Vermeesch v. Comm'r of Soc. Sec., Case No. 14-10619
| Decision Date | 11 March 2015 |
| Docket Number | Case No. 14-10619 |
| Parties | JEANANN VERMEESCH, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Eastern District of Michigan |
REPORT AND RECOMMENDATION CROSS-MOTION FOR SUMMARY JUDGMENT (Dkt 14, 16)
On February 10, 2014, plaintiff filed the instant suit seeking judicial review of the Commissioner's unfavorable decision disallowing benefits. (Dkt. 1). Pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(b)(3), District Judge Lawrence P. Zatkoff1 referred this matter to the undersigned for the purpose of reviewing the Commissioner's decision denying plaintiff's claims for period ofdisability, disability insurance and supplemental security income benefits. (Dkt. 3). This matter is before the Court on cross-motions for summary judgment. (Dkt. 12, 14). Plaintiff also filed a reply brief in support of her motion for summary judgment. (Dkt. 18). These motions are now ready for report and recommendation.
Plaintiff filed the instant claim for disability insurance and supplemental security income benefits on January 11, 2012, alleging disability beginning May 15, 2011. (Dkt. 14, Pg ID 471). Plaintiff's claims were initially denied by the Commissioner on March 28, 2012. (Dkt. 10-2, Pg ID 47). Plaintiff requested a hearing and on October 10, 2012, plaintiff testified before Administrative Law Judge ("ALJ") Mary Ann Poulose who considered the case de novo. (Dkt. 10-2, Pg ID 66-93). In a decision dated November 8, 2012, the ALJ found that plaintiff was not disabled. (Dkt. 10-2, Pg ID 47-62). Plaintiff requested a review of this decision, and the ALJ's decision became the final decision of the Commissioner when the Appeals Council, on January 7, 2014, denied plaintiff's request for review. (Dkt. 10-2, Pg ID 32-34); 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 thatplaintiff's motion for summary judgment be DENIED, that defendant's motion for summary judgment be GRANTED, that the findings of the Commissioner be AFFIRMED.
Plaintiff was born in 1967 and was 44 years old on the alleged disability onset date. (Dkt. 10-2, Pg ID 60). Plaintiff had past relevant work as a data entry clerk and a secretary. Id. The ALJ applied the five-step disability analysis to plaintiff's claims and found at step one that plaintiff had not engaged in substantial gainful activity since May 15, 2011, the alleged on-set date. (Dkt. 10-2, Pg ID 49). At step two, the ALJ found that plaintiff had the following severe impairments: status post lumbar laminectomies, venous insufficiency, obstructive sleep apnea, fibromyalgia, migraines, obesity, mild carpal tunnel syndrome, cervical degenerative disc disease, and generalized anxiety disorder/depression. Id. Plaintiff's irritable bowel syndrome, hyperlipidemia with fatty liver infiltration and mild knee osteoarthritis were deemed medically determinable impairments that were not severe. (Dkt. 10-2, PgID 50). At step three, the ALJ found no evidence that plaintiff's combination of impairments met or equaled one of thelistings in the regulations. (Dkt. 10-2, PgID 50-51).
The ALJ determined that plaintiff had the residual functional capacity (RFC) to perform light work, except:
she can sit for up to six hours in an eight-hour day; stand/walk for up to six hours in an eight-hour day; lift up to eight pounds; occasionally climb, crouch, crawl, stoop, kneel; frequently, but not constantly, use her upper extremities; she is limited to unskilled work activity; and she must avoid exposure to occupational hazards, such as moving machinery, unprotected heights, and commercial driving.
(Dkt. 10-2, Pg ID 53). At Step Four, the ALJ found that plaintiff could not perform her past relevant work as a data entry clerk. (Dkt. 10-2, Pg ID 60). However, the ALJ determined that, considering plaintiff's age, education, experience, and RFC, there were jobs that exist in sufficient numbers that plaintiff can perform and therefore, plaintiff had not been under a disability from the alleged onset date through the date of the decision. (Dkt. 10-2, Pg ID 60-61).
Plaintiff argues that the ALJ's decision of non-disability is not supported by substantial evidence because the testimony provided by the Vocational Expert (VE) was based upon inaccurately posed hypothetical questions that failed to describe plaintiff's mental and physical impairments. (Dkt. 12, PgID 476).Plaintiff concedes that substantial evidence may be produced through testimony of the VE in response to hypothetical questions, but only if those hypothetical questions accurately portray the claimant's physical and mental impairments. Varley v. Sec'y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
Plaintiff argues that the ALJ made a reversible error by failing to address plaintiff's severe impairments of generalized anxiety disorder and depression with non-exertional limitations in the RFC. (Dkt. 12, PgID 477-478). Plaintiff indicates that the Medical Source Statement completed by her primary care physician, Mark Gerold, M.D., states that emotional factors contribute to her symptoms, her functional limitations, and her ability to handle ordinary work stress. (Dkt. 12, PgID 478; Dkt. 10-8, PgID 425-426).
