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Barnes v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

March 6, 2018

JULIE A. BARNES, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PAUL D. BORMAN UNITED STATES DISTRICT JUDGE

          REPORT AND RECOMMENDATION CROSS-MOTIONS FOR SUMMARY JUDGMENT (DKT. 16, 18)

          STEPHANIE DAWKINS DAVIS UNITED STATES MAGISTRATE JUDGE

         I. PROCEDURAL HISTORY

         A. Proceedings in this Court

         On October 19, 2016, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). This case was referred to the undersigned magistrate for all pre-trial purposes. (Dkt. 4). This matter is before the Court on cross-motions for summary judgment. (Dkt. 16, 18).

         B. Administrative Proceedings

         Plaintiff filed the instant claims for a period of disability and disability insurance benefits on November 13, 2013, alleging disability beginning August 1, 2013. (Tr. 11).[1] The claim was initially disapproved by the Commissioner on March, 2014. (Tr. 11). Plaintiff requested a hearing, and on May 21, 2015, she appeared and testified, with the assistance of her attorney, before Administrative Law Judge (ALJ) Melody Paige, who considered the case de novo. (Tr. 22-53). In a decision dated August 24, 2015, the ALJ found that plaintiff was not disabled. (Tr. 8-17). Plaintiff requested a review of this decision (Tr. 7), and the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 6, 2016, 2016. (Tr. 1-6); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

         For the reasons set forth below, the undersigned RECOMMENDS that plaintiff's motion for summary judgment be DENIED, that defendant's motion for summary judgment be GRANTED, and that the findings of the Commissioner be AFFIRMED.

         II. FACTUAL BACKGROUND

         A. ALJ Findings

         Plaintiff was born in 1964 and was 52 years old on the date last insured, March 31, 2017. (Tr. 144). Plaintiff had work history as executive assistant, human resources generalist, a legal secretary, and a purchasing assistant. (Tr. 157). laintiff stopped working on August 23, 2013 because of her conditions. (Tr. 147). In a decision dated August 24, 2015, the ALJ applied the five-step disability analysis to plaintiff's claim and found at step one that plaintiff had not engaged in substantial gainful activity since the amended alleged onset date through the last date insured. (Tr. 13). The ALJ found that plaintiff had the following medically determinable impairments: IBS, history of hernia, and anxiety/depression. (Tr. 13). However, at step two, the ALJ found that plaintiff's medically determinable impairments were not severe impairments. Id. Thus, the ALJ ended her analysis at step two and concluded that plaintiff has not been under a disability from the amended alleged onset date through the last date insured. (Tr. 15-17). Plaintiff requested a review of this decision, and the ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 6, 2016. (Tr. 1-7); Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).

         B. Plaintiff's Claims of Error

         According to plaintiff, the ALJ erred by failing to consider the objective medical evidence and plaintiff's subjective complaints in his step two analysis. Specifically, plaintiff contends that when the ALJ failed to find that plaintiff's IBS; history of hernia; and anxiety/depression were severe impairments in her step two analysis. Plaintiff asserts that there is significant evidence showing that her IBS is a severe impairment, including 28 emergency room visits, 15 of which occurred after the alleged onset date of August 1, 2013. In addition to the multiple ER visits, plaintiff says she has consistently treated with a primary care physician, Dr. Russell Chavey. Dr. Chavey has noted the plaintiff's diagnosis of IBS. (Tr. 490, 493, 495, 499). Further, Dr. Chavey opined that plaintiff has severe irritable bowel disease and assessed her prognosis as guarded. (Tr. 504). Moreover, physical examinations throughout the record note abdominal and epigastric tenderness. (Tr. 651, 829, 839, 874). Dr. Chavey completed a Residual Functional Capacity Questionnaire on December 26, 2013 specifically indicating multiple limitations due to the plaintiff's severe irritable bowel disease. (Tr. 504-507). Plaintiff argues that it makes little sense that her treating doctor would fill out an RFC form indicating specific limitations if she did not have a severe impairment.

