CLIFTON L. CORKER, Magistrate Judge.
This matter is before the United States Magistrate Judge, under the standing orders of the Court and 28 U.S.C. § 636 for a report and recommendation. This is an action for judicial review after the Plaintiff's applications for disability insurance benefits and supplemental security income under the Social Security Act were administratively denied following a hearing before an Administrative Law Judge ["ALJ"]. The Plaintiff and Defendant have both filed Motions for Summary Judgment [Docs. 21 and 24].
The sole function of this Court in making this review is to determine whether the findings of the Commissioner are supported by substantial evidence in the record. McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6
Plaintiff had filed a previous application for disability insurance benefits which was denied on October 3, 2011 by the same ALJ who rendered the decision which is the subject of this action (Tr. 68). His prior decision is very similar to that now under review. Plaintiff was 48 years of age when the prior decision was rendered, a younger individual under the Commissioner's regulations. However, she was 50, or "closely approaching advanced age," at the time the present decision was rendered on June 11, 2013. She has a high school education. She has past relevant work was as a certified nurse assistant ["CNA"], which was semi-skilled and required medium exertion. "Medium" work requires lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. 20 CFR § 404.1567(c). Plaintiff was ultimately found to be capable of returning to this past relevant work. In the previous hearing decision, the Plaintiff was found capable of returning to another job she once held as a gusset machine feeder. That job was unskilled but also required medium exertion. In both instances, Plaintiff's alleged disability onset date was December 12, 2009.
Plaintiff's medical history is set out in the Commissioner's brief as follows:
[Doc. 25, pgs. 2-8].
On May 22, 2013, the hearing took place before the ALJ. After listening to the Plaintiff's testimony, the ALJ took the testimony of Ms. Donna Bardsley, a vocational expert ["VE"]. Ms. Bardsley identified the vocational requirements of Plaintiff's CNA job as being semi-skilled and requiring medium exertion. Although Plaintiff had described it as a heavy job because of having to lift patients, the job is regularly performed at the medium level of exertion. She was then asked to assume a hypothetical person of Plaintiff's age, education, and work experience. When asked if there were jobs such a person could perform with the ability to perform medium work opined by Dr. Curtsinger, the VE identified a significant number of jobs in the regional and national economies which such a person could perform (Tr. 51-52).
As previously stated, the ALJ's hearing decision on the present applications was very similar to the one he rendered in 2011. He found that the Plaintiff had severe impairments of obesity, fibromyalgia, and diabetes mellitus. He noted immediately that Dr. Hansen, her treating doctor in 2009, had treated her for several ailments, including not only diabetes mellitus and fibromyalgia, but also degenerative joint disease. (Tr. 13). He noted her treatment in October of 2009 at Johnson City Medical Center, where she was admitted with complaints of chest pain. Her weight was noted on admission to have been 245 pounds with a height of five feet nine inches. She was discharged after various tests relating to her heart were essentially normal. Her discharge diagnoses were chest pain, gastroesophageal reflux, diabetes and dyslipidemia. (Tr. 14).
The ALJ noted that the Plaintiff was admitted again to Johnson City Medical Center in September 2011, again with chest pain. Her physical exam was essentially normal except for wheezing in the lungs. It was noted in the records that the Plaintiff smoked one and a half packs of cigarettes a day for 25 years. No cardiac abnormalities were found after several tests were performed. She was discharged with a diagnosis of chest pain, hypertension and diabetes. (Tr. 14).
He discussed her treatment at the Carter County Health Department in 2011, where she was treated for a host of symptoms. It was noted she was still smoking, not complying with the ADA diet, and not reviewing her blood sugars regularly. She did have x-rays done which showed evidence of degenerative disc disease and osteophytes. However, her guarded movements and complaints of tenderness in her lumbar spine were accompanied by negative straight leg raising and equal strength in both lower extremities. A visit to the emergency room resulted in a diagnosis that her back pain was due to gastroesophageal reflux disease. (Tr. 14-15).
The ALJ mentioned that Plaintiff was hospitalized again with chest pains in January 2012. Her diagnoses included atypical chest pain, diabetes, gastroesophageal reflux disease, renal failure, hypertension, obesity, fibromyalgia and tobacco abuse. Cardiac impairments were ruled out by tests performed. An MRI of the cervical spine showed some degenerative disc disease, but the report noted that she did not have pain in the cervical area, and that the pain was most likely due to a muscle spasm. Her discharge diagnoses included cervical degenerative joint disease. (Tr. 15).
The ALJ then discussed the findings of consultative examiner Dr. Krish Purswani in January 2012. After a virtually negative physical exam, he opined that she had diabetes, fibromyalgia, joint pain, various other pains in different regions of her body, and tobacco abuse. He stated the Plaintiff could frequently lift 25 pounds, stand for seven hours a day and walk for seven hours a day, and sit for eight hours in an eight hour work day. (Tr. 15).
