United States District Court, E.D. Michigan, Southern Division
DAVID
M. LAWSON DISTRICT JUDGE.
REPORT AND RECOMMENDATION ON CROSS MOTIONS FOR
SUMMARY JUDGMENT (R. 11, 12)
Patricia T. Morris United States Magistrate
Judge.
I.
RECOMMENDATION
Plaintiff
Michelle Pearl appeals the Commissioner's final decision
denying her disability benefits. For the reasons that follow,
I conclude that substantial evidence supports the
Commissioner's decision. Therefore, I recommend
DENYING Plaintiff's Motion, (R. 11),
GRANTING the Commissioner's Motion, (R.
12), and AFFIRMING the Commissioner's
decision.
II.
REPORT
A.
Introduction and Procedural History[1]
Plaintiff
applied for Supplemental Security Income (SSI) in April 2014,
alleging she became disabled on June 1, 2012. (R. 7,
PageID.289.)[2] The Commissioner denied the claim.
(Id., PageID.163.) Plaintiff then requested a
hearing before an Administrative Law Judge (ALJ),
(Id., PageID.202), which occurred on October 23,
2015. (Id., PageID.91-114.) The ALJ issued a
decision on March 1, 2016, finding Plaintiff was not disabled
during the relevant period. (Id., PageID.180-90.)
On May
15, 2017, the Appeals Council remanded the case to the ALJ
because (1) the ALJ had received evidence that was never
given to Plaintiff, and (2) the ALJ's decision failed to
consider the possible binding effect of a 2011 ALJ decision
rendered on one of Plaintiff's earlier applications for
benefits. (Id., PageID.195.) The Council required
the ALJ to allow Plaintiff to review and comment on the new
evidence and to explain whether the prior decision's
findings were binding. (Id., PageID.196.)
On
remand, the ALJ held another hearing, (id.,
PageID.115-42), and in a November 2017 decision, again denied
benefits, (Id., PageID.51-63.) This time, the
Appeals Council denied review of the ALJ's determination,
[3]
which then became the Commissioner's final decision.
(Id., PageID.33-36.) Shortly after, Plaintiff sought
judicial review of the decision. (R. 1.) She then filed the
instant Motion for Summary Judgment on February 5, 2019, (R.
11), and the Commissioner countered with its own Motion later
in the month. (R. 12.) The case is now ready for resolution.
B.
Framework for Disability Determinations
SSI is
available only to those with a “disability.”
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir.
2007). “Disability” means the inability
to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment
which can be expected to result in death or which has lasted
or can be expected to last for a continuous period of not
less than [twelve] months.
42 U.S.C. § 1382c(a)(3)(A). The Commissioner's
regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
(i) At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we will
find that you are not disabled.
(ii) At the second step, we consider the medical severity of
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement . . . or a combination of impairments
that is severe and meets the duration requirement, we will
find that you are not disabled.
(iii) At the third step, we also consider the medical
severity of your impairment(s). If you have an impairment(s)
that meets or equals one of our listings in appendix 1 of
this subpart and meets the duration requirement, we will find
that you are disabled.
(iv) At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work. If
you can still do your past relevant work, we will find that
you are not disabled.
(v) At the fifth and last step, we consider our assessment of
your residual functional capacity and your age, education,
and work experience to see if you can make an adjustment to
other work. If you can make an adjustment to other work, we
will find that you are not disabled. If you cannot make an
adjustment to other work, we will find that you are disabled.
20 C.F.R. § 416.920(a); see also Heston v.
Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir.
2001). “Through step four, the claimant bears the
burden of proving the existence and severity of limitations
caused by [his or] her impairments and the fact that [he or]
she is precluded from performing [his or] her past relevant
work.” Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). The claimant must provide
evidence establishing the residual functional capacity, which
“is the most [the claimant] can still do despite [his
or her] limitations, ” and is measured using “all
the relevant evidence in [the] case record.” 20 C.F.R.
§ 416.945(a)(1).
The
burden transfers to the Commissioner if the analysis reaches
the fifth step without a finding that the claimant is not
disabled. Combs v. Comm'r of Soc. Sec., 459 F.3d
640, 643 (6th Cir. 2006). At the fifth step, the Commissioner
is required to show that “other jobs in significant
numbers exist in the national economy that [the claimant]
could perform given [his or] her RFC and considering relevant
vocational factors.” Rogers, 486 F.3d at 241
(citing 20 C.F.R. §§ 416.920(a)(4)(v), (g)).
C.