         Plaintiff also takes issue with the ALJ's conclusion that there is no evidence of medical treatment at the alleged onset date thus indicating no worsening or changing in the Plaintiff's condition. (Tr. 15). Plaintiff points out that this conclusion is not supported by the evidence because there were multiple ER visits after the alleged onset date and a clear deterioration of condition which is evidenced by the increase in ER visits as well as her doctor's opinions of disability. Furthermore, the new hire, quarter wage, and unemployment query noted a decrease from $12, 214.00 in the 2nd quarter of 2013 (April - June) to only $7, 319.00 in the 3rd quarter of 2013 (July - September). (Tr. 140). Plaintiff suggests that this drop in wages indicates that the plaintiff stopped working sometime in the 3rd quarter of 2013, which is in line with the alleged onset date. Also, plaintiff had three ER visits in September 2013, which also suggests a deterioration of condition around the time of the alleged onset date. Finally, the certified earnings record notes no earnings in 2014 or 2015, thus adducing more evidence that plaintiff was under a disability. (Tr. 143). Therefore, plaintiff contends that ample medical evidence combined with a decrease then cessation of earnings supports a finding that plaintiff's IBS along with her depression and anxiety are severe impairments.

         Plaintiff also points out that the ALJ at one point in her decision says she does not have any severe impairments, (Tr. 13) then on the next page of the decision states “[t]he above-listed impairments more than minimally affect the claimant's ability to perform work activities on a regular and sustained basis, and are therefore severe.” The ALJ's decision also states that plaintiff's depression/anxiety are medically determinable impairments (Tr. 13), but later states that there “is not a medically determinable mental impairment.” (Tr. 16). Plaintiff argues that the above excerpts render the ALJ's decision internally inconsistent, and thus not supported by substantial evidence.

         Additionally, plaintiff asserts that the ALJ ignores any evidence that does not align with her finding of no disability, particularly with regard to medical opinion evidence. The ALJ may not substitute his own medical judgment for that of the treating physician where the opinion of the treating physician is supported by the medical evidence. McCain v. Dir., Office of Workers Comp. Programs, 58 Fed.Appx. 184, 193 (6th Cir. 2003). According to plaintiff, ample medical evidence supports her treating physician's opinions, which are also supported by plaintiff's subjective complaints. Yet, the ALJ discounted all medical opinions and made an erroneous credibility assessment.

         Next, plaintiff contends that the ALJ's decision to reject Dr. Chavey's treating physician opinion is not supported by substantial evidence, and the ALJ failed to comply with the procedural aspect of the treating physician rule. (Tr. 16). Plaintiff complains that the ALJ dismissed Dr. Chavey's assessment in a single conclusory statement declaring that the assessment is not supported by treatment records and the Plaintiff rarely presented for treatment. (Tr. 16). Plaintiff says that such an explanation for assigning “little weight” cannot constitute the “good reasons” contemplated by SSR 96-2p, averring further that it ignores the substantial amount of evidence to the contrary. Plaintiff characterizes the record as full of treatment records from Dr. Chavey and multiple ER visits. Given the nature of plaintiff's IBS, she says it follows that she would have more ER visits than regular doctor visits. Furthermore, she states that the ALJ does not properly consider the extent to which Dr. Chavey was fully involved in the longitudinal picture of plaintiff's care. Specifically, Dr. Chavey noted that plaintiff's severe IBS attacks would result in hospital stays 4 - 6 times per year, and that these episodes last 1 - 5 days requiring IV hydration and observation. (Tr. 504). She points out that this is in line with plaintiff's treatment record. Since Dr. Chavey is privy to plaintiff's condition and in a position to render an opinion given his history of treating plaintiff and accurate portrayal of the severity, the ALJ's decision to give “little weight” is not supported by substantial evidence and was made without giving “good reasons.”

