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Staples v. Colvin

United States District Court, M.D. Tennessee, Nashville Division

January 23, 2017

SHELIA STAPLES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Trauger Judge

          REPORT AND RECOMMENDATION

          JEFFERY S. FRENSLEY United States Magistrate Judge

         This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the Commissioner of Social Security denying Plaintiff Supplemental Security Insurance (“SSI”), as provided under Title XVI of the Social Security Act (“the Act”), as amended. The case is currently pending on Plaintiff's Motion for Judgment on the Administrative Record. Docket No. 20. Plaintiff has filed an accompanying Memorandum in Support of her Motion. Docket No. 21. Defendant has filed a Response, arguing that the decision of the Commissioner was supported by substantial evidence and should be affirmed. Docket No. 22.

         For the reasons stated below, the undersigned recommends that Plaintiff's Motion for Judgment on the Administrative Record be DENIED, and that the decision of the Commissioner be AFFIRMED.

         I. INTRODUCTION

         Plaintiff filed her application for Supplemental Security Income (“SSI”) on June 10, 2010, with a protective filing date of April 18, 2010, alleging that she had been disabled since January 10, 1990, due to back and neck problems, colon problems, seizure disorder, high blood pressure, and mental problems.[1] See, e.g., Docket No. 12, Attachment (“TR”), p. 67, 77, 142. Plaintiff's application was denied both initially (TR 66-67) and upon reconsideration (TR 68). Plaintiff subsequently requested (TR 86-88) and received (TR 30-65) a hearing. Plaintiff's hearing was conducted on April 13, 2012, by Administrative Law Judge (“ALJ”) Brian Dougherty. TR 30. Plaintiff and Vocational Expert, Michelle McBroom-Weiss, appeared and testified. Id.

         On May 21, 2012, the ALJ issued a decision unfavorable to Plaintiff, finding that Plaintiff was not disabled within the meaning of the Social Security Act and Regulations. TR 10-29. Specifically, the ALJ made the following findings of fact:

1. The claimant has not engaged in substantial gainful activity since April 18, 2010, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following severe impairments: lumbago; degenerative disc disease of the lumbar spine; insomnia; joint pain of the leg; hypertension; seizure disorder; headaches; reflux; cognitive disorder; major depressive disorder; bipolar; anxiety; adjustment disorder with anxiety; and depressed mood (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926).
4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except the claimant must avoid exposure to hazards. The claimant is further able to understand, remember and carry out simple instructions and is able to adapt to gradual and infrequent changes in the workplace.
5. The claimant is capable of performing past relevant work as a gluer. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 416.965).
6. The claimant has not been under a disability, as defined in the Social Security Act, since April 18, 2010, the date the application was filed (20 CFR 416.920(f)).

TR 15-24.

         On May 30, 2012, Plaintiff timely filed a request for review of the hearing decision. TR 8. On July 24, 2013, the Appeals Council issued a letter declining to review the case (TR 1-6), thereby rendering the decision of the ALJ the final decision of the Commissioner. This civil action was thereafter timely filed, and the Court has jurisdiction. 42 U.S.C. § 405(g). If the Commissioner's findings are supported by substantial evidence, based upon the record as a whole, then these findings are conclusive. Id.

         II. REVIEW OF THE RECORD

         The parties and the ALJ have thoroughly summarized and discussed the medical and testimonial evidence of Record. Accordingly, the Court will discuss those matters only to the extent necessary to analyze the parties' arguments.

         III. CONCLUSIONS OF LAW

         A. Standard of Review

         This Court's review of the Commissioner's decision is limited to the record made in the administrative hearing process. Jones v. Sec'y of Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). The purpose of this review is to determine: (1) whether substantial evidence exists in the record to support the Commissioner's decision, and (2) whether any legal errors were committed in the process of reaching that decision. Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).

         “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support the conclusion.” Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389 (6th Cir. 1999), citing Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence” has been further quantified as “more than a mere scintilla of evidence, but less than a preponderance.” Bell v. Comm'r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996), citing Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938).

         The reviewing court does not substitute its findings of fact for those of the Commissioner if substantial evidence supports the Commissioner's findings and inferences. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984). In fact, even if the evidence could also support a different conclusion, the decision of the ALJ must stand if substantial evidence supports the conclusion reached. Her, 203 F.3d at 389, citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). If the Commissioner did not consider the record as a whole, however, the Commissioner's conclusion is undermined. Hurst v. Sec'y of Health & Human Servs., 753 F.2d 517, 519 (6th Cir. 1985), citing Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980).

