Opinion
Case No. 3:12-cv-402
03-26-2014
PENELOPE THRASH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Judge Timothy S. Black
ORDER THAT: (1) THE ALJ'S NON-DISABILITY FINDING IS FOUND
SUPPORTED BY SUBSTANTIAL EVIDENCE, AND AFFIRMED;
AND (2) THIS CASE IS CLOSED
This is a Social Security disability benefits appeal. At issue is whether the administrative law judge ("ALJ") erred in finding Plaintiff "not disabled" and therefore unentitled to supplemental security income ("SSI"). (See Administrative Transcript ("Tr.") (Tr. 6-23) (ALJ's decision)).
I.
On May 22, 2008, Plaintiff filed an application for SSI alleging she became disabled on June 23, 2004. (Tr. 171). The agency denied her claim initially and upon reconsideration. (Tr. 100-103; 107-109). ALJ Thomas R. McNichols II held a hearing on March 15, 2011, at which Plaintiff and a vocational expert ("VE") testified. (Tr. 9). Based upon review and evaluation of the medical evidence in the record, and Plaintiff's testimony at the hearing, the ALJ found Plaintiff's history of coronary heart disease, chronic obstructive pulmonary disease ("COPD"), neck and back arthralgias, bilateral knee arthralgias, hypertension, history of asthma, and history of somatoform disorder and depression were severe impairments. (Tr. 11). However, the ALJ determined these impairments were not severe enough, either singly or in combination, to meet or medically equal one of the impairments in the Listings. (Tr. 12).
The ALJ found Plaintiff had the residual functional capacity ("RFC") to perform a reduced range of light work with the following limitations: free to alternate positions between sitting and standing at 30-minute intervals throughout the workday, lifting no more than ten pounds at a time, use of a cane to ambulate, no work on uneven surfaces or repetitive use of foot controls, no climbing ladders, ropes, or scaffolds, occasionally climbing stairs, stooping, kneeling, crouching, or crawling, avoiding exposure to extremes of hot and cold and concentrated irritants, and low stress work (defined as no production quotas and no over-the-shoulder supervision) involving no direct dealing with the general public. (Tr. 14).
The ALJ found Plaintiff could not return to her past relevant work. (Tr. 21). However, relying on VE testimony, the ALJ determined that significant numbers of jobs exist in the national economy that Plaintiff can perform. (Tr. 21-22). Accordingly, in the ALJ's written decision dated April 21, 2011, he found Plaintiff not disabled. (Tr. 23). Plaintiff requested review of the ALJ's decision by the Appeals Council. (Tr. 152-53; 294-96). The Appeals Council denied review on October 11, 2012, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-3). See 20 C.F.R. § 404.981. Plaintiff now seeks judicial review of this final decision pursuant to 42 U.S.C. § 405(g).
Plaintiff was born in April 8, 1958 and was 53 years old on the date of the ALJ's denial. (Tr. 270). This classifies her as an individual "closely approaching advanced age." 20 C.F.R. § 404.1563(d). She has at least a high school equivalent education. (Tr. 22).
The ALJ's "Findings," which represent the rationale of his decision, were as follows:
1. The claimant has not engaged in substantial gainful activity since May 22, 2008, the alleged onset date (20 CFR 416.971 et seq.).(Tr. 11-23).
2. The claimant has the following severe impairments: history of coronary artery disease; chronic obstructive pulmonary disease; neck and back arthralgias; bilateral knee arthralgias; hypertension; history of asthma; and history of somatoform disorder and depression (20 CFR 416.920(c)).
3. The claimant does not have an impairment or combination of impairments that meets or medically equals 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 the claimant has the residual functional capacity to perform light work as defined in 20 CFR 416.967(b) except that she must be free to alternate positions between sitting and standing at 30-minute intervals throughout the workday, and she can lift no more than 10 pounds at a time. She requires the use of a cane to ambulate, and she is unable to perform work on uneven surfaces or perform repetitive use of foot controls. She can never climb ladders, ropes, or scaffolds, and she can only occasionally climb stairs, stoop, kneel, crouch, or crawl. She must avoid exposure to hazards, extremes of hot and cold, and concentrated amounts of irritants. She is limited to low stress work (defined as no production quotas and no over-the-shoulder supervision) involving no direct dealing with the general public.
5. The claimant is unable to perform any past relevant work (20 CFR 416.965).
6. The claimant was born on April 8, 1958, which is defined as a person "closely approaching advanced age" on the date the application was filed (20 CFR 416.963).
7. The claimant has at least a high school education and is able to communicate in English (20 CFR 416.964).
8. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not she has transferable job skills (see SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).
9. Considering her age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.969 and 416.969(a)).
10. The claimant has not been under a disability, as defined in the Social Security Act, since May 22, 2008, the date the application was filed (20 CFR 416.920(g)).
In sum, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Regulations, and was therefore not entitled to SSI. (Tr. 23).
On appeal, Plaintiff argues that: (1) the ALJ erred by failing to find that Plaintiff's obesity is a severe impairment; and (2) the ALJ failed to properly consider the combined impact of Plaintiff's physical and psychological impairments.
The Court will address each alleged error in turn.
II.
