McCorkle v. Astrue

Filing 17

ORDER AFFIRMING the decision of the Commissioner denying disability benefits. The clerk shall enter final judgment. Signed by Judge Frederick J Martone on 4/11/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Michael J. Astrue, Commissioner, Social)
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Security Administration,
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Defendant.
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Jay McCorkle,

No. CV-11-0854-PHX-FJM
ORDER

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We have before us plaintiff’s opening brief (doc. 12), defendant’s answering brief
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(doc. 15), plaintiff’s reply brief (doc. 16), and the administrative record (doc. 11).
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This case arises from a denial by the Social Security Administration of an application
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for disability benefits filed by plaintiff on February 27, 2008, alleging a disability onset of
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October 3, 2007. The claim was denied initially and upon reconsideration. After a hearing
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on January 20, 2010, the administrative law judge (ALJ) issued a decision denying benefits.
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The decision became the final decision of the Commissioner when the Appeals Council
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denied plaintiff’s request for review. Plaintiff then filed this action for judicial review under
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42 U.S.C. § 405(g).
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A district court may set aside a denial of benefits “only if it is not supported by
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substantial evidence or if it is based on legal error.” Thomas v. Barnhart, 278 F.3d 947, 954
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(9th Cir. 2002). Substantial evidence is “relevant evidence which, considering the record as

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a whole, a reasonable person might accept as adequate to support a conclusion. Where the

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evidence is susceptible to more than one rational interpretation, one of which supports the

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ALJ’s decision, the ALJ’s conclusion must be upheld.” Id. (citation omitted).

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Plaintiff is 49 years old, with a 10th grade education and past work experience as an

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equipment operator, truck driver, metal polisher, and manager of a smoke shop. He had

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spinal surgeries in 1991 and 1995, with spinal fusions at cervical levels C4-5 and C5-6, and

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lumbar fusions at levels L1-2 and L4-5. Despite these surgeries and ongoing complaints of

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back pain during the period before the disability onset date, plaintiff was able to perform

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various jobs at the heavy to very heavy exertional level. Tr. 144.

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Plaintiff was in a motor vehicle accident on October 3, 2007. He injured his right

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shoulder and exacerbated his existing spinal problems. He complained of right shoulder

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pain, muscle spasms, neck stiffness and hyperreflexia in the upper extremities. Tr. 207. An

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MRI showed a C4-5 osteophyte, C6-7 disc herniation, C3-4 disc bulging, pressing on the

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thecal sac. Tr. 203. In February 2008, Dr. Curtis Spencer, plaintiff’s treating physician,

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performed surgery on the right shoulder. Tr. 226. In April 2008, Dr. Spencer recommended

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physical therapy, weight reduction, and home exercise in order to return plaintiff to lighter

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work. Tr. 231.

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The ALJ found that plaintiff had severe impairments, including cervical and lumbar

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degenerative disc disease, post-cervical and lumbar spine fusion, right shoulder trauma, and

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post-right acromioclavicular joint surgery. Tr. 14. He stated that plaintiff has moderate pain

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that is controlled by medication without significant side effects. He discounted plaintiff’s

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subjective reports of constant shoulder and neck pain, as well as lower back pain that

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prevents him from sitting, standing, or walking for more than a few minutes at a time. Tr.

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16.

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The ALJ concluded that plaintiff has the residual functional capacity (RFC) to

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perform light work, but with the option to sit and stand, avoid climbing ropes, ladders and

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scaffolds, and avoid working with cold temperatures or extreme humidity or wetness. Tr. 15.
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Based on the RFC assessment, the ALJ concluded that plaintiff is unable to perform his past

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relevant work as a highway maintenance worker, equipment operator, or truck driver, which

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are performed at the heavy exertional level.

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administrative hearing that there are jobs existing in significant numbers in the national

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economy that plaintiff can perform, including general office clerk, office machine operator,

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and courier. Accordingly, the ALJ concluded that plaintiff is not disabled.

A vocational expert testified at the

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Plaintiff challenges the disability decision, arguing that the ALJ erred by improperly

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evaluating the opinion of his treating physician, Dr. Spencer. On November 13, 2008,

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plaintiff told Dr. Spencer that he had neck and low back pain, intermittent shoulder

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discomfort, but was “reasonably good” overall. Tr. 327. Dr. Spencer concluded that plaintiff

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was “just at a point where he can’t physically work an 8-hour day because of sitting

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intolerance, balance issues and climbing in and out of trucks which is his job.” Id. Dr.

