Pearl v. Commissioner of Social Security

          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 ...