ALJ Findings
Following
the sequential analysis, the ALJ determined that Plaintiff
was not disabled. (R. 7, PageID.63.) At step one, the ALJ
found that Plaintiff had not engaged in substantial gainful
activity since the application date. (Id.,
PageID.54; see also id., PageID.182 (finding the
same for the 2016 decision on Plaintiff's current
application prior to the Appeals Council's remand);
id., PageID.149 (finding the same for the 2011
decision on Plaintiff's earlier application for
benefits).) At step two, the ALJ concluded that Plaintiff had
the following severe impairments:
closed head injury, neck and back disorder, migraine
headaches, degenerative joint disease of the wrist and knees
and depression; status post surgery of right ureteral
stricture, severe cervical sprain with radiculopathy, severe
lumbar sprain with radiculopathy, thoracic radiculitis,
anxiety, restless leg syndrome, and joint pain in hands
bilaterally.
(Id.)[4] At step three, the ALJ determined that
Plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed
impairment. (Id., PageID.54; see also id.,
PageID.183 (same conclusion in 2016 decision); id.,
PageID.149 (same conclusion in 2011 decision).)
Before
proceeding to the final steps, the ALJ found that Plaintiff
had the residual functional capacity (RFC) to perform
light work as defined in 20 CFR 416.967(b)[5] except the
claimant [c]an frequently reach in all directions
bilaterally; frequently handle, finger, and feel bilaterally;
frequently push and pull bilaterally; frequently use foot
controls bilaterally; occasionally climb ramps and stairs,
but never climb ladders, ropes, or scaffolds; occasionally
balance, stoop, kneel, crouch, and crawl; no exposure to
unprotected heights and moving mechanical parts; avoid
concentrated exposure to vibrations, humidity, wetness,
extreme cold, and extreme heat; avoid concentrated exposure
to fumes, odors, dusts, and pulmonary irritants; limited to
simple, routine, and repetitive tasks, but not at a
production rate pace; use judgment in the workplace limited
to simple work related decisions; deal with changes in the
work setting limited to simple work related decisions; and
sit-stand option permitting change in position if needed and
without disturbing the workplace.
(Id., PageID.56.)[6] At step four, the ALJ found that
Plaintiff could not perform her past relevant work.
(Id., PageID.61; see also id., PageID.188
(2016 decision finding Plaintiff unable to perform past
work); id., PageID.157 (same for the 2011
decision).) Finally, at step five, the ALJ determined that
Plaintiff could perform a significant number of jobs in the
national economy. (Id., PageID.62; see also
id., PageID.189 (2016 decision finding Plaintiff able to
perform a sufficient number of jobs of the national economy);
id., PageID.1157-58 (same for the 2011 decision).)
D.
Administrative Record
1.
Medical Evidence
The
earliest medical report in the administrative record comes
from 2005. (R. 7, PageID.498-514.) In January of that year,
Plaintiff hit her head during an automobile accident.
(Id., PageID.498.) She subsequently sought treatment
for headaches, dizziness, memory and concentration problems,
right arm pain and numbness, and “[b]elat[ed] leg
pain.” (Id.) The records come from a neurology
office, and the last page of the entire group of documents
(spanning multiple dates) is signed by Dr. Haranath
Policherla, a neurologist, although no earlier pages bear any
signatures. (Id., PageID.514.) At an evaluation that
month, various tests produced “positive” results,
which in this context appears to mean she experienced pain or
limitations during a foraminal compression test, shoulder
depression test, straight leg raising test, Laseque's
test, Braggard's test (only on right side),
Beachterew's test (only on right), and Milgram's
test. (Id., PageID.498.) Her cervical spine's
range of motion was less than full by all measures, but her
shoulder and hip ranges of motion were almost entirely
normal. (Id., PageID.500.) Moderate to severe spasms
were found up and down her back. (Id.) Overall, the
diagnosis was severe cervical, lumbar, and dorsal sprains,
with radiculopathy. (Id.)
Over
the following months, Plaintiff received a series of
treatments, apparently from Dr. Policherla. (Id.,
PageID.501-14.) Most of the scrawled notes are
indecipherable, but legible fragments are dotted throughout.
On a few occasions, the notes suggest Plaintiff might be
depressed. (Id., PageID.501-04, 507-09.) The notes
also seem to chart her headaches, although whether that
condition improved or worsened, I cannot tell. (Id.)
Other notes appears to suggest that she had a “strong
prolonged stand/walk.” (Id., PageID.504-05.)
In March 2005, a motor-nerve study confirmed radiculopathy at
a few spinal levels. (Id., PageID.511-14.)
