Roger Tilley v. Comm of Social Security

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Ralph B. Guy , Jr., Authoring Circuit Judge; Karen Nelson Moore, Circuit Judge, Dissenting and Richard Allen Griffin, Circuit Judge.

Case: 09-6081 Document: 006110721686 Filed: 08/31/2010 Page: 1 NOT RECOMMENDED FOR FULL-TEXT PUBLICATION F ile Name: 10a0580n.06 N o . 09-6081 U N I T E D STATES COURT OF APPEALS F O R THE SIXTH CIRCUIT

FILED
R O G E R D. TILLEY, P lain tiff -A p p e llan t, v. C O M M IS S IO N E R OF SOCIAL SECURITY, D e f e n d a n t - A p p e ll e e . O n Appeal from the United S ta te s District Court for the W e ste rn District of T e n n e ss e e at Memphis

Aug 31, 2010
LEONARD GREEN, Clerk

/ B efo r e : G U Y , MOORE, and GRIFFIN, Circuit Judges. Plain tiff Roger D. Tilley seeks review of the

R A L P H B. GUY, JR., Circuit Judge.

d istric t court's decision affirming an administrative law judge's (ALJ) denial of his a p p lic a tio n for Social Security disability and supplemental security income benefits. Tilley a ss e rts that the ALJ's determination was not supported by substantial evidence and that the A L J did not accord proper weight to the opinion of his treating physician. Finding that the A L J justifiably discounted the opinion of Tilley's treating physician, and that substantial e v id e n c e supported the ALJ's decision overall, we affirm. I. T ille y, who was born in 1954, went to school through the eighth grade and worked p rim a rily as a machine operator from 1976 until January 2004. After he suffered a work-

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re late d lower back injury in January 2004 and was involved in a minor car accident in F e b ru a ry 2004, Tilley applied for Social Security Disability Insurance and Supplemental S e c u rity Insurance benefits from the Social Security Administration. Tilley alleged that his d is a b ility began April 7, 2004, due to degenerative disc disease (DDD) with radiculopathy s ta tu s post lumbar spine surgery, Diabetes Mellitus, and Hypertension. Tilley's applications w e re never amended. In connection with a worker's compensation claim, Tilley began treating with Dr. Carl H u f f at the Bone and Joint Clinic in Dyersburg, Tennessee in early February, 2004. Dr. Huff re f e rre d Tilley to neurosurgeon Dr. Laverne Lovell for evaluation and treatment. Lovell e x a m in e d Tilley in April 2004 and scheduled a bilateral L4-5 hemilaminectomy and d is k e c to m y. When worker's compensation insurance coverage for the surgery was not a u th o riz e d , however, that surgery was cancelled. In October 2004 Tilley was examined by Dr. Donita Keown, who noted that she had r e v ie w e d reports from Drs. Huff and Lovell. Dr. Keown concluded her report as follows: IM P R E S S IO N : 1. H e rn ia te d disk versus degenerative disease of the lumbar spine. The c la im a n t has excellent mobility in all planes of movement of the lumbar spine a n d cervical spine, normal motor strength, normal reflexia, and negative seated s tr a ig h t leg raises. 2. U n re m a r k a b le examination of the cervical spine. 3. N o evidence of arthritis, nor complaints of arthralgia. W O R K EXPECTATIONS: Mr. Tilley could sit, stand or walk eight hours in a n eight-hour day. He could perform frequent lifting of 10 to 15 pounds, o c c a s io n a l lifting of 25 to 30 pounds.

