Thrasher v. Social Security Administration, Commissioner

Filing 10

MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 08/31/12. (CVA)

FILED
2012 Aug-31 PM 03:54
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
SHANNON DOUGLAS
THRASHER,
Plaintiff,
vs.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
ADMINISTRATION,
Defendant.

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Civil Action Number
1:11-cv-2817-AKK

MEMORANDUM OPINION
Plaintiff Shannon Douglas Thrasher (“Thrasher”) brings this action pursuant
to Section 205(g) of the Social Security Act (“the Act”), 42 U.S.C. § 405(g),
seeking review of the final adverse decision of the Commissioner of the Social
Security Administration (“SSA”). This court finds that the Administrative Law
Judge’s (“ALJ”) decision - which has become the decision of the Commissioner is supported by substantial evidence and, therefore, AFFIRMS the decision
denying benefits.
I. Procedural History
Thrasher filed his applications for Title II disability insurance benefits and
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Title XVI Supplemental Security Income on January 23, 2008, alleging a disability
onset date of October 11, 2007. (R. 130-34). Thrasher alleges that he is unable to
work due to blindness in his right eye, rheumatoid arthritis, and high blood
pressure. (R. 151). After the SSA denied his applications on March 14, 2008, (R.
90-94), Thrasher requested a hearing, (R. 40), which he received on January 21,
2010, (R. 42). At the time of the hearing, Thrasher was 36 years old, (R. 49), had
a high school diploma, id., and past relevant work that included heavy, semiskilled work as a tree trimmer and sign erector, medium, semi-skilled work as a
heavy equipment operator, molding machine operator, and delivery driver, and
medium, unskilled work as a wire coating machine operator. (R. 72). Thrasher
has not engaged in substantial gainful activity since October 11, 2007. (R. 21,
151).
The ALJ denied Thrasher’s claims on February 19, 2010, (R. 16), which
became the final decision of the Commissioner when the Appeals Council refused
to grant review on July 9, 2011, (R. 1-5). Thrasher then filed this action pursuant
to section 1631 of the Act, 42 U.S.C. § 1383(c)(3). Doc. 1.
II. Standard of Review
The only issues before this court are whether the record contains substantial
evidence to sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v.
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Schweiker, 672 F.2d 835, 838 (11th Cir. 1982), and whether the ALJ applied the
correct legal standards, see Lamb v. Bowen, 847 F.2d 698, 701 (11th Cir. 1988);
Chester v. Bowen, 792 F.2d 129, 131 (11th Cir. 1986). Title 42 U.S.C. §§ 405(g)
and 1383(c) mandate that the Commissioner’s “factual findings are conclusive if
supported by ‘substantial evidence.’” Martin v. Sullivan, 894 F.2d 1520, 1529
(11th Cir. 1990). The district court may not reconsider the facts, reevaluate the
evidence, or substitute its judgment for that of the Commissioner; instead, it must
review the final decision as a whole and determine if the decision is “reasonable
and supported by substantial evidence.” See id. (citing Bloodsworth v. Heckler,
703 F.2d 1233, 1239 (11th Cir. 1983)).
Substantial evidence falls somewhere between a scintilla and a
preponderance of evidence; “[i]t is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion.” Martin, 849 F.2d at 1529
(quoting Bloodsworth, 703 F.2d at 1239) (other citations omitted). If supported by
substantial evidence, the court must affirm the Commissioner’s factual findings
even if the preponderance of the evidence is against the Commissioner’s findings.
See Martin, 894 F.2d at 1529. While the court acknowledges that judicial review
of the ALJ’s findings is limited in scope, it notes that the review “does not yield
automatic affirmance.” Lamb, 847 F.2d at 701.
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III. Statutory and Regulatory Framework
To qualify for disability benefits, a claimant must show “the inability to
engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairments which can be expected to result in death or which
has lasted or can be expected to last for a continuous period of not less than twelve
months.” 42 U.S.C. § 423(d)(1)(A); 42 U.S.C. § 416(I). A physical or mental
impairment is “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrated by medically acceptable
clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).
Determination of disability under the Act requires a five step analysis.
20 C.F.R. § 404.1520(a)-(f). Specifically, the Commissioner must determine in
sequence:
(1)

whether the claimant is currently unemployed;

(2)

whether the claimant has a severe impairment;

(3)

whether the impairment meets or equals one listed by the Secretary;

(4)

whether the claimant is unable to perform his or her past work; and

(5)

whether the claimant is unable to perform any work in the national
economy.

McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986). “An affirmative

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answer to any of the above questions leads either to the next question, or, on steps
three and five, to a finding of disability. A negative answer to any question, other
than step three, leads to a determination of ‘not disabled.’” Id. at 1030 (citing 20
C.F.R. § 416.920(a)-(f)). “Once a finding is made that a claimant cannot return to
prior work the burden shifts to the Secretary to show other work the claimant can
do.” Foote v. Chater, 67 F.3d 1553, 1559 (11th Cir. 1995) (citation omitted).
IV. The ALJ’s Decision
The ALJ initially determined that Thrasher had not engaged in substantial
gainful activity since his alleged onset date, and therefore met Step One. (R. 21).
Next, the ALJ acknowledged that Thrasher’s severe impairments of pan-uveitis,
vasculitis in the left eye, interstitial lung disease (chronic obstructive pulmonary
disease), osteopenia of the lumbosacral spine, lumbosacral spondylosis without
myelopathy, degenerative joint disease of the knees, arthritis, and hypertension
met Step Two. (R. 22). The ALJ then proceeded to the next step and found that
Thrasher did not satisfy Step Three since he “does not have an impairment or
combination of impairments that meets or medically equals one of the listed
impairments.” Id. Although the ALJ answered Step Three in the negative,
consistent with the law, see McDaniel, 800 F.2d at 1030, the ALJ proceeded to
Step Four, where he determined that Thrasher
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retains the residual functional capacity [RFC] to perform light work
[ ]. Specifically, the full range of light work involves lifting no more
than 20 pounds with frequent lifting or carrying of objects up to 10
pounds, standing or walking up to 6 hours in an 8 hour day, and
sitting up to 6 hours in an 8-hour day; with, generally, occasional
stooping, some pushing and pulling of arm and/or leg controls, and
the gross use of hands to grasp, hold and/or turn objects. The
undersigned further finds, however, that the full range of light work
that can be performed by [Thrasher] is reduced by the following
functional limitations: he is limited to work which involves,
exertionally, sitting for no more than 1 hour at one time, up to 4 hours
in an eight hour day; standing for no more than 45 minutes at one
time, up to 2 hours in an 8 hour day; walking for no more than 30
minutes at one time, up to 2 hours in an eight hour day; no more than
frequent lifting or carrying up to 10 pounds; and no more than
occasional lifting or carrying up to 20 pounds. With regard to nonexertional limitations, he is limited to work which does not involve
climbing of ladders or scaffolds; which does not involve kneeling,
crouching, or crawling; and which does not involve working around
unprotected heights. He is limited to work which does not involve
more than frequent reaching overhead; no more than frequent
climbing of stairs and ramps; and no more than occasional balancing,
stooping, driving of automotive equipment, or exposure to marked
changes in temperature or humidity. However, the undersigned is of
the opinion that [Thrasher] is able to continuously use his hands for
repetitive action such as simple grasping, for pushing and pulling of
arm controls, and for fine manipulation. He can continuously use his
feet for repetitive movement such as pushing and pulling of leg
controls and work around moving machinery. The undersigned
further finds that [Thrasher’s] functional capacity is limited due to a
moderate degree of pain and that, as a result of his blindness in the
right eye, he is limited to work which does not require the use of
binocular vision or peripheral vision and which does not involve
activities which would be considered dangerous to persons with
monocular vision.
(R. 23) (emphasis in original).
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Regarding Thrasher’s treating physician Dr. Russell Ulrich’s (“Dr. Ulrich”)
opinion that Thrasher is disabled, the ALJ found Dr. Ulrich not credible because
he diagnosed Thrasher with osteoporosis and lumbosacral spondylosis without any
supporting objective laboratory testing. (R. 26-27). Accordingly, the ALJ held
that
Dr. Ulrich’s opinions regarding [Thrasher’s] limitations arising out of
his musculoskeletal impairments are, apparently, based on nothing
more than [Thrasher’s] self-reported symptomology. . . . For these
reasons, the undersigned rejects the opinions of Dr. Ulrich as
expressed in his reports of February 22, 2008 and June 8, 2008 and
assigns them no significant weight to the extent that they are
inconsistent with the [RFC] assessment herein.
(R. 30-31). As it relates to consulting physician Dr. Kishin Gehi (“Dr. Gehi”), the
ALJ concluded that
based upon Dr. Gehi’s physical examination observations [ ] and the
available objective evidence, [Thrasher] can walk for at least two
hours in an 8 hour day and sit/stand/walk for a total of at least 8 hours
a day. I give substantial weight to Dr. Gehi’s assessment that reflects
[Thrasher] can perform a range of light work activity. His opinion is
well supported by his own clinical examinations and testing [ ] and is
generally consistent with the record as a whole.
(R. 32). In light of Thrasher’s RFC and exertional limitations, the ALJ held that
Thrasher was “unable to perform any past relevant work.” (R. 17). The ALJ then
moved on to Step Five where he considered Thrasher’s age, education, experience,
and RFC, and determined that “jobs . . . exist in significant numbers in the national
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economy that [Thrasher] can perform.” (R. 18). As a result, the ALJ answered
Step Five in the negative, and determined that Thrasher is not disabled. (R. 19);
see also McDaniel, 800 F.2d at 1030. It is this finding that Thrasher challenges.
V. Analysis
Thrasher asserts that the ALJ committed reversible error by failing to apply
the proper weight to the opinions of his treating physician Dr. Ulrich and the State
Agency consultant Dr. Gehi. Doc. 8 at 11-15. For the reasons stated below, this
court finds that the ALJ’s opinion is supported by substantial evidence.
A.

