Simons v. Comm Social Security , 114 F. App'x 727 ( 2004 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 04a0111n.06
Filed: November 18, 2004
No. 04-5021
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
PEGGY L. SIMONS, )
)
Plaintiff-Appellant, ) ON APPEAL FROM THE UNITED
) STATES DISTRICT COURT FOR THE
v. ) MIDDLE DISTRICT OF TENNESSEE
)
JO ANNE B. BARNHART, Commissioner of ) OPINION
Social Security, )
)
Defendants-Appellees. )
)
)
Before: MOORE and SUTTON, Circuit Judges; and ADAMS, District Judge.*
ADAMS, J. Peggy Simons applied for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) in 1999. After a hearing, the Administrative Law Judge (ALJ)
determined that Simons was suffering from a severe impairment and was unable to perform her past
relevant work, but concluded that she could perform a significant number of sedentary jobs in the
national economy. Simons sought judicial review of the decision, and the district court affirmed the
denial of benefits. On appeal, Simons argues that the ALJ erred in making his determination. She
requests that this Court either reverse or remand the district court’s decision. For the reasons set
forth below, however, we affirm.
*
The Honorable John R. Adams, United States District Judge for the Northern District of
Ohio, sitting by designation.
(Case No. 04-5021)
I. STATEMENT OF FACTS
At the time of the ALJ’s hearing, Simons was forty-two years old. She has alleged that
she became disabled in 1999. Initially, she claimed that her disability and inability to work were
due to a spinal impairment. She has since alleged that her disability is also based on additional
exertional and non-exertional problems, namely, past hand and tendon injuries, asthma, fatigue,
memory and concentration problems, anxiety, and depression.
A. Medical History
Several medical professionals have examined and treated Simons during the time frame
relevant to the Court’s decision herein. A summary of the notable examinations and treatments
follows:
(1) In April of 1999, Simons complained of neck and shoulder pain to Dr. Robert
Gaston. Dr. Gaston prescribed anti-inflammatory medicine and an analgesic pain reliever. He
referred Simons to an orthopedist when there was no improvement in her symptoms.
(2) In October of 1999, Dr. William Schooley examined Simons and ordered
magnetic resonance imaging (MRI). The MRI revealed a large disc herniation at the C5-C6
level, with moderate to severe foraminal stenosis. Dr. Schooley surgically treated Simons by
performing a cervical discectomy and fusion. Upon later examination, Dr. Schooley noted
Simons was improving. Later that year, however, Dr. Schooley ordered a myelogram because
Simons began experiencing pain in her neck, left arm, lower back, and left leg. The myelogram
revealed no cervical abnormalities, but did show minimal epidural defects.
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Dr. Schooley also treated Simons for a spasm in her neck and for low back pain. He
ordered computed tomography (CT Scan) of her lumbar spine and an MRI. The CT scan
revealed mild disc bulges, but no high grade stenosis or compression of the nerve roots. The
MRI revealed some disc degeneration and bulging, but no significant stenosis. Dr. Schooley later
evaluated Simons’s functional capacity and found the following: Simons could sit for a total of
six or more hours in an eight hour day; stand and/or walk for a total of six or more hours in an
eight hour day; lift up to nineteen pounds frequently; carry up to nine pounds frequently; lift up
to forty-nine pounds occasionally; and, carry up to nineteen pounds occasionally. He concluded
that Simons could not bend, squat, crawl, climb, or reach above her shoulder. He indicated no
environmental restrictions and found she could use her hands for grasping, pushing, pulling, and
fine manipulation. He noted that she could use her feet and legs for repetitive movements.
Lastly, Dr. Schooley indicated that Simons would have a moderate limitation in her overall
functional ability due to pain and fatigue.
