Mohr v. Social Security Administration, Commissioner

Filing 12

MEMORANDUM OF DECISION. Signed by Judge R David Proctor on 6/22/2016. (AVC)

FILED
2016 Jun-22 PM 03:09
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION

ROBERT A. MOHR,
Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Case No.: 7:15-CV-01365-RDP

MEMORANDUM OF DECISION
Plaintiff Robert A. Mohr brings this action pursuant to Section 205(g) of the Social
Security Act (the “Act”), seeking review of the decision of the Commissioner of Social Security
(“Commissioner”) denying his claims for a period of disability and disability insurance benefits
(“DIB”). See also 42 U.S.C. § 405(g). After careful review of the record and the briefs submitted
by the parties, the court finds that the decision of the Commissioner is due to be affirmed.
I.

Proceedings Below
Plaintiff alleges a disability onset date of July 25, 2012, and filed his application for a

period of disability and DIB on October 2, 2012. (R. 56, 123-126). Plaintiff’s application was
initially denied on November 7, 2012. (R. 73-77). On November 20, 2012, Plaintiff requested a
hearing before an Administrative Law Judge (“ALJ”). (R. 80-81). Plaintiff’s request was granted
and a hearing was held on January 22, 2014. (R. 20-47). Plaintiff’s attorney, Mr. Clark, made an
opening argument that was followed by testimony from Plaintiff and the vocational expert
(“VE”). Id.

In his March 6, 2014 decision, the ALJ determined Plaintiff was not eligible for disability
and DIB, because he failed to meet the disability requirements of the Act and retained the
residual functional capacity (“RFC”) to perform sedentary work with some limitations. (R. 66).
After the Appeals Council denied Plaintiff’s request for review of the ALJ’s decision on June 30,
2015, that decision became the final decision of the Commissioner, and therefore a proper
subject of this court’s appellate review. (R. 1). 42 U.S.C. §§ 405(g) and 1383(c).
II.

Facts
Plaintiff was 43 years old at the time of the hearing, had at least a high school education

and was able to communicate in English. (R. 67). Plaintiff alleges he has been unable to engage
in substantial gainful activity since July 25, 2012. (R. 63, 123-126).1 Prior to his alleged onset
date of disability, Plaintiff worked as a warehouse worker and forklift operator. (R. 67, 26-27).
He described his job as involving “very heavy work” which involved lifting, running a crane and
fork lift, and climbing in and out of a tall forklift. (R. 27). He is able to care and groom himself,
as well as fix simple meals, drive a car, grocery shop with assistance, and care for his sixteenyear old daughter. (R. 36-39, 66). Plaintiff alleges disability based on the following conditions:
degenerative disc disease in his cervical spine, osteoarthritis in his right knee, a painful bladder
condition, high blood pressure, high cholesterol, and acid reflux. (R. 65).
Plaintiff has a history of musculoskeletal pain. (R. 63-67). He was evaluated Dr. Robert
S. Ghivan, a neurosurgeon, on May 11, 2010. (R. 203). It was determined he was suffering from
severe cervical radiculopathy and an MRI showed significant disc herniations at his C5-C6 and
C6-7, and “significant right C6 and C7 nerve root impingement.” (Id.). Plaintiff underwent his

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Plaintiff did receive profit sharing bonus and disbursement of vacation and sick pay from former
employer. The ALJ determined that these earnings did not constitute as substantial gainful activity. (R. 63, 137-143).

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first neck surgery on May 14, 2010.2 (R. 220-224). He then had a second surgery on his neck by
a different surgeon approximately nine months after his first surgery. 3 (R. 28). This was
eventually followed by his third and final neck surgery by Dr. Ghivan.4 (R. 214). Plaintiff claims
to have (1) made little progress after his last neck surgery and (2) experienced significant
continuing pain. (R. 29-34). He has pain in his neck that radiates through his arms and hands,
and claims to only be able to lift slightly heavy objects for a short period of time. (Id.). He
testified that he could only sit for 15 to 20 minutes and stand only for about 15 to 20 minutes
before he had to change position. (Id.). He also claims that due to his pain he spends four to five
hours a day lying down and resting. (Id.). Dr. Ghivan determined that Plaintiff would not be able
to return to his previous work again. (R. 67).
Plaintiff also received three knee operations, in which he claims he still suffers from
stiffness and pain.5 (Id.). He still has swelling in his knee, and elevates it throughout the day to
alleviate the swelling. (Id.). The ALJ asked Plaintiff what his pain would be -- with and without
his pain medication -- on a scale of one to ten. (Id.). Plaintiff responded that his pain without his
medication would be a ten, and with medication a seven or eight. (Id.).
The VE who testified at his hearing indicated that Plaintiff’s job as a warehouse worker
was classified as “heavy or very heavy” and had an SVP of 2. (R. 40). The VE then opined that
Plaintiff’s work as a forklift operator is considered “medium work and is semi-skilled with an
2

