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holding that the ALJ provided legally sufficient reasons for rejecting treating physician's opinion, including the fact that the physician's conclusions that plaintiff was "disabled" and "unemployable" were not entitled to any weight because those issues are specifically reserved to the Commissioner
Summary of this case from Messer v. Comm'r of Soc. Sec.Opinion
Civil Action 2:13-cv-934
03-16-2015
ALIMA BARAKA WHITE, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Magistrate Judge Elizabeth P. Deavers
OPINION AND ORDER
Plaintiff, Alima Baraka White, brings this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for Social Security Disability Insurance Benefits and Supplemental Security Income. This matter is before the Court for consideration of Plaintiff's Statement of Errors (ECF No. 14), the Commissioner's Memorandum in Opposition (ECF No. 19), Plaintiff's Reply (ECF No. 20), and the administrative record (ECF No. 10). For the reasons that follow, Plaintiff's Statement of Errors is OVERRULED and the Commissioner's decision is AFFIRMED.
I. BACKGROUND
Plaintiff filed her applications for benefits on March 29, 2010, alleging that she has been disabled since September 1, 2008, at age 29. (R. at 238-46, 255-58.) Plaintiff alleges disability as a result of narcolepsy and chronic hydrocephalus. (R. at 277.) Plaintiff's applications were denied initially and upon reconsideration. Plaintiff sought a de novo hearing before an administrative law judge. Administrative Law Judge Christopher B. McNeil (the "ALJ") held a hearing on January 11, 2012, at which Plaintiff, who was represented by counsel, appeared and testified. (R. at 74-88.) Charles A. Bonsett, M.D., testified via telephone as a medical expert. (R. at 70-73.) A vocational expert, Richard P. Oestreich, Ph.D. (the "VE"), also appeared and testified. (R. at 88-94.) On February 8, 2012, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act. (R. at 168-97.) On August 7, 2013, the Appeals Council denied Plaintiff's request for review and adopted the ALJ's decision as the Commissioner's final decision. (R. at 1-4.) Plaintiff then timely commenced the instant action.
II. HEARING TESTIMONY
A. Plaintiff's Testimony
Plaintiff testified that her last full-time job was at Walmart as a customer service manager. (R. at 76.) She stated that she was terminated from this position after she had a "sleep attack." (R. at 76-77.) Plaintiff noted, however, that Walmart documented that she was terminated due to attendance issues. (R. at 83-84.) When asked to describe her "sleep attack," Plaintiff stated that her "body basically was telling [her] [she] was tired.... And [she] just started hallucinating. [She] was wide aw[a]ke, but [she] was starting to hallucinate because [she] was . . . tired[] and [her] brain basically was just shutting down on [her]." (R. at 77.) When discussing her sleep attack at Walmart, Plaintiff acknowledged that she had been on her feet working for ten hours and that she had not been eating properly. (R. at 81.) Plaintiff also described another sleep attack that occurred when she was working as a temporary customer service employee. She stated that she "completely zoned out and ended up talking about daycare." (R. at 87.)
Plaintiff stated that the symptoms of her narcolepsy include sleep attacks, hostility, irritability, and trouble balancing. (R. at 78-79.) Plaintiff testified that her balance problems occur every day. (R. at 79.) Plaintiff described the symptoms of her cataplexy. She stated that it feels "like somebody's come up to you and just karate chopped you in the back of the legs." (Id.) She testified that cataplexy occurs anytime she is getting ready to go into a store. (Id.) For this reason, she uses a motorized cart to shop. If a cart is not available, she will shop as fast as she can or have somebody go shopping for her. Id.
Plaintiff next testified that she suffers from headaches a couple of times each month. (R. at 79-80.) She explained that she gets migraines, which make her sensitive to noise and/or light, irritate her, and cause her vision to blur. (R. at 79-80.) Plaintiff explained that she does not take prescription medications for her headaches; she usually just sleeps them off. (R. at 80.)
Plaintiff testified that she resides with her mother and her seven children. (R. at 82-83.) She stated that she takes care of her seven children and that her mother does not assist her. (R. at 83.) Finally, Plaintiff stated that she had been self-employed as a home healthcare aide for her grandmother and as a babysitter in the past. (R. at 84-85.)
B. Vocational Expert Testimony
The VE testified that the record reflects no past relevant work, but based on her testimony at the hearing, Plaintiff's past relevant employment includes a home healthcare aide, at the skilled, medium exertional level. (R. at 90-91.)
The ALJ proposed a series of hypotheticals to the VE regarding a hypothetical individual with Plaintiff's age, education, relevant work experience, and residual functional capacity ("RFC") (as assessed by the ALJ). (R. at 91-94.) The VE testified that the hypothetical individual could perform Plaintiff's past relevant work as a home-health aide. (R. at 92.) The VE also testified that approximately 5,000 unskilled, sedentary level jobs exist in the regional economy that the hypothetical individual could perform, including a telephone information clerk, an inspector, and a hand packer. (R. at 93-94.)
C. Medical Expert Testimony
Charles A. Bonsett, M.D. testified as a medical expert. (R. at 70-73.) Dr. Bonsett confirmed that he had reviewed the medical records in Plaintiff's case file. (R. at 71.) He concluded that Plaintiff's "principle" problems are her narcolepsy, cataplexy, congenital brain malformation, and low back problem. (R. at 71-72.) When asked whether Plaintiff met or equaled any listing, Dr. Bonsett testified as follows:
Well, the problem is unusual in that - the items she has are not specifically mentioned [in the Listings] [inaudible], but they are, in my opinion, severe and thus [] they merit the listing. The low back problem that she has would come under the category of [1.04]. And the problem that she has is at the [L5-S1] level, she has a problem with [inaudible] disk. She also has the vocal abnormality. She has what I would consider to be a kind of [inaudible] problem in the low spine. I think that her spine problem alone merits her rights for disability. In the putting her problems together, I don't think there's any doubt there needs to be a specific listing, if they had one. But I think in the way things are, I'd say that if she equals a listing, and which listing [] that she would equal, in my opinion, the nearest thing would be the category of seizures. And I don't know whether that would be acceptable or not. That would be [11.03] and I think that [] that's correct.(R. at 72-73.)
Dr. Bonsett stated that he thought Dr. Fulop's notes best described Plaintiff's condition and that Dr. Fulop was "taking great care" of Plaintiff. (R. at 73.) Plaintiff's counsel declined to examine Dr. Bonsett.
