Slone v. Commissioner of Social Security

Filing 20

OPINION AND ORDER AFFIRMING the decision of the ALJ. Signed by Judge William C Lee on 2/22/2018. (lns)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
BRAD ALLEN SLONE,,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

)
)
)
)
)
)
)
)
)
)

CIVIL NO. 1:17cv162

OPINION AND ORDER
This matter is before the court for judicial review of a final decision of the defendant
Commissioner of Social Security Administration denying Plaintiff's application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI) as provided for in the Social
Security Act. 42 U.S.C. §416(I). Section 405(g) of the Act provides, inter alia, "[a]s part of his
answer, the [Commissioner] shall file a certified copy of the transcript of the record including the
evidence upon which the findings and decision complained of are based. The court shall have
the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the [Commissioner], with or without remanding the case
for a rehearing." It also provides, "[t]he findings of the [Commissioner] as to any fact, if
supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. §405(g).
The law provides that an applicant for disability insurance benefits must establish an
"inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to last for a continuous period of not less
than 12 months. . . ." 42 U.S.C. §416(i)(1); 42 U.S.C. §423(d)(1)(A). A physical or mental

impairment is "an impairment that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic
techniques." 42 U.S.C. §423(d)(3). It is not enough for a plaintiff to establish that an
impairment exists. It must be shown that the impairment is severe enough to preclude the
plaintiff from engaging in substantial gainful activity. Gotshaw v. Ribicoff, 307 F.2d 840 (7th
Cir. 1962), cert. denied, 372 U.S. 945 (1963); Garcia v. Califano, 463 F.Supp. 1098 (N.D.Ill.
1979). It is well established that the burden of proving entitlement to disability insurance
benefits is on the plaintiff. See Jeralds v. Richardson, 445 F.2d 36 (7th Cir. 1971); Kutchman v.
Cohen, 425 F.2d 20 (7th Cir. 1970).
Given the foregoing framework, "[t]he question before [this court] is whether the record
as a whole contains substantial evidence to support the [Commissioner’s] findings." Garfield v.
Schweiker, 732 F.2d 605, 607 (7th Cir. 1984) citing Whitney v. Schweiker, 695 F.2d 784, 786
(7th Cir. 1982); 42 U.S.C. §405(g). "Substantial evidence is defined as 'more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984) quoting
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1410, 1427 (1971); see Allen v. Weinberger,
552 F.2d 781, 784 (7th Cir. 1977). "If the record contains such support [it] must [be] affirmed,
42 U.S.C. §405(g), unless there has been an error of law." Garfield, supra at 607; see also
Schnoll v. Harris, 636 F.2d 1146, 1150 (7th Cir. 1980).
In the present matter, after consideration of the entire record, the Administrative Law
Judge (“ALJ”) made the following findings:
1.

The claimant meets the insured status requirements of the Social Security Act
2

through June 30, 2010 Exhibit 5D/1).
2.

The claimant has not engaged in substantial gainful activity since June 1, 2010,
the alleged onset date (20 CFR 404.1571 et seq. and 416.971 et seq.).

3.

The claimant has the following severe impairments: a remote history of cervical
fusion, chronic obstructive pulmonary disease (COPD), and coronary artery
disease (20 CFR 404.1520(c) and 416.920(c)).

4.

The claimant does not have an impairment or combination of impairments that
meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 404.1526,
416.920(d), 416.925 and 416.926).

5.

After careful consideration of the entire record, I find that the claimant has the
residual functional capacity to perform light work as defined in 20 CFR
404.1567(b) and 416.967(b) except that the claimant can occasionally climb
ladders, ropes, scaffolds, ramps and stairs, he can occasionally balance, stoop,
kneel, crouch and crawl, and he should avoid concentrated exposure to fumes,
odors, dusts, gases, poor ventilation, and vibration.

6.

The claimant is unable to perform any past relevant work (20 CFR 404.1565 and
416.965).

7.

The claimant was born on May 24, 1963 and was 47 years old, which is defined as
a younger individual age 18-49, on the alleged disability onset date, The claimant
subsequently changed age category to closely approaching advanced age (20 CFR
404.1563 and 416.963).

8.

The claimant has at least a high school education and is able to communicate in
English (20 CFR 404.1564 and 416.964).

9.

Transferability of job skills is not material to the determination of disability
because using the Medical-Vocational Rules as a framework supports a finding
that the claimant is “not disabled,” whether or not the claimant has transferable
job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, there are jobs that exist in significant numbers in the national
economy that the claimant can perform (20 CFR 404.1569, 404.1569(a), 416.969,
and 416.969(a)).

11.