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L ater that month, state agency medical consultant Dr. John Fields performed Tilley's P h ysic a l Residual Functional Capacity Assessment. Dr. Fields found that Tilley could f re q u e n tly lift 25 pounds, and occasionally lift 50 pounds. Dr. Fields also determined that T ille y could stand and/or walk for about 6 hours in an 8-hour workday, sit for the same n u m b e r of hours, and that Tilley's ability to push and/or pull (including operation of hand a n d /o r foot controls) was unlimited, other than as shown for lifting and carrying. T illey had a follow-up appointment with Dr. Lovell in November 2004. Dr. Lovell's rep o rt indicates that based on the earlier information received, he opined in April that Tilley's d is c herniation and symptoms "were probably secondary to the motor vehicle accident." A f ter Dr. Lovell learned that the accident was relatively minor, and that Tilley had regularly lifte d more weight at the workplace than he had initially believed, he sent a hand-written note rec o m m en d in g that he had changed his mind and that he was recommending that the injury " b e treated as a work injury as opposed to secondary to the motor vehicle accident." He then w ro te : In any event, nothing has happened for this patient. He remains off work. He c o n tin u e s to be in severe pain and is here today to proceed on with surgical in te rv e n tio n . I will recommend bilateral L4-5 hemi-laminectomy and d is k e c to m y in his case. T ille y saw Dr. Srivastava, his primary care physician, for evaluation of elevated blood s u g a r levels prior to surgery. In January 2005 he was cleared for surgery by Dr. Srivastava, a n d Dr. Lovell performed back surgery on Tilley later that month. A post-operative MRI s c a n in March 2005 showed "[n]o evidence of disc herniation, fracture or abnormal e n h a n ce m e n t." After an early April 2005 follow-up with Dr. Lovell, the doctor noted that

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th e MRI showed "good decompression of the L4-5 nerve root." Dr. Lovell concluded with t h e following plan: "We will press on with work conditioning for two weeks and then a F u n c tio n a l Capacity Exam after that. I will see him in follow-up once the F.C.E. is done." T ille y visited Dr. Lovell again on April 25, 2005, after undergoing a Functional C a p a c i ty Exam. Dr. Lovell reported that most of Tilley's "multitude of complaints"

a d d re ss e d issues unrelated to the work injury, such as burning in the feet and pain in his neck a n d shoulder. Dr. Lovell made the following notation: D IS C U S S I O N : I have exhausted the postoperative work up, physical therapy a n d now attempts at a valid Functional Capacity Exam. I have also exhausted m ys e lf arguing with him on each one of his visits regarding all of his s ym p to m s . This patient has applied for TennCare and Social Security on m u ltip le occasions according to his testimony today to me and has been turned d o w n each time. I have told him that I will not permanently disable him based o n this Workers' Compensation disc surgery. I'm releasing him today with a p erm an en t weight restriction of 50 pounds. Otherwise, he is free to perform w o rk of any capacity within that weight restriction . . . [h]e is at maximum m e d ic a l improvement as of today, 25 April, 2005 with a PPI rating (according to the AMA Guidelines, 5th Ed.) of ten percent (10%) for lumbar disc h e rn iatio n with bilateral diskectomy at that level. A f ter this, Tilley visited Dr. Joseph Boals in June 2005, and continued treating with D r. Srivastava. Dr. Boals cited the report of Dr. Lovell, repeated the 50-pound weight restrictio n , and opined that Tilley's impairment equaled "13% of the body as a whole." Dr. B o a ls wrote that an "excellent result" would have been a 10% impairment, and there would h a v e been no weight restriction. He concluded by writing that Tilley "should avoid

p ro lo n g e d walking, standing, stooping, squatting, bending, climbing and excessive flexion, ex tens ion or rotation of the back. His one time weight limit should be determined by work tria l." Records of Tilley's visits to Dr. Srivastava following surgery, dated in May, June, and

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S e p te m b e r , demonstrate a variety of complaints by Tilley, including complaints of lower b ac k pain and arthritis as well as pain in Tilley's legs and feet. In September 2005, Tilley's m a in purpose for visiting Dr. Srivastava was to get a follow-up on blood pressure and blood s u g a rs . The record from that visit indicates that Tilley had stopped taking his pills for back p a in because they were causing constipation. F o llo w in g the Social Security Administration's initial denial of his applications for S S D I/S S I benefits, Tilley requested a hearing before an Administrative Law Judge (ALJ), w h ic h was held December 7, 2005. Finding that Tilley was not fully credible and that he re ta in e d the residual functional capacity to perform a wide range of medium work, including h is past relevant work, the ALJ denied Tilley's applications for both Disability Insurance B en ef its and Supplemental Security Income payments. That decision was issued in February 2006. O n review, the Social Security Appeals Council vacated the hearing decision and re m a n d e d the case for further proceedings, including another hearing. The Appeals Council f o u n d that the particular past relevant work considered by the ALJ was only five months in d u ra tio n and did not generate enough income to be considered "qualifying past relevant w o rk " under applicable regulations. Additionally, the Appeals Council found fault with n o n s p e c if ic language used by the ALJ in addressing Tilley's residual functional capacity. B e tw e e n the December 2005 ALJ hearing and the Appeals Council's ruling in D e c e m b e r 2006, the record shows Tilley made general follow-up visits to Dr. Srivastava in D e c em b e r 2005 and March 2006. The record indicates Tilley complained of pain in his back