III. RELEVANT MEDICAL RECORDS
A. Olentangy Pain Clinic
On February 1, 2008, Plaintiff presented to Vasantha Kumar, M.D. for treatment for her chronic back pain. (R. at 388.) Dr. Kumar reviewed a MRI of her lumbar spine from 2005 and noted that it showed degenerative disk protrusions at her L3-4, L4-5, and L5-S1 levels. Id. He noted a right paracentral disk herniation at L5-S1, diffuse facet arthropathy throughout the lumbar spine, and no major canal stenosis. Id. On examination, Plaintiff was awake, alert, and in no distress. She ambulated without any help, with an antalgic gait. Id. Dr. Kumar noted that her cranial nerves were grossly within limits and that Kernig and Spurling signs were negative. (R. at 388.) Examination of her back showed no midline tenderness, mild lumbar paraspinal tenderness with myofascial spasm, and no trigger points. (R. at 389.) Her motor skills were 5/5 in bilateral arms and legs. Id. Finally, her straight-leg raise test and Patrick's test were negative. Id. Dr. Kumar noted that she had increased pain with flex and extension of her lumbar spine. Id.
B. Ohio State University ("OSU") Medical Center
In January 2007, Plaintiff was treated by Carole Miller, M.D. at OSU's Outpatient Neurosurgery Clinic for chronic lower-back pain. (R. at 403-404.) She reported that her pain is axial in nature, but causes occasional radiation down to her legs on the right side. Plaintiff denied any bowel or bladder dysfunction. Id. She reported that she occasionally has an unstable gait. Id. On physical examination, Dr. Miller noted that Plaintiff was alert and oriented, and that her upper and lower extremity strength was 5/5. Id. Dr. Miller noted that Plaintiff was able to stand on one leg, on tiptoes, on both legs, and on heels without any difficulty. Dr. Miller evaluated Plaintiff's gait and noted that she was able to walk heel-to-toe and with a normal gait. Id. In addition, Dr. Miller noted Plaintiff's straight-leg raise test was negative. Dr. Miller reviewed her MRI and found that it indicated mild disk herniation at L5-S1 that is paracentral in nature. Id. Dr. Miller recommended physical therapy, epidural steroid injections, and a repeated MRI of Plaintiff's brain.
On June 26, 2007, Plaintiff was seen by Ulysses J. Matalang, M.D. for a second opinion regarding her reported daytime sleepiness. Her Epworth Sleepiness Scale score was 21 out of 24 points. (R. at 396.) He noted that Plaintiff described episodes that are not "classic" for cataplexy, and he noted that it was not clear whether the she described incidents were true occurrences. Id. On examination, Plaintiff denied hypnagogic hallucinations or sleep paralysis, dreaming right away during naps, sleep apnea, and unusual behavior during sleep. Id. On August 30, 2007, Dr. Matalang saw Plaintiff for a follow-up. He noted that he was not able to obtain her past records from Riverside Hospital to determine what studies she has undergone and whether she really had narcolepsy. (R. at 393.) At the appointment, she scored a 21 out of 24 points on the Epworth Sleepiness Scale. (R. at 392.) Dr. Matalang noted that Plaintiff does not have significant obstructive sleep apnea to explain her symptoms. He recommended a Maintenance of Wakefulness test to determine whether she truly has a wakefulness tendency. (R. at 393.) Plaintiff never followed through with the test. (R. at 386.)
On February 28, 2008, Jeffrey Weiland, M.D., saw Plaintiff for a follow-up related to her narcolepsy. (R. at 386-87.) She reported that her alertness is very good on Ritalin. (R. at 386.) She reported that she does not nap or fall asleep inappropriately. Id. He noted that Plaintiff's main complaints were her knees giving out when walking and intermittent numbness and tingling in her arms and legs when she is sitting still. Id. Dr. Weiland was not convinced that cataplexy was the cause of her legs giving out, as she reported there was no emotional trigger for the occurrences. Id. On examination, Plaintiff demonstrated a normal range of motion, strength, and sensation in her lower extremities. Id. He concluded that Plaintiff seemed to be fairly alert and that her daytime alertness and narcolepsy was well controlled with Ritalin. Id. C. Neurological Associates, Inc.
Plaintiff began treating with neurologist, Dr. Fulop, on June 20, 2008. (R. at 477.) Plaintiff reported a long history of narcolepsy. Dr. Fulop noted that a multiple sleep latency test showed that Plaintiff had a mean sleep onset latency of two minutes and three REM sleep periods out of four naps. Id. Plaintiff reported that she had been on twenty milligrams of Ritalin, twice a day, for several years. At the time of this consultation, she was pregnant with her seventh child. Id. Plaintiff reported that she gets edgy and moody at times, but is not suicidal or depressed. Id. She reported that she has cataplexy when she laughs and that she rarely falls from cataplexy, but sometimes staggers and her knees buckle. Id. She reported that she knows how to "control" her cataplexy after all of these years. Id. Plaintiff also reported that she has had hypnagogic hallucinations and tends to talk in her sleep. She reported that despite her narcolepsy, she is a night owl and is alert late in the evening. Id. Plaintiff reported that she knows not to drive when she is drowsy. Dr. Fulop noted that despite her obesity, she has never had apnea. (R. at 477.)
On September 22, 2008, Dr. Fulop noted that Plaintiff had narcolepsy and cataplexy diagnosed at the age of 8. He opined that "She is surely disabled though Social Security disability has been denied several times. She is unemployable because she falls asleep at times and has cataplexy with emotion. She has cataplexy daily. It presents itself with mild weakness and shaking rigors as she tries to fight the weakness." (R. at 382.) He noted that Plaintiff had been prescribed twenty milligrams of Ritalin, two times per day. Id. He again noted that the Ritalin is "certainly helpful with maintaining alertness." Id.
On November 7, 2008, Dr. Fulop noted that Ritalin and Provigil have "definitely been helpful for her alertness. It also seems to stabilize her mood." (R. at 381.) He noted that OSU physicians, Drs. Weiland and Magalang, doubted that Plaintiff had cataplexy and found that she did not have apnea. Id. He noted that he, however, does think she has cataplexy. He also noted that she has episodic migraines with classic photophobia. Id.
On May 5, 2009, Dr. Meagher, the consulting neurosurgeon at Neurological Associates, Inc., saw Plaintiff for a consultation. (R. at 475.) Dr. Meagher noted that Plaintiff was blaming her gait imbalance on cataplexy, but that he was not aware that cataplexy caused gait imbalance. Id. He noted that she has headaches a couple of times each month. He indicated that in 2005 and 2007, Dr. Carole Miller did not feel that Plaintiff needed surgery. Id. On neurological examination, he found Plaintiff to be awake, alert, and oriented. Her cranial nerve examination was benign, her sensory exam and motor strength were normal, and her motor strength was 5/5. Id. Dr. Meagher also found that her cerebellar testing, station, and Romberg, and finger-to-nose tests were negative. Id. He found that she did have a bit of a wide-based gait, but noted that she is morbidly obese. Id. Dr. Meagher also reviewed her MRIs from 2005 and 2007 and concluded that she has hydrocephalus without evidence of transepenymal reabsorbtion. Id. Finally, because Plaintiff reported difficulty with walking and balancing, he recommended that she undergo another MRI of her brain. Id.