         In reviewing the decisions of the Commissioner, courts look to four types of evidence: (1) objective medical findings regarding Plaintiff's condition; (2) diagnoses and opinions of medical experts; (3) subjective evidence of Plaintiff's condition; and (4) Plaintiff's age, education, and work experience. Miracle v. Celebrezze, 351 F.2d 361, 374 (6th Cir. 1965).

         B. Proceedings At The Administrative Level

         The claimant carries the ultimate burden to establish an entitlement to benefits by proving his or her “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). “Substantial gainful activity” not only includes previous work performed by Plaintiff, but also, considering Plaintiff's age, education, and work experience, any other relevant work that exists in the national economy in significant numbers regardless of whether such work exists in the immediate area in which Plaintiff lives, or whether a specific job vacancy exists, or whether Plaintiff would be hired if he or she applied. 42 U.S.C. § 423(d)(2)(A).

         At the administrative level of review, the claimant's case is considered under a five-step sequential evaluation process summarized as follows:

(1) If the claimant is working and the work constitutes substantial gainful activity, benefits are automatically denied.
(2) If the claimant is not found to have an impairment which significantly limits his or her ability to work (a “severe” impairment), then he or she is not disabled.
(3) If the claimant is not working and has a severe impairment, it must be determined whether he or she suffers from one of the “listed” impairments[2] or its equivalent. If a listing is met or equaled, benefits are owing without further inquiry.
(4) If the claimant does not suffer from any listing-level impairments, it must be determined whether the claimant can return to the job he or she previously held in light of his or her residual functional capacity (e.g., what the claimant can still do despite his or her limitations). By showing a medical condition that prevents him or her from returning to such past relevant work, the claimant establishes a prima facie case of disability.
(5) The burden then shifts to the Commissioner to establish the claimant's ability to work by proving the existence of a significant number of jobs in the national economy which the claimant could perform, given his or her age, experience, education, and residual functional capacity.

See, e.g., 20 CFR §§ 404.1520, 416.920. See also Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).

         The Commissioner's burden at the fifth step of the evaluation process can be satisfied by relying on the medical-vocational guidelines, otherwise known as “the grid, ” but only if the claimant is not significantly limited by a nonexertional impairment, and then only when the claimant's characteristics identically match the characteristics of the applicable grid rule. Moon, 923 F.2d at 1181; 20 CFR § 404, Subpt. P, App. 2, Rule 200.00(e)(1), (2). See also Damron v. Sec'y of Health & Human Servs., 778 F.2d 279, 281-82 (6th Cir. 1985). Otherwise, the grid cannot be used to direct a conclusion, but only as a guide to the disability determination. Id. In such cases where the grid does not direct a conclusion as to the claimant's disability, the Commissioner must rebut the claimant's prima facie case by coming forward with particularized proof of the claimant's individual vocational qualifications to perform specific jobs, which is typically obtained through vocational expert testimony. See Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).

         In determining residual functional capacity for purposes of the analysis required at stages four and five above, the Commissioner is required to consider the combined effect of all the claimant's impairments: mental and physical, exertional and nonexertional, severe and nonsevere. See 42 U.S.C. § 423(d)(2)(B).

         C. Plaintiff's Statement Of Errors

         Plaintiff contends that the ALJ erred by: (1) improperly rejecting the medical opinions of Plaintiff's treating nurse practitioner, Ms. Vicki L. Mitchell, and consultative examiner, Dr. Terry Edwards; (2) improperly assessing Plaintiff's credibility, by not basing his decision on substantial evidence, by using boilerplate language in violation of 96-7p, by citing Plaintiff's drug-seeking behavior and travel with her boyfriend, and by failing to consider whether Plaintiff's failure to obtain mental health treatment was due to her inability to afford care; (3) failing to incorporate all of Plaintiff's impairments in his Residual Functional Capacity determination; (4) relying on VE testimony that was based on inadequate hypothetical questions that did not contain all of Plaintiff's limitations, and failing to ask the VE whether her testimony was consistent with the DOT; (5) improperly determining that Plaintiff could perform past relevant work, as Plaintiff's past work as a gluer was not substantial gainful activity, as well as finding that Plaintiff can perform other work. Docket No. 21. Accordingly, Plaintiff maintains that, pursuant to 42 U.S.C. § 405(g), the Commissioner's decision should be reversed, or in the alternative, remanded. Id.

         Sentence four of § 405(g) states as follows:

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), 1383(c)(3).

