WILLIAM J. NEALON, District Judge.
On July 2, 2015, Plaintiff, Valerie Acker, filed this instant appeal
Plaintiff protectively filed
On May 2, 2014, Plaintiff filed a request for review with the Appeals Council. (Tr. 6). On May 4, 2015, the Appeals Council concluded that there was no basis upon which to grant Plaintiff's request for review. (Tr. 1-3). Thus, the ALJ's decision stood as the final decision of the Commissioner.
Plaintiff filed the instant complaint on July 2, 2015. (Doc. 1). On September 14, 2015, Defendant filed an answer and transcript from the SSA proceedings. (Docs. 10 and 11). Plaintiff filed a brief in support of her complaint on October 27, 2015. (Doc. 12). Defendant filed a brief in opposition on November 30, 2015. (Doc. 13). Plaintiff filed a reply brief on December 8, 2015. (Doc. 14).
Plaintiff was born in the United States on February 14, 1974, and at all times relevant to this matter was considered a "younger individual"
In a document entitled "Function Report — Adult" filed with the SSA on September 18, 2012, Plaintiff indicated that she lived in a trailer with family. (Tr. 175). From the time she woke up to the time she went to bed, Plaintiff would eat, sleep, watch television, take her son to school, sleep until he came home, and then "eat, sleep." (Tr. 176). She took care of her son, who was nine (9) years old at the time she completed the function report. (Tr. 176). She needed help sometimes with getting dressed, and performed all other personal care tasks slowly. (Tr. 176). She did not cook, perform household chores, or engage in yard work, but did do laundry; however, she had to have someone else for the laundry. (Tr. 177). She was able to drive a car, but it scared her because she was "always tired." (Tr. 178). She shopped for groceries once a week in a store for one (1) hour. (Tr. 178). She was able to walk a block and a half before needing to rest for ten (10) minutes. (Tr. 180). When asked to check items which her "illnesses, injuries, or conditions affect," Plaintiff did
Regarding her concentration and memory, Plaintiff needed special reminders to take care of her personal needs, take her medicine, and attend appointments. (Tr. 177, 179). She could count change, handle a savings account and use a checkbook, but could not pay bills because she did not have money. (Tr. 178). She could pay attention for "two minutes," she did not follow written or spoken instructions well, and she was not able to finish what she started. (Tr. 180). She did not handle stress or changes in routine well. (Tr. 181).
Socially, Plaintiff tried to get outside daily for fresh air, and stated that she did not go out often because she was depressed and did not "feel like doing anything." (Tr. 178). Her hobbies included watching television daily. (Tr. 179). She did not spend time with others. (Tr. 179). She did not have problems getting along with family, friends, neighbors, or others. (Tr. 181).
Plaintiff also filled out a Supplemental Function Questionnaires for pain and seizures. (Tr. 183-186). Plaintiff stated that she had pain that was deep and aching everywhere, had worsened since it began, was aggravated even just by lying in bed, was constant, and was relieved somewhat by Percocet. (Tr. 183-184). Regarding her seizures, Plaintiff stated that her last seizure occurred on the day she completed the seizure questionnaire, that she experienced an unknown amount of seizures per week and month, that her seizures occurred without an aura and while she was both asleep and awake, that she lost consciousness when she experienced a seizure, that she was taking Topamax for her seizures, and that her husband said she "spaced out" during her seizures. (Tr. 185-186).
At her hearing on December 20, 2013, Plaintiff testified that she was disabled due to psychiatric conditions, seizures, fibromyalgia, irritable bowel syndrome ("IBS"), and narcolepsy. (Tr. 32-35). She stated that her pain from fibromyalgia was constant, interfered with her sleep, was somewhat relieved by pain medication, and was aggravated by cold weather. (Tr. 35). Regarding her seizures, she stated they occurred every day lasting anywhere from a couple of seconds to a couple of minutes. (Tr. 35). She was taking medication for her seizures that she stated was not working "as good as it should." (Tr. 35). She stated that she also suffered from IBS that made her unable to leave the house because she was unable to stop going to the bathroom. (Tr. 39). She described her narcolepsy as causing her to be tired all the time and fall asleep during the day. (Tr. 36). She was prescribed Adderall for this condition, which would help on some days, but not on others, according to Plaintiff. (Tr. 36). Regarding her psychiatric problems, Plaintiff stated that she was depressed all the time, had a lot of anxiety, and experienced auditory and visual hallucinations several times a week, and that her medications for these problems did not seem to help. (Tr. 37, 42). She attended two (2) sessions with a therapist for her mental health problems. (Tr. 38).