Dr. Russell Ulrich
To address Thrasher’s contention that the ALJ improperly rejected Dr.

Ulrich’s opinion, doc. 8 at 11-13, the court will review Dr. Ulrich’s treatment
notes as they relate to Thrasher’s back and knee pain. In that regard, the treatment
records reveal that Thrasher visited Dr. Ulrich on December 8, 2003, for
evaluation and treatment for pain in his lower back and between his shoulder
blades that was aggravated by cold weather. (R. 329). Thrasher had a tender back
at L5-S1, normal straight leg raises and deep tendon reflexes, and Dr. Ulrich
prescribed Lorcet for pain. Id.
Two months later, on February 6, 2004, Thrasher presented to Dr. Ulrich
again with low back pain. (R. 328). Dr. Ulrich made treatment notes that were
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identical to his December 2003 notes and prescribed Lorcet again for pain and
Naprosyn for muscle spasms. Id. Thrasher returned to Dr. Ulrich complaining of
back and shoulder pain on March 1, 2004, May 27, 2005, and January 23, 2006,
but Dr. Ulrich made no other treatment notes related to Thrasher’s pain. (R. 316,
317, 327).
Thrasher’s next visit to Dr. Ulrich occurred on July 19, 2006, during which
Thrasher complained about “low back pain, knee pain, neck pain,” and that his
“left leg is numb in the upper thigh.” (R. 312). Thrasher’s neurological system
was “within physiological limits” and his extremities had palpable pulses and no
edema. Id. Dr. Ulrich diagnosed Thrasher with meralgia paresthetica and
prescribed Lorcet Plus and Neurotonin for pain. Id.
On January 5, 2007, Thrasher visited Dr. Ulrich complaining of knee and
back pain. (R. 308). Again, Thrasher had a neurological system that was within
physiological limits and his extremities had palpable pulses and no edema. Id. Dr.
Ulrich diagnosed Thrasher with arthralgia due primarily to a “fast taper” of
Prednisone1 which “causes a lot of aches and pains.” Id.2
1

On February 15, 2007, Thrasher received a virectomy of the left eye at Callahan Eye
Foundation Hospital and was prescribed the steroid Prednisone. (R. 250).
2