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o n both occasions. Notes from the December 2005 visit reflect Tilley's statement to the d o c to r that he was "trying hard for his disability." Notes from additional doctor visits in J u n e , September, and October 2006 are in the record, indicating no change in the treatment p la n . T ille y saw general practitioner Dr. Kurt Harnisch in April 2007, who performed an e x a m in a tio n and an assessment of Tilley's residual functional capacities. Dr. Harnisch re p o rte d his assessment that Tilley could lift or carry less than 10 pounds occasionally and f re q u e n tly; could stand or walk less than 2 hours in an 8-hour workday; could sit less than 6 hours in an 8-hour workday; required a job where he could alternate at will between sitting an d standing; and should limit stooping, squatting, etc. Dr. Harnisch also noted Tilley's " sig n if ic a n t manipulation limitations in reaching, handling . . . etc."; his fatigue, "which w o u ld preclude sustained physical activities"; depression suffered by Tilley; and Tilley's n e e d for "chronic pain control." R e c o rd s from October 2006 through April 2007 reflect several visits by Tilley to the T e n n e ss e e Department of Health for checkups on chronic as well as temporary medical p r o b l e m s (e.g., stomach trouble, sinus drainage, pain in hands). During this period Tilley had a heart stress test performed and appears to have complained only once of "neck pain running d o w n shoulder and leg pain." On that date, he was instructed to "cont[inue] current meds as d ir e c te d ." A second hearing before the ALJ was held in May 2007. The ALJ issued a decision fin d ing Tilley ineligible for benefits. The ALJ concluded that the evidence in the record

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s h o w e d that Tilley was capable of lifting and carrying at the medium level of exertion. For th is reason, the ALJ determined that Tilley's residual functional capacity allowed him to p e rf o rm his past relevant work as a machine operator, a job performed by Tilley for 18 m o n th s of the previous 15 years. Accordingly, the ALJ issued his decision finding Tilley had n o t been under a disability from April 7, 2004 through the date of his decision, July 24, 2007. T h e Appeals Council declined Tilley's request for review of that decision, following which T ille y filed this action. II. T o determine whether a claimant is disabled under the Social Security Act, the C o m m is s io n e r of Social Security undertakes a sequential evaluation process. 20 C.F.R. §§ 4 0 4 .1 5 2 0 , 416.920. Steps one through three require determinations on whether the claimant (1 ) is engaged in "substantial gainful activity;" (2) has a "severe medically determinable p h ys ic a l or mental impairment" meeting duration requirements; and (3) has an impairment th a t "meets or equals" one of the listings enumerated in the Listing of Impairments. 20 C .F .R . §§ 404.1520(a)(4)(i)-(iii), 416.920(a)(4)(i)-(iii). The fourth step requires the

C o m m is s io n e r's assessment of the claimant's "residual functional capacity," and d e te rm in a tio n of whether the claimant can perform "past relevant work." 20 C.F.R. §§ 4 0 4 .1 5 2 0 (a )(4 )(iv ), 416.920(a)(4)(iv). If the answer to the fourth inquiry is no, the fifth s te p -- n o t at issue in this appeal--involves a determination of whether the claimant "can m ak e an adjustment to other work." 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v). On