On July 23, 2009, Plaintiff was again treated by Dr. Meagher. He concluded that she has aqueductal stenosis with changes that appear to be old. (R. at 474.) He noted, and Dr. Fulop affirmed, that Dr. Fulop did not think Plaintiff's cataplexy explained her gait problems. He recommended that she see Dr. Buster for consideration of a ventriculoperitoneal shunt to see if that would help with her gait. He noted that her gait may be affected by the fact that she has enlarged ventricles. Id. On August 31, 2009, Dr. Buster evaluated Plaintiff and agreed that she is a candidate for a ventriculoperitoneal shunt. (R. at 379.)
On July 30, 2010, Dr. Fulop reported that Plaintiff "is terribly sleepy" and cannot stay awake without stimulants. (R. at 473.) He opined that she is unemployable on that basis. Id. He reported that she also has cataplexy and her legs give out with emotion at unpredictable times. Id. He noted that she has also had unsteadiness of gait, headaches, and hydrocephalus that is longstanding. Id. Dr. Fulop noted that Dr. Buster, a neurosurgeron, recommended surgery for her hydrocephalus, but she decided not to have surgery. Dr. Fulop concluded that "She is clearly unemployable due to her sleepiness, cataplexy, and added challenges from the hydrocephalus." (R. at 473.)
On June 27, 2011, Dr. Fulop noted that Plaintiff has "disturbed nocturnal sleep and a very irregular sleep schedule, consistent with a circadian rhythm disorder coexistent with narcolepsy." (R. at 472.) He noted that Plaintiff limits her driving and only drives when she is very safe. Id. He also noted that she has chronic hydrocephalus. He again reported that Dr. Buster had recommended shunting, but Plaintiff declined. Finally, he noted that Ritalin and Provigil have been very helpful. Id.
On September 19, 2011, Dr. Fulop wrote a letter concluding that Plaintiff is disabled. He opined as follows:
Alima White has a long history of narcolepsy and cataplexy diagnosed by Dr. Delphia and Dr. Weiland prior to her coming to see me back in 2008. She has been treated by me since June 20, 2008 for narcoplepsy and cataplexy, sleep paralysis, and disturbed nocturnal sleep in a pattern consistent with delayed sleep phase syndrome. Along with this diagnosis she also suffers from other neurological conditions of hydrocephaslus and poor balance, which causes her falls, as well as migraine headaches.
Narcolepsy is a condition that causes excessive sleepiness during the day.
Patients with narcolepsy fall asleep at inappropriate times, no matter how much they were able to sleep the night before. They may fall asleep while watching tv, or sitting in a class, or in more dangerous situations, such as driving, walking or riding a bicycle. It can be serious and disabling to those who suffer from this chronic condition. Cataplexy is a sudden weakness of the muscles that happens while the person is awake, usually precipitated by strong emotion. It may be mild, such as a sudden weakness in the knees or it may cause complete loss of all muscle control causing a collapse or fall.(R. at. 471.)
While there are no cures for these conditions, there are medicaitons that can help to control some of the symptoms of these disorders. She has been advised that there are no perfectly safe or effective medicaitons. All the medications have side effects including short-term and long-term effects, including cardiotoxicity, addiction, rebound, mood changes, tolerance, etc.
Based on the above problems, it is my medical opinion that Ms. White cannot be gainfully employed in any job or position. This poses a threat to her safety, as well as the safety of others. Patients who have tried to work with these disorders have problems getting up on time for work, sleeping through alarms. When at work they could fall asleep at a computer, doing paperwork, or some what mundance work causes them to become drowsy. They could have a cataplextic episode and fall, hurting themselves or others.
I do recommend total disability for Alima White, as she is unable to work.
D. Downtown Physicians
On November 18, 2010, Plaintiff was treated by Teresa Phan M.D. for her back pain. Plaintiff reported exacerbation of back pain. (R. at 460.) Plaintiff reported that her back pain usually resolves with massages. Id. On examination, Plaintiff demonstrated negative slump and negative straight-leg raise. Id. Dr. Phan referred Plaintiff to physical therapy. She also recommended that Plaintiff use a heating pad, get massage if possible, and to use alleve. Id. Dr. Phan prescribed Flexeril to help with pain at night. Id. On January 11, 2011, Plaintiff demonstrated normal station and gait. (R. at 454.) On June 29, 2011, Plaintiff was treated by Dr. Phan for swelling in her feet. On examination, she demonstrated normal gait while wearing flip flops. (R. at 447.) She also had no cyanosis, clubbing, edema, or varicosities. Id.
E. State-Agency Evaluation
November 5, 2010, state agency physician, Gerald Klyop, M.D., reviewed the record and assessed Plaintiff's physical functioning capacity. (R. at 149-51.) Dr. Klyop found that Plaintiff could never climb ladders, ropes, or scaffolds and should avoid even moderate exposure to hazards, including machinery and unprotected heights. (R. at 150-51.) F. James M. Parker, M.D.
On September 20, 2011, neurologist, Dr. Parker, reviewed the record as a medical expert and completed Interrogatories. (R. at 462-69.) Dr. Parker opined that, based on his review of the record, no Listings were met or equaled. (R. at 464.) According to Dr. Parker, in an eight hour day, Plaintiff could sit for eight hours for one hour at a time; stand and walk one hour each for thirty minutes at a time; frequently reach and push/pull; never balance or climb ladders or scaffolds; occasionally (up to 1/3 day) climb stairs and ramps; occasionally stoop, kneel and crouch; never be exposed to unprotected heights, moving mechanical parts, or operate a vehicle; and can frequently be exposed to extreme heat or cold and vibrations. (R. at 465-67.)
IV. THE ADMINISTRATIVE DECISION
On February 8, 2012, the ALJ issued his decision. (R. at 168-97.) Plaintiff met the insured status requirements through December 31, 2013. At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantially gainful activity since her alleged onset date of September 1, 2008. (R. at 173.) At step two, the ALJ found that Plaintiff had the severe impairments of narcolepsy, cataplexy, and a depressive disorder not otherwise specified. (R. at 174.) The ALJ also found that Plaintiff's chronic back pain, morbid obesity, hydrocephalus/other brain abnormalities, and sprained left ankle were not severe impairments. (R. at 175-77.) At step three, he found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (R. at 177.) At step four of the sequential process, the ALJ evaluated Plaintiff's residual functional capacity ("RFC") and explained as follows:
Social Security Regulations require ALJs to resolve a disability claim through a five-step sequential evaluation of the evidence. See 20 C.F.R. § 416.920(a)(4). Although a dispositive finding at any step terminates the ALJ's review, see Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007), if fully considered, the sequential review considers and answers five questions:
1. Is the claimant engaged in substantial gainful activity?
2. . Does the claimant suffer from one or more severe impairments?