The Court's inquiry on appeal is to determine whether the ALJ's non-disability finding is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971). In performing this review, the Court considers the record as a whole. Hephner v. Mathews, 574 F.2d 359, 362 (6th Cir. 1978). If substantial evidence supports the ALJ's denial of benefits, that finding must be affirmed, even if substantial evidence also exists in the record upon which the ALJ could have found plaintiff disabled. As the Sixth Circuit has explained:
The Commissioner's findings are not subject to reversal merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard presupposes that there is a "zone of choice" within which the Commissioner may proceed without interference from the courts. If the Commissioner's decision is supported by substantial evidence, a reviewing court must affirm.Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir. 1994).
The claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits. 20 C.F.R. § 404.1512(a). That is, she must present sufficient evidence to show that, during the relevant time period, she suffered an impairment, or combination of impairments, expected to last at least twelve months, that left her unable to perform any job in the national economy. 42 U.S.C. § 423(d)(1)(A).
A.
The record reflects that:
Plaintiff alleged disability due to heart problems, arthritis, depression, anxiety, asthma, high blood pressure, knee problems, and pain in her arms and legs. (Tr. 235-43).
Plaintiff is obese. Her weight has fluctuated from around 170 pounds to near 200 pounds. (Tr. 728, 1040, 1042, 1056, 1100). At the hearing, she testified that she is 5 feet, 3 inches tall (63 inches) and weighs 170 pounds. (Tr. 37).
Plaintiff has a history of coronary artery disease and congestive heart failure. She was admitted to the hospital on December 15, 2005 for complaints of persistent chest discomfort and left arm numbness. (Tr. 338, 349). She was taken urgently to the cardiac catheterization lab and was diagnosed with an acute inferior wall myocardial infarction. (Tr. 351, 355). The catheterization revealed 99% stenosis of the right coronary artery, which was stented. (Tr. 355). She was to follow up at the Miami Valley Medical-Surgical Clinic for ongoing cardiac care. (Tr. 357).
Plaintiff was seen in follow-up at the Medical-Surgical Clinic in December 2005, at which time she was reporting some ongoing chest pain. (Tr. 413). In April 2006, Plaintiff reported that she had been in good health until December 2005. (Tr. 536). She was experiencing occasional palpitations and shortness of breath. (Id.) She was taking her medication as prescribed. (Id.)
Plaintiff was seen in the emergency room in January 2006 due to complaints of chest pain. (Tr. 370). She was admitted for further evaluation due to her history of a recent myocardial infarction, as well as several other comorbidities such as obesity, hypertension, dyslipidemia, and tobacco abuse. (Id.) An echocardiogram revealed a normal ejection fraction around 50%. (Tr. 371). The primary diagnosis was chest pain, likely musculoskeletal in nature. (Tr. 392).
Plaintiff was admitted to the hospital on January 13, 2007 with complaints of significant chest pain with shortness of breath. (Tr. 471, 482). She reported that, despite using her inhaler, she was becoming progressively more short of breath. (Tr. 475). A left heart catheterization was performed, revealing an estimated ejection fraction of 35%. (Tr. 472). Plaintiff's chest pain was improved over the course of her stay and was established to be of non-cardiac origin. (Id.) The diagnoses included: chest pain, congestive heart failure, hypertension, bronchitis, and hyperlipidemia. (Tr. 471). Plaintiff was subsequently seen in the emergency room for similar complaints on several occasions. (Tr. 511, 629, 641).
Plaintiff was evaluated by DayMont West in September 2006. (Tr. 452-63). She transferred to Eastway in October 2006 due to transportation issues, where she reported a history of anger, physical violence, and depression. (Tr. 891-93). She also reported a history of severe alcohol use with bouts of sobriety. (Tr. 899). Her depression and anger had been increasing over the last year, contributing to "poor functioning in all areas of life." (Tr. 895). She was diagnosed with dysthymic disorder, alcohol abuse, alcohol dependence, and cluster B traits and was assigned a GAF of 42. (Tr. 899). She was discharged in February 2007, at which time she was interested in focusing on case management services with another facility. (Tr. 882).
The GAF scale reflects the "clinician's judgment" about an individual's psychological functioning. American Psychiatric Association, Diagnostic & Statistical Manual of Mental Disorders, 32-33 (4th ed., Text Rev. 2000) ("DSM-IV-TR"). A GAF score of 41-50 indicates that the individual has serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). Id. at 34. In most instances, ratings on the GAF Scale are for the current period (i.e., at the time of evaluation). Id
Plaintiff returned to DayMont West in December 2007 for case management and through her probation office for a drug assessment. (Tr. 707). She reported that she last used alcohol three months ago and was attending AA meetings at least once daily. (Tr. 701, 704). She also reported that she had received a charge for possession of cocaine in 2004; however she did not use after that and was not aware that she was still on probation. (Tr. 704). Negative urine drug screens were completed between May and September 2008. (Tr. 772-75).