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a l l but the fifth step, the claimant bears the burden of proof. See Jones v. Comm'r of Soc. S e c ., 336 F.3d 469, 474 (6th Cir. 2003). W h e re the Appeals Council denies review of an ALJ's decision, that decision stands a s the final decision of the Commissioner of Social Security. See 20 C.F.R. § 404.981. W h e n we are reviewing that decision, we employ the same standard the district court used: w e determine whether there is substantial evidence in the record to support the ALJ's f in d in g s. 42 U.S.C. § 405(g); Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2 0 0 7 ). Substantial evidence is more than a "scintilla" of evidence, but less than a

p r e p o n d e ra n c e ; a finding that substantial evidence supports the agency's findings requires s im p ly the existence of relevant evidence adequate to support a reasonable conclusion. Ibid. A decision will be affirmed where there is substantial evidence to support the agency's co n clus io n , even where a preponderance of the evidence exists to support the claimant's p o s itio n . Jones, 336 F.3d at 474. A. A L J 's Finding Regarding Medium Work T ille y first claims on appeal that the ALJ's determination that he could perform the e x e rtio n a l demands of medium work is supported neither by the opinion of Dr. Boals nor by o th e r medical evidence in the record. Tilley cites the Commissioner's definition of the full ra n g e of medium work, emphasizing its language that "being on one's feet for most of the w o r k d a y is critical." Specifically, Tilley cites to Dr. Boals's opinion that Tilley "should a v o id . . . prolonged walking, standing, stooping, squatting, bending, climbing and excessive

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f le x io n , extension or rotation of the back," and asserts that this opinion would not allow an in d iv id u a l to perform medium work. A s defendant points out, however, the ALJ did not determine that Tilley could g e n e ra lly perform medium work; rather, he limited Tilley to sitting and standing as needed. In doing so, the ALJ adopted Dr. Lovell's 50-pound lifting restriction, with which Dr. Boals a g r e e d , as well as Dr. Boals's restriction on sitting or standing for prolonged periods. C o n c e rn in g the other medical evidence in the record, Tilley points to Dr. Keown's statement th a t he was limited to "frequent lifting of 10 to 15 pounds, occasional lifting of 25 to 30 p o u n d s ." Tilley asserts that the ALJ failed to explain how he resolved this "inconsistency" in the record. However, as specifically noted by the ALJ, Dr. Keown "found little in the way o f positive objective findings," and performed her exam of Tilley two months prior to his s u r g e ry. This is a sufficient explanation for not fully adopting Dr. Keown's presurgical r e s t r ic t i o n s . T illey also asserts that the opinions of treating physician Dr. Srivastava and Dr. H a rn is c h are inconsistent with the ALJ's decision. The ALJ thoroughly examined the re c o rd s pertaining to Tilley's visits to both doctors, and explained why he weighed their o p in io n s as he did. The ALJ referenced Dr. Srivastava's opinion that Tilley was "incapable o f performing even sedentary work," but noted that in fact Dr. Srivastava's treatment focus w as on Tilley's blood sugar and diabetes. The ALJ considered the occasions, reflected in Dr. S r iv a sta v a 's notes, where Tilley complained of back pain, and noted that the examinations w e re within normal limits. Furthermore, the ALJ fully explained why he considered the

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"m o st compelling" evidence to be that of Tilley's surgeon Dr. Lovell, rather than Dr. S r iv a sta v a . C o n c e rn in g Dr. Harnisch's opinion, the ALJ pointed out that the largely in d e c ip h e ra b le notes reflected just one visit, and primarily reiterated Tilley's subjective c o m p la in ts . The ALJ pointed out that while Dr. Harnisch completed a Medical Source S tatem en t recommending limitations on Tilley's "handling, fingering and feeling," there w e re no objective findings, and that the limitations represented a "gross exaggeration" on the p a rt of Dr. Harnisch, one that led the ALJ to discredit Dr. Harnisch's opinion generally. W h ile Tilley asserts that Dr. Harnisch's report is "replete with medical findings," we c o n c u r with the ALJ's assessment, reiterated by the district court, that "Dr. Harnisch found f e w objective findings on his examination and generally recited Plaintiff's subjective co m p lain ts ." 1 We find the ALJ's determination that the "objective findings do not support th e extreme degree of limitation imposed by this physician" to be supported by substantial e v id e n c e . B. R e sid u a l Functional Capacity to Return to Past Relevant Work T ille y next claims that the ALJ improperly determined that he could return to his past re le v a n t work as a machine operator/utility man. Tilley argues that he did not indicate that h is past work as a machine operator involved any sitting at all. Tilley cites to his own report