3. Do the claimant's severe impairments, alone or in combination, meet or equal the criteria of an impairment set forth in the Commissioner's Listing of Impairments, 20 C.F.R. Subpart P, Appendix 1?
4. Considering the claimant's residual functional capacity, can the claimant perform his or her past relevant work?
5. Considering the claimant's age, education, past work experience, and residual functional capacity, can the claimant perform other work available in the national economy?
After careful consideration of the entire record, it is determined that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but is unable to use ladders, ropes or scaffolds, and must avoid even moderate exposure to unprotected heights and hazardous machinery. Mentally, the claimant retains the capacity to perform simple repetitive tasks and both familiar and novel multi step tasks in an environment without sudden changes or strict production standards.(R. at 185.) In assessing Plaintiff's RFC, the ALJ assigned some weight to the Interrogatory responses from Dr. Parker, explaining that his opinions on the "medical severity" of Plaintiff's impairments were "consistent with the totality of the evidence" and that he "accepted and adopted" Dr. Parker's opinions on those issues. (R. at 190.) The ALJ also assigned some weight to the opinion of the medical expert, Dr. Bonsett. (Id.) The ALJ gave very little weight to Dr. Bonsett's opinion that Plaintiff's narcolepsy and cataplexy could possibly equal Listing 11.03, explaining that Dr. Bonsett did not explain his opinion or cite to any objective evidence to support it. (R. at 180.) The ALJ gave very little weight to Dr. Fulop's opinions, explaining that his conclusion that Plaintiff was disabled and "unemployable" was not entitled to any deference because such issues are reserved to the Commissioner to determine. (R. at 192.) The ALJ also found Dr. Fulop's opinions inconsistent with the totality of the evidence. (Id.)
At step five, the ALJ, relying on the VE's testimony, determined that Plaintiff is capable of performing her past relevant work as a home healthcare aid. In addition, he concluded that jobs exist in significant numbers in the state and national economy that Plaintiff can perform. (R. at 194-96.) The ALJ therefore concluded that Plaintiff was not disabled under the Social Security Act. (R. at 197.)
V. STANDARD OF REVIEW
When reviewing a case under the Social Security Act, the Court "must affirm the Commissioner's decision if it 'is supported by substantial evidence and was made pursuant to proper legal standards.'" Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. at 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. at 2007)); see also 42 U.S.C. § 405(g) ("[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . ."). Under this standard, "substantial evidence is defined as 'more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).
Although the substantial evidence standard is deferential, it is not trivial. The Court must "'take into account whatever in the record fairly detracts from [the] weight'" of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, "if substantial evidence supports the ALJ's decision, this Court defers to that finding 'even if there is substantial evidence in the record that would have supported an opposite conclusion.'" Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Finally, even if the ALJ's decision meets the substantial evidence standard, "'a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'" Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).
VI. ANALYSIS
Plaintiff contends that the ALJ's decision is not supported by substantial evidence and is contrary to law. Specifically, Plaintiff argues that the ALJ's RFC findings are not supported by substantial evidence and are "largely the result of the ALJ acting as his own medical expert and improperly interpreting medical information without reliance on medical opinion evidence for expert interpretation of the scientific findings." (Plaintiff's Statement of Errors 1-2, ECF No. 14.) She also contends that the ALJ acted as a medical expert in determining that her obesity, degenerative changes of her lumbar spine, and history of left ankle sprain are not "severe impairments." Plaintiff also contends that the ALJ failed to properly follow the treating source rule in weighing Plaintiff's treating neurologist's, Dr. Fulop's, opinions. Similarly, she asserts that the ALJ also failed to accord proper weight to the opinions of medical experts, Drs. Parker and Bonsett. Finally, Plaintiff contends that the ALJ failed to develop the record with respect to whether Plaintiff's condition met or medically equaled in severity Listing 11.03.
A. Step Two
As a preliminary matter, Plaintiff's contentions related to the ALJ's step two findings are overruled. Plaintiff submits that the ALJ acted as his own medical expert in determining that her obesity, degenerative changes of her lumbar spine, and history of a sprained left ankle are not "severe impairments."
The Court of Appeals for the Sixth Circuit has explained as follows regarding step two determinations:
[Plaintiff] argues that the ALJ erred by failing to determine that all of [his] various impairments were "severe" at step two. . . .Anthony v. Astrue, 266 F. App'x 451, 457 (6th Cir. 2008).
. . . [Plaintiff's] argument, however, is misguided. The ALJ specifically found that [Plaintiff's] seizure disorder, cognitive disorder, and the after-effects of his broken leg qualified as severe impairments. [Plaintiff] therefore cleared step two of the analysis. This caused the ALJ to consider [Plaintiff's] severe and nonsevere impairments in the remaining steps of the sequential analysis. The fact that some of [Plaintiff's] impairments were not deemed to be severe at step two is therefore legally irrelevant. See Maziarz v. Sec'y of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding that the failure to find that an impairment was severe was harmless error where other impairments were deemed severe). The ALJ, therefore, did not commit reversible err in this regard.
As in Anthony, in this case, the ALJ found that Plaintiff had severe impairments at step two. Specifically, the ALJ found that Plaintiff had the severe impairments of narcolepsy, cataplexy, and a depressive disorder not otherwise specified. (R. at 174.) Accordingly, Plaintiff cleared step two of the sequential analysis. The ALJ then adequately considered all of Plaintiff's severe and nonsevere impairments in determining whether she met or medically equaled an impairment in the Listings and in determining her RFC. Thus, any error in weighing the medical evidence and opinions at step two is legally irrelevant. Id. Accordingly, Plaintiff's contentions of error related the ALJ's step two determinations are OVERRULED.
B. Step Four
1. Weighing of Opinion Evidence
Plaintiff contends that the ALJ erred in weighing the opinions of Plaintiff's treating physician, Dr. Fulop, and medical experts, Drs. Parker and Bonsett.
The ALJ must consider all medical opinions that he or she receives in evaluating a claimant's case. 20 C.F.R. § 416.927(c). The applicable regulations define medical opinions as "statements from physicians . . . that reflect judgments about the nature and severity of your impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite impairment(s), and your physical or mental restrictions." 20 C.F.R. § 416.927(a)(2).
The ALJ generally gives deference to the opinions of a treating source "since these are likely to be the medical professionals most able to provide a detailed, longitudinal picture of [a patient's] medical impairment(s) and may bring a unique prospective to the medical evidence that cannot be obtained from the objective medical filings alone . . . ." 20 C.F.R. § 416.927(c)(2); Blakley, 581 F.3d at 408. If the treating physician's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in [the claimant's] case record, [the ALJ] will give it controlling weight." 20 C.F.R. § 404.1527(c)(2).