Plaintiff underwent C5-6 and C6-C7 anterior cervical discectomy, C5-6 and C6-C7 interbody fusion, and
“an internal fixation with an anterior cervical locking plate/Synthes CSLP plate.” (R. 220).
3

The Birmingham surgeon, Dr. Sazarly, performed a posterior cervical laminectomy on Plaintiff. (R. 34,

214).
4

Plaintiff underwent removal of anterior cervical locking plate. Also, received an anterior cervical
discectomy, C$-5 interbody fusion, and “an internal fixation with an anterior cervical locking plate/Synthes CSLP
plate.” (R. 214).
5

Plaintiff testifies that his most recent knee surgery was in April 2013, and the two previous ones eight to
ten years prior. (R. 35).

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SVP of 3.” (Id.). The ALJ presented a hypothetical to the VE, inquiring as to whether a person
similarly situated to Plaintiff could perform work at the light level, but with some additional
limitations, including
Pushing and pulling and foot control operation are bilaterally limited to no more
than occasional. Climbing of ramps and stairs can be done on a frequent basis
with no climbing of ladders, ropes or scaffolds and no more than occasional
balancing, stooping, kneeling, crouching, and crawling. Overhead reaching
bilaterally is precluded entirely, and no more than occasional exposure to
excessive vibration. And this individual would need to avoid any exposure to
unprotected heights or the operational control of hazardous and moving
machinery.
(R. 40-41). The VE responded that a person such as Plaintiff would not be able to perform any of
his past work in the light of the limitations listed in the hypothetical. (Id.). However, the VE
stated there were other jobs that Plaintiff could perform such as general office clerk, assembler a
production worker, and ticket seller and taker. (Id.). The ALJ then questioned the VE as to
whether if the exertional level was reduced to sedentary, and if the same restrictions applied as
indicated in the previous hypothetical, whether that would allow for other work. (Id.). The VE
stated such a hypothetical person could still work as a general office clerk, receptionist,
information clerk, and order clerk. (Id.).
The ALJ asked whether an employer would tolerate a person who “because of
impairment-caused pain” who needed to take two additional unscheduled breaks, accruing up to
four additional breaks per workday. (Id.). The VE responded in the negative, stating that an
employer would “not usually tolerate more than three” breaks in a day. (Id.). The VE also opined
that missing two days of work a month would preclude an individual from most jobs, and that
when a person is required to change from sitting and standing frequently, that may further limit
employment options. (R. 42-45). However, the VE testified that there are still jobs available with
those restrictions. (Id.).
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III.

ALJ Decision
Disability under the Act is determined under a five-step test. 20 C.F.R. § 404.1520.

First, the ALJ must determine whether the claimant is engaging in substantial gainful activity.
20 C.F.R. § 404.1520(a)(4)(i). “Substantial work activity” is work activity that involves doing
significant physical or mental activities. 20 C.F.R. § 404.1572(a). “Gainful work activity” is
work that is done for pay or profit. 20 C.F.R. § 404.1572(b). If the ALJ finds that the claimant
engages in substantial gainful activity, then the claimant cannot claim disability. 20 C.F.R. §
404.1520(b). Second, the ALJ must determine whether the claimant has a medically
determinable impairment or a combination of medical impairments that significantly limits the
claimant’s ability to perform basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii). Absent such
impairment, the claimant may not claim disability. (Id.). Third, the ALJ must determine whether
the claimant’s impairment meets or medically equals the criteria of an impairment listed in 20
C.F.R. § 404, Subpart P, Appendix 1. See 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526.
If such criteria are met, the claimant is declared disabled. 20 C.F.R. § 404.1520(a)(4)(iii).
If the claimant does not fulfill the requirements necessary to be declared disabled under
the third step, the ALJ may still find disability under the next two steps of the analysis. The ALJ
must first determine the claimant’s residual functional capacity (“RFC”), which refers to the
claimant’s ability to work despite her impairments. 20 C.F.R. § 404.1520(e). In the fourth step,
the ALJ determines whether the claimant has the RFC to perform past relevant work. 20 C.F.R.
§ 404.1520(a)(4)(iv). If the claimant is determined to be capable of performing past relevant
work, then the claimant is deemed not disabled. (Id.). If the ALJ finds the claimant unable to
perform past relevant work, then the analysis proceeds to the fifth and final step. 20 C.F.R. §
404.1520(a)(4)(v). In the last part of the analysis, the ALJ must determine whether the claimant

