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Patterson v. Colvin

United States District Court, W.D. Tennessee, Eastern Division

December 16, 2016

JENNIFER DENISE PATTERSON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          TU M. PHAM, United States Magistrate Judge

         Before the court by order of reference dated October 17, 2016, (ECF No. 16) is plaintiff Jennifer Patterson's appeal from a final decision of the Commissioner of Social Security (“Commissioner”) denying her application for disability insurance benefits and supplemental security income under Title II and Title XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 401 et seq. For the reasons set forth below, it is recommended that the decision of the Commissioner be affirmed.

         I. PROPOSED FINDINGS OF FACT

         On September 12, 2011, Patterson applied for disability insurance benefits under Title II of the Act and supplemental security income under Title XVI of the Act. (R. 131, 138.) In both applications Patterson alleged a disability onset date of March 1, 2011 due to diverticulitis, scoliosis, lupes, anxiety, depression, diabetes, neuropathy, and acid reflux. (R. 194.) Patterson's applications were denied initially, and upon reconsideration by the Social Security Administration (“SSA”). (R. 66, 75-76.) At Patterson's request, a hearing was held before an Administrative Law Judge (“ALJ”) on August 7, 2012. (R. at 35, 80-81.) On August 22, 2012, the ALJ issued a decision denying Patterson's request for benefits after finding that Taylor was not disabled because she retained the residual functional capacity (“RFC”) to perform jobs that exist in significant numbers in the national economy. (R. 9-34.) On December 6, 2012, the SSA's Appeals Council denied Taylor's request for review. (R. 1-3.) Therefore, the ALJ's decision became the final decision of the Commissioner. (Id.)

         On February 1, 2013, Patterson filed the instant action. (ECF No. 1.) Patterson argues that: (1) the ALJ erred by not finding that Patterson suffered from the severe impairment of rheumatoid arthritis; (2) the ALJ improperly weighed the opinion of Patterson's treating physician, Dr. Earl Stewart; (3) the ALJ failed to assess properly the credibility of Patterson's statements about her symptoms; (4) the ALJ failed to perform a function-by-function RFC assessment as required by SSR 96-8p; (5) the ALJ failed to consider the functional effects of Patterson's obesity; and (6) the ALJ failed to properly consider Patterson's use of a cane.

         II. PROPOSED CONCLUSIONS OF LAW

         A. Standard of Review

         Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision made by the Commissioner after a hearing to which he or she was a party. “The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner's decision is limited to whether there is substantial evidence to support the decision and whether the Commissioner used the proper legal criteria in making the decision. Id.; Winn v. Comm'r of Soc. Sec., 615 F. App'x 315, 320 (6th Cir. 2015); Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007). Substantial evidence is more than a scintilla of evidence but less than a preponderance, and is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Kirk v. Sec'y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

         In determining whether substantial evidence exists, the reviewing court must examine the evidence in the record as a whole and “must ‘take into account whatever in the record fairly detracts from its weight.'” Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.1990) (quoting Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984)). If substantial evidence is found to support the Commissioner's decision, however, the court must affirm that decision and “may not even inquire whether the record could support a decision the other way.” Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994) (quoting Smith v. Sec'y of Health & Human Servs., 893 F.2d 106, 108 (6th Cir. 1989)). Similarly, the court may not try the case de novo, resolve conflicts in the evidence, or decide questions of credibility. Ulman v. Comm'r of Soc. Sec., 693 F.3d 709, 713 (6th Cir. 2012) (citing Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007)). The Commissioner, not the court, is charged with the duty to weigh the evidence, to make credibility determinations, and to resolve material conflicts in the testimony. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d 642, 644 (6th Cir. 1990); Kiner v. Colvin, No. 12-2254-JDT, 2015 WL 1295675, at *1 (W.D. Tenn. Mar. 23, 2015).

         B. The Five-Step Analysis

         The Act defines 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.” 42 U.S.C. § 423(d)(1). Additionally, section 423(d)(2) of the Act states that:

An individual shall be determined to be under a disability 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), “work which exists in the national economy” means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

         Under the Act, the claimant bears the ultimate burden of establishing an entitlement to benefits. Oliver v. Comm'r of Soc. Sec., 415 F. App'x 681, 682 (6th Cir. 2011). The initial burden is on the claimant to prove she has a disability as defined by the Act. Siebert v. Comm'r of Soc. Sec., 105 F. App'x 744, 746 (6th Cir. 2004) (citing Walters, 127 F.3d at 529); see also Born v. Sec'y of Health & Human Servs., 923 F.2d 1168, 1173 (6th Cir. 1990). If the claimant is able to do so, the burden then shifts to the Commissioner to demonstrate the existence of available employment compatible with the claimant's disability and background. Born, 923 F.2d at 1173; see also Griffith v. Comm'r of Soc. Sec., 582 F. App'x 555, 559 (6th Cir. 2014).