Plaintiff was seen for a consultative examination performed by Dr. Danopulos on July 18, 2008. Plaintiff presented with complaints of: high blood pressure; effort-related shortness of breath with asthma; bilateral knee pain; neck and low back pain; bilateral hand pain with swelling; history of heart attack in 2005 with occasional chest pain and tendency for congestive heart failure; overweight; and depression. (Tr. 726). She appeared to the examination with a cane. (Id.) Her weight was reported to be 192 pounds at 60 inches. (Tr. 728). She showed trunkal obesity with slim legs. (Tr. 729). Lungs revealed wheezing to auscultation, chest excursions were diminished but expiration was not prolonged. (Id.) Her upper and lower extremities revealed full range of motion and both knees and hands revealed normal and painless motions. (Id.) Other physical findings included: spine was painful to pressure at the lumbosacral area, cervical spine was painless with normal motions, bilateral straight leg raising was normal, and squatting and arising were normal. (Tr. 730). Motor strength was normal in the upper and lower extremities, sensory examination was normal, and deep tendon reflexes were equal bilaterally. (Id.) Dr. Danopulos reviewed lumbar x-rays completed during the evaluation, which were reported as normal. (Tr. 737). A right knee x-ray showed degenerative arthritis of the medial compartment. (Id.) Pulmonary function testing showed a mild degree restrictive lung disease without obstructive component and mild bronchodilator effect. (Tr. 740).
Dr. Danopulos' objective findings were: poorly controlled hypertension; history of asthma; restrictive lung disease triggered from her obesity; right knee early arthritic changes; cervical spine arthralgias; lumbar spine arthralgias; bilateral hand arthralgias or neuralgias; history of heart attack with two stents inserted, without current clinical evidence of angina; history of congestive heart failure, being kept in good shape with diuretics; trunkal obesity; and circumstantial depression. (Tr. 731-32).
Lumbar x-rays completed in August 2008 revealed: slight anterior spondylolisthesis of L4 relative to L5; mild levoscliotic curvature with suggestion of some degenerative facet changes; and mild hypertrophic endplace changes anteriorly at L3-L4. (Tr. 799). A right knee x-ray completed in September 2008 found moderate osteoarthritis of the medial knee compartment. (Tr. 802).
Plaintiff was seen for a psychological consultative examination performed by Dr. Flexman on July 15, 2008. She reported mood swings with crying spells for the past two years and occasional anger episodes. (Tr. 720). She admitted to past alcohol abuse and problems with alcohol, stating that she last drank alcohol eight months ago. (Tr. 721). Upon mental status examination, Plaintiff's posture was slumped and no gait disturbance was noted. (Id.) The doctor/patient relationship was unmotivated; energy level was within normal limits; motivation was below average; affect was embellished; lability was present; and her attitude was anxious and passive. (Id.) Plaintiff cried a little during the evaluation. (Id.) Signs of anxiety were not noted and panic attacks were not reported. (Id.) The diagnosis was undifferentiated somatoform disorder; depression; and polysubstance abuse, current remission, with an assigned GAF of 55. (Tr. 723). Dr. Flexman opined that Plaintiff suffered from moderate restrictions in her ability to interact with the public and moderate restrictions in her ability to respond appropriately to work pressures in a normal work setting. (Tr. 723-24).
A GAF score of 51-60 indicates that the individual has moderate symptoms or moderate difficulty in social, occupational, or school functioning. DSM-IV-TR at 34.
Plaintiff was admitted to Miami Valley Hospital from November 6, 2008 through November 9, 2008 for a "questionable history of transient ischemic attack (TIA)." (Tr. 997). She presented with a history of left-sided headache with tingling and weakness of her left arm and a brief loss of vision in her left eye. (Id.) A brain MRI revealed no evidence of acute stroke. (Tr. 1019). A cervical MRI revealed moderate degenerative spondylosis, marked disk disease changes at C6-C7 with disk herniations at C2-C3, some mild bulging at C4-C5, C5-C6, and C6-C7, moderate bilateral neuroforaminal narrowing at C6-C7, and incidental degenerative disk disease noted in the upper thoracic spine at T2-T3 and T3-T4. (Tr. 1018). 2D echo revealed a normal ejection fraction of 60%. (Tr. 1010). On the day of discharge, Plaintiff's neurological symptoms had resolved with no numbness or weakness in the left upper extremity. (Tr. 998). It was thought that her neurological symptoms on the left may be related to degenerative changes in her cervical spine. (Id.)
Bureau of Disability Determination ("BDD") reviewing physician, Dr. Torello, M.D., evaluated the medical evidence in September 2008 and determined that Plaintiff would be capable of performing light level exertion with the additional limitations of: occasional climbing ramps and stairs; no climbing ladders, ropes, or scaffolds; occasional stooping, kneeling, crouching, and crawling; avoid concentrated exposure to extremes of heat and cold; and avoid concentrated exposure to fumes, odors, dusts, gases, or poor ventilation. (Tr. 764-71). This assessment was affirmed at the reconsideration level in December 2008 by Dr. Cruz, M.D. (Tr. 812).
BDD reviewing psychologist, Dr. Terry, Ph.D., reviewed the psychological evidence in August 2008 and determined that Plaintiff retains the capacity to perform mildly complex tasks in a routine, static and predictable work setting that doesn't require strict production quotas or fast paced performance and requires only superficial contact with others. (Tr. 748). This assessment was affirmed at the reconsideration level by Dr. Lewis, Psy.D. (Tr. 811).