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is able to perform any other work commensurate with his RFC, age, education, and work
experience. 20 C.F.R. § 404.1520(g). At this point, the burden of proof shifts from the claimant
to the ALJ to prove the existence, in significant numbers, of jobs in the national economy that
the claimant can do given his RFC, age, education, and work experience.

20 C.F.R. §§

404.1520(g), 404.1560(c).
Here, the ALJ made the determination that Plaintiff had not engaged in any substantial
gainful activity since July 25, 2012, his alleged onset date. (R. 63-64). The ALJ further
determined that Plaintiff met the insured status requirements of the Social Security Act through
December 31, 2016. (Id.).
The ALJ further found that Plaintiff suffers from the following severe impairments: status
post cervical fusion, gout, osteoarthritis, and status post right knee partial meniscectomy and
partial lateral meniscectomy. (Id.). The ALJ concluded that the following impairments are nonsevere: irritable bowel syndrome (IBS), visual deficiency, and acid reflux. (Id.). The ALJ
determined that there were no medical findings, or suggestions in the medical record, that any of
Plaintiff’s impairments, individually or in combination, meet or equal the conditions or severity
requirements for any listed impairment. (Id.).
Taking into consideration the testimony of the VE, the ALJ determined that Plaintiff is
unable to perform any of his past relevant work. (R. 64-67). The ALJ further determined that
Plaintiff has the RFC to perform sedentary work with the following exceptions:
Can occasionally push and pull and operate foot controls bilaterally. The claimant
can frequently climb ramps and stairs but never ladders, ropes, or scaffolds. The
claimant can occasionally balance, stoop, kneel, crouch, and crawl. The claimant
can never reach overhead bilaterally and can only have occasional exposure to
excessive vibration. The claimant can never work around unprotected heights or
operate or control hazardous, moving machinery.

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(Id.). After consideration of the above factors and the vocational expert’s testimony, the ALJ
found that Plaintiff, being a younger individual (Plaintiff was 43 years old at the time of his
alleged disability onset), with at least a high school education and capable of communicating in
English, was able to perform jobs that exist in significant numbers in the national economy, and
is therefore not disabled. (R. 68-69).
IV.

Plaintiff’s Argument for Reversal
Plaintiff raises a single issue in this appeal. He argues that the ALJ failed to properly

consider the opinion of his neurosurgeon Dr. Ghivan. (Pl.’s Br. 5). More specifically, Dr. Ghivan
stated Plaintiff’s physical impairment was a “severe limitation of functional capacity; incapable
of minimum activity,” and that Plaintiff would be “unable to work indefinitely.” (R. 408).
Plaintiff argues that the ALJ’s interpretation of Dr. Ghivan’s comments, as related to just
his “prior work and not whether the Plaintiff is disabled or able to do other work,” is off the
mark. (Pl.’s Br. 6-7). He argues that the ALJ should have given substantial weight to Dr.
Gachan’s comments, and that they were meant to be a prognosis for all future work and not just
previous work. (Id.). Plaintiff further alleges that the ALJ should have contacted Dr. Ghivan to
clarify his opinions about whether Plaintiff could work at his old job, or any future jobs. (Pl.’s
Br. 7-8).
V.

Standard of Review
The only issues before this court are whether the record reveals substantial evidence to

sustain the ALJ’s decision, see 42 U.S.C. § 405(g); Walden v. Schweiker, 672 F.2d 835, 838
(11th Cir. 1982), and whether the correct legal standards were applied. 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) mandates that the Commissioner’s findings are conclusive if supported by

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“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, 894 F.2d at 1529 (quoting Bloodsworth, 703 F.2d at 1239) (other
citations omitted). If supported by substantial evidence, the Commissioner’s factual findings
must be affirmed even if the evidence preponderates 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, the court also notes that review “does not yield automatic
affirmance.” Lamb, 847 F.2d at 701.
VI.