Plaintiff testified that she had difficulty with concentration and memory. (Tr. 43). She stated that she had difficulty finishing tasks that she started, and that she could pay attention for maybe five (5) to ten (10) minutes. (Tr. 43). She would sleep all day while her son was at school, and would wake up not feeling rested. (Tr. 46).
On April 20, 2012, Plaintiff had an appointment with Robert Ettlinger, M.D., due to complaints of pain. (Tr. 226). Her chronic problems included allergic rhinitis, depression, narcolepsy, and Restless Leg Syndrome. (Tr. 226). Plaintiff's self-reported symptoms included stress, back pain, bone/joint symptoms, and myalgia in multiple areas. (Tr. 227). Her physical examination revealed she had an appropriate mood and affect and musculoskeletal aches. (Tr. 228). Plaintiff was diagnosed with Fibromyalgia. (Tr. 228). Plaintiff was scheduled for a follow-up visit with Dr. Ettlinger. (Tr. 228).
On November 14, 2012, Plaintiff underwent a consultative examination performed by Dawn Crosson, Psy.D. (Tr. 286). The history of Plaintiff's illness states that Plaintiff had been depressed since her teen years, that she felt hopeless and had suicidal ideations that she did not carry out, that she lacked motivation and energy, that she slept excessively and was constantly tired, and that she had bouts of mania that lasted a few hour to two (2) days that included excessive cleaning and hyperactivity. (Tr. 286). At the time of her evaluation, Plaintiff reported that she: continued to struggle with depression; cried excessively; had a mood that steadily declined after being terminated from her job; was restless and had racing thoughts; had suicidal ideations that she said she would not carry out; had auditory and visual hallucinations; had bouts of mania that lasted up to two (2) days during which she had a decreased need for sleep, had a lack of appetite, had feelings of euphoria, and would clean excessively; obsessed over details; had rigid thinking; was unable to cope with change; was less social and homebound; and was antsy and nervous around others. (Tr. 286-287). Her medications at this appointment included Adderall, Allegra, Calcium, Florinef, Flutcasone, Mirapex, Percocet, Propranol, Prozac, Topamax, and Voltaren. (Tr. 287). Her mental status examination revealed: good eye contact; a somewhat restricted mood and affect; an emotionless presentation aside from tearfulness when discussing a recent job termination; feelings of guilt due to unemployment; slow but deliberate speech; tangential and wordy thoughts; struggle with social cues; adequate abstract thinking; reasonable insight; a recognition of the need for therapy and a medication regime; and a compromised memory. (Tr. 287-288). Her Axis I Diagnoses included Bipolar II Disorder and Generalized Anxiety Disorder. (Tr. 288). Dr. Crosson opined that: Plaintiff's prognosis was hopeful and her symptoms were apt to improve with ongoing psychotherapy and a concurrent medication regime; that with regards to Plaintiff's ability to perform activities of daily living, Plaintiff's mood fluctuated and her medical problems coupled with her depression often rendered her in bed for several days without eating or taking care of hygiene; that, socially, Plaintiff was isolated and withdrawn, had difficulty communicating with her husband, and did not appear to understand his needs; that Plaintiff had no difficulties in the area of impulse control; that with regards to concentration, persistence, and pace, Plaintiff had racing thoughts and auditory hallucinations, and struggled with concentration during the interview; and, lastly, that Plaintiff would likely be able to sustain attention, concentration, or pace to satisfactorily perform work for eight (8) hours a day and forty (40) hours per week. (Tr. 289).
On November 26, 2012, Plaintiff had an appointment with Dr. Ettlinger due to complaints of depression and pain. (Tr. 362). Plaintiff's self-reported symptoms included depression, difficulty concentrating, psychiatric symptoms, and back and joint pain, both of which were made worse with cold weather and excess activity. (Tr. 363). Her physical exam revealed she had normal range of motion, muscle strength, and stability in all extremities with no pain on inspection; normal insight; and an appropriate mood and affect. (Tr. 364-365). Plaintiff was assessed as having Fibromyalgia and Depression. (Tr. 365). Plaintiff was instructed to follow-up with Dr. Ettlinger. (Tr. 365).