         Finally, plaintiff alleges that the ALJ made an improper credibility assessment. According to plaintiff, the ALJ uses boilerplate credibility language stating: “the claimant's testimony … the intensity of the claimant's symptoms and their alleged impact on her functioning is not consistent with the totality of the evidence.” Plaintiff cites the Seventh Circuit in Bjornson v. Astrue, 671 F.3d 640, 645 (7th Cir. 2012), which provides that this type of language is “essentially meaningless.” Plaintiff urges the Court to find that the ALJ's language is likewise meaningless since it does not specifically state which parts of plaintiff's testimony she finds credible and which are not credible. Furthermore, the ALJ's conclusion that plaintiff's drug seeking behavior calls her credibility into question relies on an assumption that is wrong and irrelevant. Although there are some instances in the record of drug seeking behavior, plaintiff says that this behavior can most likely be attributed to the severe pain she was in and the fact that the medication Dilaudid was the only medication that provided some relief. Plaintiff testified at the hearing that an IV of Dilaudid is the only thing that helps stop vomiting. (Tr. 35). Plaintiff also points out that there is no evidence of positive drug tests in the record, nor is there any evidence that plaintiff uses recreational drugs. Finally, the ALJ does not specifically identify any testimony of plaintiff or make any personal observations regarding credibility. . Thus, according to plaintiff, the ALJ has made an insufficient and incorrect credibility assessment, particularly in light of the de minimis standard required in a Step Two analysis.

         C. The Commissioner's Motion for Summary Judgment

         The Commissioner first argues that plaintiff utilizes the wrong standard of review in challenging the ALJ's step two analysis in that plaintiff focuses on whether there is evidence to support the her contention that her impairment is severe, rather than on whether there is substantial evidence in the record to support the ALJ's conclusion that it is not. See Potter v. Comm'r of Soc. Sec., 223 Fed.Appx. 458, 464, (6th Cir. 2007) (“The question on review is not whether substantial evidence, or even the weight of the evidence, supports [Plaintiff's] position. Rather, this court is only asked to decide if the record includes substantial evidence to support the Commissioner's determination.”). The Commissioner acknowledges that Step two is a “de minimis hurdle” Higgs v. Bowen, 880 F.2d 860, 862 (6th Cir. 1988), used to “screen out ‘totally groundless claims.'” Griffeth v. Comm'r of Soc. Sec., 217 Fed.Appx. 425, 428 (6th Cir. 2007) (quoting Farris v. Sec'y of Health & Human Servs., 773 F.2d 85, 89 (6th Cir. 1985)). At that point in the sequential evaluation, plaintiff was required to demonstrate that she experienced a severe, medically determinable impairment that could be expected to result in death, or that lasted-or could be expected to last- for a continuous period of at least twelve months. 20 C.F.R. § 404.1520(a)(4)(ii); 20 C.F.R. § 404.1509; Foster v. Sec'y of Health & Human Servs., 1990 WL 41835, at *2 899 F.2d 1221 (6th Cir. Apr. 11, 1990) (“It was [the claimant's] burden to show the severity of his impairments.”). “[A]n impairment or combination of impairments is considered ‘severe' if it significantly limits [the claimant's] physical or mental abilities to do basic work activities.” Social Security Ruling (SSR) 96-3p available at 1996 WL 374181, at *1. “An impairment or combination of impairments is not severe if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1521(a) (effective to March 26, 2017). Or, in other words, “[a]n impairment or combination of impairments is found ‘not severe'…when medical evidence establishes only a slight abnormality or a combination of slight abnormalities which would have no more than a minimal effect on an individual's ability to work…” SSR 85-28 available at 1985 WL 56856, at *3.

         According to the Commissioner, the medical record consists almost entirely of emergency room visits. Plaintiff's theory is that the ALJ should have determined that her irritable bowel syndrome was disabling or, at the very least, that it was a severe impairment because she repeatedly sought out emergency room treatment for abdominal pain. Yet, as one doctor put it, “[t]here [was] no evidence to suggest that [Plaintiff] [had] true abdominal pain.” (Tr. 962); (Tr. 800) (“[Plaintiff] presented for recurrent abdominal pain. She has had several visits to the EC for this in the past. On all of these visits, there have been no acute emergencies found or explanations for her chronic abdominal pain.”). Instead, according to the Commissioner, the record strongly suggests that the driving force behind her multiple emergency room visits was her desire to obtain Dilaudid. The Commissioner points to evidence showing that she went so far as to “literally beg[] for [it] by name.” (Tr. 800); (Tr. 714) (“She is [a] Dilaudid seeker… She kept asking for Dilaudid even though it was explained to her multiple times that it is not indicated in her condition… [O]nce this decision was made she came up to the doctor's room and demanded discharge”); (Tr. 962) (“history of drug-seeking behavior”); (Tr. 982) (“drug seeking behavior”); (Tr. 1072) (“drug-seeking behavior for the past few years”); (Tr. 1076) (“I am concerned that [Plaintiff] is here for narcotics specifically. The fact that she is continually asking for Dilaudid specifically is a concern… After having this conversation, the [Plaintiff] simply asked to be discharged. Again, I would be highly cautious prescribing her any narcotics unless there is an explicit reason to do so.”); (Tr. 1355) (“drug-seeking behavior”).