(3) In January of 2000, Dr. Bruce Jackson examined Simons on behalf of the state
agency. He noted a limited range of motion in her neck, but found she exhibited a normal range
of motion in all other areas. He examined her hands and noted a prior left hand crush injury and
right hand tendon injury. Both of Simons’s hand injuries were treated surgically and although
she had full motion in her wrist and fingers, Dr. Jackson noted that she still suffered from
reduced sensation, mild finger opposition, and grip weakness. He noted that all other
musculoskeletal and neurological examinations were normal. Based on his findings, Dr. Jackson
opined that Simons could sit for eight hours of an eight hour workday and stand/walk for less
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than six hours. He estimated she could lift and carry up to ten pounds frequently and up to
twenty pounds on occasion. He noted her limited neck and shoulder movement, and
recommended a restriction of limited exposure to heat and humidity, along with restrictions
against irritating inhalants, work involving climbing or heights, and work requiring use of a
forceful grip.
(4) In January of 2000, Dr. Jeri Lee, a psychologist, also examined Simons at the
request of the state agency. Dr. Lee evaluated Simons in light of her complaints of memory
problems, concentration problems, depression, panic attacks, crying spells, sleep and appetite
problems, and low energy. Dr. Lee’s examination did not evidence Simons’s alleged non-
exertional impairments. She noted Simons was experiencing a mild impaired ability to socially
interact and adapt, but Dr. Lee refrained from diagnosing a mental impairment. Further, Dr. Lee
assigned Simons a Global Assessment Function (GAF) score of 70, which indicates only mild
symptoms and ability to function. She determined that Simons functioned at a fourth grade level
in mathematics and at a sixth grade level in reading.
(5) Beginning in November of 2000, Dr. John Culclasure evaluated Simons and
treated her for pain with lumbar facet blocks and epidural steroid injections. He diagnosed her
with lumbar spondylosis, lumbar degenerative disc disease, and lumbar radiculopathy.
B. Testimony of Simons and Her Mother
Simons testified at the hearing as to both her exertional and non-exertional impairments.
With respect to her exertional impairments, she testified to pain in her lower back and down her
left leg. She also testified to having muscle spasms in both of her shoulders. Simons claimed
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her lower back pain was worse than her upper back pain. The pain, which Simons said was
constant, would sometimes abate and then she could move around a lot. She testified that she
was taking pain medication, specifically Lortab, but that it carried no side effects and it helped
the pain.
Simons claimed her pain was worse when she was on her feet for long periods of time or
when she sat for long periods of time. She testified that the only thing that made her pain better
was lying down. She said she was using a spinal cord stimulator, an implanted device, for the
pain. Simons also testified to having tried nerve blocks, steroid injections, and physical therapy.
None of these, according to Simons, alleviated her pain.
Simons stated she could not lift or carry over five pounds and she could not bend over or
pick up objects. She also claimed she could not crawl or climb a ladder. She testified she could
use her hands as long as she did not need to grip anything because her hands sometimes shake
and go numb. According to Simons, she often had to use both hands to do things like pick up a
skillet or a gallon of milk. Simons also testified she could raise her arms to head height, but no
higher.
Simons, a smoker, stated she has asthma, which affects her ability to breathe while
walking or going up and down steps. However, she testified that she could go up ten steps, or
walk approximately a half of a block, before she had to rest. Simons used an inhaler twice a
week for her asthma. She testified that she often felt fatigued and that her fatigue was brought
on by heat, stress and worrying.
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As to her daily activities, Simons testified she had difficulty driving, but could do limited
household chores, sometimes requiring assistance from her fourteen-year old son. According to
Simons, she was forced to lie down often during the day. She did not engage in any social
activities and her entertainment consisted of watching television and renting movies. She
testified that she had to move around frequently, changing positions often, to help alleviate the
pain. Despite the pain, Simons was able to perform her personal grooming.
With respect to her non-exertional impairments, Simons testified that she was seeing a
psychiatrist. He was not, however, willing to evaluate her for purposes of her claim because she
was a relatively new patient. She did testify to taking medication for depression, but again
claimed that the medication alleviated her symptoms and carried no side effects.
Simons testified that she could read and write. She claimed to have been an average
student, with math and English being her strong subjects. In response to the ALJ’s questioning,
Simons testified to her ability to write a letter and count change.
