United States District Court, N.D. Ohio, Eastern Division
KATHLEEN F. HARDMAN, Plaintiff,
NANCY BERRYHILL, COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
DONALD C. NUGENT
REPORT AND RECOMMENDATION OF MAGISTRATE
J. LIMBERT, UNITED STATES MAGISTRATE JUDGE
Kathleen F. Hardman (“Plaintiff”) requests
judicial review of the final decision of the Commissioner of
Social Security Administration (“SSA”)
(“Defendant”) denying her applications for
Disability Insurance Benefits (“DIB”) and
Supplemental Security Income (SSI”). ECF Dkt. #1. In
her brief on the merits, filed on April 17, 2017, Plaintiff
asserts that the administrative law judge (“ALJ”)
failed to: (1) articulate a valid reason at Step Two when he
failed to find that her depression and anxiety conditions
were severe impairments; (2) provide valid reasons for
rejecting the opinions of her treating sources Dr. Vitarella
and Kristen Drollinger; (3) properly evaluate Plaintiff's
credibility; and (4) correctly find that Plaintiff could
return to her past relevant work as a bank teller. ECF Dkt.
#14. On June 28, 2017, Defendant filed a brief on the merits.
ECF Dkt. #17. On July 10, 2017, Plaintiff filed a reply
brief. ECF Dkt. #18.
following reasons, the undersigned recommends that the Court
AFFIRM the ALJ's decision and DISMISS Plaintiff's
complaint in its entirety WITH PREJUDICE.
FACTUAL AND PROCEDURAL HISTORY
December 2013, Plaintiff protectively filed applications for
DIB and SSI alleging disability beginning December 2, 2013
due to fibromyalgia, depression, anxiety, a stroke, memory
problems, fatigue, and colitis. ECF Dkt. #11 at 195-206,
Plaintiff's applications were denied initially and upon
reconsideration. Id. at 80-133, 136-163. Following
the denial of her applications, Plaintiff requested an
administrative hearing, and on September 24, 2015, an ALJ
conducted the hearing and accepted the testimony of
Plaintiff, who was represented by counsel, and a vocational
expert (“VE”). Id. at 34, 164. On
October 9, 2015, the ALJ issued a decision denying
Plaintiff's applications for DIB and SSI. Id. at
16-26. Plaintiff requested a review of the hearing decision,
and on September 23, 2016, the Appeals Council denied review.
Id. at 1, 14.
November 17, 2016, Plaintiff filed the instant suit seeking
review of the ALJ's decision. ECF Dkt. #1. Plaintiff
filed a brief on the merits on April 17, 2017. ECF Dkt. #14.
On June 28, 2017, Defendant filed a merits brief. ECF Dkt.
#17. Plaintiff filed a reply brief on July 10, 2017. ECF Dkt.
decision, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since December 2, 2013, her
alleged onset date. ECF Dkt. #11 at 21.
found that Plaintiff had the severe impairments of
fibromyalgia and colitis. ECF Dkt. #11 at 21. He further
found that these impairments, individually or in combination,
did not meet or equal any of the Listing of Impairments in 20
C.F.R. Part 404, Subpart P, Appendix 1
(“Listings”). Id. at 23.
thereafter determined that Plaintiff had the residual
functional capacity (“RFC”) to perform light work
with limitations of occasional kneeling and crawling, never
climbing ladders, ropes or scaffolds, and avoiding workplace
hazards such as unprotected heights and dangerous, moving
machinery. ECF Dkt. #11 at 23.
went on to find that based upon the RFC that he determined
for Plaintiff and the VE's testimony, Plaintiff could
perform her past relevant work as a bank teller. ECF Dkt. #11
at 25. He therefore found that Plaintiff was not under a
disability as defined in the Social Security Act from
December 2, 2013, through the date of his decision.
STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY
must proceed through the required sequential steps for
evaluating entitlement to social security benefits. These
1. An individual who is working and engaging in substantial
gainful activity will not be found to be
“disabled” regardless of medical findings (20
C.F.R. §§ 404.1520(b) and 416.920(b) (1992));
2. An individual who does not have a “severe
impairment” will not be found to be
“disabled” (20 C.F.R. §§ 404.1520(c)
and 416.920(c) (1992));
3. If an individual is not working and is suffering from a
severe impairment which meets the duration requirement, see
20 C.F.R. § 404.1509 and 416.909 (1992), and which meets
or is equivalent to a listed impairment in 20 C.F.R. Pt. 404,
Subpt. P, App. 1, a finding of disabled will be made without
consideration of vocational factors (20 C.F.R. §§
404.1520(d) and 416.920(d) (1992));
4. If an individual is capable of performing the kind of work
he or she has done in the past, a finding of “not
disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));
5. If an individual's impairment is so severe as to
preclude the performance of the kind of work he or she has
done in the past, other factors including age, education,
past work experience and residual functional capacity must be
considered to determine if other work can be performed (20
C.F.R. §§ 404.1520(f) and 416.920(f) (1992)).
Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992).
The claimant has the burden to go forward with the evidence
in the first four steps and the Commissioner has the burden
in the fifth step. Moon v. Sullivan, 923
F.2d 1175, 1181 (6th Cir. 1990).
STANDARD OF REVIEW
the Social Security Act, the ALJ weighs the evidence,
resolves any conflicts, and makes a determination of
disability. This Court's review of such a determination
is limited in scope by §205 of the Act, which states
that the “findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive.” 42 U.S.C. §405(g).
Therefore, this Court's scope of review is limited to
determining whether substantial evidence supports the
findings of the Commissioner and whether the Commissioner
applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
substantial-evidence standard requires the Court to affirm
the Commissioner's findings if they are supported by
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Cole
v. Astrue, 661 F.3d 931, 937, citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d
842 (1971) (citation omitted). Substantial evidence is
defined as “more than a scintilla of evidence but less
than a preponderance.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234 (6th Cir. 2007). Accordingly, when
substantial evidence supports the ALJ's denial of
benefits, that finding must be affirmed, even if a
preponderance of the evidence exists in the record upon which
the ALJ could have found plaintiff disabled. The substantial
evidence standard creates a “‘zone of choice'
within which [an ALJ] can act without the fear of court
interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir.2001). However, an ALJ's failure to follow
agency rules and regulations “denotes a lack of
substantial evidence, even where the conclusion of the ALJ
may be justified based upon the record.” Cole,
supra, citing Blakely v. Comm'r of Soc.
Sec., 581 F.3d 399, 407 (6th Cir.2009) (citations
RELEVANT MEDICAL EVIDENCE
RELEVANT PHYSICAL IMPAIRMENTS
was diagnosed with colon cancer in 2009 and underwent a
colectomy. ECF Dkt. #11 at 366. She underwent chemotherapy
thereafter but did not complete the course. Id. She
underwent a CT scan of her chest on December 9, 2010 and had
a left upper lobe tumor that was positive for non-small-cell
adenocarcinoma. Id. The tumor was excised.
11, 2012, Plaintiff underwent a colonoscopy to obtain
biopsies due to her complaints of diarrhea and left lower
quadrant abdominal pain and history of lymphocystic colitis.
ECF Dkt. #11 at 360. The postoperative diagnosis was sigmoid
diverticulum. Id. at 410. The biopsy revealed
lymphocytic colitis. Id. at 409, 759.
April 17, 2013, Plaintiff presented to the emergency room
complaining of exacerbation of her fibromyalgia pain in her
right shoulder and arm. ECF Dkt. #11 at 524, 656. Plaintiff
explained that she had been on Cymbalta for the last 8 months
for financial reasons and she was unable to see her treating
physician for the same reason. Id. Physical
examination revealed limited range of motion in the right
shoulder secondary to pain with tenderness to palpation.
Id. The emergency room physician explained that the
emergency room did not treat chronic pain and she needed to
see her treating physician. Id. However, he
diagnosed Plaintiff with acute right shoulder and arm pain
and a history of fibromyalgia, gave her Percocet, and sent
her home with NSAIDs. Id. On May 3, 2013, Plaintiff
presented to Dr. Brine for her complaints of fatigue and
joint pain in her hips, shoulders, neck and hands. ECF Dkt.
#11 at 566. He noted Plaintiff's history of fibromyalgia
and her complaints of worsening pain. Id. Upon
examination, Dr. Brine noted Plaintiff's pain in the
cervical spine with range of motion, restricted bending,
restricted external rotation of the shoulders, joint swelling
of the hands, pain to palpation, and mild crepitus of the
shoulders and knees. Id. at 567. He diagnosed
Plaintiff with arthritis at multiple sites not otherwise
specified, fibromyalgia, and colitis. Id. He ordered
blood tests for arthritis, thyroid and autoimmune diseases,
as well as a urinalysis, which came back essentially normal.
Id. at 567-568. He started Plaintiff on medication
for her fibromyalgia. Id. at 568.