If the ALJ does not afford controlling weight to a treating physician's opinion, the ALJ must meet certain procedural requirements. Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). Specifically, if an ALJ does not give a treating source's opinion controlling weight:
[A]n ALJ must apply certain factors—namely, the length of the treatment relationship and the frequency of examination, the nature and extent of the treatment relationship, supportability of the opinion, consistency of the opinion with the record as a whole, and the specialization of the treating source—in determining what weight to give the opinion.Id. Furthermore, an ALJ must "always give good reasons in [the ALJ's] notice of determination or decision for the weight [the ALJ] give[s] your treating source's opinion." 20 C.F.R. § 416.927(c)(2). Accordingly, the ALJ's reasoning "must be sufficiently specific to make clear to any subsequent reviewers the weight the adjudicator gave to the treating source's medical opinion and the reasons for that weight." Friend v. Comm'r of Soc. Sec., No. 09-3889, 2010 WL 1725066, at *7 (6th Cir. Apr. 28, 2010) (internal quotation omitted). The United States Court of Appeals for the Sixth Circuit has stressed the importance of the good-reason requirement:
"The requirement of reason-giving exists, in part, to let claimants understand the disposition of their cases," particularly in situations where a claimant knows that his physician has deemed him disabled and therefore "might be especially bewildered when told by an administrative bureaucracy that she is not, unless some reason for the agency's decision is supplied." Snell v. Apfel, 177 F.3d 128, 134 (2d Cir.1999). The requirement also ensures that the ALJ applies the treating physician rule and permits meaningful review of the ALJ's application of the rule. See Halloran v. Barnhart, 362 F.3d 28, 32-33 (2d Cir. 2004).Wilson, 378 F.3d at 544-45. Thus, the reason-giving requirement is "particularly important when the treating physician has diagnosed the claimant as disabled." Germany-Johnson v. Comm'r of Soc. Sec., 312 F. A'ppx 771, 777 (6th Cir. 2008) (citing Rogers, 486 F.3d at 242).
There is no requirement, however, that the ALJ "expressly" consider each of the Wilson factors within the written decision. See Tilley v. Comm'r of Soc. Sec., No. 09-6081, 2010 WL 3521928, at *6 (6th Cir. Aug. 31, 2010) (indicating that, under Blakley and the good reason rule, an ALJ is not required to explicitly address all of the six factors within 20 C.F.R. § 404.1527(c)(2) for weighing medical opinion evidence within the written decision).
a. Dr. Fulup
The ALJ considered Dr. Fulop's opinions as required by the Regulations and determined that they were not entitled to controlling weight. He ultimately assigned "very little weight" to Dr. Fulop's opinions and explained as follows:
The [Plaintiff's] neurologist and primary care physician opined at different times that the [Plaintiff] was unable to work (Exhibits 3F/4 and 30 and 11 F/2 and 4). These opinions as to whether the [Plaintiff] is disabled or unable to work are inappropriate and unacceptable in this context, as 20 CFR 404. 1527(e) and 416.927(e) state that the final responsibility for determining if a [Plaintiff] is "disabled" or "unable to work" is reserved for the Commissioner. . . .
SSR 96-5p states that treating source opinions on issues that are reserved to the Commissioner are never entitled to controlling weight or special significance. . . . However, opinions from any medical source on issues reserved to the Commissioner must never be ignored. The adjudicator is required to evaluate all evidence in the case record that may have bearing on the determination or decision of disability, including opinions from medical sources about issues reserved to the Commissioner. . . . It is not clear in this case that these sources were familiar with the definition of "disability" contained in the Social Security Act and Regulations, given that there is no evidence of function-by-function physical limitations as required by SSR 96-8p. These opinions were also inconsistent with the totality of the evidence, which reflects that the [Plaintiff] was neurologically and vascularly intact upon repeated physical examinations, with normal or good coordination, cranial nerves, gait, motor, pulses, sensory, station and reflexes and good or full strength and range of motion in all extremities, muscles and joints (Exhibits 3F/8, 10-11, 25-26 and 31-32, 9F/3-4, 11 and 18 and 11 F/6). Accordingly, the opinions of the claimant's neurologist and primary care physician regarding the [Plaintiff's] disability and ability to work are inappropriate and unacceptable under the Regulations, and are therefore entitled to very little weight.
The Court concludes that the ALJ provided legally sufficient reasons for rejecting Dr. Fulop's opinions as controlling and for assigning them very little weight. First, the ALJ correctly pointed out that Dr. Fulop's conclusions that Plaintiff was "disabled" and "unemployable" are not entitled to any weight because those issues are specifically reserved to the Commissioner. Bass v. McMahon, 499 F.3d 506, 511 (6th Cir. 2007) (holding that the ALJ properly rejected a treating physician's opinion that the claimant was disabled because such a determination was reserved to the Commissioner). In addition, familiarity with the Social Security Administration Regulations is a relevant consideration. See 20 C.F.R. § 404.1527(c)(6) (identifying "the amount of understanding of [the Social Security Administration's] disability programs and their evidentiary requirements" as a relevant consideration in deciding the weight to give a medical opinion). Finally, the ALJ found that Dr. Fulop's opinions are inconsistent with the totality of the evidence, which is a "good reason" for discounting a treating physician's findings. See Helm v. Comm'r of Soc. Sec., 405 F. App'x 997, 1001 (6th Cir. 2011) (concluding that the ALJ met the "good reasons" requirement for a variety of reasons, including by noting that the treating physician's findings were "unsupported by objective medical findings and inconsistent with the record as a whole"); see also 20 C.F.R. § 404.1527(c)(4) (identifying consistency with the record as a whole as a relevant consideration in deciding the weight to give a medical opinion).
Dr. Fulop did not complete a mental or physical capacity questionnaire, but he did submit letters and treatment notes that contain his opinion that Plaintiff is "disabled" and "unemployable" due to her narcolepsy and cataplexy. (R. at 471, 382.) The Court finds that the ALJ's stated reasons for rejecting his opinions as controlling and assigning them very little weight are supported by substantial evidence. First, as stated above, to the extent that Dr. Fulop opined that Plaintiff is disabled or unable to work, the ALJ properly rejected those opinions. Bass, 499 F.3d at 511. Second, the ALJ's decision to discount Dr. Fulop's remaining opinions because they are inconsistent with the totality of the evidence was also proper and supported by substantial evidence. First, Dr. Fulop's opinions were inconsistent with the state-agency physician opinions, which the ALJ accepted and adopted. This, however, is not a sufficient reason, alone, to reject Dr. Fulop's opinions. See Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 377 (6th Cir. 2013) ("Surely the conflicting substantial evidence must consist of more than the medical opinions of the nontreating and nonexamining doctors. Otherwise the treating-physician rule would have no practical force because the treating source's opinion would have controlling weight only when the other sources agreed with that opinion.")
