THOMAS M. COFFIN, Magistrate Judge.
Plaintiff Gayle R. brings this action for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying her application for Title II Disability Insurance Benefits ("DIB"). All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed. R. Civ. P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.
On October 11, 2013, plaintiff applied for DIB, alleging disability as of February 21, 2012. Tr. 167-73. Her application was denied initially and upon reconsideration. Tr. 117-21, 123-25. On October 6, 2016, a hearing was held before an Administrative Law Judge ("ALJ"), wherein plaintiff was represented by counsel and testified, as did a vocational expert ("VE"). Tr. 35-84. On November 25, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Social Security Act. Tr. 20-29. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-6.
Born in 1951, plaintiff was 60 years old on the alleged onset date and 64 years old at the time of the hearing. Tr. 39, 167. She graduated from high school and completed one year of college. Tr. 41, 211. Plaintiff worked previously as bus driver and drug/alcohol program specialist for Trimet. Tr. 62, 65-71, 212. Plaintiff alleges disability due to fibromyalgia, chronic pain, bursitis, hypertension, sleep problems, and post-traumatic stress disorder ("PTSD"). Tr. 210.
The court must affirm the Commissioner's decision if it is based on proper legal standards and the findings are supported by substantial evidence in the record.
The initial burden of proof rests upon the claimant to establish disability.
The Commissioner has established a five step sequential process for determining whether a person is disabled.
At step two, the Commissioner evaluates whether the claimant has a "medically severe impairment or combination of impairments."
At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal "one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity."
At step four, the Commissioner resolves whether the claimant can still perform "past relevant work." 20 C.F.R. § 404.1520(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy.
At step one of the five step sequential evaluation process outlined above, the ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 22. At step two, the ALJ determined the following impairments were medically determinable and severe: "degenerative disc disease, bilateral shoulder degenerative joint disease, bursitis, fibromyalgia, and obesity."
Because she did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity ("RFC") to perform light work as defined by 20 C.F.R. § 404.1567(b) except that:
At step four, the ALJ determined, based on the VE's testimony, that plaintiff could perform her past relevant work as a drug/alcohol program specialist as actually performed and therefore was not disabled. Tr. 29.
Plaintiff argues that the ALJ erred by: (1) failing to find her mental health conditions severe at step two; (2) rejecting the medical opinion of chiropractor Arah McLaughlin; and (3) finding she could return to her past relevant work at step four.
Plaintiff contends the ALJ erred by omitting her depression and PTSD as severe impairments at step two. PL's Opening Br. 9-12 (doc. 13). At step two, the ALJ determines whether the claimant has an impairment that is both medically determinable and severe. 20 C.F.R. § 404.1520(c). An impairment is severe if it "significantly limit[s]" the claimant's ability to do basic work activities, which are defined as "abilities and aptitudes necessary to do most jobs." 20 C.F.R. § 404.1521. An impairment is medically determinable if it is diagnosed by an acceptable medical source and based upon acceptable medical evidence. SSR 96-4p,
At step two, the ALJ determined plaintiff's degenerative disc disease, bilateral shoulder degenerative joint disease, bursitis, fibromyalgia, and obesity were medically determinable and severe. Tr. 22. The ALJ also thoroughly summarized medical evidence pertaining to plaintiff's mental impairments and found that they were medically determinable but not severe because the record demonstrated "improvement with resolution of situational stressors." Tr. 22-23. As such, "[a]ny alleged error at step two was harmless because step two was decided in [plaintiff's] favor with regard to other ailments."
Further, in formulating plaintiff's RFC, the ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence," and cited to the pertinent regulations. Tr. 24. This analysis entailed evaluation of the medical record as well as plaintiff's and her husband's (David R.) allegations. Tr. 24-29. Plaintiff does not challenge the ALJ's assessment of her and David R.'s testimony on appeal,
In fact, plaintiff did not endorse any psychological symptoms to her providers outside of the initial period following her retirement from Trimet in May 2012. By November 2012, plaintiff was "so much better" and "sleeping well" — she had "let go of attachments to past wrongs and traumas . . . [and was] doing really great and has blossomed in health and insight." Tr. 417;
Significantly, plaintiff did not seek any mental health counseling until more than two years after she retired,
Moreover, plaintiff engaged in a wide-slate of daily activities during the adjudication period, such as socializing with friends multiple times per week, exercising, driving, occasionally babysitting her great grandchild, attending church services and activities, travelling, and operating a seasonal cookie business.
In sum, the ALJ adequately accounted for plaintiff's medically determinable and severe impairments at step two. Even assuming the ALJ erred, because the ALJ's sequential evaluation considered the effects of all of plaintiff's alleged symptoms, any purported error at step two was harmless.
Plaintiff asserts the ALJ failed to address and, thus, improperly rejected the medical opinion of her chiropractor, Dr. McLaughlin. Pl.'s Opening Br. 12-13 (doc. 13). While only "acceptable medical sources" can diagnose and establish the existence of a medical impairment, evidence from "other sources" can be used to determine the severity of that impairment and how it affects the claimant's ability to work. 20 C.F.R. §§ 404.1513, 404.1527(f). Nonacceptable medical sources include chiropractors. 20 C.F.R. §§ 404.1502(a), 404.1513; SSR 06-03p,
Plaintiff established chiropractic care with Dr. McLaughlin in May 2011, which entailed "stretches passive and active, manual therapy, heat and home exercises." Tr. 330. In February 2014, Dr. McLaughlin opined that plaintiff could only carry 10 pounds, "sit for 20 minutes before having to shift," and "stand for 10 minutes at the maximum."
