SUSAN K. LEE, Magistrate Judge.
Plaintiff Tonya R. Scealf ("Plaintiff") brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her disability insurance benefits ("DIB") and supplemental security income ("SSI"). Each party moved for a judgment [Docs. 15 & 17] with supporting briefs [Docs. 16 & 18]. This matter is now ripe, and for the reasons stated below, I
As reflected in the transcript of the administrative proceedings [Doc. 10 ("Tr.")], Plaintiff filed applications for DIB and SSI on February 7, 2013, alleging disability beginning April 7, 2010. After Plaintiff's claims were denied initially and upon reconsideration, a hearing on Plaintiff's claims was held before an administrative law judge ("ALJ") during which Plaintiff was represented by counsel. On June 23, 2015, the ALJ issued an unfavorable decision finding that Plaintiff was not under a "disability" as defined in the Social Security Act ("Act"). The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Plaintiff timely filed the instant action.
Plaintiff was born in 1971 and had a work history that included work as a studio manager and machine operator/inspector (Tr. 27). The ALJ noted that Plaintiff was 39 years old on the alleged disability onset date, which is defined as a younger individual, had at least a high school education, and had the ability to communicate in English (Tr. 27).
Plaintiff alleges disability due to chronic back pain caused by an L4-5 disc protrusion, radiculopathy in the bilateral lower extremities, chronic chest pains with heart palpitations status post myocardial infarction and stenting, coronary artery disease, chronic abdominal pain, and depression. Plaintiff has voluminous medical records, but the focus of this appeal is on the records and opinion of Steven Musick, DO, at Siskin Spine and Rehabilitation, who treated Plaintiff for back pain management beginning in May 2011 after a work-related lumbar strain on April 7, 2010 (Tr. 455-89, 931-34, 1728-29).
As contended by Plaintiff, Dr. Musick noted complaints of chronic back pain with radiation into the bilateral lower extremities and recommended physical therapy, which was initially helpful but Plaintiff was unable to attain all of the goals set at the initial consult, and she ultimately discontinued physical therapy due to other health issues (Tr. 455-89, 947-1036). Dr. Musick continued to treat Plaintiff throughout 2013 and 2014 for ongoing complaints of severe back pain, decreased range of motion, lumbar lordosis, lumbar tenderness, and radiculopathy, and his testing revealed positive right straight leg raises as well as a slow gait (Tr. 588-627, 931-34, 1037-87). Dr. Musick ordered lumbar MRIs on August 26, 2011, and September 12, 2013 (Tr. 483, 1086). On October 24, 2014, Dr. Musick completed a medical source statement opining that Plaintiff's impairment was "chronic low back pain that hinders her ability to work" (Tr. 932). He opined her impairment prevents her from being reliable in attending a full time work schedule, that she would be limited to lifting no more than ten pounds occasionally, sitting for four of eight hours, standing for one of eight hours, and walking for two of eight hours, and that she would require one to two hours of bed rest during a normal work day (Tr. 932-34). Dr. Musick provided a second similar opinion in a medical source statement dated May 4, 2015 (Tr. 1728-29).
In addition, Plaintiff suffered a heart attack on February 7, 2013, and underwent stenting of the right coronary artery (Tr. 494-501). Plaintiff continued to experience frequent chest pain with palpitations and fatigue as well as increased depression (Tr. 584-86, 889-916, 1092-147). The ALJ summarized aspects of Plaintiff's extensive medical treatment and records, which will not be repeated here, but all germane records have been reviewed.
At the hearing before the ALJ, Plaintiff and a vocational expert ("VE") testified. The transcript of the testimony at the hearing (Tr. 35-72) has been carefully reviewed.
"The Social Security Act defines a disability as the `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.'" Schmiedebusch v. Comm'r of Soc. Sec., 536 F. App'x 637, 646 (6th Cir. 2013) (quoting 42 U.S.C. § 423(d)(1)(A)); see also Parks v. Soc. Sec. Admin., 413 F. App'x 856, 862 (6th Cir. 2011) (quoting 42 U.S.C. § 423(d)(1)(A)). A claimant is disabled "`only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'" Parks, 413 F. App'x at 862 (quoting 42 U.S.C. § 423(d)(2)(A)). The Social Security Administration ("SSA") determines eligibility for disability benefits by following a five-step process. 20 C.F.R. § 404.1520(a)(4)(i-v). The five-step process provides:
Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009) (internal citations omitted). The claimant bears the burden to show the extent of his impairments, but at step five, the Commissioner bears the burden to show that, notwithstanding those impairments, there are jobs the claimant is capable of performing. See Ealy v. Comm'r of Soc. Sec., 594 F.3d 504, 512-13 (6th Cir. 2010) (internal citations omitted).