On April 6, 2007, Thrasher complained of pain in his right heel and Dr. Ulrich diagnosed
plantar fasciitis. (R. 306). This diagnosis is unrelated to Dr. Ulrich’s opinion that Thrasher is
disabled.
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Four months later, on May 11, 2007, Dr. Ulrich evaluated Thrasher for back
and leg pain and observed that Thrasher had a tender back at L5-S1 and normal
straight leg raises. (R. 304). An x-ray of Thrasher’s lumbar spine revealed “no
significant abnormality identified in the lumbar spine,” and “4 mm calcific density
projected over the right renal outline, possibly related to renal calculus.” (R. 345).
On August 9, 2007, Thrasher received a bone density test that revealed
“osteopenia of the lumbar spine,” (R. 343), which is characterized by a slight
thinning of the bone. Two weeks later, on August 24, 2007, Dr. Ulrich evaluated
Thrasher for “low back pain” that was “going down his legs” and diagnosed
Thrasher with low back pain with radiculopathy and possible gout. (R. 303).
Three weeks later, on September 14, 2007, without any supporting medical
evidence, Dr. Ulrich noted for the first time that Thrasher suffered from
osteoporosis secondary to steroids. (R. 302).
The next month, on October 19, 2007, although Thrasher primarily
complained about gastritis, Dr. Ulrich noted that Thrasher’s “paravertebral
muscles in the lumbar region are tender. Normal extension, flexion is decreased
about 30%. Straight leg raising is negative. Deep tendon reflexes are 2+ knee and
ankle jerk.” (R. 300). Dr. Ulrich diagnosed Thrasher with lumbosacral
spondylosis. Id.
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Thrasher presented again to Dr. Ulrich on February 4, 2008, complaining of
back and knee pain. (R. 298). Dr. Ulrich’s examination revealed the same clinical
findings as in October 2007 and a diagnosis of lumbosacral spondylosis without
myelopathy. That same month, on February 22, 2008, Dr. Ulrich completed a
disability determination form where he diagnosed Thrasher with osteopenia due to
steroid use, lumbosacral spondylosis without myelopathy, and degenerative joint
disease. (R. 296-97).3
On June 8, 2008, Dr. Ulrich completed a Physical Capacities Evaluation and
opined that Thrasher could (1) lift or carry 5 pounds, sit two hours, and stand one
hour during an 8 hour work day, (2) rarely bend, stoop, reach, climb stairs or
ladders, balance, or push or pull with arm and leg controls, and (3) occasionally
use gross and fine manipulation, operate motor vehicles, and work around
hazardous machinery. (R. 418). Dr. Ulrich noted that Thrasher’s chronic low
back pain would likely cause Thrasher to miss work more than four days each
month. Id. Lastly, Dr. Ulrich opined that Thrasher’s pain (1) would distract him
from adequate performance of daily work activities, (2) is greatly increased by

3

Thrasher visited Dr. Ulrich on several occasions between February 2008 and January
2010, where his chief complaints were gastritis, hypertension, and hypothyroidism. (R. 185, 186,
188, 190, 192, 203, 205, 410, 412, 420). The court does not recount these visits here since they
are unrelated to Dr. Ulrich’s disability opinion.
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physical activity causing distraction or total abandonment of tasks, and (3)
requires prescribed medication that causes side effects expected to be severe and
“limit effectiveness due to distraction, inattention, and drowsiness.” (R. 419). It
is these findings from February and June 2008 that form the basis of Thrasher’s
disability claim and contention of error.4
The ALJ’s decision to reject Dr. Ulrich’s February 22, 2008, and June 8,
2008, reports is supported by substantial evidence. As a threshold matter, the
court notes that the regulations allow the ALJ to reject a treating physician’s
assessment, when, as here, the physician failed to present “relevant evidence to
support an opinion.” See 20 C.F.R. § 404.1527(d)(2). In that regard, Dr. Ulrich
diagnosed Thrasher with lumbosacral spondylosis without myelopathy although
Thrasher’s x-ray revealed no significant abnormalities in his lumbar spine. (R.
345). Moreover, Dr. Ulrich’s examinations frequently revealed only tenderness in
Thrasher’s lumbosacral region of his back and that Thrasher had normal straightleg raises and neurological system tests. Likewise, although Thasher’s bone
density test confirmed osteopenia, Dr. Ulrich diagnosed Thrasher with steroid

4

Two years later, on July 2, 2010, Dr. Ulrich evaluated Thrasher for severe knee pain and
noted that Thrasher’s right knee had approximately 20 ml of effusion and that Celebrex provided
no relief. (R. 430). Dr. Ulrich required Thrasher to execute a pain agreement and prescribed
Lorcet Plus for pain. Id. Finally, on November 2, 2010, Dr. Ulrich opined that Thrasher is
“totally and permanently disabled and I see no hope of improvement in his case.” (R. 435).
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induced osteoporosis, characterized by a loss of bone mass, fractures, loss of
height, and pain. Finally, Dr. Ulrich determined that Thrasher’s pain medication
caused side effects that impeded Thrasher’s ability to concentrate without any
treatment notes to support this finding. The lack of objective medical findings
belie Dr. Ulrich’s opinion regarding Thrasher’s limitations. Therefore, the ALJ’s
decision to assign Dr. Ulrich’s opinion “no significant weight” is supported by
substantial evidence.
B.