Discussion
After careful review, and for the following reasons, the court concludes that the ALJ’s

decision is due to be affirmed
A.

The ALJ Properly Considered the Opinion of Plaintiff’s Neurosurgeon, Dr.
Ghivan, and There Is Substantial Evidence to Support His Decision.

Plaintiff argues that the ALJ did not properly consider the opinion of his neurosurgeon,
Dr. Ghivan. The court disagrees. Plaintiff bears the burden of proving that she is disabled. U.S.C.
§ 423(d)(1)(A), (d)(5); Bowen v. Yuckert, 482 U.S. 137, 146 (1987). The ALJ’s findings
regarding Plaintiff’s pain and impairments and his physician’s statements are supported by
substantial evidence. In deciding Plaintiff’s claim, the ALJ considered the six factors under
which all medical opinions are evaluated: examining relationship, treatment relationship,
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supportability, consistency, specialization, and other factors. 20 C.F.R. § 404.1527. The
“opinions reserved to the Commissioner, even from a treating medical source are not entitled to
any special significance.”6 (R. 66). (citing 20 C.F.R. § 404.1527(d)(2 and 3)). Dr. Ghivan
produced a physician’s statement for a private disabilities claim that Plaintiff had with Liberty
Mutual Insurance through his former employer Nucor Steel. (R. 407-408). In this statement Dr.
Ghivan said that Plaintiff would be unable to work indefinitely. (Id.). The ALJ determined that
the physician’s statement Dr. Ghivan filled out for Liberty Mutual “was clearly solicited to
determine whether the claimant could return to his prior work and not whether the claimant is
disabled or able to do other work.”7 (R. 67). This finding is reasonable and supported by
substantial evidence. Dr. Ghivan referenced Plaintiff’s job as a steelworker in many of his
treatment notes, whether for expressing hope that Plaintiff could return to his prior work, to
allowing him and not allowing to return to his job as a steelworker. (R. 198-203, 220-223, 360).
Plaintiff also argues that the ALJ should have contacted Dr. Ghivan to clarify his
opinions regarding Plaintiff’s ability to work. The Commissioner “may recontact your treating
physician, psychologist, or other medical source. We may choose not to seek additional evidence
or clarification from a medical source if we know from experience that the source either cannot
or will not provide the necessary evidence. If we obtain medical evidence over the telephone, we
will send the telephone report to the source for review, signature, and return.” 20 C.F.R. §
404.1520(c)(1). Our Circuit has held that “there must be a showing of prejudice before it is found
that the claimant’s right to due process has been violated to such a degree that the case must be
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Issues reserved to the Commissioner are “opinions on the ultimate issue of disability, opinions as to
whether impairments meet or equal a medical listing, opinions about RFC, or opinions concerning the application of
vocational factors.” (R. 67).
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This is not a case where the ALJ failed to give substantial weight to a treating physician’s opinion. Rather,
the ALJ fully credited the treating physician’s opinion. But, as the ALJ interpreted the medical record, that opinion
was that Plaintiff could not return to his previous work.

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remanded to the Secretary for further development of the record.” Graham v. Apfel, 129 F.3d
1420, 1423 (11th Cir. 1997). Plaintiff has failed to show that he was prejudiced, when the ALJ
did not contact Dr. Ghivan
The ALJ did not abuse his discretion in assessing Plaintiff’s ability to work when
interpreting Dr. Ghivan’s statements, or in not following up with Dr. Ghivan. An ALJ “may”
recontact a treating physician, but is not required to do so if it is determined there is sufficient
enough evidence to make a decision. 20 C.F.R. § 404.1520(c)(1) (emphasis added). Here, no
legal error was made, and the ALJ’s findings are supported by substantial evidence.
VII.

Conclusion
The court concludes that the ALJ’s determination that Plaintiff is not disabled is

supported by substantial evidence and the proper legal standards were applied in reaching this
determination. The Commissioner’s final decision is therefore due to be affirmed. A separate
order in accordance with this memorandum of decision will be entered.
DONE and ORDERED this June 22, 2016.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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