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. Plaintiff's Disability Insurance Benefits application under the Social Security Act, Title II (the "Act") was denied after a hearing before an Administrative Law Judge ("ALJ"). This action is for judicial review of the Commissioner's final decision per 42 U.S.C. § 405(g). Plaintiff filed a Motion for Judgment on the Pleadings [Doc. 12]. Defendant filed a Motion for Summary Judgment [Doc. 19] to which Plaintiff filed a response [Doc. 21].
A review of the Commissioner's findings is narrow. The Court is confined to determining (1) whether substantial evidence supported the factual findings of the ALJ and (2) whether the Commissioner conformed with the relevant legal standards. 42 U.S.C. § 405(g); see Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989). "Substantial evidence" is evidence that is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971). It must be enough to justify, if the trial were to a jury, a refusal to direct a verdict when the conclusion sought to be drawn is one of fact. LeMaster v. Sec'y of Health & Humans Servs., 802 F.2d 839, 841 (6th Cir. 1986). A Court may not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the Court were to resolve factual issues differently, the Commissioner's decision must stand if substantial evidence supports it. Listenbee v. Sec'y of Health & Human Services, 846 F.2d 345, 349 (6th Cir. 1988). But, a decision supported by substantial evidence "will not be upheld where the [Social Security Administration] fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right." Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007). 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).
A claimant must be under a "disability" as defined by the Act to be eligible for benefits. "Disability" includes physical and mental impairments that are "medically determinable" and so severe as to prevent the claimant from (1) performing her past job and (2) engaging in "substantial gainful activity" that is available in the regional or national economies. 42 U.S.C. § 423(a).
A five-step sequential evaluation applies in disability determinations. 20 C.F.R. § 404.1520. Review ends with a dispositive finding at any step. See Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). The complete review poses five questions:
20 C.F.R. § 404.1520(a)(4).
The claimant has the burden to establish an entitlement to benefits by proving the existence of a disability under 42 U.S.C. § 423(d)(1)(A). See Boyes v. Sec'y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994). The Commissioner has the burden to establish the claimant's ability to work at step five. Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
Ethel Marie Sims ("Sims") was a person of advanced age at the time of her application for Disability Insurance Benefits. 20 C.F.R. § 404.1563. She alleged an onset date of August 1, 2013, and had insured status through June 30, 2015. (Doc. 29, Transcript p. 28) (reference to "Tr" and the page denote the administrative record). She alleged impairments she believed to be disabling.
Sims's claims were initially denied in January 2014 and upon reconsideration in July 2014 (Tr. 28). An ALJ conducted a hearing on September 15, 2015. Sims and a vocational expert ("VE") testified, although the VE only addressed Sims's past work. (Tr. 62-63). The ALJ followed the five-step analysis in evaluating the claims and found several of Sims's alleged impairments to be medically determinable. These conditions included diabetes mellitus, atrial fibrillation, hypertension, osteoporosis, obesity, a depressive disorder, and an anxiety disorder. (Tr. 30). Ultimately, the ALJ made the dispositive finding that Sims's impairments, or a combination thereof, were not severe under step two of the analysis. This decision concluded the process and resulted in a determination Sims was not disabled.
The findings were as follows:
(Tr. 20-30).
The ALJ summarized the evidence. (Tr. 31-34). Sims's brief does not include an overview of the record evidence [Doc. 15]. The Commissioner's brief reviews the record in detail [Doc. 20, pp. 2-8]. The transcript contains the reports of state agency reviewers who addressed Sims's physical and mental conditions. (Tr. 68-75, 83-89). Reference to the evidence is only set forth herein as necessary.
Sims asserts the ALJ`s finding that she does not have a severe impairment or combination of impairments was not supported by substantial evidence. The Commissioner opposes the motion and seeks summary judgment on the basis that substantial evidence supports the Decision.
The Act defines "disability" as an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or which has lasted order can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Subsections (d)(2)(A) and (B) provide:
The regulations also require impairments to be severe. 20 C.F.R. § 404.1520(a)(4)(ii). If a person's impairment or combination of impairments does not significantly limit the physical or mental ability to do basic work activities, a severe impairment will not be found and the person is not disabled. 20 C.F.R. § 404.1520(c). Severity of impairments and relation to basic work activities are discussed in 20 C.F.R. § 404.1521:
The Sixth Circuit has construed the aforementioned regulations as a de minimis hurdle in the disability determination process. Murphy v. Secretary of Health & Human Services, 801 F.2d 182, 185 (6th Cir.1986); Salmi v. Secretary of Health & Human Services, 774 F.2d 685, 690-92 (6th Cir.1985); Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89-90 (6th Cir.1985). Per this de minimis view, "an impairment can be considered not severe only if it is a slight abnormality that minimally affects work ability regardless of age, education, and experience." Farris, 773 F.2d at 90. Further, the "severity inquiry . . . serves the goal of administrative efficiency allowing the Secretary to screen out totally groundless claims." Id. at 89.