On December 2, 2012, Dr. Crosson completed a Mental Residual Functional Capacity form. (Tr. 284-285). She opined that Plaintiff had slight restrictions in her ability to: understand, remember and carry out detailed instructions; make judgments on simple work-related decisions; interact appropriately with the public, supervisors, and co-workers; respond appropriately to work pressure in a usual work setting; and respond appropriately to changes in a routine work setting. (Tr. 284-285). Plaintiff had no restrictions in the remaining areas of the form. (Tr. 284-285). In support of this assessment, Dr. Crosson stated that Plaintiff had anxiety and rigid thinking with bouts of mania. (Tr. 285).
On December 4, 2012, Karen Weitzner, Ph.D., a non-examining, non-treating physician, completed a Mental Residual Functional Capacity form based on Plaintiff's medical records up to that date. (Tr. 72-74). Dr. Weitzner opined that Plaintiff was: moderately limited in her ability to understand, remember, and carry out detailed instructions with the explanation that she had difficulty sustaining concentration that impacted her ability to retain instructions past three (3) step tasks; moderately limited in her ability to maintain attention and concentration for extended periods; moderately limited in her ability to interact appropriately with the general public; moderately limited in her ability to maintain socially appropriate behavior and to adhere to basic standards of neatness and cleanliness; and moderately limited in her ability to respond appropriately to changes in the work setting. (Tr. 72-73). Dr. Weitzner also performed a Psychiatric Review Technique. (Tr. 65-72). Based on a review of Plaintiff's medical records, Dr. Weitzner opined that Plaintiff had an affective disorder under Listing 12.04 and an anxiety disorder under Listing 12.06, but that Plaintiff had only moderate difficulties in the areas of maintaining social functioning and in maintaining concentration, persistence, or pace, mild difficulties with activities of daily living, and no repeated episodes of decompensation. (Tr. 69). Dr. Weitzner concluded that Plaintiff, therefore, did not meet the "B" criteria for these Listings, and also concluded that evidence did not establish the presence of "C" criteria for the same. (Tr. 69).
On December 28, 2012, Naomi Scearce, M.D., performed a consultative examination of Plaintiff for reported fibromyalgia, depression, bursitis, excess daytime somnolence, and petit mal seizures. (Tr. 296). Plaintiff stated that she had: pain that lead to a fibromyalgia diagnosis; a herniated disc in her neck that caused a limitation in movement of her head rotation, pain in her neck, and numbness in her arms; staring spells; Restless Leg Syndrome; absence seizures; and narcolepsy. (Tr. 296). Plaintiff reported that she could not get out of bed some days, felt like she was sometimes paralyzed, avoided driving because she felt her issues interfered with concentration, and often felt so unwell that she could not play with her son. (Tr. 296). Her physical examination revealed that she was: healthy, well-developed, alert, cooperative, and oriented; had limited eye contact; had overall appropriate behavior; was a poor historian; had a normal gait and spinal contour; had normal lower extremities with no instability, full range of motion, and with 5/5 strength bilaterally; had 5/5 strength bilaterally in her upper extremities with normal muscle tone and bulk bilaterally; had a normal mood and affect, a grossly intact memory, and attention span; had articulate and fluent speech; had sensation intact to light touch; had brisk and symmetrical Achilles and patellar "DTR's;" had clear and appropriate thought processes; had intact memory; had grossly intact insight and judgment; and had grossly intact cranial nerves. (Tr. 297-298). With regards to epilepsy, it was noted that Plaintiff appeared to have "fair to good control of her seizures." (Tr. 298). With regards to her dyslexia, she was a poor reader and would have trouble reading and following directions beyond a third grade level. (Tr. 298). With regard to myalgia, Plaintiff's exam was benign. (Tr. 298). With regards to narcolepsy, Dr. Scearce noted that she did not think Plaintiff was found to have true narcolepsy, but that she had severe daytime somnolence with shortened interval to sleep, and that, during the exam, she did not have trouble with excessive sleepiness. (Tr. 298). With regards to depression, Dr. Scearce opined that it appeared to have significant effects on her daily function, but that she deferred to a psychiatric evaluation on this impairment. (Tr. 298). Dr. Scearce also completed a Medical Source Statement of Claimant's Ability to Perform Work-Related Physical Activities. (Tr. 293-295). Dr. Scearce opined that Plaintiff could: frequently lift and/or carry twenty (20) pounds; occasionally lift and/or carry fifty (50) pounds; stand and walk for four (4) hours; sit for six (6) hours with alternating sitting and standing at her option; engage in unlimited pushing and pulling within the aforementioned weight restrictions; occasionally bend, kneel, stoop, and crouch; and never balance or climb. (Tr. 293-294). Dr. Scearce also opined that Plaintiff had limitations with reaching, handling, fingering and feeling due to "disc in neck [that caused] intermittent numbness in hands, pain in neck/shoulders" and should avoid heights, moving machinery, extreme cold temperatures, fumes, odors, and gases. (Tr. 295).