The
record then jumps to December 2010, with a brief note from
Dr. William Gonte mentioning Plaintiff's
“difficulty with a lot of headaches and some memory
issues.” (Id., PageID.596.) He was treating
these issues with prescription medications. (Id.)
Subsequent sessions mirrored these notes. (Id.,
PageID.591, 592 (March 2011, noting difficulty sleeping,
too), 593, 594.) In a January 2011 “To Whom It May
Concern” letter, Dr. Gonte wrote that Plaintiff's
head injury had caused photosensitivity. (Id.,
PageID.595.)
But in
May 2011, Dr. Gonte pronounced that Plaintiff “is doing
much better overall with her current medication, ” and
he advocated for “a more aggressive home program,
including pool walking . . . .” (Id.,
PageID.590.) The following month she continued “doing
much better overall, ” with sunglasses helping
“significantly.” (Id., PageID.589.) But
dizziness sometimes rendered her unable to walk.
(Id.) In July, she complained of morning stiffness,
but Dr. Gonte observed that she was “doing much
better” and “[h]er headaches are abating . . .
.” (Id., PageID.588.) The physical therapy was
helping, Plaintiff reported at the next session, in August.
(Id., PageID.587.) “Overall she seems to have
made some good strides toward recovery” and her
migraines were less troublesome. (Id.) Walking in
the pool was helping too. (Id., PageID.596.)
By
September, she was doing so well that Dr. Gonte was
considering discharging her from the occupational and
physical therapy program. (Id., PageID.595.) The
progress continued into December. (Id., PageID.582
(“She has been having less frequent headaches, and is
doing well with her home program, ” and while cold
weather irritated her, “she is tolerating it better . .
. .”); 583 (“She is doing fairly well, ”
although she noticed her condition worsened with weather
changes, but “[h]er headaches have been under control
and she is sleeping better.”); 584 (“She is doing
well with her current treatment regimen. She also states she
is having less [sic] headaches . . . .”).)
At the
start of 2012, Dr. Gonte wrote that Plaintiff was symptomatic
but now tolerated her headaches, continued “to make
good progress, ” and had made “good gains with
her strength.” (Id., PageID.581; see also
id., PageID.580 (noting her progress in February
2012.).) In spring 2012, she was “increasing her
activity level and strengthening program, ” although
Dr. Gonte noticed lumbar radiculitis during the session and
also wrote that her right leg was numb and weak, a condition
which worsened in May. (Id., PageID.578-79.)
In June
2012, Dr. Gonte noted continued progress but also
acknowledged her persistent complaints of headaches and lower
back pain that radiated to her legs. (Id.,
PageID.577.) The following month was marked by gradual
improvement, including with her headaches. (Id.,
PageID.576; see also id., PageID.573 (noting her
improvements but recognizing she remained symptomatic); 574
(noting in September 2012 that “[o]verall she continues
to improve though she is still quite symptomatic, ” and
also that her headaches and “overall generalized
pain” had improved); 575 (noting in August that she
continued to improve and “[h]er headaches are better
controlled, but she is still symptomatic at times, ”
though she did better when “she takes precaution and
preventative measures”).) But in December 2012, she
complained of a severe headache and a recent
“exacerbation.” (Id., PageID.572.) Yet,
the next month, her headaches had improved. (Id.,
PageID.570.) After a thorough examination, Dr. Gonte found no
abnormalities: her neck was supple with full range of motion,
her extremities had full range of motion, her back had full
range of motion and no spasms, her mental status was at 10
out of 10, and her strength was at 5 out of 5. (Id.)
At the next session, the examination results were the same
and she was “doing very well.” (Id.,
PageID.568.) Dr. Gonte “encouraged her to increase her
activity level and continue her strengthening program.”
(Id., PageID.569.)
Plaintiff's
progress persisted into 2013. At a January consultation with
Dr. Gonte, Plaintiff's examination results were normal.
(Id., PageID.396) In particular, she had
“[f]ull range of motion in the neck” and
“[g]ood shoulder shrugs, no winging of scapula, ”
and her “[e]xtremities had full range of motion,
” her mental status was “10/10, ” her
muscle strength was “5/5, ” her gait was
“good, ” and her back had “full range of
motion with no spasm noted.” (Id.) Plaintiff
had been getting these good results in part due to her
“home program, ” and her “medication
regimen seem[ed] to be controlling her major problems.”