Plaintiff contends an ALJ must consider work related mental activities such as the ability to understand, carry out and remember instructions, make work-related judgments, respond appropriately to supervision, co-workers and work situations and deal with changes in the routine work setting, SSR 96-8p; the ALJ's failure to include any of these activities in the hypothetical posed to the VE rendered it, and the VE's testimony regarding jobs plaintiff could perform based upon that testimony, defective. Id.
Plaintiff further argues that the ALJ's RFC is likewise deficient because it is devoid of any restriction as to speed or pace of work despite the ALJ's finding that plaintiff has moderate limitations related to concentration, persistence and pace. (Dkt. 12, PgID 478-479; Dkt. 10-2, PgID 52). Plaintiff asserts that the limitation to unskilled work is not adequate to address plaintiff's moderate restriction in her concentration, persistence and pace capabilities. See Edwards v. Barnhardt, 383 F.Supp.2d 920, 930-31 (E.D.Mich. 2005).
Plaintiff also contends that substantial evidence does not support the findings of the Commissioner because the RFC fails to accurately portray the physical limitations imposed by plaintiff's carpel tunnel syndrome, migraine headaches and venous insufficiency. (Dkt. 12, PgID 479-483).
First, plaintiff claims that the ALJ should have imposed greater restrictions for the use of her upper extremities based upon the objective findings of her neurologist, David Udehn, M.D. and plaintiff's testimony at the hearing. (Dkt. 12, PgID 479-480). Specifically, plaintiff cites the positive Tinel's sign and positive Phalen's sign adduced from testing conducted by Dr. Udehn, her increasing use of wrist splints to treat her carpel tunnel syndrome, as well as her testimony at the hearing that she drops things from time to time and gets shooting pains in her arms with numbness and tingling in her hands to support her argument that the ALJshould have restricted plaintiff to only "occasional," and not "frequent," use of her upper extremities. Plaintiff argues that her understated upper extremity limitations renders the RFC and the hypothetical posed to the VE invalid and they cannot be relied upon as substantial evidence to support the findings of the Commissioner. (Dkt. 12, PgID 480).
Second, plaintiff asserts that the RFC's silence as to any restrictive factor to accommodate plaintiff's severe impairment of migraine headaches amounts to reversible error. (Dkt. 12, PgID 482). Plaintiff testified at hearing that she suffers at least four migraine headaches a month, that her headaches last anywhere from three to four hours to all day and cause her to vomit, or feel nauseated, even with anti-nausea medication. (Dkt. 12, PgID 481; Dkt. 10-2, PgID 85). Plaintiff's brief notes treatment with two different prescription drugs. (Dkt. 12, PgID 481). Plaintiff concludes that "substantial evidence fails to support the findings of the Commissioner when the 'severe' impairment of migraine headaches lacks any restriction within the RFC." (Dkt. 12, PgID 482).
Similarly, plaintiff argues that the absence of any restrictions related to plaintiff's severe impairment of venous insufficiency also renders the RFC deficient. Notwithstanding plaintiff's testimony that she can walk only four or five aisles at Meijer before she needs to sit down, that she has been prescribedbilateral knee-high compression stockings and Dr. Gerold's opinion that she should elevate her legs for twenty minutes every three hours, the RFC provides that plaintiff may sit, stand or walk for up to six hours in an eight-hour workday. Plaintiff argues the positional limitation in the RFC is inconsistent with her severe impairment of venous insufficiency and hence this case must be remanded for further proceedings to address this inconsistency. (Dkt. 12, PgID 484).
Finally, Plaintiff contends that substantial evidence does not support the Commissioner's findings because the ALJ failed to adhere to the treating source rule, improperly discounting the opinion of plaintiff's primary care physician, Dr. Gerold. (Dkt. 12, PgID 483).
Plaintiff first challenges the ALJ's rationale for assigning Dr. Gerold's opinion little weight because it is a "check mark" form without any narrative explanation and is not supported by the objective medical evidence of record. (Dkt. 12, PgID 484). Plaintiff argues that Dr. Gerold's opinions are...
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