Plaintiff continued treatment through the Miami Valley Surgical Clinic in 2009. In follow-up to her hospitalization for a possible TIA in November 2008, she reported difficulty with mobility, occasional numbness in the lower extremities bilaterally with prolonged sitting, made better standing up. (Tr. 1113). Physical examination revealed tenderness to palpitation in the shoulders bilaterally, none in the legs, with good range of motion and reduced strength in the upper extremities. (Tr. 1114). In July 2009, Plaintiff continued to complain of neck pain and back pain radiating into her left leg. (Tr. 1090- 91). She denied any difficulty with ambulation, numbness, or tingling. (Id.) She reported occasional chest pain that was relieved by nitroglycerin. (Tr. 1091). Physical examination found mild tenderness to palpitation in the cervical and lumbar spine. (Tr. 1092). Her coronary artery disease was reported as stable and she was advised to continue all cardiac medications. (Id.)
In February 2010, Plaintiff reported pain in her back, left neck, left shoulder, and left arm. (Tr. 1056). She reported that her left knee "pops in and out" and intermittently swells. (Id.) She also reported chest pain with shortness of breath, usually relieved with nitroglycerin or rest. (Tr. 1057). Physical examination found reproducible chest wall tenderness to palpitation and mild lumbar tenderness to palpitation. (Tr. 1058). An EKG was not suggestive of ongoing ischemia and the diagnosis was stable angina verses musculoskeletal pain. (Id.) In October 2010, Plaintiff was prescribed a nebulizer for her COPD. (Tr. 1037).
Plaintiff sought treatment with a pain management specialist in 2009, Dr. Smith, and was treated with medication management. (Tr. 1043, 1085, 1090). Steroid injections were recommended but could not be completed due to interference with prescribed medication. (Tr. 1036).
Plaintiff attended physical therapy between May and August 2009 for complaints of low back pain since 2007, a history of neck pain, and the TIA episode in November 2008. (Tr. 994). She reported increased pain with walking, bending, sitting too long, standing, performing housework, and dressing. (Id.) Physical assessment revealed decreased lower extremity range of motion, truck strength, hip strength, and decreased tolerance to functional activities. (Tr. 995). She was discharged in August 2009 with only slight improvement, reporting that therapy overall was not helpful. (Tr. 979). She was advised to follow up with her doctor. (Id.) She returned to physical therapy in July 2010 for home program education and exercises for her right knee pain and back pain. (Tr. 1029).
A right knee x-ray completed in June 2010 revealed: advanced osteoarthritic changes in the medial compartment with sclerosis; moderate to large amount of osteophytosis; joint space irregularity; large amount of joint space narrowing; and mild osteoarthritic changes in the lateral compartment and patellofemoral compartment with small osteophytes. (Tr. 1205).
Plaintiff was evaluated by cardiologist Dr. Chandra at Miami Valley Cardiologists on April 22, 2010 due to complaints of occasional shortness of breath, significant fatigue, recent weight gain, and weakness. (Tr. 1201). Recent stress perfusion scan revealed an ejection fraction of 42% with a large inferior scar and no evidence of ischemia. (Tr. 1186). The assessment was atherosclerotic heart disease with mild-to-moderate left ventricular dysfunction. (Tr. 1202). In May 2010, Plaintiff complained of some chest pain and shortness of breath. (Tr. 1200). Dr. Chandra diagnosed a history of cardiomyopathy with noncritical coronary artery disease, which was on appropriate medications, and she classified Plaintiff as functional class II. (Id.) Plaintiff returned to Dr. Chandra in January 2011 with continued complaints of chest pain, shortness of breath, muscle aches, depression, anxiety, and weight gain. (Tr. 1198). Dr. Chandra felt that the chest pain may be due to angina and hypertension, as there was no flow-limiting coronary artery disease. (Id.) Plaintiff was started on Lisinopril. (Id.)
Plaintiff began treatment with psychiatrist Dr. Patwa in July 2010. She presented with complaints of neck, knee, and back pain, headaches, nausea, shortness of breath, panic attacks, feeling overwhelmed, weight fluctuations, low energy, staying in her night clothes, crying spells, feeling hopeless, and isolating behavior. (Tr. 1032). Mental status examination revealed thinking to be flighty and circumstantial with an "extremely anxious" mood and blunted affect. (Tr. 1034). Plaintiff "cried uncontrollably during the entire session." (Id.) Her memory did not reveal any gross deficits and her judgment and insight were intact. (Id.) Dr. Patwa felt that Plaintiff needed to be hospitalized for her depression. (Id.) Once treated "to a reasonable degree," she was to be continued on outpatient treatment. (Id.)
Plaintiff was subsequently psychiatrically admitted to Grandview Hospital on July 26, 2010 through July 31, 2010. (Tr. 1125-84). She was evaluated by Dr. Patwa in the hospital. (Tr. 144-47). Upon mental status examination, she was alert, oriented, and coherent with an anxious and depressed mood. (Tr. 1146). She was crying uncontrollably, affect was blunted, she was paranoid, suspicious, guarded, watchful, and manipulative. (Id.) She gave a history of distinct hypomanic episodes. (Id.) Her memory was conveniently selective and judgment and insight were intact. (Id.) She reported alcohol use on the weekends, but stated that she was not a heavy drinker. (Tr. 1144). The impression was bipolar affective disorder, panic attacks, and alcohol abuse with a history of cocaine abuse. (Tr. 1146).