(Id.) In April, the examination results were the
same and Dr. Gonte wrote that “[s]he is doing very
well.” (Id., PageID.398.) Yet, without any
intervening medical reports, in April 2014 Dr. Gonte
scribbled a note that Plaintiff “is unable to work
indefinitely, ” and that her diagnosis was
“closed head injury” and “lumbar &
cervical radic.” (Id., PageID.423.)
Beginning
in March 2011, Plaintiff started physical therapy.
(Id., PageID.623.) The “subjective data”
section of the initial report mentions Plaintiff's
January 2005 accident, when the problems began, and also a
May 2007 car accident. (Id.) Her pain-centered in
her thoracic and lumbar spine and radiating down her right
leg-typically stayed at 7 out of 10 on a visual analogue
scale, although it worsened with movement or physical
activities. (Id.) Plaintiff believed that “her
gait is affected due to her ongoing symptoms.”
(Id.) Since starting physical therapy, her condition
had improved. (Id.) Generally, remaining in a static
posture relieved her symptoms. (Id.) Sudden turns of
her neck produced cervical spinal pain, at about a 4 out of
10. (Id.) She was beset by headaches every other
day. (Id.) All of these issues made sleep difficult,
but medications helped her get rest. (Id.) Still in
the “subjective” section, the report notes that
she had “restrictions with her light daily
activities” and she “requires assistance with
household chores and light daily activities.”
(Id.)
On
examination, her back was tender to the touch and displayed
muscle spasms. (Id.) Her cervical spine had full
range of motion (with pain) during protrusion and flexion;
but on retraction and extension her range of motion was
reduced by 25 percent. (Id.) Her thoracic spine had
full range of motion with pain (sometimes severe); her lumbar
spine had “major restriction and . . . severe
pain” during “extension in standing, ”
while other movements with the lumbar spine produced some
pain and had less significant restrictions. (Id.)
Her arms and legs had full range of motion, although her
right knee experienced some pain. (Id.,
PageID.623-24.) Her strength was three to four out of five
throughout. (Id., PageID.624.) Her sensation was
inconsistent, there was radiating pain in her right thigh,
and her gait was independent but slow and guarded.
(Id.) On daily activities, she was independent in
self care but needed “assistance with mild or heavy
impact daily activities and light household chores.”
(Id.)
At a
subsequent session in March 2011 she complained of wrist pain
(rating it at about 5 to 6 out of 10) and right shoulder pain
(5 out of 10). (Id., PageID.621.) The examiner found
decreased grip strength and decreased range of motion with
her wrists and right shoulder. (Id.)
The
following month, Plaintiff continued to complain of pain.
(Id., PageID.617.) Her right knee, in particular,
was bothering her. (Id.) The pain abated with rest
or medication. (Id.) Her headaches continued
intermittently, and she took medication for them.
(Id.) Occasional dizziness was also present.
(Id.) Her physical examination results were about
the same as the previous month's: she had full range of
motion in many measures, but pain was present, and her
motions with her lumbar spine, in particular, were
restricted; her strength remained at three to four out of
five; her gait remained slow and guarded; and she continued
to restrict her daily activities. (Id.,
PageID.617-18.) At a second session that same month, she
renewed her complaints of wrist pain and noted her wrists
sometimes swelled, although the pain was not quite as severe
as it had been and she was currently experiencing no right
shoulder pain. (Id., PageID.615.) After an
assessment, the therapist noted “gain in [range of
motion] in her wrists and shoulder, and also gains in grip
strength.” (Id., PageID.616.)
In May
2011, she told the physical therapist that pain in her spine
and right knee was ongoing, as were migraine headaches,
tinnitus (four to five days a week), and occasional dizziness
and nausea. (Id., PageID.610.) Her examination
results were similar to those above, e.g., some
movements of the spine were restricted and some produced
pain. (Id.) Her wrist pain persisted as well.
(Id., PageID.608.) She could lift a coffee mug, but
carrying it 15 to 20 feet would fatigue her wrists and force
her to set it down. (Id.) The range of motion in her
wrists and right shoulder had slightly decreased, as had her
grip strength. (Id.)
At a
June 2011 session with the physical therapist, she described
neck pain at about 6 out of 10, thoracic region pain at 5,
lumbar pain at 7.5, and right knee pain at 2. (Id.,
PageID.602.) The objective examination findings were
essentially the same as the earlier ones. (Id.,
PageID.602-03.) Her wrists' range of motion had increased
slightly, although they hurt too much to test her strength.
(Id., PageID.600.)
