NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0829n.06
No. 14-4154
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
Dec 23, 2015
TIFFANI STEPHENSON, ) DEBORAH S. HUNT, Clerk
)
Plaintiff - Appellant, )
) ON APPEAL FROM THE UNITED
v. ) STATES DISTRICT COURT FOR
) THE NORTHERN DISTRICT OF
COMMISSIONER OF ) OHIO
SOCIAL SECURITY, )
)
Defendant - Appellant. ) OPINION
Before: BATCHELDER and STRANCH, Circuit Judges; HOOD, District Judge.*
HOOD, District Judge. Appellant Tiffani Stephenson (“Stephenson”)
appeals the judgment of the district court affirming the denial of her applications
for Social Security Disability Insurance benefits (“SSDI”) and Supplemental
Security Income (“SSI”) by the Commissioner of Social Security
(“Commissioner”). Stephenson raises two arguments on appeal: (1) the
Administrative Law Judge’s (“ALJ’s”) decision is unsupported by substantial
evidence when the standard treatment for severe lymphedema was not included in
*
The Honorable Denise Page Hood, United States District Judge for the
Eastern District of Michigan, sitting by designation.
Case No. 14-4154, Stephenson v. Comm’r of Soc. Sec.
the residual functional capacity assessment, and (2) the ALJ’s decision is
unsupported by substantial evidence when insufficient evidentiary weight was
given to the opinion of Stephenson’s treating physician. For the reasons set forth
below, we AFFIRM the judgment of the district court.
I. BACKGROUND
Stephenson applied for SSDI and SSI on September 1, 2009. Stephenson
claimed she has been disabled since June 13, 2009 due to a history of malignant
melanoma on her left leg which resulted in severe damage to the lymph nodes
causing her leg to swell. Her claims were denied and her request for
reconsideration was also denied. An administrative hearing before an ALJ was
held on November 9, 2011. The ALJ determined Stephenson was not disabled.
The Appeals Counsel denied Stephenson’s request for review. Stephenson
thereafter filed a Complaint against the Commissioner of Social Security before the
district court on May 30, 2013. The district court entered a judgment and order on
September 23, 2014 adopting the magistrate judge’s report and recommendation
affirming the Commissioner’s denial of Stephenson’s applications for SSDI and
SSI. This appeal followed.
II. FACTS/RECORD
In 1999, a malignant melanoma was removed from Stephenson’s left calf
and a lymphadenectomy was performed. There was no recurrence of the disease in
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the following ten years. On June 17, 2009, Stephenson visited her primary care
physician, James Byatt, M.D., complaining of a painful swollen left leg. Dr. Byatt
ordered a venous scan of the left lower extremity, which revealed no evidence of
deep vein thrombosis. Stephenson was referred by Dr. Byatt to Andrew J. Seiwert,
M.D., a vascular surgeon at Fostoria Vascular Clinic, for further evaluation and
treatment.
Stephenson saw Dr. Seiwert on July 6, 2009, who diagnosed her with
lymphedema on her left leg, “likely due to lymphatic obstruction secondary to
melanoma excision and lymphadenectomy.” (R. 12 at PgID 345). Dr. Seiwert
noted that Stephenson’s legs were normal, except for a trace of edema in her left
calf, ankle and foot regions. Dr. Seiwert also noted that Stephenson’s weight gain
and increased skin perfusion associated with the warm summer months
exacerbated the condition. Dr. Seiwert referred Stephenson to the Lymphedema
Clinic for further evaluation.
On October 19, 2009, Todd Russell, M.D. of the Lymphedema Clinic noted
that the swelling in Stephenson’s left leg was under control since it was half the
size it had been prior to the Clinic’s treatment, but Stephenson continued to
complain of pain in her left leg. Dr. Russell noted that this was unusual since in
most people affected by lymphedema, the swelling was relatively painless. Dr.
Russell encouraged Stephenson to continue with compression therapy and
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recommended further testing to determine the source of the pain. On November
23, 2009, Stephenson underwent a venous duplex bilateral examination. The result
of the venous Doppler study was unremarkable, with no evidence of deep vein
thrombosis, superficial venous thrombosis or venous valvular insufficiency in
either leg.