He then discussed her March 22, 2012 function report submitted to the Social Security Administration. She described her daily activities, the pains she had, and her limitations on standing and waling and paying attention. (Tr. 15-16).
The ALJ next noted the residual functional capacity ["RFC"] assessment completed by Dr. Juliao. The ALJ noted the restrictions opined by him, including no more than light level lifting and various postural and environmental limitations. (Tr. 16).
The next medical information of note mentioned in the hearing decision was the RFC assessment done by Dr. Curtsinger on May 7, 2012, which showed that the Plaintiff had a capacity for the full range of medium physical work. The ALJ also pointed out that Dr. Curtsinger was of the opinion after reviewing the more recent evidence, that there was no significant change in the Plaintiff's physical condition since the previous hearing decision in 2011. (Tr. 16).
Further visits to Health Department were discussed. They advised the Plaintiff to check her blood sugars more regularly and stop smoking. (Tr. 16).
The ALJ discussed the Plaintiff's mental condition, which is not called into question by the Plaintiff in this suit. He noted the results of the consultative exam and the opinion of the State Agency psychologist that the Plaintiff had no severe mental impairment. (Tr. 16-17).
The ALJ then found that the Plaintiff did not have an impairment or combination of impairments that met or equaled any of the listed impairments in the regulations. Sections considered by him were Sections 1.00, 4.00, 5.00, 5.00, 9.00 and 12.00. (Tr. 18-19).
The ALJ then stated that the Plaintiff had the RFC to perform the full range of medium work. In this regard he discussed her various alleged impairments. He noted that Plaintiff's hypertension was controlled by medication. He stated that although Plaintiff had complained of osteoarthritis and joint pain, and had been diagnosed with degenerative joint disease, that she had denied arthritis or back pain during her October 2009 hospitalization described above. He stated that he had considered Plaintiff's obesity in accordance with Social Security Ruling 02-1p. In this regard, he noted her normal gait and station and ability to get on and off the exam table during Dr. Purswani's consultative examination. (Tr. 20).
He then assessed Plaintiff's credibility regarding her allegations of disabling pain. He found that she did not have any medically determinable impairment that would preclude medium work. He noted that her reported daily activities did not suggest the very low level of physical functioning she subjectively described. He noted her noncompliance with suggestions to stop smoking and check her blood sugars, both of which were advised on numerous visits to different providers. He stated than not one of her physicians had ever recommended any restrictions on her activities. Based upon all of this, he found Plaintiff's allegations of disabling pain to be not credible. (Tr. 20-21).
He then evaluated the opinion evidence. He gave great weight to Dr. Purswani's opinion as to lifting 25 pounds frequently, standing and walking for seven hours and sitting for eight hours, finding the opinion "consistent with the objective medical findings" in the record. He also gave great weight to Dr. Curtsinger, who opined that the Plaintiff could perform the full range of medium work. He found Dr. Curtsinger's opinion "consistent with the overall objective findings in the record as well as the assessment by Dr. Purswani." He also discussed the weight given to the psychological examiners, but once again, Plaintiff has raised no issue regarding the mental health evidence. (Tr. 21).
Because the Plaintiff could perform the full range of medium work, the ALJ found that she could return to her past relevant work as a CNA as described by the VE. He also found that there were numerous other jobs identified with Plaintiff's RFC that she could perform at the full range of medium work. Accordingly, he found that the Plaintiff was not disabled. (Tr. 22-23).
The Plaintiff asserts that the ALJ erred in four respects. First, she states that "[t]he ALJ failed to include as a severe impairment the claimant's degenerative disc disease." Second, she asserts that "[t]he unfavorable decision incorrectly states certain material medical opinion testimony." In this regard, she points out that the ALJ did "not consider the weight given to the consultative report of Dr. Saul Juliao, MD (TR 457-465), whose opinion is the most favorable to the Claimant of the opinion evidence, and inaccurately states the limitations contained in the opinion of the consultative examiner, Dr. Purswani (TR 429-432)." Third, she insists that the ALJ's finding that the Plaintiff can perform the full range of medium work is not supported by substantial evidence. Fourth, she asserts "[i]f the Claimant is incapable of medium exertion, then as a matter of law the Social Security Administration has failed to carry its burden of proving that the Claimant is capable of performing other jobs." [Doc. 23, pg. 4].