Upon release, Plaintiff followed with Dr. Patwa, where treatment notes through December 2010 reflect Plaintiff's anxious, agitated, and depressed mood with a restricted affect and paranoid thoughts. Thought process was logical and/or coherent with cooperative behavior. (Tr. 1031, 1192-97). In September 2010, Plaintiff was observed to be "very anxious - she was unable to sit still in her chair." (Tr. 1031).
Dr. Patwa referred Plaintiff for an evaluation by the Consumer Advocacy Model Program on December 3, 2010. Plaintiff reported a long history of depression, anxiety, and diagnoses of bipolar and schizophrenia through Dr. Patwa's office. (Tr. 1187). She complained of increased appetite, lack of sleep, weight gain, depressed mood, hopelessness, lack of motivation, lack of concentration, poor memory, excessive worry, isolation, suicidal ideation, anxiety, panic attacks, mood swings, anger outbursts, paranoia, seeing her deceased brother, and recurring nightmares. (Tr. 1188). She denied any substance abuse since her treatment through DayMont West in 2007. (Id.) The diagnostic impression was bipolar I disorder MRE depressed, severe with psychotic features; rule out schizoaffective disorder, bipolar type/depressive type; and anxiety disorder with a GAF of 50. (Tr. 1191). It was recommended that Plaintiff continue pharmacological management and counseling with Dr. Patwa's office. (Id.)
Plaintiff presented to the hearing with a cane. (Tr. 52). She testified that she uses her cane daily and that it was prescribed by her family doctor due to knee pain. (Tr. 66, 1045). She testified that she last worked in 2004 doing homecare on a part-time basis. (Tr. 40). She testified that left this employment because she could no longer lift the patients due to pain in her shoulders, arms, neck, and back. (Id.) She testified that she drives approximately once per week. (Tr. 39). She testified that she does some cooking at home. (Tr. 56). She testified that she is unable to sweep, mop, vacuum, wash clothes, make beds, assist with yard work, or perform gardening. (Tr. 56-57, 60). She testified that she does not go to movies and that she stopped her hobbies about a year ago due to her inability to "just stand up and walk and do stuff the way I want to." (Tr. 58-59).
Plaintiff testified that she attempted physical therapy for her back pain, which "helped for the time being and then it hurt worse when it was over with." (Tr. 42). She testified that she is most comfortable lying down. (Tr. 53). She testified that she experiences chest pain and heart palpitations on average once a week, and "some days" has to use nitroglycerin. (Tr. 45). She testified that she becomes short of breath when she physically exerts herself. (Tr. 46). She testified that she uses inhalers for her asthma and a breathing machine when she has an attack or has bronchitis. (Tr. 45-47). She also testified that she suffers from depression, bipolar disorder, and anxiety. (Tr. 48-49). She testified that she gets nervous daily and this has worsened recently. (Tr. 85). Finally, she testified that she has panic attacks approximately once per week. (Tr. 68).
B.
First, Plaintiff argues that the ALJ erred by failing to find that her obesity is a severe impairment. (Doc. 8 at 14).
At step two of the sequential analysis, an ALJ determines whether a claimant's impairment(s), individually or in combination, are severe. 20 C.F.R. § 416.920(a)(4)(ii). It is legally irrelevant whether the ALJ designates some impairments as "severe" and others as "non-severe." See Anthony v. Astrue, 266 F. App'x 451, 457 (6th Cir. 2008) ("The ALJ specifically found that [some of] Anthony's [impairments] ... qualified as severe impairments. ... The fact that some of Anthony's impairments were not deemed to be severe at step two is therefore legally irrelevant") (citing Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987)). Rather, the severity standard at step two is a threshold inquiry, and as long as a claimant has at least one severe impairment, or combination of impairments, the ALJ must proceed beyond step two and consider all impairments at the remaining steps of the evaluation process. 20 C.F.R. § 404.1523. Thus, if the ALJ finds that a claimant has at least one severe impairment, the only remaining issue is what limitations, if any, result from her impairments. See Fisk v. Astrue, 253 Fed. App'x 580, 583 (6th Cir. 2007) ("When an ALJ considers all of a claimant's impairments in the remaining steps of the disability determination, an ALJ's failure to find additional severe impairments at step two does not constitute reversible error"). In this case, the ALJ found that Plaintiff had several severe impairments, and then proceeded through the sequential analysis. Thus, the ALJ followed the correct legal standards.