On January 28, 2013, Plaintiff had an appointment with Dr. Ettlinger due to complaints of depression and allergies. (Tr. 367). Her physical examination revealed her lumbar spine was tender and had mild pain with motion. (Tr. 369). She was assessed as having low back pain. (Tr. 369).
On April 16, 2013, Plaintiff had an appointment with Dr. Ettlinger for complaints of depression, anxiety, and neck pain. (Tr. 371). Her physical examination was normal, including an appropriate mood and affect. (Tr. 375). Her diagnoses included Bipolar I Disorder. (Tr. 375).
On June 21, 2013, Plaintiff had an appointment with Dr. Ettlinger for depression. (Tr. 376). Her symptoms included a decreased need for sleep, difficulty concentrating, difficulty falling and staying asleep, being easily startled, fatigue, poor judgment, racing thoughts, restlessness, a depressed mood, excessive worry, paranoia, thoughts of death or suicide, back pain, neck stiffness, and myalgia. (Tr. 377-378). Her physical examination revealed a tender spine and an appropriate mood and affect. (Tr. 380). She was assessed as having Bipolar I Disorder, low back pain, and Restless Leg Syndrome. (Tr. 381).
On September 26, 2013, Plaintiff had an appointment with Dr. Ettlinger for a medication check-up and to have a form completed. (Tr. 382). Plaintiff's self-reported symptoms included fatigue, abdominal pain, anxiety, insomnia, and back pain. (Tr. 384). Her physical examination revealed that she was well-developed and had tenderness and moderate pain with motion in her lumbar spine, tenderness in her left rib, and an appropriate mood and affect. (Tr. 386). Plaintiff was assessed as having a back sprain, Bipolar I Disorder, low back pain, and Restless Leg Syndrome. (Tr. 386). Plaintiff was instructed to keep taking her medications, which included Klonopin, Percocet, Voltaren, Topamax, Florinef Acetate, Diclofenac, Cymbalta, Fluticason, Allegra, Propranolol, and Methylphenidate. (Tr. 386-387).
On August 29, 2013, Plaintiff had an appointment with Maria Michalek, M.D., for a history of seizures, hypersomnia, essential tremor, and Restless Leg Syndrome. (Tr. 343). It was noted that Plaintiff was taking Topamax which stopped her seizures, Adderall that did not entirely ameliorate her excessive daytime sleepiness, Inderal for her essential tremor, Mirapex for Restless Leg Syndrome, and Cymbalta for fibromyalgia. (Tr. 343). Plaintiff noted she continued to experience anxiety, for which she was prescribed Klonopin. (Tr. 343).
On October 15, 2013, Lauren D. Conley, B.S., of Stauffer Psychological Services, wrote a letter to Plaintiff's attorney concerning Plaintiff's psychological treatment and therapy. (Tr. 389). The letter noted that Plaintiff began treatment with Stauffer Psychological Services on February 26, 2013, at which time Plaintiff presented with symptoms of depression, anxiety, distress, nightmares, and lack of energy and motivation to do daily tasks. (Tr. 389). Mrs. Conley stated that Plaintiff suffered from low self-esteem, had problems reading and writing, and was in need of continued therapy to gain appropriate coping mechanisms to handle her symptoms of depression. (Tr. 389).