         The Commissioner also points out that her examinations and test results were largely unremarkable. Occasionally when visiting the emergency room, plaintiff would appear to be uncomfortable (Tr. 673, 798, 861, 890) or have some abdominal tenderness (Tr. 464, 468, 829, 861, 973, 1022, 1057) but, in the vast majority of instances, she was in no distress (Tr. 463, 468, 488, 691, 705, 755, 779, 829, 846, 874, 927, 931, 970, 973, 983, 1005, 1034, 1052, 1074) and received normal examinations of her abdomen. (Tr. 238, 488, 673, 691, 705, 724, 756, 768, 779, 781, 798, 839, 846, 880, 884, 890, 927, 931, 960, 1009, 1034, 1052, 1061, 1074, 1333, 1336, 1354). She received a battery of largely normal abdominal imaging, (Tr. 212, 214, 829, 863, 866, 892), biopsies (Tr. 671, 1337), physical examinations (Tr. 234, 468, 673, 691, 705, 723-724, 755-756, 768, 779, 798, 829, 839, 846, 853, 861, 879-880, 884, 890, 927, 931-932, 1008-1009, 1021-1022, 1028, 1052, 1061, 1074, 1333, 1336, 1354), acute abdominal series (Tr. 484-485, 831, 995, 1042, 1350), colonoscopies (Tr. 860, 1336), gastric emptying scans (Tr. 953-954), laboratory studies (Tr. 726, 880, 962, 1010), and esophagogastroduodenoscopies (Tr. 227, 466, 689, 860), (Tr. 1072) (“extensive unremarkable workup”). Her latest treatment note from March 2015 states that she was only getting intermittent flares of irritable bowel syndrome, and that she was doing well in between those flares. (Tr. 1333). There is also no record of her seeking any treatment in the five months between that visit and the date of the ALJ's decision. Hamlin v. Comm'r of Soc. Sec., 1996 WL 729287, at * (6th Cir. Dec. 17, 1996) (“gaps in a history of medical treatment are likely to suggest that the claimant was not receiving treatment during the gaps and was not disabled then.”). Thus, based on the evidence set forth above showing normal objective evidence; her drug-seeking behavior; and the lack of treatment with a primary care physician or gastrointestinal specialist (Tr. 15), the ALJ found that plaintiff's irritable bowel syndrome was not a severe impairment.

         The Commissioner also maintains that the alleged inconsistencies in the ALJ's decision were typographical errors that were harmless. The Commissioner contends that the ALJ accidentally stated in a single boilerplate sentence that plaintiff had severe impairments (Tr. 14), but since the ALJ spent the next three-plus pages explaining why plaintiff did not have any severe impairments (Tr. 14-17), inclusion of that language was a clear typographical error and is harmless. Lund v. Colvin, 2014 WL 1153508, at *4 n. 3 (D. Minn. Mar. 21, 2014) (collecting cases showing that typographical errors are harmless). The Commissioner posits that the same is true of the ALJ's statement about plaintiff's depression. The ALJ initially stated, again, in one boilerplate sentence, that it was a medically determinable impairment. (Tr. 13). She then spent three full paragraphs explaining the medical determinability standard and finding that plaintiff's depression was not a medically determinable impairment. (Tr. 16). According to the Commissioner, the context makes it clear that the ALJ meant to find that Plaintiff's depression was not medically determinable, and her earlier statement to the contrary was “merely a scrivener's error.” McAllister v. Colvin, 2017 WL 1190952, at *2 (E.D. Mich. Mar. 31, 2017).