The ALJ found Plaintiff met the insured status requirements through December 31, 2015 (Tr. 16). At step one of the process, the ALJ found Plaintiff had not engaged in any substantial gainful activity since April 7, 2010, the alleged onset date (Tr. 16). At step two, the ALJ found Plaintiff had the following severe impairments: degenerative disc disease, obesity, a depressive disorder, and an acute myocardial infarction with stent placement (Tr. 16-17). At step three, the ALJ found Plaintiff did not have any impairment or combination of impairments to meet or medically equal any presumptively disabling impairments listed at 20 C.F.R. Pt. 404, Subpt. P, App'x 1 (Tr. 17-18). The ALJ determined Plaintiff had the residual functional capacity ("RFC") to perform a reduced range of unskilled sedentary work
The only issue raised by Plaintiff is whether the ALJ properly evaluated the medical opinion evidence offered by Dr. Musick. No party disputes that Dr. Musick is a treating physician as defined under the SSA.
A court must affirm the Commissioner's decision unless it rests on an incorrect legal standard or is unsupported by substantial evidence. 42 U.S.C. § 405(g); McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (internal citation omitted). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." McClanahan, 474 F.3d at 833 (internal citation omitted). Furthermore, the evidence must be "substantial" in light of the record as a whole, "tak[ing] into account whatever in the record fairly detracts from its weight." Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984) (internal citations omitted). If there is substantial evidence to support the Commissioner's findings, they should be affirmed, even if the court might have decided facts differently, or if substantial evidence would also have supported other findings. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996); Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The court may not re-weigh evidence, resolve conflicts in evidence, or decide questions of credibility. Garner, 745 F.2d at 387. The substantial evidence standard allows considerable latitude to administrative decision makers because it presupposes "there is a `zone of choice' within which the Commissioner can act, without the fear of court interference." McClanahan, 474 F.3d at 833 (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)).
The court may consider any evidence in the record, regardless of whether it has been cited by the ALJ. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001). The court may not, however, consider any evidence which was not before the ALJ for purposes of substantial evidence review. Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Furthermore, the court is under no obligation to scour the record for errors not identified by the claimant, Howington v. Astrue, No. 2:08-CV-189, 2009 WL 2579620, at *6 (E.D. Tenn. Aug. 18, 2009) (stating that assignments of error not made by claimant were waived), and arguments not raised and supported in more than a perfunctory manner may be deemed waived, Woods v. Comm'r of Soc. Sec., No. 1:08-CV-651, 2009 WL 3153153, at *7 (W.D. Mich. Sept. 29, 2009) (citing McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997)) (noting that conclusory claims of error without further argument or authority may be considered waived).
An ALJ is responsible for determining a claimant's RFC after reviewing all of the relevant evidence in the record.
The ALJ gave merely "some weight" to the opinions of Dr. Musick "to the extent they are consistent with" the RFC (Tr. 26). As reason for assessing only "some weight" to Dr. Musick's opinion, the ALJ noted that "Dr. Musick stated [Plainitff] could do no bending, yet throughout the hearing, [Plaintiff] repositioned (shifting from sitting to standing and from standing to sitting) a least a half dozen times, evidencing her ability to stoop." (Tr. 26). The ALJ also noted that "repeated physical examinations have shown [Plaintiff] to have normal or near normal range of motion of the spine." (Tr. 25-26). The ALJ found Dr. Musick's opinion was inconsistent with his own treatment records, with the noted improvement with treatment, and with Plaintiff's extensive daily activities (Tr. 26). The ALJ assigned "great weight" to the opinion of the non-treating state agency medical consultant, Thomas Mullady, MD, "based upon his physical examination of [Plaintiff] and because he is familiar with the Agency's disability program and functional requirements." (Tr. 25).
Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence, and thus the RFC is not supported by substantial evidence. Plaintiff maintains Dr. Musick's opinion deserves the status of controlling (or at least great) evidentiary weight and that the ALJ's decision to give it only some weight is error. Specifically, Plaintiff asserts the ALJ improperly gave greater and substantial weight to the opinion of Dr. Mullady, while failing to articulate good reasons for discounting the opinions of Dr. Musick. Plaintiff further argues Dr. Musick's treatment records are not inconsistent with his opinions. Noting her long treatment history with Dr. Musick from May 2011 through the hearing date, Plaintiff argues that Dr. Musick's records reflect her frequent lumbar pain with range of motion examination, positive straight leg raises, lumbar lordosis, and tenderness to palpitation throughout the spine in spite of occasional "good days" or "rare medication non-compliance" [Doc. 16 at Page ID # 1802-03].