         “In cases where there is an adequate record, the Secretary's decision denying benefits can be reversed and benefits awarded if the decision is clearly erroneous, proof of disability is overwhelming, or proof of disability is strong and evidence to the contrary is lacking.” Mowery v. Heckler, 771 F.2d 966, 973 (6th Cir. 1985). Furthermore, a court can reverse the decision and immediately award benefits if all essential factual issues have been resolved and the record adequately establishes a plaintiff's entitlement to benefits. Faucher v. Sec'y of Health & Human Servs., 17 F.3d 171, 176 (6th Cir. 1994). See also Newkirk v. Shalala, 25 F.3d 316, 318 (6th Cir. 1994).

         1. Weight Accorded to the Medical Opinion Evidence

         Plaintiff argues that the ALJ improperly rejected the medical opinions of her treating nurse practitioner, Vicki L. Mitchell, F.N.P, and consultative examiner, Terry Edwards, Ed.D. Docket No. 21, p. 48-52. With regard to Ms. Mitchell, Plaintiff contends that the ALJ's rejection of her opinion is in violation of applicable regulations and rulings and is not supported by the record. Id. at 48. While acknowledging that Ms. Mitchell is not an acceptable medical source, Plaintiff argues that she is an “other source, ” as defined by SSR 06-3p, which instructs that such opinions are important and must be considered. Id., citing SSR 06-3p. Plaintiff further argues that an evaluation of Ms. Mitchell's opinion, using the factors provided by SSR 06-3p that are to be considered when evaluating assessments from both acceptable and other sources, would result in Ms. Mitchell's opinion being given great weight. Id. at 48-49. Plaintiff maintains that Ms. Mitchell's opinion is also consistent with Plaintiff's treatment records, and “is in fact the only physical assessment in the file, save those of the two DDS non-examining consultants . . . .” Id. at 49. In addition, Plaintiff contends that the ALJ's reasons for rejecting Ms. Mitchell's opinion were improper - namely, that the ALJ cherry-picked Ms. Mitchell's notes without providing necessary context, put on “his doctor's hat” to offer a medical opinion, and attempted to discredit Ms. Mitchell by claiming that she over-exaggerated Plaintiff's limitations in her opinion “‘in a good-intentioned effort to assist [Plaintiff] with obtaining disability benefits.'” Id. at 50-51, citing TR 21.

         Defendant responds that under the Regulations, Ms. Mitchell is not an acceptable medical source and as such, she is prohibited from providing medical opinions, and can only provide “an opinion regarding her observations about plaintiff's functional limitations as a result of an impairment diagnosed by an acceptable medical source.” Docket No. 22, p. 19-20, citing 20 CFR § 416.913(a), 20 CFR § 416.913(d), 20 CFR § 416.927(a)(2) (emphasis in original). Defendant argues that the ALJ properly accorded Ms. Mitchell's opinion only little weight because it was based primarily on Plaintiff's own representations regarding Plaintiff's symptoms, which the ALJ found to be not fully credible, and because it is not supported by Plaintiff's treatment records, including Ms. Mitchell's own records. Id. at 20.

         With regard to Dr. Edwards, Plaintiff argues that although the ALJ claimed that he was according considerable weight to Dr. Edwards's opinion, he did not incorporate that opinion into Plaintiff's RFC, leading to an erroneous finding that Plaintiff is not disabled. Docket No. 21, p. 51-52. Specifically, Plaintiff contends that “the VE testified that the limitations noted by Dr. Edwards (specifically the ‘moderate to marked' impairment in focus and concentration) would preclude performance of Ms. Staples' past work as well as all of the other jobs the VE had identified.” Id. at 51. Plaintiff further contends that the ALJ's explanation for how he resolved the contrast between Dr. Edwards's opinion and the RFC ultimately determined for Plaintiff is insufficient: “As one can see, the ALJ's solution is to ‘interpret' the impairment in focus and concentration out of existence, a fancy trick if ever there was one!” Id. at 52, citing TR 22.

         Defendant responds that, despite according considerable weight to Dr. Edwards's opinion, “the ALJ was not constrained to give it controlling weight and to incorporate those parts of Dr. Edward's [sic] opinion the ALJ disagreed with.” Docket No. 22, p. 16. Additionally, Defendant contends that the ALJ was not required to adopt Dr. Edwards's opinion regarding Plaintiff's inability to travel independently due to seizures. Id. at 17.