         Entitlement to social security benefits is determined by a five-step sequential analysis set forth in the Social Security Regulations. See 20 C.F.R. §§ 404.1520 & 416.920. First, the claimant must not be engaged in substantial gainful activity. See 20 C.F.R. §§ 404.1520(b) & 416.920(b). Second, a finding must be made that the claimant suffers from a severe impairment. 20 C.F.R. §§ 404.1520(a)(4)(ii) & 416.920(a)(5)(ii). In the third step, the ALJ determines whether the impairment meets or equals the severity criteria set forth in the Listing of Impairments contained in the Social Security Regulations. See 20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526. If the impairment satisfies the criteria for a listed impairment, the claimant is considered to be disabled. On the other hand, if the claimant's impairment does not meet or equal a listed impairment, the ALJ must undertake the fourth step in the analysis and determine whether the claimant has the RFC to return to any past relevant work. See 20 C.F.R. §§ 404.1520(a)(4)(iv) & 404.1520(e). If the ALJ determines that the claimant can return to past relevant work, then a finding of not disabled must be entered. Id. But if the ALJ finds the claimant unable to perform past relevant work, then at the fifth step the ALJ must determine whether the claimant can perform other work existing in significant numbers in the national economy. See 20 C.F.R. §§ 404.1520(a)(4)(v), 404.1520(g)(1), 416.960(c)(1)-(2). Further review is not necessary if it is determined that an individual is not disabled at any point in this sequential analysis. 20 C.F.R. § 404.1520(a)(4).

         C. The ALJ Did Not Err at Step Two

         Patterson contends that the ALJ erred by not finding that Patterson suffered from the severe impairment of rheumatoid arthritis at step two of the disability analysis. A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c) & 416.920(c). The severity determination is “a de minimis hurdle in the disability determination process, ” and “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.” Anthony v. Astrue, 266 F.App'x 451, 457 (6th Cir. 2008) (quoting Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988)). The ALJ found in Patterson's favor at step two by concluding Patterson suffered from the following severe impairments: diverticulitis, irritable bowel syndrome (IBS), generalized abdominal pain, obesity, lumbago, scoliosis, systemic lupus erythematosus, alcohol induced mood disorder, anxiety, depression, diabetes mellitus type II with neuropathy, and fibromyalgia. The ALJ was required to consider all of Patterson's impairments, both severe and non-severe, at all of the remaining steps of the disability analysis. See 20 C.F.R. § 404.1545 (stating that when determining a claimant's RFC, the ALJ must “consider all of [her] medically determinable impairments of which [the ALJ is] aware, including [] medically determinable impairments that are not severe”). As a result, the fact that the ALJ did not find that Patterson suffered from the severe impairment of rheumatoid arthritis at step 2 is “legally irrelevant.” Anthony, 266 F.App'x at 457 (citing Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)).

         The ALJ did not discuss rheumatoid arthritis at any step of the disability analysis. Patterson asserts that “rheumatoid arthritis causes additional limitations which could prevent the Plaintiff from performing at the RFC assigned in the decision.” (ECF No. 12-1 at 10.) However, there is not sufficient evidence in the record to establish that Patterson suffers from rheumatoid arthritis, or, alternatively, that rheumatoid arthritis would affect Patterson's RFC. In her application for Social Security benefits, Patterson did not include rheumatoid arthritis, on the list of conditions which limit her ability to work. Although the ALJ inquired about rheumatoid arthritis at the hearing, Patterson did not address it in her testimony. While references to arthritis appear in some of Patterson's treatment notes, those references appear in the review of Patterson's health history, not as a diagnosis. Finally, none of the medical opinions addressing Patterson's physical limitations diagnose her with rheumatoid arthritis or take rheumatoid arthritis into account. Accordingly, the ALJ did not err by not discussing rheumatoid arthritis in the disability analysis.