Plaintiff argues that the ALJ improperly evaluated her obesity as required by Social Security Ruling (SSR) 02-01p because he did not label it a "severe impairment" or perform an individualized assessment of the condition on her ability to function. (Doc. 8 at 15). As previously explained, however, it is legally irrelevant whether the ALJ designates some impairments as severe and others as not non-severe. See Anthony, 266 F. App'x at 457. Instead, an ALJ is required to consider what effect, if any, all of Plaintiff's impairments have on her ability to work. Fisk, 253 Fed. App'x at 583 (when an ALJ determines that one or more impairments is severe, the ALJ "must consider limitations and restrictions imposed by all of an individual's impairments, even those that are not 'severe.'") (citing SSR 96-8p, 1996 WL 374184). The ALJ explicitly discussed Plaintiff's obesity and considered whether it had any effect on Plaintiff's ability to work. The ALJ's step two finding was supported by substantial evidence.
Plaintiff argues that the ALJ should have found that her obesity was a severe impairment because her weight fluctuated from a low of 170 to a high of 194. (Doc. 8 at 16). SSR 02-01p explains that "there is no specific level of weight or BMI that equates with a 'severe' or a 'not severe' impairment." 65 FR 31039 (2000). Although the ruling directs an ALJ to conduct an "individualized assessment of the impact of obesity," id., it does not require a particular mode of analysis. See Nejat v. Comm'r of Soc. Sec., 359 F. App'x 574, 577 (6th Cir. 2009) ("Social Security Ruling 02-01p does not mandate a particular mode of analysis, but merely directs an ALJ to consider the claimant's obesity, in combination with other impairments, at all stages of the sequential evaluation") (citation omitted); Bledsoe v. Barnhart, 165 F. App'x 408, 412 (6th Cir. 2006) ("It is a mischaracterization to suggest that Social Security Ruling 02-01p offers any particular procedural mode of analysis for obese disability claimants"). In this case, the ALJ noted that Plaintiff was "somewhat obese" but that no work-related limitations or restrictions were warranted as a result of her weight. (Tr. 12). Despite the ALJ's finding, he still limited Plaintiff to a reduced range of light work. (Tr. 14). The ALJ properly evaluated the effect Plaintiff's obesity had on her impairments.
A body mass index ("BMI") is a measure of body fat based on height and weight. According to the National Institute of Health, a BMI over 30 indicates that the person is obese. (NIH, Calculate Your Body Mass Index, available at: http://www.nhlbisupport.com/bmi/bmicalc.htm (last visited on March 13, 2014)).
At the hearing, Plaintiff weighed 170 pounds, and testified that she was 5'3". (Tr. 37). The ALJ noted that, with a BMI of 31.1, Plaintiff was not significantly obese. (Tr. 12). The ALJ incorrectly noted that Plaintiff was 62 inches instead of 63 inches. (Id.) According to SSR 02-01p, BMIs between 30.0 and 34.9 are classified as Level I (i.e., the lowest classification of obesity). SSR 02-01p, 65 FR 31039 (2000). If the ALJ had acknowledged Plaintiff's highest reported weight (of 194 pounds) and height of 63 inches, his conclusion that Plaintiff was "not significantly obese" would still be valid because she would have a BMI of 34.4, which is still the lowest classification of obesity as noted in SSR 02-01p.
Not only did the ALJ explicitly mention that Plaintiff was obese, he assessed specific work-related limitations to account for the condition (Tr. 12, 14, 20). The ALJ explained that state agency physician Dr. Horsley "added an additional limitation that the claimant avoid unprotected heights, due to obesity." (Tr. 20, citing Tr. 813). Even though the ALJ previously noted that obesity did not affect Plaintiff's ability to work, he still adopted Dr. Horsley's opinion and restricted Plaintiff from working around hazards (Tr. 12, 14). By adopting Dr. Horsley's opinion, the ALJ accounted for any effect that obesity may have had on Plaintiff's ability to work. See Bledsoe, 165 F. App'x at 412 ("The ALJ did consider Bledsoe's obesity. First, the ALJ made explicit mention of Bledsoe's obesity in his finding of facts. Second, the ALJ does not need to make specific mention of obesity if he credits an expert's report that considers obesity").
The only evidence that Plaintiff cites to supports her argument that her obesity necessitated additional work-related limitations is Dr. Danopulos's opinion that Plaintiff's "ability to do work-related activities is restricted from the combination of her morbid obesity which also triggers restrictive lung disease, plus history of asthma, and early right knee arthritis, plus arthralgias of the lumbosacral spine." (Tr. 732). The ALJ evaluated Dr. Danopulos's opinion and explained that "he did not opine as to what extent" Plaintiff was limited as a result of her impairments. (Tr. 20). Since Dr. Danopulos did not assess any specific work-related limitations, the ALJ reasonably decided to adopt the opinions of the state agency physicians who reviewed Plaintiff's medical records, including Dr. Danopulos' report, and provided an opinion on Plaintiff's ability to work. Watts v. Comm'r of Soc. Sec., 179 F. App'x 290, 294 (6th Cir. 2006) ("[N]one of Watts's treating doctors during the relevant period ... made detailed functional capacity analyses, which leaves the functional capacity forms from the medical reviewers as the best evidence").
