in pain." (Tr. 30, PAGEID #: 64 (citing Exhibit 24F)).
Plaintiff argues that the ALJ's analysis was deficient because her pain "bears a resemblance to fibromyalgia," even though she does not claim to have established fibromyalgia as a medically determinable impairment. (See Doc. 10 at 11); see also Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003) (stating that Plaintiff bears the burden of proving the existence of a severe, medically determinable impairment). Indeed, the ALJ determined that "the etiology of [Plaintiff's] chronic pain" was unsettled. (Tr. 25, PAGEID #: 59). Hence, the ALJ found Plaintiff's severe impairments to include "chronic pain secondary to fibromyalgia versus a chronic pain syndrome versus a possible unspecified neuropathy." (Tr. 24, PAGEID #: 58; see also Tr. 25, PAGEID #: 59 (noting that Plaintiff's "[p]rimary care providers and pain management doctors have variously treated the claimant for fibromyalgia, chronic pain syndrome, and/or myofascial pain syndrome")). Importantly, Plaintiff does not argue that the ALJ's failure to classify her fibromyalgia as a severe medical impairment is unsupported by substantial evidence, and she even acknowledges that her pain is "perhaps not attributable to" that disease. (Doc. 10 at 13) (emphasis added).
Based on the foregoing, it is unclear why Plaintiff faults the ALJ for not evaluating her credibility as though she had established a severe impairment of fibromyalgia. Consideration of whether an individual's fibromyalgia can be the basis for a disability finding is governed by SSR 12-2p, 2012 WL 3104869 (July 25, 2012), which provides specific guidance on how to apply the rules when dealing specifically with an individual asserting disability based on that an "elusive" and "mysterious" disease. Luukkonen v. Comm'r of Soc. Sec., 653 F. App'x 393, 399 (6th Cir. 2016); Sarchet v. Chater, 78 F.3d 305, 306 (7th Cir. 1996). Plaintiff fails to demonstrate that SSR 12-2p is applicable here and, even if it were, that she satisfies its criteria.
Further, the fact that the "ALJ acknowledged findings supportive of [Plaintiff's] allegations" in a footnote and referred to them as "rare instances where providers noted additional abnormalities," does not, as Plaintiff argues, render his decision unsupported by substantial evidence. (Doc. 10 at 11) (citing Tr. 29, n.2, PAGEID #: 63); see, e.g., Ortiz v. Comm'r of Soc. Sec., No. 1:14-cv-2845, 2015 WL 6742082, at *7 (N.D. Ohio Nov. 2, 2015) (observing that the ALJ included the complete definition of sedentary and light work in a footnote); Ramon v. Colvin, No. 1:12-cv-2213, 2013 WL 4511879, at *5, n. 40 (N.D. Ohio Aug. 16, 2013) (noting the ALJ provided additional support for reasons given in a footnote). The relevant regulations do require the ALJ to address all the evidence in the written decision. See Kornecky v. Comm'r of Soc. Sec., 167 F. App'x 496, 508 (6th Cir. 2006). Here, the record reflects that the ALJ considered the record evidence and his findings demonstrate that he resolved conflicts with Plaintiff's testimony. Id.
The Sixth Circuit has held that the Court must accord great deference to an ALJ's credibility assessment, particularly because the ALJ has the opportunity to observe the demeanor of a witness while testifying. Jones, 336 F.3d at 476. To that end, it is not the province of the reviewing court to "try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility." Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In this case, the ALJ set forth the various factors that he considered in his credibility assessment, including specific citations to medical records and medical source opinions, objective clinical findings, treatment regimen, medication use, and observations at the hearing and activities, and the ALJ's determination has support in the record. (See Tr. 28-31, PAGEID #: 62-65). Consequently, the ALJ complied with the regulations, and his decision is supported by substantial evidence.
Based upon the foregoing, it is
If any party objects to this Report and Recommendation, that party may, within fourteen (14) days of the date of this Report, file and serve on all parties written objections to those specific proposed findings or recommendations to which objection is made, together with supporting authority for the objection(s). A judge of this Court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or modify, in whole or in part, the findings or recommendations made herein, may receive further evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1). Failure to object to the Report and Recommendation will result in a waiver of the right to have the district judge review the Report and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140, 152-53 (1985).
IT IS SO ORDERED.