Dr. Kishin Gehi
Lastly, Thrasher contends that the ALJ improperly considered the opinion

of consultative examiner Dr. Kishin Gehi (“Dr. Gehi”), who on August 14, 2009,
performed a disability determination examination and opined that Thrasher can (1)
sit for one hour, stand for 45 minutes, and walk for 30 minutes without
interruption, (2) sit for 4 hours, stand for 2 hours, and walk for 1 hour in an 8-hour
work day, (3) frequently lift and carry up to 10 pounds, occasionally lift and carry
11 - 20 pounds, and never lift or carry over 21 pounds, (4) frequently reach and
handle, finger, feel, push/pull, and climb stairs and ramps, (5) continuously
operate foot controls, (6) never kneel, crouch, crawl, or climb ladders and
scaffolds, and (7) occasionally balance and stoop. (R. 389-391). Dr. Gehi noted
also that Thrasher can shop, travel, ambulate without a cane, walk a block and
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climb steps at a reasonable pace, use public transportation, prepare meals, care for
his hygiene, and sort and handle paper files. (R. 393). Dr. Gehi diagnosed
Thrasher with hypertension, history of hypothyroidism, arthritis involving multiple
joints, and chronic obstructive airways disease secondary to cigarette use. (R.
387).
The ALJ gave “substantial weight” to Dr. Gehi’s opinion and adopted most
of the limitations Dr. Gehi prescribed because his opinion was “well supported by
his clinical examination and consistent with the record as a whole.” (R. 32). For
example, Dr. Gehi’s examination revealed that Thrasher has a “full range of
motion in all the joints,” “some crepitation over his knees” and “puffiness of the
joints in his fingers,” and intact cranial nerves 2-12. (R. 387). Further, Dr. Gehi
observed that Thrasher is able to stand on his toes and heels, walk with a “normal
gait,” and that his motor system is normal and that his sensory examination is
“bilaterally symmetric and equal.” Id. To the extent the ALJ adopted Dr. Gehi’s
opinion, the opinion is supportable and consistent with Dr. Gehi’s clinical findings
and the medical evidence of record. See 20 C.F.R. § 404.1527(d).
Although the ALJ “substantially concur[red]” with Dr. Gehi’s findings, (R.
32), the ALJ disagreed with Dr. Gehi’s opinion that Thrasher can walk for only
one hour a day and sit, stand, and walk for only 7 hours in a day, and found
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instead that Thrasher can walk for at least 2 hours in an 8-hours work day and sit,
stand, and walk for a total of 8 hours a day, id. The ALJ’s decision to reject Dr.
Gehi’s limitations is supported by substantial evidence because Dr. Gehi’s
evaluation of Thrasher failed to reveal any significant abnormalities or restrictions
in daily living. Significantly, the ALJ’s rejection of Dr. Gehi’s limitations is
supported also by Dr. Ulrich’s examinations and the objective medical evidence,
including Thrasher’s x-ray and bone scan. In other words, because the ALJ’s RFC
is consistent with the record evidence regarding Thrasher’s back and knee pain, to
the extent the ALJ relied on Dr. Gehi’s opinion, the ALJ’s decision is supported
by substantial evidence. Therefore, this court finds that Thrasher failed to
establish that his knee and back pain are disabling, see 20 C.F.R. § 416.905(a).
VI. Conclusion
Based on the foregoing, the court concludes that the ALJ’s determination
that Thrasher is not disabled is supported by substantial evidence, and that the ALJ
applied proper legal standards in reaching this determination. Therefore, the
Commissioner’s final decision is AFFIRMED. A separate order in accordance
with the memorandum of decision will be entered.

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Done the 31st day of August, 2012.

________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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