Plaintiff
was discharged from therapy in September 2011. (Id.,
PageID.566.) The ending report noted her continuing pain,
disturbed sleep, restricted range of motion, reduced strength
in her extremities and back, and reports of inconsistent
sensation. (Id.) The report also states that
Plaintiff was “completely dependent for all of her
self-care and light daily activities.” (Id.)
Many years later, Plaintiff asserted that the physical
therapy had only exacerbated her symptoms. (Id.,
PageID.519.)
At an
annual physical in June 2014 with Dr. Fouad Batah, the
examination uncovered no abnormalities, although it appears
that her musculoskeletal system was not examined.
(Id., PageID.402.) A brain MRI from that same month
was unremarkable. (Id., PageID.413.) The following
month, she returned with severe daily headaches that blurred
her vision. (Id., PageID.406.) The examination again
produced normal results, without mention of her
musculoskeletal system except a note that her neck was
supple. (Id., PageID.407-08.)
In
September 2014, psychiatrist Dr. L. Imasa evaluated
Plaintiff's mental health as part of the application for
Social Security benefits. (Id., PageID.416.)
Plaintiff complained of concentration and memory troubles, as
well as anxiety and depression, crying spells,
self-isolation, and sleeping problems. (Id.) At the
time, Plaintiff lived with her mother but could not help
around the house. (Id., PageID.417.) Though she did
not regularly see a psychiatrist, she took an antidepressant
and Dr. Imasa believed “[f]urther testing such as
psychological testing would be beneficial with regard to her
current mental status and also in reference to the physical
symptoms . . . to see how she is doing physically.”
(Id., PageID.418.) Dr. Imasa noted, twice, that
Plaintiff's physical treatments had been going well,
information she apparently received from Dr. Gonte's
notes. (Id., PageID.416, 418.) During the
examination Plaintiff was “in good contact with
reality, ” said she felt “okay” about
herself, and “responded to questions
spontaneously.” (Id., PageID.417.)
Nonetheless, Dr. Imasa concluded that Plaintiff “is not
able to function on a fully sustained basis until there is
some form of clearance with regard to her physical condition
as well as follow-up with her mental state.”
(Id., PageID.418.)
In
October 2014, psychologist Dr. Kathy Morrow reviewed
Plaintiff's records as part of the application process.
(Id., PageID.173-74.) She determined the following:
Plaintiff had no limitations in adaptations, understanding,
memory, or social interaction, but did have limitations in
sustaining concentration and persistence; moderate
limitations in carrying out detailed instructions and
maintaining attention and concentration for extended periods;
and no significant limitation in all other abilities, which
included carrying out short and simple instructions,
performing activities on a regular schedule, sustaining
ordinary routines without supervision, working near others
without distraction, making simple work-related decisions,
and completing a normal workday at a consistent pace without
distractions from psychological-based symptoms.
(Id., PageID.173.) Dr. Morrow explained her opinion
by noting that Plaintiff was not in psychological treatment
and her “overall daily functioning appears to be
intact.” (Id., PageID.173-74.)
In July
2015, testing showed that Plaintiff had an ovarian mass,
which further examination revealed was benign. (Id.,
PageID.431-32, 436-37.) Associated symptoms included
abdominal and pelvic pain and bloating. (Id.,
PageID.447.) She was diagnosed with endometriosis.
(Id., PageID.437.) She had a hysterectomy and other
procedures done later that year and the next. (Id.,
PageID.443-46, 650-69.) As one report explained, Plaintiff
“underwent a total abdominal hysterectomy, bilateral
salpingo-ooph[o]rectomy and extensive lysis of adhesions. The
procedure was complicated by right ureteral transection.
Urology was consulted intraoperatively and performed a JJ
stent placement, ureterostomy and cystoscopy. A JP drain was
placed intraoperatively.” (Id., PageID.444.)
During the surgery she suffered acute blood loss, requiring a
transfusion. (Id.) Apparently, too, her ureter
implant-which had received when she was four-was
“nicked” during the removal of the cyst.
(Id., PageID.519.)
During
this period she continued receiving treatments for this and
other uterine and related issues. (Id.,
PageID.628-69.) Her relevant complaints during this period
included, at various times, vomiting and flank and abdominal
pain. (Id., PageID.630, 632, 636.) She also
mentioned her ongoing issues with back and joint pain, muscle
weakness, dizziness, anxiety, and depression. (Id.,
PageID.638, 646.) The examination results at the sessions for
these treatments were normal. (Id., PageID.630, 633,
638, 646-47.) In April 2016, a ureteral obstruction
developed, which the doctor cautioned was “a very
difficult problem” requiring a “complicated
surgery” to ...