10, 2013, Plaintiff presented to Dr. Brine for follow up of
her fibromyalgia. ECF Dkt. #11 at 562. She reported improving
symptoms, such as improved functionality and insomnia, since
beginning NSAIDs with Flexeril at night. Id. She did
complain of increased anxiety. Id. Physical
examination revealed positive joint pain to palpation, mild
swelling, mild crepitus to the shoulder and knees, and
multiple trigger point tenderness. Id. at 564. Dr.
Brine diagnosed arthritis at multiple sites not otherwise
specified, fibromyalgia, colitis not otherwise specified, and
depression with anxiety. Id. He refilled
Plaintiff's medications, added Sertraline for
Plaintiff's depression with anxiety, and he suggested
aquatic therapy. Id.
presented to her treating physician, Dr. Vitarella, on July
22, 2013 and she reported that her fibromyalgia pain was
improving, although she still complained of joint pain,
stiffness and swelling. ECF Dkt. #11 at 484, 557. Dr.
Vitarella's physical examination yielded normal results.
Id. at 486. She diagnosed Plaintiff with
fibromyalgia and depression with anxiety. Id. She
prescribed medications for Plaintiff and encouraged her to do
aerobic exercise 3-5 times per week for 30 minutes at a time.
Id. Plaintiff reported that the pain was
controllable at this time and Dr. Vitarella indicated that if
the pain became too intense, she would prescribe Tramadol.
October 16, 2013, Plaintiff presented to Dr. Vitarella for a
reaction to Zoloft. ECF Dkt. #11 at 481, 549. Dr. Vitarella
noted that Plaintiff presented with significant life
stressors as her sister was critically ill and had almost
died three times in that month and another sister had died in
November, which made late October and November harder for
her. Id. She also complained of being itchy and
having anxiety. Id. Dr. Vitarella found no
abnormalities upon physical examination and she diagnosed
fibromyalgia, depression with anxiety, and prescribed
Vistaril for anxiety and itching. Id. at 483.
October 17, 2013, Plaintiff presented to the emergency room
explaining that she developed dizziness the night prior, with
some staggering, slurring of her speech, and nausea. ECF Dkt.
#11 at 506, 641. Tests were conducted and Plaintiff was
diagnosed with nonspecific dizziness and transient dysathria
resolved, with no evidence of cerebrovascular ischemia.
Id. at 507, 650.
October 18, 2013, Plaintiff presented to Dr. Frimpong for a
follow up from her recent emergency room visit for a
transient ischemic attack (“TIA”). ECF Dkt. #11
at 479. She said that she had no slurred speech, blurry
vision or neurological deficits since her October 16, 2013
TIA. Id. She reported that her mood had improved
with Zoloft. Id. Upon examination, Dr. Frimpong
found that Plaintiff was alert and oriented and had a normal
examination. Id. He diagnosed her with fibromyalgia,
depression with anxiety, and TIA. Id. at 479-480.
November 11, 2013, Plaintiff presented to Dr. Frimpong for a
follow up from her recent emergency room visit for a TIA. ECF
Dkt. #11 at 477. She said that she had no slurred speech,
blurry vision or neurological deficits since her October 16,
2013 TIA. Id. She reported that her mood had
improved with Zoloft. Id. Upon examination, Dr.
Frimpong found that Plaintiff was alert and oriented and had
a normal examination. Id. He diagnosed her with
depression with anxiety, TIA, and hyperlipidemia.
January 9, 2014, Plaintiff presented to Dr. Vitarella for
follow up of her medications. ECF Dkt. #11 at 542, 637. She
complained of increasing body aches and stiffness which
worsened in the cold. Id. She related that her
fibromyalgia pain had been flaring as of late. Id.
Plaintiff also complained of a rash on her face, elbow and
knees over the last two months, and a nearly 30 pound weight
gain over the past year. Id. Upon physical
examination, Dr. Vitarella noted a rash on Plaintiff's
face and in her elbow creases. Id. She diagnosed
Plaintiff with fibromyalgia, TIA, rash, and weight gain.
Id. at 543. Dr. Vitarella ordered blood tests and
cultures and modified Plaintiff's medications and added
Amitriptyline and a steroid cream. Id.
January 23, 2014, the lab cultures showed suspected staph
infection on Plaintiff's neck and face. ECF Dkt. #11 at
620. She was prescribed Keflex and Acyclovir. Id.
March 4, 2014, Dr. Vitarella completed a physical RFC
questionnaire. ECF Dkt. #11 at 627. She opined that Plaintiff
was limited to lifting and/or carrying up to 8 pounds and
could do so for only 1/3 of an 8-hour workday due to her
refractory fibromyalgia despite medications. Id. She
further opined that Plaintiff's abilities to sit and
stand/walk were not affected by her fibromyalgia and
Plaintiff could only occasionally climb, balance, stoop,
crouch, kneel and crawl because of her fibromyalgia.