The ALJ, however, also points to significant evidence in the record to support his finding that Plaintiff is not as limited by her narcolepsy or cataplexy as suggested by Dr. Fulop. The ALJ acknowledged that Plaintiff reported symptoms such as daytime sleepiness, fatigue, falling asleep at inappropriate times, leg weakness, hypersomnia, sleep paralysis, disturbed nocturnal sleep, hynogogic hallucinations, drowsiness, slurred speech, staggering and knee buckling at various time. (R. at 185-86.) He found, however, that the objective medical evidence does not substantiate the severity of the degree of functional limitations alleged by Plaintiff and suggested by Dr. Fulop. The ALJ explained that:
There is no evidence of additional physical limitations attributable to the [Plaintiff's] cataplexy or narcolepsy. As a preliminary matter, the [Plaintiff's] diagnosis of cataplexy is doubtful in this case as her alleged complaints of constant gait disturbance are inconsistent with cataplexy (Exhibits 3F/2-3, 8, and 14 and 10F/5-6). Evidentiary sources opined at different times that the [Plaintiff's] alleged symptoms of knee buckling were not apparently attributable to emotional triggers as would be expected with cataplexy (Exhibit 3F/8 and 14).
The evidence also reflects that the [Plaintiff's] sleep conditions and related symptoms were stable and well controlled with prescribed treatment. The [Plaintiff] denied experiencing symptoms of hallucinations and sleep paralysis in June 2007, and stated that prescribed Ritalin was effective in improving her symptoms of daytime sleepiness (Exhibit 3F/16). The [Plaintiff's] narcolepsy was stable and well controlled with prescribed Ritalin in February 2008, and she denied falling asleep inappropriately and daytime naps at that time (Exhibit 3F/8). The [Plaintiff] stated at different times that prescribed Ritalin is effective in stabilizing her mood and improving her alertness (Exhibit 3F/3-4 and 8, 4F/3 and 11F/3). The [Plaintiff's] treating sources opined that [Plaintiff] is not a good candidate for surgical intervention for her sleep conditions and symptoms (exhibit 11F/6). The [Plaintiff] stated on one occasion that she could control her alleged sleep symptoms, denied symptoms of sleep paralysis and stated that she is alert late into the evening (Exhibit 11F/8). Unfortunately, the evidence documents significant non-compliance by the claimant with prescribed treatment for her sleep condition and related symptoms. The evidence reflects that the [Plaintiff] failed to keep a scheduled appointment for a Maintenance of Wakefulness test on one occasion (Exhibit 3F/8). The [Plaintiff] also failed to keep scheduled appointments with her primary care physician at different times (Exhibit 8F/4). The [Plaintiff] failed to provide her treating sources with childhood diagnostic testing results on another occasion (Exhibit 3F/8). The [Plaintiff] stated in January 2011 that she is no longer supposed to drive (Exhibit 6F/1). However, the [Plaintiff] testified that she continues to drive occasionally despite the recommendations of her physicians. The claimant's non-compliance would not be expected were her sleep conditions and related symptoms as severe or disabling as she purports, and strongly suggests that her alleged symptoms are tolerable without the need to comply with prescribed treatment recommendations. While the claimant's non-compliance is not a basis for denying her claim, it is a basis for heavily discounting her overall credibility. Accordingly, there is no evidence of additional physical limitations [other than those in her RFC] attributable to the [Plaintiff's] cataplexy and narcolepsy in this case.(R. at 187.) The ALJ also noted that Plaintiff was "neurologically and vascularly intact upon repeated physical examinations, with normal or good coordination, cranial nerves, gait, motor, pulses, sensory, station and reflexes and good or full strength and range of motion in all extremities, muscles and joints (Exhibits 3F/8, 10-11, 25-26 and 31-32, 9F/3-4, 11 and 18 and 11 F/6)." (R. at 192.) After reviewing all of the medical evidence in the record, the Court concludes that the ALJ rationally determined that Plaintiff is not as limited as Dr. Fulop suggests. The Court further concludes that substantial evidence supports the ALJ's finding that Dr. Fulop's opinions are inconsistent with the totality of the evidence. Because the ALJ thoroughly described the evidence that led him to conclude that Plaintiff was not as limited as Dr. Fulop suggests, and substantial evidence supports his conclusion, the Court must affirm the decision. Blakley, 581 F.3d at 406 (If an ALJ's findings are supported by substantial evidence, this Court defers to those findings "even if there is substantial evidence in the record that would have supported an opposite conclusion") (internal citations omitted). Plaintiff's contention of error related to Dr. Fulop is therefore OVERRULED.
b. Dr. Parker
The ALJ also considered the opinions of Dr. Parker, a non-examining medical expert. The ALJ provided "some weight" to Dr. Parker's opinion. The ALJ explained as follows:
Dr. Parker's opinions are entitled to some weight in this case. Dr. Parker's opinions with respect to medical severity are consistent with the totality of the evidence, and accepted and adopted, as discussed above . . . Dr. Parker also opined as to the existence of greater physical limitations than set forth above (exhibit 10F/4-8). However, Dr. Parker's opinions are inconsistent with the totality of the evidence, as discussed above, which reflects that all straight leg raising tests in this case were normal (Exhibits 2F/11 and 26 and 9F/18). The [Plaintiff] did not demonstrate muscle atrophy or weakness, or extremity edema or deformity upon different physical examinations in this case (Exhibits 2F/7 and 9F/3). The [Plaintiff] was neurologically and vascularly intact upon repeated physical examinations, with normal or good coordination, cranial nerves, motor, pulses, sensory and reflexes and good or full strength and range of motion in all extremities, muscles and joints (Exhibits 3F/8, 10-11, 25-26 and 31-32, 9F/3 and 18 and 11F/6). There is no evidence that the [Plaintiff] requires assistive devices such as crutches, splints, braces or a cane, walker or TENS unit in order to ambulate effectively (Exhibits 2F/4, 3F/10, 5F/3, 3E/1). The [Plaintiff] repeatedly demonstrated normal gait and station on her heels and toes, with no ambulatory aid (Exhibits 3F/26 and 9F/4 and 11). The [Plaintiff] demonstrated the abilities to stand on tiptoes and heels with both lower extremities without difficulty in November 2007 (Exhibit 3F/26). The [Plaintiff] demonstrated wide-based gait with normal station upon physical examination in May 2009 (Exhibit 11F/6). The [Plaintiff] repeatedly denied bowel or bladder dysfunction (Exhibits 2F/25 and 9F/17). The [Plaintiff] had negative Spurling, Patrick and Romberg signs at
different times (Exhibits 2F/25 and 9F/17). The [Plaintiff] demonstrated normal fine and gross manipulative abilities in June 2010 (Exhibit 5F/3). The [Plaintiff] had 5/5 bilateral grip, biceps, triceps, deltoid, hip and knee strength in November 2007 (Exhibit 3F/25-26). The [Plaintiff] stated in May 2010 that she could lift and carry up to 30 pounds without difficulty (Exhibit 3E/1). The [Plaintiff] has normal cerebellar examination at that time (Exhibit 9F/17). The [Plaintiff] also stated on one occasion that her back pain usually resolves with massage therapy (Exhibit 9F/17), which demonstrates that her alleged symptoms are episodic rather than chronic. The [Plaintiff] demonstrated normal spine mobility upon physical examination in January 2011 (Exhibit 9F/11). Accordingly, there is no evidence of physical limitations attributable to the [Plaintiff's] degenerative changes of the lumbar spine. For these reasons, Dr. Parker's opinions are only entitled some weight.(R. at 190.)