         The Commissioner also contends that the ALJ's weighing of the medical opinion evidence is supported by substantial evidence. In December 2013, Dr. Chavey filled out an “irritable bowel syndrome residual functional capacity questionnaire, ” and found that plaintiff was more limited than ultimately recognized by the ALJ. (Tr. 504-507). The Commissioner acknowledges that, prior to writing the opinion, Dr. Chavey had met with plaintiff enough times to have an “ongoing treatment relationship” (Tr. 489, 492, 495, 498) that qualifies him as a treating source. Nevertheless, the ALJ rejected Dr. Chavey's opinion because plaintiff “rarely presented to [his office] for any treatment; thus, the assessment is not supported by treatment records and rendered less persuasive.” (Tr. 16); Davis v. Comm'r of Soc. Sec., 2016 WL 4445774, at *7 (E.D. Mich. July 29, 2016), R&R adopted, 2016 WL 4429641 (E.D. Mich. Aug. 22, 2016) (permitting ALJs to discount medical opinion when they are “either unsupported or inconsistent”). The Commissioner asserts that, if anything, the ALJ's description of Dr. Chavey's opinion was too charitable since his opinion was not only unsupported by his notes, but also outright contradicted by those notes. According to the Commissioner, the gist of Dr. Chavey's opinion was that plaintiff's abdominal pain and its associate symptoms greatly affected her ability to work. (Tr. 504-507). Yet, much like plaintiff's emergency room records, Dr. Chavey's treatment notes showed that plaintiff had no abdominal pain. (Tr. 490, 493, 496, 499, 931). Thus, while plaintiff contends that her emergency room records support Dr. Chavey's opinion, the Commissioner maintains, as explained above, that they do the exact opposite.

         As to plaintiff's credibility claim, the Commissioner acknowledges that because the ALJ denied plaintiff's claim at step two, she was required to assess plaintiff's credibility at that step. See Curvin v. Colvin, 778 F.3d 645, 649 (7th Cir. 2015) (discussing SSR 96-3p, available at 1996 WL 374181, at *2). In doing so, the ALJ found plaintiff's credibility wanting based on the unremarkable objective evidence, plaintiff's drug seeking behavior, and her lack of non-emergency room treatment. (Tr. 15-17). The ALJ also questioned plaintiff's August 1, 2013 onset date because plaintiff experienced irritable bowel syndrome prior to that date (Tr. 204), and the ALJ opined that the record did not support a conclusion that it worsened around that time. (Tr. 15). While plaintiff highlights her decreased earnings in the third quarter of 2013 as evidence of a downturn in her condition around the onset date, the Commissioner points out that the reason for the decreased earnings in that quarter was because her contract job with the Ford Motor Company ended. (Tr. 27-28, 148, 157). As to her contention that her emergency room visits in September 2013 demonstrated that her condition worsened, the Commissioner says all those visits demonstrated was more drug-seeking behavior (Tr. 714), and more unremarkable objective examinations. (Tr. 227-228, 234, 237-238, 673, 677-678, 704-705).

         Addressing plaintiff's complaint about “boilerplate language, ” the Commissioner contends that at best, plaintiff has identified a harmless error because the ALJ accompanied the boilerplate statement with “an adequate explanation of the adverse credibility finding.” Sorrell v. Comm'r of Soc. Sec., 656 Fed.Appx. 162, 174 (6th Cir. 2016). And, the Commissioner says that the ALJ's consideration of plaintiff's drug-seeking behavior was an entirely appropriate. Jackson v. Comm'r of Soc. Sec., 2015 WL 4611472, at *7 (W.D. Mich. July 31, 2015) (collecting cases).

         Finally, to the extent that the ALJ did not specifically identify any testimony of plaintiff or make any personal observations regarding credibility, the Commissioner points out that the ALJ was not “required to discuss each piece of data in [her] opinion, so long as [she] consider[ed] the evidence as a whole and reach a reasoned conclusion.” Boseley v. Comm'r of Soc. Sec. Admin., 397 Fed.Appx. 195, 199 (6th Cir. 2010). According to the Commissioner, the ALJ stated on multiple occasions that she considered the entire record (Tr. 13) ...


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