Evaluation of symptoms and pain factors into the analysis of severity. 20 C.F.R. § 404.1528. Symptoms and pain and the extent to which they can reasonably be accepted as consistent with objective medical evidence are considered. "Objective medical evidence" includes a statement as to symptoms and pain, but statements alone will not establish disability. Id.
Further, Social Security Ruling 85-2 has been issued to guide decisions as to impairment severity and provides in pertinent part:
SSR 85-28, 1985 WL 56856 (1985). Finally, the claimant bears the burden of showing she has a severe impairment or a combination of severe impairments. See Bowen v. Yuckert, 482 U.S. 137, 146, fn. 5 (1987).
The key issue here is whether, at step two in the sequential process, substantial evidence supports the ALJ's decision that Sims had no severe impairments. To answer this question, the Court must examine what medical evidence was before the ALJ in making his judgment.
With regard mental impairments, the record contains very little documentation of mental health treatment. In particular, there are thirteen pages of mental health records (Tr. 407-09, 430-439). Several pages detail Sims's March 2015 intake appointment, diagnoses, and recommendation of individual psychotherapy. Three of the pages relate to efforts by Frontier Health to coordinate care with Sims's primary care physician in March 2015 and advise the physician of her diagnosis with depressive disorder and anxiety disorder and that no medication was prescribed. (Tr. 407-09). The medical records list cancellations and missed appointments in April, May and June 2015. (Tr. 436-438). There are also no records dated after June 2015. The absence of records beyond an intake report, along with missed appointments the ALJ cited as part of the basis for determining the condition was not severe and his finding Sims was not entirely credible, strongly support the ALJ's determination that Sims did not have a severe mental impairment. Indeed, this conclusion is bolstered by Sims's own testimony that her depression and anxiety is "pretty well under control." (Tr. 56).
The only expert opinions as to mental impairments were provided by state agency medical consultants, Norma Calway-Fagen, Ph.D. and Horace Edwards, Ph.D. (Tr. 71, 84). In January 2014, Dr. Calway-Fagen determined from her review of the records that Sims's anxiety disorder did not impair her beyond a mild impairment in maintaining concentration, persistence and pace; she concluded that the mental health impairment is not severe. (Tr. 70-71). Dr. Edwards made similar determinations in June 2014. (Tr. 84).
While Step Two is considered a de minimis hurdle, when assessing whether a mental impairment is severe, "the regulations provide that if a claimant's degree of [mental] limitation is none or mild, the Commissioner will generally conclude the impairment is not severe, unless the evidence otherwise indicates that there is more than a minimal limitation in" a claimant's "ability to do basic work activities." Griffeth v. Comm'r of Soc. Sec., 217 F'App'x 425, 428 (6th Cir. 2007) (quoting 20 C.F.R. § 404.1520a(d))(internal quotations omitted). There is no indication Sims's basic work activities are hindered by her mental impairments. In fact, it appears her impairments arose, at least in part, as a result of the loss of her job in 2012. (Tr. 429). Further, the very limited treatment, which was essentially just an intake session, along with claimant's admission her mental impairments are under control despite lack of the recommended counseling, absence of prescription medication to treat the condition, and the opinions of two mental health reviewers, also support the ALJ's treatment of Sims's mental impairment. Substantial evidence supports the ALJ's finding that Sims does not suffer from a severe mental impairment.
With regard to physical impairments, an impairment is severe if it or in combination of other impairments "significantly limits Plaintiff's physical ability to do basic work activities." See 20 C.F.R. 404.1520(c). Basic work activities are the abilities and aptitudes necessary to do most jobs.
No treating physician opined regarding the severity of any of Sims's physical impairments. Rather, the record contains two opinions from state agency reviewers. Dr. Homayoon Moghbeli, M.D. opined in January 2014 that Sims had the medically determinable impairments of recurrent arrhythmias, diabetes mellitus, hypertension, asthma and anxiety disorders. (Tr. 69). Dr. Moghbeli found these impairments could reasonably be expected to produce the alleged symptoms but that the intensity of the symptoms and their impaction on functioning was not consistent with the totality of the evidence. Of these impairments, he opined that only the recurrent arrhythmias were severe. (Tr. 69). He noted she takes Coumadin. Dr. Moghbeli also restricted Sims's from climbing ladders, ropes or scaffolds, that she should avoid heights, concentrated exposure to extreme heat and cold and fumes, odors, dusts, gases and poor ventilation, and all exposure to hazards. (Tr. 73). Dr. Iris Rotker also reviewed the record in June 2014 and opined that the arrhythmia was a severe impairment but not at a listing level. (Tr. 87).