The claimant has not been under a disability, as defined in the Social Security Act,
3

from June 1, 2010, through the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

(Tr. 33- 40).
Based upon these findings, the ALJ determined that Plaintiff was not entitled to disability
benefits. The ALJ’s decision became the final agency decision when the Appeals Council denied
review. This appeal followed.
Plaintiff filed his opening brief on October 31, 2017. On December 4, 2017, the
defendant filed a memorandum in support of the Commissioner’s decision. Plaintiff has declined
to file a reply. Upon full review of the record in this cause, this court is of the view that the
ALJ’s decision must be affirmed.
A five-step test has been established to determine whether a claimant is disabled. See
Singleton v. Bowen, 841 F.2d 710, 711 (7th Cir. 1988); Bowen v. Yuckert, 107 S.Ct. 2287, 229091 (1987). The United States Court of Appeals for the Seventh Circuit has summarized that test
as follows:
The following steps are addressed in order: (1) Is the claimant
presently unemployed? (2) Is the claimant's impairment "severe"?
(3) Does the impairment meet or exceed one of a list of specific
impairments? (4) Is the claimant unable to perform his or her
former occupation? (5) Is the claimant unable to perform any other
work within the economy? An affirmative answer leads either to
the next step or, on steps 3 and 5, to a finding that the claimant is
disabled. A negative answer at any point, other than step 3, stops
the inquiry and leads to a determination that the claimant is not
disabled.
Nelson v. Bowen, 855 F.2d 503, 504 n.2 (7th Cir. 1988); Zalewski v. Heckler, 760 F.2d 160, 162
n.2 (7th Cir. 1985); accord Halvorsen v. Heckler, 743 F.2d 1221 (7th Cir. 1984). From the nature
of the ALJ's decision to deny benefits, it is clear that step five was the determinative inquiry.
4

In support of remand, Plaintiff argues that the ALJ erred in not considering Dr. McGee’s
opinion. Specifically, Plaintiff claims that Dr. McGee placed “permanent restrictions” on
Plaintiff, which the ALJ failed to consider. In support, Plaintiff cites to treatment notes from
three office visits in 2002 (Tr. 329, 335-336). However, as the Commissioner points out, these
treatment notes do not constitute a medical opinion relevant to Plaintiff’s case.
Plaintiff cites to treatment notes from his visit with Dr. McGee on July 31, 2002 (Tr. 329).
At this time, Plaintiff worked as a machinist at Wayne Manufacturing (Tr. 329). Three weeks
prior, Plaintiff was moving steel at work when he felt a “sharp pop in his right shoulder,” and
since that time was experiencing neck, shoulder, and arm pain (Tr. 329). Dr. McGee indicated
that Plaintiff would return to work “immediately with some restrictions” (Tr. 330). Plaintiff was
limited to one-handed work only and no working above his head (Tr. 330). Plaintiff was
diagnosed with a herniated disc at C5-6 (Tr. 320). Thereafter, on September 5, 2002, Dr. McGee
performed an anterior cervical discectomy and fusion (ACDF) at C5-6 (Tr. 320).
Plaintiff cites to treatment notes from his visit with Dr. McGee on September 16, 2002,
eleven days after Plaintiff’s ACDF surgery (Tr. 335). Dr. McGee noted that Plaintiff’s arm pain
had resolved but that Plaintiff still experienced significant trapezial spasm, which was expected
(Tr. 335). Dr. McGee noted that Plaintiff could begin physical therapy (Tr. 335). Dr. McGee
wrote, “He can return to light duty work with a [ten] pound restriction for two weeks with no
working overhead and no pushing, pulling, or working with vibratory tools for two weeks. After
two weeks, he can increase to a [twenty-five] pound restriction still with no working above his
shoulder, occasional climbing, and frequent standing[,] walking, twisting, bending, and squatting”
(Tr. 335).

5

Plaintiff also relies upon the treatment notes from his visit with Dr. McGee on October 14,
2002 (Tr. 336). X-rays revealed “excellent alignment” and the fusion was “incorporating nicely”
(Tr. 336). Dr. McGee wrote, “[Plaintiff] should increase his neck range of motion and home
exercise program” (Tr. 336). Dr. McGee assessed Plaintiff’s permanent partial impairment rating
as “10% to his whole person” (Tr. 336).
This court agrees with the Commissioner that the treatment notes from these three office
visits do not constitute a medical opinion relevant to this case. First, these office visits occurred
approximately eight years before the onset of Plaintiff’s alleged disability (Tr. 217). Though the
ALJ considered evidence from outside the relevant period (including evidence related to
Plaintiff’s ACDF surgery), the period under consideration in this appeal began on Plaintiff’s
alleged onset date, June 1, 2010, and ended on September 1, 2015, the date of the ALJ’s decision
(Tr. 31, 37). Plaintiff has not shown how the treatment notes from 2002 would be relevant to the
period under consideration in his appeal. In fact, Plaintiff declined the opportunity to file a reply
brief and explain his position, supporting the conclusion that his position is meritless.
Additionally, these office visits with Dr. McGee occurred immediately before and
immediately after Plaintiff’s 2002 ACDF surgery; and therefore, the restrictions placed by Dr.
McGee concerned a limited time frame (Tr. 329, 335-336). Prior to surgery, Plaintiff could
“return to work immediately;” he was instructed to “do one-handed work only” and to not
perform any work above his head (Tr. 330). At his post-operative appointment eleven days after
the ACDF surgery, Plaintiff had a different set of restrictions – prescribed to last two weeks – and
then a third set of restrictions after the two-week period (Tr. 335).
Importantly, after two weeks, Plaintiff was permitted to increase his restriction to