Simons’s mother, Patricia Woodson, testified on her daughter’s behalf. According to
Woodson, Simons had difficulty performing everyday tasks. Woodson testified that Simons
needed help sitting and rising. She also testified that Simons was in a great deal of physical pain
every day. According to Woodson, Simons could not sit , stand, or bend. She claimed that
Simons was always in pain and that her hand and neck hurt. Woodson testified that Simons was
getting progressively worse. She stated that Simons used to work hard, but that she was unable
to work or do the things she used to do. Woodson claimed that Simons slept a lot and
complained constantly about the pain. Woodson corroborated much of Simons’s testimony
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regarding her inability to sit, drive, and hold onto objects. Woodson also claimed that Simons’s
personality changed and that she became “temperamentally ill.” Lastly, Woodson testified that
Simons was unable to complete household tasks unassisted.
C. Past Relevant Work Experience & Vocational Expert Testimony
Simons completed the eleventh grade, but never earned her GED credential. Her past
relevant work experience consisted of jobs as a paint line worker, a factory laborer, a grill cook,
a machine operator, and a carpet installer. The vocational expert, Dr. Kenneth N. Anchor (VE),
classified Simons’s past jobs in the range of unskilled to semiskilled, light to medium exertion.
He testified that Simons could not perform her past relevant work with the restrictions under
which she was operating, but stated there were other light and sedentary jobs she could perform
in the Tennessee regional economy. According to the VE, there were a number of jobs available,
such as time keeping clerk or telephone operator.
Approximately two-thirds of the jobs would be eliminated, however, for a person who
was limited to occasional use of both hands for fingering, feeling, or handling. When asked if
the jobs would be reduced by two-thirds using Dr. Schooley’s medical assessment, the VE
testified that the jobs would not be reduced. The available jobs did not require significant
bending, squatting, crawling, climbing, or reaching above the shoulder level. They did require
literacy, which ideally would be a high school education or GED, but the VE stressed that
literacy was the basic requirement. In other words, a person with good oral communication
skills who was mature, stable, motivated, and willing to learn, could perform the jobs to which
the VE cited. The ALJ asked the VE to assume Simons’s testimony was fully credible.
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Assuming Simons’s difficulties were as severe, chronic, unremitting, and unresponsive to
treatment as she claimed, the VE testified that there would not be any full-time jobs available to
her.
II. PROCEDURAL HISTORY
Simons applied for DIB on December 2, 1999 and SSI on November 10, 1999, alleging
she had been disabled since July of 1999. Her applications were denied both upon initial review
and upon reconsideration. Simons requested a hearing before the ALJ and one was held on
March 15, 2001. On May 24, 2001, the ALJ issued a decision in which he concluded that
Simons was not disabled. Although the ALJ found that Simons had a severe impairment, he
determined that she retained the residual functional capacity to perform a significant range of
sedentary work.
Simons requested review of the ALJ’s decision. The Appeals Council of the Social
Security Administration considered the request, but ultimately denied it. The ALJ’s decision
became the final decision of the Commissioner of Social Security. Simons then filed a civil
action in the United States District Court for the Middle District of Tennessee. The lower court
granted the Commissioner’s Motion for Judgment on the Administrative Record, which was a
final and appealable order. It is from that order that Simons appeals.
III. STANDARD OF REVIEW
The standard of review in this area is limited. Unless the Commissioner has failed to
apply the correct legal standards or has made findings of fact unsupported by substantial
evidence in the record, we must affirm the Commissioner’s conclusions. 42 U.S.C. § 405(g); see
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also Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004). We must affirm a
decision supported by substantial evidence even if there is substantial evidence in the record to
support an opposite conclusion. Smith v. Chater, 99 F.3d 780, 782 (6th Cir. 1996). Substantial
evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. NLRB, 305 U.S. 197, 229 (1938)).
IV. ANALYSIS
Simons raises three issues on appeal. First, she contends that the ALJ erred in finding her
testimony was not credible and in discounting the testimony of her lay witness. Second, she
claims that the ALJ erred by not considering the combined effects of all her exertional and
nonexertional limitations. Third, Simons asserts that the VE’s opinion was inadequate to support
his finding that there were jobs in the national economy she could perform because the ALJ’s
hypothetical disregarded her testimony.