The ALJ is not bound by the opinions of either Drs. Moghbeli or Rotker.
Webster v. Colvin, No. 3:14-CV-253-TAV-CCS, 2015 WL 4921633, at *9 (E.D. Tenn. Aug. 18, 2015).
In this case, the ALJ gave the state agency medical consultants little weight on the grounds that "the medical record does not document any physical impairment of the severity to pose more than a mild limitation on the claimant's work-related abilities." (Tr. 35). The ALJ then noted that Sims's atrial fibrillation was well controlled with conservative medication and that "she had not consistently endorsed any significant complications, secondary to these disorders." (Tr. 35). Regarding her atrial fibrillation, he noted that an echocardiogram revealed only mild regurgitation abnormalities and she had a normal ejection fraction. Her myocardial perfusion scan was normal. She was only taking anti-arrhythmic and blood thinner medication and was "doing fine" upon discharge. Her primary care provider, on September 11, 2013, stated her atrial fibrillation was "stable." On October 21, 2013, her cardiologist, Dr. Vipul Brahmbhatt noted Sims endorsed greater fatigue and occasional palpitations, but she denied any syncope, edema, and uncontrolled blood pressure. (Tr. 32). In September 2014, she reported that she was feeling better and her only complaint was occasional leg pain and cramping, and she denied shortness of breath with exertion. She had not had a recurrence of atrial fibrillation, which was controlled on medication. The ALJ must consider all medical opinions that he or she receives in evaluating a claimant's case. 20 C.F.R. § 416.927(c) ("Regardless of its source, we will evaluate every medical opinion we receive."). SSR 96-6p, 1996 WL 374180, *2 (July 2, 1996) notes that ALJs are required to consider state agency medical "findings of fact about the nature and severity of an individual's impairment(s) as opinions of nonexamining physicians and psychologists. Administrative law judges and Appeals Council are not bound by findings made by State agency. . . but they may not ignore these opinions and must explain the weight given to the opinions in their decisions." Id. In fact, SSR 96-6p provides that "the opinions of State agency medical . . . consultants and other program physicians and psychologists can be given weight only insofar as they are supported by evidence in the case record, considering such factors as the supportability of the opinion in the evidence. . . ." Id. In this case, that is what the ALJ did. He evaluated the state agency medical opinions in light of the other evidence in the record. In ascribing little weight to their opinion, he found their opinion was not consistent with the record as a whole, citing to specific examples that contradicted the state agency's reviewer's opinions regarding the severity of the impairment. As a consequence, the ALJ found she did not have any physical impairment that would significantly limit her physical ability to do basic work activities and found her not disabled. See 20 C.F.R. § 416.920(c)("If you do not have any impairment or combination of impairments which significantly limits your physical or mental ability to do basic work activities, we will find that you do not have a severe impairment and are, therefore, not disabled.").
In making this determination, the ALJ considered the medical evidence reflecting Plaintiff's treatment records regarding her cardiovascular issues. In detailing these records, the ALJ found that there was no indication that her conditions caused any work-related limitations. He noted that her atrial fibrillation was controlled on medication with no recurrence (Tr. 32). The Court finds that the ALJ applied the appropriate "de minimus" standard and did not apply a greater standard at step two. See Turner v. Comm'r of Soc. Sec., No. 14-1035, 2015 WL 251496 (W.D. Tenn. Jan. 20, 2015) (finding that the ALJ applied the correct legal standard when concluding at step two of the sequential analysis that the plaintiff did not show that his medically determinable impairments were severe and that the plaintiff was therefore not disabled). While she complains of shortness of breath, she does not point to any evidence in the record that supports her assertion that this condition limits her ability to perform basic work activities. The mere diagnosis of any condition does not establish that an impairment is severe. Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988); Carpenter v. Comm'r of Soc. Sec., No. 3:16 CV 720, 2017 WL 1038913, at *11 (N.D. Ohio Mar. 17, 2017)("[D]iagnosis of a condition alone does not necessarily make the condition severe.").
The ALJ, in this case, determined that "the record is unpersuasive in evidence that [any medically determinable physical or mental impairments] result in more than a minimal limitation on the claimant's work-related activities." (Tr. 33). Regarding the atrial fibrillation, he notes that it
(Tr. 33-34). Substantial evidence supports the ALJ's determination regarding Sims's physical impairments.
Based upon the foregoing, the Court finds substantial evidence supports the ALJ's decision. Accordingly, the court RECOMMENDS that Plaintiff's motion for summary judgment [Doc. 12] be DENIED. The Court RECOMMENDS the Commissioner's motion for summary judgment [Doc. 19] be GRANTED for the reasons stated herein.