From September 30, 2013, to November 14, 2013, Plaintiff had appointments at National Human Services ("NHS"). (Tr. 390-403). At these appointments at the NHS, Plaintiff denied having suicidal or homicidal ideations, was noted as pleasant and talkative, and made progress with treatment. (Tr. 391, 395-396). At her appointment on November 14, 2013, it was noted that Plaintiff reported she was depressed, did not want to get out of bed, received "pressure from friends and neighbors," and had "trouble throwing things away." (Tr. 398). Her mental status examination revealed that she had a goal-divided thought process, delayed onset speech, a constricted affect, a decreased mood, restricted insight, and poor judgment. (Tr. 402). An NHS medical doctor, whose name is illegible, gave Plaintiff an Axis I diagnosis of Post Traumatic Stress Disorder and Major Depressive Disorder, wanted to rule out Bipolar Disorder, and recommended that Plaintiff continue taking her current medications. (Tr. 403).
When considering a social security appeal, the court has plenary review of all legal issues decided by the Commissioner.
Substantial evidence "does not mean a large or considerable amount of evidence, but `rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"
Substantial evidence exists only "in relationship to all the other evidence in the record,"
To receive disability benefits, the plaintiff must demonstrate an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 432(d)(1)(A). Further,
42 U.S.C. § 423(d)(2)(A).
The Commissioner uses a five-step process in evaluating disability and claims for disability insurance benefits.
"At step five, the burden of proof shifts to the Social Security Administration to show that the claimant is capable of performing other jobs existing in significant numbers in the national economy, considering the claimant's age, education, work experience, and residual functional capacity."
Initially, the ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through the date last insured of December 31, 2016. (Tr. 13). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful work activity from her alleged onset date of April 13, 2012. (Tr. 13).
At step two, the ALJ determined that Plaintiff suffered from the severe
At step three of the sequential evaluation process, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 416.920(d), 416.925 and 416.926). (Tr. 14-16).
At step four, the ALJ determined that Plaintiff had the RFC to perform light work with limitations. (Tr. 16-21). Specifically, the ALJ stated the following:
(Tr. 16).
At step five of the sequential evaluation process, because Plaintiff could not perform any past relevant work, and considering the her age, education, work experience, and RFC, the ALJ determined "there are jobs that exist in significant numbers in the national economy that the [Plaintiff] can perform (20 C.F.R. 404.1569 and 404.1569(a))." (Tr. 21-22).
Thus, the ALJ concluded that Plaintiff was not under a disability as defined in the Social Security Act at any time between April 13, 2012, the alleged onset date, and the date of the ALJ's decision. (Tr. 22).
On appeal, Plaintiff asserts the following arguments: (1) substantial evidence does not support the ALJ's Step Two evaluation; (2) substantial evidence does not support the ALJ's RFC determination; (3) the ALJ's interpretation of the objective medical evidence is not supported by substantial evidence; (4) substantial evidence does not support the ALJ's credibility finding; and (5) the ALJ erred in failing to obtain further explanation from the VE regarding the sit/stand at will option in relation to the Dictionary of Occupational Titles ("DOT"). (Doc. 12, pp. 1-2, 8-17). Defendant disputes these contentions. (Doc. 13, pp. 11-27).
Plaintiff argues that the ALJ erred in not finding Plaintiff's Restless Leg Syndrome and Irritable Bowel Syndrome to be a severe impairments at Step Two in violation of Social Security Regulation ("SSR") 96-3p because these impairments were more than a slight abnormality that had more than a minimal effect on her ability to do basic work activities. (Doc. 12, pp.8-9).
Step Two "`is a threshold analysis that requires [a claimant] to show that he has one severe impairment.'"
In the case at hand, the ALJ found several of Plaintiff's impairments to be severe at Step Two, and, thus, resolved this step in Plaintiff's favor and continued the sequential evaluation process. (Tr. 13-15). The ALJ completed all five (5) steps of the sequential evaluation process. (Tr. 16-22). Therefore, it was harmless error that the ALJ did not find Plaintiff's Restless Leg Syndrome and Irritable Bowel Syndrome to be severe impairments. As such, because the sequential evaluation process continued past Step Two, substantial evidence supports the ALJ's decision at Step Two, and the decision will not be disturbed on appeal based on this assertion.