         With regard to the evaluation of medical evidence, the Code of Federal Regulations states:

Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (c)(2)(i) and (c)(2)(ii) of this section, as well as the factors in paragraphs (c)(3) through (c)(6) of this section in determining the weight to give the opinion. . . .
(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion . . . .
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.

20 CFR § 416.927(c) (emphasis added). See also 20 CFR § 404.1527(c).

         The ALJ must articulate the reasons underlying his decision to give a medical opinion a specific amount of weight.[3] See, e.g., 20 CFR § 404.1527(d); Allen v. Comm'r of Soc. Sec., 561 F.3d 646 (6th Cir. 2009); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). The reasons must be supported by the evidence and must be sufficiently specific so as to make clear to any subsequent reviewers the weight the ALJ gave to the treating source medical opinion and the reasons for that weight. SSR 96-2p.

         The medical record contains treatment notes from Ms. Mitchell, F.N.P., of Self-Centered Primary Care and Weight Loss. TR 620-28, 714-29.

         The Regulations provide that the ALJ may properly:

[U]se evidence from other sources to show the severity of your impairment(s) and how it affects your ability to work. Other sources include, but are not limited to -
(1) Medical Sources not listed in paragraph (a) of this section (for example, nurse-practitioners, physicians' assistants, naturopaths, chiropractors, audiologists, and therapists).

20 CFR § 404.1513(d) (emphasis added).

         The ALJ discussed Ms. Mitchell's opinion evidence as follows:

The claimant's primary care provider is nurse practitioner Vicki L. Mitchell, who began treating the claimant in October 2011. Ms. Mitchell has treated the claimant for back pain, hip pain, hypertension, and depression. In April 2012, Ms. Mitchell completed another [sic] source statement in which she opined the claimant is able to sit for one hour, stand/walk for 15-20 minutes, and must lie down and elevate her legs four hours in an eight-hour work day. Ms. Mitchell opined the claimant could lift five pounds up to one hour a day, and more than five pounds less than one hour a day. Ms. Mitchell opined the claimant could never stoop, kneel or crouch, and would miss more than four days a month due to her impairments. Ms. Mitchell stated the claimant suffered from severe depression, anxiety, back pain with radiation, degenerative disk disease, uncontrolled hypertension, seizure disorder, and insomnia. (Exhibit 27F) From a mental standpoint, Ms. Mitchell opined that the claimant is not capable of remembering work like procedures; maintaining attention for two hours; maintaining regular attendance; sustaining an ordinary routine without special supervision; working in close proximity to others without unduly distraction [sic]; complete a normal workday without interruption from psychologically based symptoms; perform at a consistent pace; accept instructions and respond appropriately to criticism from supervisors; get along with co-workers, respond to change; be aware of hazards; understand; remember and carry out detailed instructions; interact with the public; set realistic goals; maintain socially appropriate behavior; travel to unfamiliar places; and use public transportation due to her anxiety and depression.
Despite these disabling impairments, there is no record that Ms. Mitchell has referred the claimant to a specialist to evaluate her orthopedic difficulties. In addition, despite Ms. Mitchell's recommendations, the claimant has not pursued formal therapy for her depression and anxiety. Although Ms. Mitchell states the claimant's hypertension is uncontrolled, Dr. Sukulovski noted the claimant's blood pressure to be 125/85 in January 2011. (Exhibit 21F)
Ms. Bryant's opinion is inconsistent with the objective medical evidence, including the treatment notes, which indicate that the claimant's depression, hip pain and low back pain only moderately limit her activities; that medication is relieving most of her pain; and that the severity of her pain is moderate 3/10 after medication.[4]26F, pgs 1, 3. Further, the course of treatment pursued by the nurse practitioner has not been consistent with what one would expect if the claimant were truly limited to the very significant extent that the nurse practitioner has listed in the other source statement.
It is not uncommon for a treating medical professional to complete medical source statement forms that over-exaggerate a claimant's limitations in a good-intentioned effort to assist the claimant with obtaining disability benefits. Unfortunately, when the treatment records do not support the extremely severe degree of those limitations as listed on the completed form, it is difficult to give much weight to the opinion. This appears to be the case with Ms. Mitchell's other source statements. In addition, there is the issue with the claimant's underlying credibility with regard to her representation of her symptoms. She has documented drug-seeking behavior. In addition, she has not followed Ms. Mitchell's recommendation to seek mental health therapy. These facts detract from her overall credibility. Ms. Mitchell's opinions with regard to the claimant's physical and mental ...

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