A month and a half after Dr. Danopulos examined Plaintiff, state agency physician Dr. Torello reviewed Plaintiff's medical records, including those of Dr. Danopulos, and interpreted his findings. (Tr. 723-29). Dr. Torello acknowledged that Plaintiff was obese, but she concluded that Plaintiff could still perform a limited range of light work. (Tr. 723-26). Four months after Dr. Torello provided her opinion, state agency physicians Dr. Cruz and Dr. Horsley reviewed Plaintiff's medical records. (Tr. 812-14). Dr. Cruz affirmed Dr. Torello's assessment. (Tr. 812). Dr. Horsley also adopted most of Dr. Torello's findings, but due to Plaintiff's obesity, he concluded that she should also avoid unprotected heights. (Tr. 813). Since the state agency physicians opinions accounted for all of the limitations that resulted from Plaintiff's impairments, it was reasonable for the ALJ to give significant weight to their opinions. (Tr. 20); 20 C.F.R. § 416.927(f)(1) ("State agency medical and psychological consultants and other program physicians and psychologists are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation").
Dr. Torello incorrectly listed Plaintiff's height as 60 inches and weight as 192 pounds. (Tr. 765). Dr. Torello's classification would place Plaintiff in the extreme obese category. SSR 02-01p, 65 FR 31039. Because Dr. Torello's estimation is 3 inches less than Plaintiff's reported height, she overstated Plaintiff's obesity. Thus, her opinion, limiting Plaintiff to light work, more than accommodated Plaintiff's physical limitations.
Accordingly, Plaintiff's first assignment of error is unavailing.
C.
Next, Plaintiff argues that the ALJ failed to properly consider the combined impact of her physical and psychological impairments. (Doc. 8 at 17).
After identifying Plaintiff's "severe" and "non-severe" impairments, the ALJ explained that Plaintiff's mental and physical impairments either "significantly interfere[d] with the claimant's ability to engage in basic work-related activities" or "that [none] of these conditions cause[d] more than minimal work-related limitations when considered singly or in combination with the claimant's other impairments." (Tr. 11-12). The ALJ then reached a finding at step three about the "combination of [Plaintiff's] impairments." (Tr. 12). The ALJ went further and assessed a RFC that included both physical and mental limitations. (Tr. 14).
Sixth Circuit authority confirms that the ALJ's level of articulation regarding Plaintiff's combination of impairments was legally adequate. In Loy v. Sec'y of HHS, 901 F.2d 1306, 1310 (6th Cir. 1990), the Sixth Circuit explained that the Commissioner properly considered impairments in combination, as evidenced by the decision's reference to "severe impairments" in the plural, the reference to a "combination of impairments," and a RFC finding that addressed limitations caused by multiple impairments, citing Gooch v. Sec'y of HHS, 833 F.2d 589, 592 (6th Cir. 1987), cert. denied, 484 U.S. 1075 (1988). The ALJ met this standard.
Moreover, the ALJ reviewed all of the evidence in the record and reasonably concluded that Plaintiff was not entirely credible. In assessing whether Plaintiff was credible, the ALJ considered Plaintiff's daily activities. The ALJ explained that Plaintiff's activities of daily living were inconsistent with her complaints and allegations of disabling symptoms and limitations. (Tr. 19). In May 2007, Plaintiff told the consultative psychologist Dr. Payne that she related well to her family and interacted "quite well" with her neighbors. (Tr. 583). During a typical day, Plaintiff reported that she "watched over" her elderly father who was suffering from dementia. (Tr. 586). She said she cooked and cleaned, did some laundry, and enjoyed crocheting and "making stuff." (Id.) In July 2008, Plaintiff told Dr. Flexman that she handled all of her activities of daily living on her own. (Tr. 722). She said she prepared food throughout the day, used public transportation, shopped in stores, managed her own finances, and cleaned the house. (Tr. 722-23). She also that she enjoyed going to garage sales, thrift stores, playing games, going to the library, attending church, eating out, dating, and making crafts. (Tr. 723). As the ALJ noted, these activities suggest that Plaintiff was not as limited as she now claims.
Plaintiff suggests that her activities were more limited than noted in the ALJ's decision. (Doc. 8 at 18). Although Plaintiff's responses varied throughout the record, the ALJ properly noted that Plaintiff told Dr. Payment that she cooked, cleaned, and did laundry. (Tr. 19). Likewise, her reports to Dr. Flexman and her therapist show that Plaintiff had a somewhat active lifestyle. (Tr. 722-23; 1196).
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Plaintiff argues that the ALJ erred in relying on her activities to conclude that she was not disabled. (Doc. 8 at 17). However, the regulations explain that a claimant's daily activities may be relevant to their symptoms. 20 C.F.R. 416.927(c)(3)(i). In Walters v. Comm'r of Soc. Sec., 127 F. 3d 525, 531 (6th Cir. 1997), the Sixth Circuit explained that "if disabling severity cannot be shown by objective medical evidence alone, the Commissioner will also consider other factors, such as daily activities." Contrary to Plaintiff's arguments, it was appropriate for the ALJ to consider her daily activities. The ALJ did not refer to Plaintiff's activities to show that she could perform light work. Rather, the ALJ mentioned her activities to show that her claims of disabling pain were not as severe as she alleged. This is evident from the ALJ's statement that "the claimant's description of daily activities is inconsistent with her complaints of disabling symptoms and limitations." (Tr. 19). The ALJ was merely pointing out that, despite Plaintiff's claims that she was in so much pain she could not work, she was "watching over" her elderly father, cooking, cleaning, going shopping and spending time with friends. (Id., citing Tr. 586, 722-23). Given Plaintiff's own testimony about her daily activities, it was reasonable for the ALJ to find that she was not entirely credible. Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 536 (6th Cir. 2001) ("The ALJ could properly determine that her subjective complaints were not credible in light of her ability to perform other tasks").