Plaintiff asserts that substantial evidence does not support the ALJ's determination that her attention and concentration will be reduced to only ninety percent (90%) of the workday because "it flows from the ALJ's faulty credibility analysis concerning [Plaintiff's] pain and psychiatric limitations." (Doc. 12, p. 10). However, Plaintiff's argument is without merit because the following objective medical evidence discussed by the ALJ in his opinion supports the ALJ's ten percent (10%) reduction in attention and concentration: (1) Dr. Crossen opined that Plaintiff's difficulty in maintaining concentration resulted in no restriction of her ability to understand, remember, and carry out short, simple instructions and in only a slight restriction in her ability to understand, remember, and carry out detailed instructions and to make judgments regarding simple, work-related decisions; and (2) Dr. Weitzner opined that Plaintiff was able to retain information and complete simple tasks up to three (3) steps. (Tr. 284, 298). As such, substantial evidence supports the ALJ's reduction in attention and concentration to ninety percent (90%), and this determination will not be disturbed on appeal based on this assertion.
Plaintiff asserts that the ALJ erred in determining Plaintiff could perform light work because the ALJ's RFC determination that she could stand and/or walk for four (4) hours in an eight-hour workday did not align with the regulatory definition of light work. (Doc. 12, p. 11).
According to 20 C.F.R. § 404.1567(b), light work:
In the case at hand, the ALJ made it clear, in both the questions posed to the VE in the hypothetical and in the resulting RFC determination, that the light work Plaintiff could perform was not a full range, but rather was restricted and/ or limited given the aforementioned restrictions accompanying the RFC determination, including the restriction that Plaintiff was limited to standing and/ or walking for four (4) hours in an eight-hour workday. (Tr. 16, 56-57, 59). The VE responded to this hypothetical that there were jobs available in the economy in response to the hypothetical that the RFC encompasses. (Tr. 59). As such, because the ALJ did not determine that Plaintiff could perform a full range of light work, but rather could perform a more restrictive form of light work with the aforementioned restrictions, including standing and/ or walking only four (4) hours in an eight-hour workday, and because the ALJ relied on the VE's response to a properly posed hypothetical based on the RFC described, the ALJ's RFC determination is supported by substantial evidence and will not be disturbed on appeal based on this assertion.
Plaintiff asserts that the ALJ failed to consider SSR 12-2p when evaluating her fibromyalgia and SSR 99-2p when evaluating her narcolepsy. (Doc. 12, pp. 11-12).
Plaintiff argues that substantial evidence does not support the ALJ's determination that Plaintiff was not entirely credible because: (1) he failed to consider her subjective statements about her pain; (2) he did not consider the side-effects of her medications; and (3) relied, in error, on one GAF score of sixty-five (65) over several GAF scores of fifty (50) and did so even though the Fifth Edition of the Diagnostic and Statistic Manual of Mental Disorders no longer takes GAF scores into consideration. (Doc. 12, pp. 13-15).
As part of Step Four of the sequential evaluation process, once an ALJ concludes that there is a medical impairment that could reasonably cause the alleged symptoms, "he or she must evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work."
"Generally, `an 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.'"
Social Security Ruling 96-7p gives the following instructions in evaluating the credibility of the claimant's statements:
SSR 96-7p. "In particular, an ALJ should consider the following factors: (1) the plaintiff's daily activities; (2) the duration, frequency and intensity of the plaintiff's symptoms; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medication taken to alleviate the symptoms; (5) treatment, other than medication for relief of the symptoms; (6) any measures the plaintiff uses or has used to relieve the symptoms; (7) the plaintiff's prior work record; and (8) the plaintiff's demeanor during the hearing."