A State of Ohio agency consultant, Leigh Thomas, M.D., assessed
Stephenson’s residual functional capacity on November 25, 2009. Dr. Thomas
found that Stephenson could lift twenty pounds occasionally and ten pounds
frequently. Dr. Thomas noted that Stephenson could sit six hours in an eight-hour
work day and that standing/walking was limited to two hours. Dr. Thomas
indicated that Stephenson’s symptoms are not disproportionate to her medically
determinable impairment, and Dr. Thomas found Stephenson credible. Edmond
Gardner, M.D., a state agency consultant, agreed with Dr. Thomas’ assessment
after reviewing Stephenson’s file on April 22, 2010.
On December 7, 2009, Dr. Seiwert reported that Stephenson had a somewhat
favorable response to treatment at the Lymphedema Clinic, including use of
compression stockings. Dr. Seiwert noted, however, that her lower left leg was
considerably more swollen than the right leg. Dr. Seiwert found no signs of
ulceration at the calf or prominent varices over the groin and that Stephenson’s
thigh had nearly normal tissue turgor. Dr. Seiwert encouraged Stephenson to be
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more active and to use chaps to keep her stockings from slipping down her leg.
Dr. Seiwert indicated that May-Thurner syndrome remained possible.
On January 7, 2010, Stephenson complained to Dr. Byatt of bilateral
neuropathic symptoms, but denied back pain. Dr. Byatt noted this as classic
parasthesias with tingling and shooting vague numbness associated with bilateral
pain. Dr. Byatt found clinical evidence for an entrapment neuropathy. Dr. Byatt
prescribed Sinernet for symptoms of restless leg syndrome and Darvocet-N for
pain and to reduce Stephenson’s upset stomach caused by taking ibuprofen. Dr.
Byatt noted that Stephenson’s weight had steadily increased, which Stephenson
claimed was because of drinking regular soda and being laid off from her job. Dr.
Byatt ordered an MRI of the lumbar spine and lab work performed on January 13,
2010.
On February 8, 2010, Dr. Byatt noted negative results from the MRI and lab
work, noting that Stephenson was still experiencing chronic lymphedema of her
left leg and bilateral parasthesias. Dr. Byatt prescribed Lyrica to Stephenson.
On April 22, 2010, Dr. Byatt filled out a Basic Medical Form for the Ohio
Department of Job and Family Services where he indicated that Stephenson
suffered from persistent severe lymphedema of her left leg with chronic swelling.
Dr. Byatt checked the boxes regarding Stephenson’s functional limitations
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indicating Stephenson could not work for twelve months or more because she
visited the Lymphedema Clinic three times a week.
On June 7, 2010, Stephenson reported to Dr. Seiwert that her compression
wraps were keeping her symptoms from becoming too prominent and that she had
drainage from the scars located near her melanoma excision on her left calf. Dr.
Seiwert found that Stephenson continued to have prominent venous structures,
with a possibility of central venous hypertension. He ordered a venography to
determine if Stephenson had obstructive venous pathology due to May-Thurner
physiology. The venography on June 16, 2010 revealed a trace deep femoral
reflux on the left side, with no signs of iliocaval venous obstruction.
Stephenson saw Dr. Byatt on September 24, 2010 reporting that she used
Darvocet for her lymphedema pain and that she hoped to work again. Dr. Byatt
refilled the Darvocet prescription. On March 2, 2011, Stephenson reported to Dr.
Byatt that Lyrica was helping with her leg neuropathy. Stephenson indicated she
was taking fifteen online classes to pursue a Bachelor’s degree. Dr. Byatt noted
that Stephenson looked wonderful.
Dr. Byatt filled out disability forms for Stephenson on April 4, 2011. He
indicated that Stephenson had lymphedema on her left leg with secondary
neuropathy since her survey to remove the melanoma in 1999. Dr. Byatt reported
that Stephenson has symptoms of chronic painful swelling in her left leg with
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burning parasthesias on the left leg with hyperparasthesias. Dr. Byatt stated that
Stephenson was unable to work, because she could not stand for more than a few
minutes. Dr. Byatt indicated that Stephenson could sit for a half hour at a time,
could stand for a half hour total in an eight-hour day, could occasionally lift fifteen
pounds, would require unscheduled breaks every half hour, and would be absent
five days of the month.