Again, the ALJ thoroughly explained his reasons for discounting Dr. Parker's opinions and for assigning them "only some weight." Further, a review of the record indicates that the ALJ's stated reasons are supported by substantial evidence. Thus, the ALJ did not err in discounting Dr. Parker's opinions related to Plaintiff's physical limitations. Plaintiff's contention of error related to Dr. Parker is therefore OVERRULED.
2. Plaintiff's RFC
Plaintiff also asserts that the ALJ acted as his own medical expert in determining Plaintiff's RFC. She contends that the ALJ interpreted and evaluated raw medical data to support his findings.
A plaintiff's RFC "is defined as the most a [plaintiff] can still do despite the physical and mental limitations resulting from her impairments." Poe v. Comm'r of Soc. Sec., 342 F. App'x 149, 155 (6th Cir. 2009); see also 20 C.F.R. §§ 404.1545(a), 416.945(a). The determination of RFC is an issue reserved to the Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e). Nevertheless, substantial evidence must support the Commissioner's RFC finding. Berry v. Astrue, No. 1:09CV000411, 2010 WL 3730983, at *8 (S.D. Ohio June 18, 2010). When considering the medical evidence and calculating the RFC, "'ALJs must not succumb to the temptation to play doctor and make their own independent medical findings.'" Simpson v. Comm'r of Soc. Sec., 344 F. App'x 181, 194 (6th Cir. 2009) (quoting Rohan v. Chater, 98 F.3d 966, 970 (7th Cir. 1996)); see also Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL 3672060, at *10 (S.D. Ohio Nov. 4, 2009) (holding that an "ALJ may not interpret raw medical data in functional terms") (internal quotations omitted).
Plaintiff's contention that the ALJ played doctor in determining Plaintiff's RFC is not well-taken. A review of the ALJ's decision reveals that he laboriously explained his reasons for assessing the above RFC. (See R. 171-197.) In addition to considering the Plaintiff's testimony and the objective evidence, he adequately considered and explained the weight he assessed to each medical opinion. He did not substitute his own findings or interpret the raw medical data. Rather, he used treatment notes and results of clinical evaluations and tests that had been performed and interpreted by Plaintiff's physicians and psychologists, to support his findings. Moreover, the ALJ did not make his own determinations about Plaintiff's physical and mental abilities. Rather, he accepted and adopted the opinions of the State agency reviewing physician and psychologists in determining Plaintiff's RFC. (R. at 189, 192.) Plaintiff's contention is therefore OVERRULED.
C. Step Three
Plaintiff asserts that the ALJ erred at step three in the sequential process by acting as his own medical expert in determining whether Plaintiff met or medically equaled the Listings and by "failing to develop the record with respect to the matter of the medical equivalence of [Plaintiff's] narcolepsy/cataplexy to Listing 11.03 and/or others[]. (Plaintiff's Statement of Error 7-8, ECF No. 14.) Specifically, Plaintiff contends that the ALJ failed to develop the record with regard to Dr. Bonsett's opinion that Plaintiff meets Listing 11.03. She asserts that the ALJ erred in discounting Dr. Bonsett's opinion on the basis that it was not supported by objective evidence because it was the ALJ's responsibility to ask Dr. Bonsett to explain his opinions further. She contends that instead of relying on Dr. Bonsett, a medical expert, the ALJ essentially "played doctor" and conducted his own analysis of the medical evidence to determine whether she met the Listing.
Plaintiff's contention that the ALJ erred in failing to develop the record is unavailing. The Sixth Circuit has explained that "[t]he claimant bears the ultimate burden to prove by sufficient evidence that she is entitled to disability benefits." Trandafir v. Comm'r of Soc. Sec., 58 F. App'x 113, 115 (6th Cir. 2003) (citing 20 C.F.R. § 404.1512(a)). While an ALJ has a basic duty to develop a full and fair record, "only under special circumstances, i.e., when a claimant is without counsel, is not capable of presenting an effective case, and is unfamiliar with hearing procedures, does an ALJ have a special, heightened duty to develop the record." Id. (citing Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 856 (6th Cir.1986); Lashley v. Sec'y of Health and Human Servs., 708 F.2d 1048, 1051-52 (6th Cir.1983)).
In this case, Plaintiff was represented by counsel at the hearing. Plaintiff's counsel submitted pre-hearing briefs and medical records, questioned Plaintiff, and cross-examined the VE. When given the opportunity to examine Dr. Bonsett, however, Plaintiff's counsel declined. Under these circumstances, the ALJ's failure to ask Dr. Bonsett for details, explanations, or further data regarding why he believed Plaintiff met the Listing was not an error. Plaintiff had the burden to demonstrate that she met Listing 11.03, not the ALJ. Plaintiff's contention of error is therefore overruled.
Further, the ALJ properly considered whether Plaintiff had an impairment or combination of impairments that met or medically equaled an impairment in the Listings. A claimant's impairment must meet every element of a Listing before the Commissioner may conclude that he or she is disabled at step three of the sequential evaluation process. See 20 C.F.R. § 404.1520; Duncan v. Sec'y of Health & Human Servs., 801 F.2d 847, 855 (6th Cir. 1986). The claimant has the burden to prove that all of the elements of a Listing are satisfied. King v. Sec'y of Health & Human Servs., 742 F.2d 968, 974 (6th Cir. 1984). It is not sufficient to come close to meeting the conditions of a Listing. See, e.g., Dorton v. Heckler, 789 F.2d 363, 367 (6th Cir. 1989) (Commissioner's decision affirmed where medical evidence "almost establishes a disability" under Listing). The regulations provide that in making a medical equivalence determination, the Social Security Administration will "consider the opinion given by one or more medical or psychological consultants designated by the Commissioner." 20 C.F.R. § 404.1526(c). Although the Social Security Administration "will consider opinions from medical sources on issues such as whether [a claimant's] impairment(s) meets or equals the requirements of any imapairment(s) in the Listing of Impairments . . . the final responsibility for deciding [this] issue is reserved to the Commissioner." 20 C.F.R § 404.1527(d)(2). Nevertheless, "[t]he burden of providing a . . . record . . . complete and detailed enough to enable the Secretary to make a disability determination rests with the claimant." Landsaw v. Sec'y of Health & Human Servs., 803 F.2d 211, 214 (6th Cir. 1986).