In assessing Plaintiff's credibility in this case, the ALJ stated:
(Tr. 17). The ALJ discussed the medical record highlights in support of his credibility determination, including, but not limited to, the following: (1) Plaintiff's physical examinations revealed generally mild and benign findings, with normal gait, no focal motor deficits, no focal sensory deficits, no cerebellar deficits, and normal range of motion, muscle strength and stability in all extremities without pain on inspection during some examinations; (2) Plaintiff reported at her oral hearing that she was experiencing no seizures and that she tolerated Topamax; (3) there was a lack of specialized treatment for her Irritable Bowel Syndrome; (4) Plaintiff reported that her psychological symptoms were generally mild and improved with medication and failed to attend all of her therapy appointments; (5) Plaintiff's mental status examination revealed Plaintiff was neatly and adequately dressed, maintained good eye contact, was cooperative, and had adequate judgment; and (6) the GAF score of fifty (50) assigned to Plaintiff was not supported by the mental status examination findings, but rather was effectuated by Plaintiff's self-reported symptoms and difficulties. (Tr. 17-20). In terms of Plaintiff's activities of daily living, the ALJ noted that Plaintiff testified that she was able to take care of her personal hygiene, drive a vehicle, shop in stores, care for her child, read, and watch television. (Tr. 19). Thus, the ALJ considered the aforementioned
Upon review of the record and the ALJ's credibility determination, it is determined that there is substantial evidence to support the ALJ's credibility finding of Plaintiff. The ALJ is correct that there were enough inconsistencies in the record regarding Plaintiff's self-reported limitations that weakened her credibility, including the benign examination findings, lack of evidence for medication side-effects, and Plaintiff's self-reported activities of daily living. Furthermore, the ALJ did not find Plaintiff to be not credible, but only not entirely credible. (Tr. 17). The restrictive RFC finding is evidence that ALJ found Plaintiff credible to some degree, albeit not completely, as the ALJ concluded Plaintiff could perform only a limited range of light work based, in part, on her subjective complaints. (Tr. 16-20). As such, because the ALJ's credibility determination is to be accorded great deference and is supported by substantial evidence, the ALJ's decision will not be disturbed on appeal based on Plaintiff's assertion.
Plaintiff asserts that the ALJ erred in concluding that Plaintiff could perform a "full range of light work" with a sit/stand at will option because: (1) it would seriously erode the occupational base for light work; and (2) the ALJ did not elicit further testimony from the VE regarding the VE's conclusion that Plaintiff could perform light work with a sit/stand option despite the DOT's silence on this option. (Doc. 12, pp. 16-17).
First and foremost, it is clear that the ALJ did not indicate that Plaintiff could perform a
Next, regarding Plaintiff's argument that there was no acknowledgment that a sit/stand at will option would erode Plaintiff's occupational base for light work, that argument, too, is without merit. The VE specifically stated, in response to the hypotheticals, the following: "But I do want to note for the record the sit, stand requirement, of course, that is the only erosion. That's the big erosion for the light exertional level." (Tr. 58).
This Court now turns to Plaintiff's argument that the ALJ erred in not obtaining further testimony from the VE regarding the sit/stand at will option and the DOT's silence on this issue. The administrative law judge has a duty to develop the record and flesh out any inconsistencies. Social Security Regulation 00-4p states:
SSR 00-4p, *2; SSR LEXIS 8, *4.
The conflict allegedly arises because the DOT is silent on the sit/stand option presented by the ALJ to the VE in his hypothetical, and included in the RFC. Plaintiff contends that the ALJ should have elicited a reasonable explanation from the VE regarding the conflict. However, this Court does not agree with Plaintiff's assessment of this situation. In a case similar to the one at hand, Judge Conaboy of this Court stated:
(Tr. 57). The VE's response indicates that she implicitly acknowledged that the relevant DOT sections were silent regarding a sit/stand option, as the VE responded as follows to the hypothetical posed by the ALJ:
(Tr. 58-59). Additionally, the ALJ was aware of and acknowledged the conflict because he stated that the VE's testimony was consistent with the DOT with the exception of the sit/stand option, but that there was a reasonable explanation for this discrepancy. (Tr. 22).
In accordance with the rationale above and the facts of this case, the conflict was implicitly acknowledged by the VE in his response to the hypotheticals, and was acknowledged and understood by the ALJ in arriving at his RFC determination. Therefore, it is determined that substantial evidence supports the ALJ's reliance on the VE's testimony because there was no "apparent unresolved conflict" between the VE's testimony and the DOT in violation of SSR 00-4p.
Based upon a thorough review of the evidence of record, it is determined that the Commissioner's decision is supported by substantial evidence. Therefore, pursuant to 42 U.S.C. § 405(g), the appeal will be denied and the decision of the Commissioner will be affirmed.
A separate Order will be issued.