At the hearing before the ALJ, a vocational expert (“VE”) testified. The VE
testified that Stephenson’s past work experience ranged from light to medium
exertional levels and unskilled to skilled positions. The ALJ posed a hypothetical
question to the ALJ where the individual with the same experience as Stephenson,
who is able to lift no more than fifteen pounds, standing and walking at no greater
than the sedentary exertional level, but not required to stand or walk for more than
a few minutes at a time, with the option of alternating between sitting and standing,
would be precluded from using her left lower extremity for pushing, pulling or
operation of foot controls, and also precluded from climbing, kneeling, crouching
or crawling, with occasional stooping, avoiding exposure to extreme heat. The VE
responded that the individual would not be able to perform Stephenson’s past jobs,
but identified sedentary jobs which such an individual could perform. The ALJ
added a limitation that the individual would be required to elevate her left lower
extremity on a regular basis. The VE responded that there would be no
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occupations available for such an individual. The VE testified that for semi-skilled
jobs, no more than three absences per month would be tolerated, and for unskilled
jobs, no more than one or two absences per month would be tolerated.
The ALJ found that Stephenson suffered from severe lymphedema of her left
leg. The ALJ indicated that this impairment did not meet or medically equal a
listed impairment. The ALJ found Stephenson was not credible because of
Stephenson’s contradictory statements regarding medication side effects, and her
daily living activities, and because the medical evidence did not support
Stephenson’s claims of pain. The ALJ noted the lack of objective evidence
regarding Stephenson’s claim of headaches and the need to elevate her leg
throughout the day.
III. ANALYSIS
A. Standard of Review
We review a district court’s decision on a social security case de novo.
Rabbers v. Comm’r Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009). Our review is
limited to whether the Commissioner’s decision “is supported by substantial
evidence and was made pursuant to proper legal standards.” Id. Substantial
evidence is “more than a mere scintilla” and is “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Jones v.
Sec’y, Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991) (citations
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omitted). “If the Commissioner’s decision is based upon substantial evidence, we
must affirm, even if substantial evidence exists in the record supporting a different
conclusion.” Ealy v. Comm’r Soc. Sec., 594 F.3d 504, 512 (6th Cir. 2010) (citation
omitted).
B. Substantial Evidence
1. Standard Treatment
Stephenson’s first issue on appeal is that substantial evidence does not
support the ALJ’s excluding from his residual functional capacity (“RFC”)
assessment of Stephenson’s need to elevate her left leg throughout the day, the
standard treatment for lymphedema. The Commissioner responds that substantial
evidence does support the ALJ’s RFC assessment. The ALJ determines a
claimant’s RFC based on evidence such as medical records, doctor’s opinions, and
the claimant’s descriptions of her symptoms. 20 C.F.R. § 404.1529(a). The ALJ
considers the “extent to which [the claimant’s] symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence.”
Id.
Objective medical evidence supports the conclusion that Stephenson did not
need to elevate her left leg throughout the day. Medical exams showed no
evidence that Stephenson had deep vein thrombosis or valvular insufficiency. (R.
12 at PageID 337, 343, 331). Doctor’s reports stated that treatment and
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compression stocking helped control her symptoms. (Id. at 332, 331, 360, 373).
Additionally, no doctor instructed Stephenson to regularly elevate her leg.
Stephenson argues that objective medical evidence demonstrates her need to
elevate her leg. She asserts that the websites Mayoclinic.org and WebMD declare
elevation of the limb above the heart to be the standard treatment for lymphedema.
Neither website actually states that elevation is the standard treatment for
lymphedema, however. Mayoclinic suggests elevation to prevent lymphedema
after surgery, and WebMD states elevation “can help ease the drainage.”
Stephenson has not pointed to any evidence in the record that notes the
requirement to elevate her leg throughout the day.
We agree with the district court that substantial evidence supports the ALJ’s
RFC assessment.
2. Credibility
Stephenson argues that the ALJ erred in analyzing her credibility. The
Commissioner responds that the ALJ’s credibility finding was supported by
substantial evidence. “As long as the ALJ cited substantial, legitimate evidence to
support his factual conclusions, we are not to second-guess,” and reversal is not
“warranted even if substantial evidence would support an opposite conclusion.”
