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McLeod v. Commissioner of Social Security

United States District Court, W.D. Michigan, Northern Division

March 14, 2018

SANDRA MCLEOD, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OPINION

          TIMOTHY P. GREELEY, UNITED STATES MAGISTRATE JUDGE.

         In September of 2012, plaintiff Sandra McLeod filed an application for disability and supplemental security income insurance benefits. See Transcript of Administrative Hearing. (ECF No. 7, PageID.262-263). Plaintiff alleges that she became disabled on January 6, 2011, due to degenerative disc disease, plantar fasciitis, chronic muscle spasms, chronic headaches, heightened nerve sensitivity, numbness and tingling in hands and feet, widespread pain, dizzy spells, blurry vision, and sleep disturbances causing fatigue. (ECF No. 7-6, PageID.293). Plaintiff's application was denied initially and plaintiff requested an administrative hearing before an Administrative Law Judge (ALJ).

         ALJ Brent C. Bedwell, held a hearing on October 1, 2014 (ECF No. 7-2, PageID127-158). Plaintiff was represented by counsel at the hearing. Plaintiff and vocational expert John R. Reiser testified. Plaintiff was born on April 15, 1967, and has a high school education. (ECF No. 7-2, PageID.131). Plaintiff lives with her husband and stepson. She has a driver's license. Plaintiff has past work experience as a casino blackjack dealer between 1996 and 2001. (PageID.132). She also worked as a valet and bell attendant. She worked until 2007, at which time she ceased working due to her disability. (PageID.133).

         Plaintiff explained that she is in chronic pain every day. When she washes dishes her hands cramp, when she sweeps her back spasms, when she walks her hips burn, and she has cysts in the arches of her feet. (PageID.133). The more active she becomes, the more she hurts. (PageID.134). She takes Norco for pain, Topamax for nerve pain, Baclofen for muscle spasms, Prilosec for her ulcer, Claritin for allergies, Remeron for depression, and Ventolin for asthma.

         Plaintiff was examined by neurologist Dr. Coccia who informed her that she did not need surgery on either her back or neck. (PageID.135). When Dr. Coccia “crammed his hand into [her] hip” she screamed and started to cry. Dr. Coccia asked if she had been diagnosed with having fibromyalgia. After poking her in the back, which caused her pain, Dr. Coccia informed her that he thought she had fibromyalgia. (PageID.136). Plaintiff has had some success with epidurals and nerve blocks. (PageID.137). Dr. Alshab cauterized the nerves in the bottom of her back and told her that she had arachnoiditis, which she believes will eventually cripple her.

         Plaintiff explains that the pain never goes away and that her daily activities are limited. Plaintiff can watch television sitting-up until her back locks and then she needs to lay-down. She does Sudoko puzzles and spends time with her pet ferret and dog. (PageID.138). Plaintiff stated that she could sit for about one hour and stand for about one half hour to one hour before needing to get up and move. (PageID.140). The cysts in her feet cause her pain from standing up for too long. Plaintiff experiences hip pain from walking and needs to stop after about one and a half blocks. (PageID.141). Plaintiff can lift up to ten pounds on a good day.

         Plaintiff takes Remeron for depression, but does not see a mental health professional. (PageID.142). She stated that without Remeron she would cry all the time, so she thinks that it helps. She does not engage in recommended physical therapy exercises, but just tries to do her daily activities of keeping the house clean. Plaintiff states that she has difficulty sleeping. Plaintiff goes to sleep about 5:00 to 6:00 am and sleeps until 2:00 to 3:00 pm in the afternoon. (PageID.144).

         The vocational expert testified that a hypothetical individual plaintiff's age, educational background, and work experience, who is limited to unskilled sedentary work that allows a change in position every 30 minutes, without needing to climb ladders, ropes, or scaffolds, limited to occasional climbing of ramps, stairs, stooping, crouching, kneeling, and crawling, avoiding exposure to unprotected heights, and hazardous moving machinery, and who is off task up to ten percent of the time in addition to regular breaks could not perform plaintiff's past work because none of those positions were sedentary. (PageID149-151). That person could find work such as seated assembly production work (1, 500 jobs in Michigan and 23, 000-24, 000 jobs nationally), information clerk or appointment clerk (2, 000 jobs in Michigan and 70, 000 jobs nationally), and office clerk (2, 700 jobs in Michigan and 89, 000 jobs nationally). The vocational expert opined that anyone who is off task more than ten percent of the work day would be unable to work. (PageID.153).

         The ALJ found that plaintiff could perform jobs that existed in significant numbers in the national economy given plaintiff's residual functional capacity (RFC) and therefore concluded that plaintiff was not under a “disability” under the Social Security Act (20 C.F.R. § 404.1520(g)). The ALJ's decision became the agency's final decision when the Appeals Council denied plaintiff's request for review. Plaintiff now seeks judicial review of the agency's final decision denying her request for disability benefits. Plaintiff filed this action pro se.[1]

         “[R]eview of the ALJ's decision is limited to whether the ALJ applied the correct legal standards and whether the findings of the ALJ are supported by substantial evidence.” Winslow v. Comm'r of Soc. Sec., 566 Fed. App'x 418, 420 (6th Cir. 2014) (quoting Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec'y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility. Brainard v. Sec'y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ's decision cannot be overturned if sufficient evidence supports the decision regardless of whether evidence also supports a contradictory conclusion). This Court is required to examine the administrative record as a whole and affirm the Commissioner's decision if it is supported by substantial evidence, even if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058, 1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that the court must affirm a Commissioner even if substantial evidence would support the opposite conclusion).

