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Cocke v. Colvin

United States District Court, W.D. Kentucky, Paducah

February 27, 2014

TAMMY L. COCKE, Plaintiff,
CAROLYN W. COLVIN Acting Commissioner of Social Security Defendant.


LANNY KING, Magistrate Judge.

Tammy Cocke filed this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of an administrative decision of the Commissioner of Social Security that denied her application for disability benefits. The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals.

Plaintiff asserts that the administrative law judge (ALJ) made several errors, but she focuses on her treating physician's opinion that her fibromyalgia likely results in routine absences from work of four or more days on a monthly basis, which, if accepted, would render her unemployable.

For the reasons discussed below, the Commissioner's final decision is AFFIRMED and the Plaintiff's Complaint is DISMISSED.

Treating Physician Opinion

In March, 2011, Plaintiff's treating physician, Christopher Morse, D.O., opined that her fibromyalgia symptoms would be expected to result in work absences four or more days a month. Administrative Record (AR), p. 423.

The vocational expert (VE) testified that this limitation, if accepted, would render Plaintiff unemployable as employers generally will not tolerate absences in excess of about two days a month. AR, p. 105. However, according to the VE, Dr. Morse's other findings are compatible with an ability to perform the jobs of sedentary surveillance system monitor and companion. AR, pp. 65 and 103-105.

The ALJ rejected Dr. Morse's medical opinion that Plaintiff will require a disabling level of absenteeism.[1] AR, p. 65.

When an ALJ declines to give controlling weight to the opinion of a treating physician, as occurred in this case, the ALJ is required to give "good reasons" (as contemplated by 20 C.F.R. § 404.1527(c)(2)) for the weight given to that opinion because, even if it is not given controlling weight, it may be entitled to great weight. The factors to be considered are: "[1] the length of the treatment relationship and the frequency of examination, [2] the nature and extent of the treatment relationship, [3] supportability of the opinion, [4] consistency of the opinion with the record as a whole, and [5] the specialization of the treating source." Plaintiff's fact and law summary, Docket 11, p. 1 quoting Wilson v. Commissioner, 378 F.3d 541, 544 (6 Cir.2004) based upon the factors listed at 20 C.F.R. § 404.1527(c)(1) through (5).

Plaintiff does not argue that Dr. Morse's disabling opinion regarding her rate of absenteeism is entitled to controlling weight. Ordinarily, a treating physician's medical opinion is entitled to controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 404.1527(c)(2). However, this test is difficult to apply in a fibromyalgia case because fibromyalgia is diagnosed based on ruling out other diagnoses and "present[s] no objectively alarming signs." Rogers v. Commissioner, 486 F.3d 234, 243 (2007).

Plaintiff contends that the ALJ's decision does not satisfy the "good reasons" giving requirement of Wilson, supra, and 20 C.F.R. § 404.1527(c)(2).

The ALJ noted that Dr. Morse is a family practitioner. AR, p. 65. There is no evidence that he is a rheumatologist or other specialist in the area of fibromyalgia. Factor 5. He issued his opinion in a little more than a year after Plaintiff commenced treatment with him in December, 2009. AR, p. 331. By June, 2010, Plaintiff was "wanting to talk to [Dr. Morse] about getting her an excuse from work to draw work disability." AR, pp. 65 and 304. Factors 1 and 2.

The ALJ rejected Dr. Morse's disabling limitation regarding absenteeism because it appeared to be based on uncritical acceptance of the patient's subjective allegations of daily flare-ups (AR, p. 65), "[y]et, the evidence does not reflect the claimant repeatedly requiring emergency treatment that such a degree of pain would suggest." AR, p. 63. Factor 3.

In addition, the ALJ found Dr. Morse's absenteeism finding to be suspect because some of his other findings, although not disabling, were nevertheless excessive. For example, while Dr. Morse limited Plaintiff to lifting no greater than 10 pounds occasionally (AR, p. 423), Plaintiff indicated that among her significant daily activities was taking care of her physically-disabled late husband, who required dialysis, including disassembling, placing in the trunk of the car, and reassembling his motorized scooter, as well as occasionally taking care of her physically-limited grandmother. AR, pp. 65, 96-97, 379, and 423. During a consultative examination ...

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