Tilley makes the additional argument that the ALJ improperly found he had no mental impairment, because Dr. Harnisch found limitations on Tilley's mental status examination. As refuted by defendant, however, Dr. Harnisch's specialty is family medicine, Dr. Harnisch made no recommendation for mental treatment for Tilley, and no other evidence of record indicated any issue with, or treatment for, Tilley's mental health.

1

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th a t his past relevant work required, on a daily basis, 3 hours of walking, 3 hours of standing, .2 5 hours of climbing, 3 hours of stooping, 3 hours of crouching, 6 hours of handling, g ra b b in g , or grasping big objects, and 2 hours of reaching. We note that the accuracy of such a report is questionable, given that the time spent on the tasks listed by Tilley add up to more h o u rs than the 8-hour workday he reported on the previous page. Moreover, as defendant a ss e rts , plaintiff stated in a different report in the record that the job of Machine Operator in v o lv e d sitting for two hours. This is sufficient evidence for the finding made by the ALJ th a t plaintiff's past relevant work would allow for a sit and stand option, as needed. C. O p in io n of Treating Physician W e stated in Hensley v. Astrue, 573 F.3d 263 (6th Cir. 2009) that: [i]n social security cases involving a claimant's disability, the Commissioner's r e g u la ti o n s require that if the opinion of the claimant's treating physician is " w e ll-su p p o rte d by medically acceptable clinical and laboratory diagnostic te c h n iq u e s" and [is] "not inconsistent with the other substantial evidence in the c a s e record," it must be given "controlling weight." Id . at 266 (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)). Tilley a ss e rts that the ALJ improperly accorded "little weight" to Dr. Srivastava's opinion that T ille y was not able to perform even sedentary work, and argues that the mere existence of a contrary opinion in the record did not give the ALJ a valid basis to reject Dr. Srivastava's o p inion . Tilley contends that the ALJ's rejection of Dr. Srivastava's opinion did not comport w ith the regulations, which list six factors to consider in weighing medical opinions. See 20 C .F .R . § 404.1527(d).

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A lth o u g h treating physicians' opinions can be entitled to "controlling weight," it is c lea r that a treating physician's opinion that is not "well supported by medically acceptable c lin ic a l and laboratory diagnostic techniques," or is "inconsistent with the other substantial e v i d e n c e ," is not controlling. 20 C.F.R. § 404.1527(d)(2). While Tilley cites Blakley v. C o m m iss io n r of Social Security, 581 F.3d 399, 410 (6th Cir. 2009), in asserting that the ALJ im p ro p e rly failed to address each of the regulatory factors in evaluating the opinion of the tre a tin g physician, Blakely does not support his argument. The Blakely decision, finding that th e ALJ had failed to give good reasons for according less than controlling weight to the p l a in t if f ' s treating sources, remanded the case to the Commissioner for further proceedings. U n lik e in Blakely, the ALJ's decision in the instant case fully described the reasoning fo r discounting Dr. Srivastava's opinion. The ALJ thoroughly reviewed Dr. Srivastava's n o t e s and found that his physical exams of Tilley were "essentially normal," and that the e v id e n c e contained "little or no objective findings showing any significant change in [ T ille y's ] medical condition since he was released by his surgeon in April 2005." F u r th e rm o re , the ALJ determined that the opinion of Dr. Lovell, Tilley's neurosurgeon, was e n t itle d to more weight as a specialist and specific treater of Tilley's back problems, in a c c o rd a n c e with 20 C.F.R. § 416.927(d)(5). We do not find that the ALJ's determination to ac co rd greater weight to the opinion of Dr. Lovell was improper. D. A L J 's Credibility Determination T h e ALJ questioned Tilley's credibility in his decision: [ a ]f te r considering the evidence of record, the undersigned finds that the c la im a n t's medically determinable impairments could reasonably be expected