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Spencer opined that plaintiff “cannot do repetitive bending and twisting. I think he is

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disabled.” Id. On November 20, 2008, Dr. Spencer completed a “Medical Assessment of

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Ability to Do Word Related Activities,” in which he stated that plaintiff can only sit, stand,

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or walk for 1 hour at a time, sit for 4 hours and stand/walk for 2 hours in an 8-hour day,

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occasionally lift or carry up to 25 pounds, and characterized his pain as “moderately severe.”

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Tr. 324-26. In August 2009, Dr. Spencer completed a disability placard application in which

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he stated that plaintiff was “severely limited in [his] ability to walk due to an arthritic,

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neurological or orthopedic condition.” Tr. 328.

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The ALJ assigned “some weight” to Dr. Spencer’s opinion to the extent it was

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consistent with the record as a whole. However, the ALJ held that Dr. Spencer’s conclusion

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that plaintiff is “disabled” is entitled to no deference because it concerns the ultimate issue

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of disability—a decision reserved to the Commissioner. 20 C.F.R. § 404.1527(e). Moreover,

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plaintiff’s eligibility for a disability placard is a determination by another governmental

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agency and is not binding on the Social Security Administration. 20 C.F.R. § 404.1504.

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Finally, the ALJ discounted Dr. Spencer’s disability finding because it is inconsistent with

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his own treatment records.
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In December 2007, two months after plaintiff’s motor vehicle accident, Dr. Spencer

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stated that he was “not sure that [plaintiff] is going to be able to return to the type of work

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that he presently is doing.” Tr. 235. He did not suggest that plaintiff would be unable to

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perform any work. After plaintiff’s shoulder surgery in March 2008, Dr. Spencer found that

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plaintiff had a full range of motion and his pain was “definitely better.” Tr. 234. In April

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2008, Dr. Spencer reported that plaintiff’s shoulder “seem[ed] to be doing reasonably well”

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and he was not in any substantial pain. Tr. 231. Plaintiff had a full range of motion and

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“some intermittent areas where his shoulder occasionally catches,” but “[o]verall, his

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shoulder is markedly improved since the surgery.” Id. Also in April, Dr. Spencer opined

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that plaintiff would have a “difficult time returning to his normal labor,” and would “have

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to retrain himself to a light duty job.” Id. He recommended weight reduction, a home

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exercise program, and a follow-up visit in 6 months. Id. The administrative record contains

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no treatment records after April 2008. Nevertheless, on November 13, 2008, Dr. Spencer

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opined that plaintiff “is disabled.” Tr. 327. One week later, Dr. Spencer completed a

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medical source statement indicating that plaintiff’s capacity to sit and stand would not

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support an 8-hour workday.

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We agree with the ALJ that Dr. Spencer’s disability findings referred to plaintiff’s

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inability to perform his past work at the heavy exertional level. In April 2008, Dr. Spencer

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stated that he thought plaintiff would “have to retrain himself to a light duty job.” Tr. 231.

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On November 13, 2008, Dr. Spencer stated that plaintiff is “disabled” because his

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impairments will prevent him from “climbing in and out of trucks which is his job.” Tr. 327.

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Finally, Dr. Spencer’s medical source statement and his finding of “disability” are not based

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on any contemporaneous objective medical findings.

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We also agree that the ALJ properly discounted the opinions of plaintiff’s

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chiropractor and physical therapist. Neither practitioner is considered an “acceptable medical

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source” within the meaning of 20 C.F.R. § 404.1513(a), and their opinions are not entitled

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to controlling weight. Moreover, the chiropractor’s statement was vague and assigned no

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functional limitations, Tr. 228, and the physical therapist’s statement does not support total
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disability, Tr. 229.

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Based on the foregoing, we conclude that the ALJ’s conclusion that plaintiff is not

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disabled is supported by substantial evidence in the record. Therefore, IT IS ORDERED

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AFFIRMING the decision of the Commissioner denying disability benefits. The clerk shall

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enter final judgment.

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DATED this 11th day of April, 2012.

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