In this case, the ALJ called a medical expert, Dr. Bonsett, to testify as to whether Plaintiff met or medically equaled in severity a Listing. At the hearing, Dr. Bonsett testified as follows:
Well, the problem is unusual in that - the items she has are not specifically mentioned [in the Listings] [inaudible], but they are, in my opinion, severe and thus [] they merit the listing. The low back problem that she has would come under the category of [1.04]. And the problem that she has is at the [L5-S1] level, she has a problem with [inaudible] disk. She also has the vocal abnormality. She has what I would consider to be a kind of [inaudible] problem in the low spine. I think that her spine problem alone merits her rights for disability. In the putting her problems together, I don't think there's any doubt there needs to be a specific listing, if they had one. But I think in the way things are, I'd say that if she equals a listing, and which listing [] that she would equal, in my opinion, the nearest thing would be the category of seizures. And I don't know whether that would be acceptable or not. That would be [11.03] and I think that [] that's correct.(R. at 72-73.)
The ALJ considered Dr. Bonsett's opinion in determining whether Plaintiff met or medically equaled a Listing, but ultimately afforded his opinions very little weight. He explained his rationale this way:
Dr. Bonsett opined that the severity of the [Plaintiff's] narcolepsy and cataplexy, individually or in combination, medically equals the criteria of Listing 11.03, for evaluating seizure disorders. Listing 11.03 requires evidence of nonconvulsive epilepsy (petit mal, psychomotor, or focal), documented by detailed description of a typical seizure pattern including all associated phenomena, occurring more frequently than once weekly in spite of at least three months of prescribed treatment. Dr. Bonsett did not specifically state in this case how the severity of the [Plaintiff's] narcolepsy and cataplexy is sufficiently severe to medically equal the criteria of Listing 11.03, which requires episodes occurring more frequently than once weekly in spite of at least three months of prescribed treatment. Dr. Bonsett also did not cite to specific examples of objective medical evidence in the record in support of his opinions that the severity of the [Plaintiff's] narcolepsy and cataplexy, individually or in combination, medically equals the criteria of Listing 11.03. Although Dr. Bonsett generally cited the findings of one of the [Plaintiff's] neurologists in support of his opinions, the [Plaintiff] was neurologically and vascularly intact upon repeated physical examinations with other sources in this case, with normal or good coordination, cranial nerves, motor, pulses, sensory and reflexes and good or full strength and range of motion in all extremities, muscles and joints. Accordingly, Dr. Bonsett's opinions on the severity of the [Plaintiff's] narcolepsy and cataplexy, individually or in combination, medically equals the criteria of Listing 11.03 are entitled to very little weight in this case.(R. at 179) (internal citations omitted). Thus, the ALJ thoroughly described his reasons for affording very little weight to Dr. Bonsett's opinion that Plaintiff narcolepsy/cataplexy met or medically equaled Listing 11.03. The Court also notes that Dr. Bonsett did not conclusively opine that Plaintiff met or equaled the Listing. Rather, he stated, "I think in the way things are, I'd say that if she equals a listing, and which listing would that she would equal, in my opinion, the nearest thing would be the category of seizures." (R. at 72.)
Moreover, the ALJ's determination that Plaintiff did not meet or equal Listing 11.03 is supported by substantial evidence. For example, no other medical expert opined that she met or medically equaled in severity Listing 11.03. More significantly, Plaintiff did not produce a "detailed description of typical seizure pattern . . . occurring more frequently than once weekly in spite of at least three months of prescribed treatment." 20 C.F.R. Subpart P, Appendix 1, Listing 11.03. Plaintiff therefore did not meet her burden of proving that she meets every element of the Listing. King, 742 F.2d at 974. She also did not submit any additional evidence, opinions, or further questions to Dr. Bonsett to demonstrate that her narcolepsy/cataplexy medically equaled in severity Listing 11.03. Under these circumstances, any error the ALJ may have made in considering the evidence is harmless. See Forrest v. Comm'r of Soc. Sec., --F. App'x--, 14-cv-5421, 2014 WL 6185309, at * (6th Cir. Nov. 17, 2014) (finding that "even if [the ALJ's factual findings] failed to support [his] step-three findings, the error is harmless, because [plaintiff] has not shown that his impairments met or medically equaled in severity any listed impairment. . .")
The ALJ also did not err in determining that Plaintiff did not meet Listing 1.04. The ALJ noted that Drs. Parker and Bonsett both opined that Plaintiff did not meet or medically equal Listing 1.04. He found their opinions to be consistent with the totality of the evidence and not contradicted by other medical sources. (R. at 177-78.) Accordingly, the ALJ did not serve as his own medical expert in determining that Plaintiff did not meet or medically equal in severity Listing 1.04. Rather, he relied upon medical experts, Drs. Parker and Bonsett. Plaintiff contentions or error related to the ALJ's step three findings are therefore OVERRULED.
VII. CONCLUSION
For the foregoing reasons, Plaintiff's Statement of Errors is OVERRULED and the Commissioner's decision is AFFIRMED.
IT IS SO ORDERED.
s/Algenon L. Marbley
ALGENON L. MARBLEY
UNITED STATES DISTRICT JUDGE
DATED: March 16, 2015
See 20 C.F.R. § 416.920(a)(4); see also Henley v. Astrue, 573 F.3d 263, 264 (6th Cir. 2009); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001). 2 Listing 11.00 defines epilepsy as follows: In epilepsy, regardless of etiology, degree of impairment will be determined according to type, frequency, duration, and sequelae of seizures. At least one detailed description of a typical seizure is required. Such description includes the presence or absence of aura, tongue bites, sphincter control, injuries associated with the attack, and postictal phenomena. The reporting physician should indicate the extent to which description of seizures reflects his own observations and the source of ancillary information. Testimony of persons other than the claimant is essential for description of type and frequency of seizures if professional observation is not available. Under 11.02 and 11.03, the criteria can be applied only if the impairment persists despite the fact that the individual is following prescribed antiepileptic treatment. Adherence to prescribed antiepileptic therapy can ordinarily be determined from objective clinical findings in the report of the physician currently providing treatment for epilepsy. 20 C.F.R. Subpart P, Appendix 1, Listing 11.00.