Id. Dr. Vitarella also opined that Plaintiff had no
restrictions in dealing with heights, chemicals, dust, noise,
fumes, or vibrations, but had to avoid moving machinery and
temperature extremes due to her fibromyalgia. Id.
She indicated that Plaintiff would be absent from work about
2 days per month due to pain or fatigue and would be off-task
up to 10% of the workday due to pain or fatigue. Id.
at 628. Dr. Vitarella opined that Plaintiff would need to lie
down for ten minutes throughout the course of the workday,
would be able to use her hands up to 70% of the workday, and
would require about two unscheduled breaks per day if she
worked a sedentary job. Id.
31, 2014 progress notes from Dr. Vitarella show that
Plaintiff presented complaining of a worsening of her
fibromyalgia symptoms. ECF Dkt. #11 at 709. She was diagnosed
with fibromyalgia, depression with anxiety, colitis not
otherwise specified, abnormal weight gain, and gastric
esophageal reflux syndrome. Id. at 711. She was
referred to a rheumatologist as she had never been to one and
the Elavil that was prescribed for her fibromyalgia pain was
not helping. Id.
13, 2014, Plaintiff presented to Dr. Vitarella complaining of
a two-week history of swelling in her legs, feet, hands and
chest, along with shortness of breath and muscle weakness.
ECF Dkt. #11 at 706. She was concerned with her symptoms due
to her sister's death from congestive heart failure and
her other sister's diagnosis with the disease.
Id. Plaintiff denied chest pain or pressure or fever
or chills, but indicated that she had arm and leg muscle
aches. I d. Physical examination was normal, except
for mild soft swelling in the feet and ankles. Id.
at 707. Plaintiff was diagnosed with shortness of breath,
edema, depression with anxiety, hyperlipidemia, fibromyalgia,
fatigue and malaise, and myalgia. Id. She was sent
for an echocardiogram and blood tests were ordered.
presented to the emergency room on July 5, 2014 complaining
of lower extremity edema over the last month that had gotten
worse. ECF Dkt. #11 at 761. Physical examination revealed no
abnormalities and she was diagnosed with lower extremity
edema and given a prescription for compression stockings.
Id. at 761-762.
presented to Dr. Enders on July 7, 2014 complaining of
swollen feet and weight gain, although test results for such
conditions came back negative. ECF Dkt. #11 at 740. Some
edema was noted upon physical examination. Id. Dr.
Enders diagnosed Plaintiff with edema and weight gain and
ordered compression stocking and a 24-hour cortisol test.
presented to Dr. Enders on July 31, 2014 for the swelling of
her legs, which she reported had resolved with a dietary
modification. ECF Dkt. #11 at 738.
August 21, 2014, Plaintiff presented to Ms. Boville, a CRNP
for Dr. Vitarella, for her complaints of bilateral foot
swelling and follow up of her fibromyalgia and depression
with anxiety. ECF Dkt. #11 at 736. Plaintiff noted that her
health insurance changed and her medications may need changed
as a result. Id. Upon examination, Plaintiff's
medications were changed. Id.
presented to Dr. Enders on September 23, 2014 for an
evaluation of her fibromyalgia pain. ECF Dkt. #11 at 734. She
related that the Gabapentin medication that he prescribed
helped significantly, although she had occasional nerve pain
that was shocking in character. Id. Upon physical
examination, Dr. Enders diagnosed fibromyalgia, depression
with anxiety, and neuropathy. Id. He continued
Plaintiff's medications and started her on Sertaline
Hydrochloride for her depression with anxiety. Id.
October 15, 2014, Plaintiff presented to Dr. Enders for her
complaints of fibromyalgia pain. ECF Dkt. #11 at 732. She
reported that it was better for the most part and her
depression was better for the most part as well. Id.
Dr. Enders continued Plaintiff's medications.
Id. at 733.
8, 2014 progress notes from Dr. Enders, M.D., show that
Plaintiff presented for follow up and reported that she was
losing weight and still had some depression, but was feeling
better. ECF Dkt. #11 at 730. She indicated that she felt
overwhelmed due to her fibromyalgia and she reported more
pain since winter started. Id. She stated that her
fibromyalgia pain was better than it was, although she still
had problems concentrating. Id. Dr. Enders diagnosed