With respect to the third and fourth grounds, Plaintiff's argument is based on the fact that if the Plaintiff cannot perform the full range of medium work, she cannot return to her past relevant job as a CNA, and that "the Unfavorable Decision must be reversed." Plaintiff fleshed this argument out more at the administrative hearing, arguing that after the previous decision denying benefits, the Plaintiff discovered she had a back problem. Because of the back problem, she stated that she should only be found, at best, to be able to perform sedentary work. Therefore, she maintained that under Rules 201.12 and 201.14 of the Medical-Vocational Guidelines [the "Grid"], she must be found disabled as a matter of law. (Tr. 33-35).
However, the Plaintiff's argument in this regard fails to take into account that all of the medical source opinions find her capable of at least light work. Even Dr. Juliao found her capable of a moderately reduced range of light work. Dr. Purswani, even if his opinions are interpreted as the Plaintiff suggests, found her capable of no less than a slightly reduced range of medium work. Dr. Curtsinger clearly opined that she could perform the full range of medium work. The only evidence to support her argument that she is capable of no more than sedentary work is her own subjective testimony. At the light level, even if she were illiterate and had only unskilled or no past work experience, which of course is not the case, she would be "not disabled" under the Grid at her age under Rule 202.10. Substantial evidence abounds that she is capable of at least light exertion, and thus, not disabled.
Although this fact basically disposes of all of Plaintiff's assignments of error, they will also be discussed. It is true that the ALJ did not find that the Plaintiff had a severe impairment of degenerative disc disease. He was quite aware at the hearing that this was the Plaintiff's primary argument with regard to the changes in her circumstances that had taken place since the first adverse decision in 2011. (Tr. 33-35 and 44). A mere diagnosis of a condition does not automatically equate with a severe impairment. Interestingly in this case, the Plaintiff, when offered the opportunity by the ALJ, could not distinguish between the limiting effects of pain related to her fibromyalgia, which was found to have been a severe impairment in both hearings, from the pain from her back condition. (Tr. 44). Also, once an ALJ finds that at least one severe impairment exists at Step Two, he or she must, at step three, consider the effects of all impairments, including impairments which are not severe. 20 CFR 404.1520(e), 404.1545(a)(2). This ALJ stated that he "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence." (Tr. 19). Even when the mild degenerative changes in her spine were found, Dr. Paris noted that the Plaintiff's complaints of pain were not from regions of her body where those degenerative changes would have caused pain. (Tr. 414). The ALJ did consider all of the Plaintiff's conditions and evaluated the pain these would have caused. He committed no reversible error by not denominating her degenerative disc disease as "severe."
Plaintiff also complains that the ALJ erred in his handling of the opinion evidence. She states that the ALJ failed completely to evaluate and state the weight he assigned to the opinion of Dr. Juliao. Also, she insists that the opinions of Dr. Purswani and Dr. Curtsinger were so different that the ALJ could not give them both "great weight." Also, the Plaintiff says that the ALJ misstated the opinion of Dr. Purswani. The ALJ was certainly aware of the findings and opinions of Dr. Juliao, and set them out in great detail between the opinions of Drs. Purswani and Curtsinger. (Tr. 16). The Court is unaware of any ruling requiring a reversal or remand because the ALJ did not specifically state the weight he gave this State Agency physician, especially where the ALJ assigned great weight to the two other opinions which found lesser restrictions. It is obvious to the Court that he knew of Dr. Juliao and did not give his opinion great weight. Bearing in mind that the Plaintiff would be not disabled at the light level, this is, at best, harmless error.
Plaintiff makes much of the fact that the ALJ did not mention that Dr. Purswani only opined that the Plaintiff could "frequently lift 25 pounds ½ of the time in an 8 hour day." 20 CFR § 404.1567(c) defines medium work as involving "lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." Dr. Purswani clearly opined that the Plaintiff could "frequently" lift 25 pounds, and this supports the ALJ's RFC finding even though Dr. Purswani did not say Plaintiff could occasionally lift 50 pounds. The ALJ found his opinion consistent with the objective medical findings and gave it great weight. There is no requirement that the ALJ adopt and endorse every single finding of a particular physician's opinion. If it appeared to the Court that the ALJ was straining to adopt bits and pieces of various opinions to come up with a finding that the Plaintiff was not disabled, it would be a different story. But that is not the case here. Dr. Purswani's opinion is very similar to that of Dr. Curtsinger. They are not identical, but they are very similar. Their slight differences do not mean that both could not be given great weight.
It appears to this Court that the ALJ committed no reversible errors of law, and that there was substantial evidence for his RFC finding that the Plaintiff could do medium work and thus return to her past relevant work. Accordingly, it is respectfully recommended that the Plaintiff's Motion for Summary Judgment [Doc. 21] be DENIED, and the Defendant Commissioner's Motion for Summary Judgment [Doc. 24] be GRANTED.