         C. The ALJ Properly Weighed the Opinion of Patterson's Treating Physician

         Patterson contends that the ALJ erred in weighing the opinion of her treating opinion, Dr. Earl Stewart. In determining a claimant's RFC, “the ALJ evaluates all relevant medical and other evidence and considers what weight to assign to treating, consultative, and examining physicians' opinions.” Eslinger v. Comm'r of Soc. Sec., 476 F. App'x 618, 621 (6th Cir. 2012) (citing 20 C.F.R. § 404.1545(a)(3)). The SSA has established a “presumptive sliding scale of deference to be given to various types of opinions.” Norris v. Comm'r of Soc. Sec., 461 F.App'x 433, 439 (6th Cir. 2012) “A treating source, accorded the most deference by the SSA, has not only examined the claimant but also has an ‘ongoing treatment relationship' with her consistent with accepted medical practice.” Smith v. Comm'r of Soc. Sec., 482 F.3d 873, 875 (6th Cir. 2007) (citing 20 C.F.R. §§ 404.1502). The SSA gives the most deference to opinions from a claimant's treating sources because treating sources “are likely to be medical professionals most able to provide a detailed, longitudinal picture of [the claimant's] medical impairment(s).” Id. (citing 20 C.F.R. § 404.1527(c)(2)) (alterations in original). “A nontreating source, who physically examines the patient “but does not have, or did not have an ongoing treatment relationship with” the patient, falls next along the continuum. A nonexamining source, who provides an opinion based solely on review of the patient's existing medical records, is afforded the least deference.” Norris, 461 F.App'x at 439 (citing Smith, 482 F.3d at 875).

         The ALJ must assign controlling weight to a treating source opinion on the issue of the nature and severity of a claimant's impairments if the opinion is “well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] record.” 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). However, “a treating source's opinion may be given little weight if it is unsupported by sufficient clinical findings and is inconsistent with the rest of the evidence.” Morr v. Comm'r of Soc. Sec., 616 F.App'x 210, 211 (6th Cir. 2015) (citing Bogle v. Sullivan, 998 F.2d 342, 347-48 (6th Cir. 1993)); see also SSR 96-2p, 1996 WL 374188, at *2 (July 2, 1996) (“It is an error to give an opinion controlling weight simply because it is the opinion of a treating source if it is not well-supported by medically acceptable clinical and laboratory diagnostic techniques or if it is inconsistent with the other substantial evidence in the case record.”).

         If the ALJ does not give controlling weight to a treating source opinion, he must give “good reasons” for doing so. See 20 C.F.R. §§ 404.1527(c)(2) & 416.927(c)(2). The ALJ must consider “the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source.” Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (citing 20 C.F.R. §§ 404.1527(c)(2)); see also SSR 96-2p, 1996 WL 374188, at *5 (stating that the ALJ must give “specific reasons for the weight given to the treating source's medical opinion, supported by the evidence in the case record, and must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight”).

         At the hearing, Patterson testified that Dr. Earl Stewart was her primary doctor, and that she saw him monthly. On August 6, 2012, Dr. Stewart submitted a medical opinion regarding Patterson's ability to do physical work-related activities. (R. 767-78.) Dr. Stewart opined that Patterson has the following physical limitations: lifting a maximum of twenty pounds occasionally; lifting ten pounds frequently; standing and walking less than two hours in an eight-hour day; sitting less than two hours in an eight-hour day; needing to change between sitting and standing every thirty minutes; needing to walk around every thirty minutes for thirty minutes; needing to be able to shift at will between sitting or standing/walking; never twisting, stooping, crouching climbing stairs and climbing ladders; and avoiding concentrated exposure to extreme cold. He also found that Patterson is limited in her ability to reach, push, and pull. Dr. Stewart stated that these physical limitations are supported by medical findings of “fibromyalgia and chronic back pain” as well as “point tenderness thoracic and lumbar spine.” (R. 768.) He anticipated that Patterson's impairments would cause her to miss work more than four days per month.

         The ALJ determined that although Dr. Stewart is a treating source, his opinion is entitled “to very little weight.” (R. 26.) The ALJ gave several reasons for the weight she assigned to Dr. Stewart's opinion. First, she found Dr. Stewart's opinion to be inconsistent with his own treatment records as well as Patterson's testimony that “she is raising three children independently” and “performs household chores and drives occasionally.” (R. 26.) Patterson contends that the ALJ mischaracterized her daily activities. She specifically points to the September 30, 2011 SSA function report in which she wrote that she “hurts all the time, ” has help in caring for her children, seldomly does household chores, has a hard time getting out of the tub, and has family and friends help her wash and style her hair. (R. 204-11; ECF No. 12-1 at 8.) The ALJ's characterization of Patterson's daily activities may not be the only possible characterization, but it is not unreasonable. Patterson testified at the hearing that she is the “primary parent” for her three children and takes care of them with daily assistance from her mother, that she does laundry and ...


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