The ALJ also pointed out that Plaintiff's treatment history was not consistent with a finding of disability. (Tr. 17-18). Plaintiff claimed that she was so depressed that she had crying spells and so anxious that she was nervous in crowds, but the record shows that she did not consistently seek mental health treatment. (Tr. 49-50). Plaintiff began treatment at DayMont Behavioral Health in September 2006. (Tr. 452-63). She later sought treatment at EastServices. (Tr. 882). Plaintiff missed several appointments, so her therapist informed her that her case would closed if she did not contact her. (Tr. 886-89). Her case was eventually closed in February 2007, just four months after she began treatment. (Tr. 884). Although Plaintiff received psychotropic medications from her primary care physician, there is no evidence that she sought mental health treatment until July 2010, more than two years after she was discharged by her therapist. (Tr. 884, 1032-34); 20 C.F.R. § 416.929(c)(3)(v) (explaining that treatment history is relevant when considering a claimant's symptoms). Plaintiff's treatment history suggests that her mental conditions in particular were not as severe as she alleged.
Furthermore, the ALJ explained that Plaintiff made inconsistent statements that cast doubt on her credibility. (Tr. 19). In May 2007, Plaintiff told consultative psychologist Dr. Payne that she felt "pretty good." (Tr. 583). However, she later told him that she was anxious and depressed. (Id.) Plaintiff also told Dr. Payne that her father, who was reportedly 80 years old and experiencing dementia, did the grocery shopping and paid the household bills. (Tr. 584). The ALJ could reasonably conclude that Plaintiff's statements were not completely true. The ALJ also noted that Plaintiff made inconsistent statements about her work history and substance use. Plaintiff told Dr. Payne that she last worked in 2005, but she later stated that she last worked in 2004. (Tr. 236, 582). In July 2008, Plaintiff told Dr. Danopulos that for the past ten years, she consumed alcohol "on occasion"; however, she previously stated that she consumed four 40 ounce beers two times per week. (Tr. 456, 728). In July 2010, Plaintiff told an attending physician at the hospital that she stopped drinking "heavily" four years ago but that she was still drinking 80 ounces of alcohol on the weekends; however, she later told Dr. Tyner that she did not drink alcohol. (Tr. 1144, 1148). It was reasonable for the ALJ to conclude that while Plaintiff may not have consciously intended to provide misleading statements, her inconsistencies suggested that she was not entirely reliable. (Tr. 20). See Walters, 127 F.3d at 531 ("Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions among the medical reports, claimant's testimony, and other evidence").
Plaintiff's credibility was also undermined by her work history, which showed sporadic and relatively low earnings. (Tr. 20). In the 20 years prior to Plaintiff's alleged onset date, she earned over $4,000 a year in 2002 and 2003 only. (Tr. 174, 183-205). Plaintiff's yearly earnings generally ranged from $38.53 to $1,184.20. (Id.) The ALJ explained that it was reasonable to infer that Plaintiff's lack of employment was not necessarily due to any disabling impairments, but rather a matter of choice. (Tr. 20).
The ALJ also based his adverse credibility determination on Plaintiff's demeanor at the hearing. (Tr. 20); see SSR 96-7p, 61 Fed. Reg. 34483-01, 34485 (1996) (explaining that an ALJ should consider "[a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms"). The ALJ noted that Plaintiff was able to closely and fully attend the hearing. (Tr. 20). Although Plaintiff had to stand up at the hearing, the ALJ noted that she appeared to have no difficulty sitting or rising. (Id.) The ALJ observed that Plaintiff grimaced a little and appeared to exaggerate greatly. (Id.) Given the ALJ's observations, it was reasonable for him to find that Plaintiff's demeanor at the hearing was inconsistent with her allegations of disabling pain. See SSR 96-7p, 61 Fed. Reg. 34483-01, 34485 (1996) (explaining that an ALJ can consider his or her own recorded observations of the claimant as part of his overall credibility evaluation); see also Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003) ("Upon review, we are to accord the ALJ's determinations of credibility great weight and deference particularly since the ALJ has the opportunity, which we do not, of observing a witness's demeanor while testifying").
Accordingly, Plaintiff's second assignment of error is also unavailing.
III.
For the foregoing reasons, Plaintiff's assignments of error are unavailing. The ALJ's decision is supported by substantial evidence and is affirmed.
IT IS THEREFORE ORDERED THAT the decision of the Commissioner, that Penelope Thrash was not entitled to disability insurance benefits and supplemental security income, is found SUPPORTED BY SUBSTANTIAL EVIDENCE, and AFFIRMED; and, as no further matters remain pending for the Court's review, the Clerk shall enter judgment and this case shall be CLOSED.
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Timothy S. Black
United States District Judge