The ALJ's discussion of Dr. McLaughlin's opinion is as follows:
Tr. 26.
As such, contrary to plaintiff's assertion, the ALJ did not ignore Dr. McLaughlin's opinion. Although the ALJ's discussion does not assign a particular weight to Dr. McLaughlin, it can nonetheless be reasonably inferred that the ALJ rejected this opinion because it was based on plaintiff's self-reports and inconsistent with the medical record.
An ALJ may disregard a medical opinion that is inconsistent with the record.
Here, substantial evidence supports the ALJ's conclusion. There are no clinical findings accompanying Dr. McLaughlin's report, nor is there any indication from the record before the Court that Dr. McLaughlin physically examined plaintiff for the purposes of determining her functional abilities. In contrast, John Ellison, M.D., performed a comprehensive musculoskeletal examination of plaintiff in June 2014, which yielded "essentially negative" results. Tr. 734-36. Furthermore, the context of Dr. McLaughlin's opinion indicates that the restrictions outlined therein were based exclusively on plaintiff's self-reported abilities. For instance, Dr. McLaughlin indicated that plaintiff could stand for only 10 minutes because "[s]he reports having to cook and clean the kitchen in 10 minute intervals." Tr. 330. Therefore, reversal is not warranted in regard to this issue.
Plaintiff argues the ALJ erred in determining she could perform her past relevant work. Pl.'s Opening Br. 4-9 (doc. 13). Specifically, plaintiff contends that "a shuttle driver is a medium job per the DOT" and the record is ambiguous regarding how much weight plaintiff lifted/carried when performing this job, such that the ALJ erred by "fail[ing] to obtain testimony regarding the actual amount of frequency of weight [plaintiff] lifted/carried in the position."
At step four, the claimant bears the burden of proving that she cannot perform her past relevant work "either as actually performed or as generally performed in the national economy."
The best source for resolving how a job is generally performed is the Dictionary of Occupational Titles ("DOT").
Plaintiff explained that, when working as a drug/alcohol program specialist, her primary responsibilities were to organize and coordinate random drug and alcohol tests for "safety sensitive" Trimet employees, and then to transport each employee to a facility where a specimen could be given. Tr. 61, 63-68, 234. Plaintiff indicated that she was required to maintain a master list each month of the employees who were tested, and to complete some additional record keeping and paperwork. Tr. 68. In terms of lifting/carrying requirements, plaintiff testified at the hearing: "Other than my briefcase, [I lifted] nothing." Tr. 69;
Based on plaintiff's testimony, the VE characterized plaintiff's past relevant work as a composite job, comprised of the following two occupations: administrative clerk, DOT§ 219.362-010; and shuttle driver, DOT § 213.662-018. Tr. 68-69. The VE identified the administrate clerk position as light exertion per the DOT and the shuttle driver position as medium exertion per the DOT (i.e., as generally performed). Tr. 69. However, given plaintiff's testimony, the VE asserted that "it doesn't sound like she performed the [shuttle driver portion] at the medium range" and instead found that it was "probably performed at the light range."
Tr. 70.
Accordingly, the VE testified that, given plaintiff's RFC, she could perform her past relevant work as a drug/alcohol program specialist as actually performed. Tr. 72-74, 78-79. In reaching a determination at step four, the ALJ cited to the pertinent regulations, considered the mental and physical demands of plaintiff's past relevant work and RFC, and explicitly relied on the VE's testimony to conclude that plaintiff was "able to perform [her past relevant work] as actually performed." Tr. 29.
Initially, the Court finds that the record already contains the additional testimony plaintiff alleges is missing on appeal. Indeed, the VE sought clarification at the end of the hearing concerning the lifting requirements of plaintiff's shuttle driving work, which plaintiff confirmed did not entail more than 20 pounds. Tr. 83. Moreover, other portions of the record make clear that the only thing plaintiff lifted and carried in her work as a drug/alcohol program specialist was a briefcase. Tr. 68-69, 234. As the Commissioner denotes, "[e]ven if [plaintiff] carried a full ream containing 500 sheets of paper in her briefcase, that would have weighed a mere five or six pounds." Def.'s Resp. Br. 6 (doc. 14) (citation omitted).
Given this evidence, plaintiff's reliance on her work history form to create an ambiguity is misplaced. In that form, plaintiff checked boxes reflecting that: (1) 20 pounds was the heaviest weight she lifted; but (2) she frequently lifted 25 pounds. Tr. 234. As plaintiff's counsel readily admits, plaintiff's responses "demonstrat[e] there was a misunderstanding of the questions." Pl.'s Opening Br. 6 (doc. 13). Regardless, because plaintiff subsequently elucidated at the hearing that she never lifted more than 20 pounds while working as a drug/alcohol program specialist — and, • even within this form, indicated that lifting/carrying was limited to her briefcase — there is no ambiguity in the record. Stated differently, the record establishes that the lifting/carrying requirements of plaintiff's past relevant work fell within the light exertion range. The ALJ's step four finding is upheld.
For the foregoing reasons, the Commissioner's decision is AFFIMED and this case is DISMISSED.
IT IS SO ORDERED.