A. Credibility of Simons’s Testimony and Testimony of Lay Witness
According to Simons, the ALJ erred in disregarding her subjective complaints of pain
and her alleged inability to engage in various forms of activity. The law on this precise issue,
however, is well-established. While there is no question that subjective complaints of a claimant
can support a claim for disability, there must be objective medical evidence of an underlying
medical condition in the record. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003)
(citations omitted).
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In this case, the objective medical evidence in the record indicates that Simons was
suffering from multiple impairments, a fact the ALJ recognized when he found she was suffering
from a “severe impairment.” The ALJ, however, was not bound to accept Simons’s subjective
complaints if the evidence in the record demonstrated otherwise. See id. at 476 (“[A]n ALJ is
not required to accept a claimant’s subjective complaints and may properly consider the
credibility of a claimant when making a determination of disability.”). Accordingly, his decision
that Simons’s testimony was not credible will stand if his credibility determination was
reasonable and supported by substantial evidence. Id.
Having examined the record, this Court finds that there was substantial evidence to
support the ALJ’s conclusion that Simons’s testimony was not credible. First, Dr. Schooley,
Simons’s own physician evaluated her functional capacity and found, among other things, that
she could sit for six or more hours in an eight hour workday and stand or walk for a total of six
or more hours. He also estimated that she could lift and carry certain amounts of weight either
frequently or occasionally. Although he indicated some restrictions, he did not determine that
Simons was incapable of working. Second, Dr. Jackson, the state’s examining physician,
recognized Simons’s limitations and offered some restrictions, but he also did not determine that
she was incapable of working. Third, the state’s psychological examiner found that Simons’s
non-exertional problems were neither evidenced during the examination nor consistent with
previous reporting. She also assigned Simons a GAF score that indicated only mild symptoms
and an ability to function.
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Furthermore, the record shows that Simons’s surgery was successful and no further
surgeries were contemplated. The ALJ noted that Simons was taking medication for her pain,
but Simons herself stated that the medication she was taking for both her exertional and non-
exertional impairments presented no side effects and helped her ailments. The Court agrees with
the Magistrate Judge that the ALJ may have wrongly characterized Simons’s daily activities as
wide ranging, but substantial evidence in the record otherwise supported the ALJ’s decision to
discount her testimony.
In an attempt to convince this Court otherwise, however, Simons attempts to point out
those facts that bolster her credibility. Yet, even if there is evidence in the record to support
Simons’s position and even if she is credible, this Court cannot reverse the lower court when
there is still substantial evidence supporting the ALJ’s decision. See Smith v. Chater, 99 F.3d
780, 782 (6th Cir. 1996) (holding that the district court erred in reversing the ALJ where there
was substantial evidence in the record to support the opposite finding).
Simons takes issue with the ALJ’s apparent decision to disregard Woodson’s testimony
as well. The testimony of lay witnesses, however, is entitled to perceptible weight only if it is
fully supported by the reports of the treating physicians. Lashley v. Sec’y of Soc. Sec., 708 F.2d
1048, 1054 (6th Cir. 1983) (citation omitted). In the instant case, the ALJ did not err in failing to
accord substantial weight to Woodson’s testimony because her testimony is also not supported
by Simons’s treating physician.
Simons’s argument that the ALJ erred in not discussing Dr. Culclasure’s diagnosis is also
not well-taken. “Although required to develop the record fully and fairly, an ALJ is not required
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to discuss all the evidence submitted, and an ALJ’s failure to cite specific evidence does not
indicate that it was not considered.” Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000).
Nevertheless, this Court may review Dr. Culclasure’s report, in its consideration of the record as
a whole, to determine if the ALJ’s decision was based on substantial evidence. Heston v.
Comm’r of Soc. Sec., 245 F.3d 528, 535 (6th Cir. 2001).
In examining the report, the Court first notes that Dr. Culclasure does not provide an
evaluation of Simons with respect to her functional capacity. Rather, his report merely reiterates
Simons’s subjective complaints with respect to pain, and his diagnosis and plan for treatment.
Furthermore, the fact that Dr. Culclasure made a diagnosis does not itself mandate reversal
because the ALJ already conceded that Simons had a severe impairment. The issue is not
whether Simons had a diagnosed impairment, but whether there is substantial evidence in the
record demonstrating that Simons retained the residual functional capacity to work.