         The ALJ must employ a five-step sequential analysis to determine if plaintiff is under a disability as defined by the Social Security Act. Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). If the ALJ determines plaintiff is or is not disabled under a step, the analysis ceases and plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and five use the residual functional capacity assessment in evaluating the claim. Id. The ALJ determined that plaintiff was not engaged in substantial gainful activity since her January 6, 2011, alleged onset date, and plaintiff had the severe impairments of degenerative disc disease, planter fasciitis, obesity, residuals of left foot surgery, a mood disorder, depression, and an anxiety disorder. The ALJ noted that plaintiff had non-severe impairments of gastro esophageal reflux disease and irritable bowel syndrome. In addition, although plaintiff alleged she suffers with fibromyalgia, the ALJ found that without a definitive diagnosis of fibromyalgia it was a non-medically determinable impairment. The ALJ considered plaintiff's claims of “diffuse body pain” allegedly caused by fibromyalgia. The ALJ found that plaintiffs' impairments did not meet or medically equal the severity of one of the listed impairments in 20 C. F. R. part 404, Subpart P, Appendix 1. The ALJ determined that plaintiff has the residual functional capacity (RFC) to perform sedentary work with additional limitations of: alternating between sitting and standing every thirty minutes, being off task ten percent of the time, avoiding exposure to heights, hazards and the use of moving machinery, not climbing ladders, ropes and scaffolds, and allowing only occasional stooping, crouching, kneeling, crawling and climbing of ramps and stairs. The ALJ found that plaintiff could perform unskilled sedentary jobs in the national economy such as production worker (23, 000 jobs), information clerk (70, 000 jobs), and general office clerk (89, 000 jobs). This Court must affirm the ALJ's findings if sufficient evidence supports the decision even if the evidence supports an alternative conclusion.

         Plaintiff argues that the ALJ erred by not finding a definitive diagnosis of fibromyalgia in the medical records, by failing to conclude that her foot disorder met listing 1.02(A) and that her back disorder met listing 1.04, by failing to make appropriate findings of credibility, and by failing to conclude that the 2013 mental status examination showed debilitating mental limitations or that the medical records supported plaintiff's allegations of disabling symptoms. Plaintiff further alleges that the ALJ failed in concluding that she had diminished strength (4/5) in her lower extremities, but that her sensation and range of motion were intact.

         Plaintiff argues that the ALJ failed to conclude that she suffers with a disabling mental condition because on occasion doctors have noted that she is dysphoric. The ALJ fully considered plaintiff's mental impairments when considering her ability to function daily. The ALJ stated:

The claimant testified she was not seeing a doctor for her depression. However, she has medication that she stated was helpful with her symptoms.
In activities of daily living, the claimant has mild restriction. The claimant uses a pill organizer to remember her medications (Exhibit B3E-3). She is able to prepare simple meals and perform basic household chores (Exhibit B3E-3). The claimant testified she manages about the same range of activities today. The claimant is able to drive a car and go shopping (Exhibit B3E-4). Although the claimant reported difficulties keeping her checkbook balanced, she is able to pay bills and count change (Exhibit B3E-4). The claimant reported having difficulties managing her personal hygiene, but the medical records describe good hygiene (Exhibits B3E-2, Bl0F-9 and Testimony).
In social functioning, the claimant has mild difficulties. The claimant reported that she does not have difficulties getting along with others (Exhibit B3E-6). She gets along with authority figures and she has never lost a job because of problems getting along with other people (Exhibit B3E- 7). The claimant keeps in contact with her family and friends, but she does not go out and socialize on a regular basis (Exhibit B3E-5). The claimant reported that her physical pain is the main reason she does not like to go out (Exhibit B3E-5).
With regard to concentration, persistence or pace, the claimant has moderate difficulties. The claimant reported having memory problems and difficulties sustaining concentration (Exhibit B3E-6). The claimant reported being able to follow written instructions, but having some difficulty remembering spoken ones (Exhibit B3E-6). As for episodes of decompensation, the claimant has experienced no episodes of decompensation, which have been of extended duration. The claimant has not been hospitalized due to mental health issues. The medical records have not documented deterioration in adaptive functioning caused by mental health symptoms.

(PageID.115-117). There exists substantial evidence to support the ALJ's decision that plaintiff does not suffer from a disabling mental condition.

         Plaintiff argues that there exists a general consensus in the medical records that she suffers with fibromyalgia. Plaintiff asserts that fibromyalgia appears in a number of her medical records. In a June 8, 2010, progress note, Dr. Aldridge wrote that plaintiff presented with subjective complaints that included “chronic pain superimposed with fibromyalgia.” (PageID.352). Plaintiff's Neurontin prescription was increased to 200mg three times per day to address the fibromyalgia pain. On October 13, 2010, Plaintiff was seen for a check-up regarding her fibromyalgia complaints. (PageID.346). At that time, her prescription for Neurontin was discontinued despite the success in pain improvement because it caused continuous weight gain. Plaintiff was intermittently using Robaxin and Flexeril and her chronic pain issues were to be the subject of a one month follow-up appointment.

         In 2012, plaintiff visited the Upper Peninsula Pain Institute at War Memorial Hospital on several occasions for pain treatment. Plaintiff presented with low back pain, neck pain, and shoulder pain. Plaintiff was diagnosed with lumbar/thoracic radicultis, lumber post laminectomy, and fibromyalgia/myositis and ...


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