6

twenty-five pounds (Tr. 335), which was greater than the weight limit assessed by the ALJ (Tr.
34). The RFC assessed by the ALJ limited Plaintiff to light work with additional restrictions (Tr.
34). “Light work involves lifting no more than [twenty] pounds at a time with frequent lifting or
carrying of objects weighing up to [ten] pounds.” 20 C.F.R. §§ 404.1567(b), 416.967(b).
Therefore, the ALJ set a more restrictive weight limitation than Plaintiff’s surgeon (Tr. 34, 335).
The following month, at his visit on October 14, 2002, Dr. McGee noted that Plaintiff
should “increase his neck range of motion and home exercise program” (Tr. 336). The ALJ
discussed Plaintiff’s 2002 ACDF surgery and Plaintiff’s subsequent, longitudinal improvement,
including medical evidence from 2013 documenting that Plaintiff was “exercising on a fairly
frequent basis” (Tr. 37, 401).
As Plaintiff has not shown how Dr. McGee’s 2002 treatment notes concerning
pre/post-operative restrictions of limited duration affect his claim for an alleged disability
beginning approximately eight years later, the court finds Plaintiff’s argument meritless.
Next, Plaintiff argues, without citation to the record, that the ALJ ignored observations by
Dr. Kamineni that supported Plaintiff’s back and hip impairments and Plaintiff’s limitations with
sitting and walking. However, Plaintiff fails to indicate how a greater consideration of Dr.
Kamineni’s opinion would have affected Plaintiff’s RFC.
On December 19, 2013, Dr. Kamineni performed a consultative examination (Tr.
427-434). Plaintiff’s chief complaint was COPD (Tr. 428). Plaintiff was able to perform activities
of daily living such as dressing, buttoning, unbuttoning, picking up a coin, and preparing meals
(Tr. 36, 428). For Plaintiff’s alleged COPD, Dr. Kamineni ordered a pulmonary function test, but
it was noted that Plaintiff “did not perform the test to his best ability” (Tr. 37, 430, 432). The

7

entirety of Dr. Kamineni’s concluding Medical Source Statement reads as follows:
The patient states he cannot sit for [thirty] minutes. He states he cannot stand for
[thirty] minutes. He states he cannot carry [twenty] pounds. He states he is able to
walk [six] minutes but it would depend on how severe his pain is that day. He
states he cannot lift [ten] pounds over his head. He can step up an [eight]-inch
step. He has normal fine motor skills with normal handling of fine objects. Normal
concentration and social interaction. Remote and recent memory intact. Normal
hearing, speech, and vision.
(Tr. 430). As the Commissioner points out, this Statement contains a combination of normal
findings and Plaintiff’s own reports of his abilities (Tr. 430). The ALJ noted that “this ‘opinion’
appear[ed] to be a recitation of the claimant’s own subjective statement[s] regarding his
limitations and abilities” (Tr. 38). Contrary to Plaintiff’s argument, this Statement does not
contain restrictions assessed by Dr. Kamineni. The law is clear that an individual’s subjective
statements are insufficient to establish disability. 20 C.F.R. §§ 404.1529(a), 416.929(a)
(statements about your pain or other symptoms will not alone establish that you are disabled). To
be found disabled, a claimant’s impairment “must result from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 20 C.F.R. §§ 404.1527(a), 416.927(a).
Additionally, as noted above, Plaintiff does not explain how greater consideration of Dr.
Kamineni’s consultative examination would have affected the RFC assessed by the ALJ. Dr.
Kamineni’s examination notes stated that Plaintiff could not perform lumbar forward flexion or
extension (Tr. 431). Plaintiff mentions this finding without providing a citation to the record and
without explaining how this would have changed the RFC, which limited Plaintiff to performing
work at the light exertional level with additional restrictions (Tr. 34)

8

As none of Plaintiff’s arguments have any merit, the decision of the ALJ must be
affirmed.
Conclusion
On the basis of the foregoing, the decision of the ALJ is hereby AFFIRMED.

Entered: February 22, 2018.

s/ William C. Lee
William C. Lee, Judge
United States District Court

9