Ulman v. Comm’r of Soc. Sec., 693 F.3d 709, 714 (6th Cir. 2012) (citation
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omitted). A harmless error analysis applies to an ALJ’s credibility determination
in a social security case. Id.
The ALJ cited several factors that damaged Stephenson’s credibility as to
the disabling severity of her impairments. The ALJ found that, contrary to her
testimony, Stephenson noted in her documentary submissions to the SSA that there
were no adverse side effects to her prescribed medications. The ALJ further found
that the medical evidence did not substantiate Stephenson’s testimony of severe
headaches or the need to elevate her leg throughout the day. The ALJ found that
Stephenson engaged in varied activities including laundry, dishwashing, periodic
attendance at her children’s sporting events and her own college coursework. The
ALJ noted that Stephenson discontinued her online classes, where she was required
to sit three hours per day, because of lack of internet access. Stephenson did not
indicate that she discontinued her classes because of her impairments.
The ALJ’s credibility finding was supported by substantial evidence, or, in
this instance as to the elevated leg requirement, the lack of evidence. No medical
personnel, including Stephenson’s treating physician, required Stephenson to
elevate her leg throughout the day. There is no contrary evidence to support
Stephenson’s claim that she was required to elevate her leg throughout the day. It
was proper for the ALJ to consider Stephenson’s testimony in light of the
documentary submissions and the medical record.
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Because the ALJ’s credibility finding is supported by substantial evidence,
we are not to second-guess such a finding.
C. The Treating Physician Rule
Stephenson’s second issue on appeal is that the ALJ failed to give her
treating physician’s opinion due weight. The Commissioner responds that the ALJ
applied the applicable regulations when weighing the treating physician’s opinion.
The ALJ is guided by 40 C.F.R. § 404.1527 in evaluating opinion evidence,
with the ultimate issue of disability reserved to the Commissioner. 40 C.F.R.
§ 404.1527(d). “Generally, the more knowledge a treating source has about your
impairment(s) the more weight we will give to the source’s medical opinion.”
40 C.F.R. § 404.1527(c)(2)(ii). “If we find that a treating source’s opinion on the
issue(s) of the nature and severity of your impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in your case record, we will give it
controlling weight.” 40 C.F.R. § 404.1527(c)(2); see also Gayheart v. Comm’r of
Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013). “The Commissioner is required to
provide ‘good reasons’ for discounting the weight given to a treating-source
opinion. These reasons must be supported by the evidence in the case record.” Id.
(citations omitted).
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The ALJ gave Stephenson’s treating physician, Dr. Byatt, significant weight,
but for two exceptions. The ALJ noted that in one report, Dr. Byatt stated that
Stephenson could stand and walk for a total of one-half hour in an eight hour
workday, which the ALJ found was inconsistent with Stephenson’s testimony that
she was able to stand continuously for up to one hour. The other inconsistency
found by the ALJ was that Dr. Byatt indicated Stephenson would require
unscheduled breaks every one-half hour and would miss five days of work
monthly. The ALJ noted that the record indicated that medication and
compression wraps were effective in controlling Stephenson’s symptoms and that
Stephenson was able to maintain a heavy online college course load which
required her to sit three hours daily. The ALJ found Dr. Byatt’s opinion on these
two issues were not credible.
We affirm the district court’s conclusion that the magistrate judge found the
ALJ provided good reasons for affording Dr. Byatt’s opinion limited weight. The
ALJ referred to Stephenson’s own testimony which contradicted Dr. Byatt’s
opinion as to how long Stephenson was able to stand continuously. The ALJ also
noted that Dr. Byatt’s opinion that Stephenson required unscheduled breaks every
one-half hour and would miss five days per month was not supported by the
medical record because the record indicated the medication and compression wraps
effectively controlled Stephenson’s symptoms. The ALJ properly supported the
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discounted weight given to Dr. Byatt’s findings on the two issues noted by
referring to the inconsistencies in the case record.
IV. CONCLUSION
For the reasons set forth above, the judgment of the district court is
AFFIRMED.
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