B. Combined Effect of Exertional and Non-Exertional Limitations
Simons next argues that the ALJ erred by failing to evaluate her exertional and non-
exertional impairments and pain. The Court recognizes a claimant may be found disabled by
virtue of the combined effect of impairments; however, the ALJ did consider the combined effect
of Simons’s impairments. See generally Mowery v. Heckler, 771 F.2d 966, 971 (6th Cir. 1985)
(finding it necessary to consider the claimant’s impairments in combination). First, as the Court
discussed above, the ALJ was permitted to discredit Simons’s subjective evaluation of pain
because it was not supported by objective medical evidence. Second, the ALJ did consider the
impairments to her hands. He noted that she was not currently seeking treatment and he
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questioned the VE as to whether the number of jobs available would be reduced if an individual
had limitations with respect to handling, fingering, and feeling.
In determining whether Simons’s past injuries to her hands affected her future ability to
engage in substantial gainful employment, the ALJ relied on the reports of Dr. Schooley and Dr.
Jackson. Simons takes issue with the ALJ’s reliance on this evidence and his decision that
objective medical evidence did not support her inability to use her hands. She argues that just
because she may have adjusted to the old impairment, it still exists and may be severe. The
burden to produce evidence of this severity, however, was on Simons. Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citations omitted) (noting the claimant has the burden of
proving a severe impairment). The objective medical evidence, as well as Simons’s own
testimony, evidences a ten percent disability in both hands left over after what were apparently
successful surgeries. The only evidence to the contrary was Simons’s own testimony and that of
her mother, which the ALJ was entitled to discount.
More importantly, however, is the fact that the ALJ did consider the combined effect of
Simons’s impairments. As his decision demonstrates, the ALJ considered Simons’s objective
physical impairments, her subjective assessment of pain, her claimed depression and cognitive
impairments, and her education. He also took these factors into account when he questioned the
VE. Furthermore, “[a]n ALJ's individual discussion of multiple impairments does not imply
that he failed to consider the effect of the impairments in combination, where the ALJ
specifically refers to a ‘combination of impairments’ in finding that the plaintiff does not meet
the listings.” Loy v. Sec’y of Health and Human Serv., 901 F.2d 1306, 1310 (6th Cir. 1990)
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(quoting Gooch v. Sec’y of Health and Human Serv., 833 F.2d 589, 592 (6th Cir. 1987)). Here,
the ALJ specifically stated that he was obligated to consider all symptoms, including pain. He
also found that Simons had an impairment, or combination of impairments, which was severe.
Just because the ALJ did not separately discuss Simons’s multiple impairments does not mean
the he did not consider their combined effect.
C. VE’s Response to the ALJ’s Hypothetical Question
Lastly, Simons takes issue with the questions the ALJ asked the VE, and with the ALJ’s
determination that there are jobs existing in significant numbers in the national economy that
Simons can perform. As previously stated, the ALJ was entitled to find Simons’s testimony not
fully credible and take this fact into account during his questioning. Because of this, it is
irrelevant that the VE opined that there would be no jobs Simons could perform given her
subjective assessment of pain and ability.
Simons also claims that the jobs to which the VE cites are not available in a significant
number in the national economy. She argues that these jobs are not available to her because she
cannot drive or take the bus. While travel to and from work is a factor to be considered, travel
can only be considered as an intrinsic factor concerning a claimant’s condition, not as an
extrinsic factor, such as where a claimant has chosen to live in relation to identified regional
jobs. Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999).
Here, Simons testified she could walk to the bus station, which is a block and a half from
her doorway. She also testified she could use the bus with no problem. Furthermore, she
testified as to her ability to walk a half a mile and do short distance driving. “A person,
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otherwise able to work, is in effect offered a choice: he can choose either to commute the
distance to his job or he can move closer and avoid the expense and inconvenience.” Id. The
fact that Simons may not be able to travel long distances is an extrinsic factor that the ALJ
properly chose not to consider.
V. CONCLUSION
For the reasons set forth above, we AFFIRM the district court’s decision.
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