Case: 09-6081 Document: 006110721686 Filed: 08/31/2010 Page: 13 No. 09-6081 to produce the alleged symptoms, but that the claimant's statements concerning th e intensity, persistence and limiting effects of these symptoms are not e n tire ly credible. O n review, "we are to accord the ALJ's determinations of credibility great weight and d e f e r e n c e particularly since the ALJ has the opportunity, which we do not, of observing a w itn e ss 's demeanor while testifying." Jones, 336 F.3d at 476. W e find that substantial evidence supports the ALJ's determination concerning T i l l e y's credibility. For instance, the ALJ noted that the record contained "little or no" e v id e n c e of objective findings showing any change in Tilley's condition after April 2005. F u rth erm o r e, also noted by the ALJ, Tilley did not regularly complain of back pain to Dr. S r iv a sta v a and informed him at least once that he was "trying hard for his disability." The A L J also noted that record documents from Tilley's post-surgery period indicated that Tilley " w a s unmotivated, prompting his post surgical physical therapy to be terminated." Similarly, th e ALJ inspected records from the Tennessee Department of Health, and correctly noted that th e y showed "essentially normal findings on examinations and only intermittent m u s c u lo s k e le ta l complaints." W h e th e r or not we would have come to the conclusion reached by the ALJ, we find th a t substantial evidence supports his decision. For the reasons given above, we AFFIRM th e decision of the district court.2 13

This claim was resolved essentially as one involving alleged disability from a back injury. To the degree that at oral argument counsel for claimant seemed to suggest that disability should have been found as a result of the totality of plaintiff's medical conditions, this claim fails since there is a lack of objective medical evidence in the record to support such a claim.

2

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K A R E N NELSON MOORE, Circuit Judge, dissenting. Because I do not believe th a t substantial evidence supports the ALJ's determination that Roger Tilley was able to re tu rn to his previous employment as a machine operator, I respectfully dissent. I agree with the majority that there is substantial evidence indicating that, while Tilley w o r k e d as a machine operator, he was able to sit for at least part of the day. I can find no e v id e n c e, however, that Tilley was able to "sit and stand as needed," A.R. at 24 (emphasis a d d e d ), a facet of the ALJ's RFC determination that the majority opinion makes no effort to a d d re ss . The ALJ reasoned that because Tilley was responsible for relieving workers when th e y took their breaks, Tilley "did not perform [his] job in a constant position." Id. All this in d ic a te s, however, is that Tilley might have more opportunities to alternate his position than th e average machine operator--there is no indication that Tilley had any control over when th o s e opportunities occurred. Once a relief worker assumes control of machine, he

p r e s u m a b l y must continue to work at that machine until the original operator returns. P e rh a p s that length of time is short enough to accommodate Tilley's specific limitations, but th e re is simply no evidence to suggest that this is so. A t Stage Four of the sequential analysis, Tilley has the burden of proof. Walters v. C o m m 'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997). Although there is no evidence in th e record indicating that Tilley could not sit as needed while working as a machine operator, th e re is also no evidence that he could sit or stand as needed. The claimant is not solely re sp o n s ib le for developing the record with respect to the physical demands of his previous jo b . Winfrey v. Chater, 92 F.3d 1017, 1024 (10th Cir. 1996). Rather, under the Social

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S e c u rity Program Policy Statement, the ALJ is required to make specific findings of fact with re sp e c t to "the physical and mental demands of [the claimant's] past job/occupation," Soc. S ec . Rul. 82-62, 1982 WL 31386, at *4 (1982), and must make "every effort . . . to secure e v id e n c e that resolves the issue as clearly and explicitly as circumstances permit," id. at *3; s e e also Henrie v. U.S. Dep't of Health & Human Servs., 13 F.3d 359, 360-61 (10th Cir. 1 9 9 3 ). Therefore, pursuant to Soc. Sec. Rul. 82-62, I would remand Tilley's case to the ALJ to develop the record with respect to whether Tilley's previous position as a machine o p e ra to r allowed him to sit and stand as needed. I respectfully dissent.