Defendant responds that the ALJ properly evaluated the medical opinions and that substantial evidence supports the RFC. Specifically, Defendant argues the ALJ based his decision on multiple factors including Plaintiff's "not entirely credible" subjective complaints, her treatment for several years for back pain with only mild objective abnormalities and initial medical comments that she had no impairment rating, a lack of objective findings, her release to work, "fairly normal and extensive daily activities [including] work that was `off the books,' cleaning, light activities, cooking, visiting, driving, going on travels and vacations, and social activities" [Doc. 18 at Page ID # 1813 (citing Tr. 20, 24, 345, 447, 480)].
In considering a claim for disability, the ALJ generally must give the opinion of the claimant's treating physician "controlling weight." 20 C.F.R. § 404.1527(c)(2).
In this case, the ALJ identified inconsistencies between the opinions of Dr. Musick and the state-agency professionals. "[O]pinions from nontreating and nonexamining sources are never assessed for `controlling weight.'" Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). However, "a properly balanced analysis might allow the Commissioner to ultimately defer more to the opinions of consultative doctors than to those of treating physicians[, but] the regulations do not allow the application of greater scrutiny to a treating-source opinion as a means to justify giving such an opinion little weight." Id. at 379-80 (internal citation omitted).
The ALJ considered that although Dr. Musick said Plaintiff could not bend at all (Tr. 1728), she demonstrated an ability to stoop during the administrative hearing (Tr. 26). An ALJ may properly consider his or her own personal observations in making a determination as to whether subjective complaints of pain and limitation are as disabling as alleged as part of the overall evaluation of the credibility of the individual's statements. SSR 96-7p (now rescinded);
Plaintiff has not directly disputed the ALJ's finding that her subjective complaints of pain were not entirely credible (Tr. 19). An ALJ's credibility analysis or, as it is now called, subjective symptom evaluation, is "`inherently intertwined'" with the RFC assessment. See Murphy v. Comm'r of Soc. Sec., No. 1:15-CV-126-SKL, 2016 WL 2901746, at *10 n.7 (E.D. Tenn. May 18, 2016) (quoting Poppa v. Astrue, 569 F.3d 1167, 1171 (10th Cir. 2009) ("Since the purpose of the credibility evaluation is to help the ALJ assess a claimant's RFC, the ALJ's credibility and RFC determinations are inherently intertwined.")). The determination of Plaintiff's "credibility" as to her allegations of disabling pain is left to the ALJ and is generally binding on the reviewing court. See, e.g., Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones, 336 F.3d at 476; Atterberry v. Sec'y of Health & Human Servs., 871 F.2d 567, 571 (6th Cir. 1989).
Where, as here, the ALJ's credibility assessment is fully explained and not at odds with uncontradicted evidence in the record, it is entitled to great weight. See, e.g., Ritchie v. Comm'r of Soc. Sec., 540 F. App'x 508, 511 (6th Cir. 2013); Calvin v. Comm'r of Soc. Sec., 437 F. App'x 370, 371 (6th Cir. 2011); King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984). In addition, Plaintiff has not challenged the ALJ's determination that her statements regarding the intensity, persistence and limiting effects of her symptoms were not entirely credible.
I
The ALJ adequately explained the conflicts among the medical source opinions and the RFC given to Plaintiff, and the ALJ is not required to do more. A properly balanced analysis, as was performed by the ALJ in this case, can allow the Commissioner to ultimately defer more to the opinions of consultative doctors than to those of treating physicians. See SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996) ("In appropriate circumstances, opinions from . . . consultants .. . may be entitled to greater weight than the opinions of treating or examining sources."); see also Brooks v. Comm'r of Soc. Sec., 531 F. App'x 636, 642 (6th Cir. 2013) (observing that "[i]n appropriate circumstances, opinions from State agency medical . . . consultants . . . may be entitled to greater weight than the opinions of treating or examining sources") (citing SSR 96-6p, 1996 WL 374180, at *3 (July 2, 1996)).
I also
The ALJ's decision discusses the evidence considered, noting not only the medical source statements but also Plaintiff's medical history, the medical signs and laboratory findings, diagnostic imaging, the effects of treatment, the reports of daily activities, and other observations. The record documents that Plaintiff went on vacations (Tr. 1050, 1484, 1491), was working to some degree at one point (Tr. 16), and at another point was staying with a friend and cleaning his house (Tr. 1055). The ALJ properly considered such activities in determining credibility and RFC issues. See Temples v. Comm'r of Soc. Sec., 515 F. App'x 460, 462 (6th Cir. 2013).
I also
Having carefully reviewed the administrative record and the parties' arguments, I
(Tr. 18-19).
