United States District Court, E.D. Tennessee, Greeneville
SHEILA V. CALTON,
CAROLYN W. COLVIN, Acting Commissioner of Social Security.
REPORT AND RECOMMENDATION
DENNIS H. INMAN, 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 application for Disability Insurance Benefits under the Social Security Act was denied following an administrative hearing before an Administrative Law Judge ["ALJ"]. Plaintiff has filed a Motion for Judgment on the Pleadings [Doc. 13], and the defendant Commissioner has filed a Motion for Summary Judgment [Doc. 15].
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 (6th Cir. 1988). "Substantial evidence" is defined as evidence that a reasonable mind might accept as adequate to support the challenged conclusion. Richardson v. Perales, 402 U.S. 389 (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 for the jury. Consolo v. Federal Maritime Commission, 383 U.S. 607 (1966). The Court may not try the case de novo nor resolve conflicts in the evidence, nor decide questions of credibility. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). Even if the reviewing court were to resolve the factual issues differently, the Commissioner's decision must stand if supported by substantial evidence. Liestenbee v. Secretary of Health and Human Services, 846 F.2d 345, 349 (6th Cir. 1988). Yet, even if supported by substantial evidence, "a decision of the Commissioner will not be upheld where the SSA 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).
Plaintiff was 50 years of age on her alleged disability onset date of April 6, 2011. She has a limited education. There is no dispute that she cannot do her past relevant work. Plaintiff alleges both severe physical and mental impairments. Her primary debilitating condition is severe asthma accompanied by COPD. A non-smoker, it has been medically opined that second hand smoke contributed to her condition. The full list of severe impairments found by the ALJ includes these breathing difficulties, allergic rhinitis, degenerative disease of the thoracic and lumbar spine, arthritis, and post left carpal tunnel release, along with severe mental impairments of anxiety and depression (Tr. 87).
The ALJ found that the plaintiff had the "residual functional capacity" ["RFC"] "to perform light work as defined in 20 CFR 404.1567(b) except no more than occasional climbing, stooping, kneeling, crouching, and crawling; no concentrated exposure to pulmonary irritants or hazards; and with the ability to perform and maintain attention and concentration for simple and detailed tasks and adapt to infrequent changes in a work setting." (Tr. 90). As noted by the defendant, and to the plaintiff's credit, plaintiff's issue with the RFC finding deals exclusively with an assertion that it does not adequately account for the effects of the plaintiff's asthma and COPD. Issue is not taken with the RFC regarding the effect of the other severe physical impairments, or with the mental impairments of anxiety and depression. This report and recommendation will not address those conditions. If there is substantial evidence in the record to support the RFC finding, and if the ALJ followed the law and regulations in adjudicating the case, including his finding regarding plaintiff's credibility, the Court will be compelled to recommend that the Commissioner be affirmed.
The medical evidence is accurately summarized in the Commissioner's brief as follows:
On December 14, 2010, Plaintiff's treating physician, Cynthia Poortenga, M.D., completed a medical assessment of ability to do physical work-related activity form (Tr. 240-41). Dr. Poortenga indicated Plaintiff could occasionally lift/carry 10 pounds maximum, stand/walk for a total of 20 minutes in an eight-hour day, and was unlimited in her ability to sit (Tr. 240). She also indicated that Plaintiff could never climb, crouch, or crawl, but could occasionally kneel, stoop, and balance (Tr. 241). Plaintiff's abilities to reach, handle, and push/pull were limited due to shortness of breath, but her abilities to feel, see, hear, and speak were unaffected (Tr. 241). Plaintiff also had environmental restrictions regarding heights, moving machinery, temperature extremes, chemicals, dust, fumes, and humidity due to lung disease with shortness of breath and asthma (Tr. 241).
Dr. Poortenga also completed a mental medical assessment form and indicated that Plaintiff had fair abilities regarding understanding, remembering, and carrying out instructions; fair abilities in making occupational adjustments except for poor or no ability to deal with work stresses; and good abilities in making personal-social adjustments (Tr. 242-43).
A chest x-ray taken on May 24, 2011, showed no acute of focal process with minimal old granulomas (Tr. 295). That same day, Plaintiff presented to Pulmonary Associates of Kingsport for a pulmonary consultation (Tr. 292). Plaintiff denied ever using tobacco, but stated that she was exposed to secondhand smoke most of her life and that her husband smoked but did so outside (Tr. 292). Plaintiff's lungs showed no wheezes, crackles, or rhonchi, but she had extremely diminished breath sounds even though she was not in any respiratory distress (Tr. 293). There was no cyanosis, edema, calf tenderness, or clubbing in the extremities (Tr. 293). Psychiatrically, Plaintiff was oriented, cooperative, and oriented (Tr. 293). Kevin Cornwell, M.D., diagnosed very severe COPD, asthma, lung nodules seen on x-ray, and increasing dyspnea (Tr. 294).
A CT scan of Plaintiff's chest taken on May 31, 2011, showed no acute findings with findings of old granulomatous disease (Tr. 276).
Plaintiff returned to Pulmonary Associates on June 7, 2011, and reported occasional wheezing and a productive cough (Tr. 290). She was recently on a tapering dose of Prednisone and reported improved symptoms with shortness of breath back to her baseline (Tr. 290). Plaintiff's lungs showed good bilateral breath sounds with no rales, rhonchi, or wheezing (Tr. 290).
Plaintiff had no new complaints on July 26, 2011, but reported she was bothered by allergies (Tr. 288). When asked about the reasons for her symptomatic asthma, Plaintiff stated that she had been feeding a relative's 13 cats and that she was allergic to cats (Tr. 288). On examination, Plaintiff had no wheezes but had diminished breath sounds (Tr. 288). Pulmonary function testing showed FVC (forced vital capacity) of 59%, FEV1 (forced expiratory volume in one second) of 40%, and FEV1/FVC percentage of 53 with reference of 80 which was worse than testing on June 7, 2011 (Tr. 288). Plaintiff stated that she wanted to avoid taking a recommended dose of Prednisone because it made her very anxious and also declined a steroid nasal spray (Tr. 289).
A medical report dated September 1, 2011, from The Regional Allergy, Asthma, and Immunology Center indicated that Plaintiff was referred by Pulmonary Associates for an evaluation of shortness of breath, wheezing, allergies, and asthma (Tr. 307). Plaintiff was in no acute respiratory distress and had a moderate amount of clear nostril drainage (Tr. 307). Her lungs were clear with somewhat prolonged expirations (Tr. 307). Muscular strength and neurological function were grossly normal (Tr. 308). W. Jan Kazmier, M.D., assessed moderate to severe persistent asthma, multifactorial with marked allergic but also exercise and cold air inducted components, perennial allergic rhinitis, seasonal allergic rhinitis, allergic conjunctivitis, aspirin intolerance, and a hiatal hernia (Tr. 308). The doctor recommended avoidance of asthma triggering factors, allergen immunotherapy or Xolair but Plaintiff was not interested in any injective form of treatment, and aspirin desensitization if asthma was not controlled satisfactorily (Tr. 308).
In a follow up visit to Pulmonary Associates on September 20, 2011, Plaintiff reported continued allergy symptoms with intermittent wheezing, coughing, and shortness of breath (Tr. 286). An ear, nose, and throat examination was unremarkable (Tr. 286). There were diminished breath sounds in the lungs with no crackles, rhonchi, or wheezes (Tr. 286). Plaintiff was instructed to discontinue using Primatene Mist and to use Proventil and nebulized Albuterol as needed (Tr. ...