Conn v. SSA
Filing
15
MEMORANDUM OPINION & ORDER, 1) denying 13 MOTION for Summary Judgment by Elden Dewitt Conn 2) granting 14 MOTION for Summary Judgment by SSA with supporting memorandum. Signed by Judge Joseph M. Hood on 4/23/14.(SMT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at ASHLAND
ELDEN DEWITT CONN,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
0:13-cv-138-JMH
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
Summary Judgment [D.E. 13, 14] on Plaintiff’s appeal of the
Commissioner’s
denial
of
his
application
for
disability
and
disability insurance benefits. [Tr. 9-25].1 The Court, having
reviewed the record and being otherwise sufficiently advised,
will deny Plaintiff’s motion and grant Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts a five-step analysis:
1.
An individual who is working and engaging in
substantial
gainful
activity
is
not
disabled,
regardless of the claimant's medical condition.
2.
An individual who is working but does not have a
"severe" impairment which significantly limits his
1
These are not traditional Rule 56 motions for summary
judgment. Rather, it is a procedural device by which the parties
bring the administrative record before the Court.
physical or mental ability to do basic work activities
is not disabled.
3.
If an individual is not working and has a severe
impairment which "meets the duration requirement and
is listed in appendix 1 or is equal to a listed
impairment(s)", then he is disabled regardless of
other factors.
4.
If a decision cannot be reached based on current
work activity and medical facts alone, and the
claimant has a severe impairment, then the Secretary
reviews the claimant's residual functional capacity
and the physical and mental demands of the claimant's
previous work. If the claimant is able to continue to
do this previous work, then he is not disabled.
5.
If the claimant cannot do any work he did in the
past because of a severe impairment, then the
Secretary considers his residual functional capacity,
age, education, and past work experience to see if he
can do other work.
If he cannot, the claimant is
disabled.
Preslar v. Sec'y of Health & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled." Id.
"If
the analysis reaches the fifth step without a finding that the
claimant
is
Secretary."
not
disabled,
the
burden
transfers
to
the
Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
gainful
activity
during
the
relevant time period under step one. [Tr. 14]. Under step two,
the
ALJ
impairments
found
of
that
Plaintiff’s
vertebrogenic
disorder
2
medically
and
determinable
residuals
of
right
shoulder
injury
were
“severe”
as
defined
by
the
agency’s
regulations. [Tr. 14]; 20 CFR §§ 404.1520(c), 416.920(c). The
ALJ further found that his right hand problem, hypertension, and
sleep
apnea
were
“non-severe”
impairments.
[Tr.
17-18].
Additionally, the ALJ found that there was not enough evidence
to
support
Plaintiff’s
claims
of
anxiety-related
disorder
or
substance addiction disorder. [Tr. 18].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and decided that none of them met the
criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. [Tr. 1819]. After further review of the record, the ALJ concluded at
step
four
that
Plaintiff
had
a
residual
functional
capacity
(“RFC”) to perform a range of light work as defined in 20 C.F.R.
404.1567(b). [Tr. 19]. The ALJ found that Plaintiff also had the
following
limitations:
Plaintiff
needs
a
sit/stand
option
at
one-half two hour intervals throughout the workday; Plaintiff
cannot climb ladders, kneel, or crawl; Plaintiff cannot reach
overhead on the right; and Plaintiff cannot work in temperature
extremes or high humidity. [Tr. 23].
The ALJ found that Plaintiff was unable to perform any of
his past relevant work. [Tr. 23]. However, there were jobs in
the national economy that Plaintiff could perform. [Tr. 23-25].
Thus, the ALJ determined that Plaintiff is not disabled under
the Social Security Act. [Tr. 25].
3
In this appeal, Plaintiff argues that the ALJ erred by
failing to include all of Plaintiff’s impairments, that the ALJ
failed to give adequate weight to the treating physician, and
that the ALJ improperly relied on the opinion of a non-examining
consultant medical examiner.
II. Standard of Review
In
reviewing
the
ALJ's
decision
to
deny
disability
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).
Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
less than a preponderance; it is such relevant evidence as a
reasonable
conclusion."
mind
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff was 42 years of age at the alleged disability
date [Tr. 23] and has a GED. [Tr. 37]. Plaintiff has past work
4
experience as a pipefitter. [Tr. 23]. Plaintiff filed a Title II
application for a period of disability and disability insurance
benefits, alleging disability beginning on April 6, 2010. [Tr.
12]. The claims were denied initially and upon reconsideration.
[Tr. 12]. Plaintiff requested a hearing with the ALJ, which took
place on April 13, 2012. [Tr. 12]. The ALJ issued an unfavorable
decision denying disability insurance benefits on May 10, 2012.
[Tr. 25].
According to Plaintiff, he has a constant throbbing pain in
his shoulder and back. [Tr. 177]. Plaintiff claims that the pain
spreads to his neck and right leg. [Tr. 178]. Plaintiff treats
his pain with pain medication, muscle relaxers, heat pads, and
heat balms. [Tr. 178]. Plaintiff claims that he takes Percocet,
Flexeril, and Xanax. [Tr. 178].
Plaintiff
made
routine
visits
to
the
King’s
Daughters
Medical Center in Ashland, Kentucky. Plaintiff was treated for
low back pain on October 16, 2009 [Tr. 240]. Plaintiff went to
the emergency room on May 6, 2008 complaining of chest pain that
radiated into his back. [Tr. 291]. On June 8, 2007, Plaintiff
was treated for fatigue, GERD, anxiety/depression, and low back
pain. [Tr. 332]. On March 7, 2007, Plaintiff presented with pain
in the chest and upper abdomen. [Tr. 333]. On August 15, 2007,
Plaintiff visited the hospital for right shoulder pain, which he
attributed to a pulled muscle. [Tr. 340]. On January 24, 2008,
5
Plaintiff visited with complaints of diarrhea and low back pain.
[Tr.
344].
complaining
Plaintiff
that
his
again
Zoloft
visited
on
was
working,
not
November
he
10,
had
2008
right
shoulder problems, and he felt stressed. [Tr. 350]. Finally, on
January 5, 2010, Plaintiff visited complaining of low back pain
after falling on ice. [Tr. 369].
Plaintiff
Olive
Hill
regularly
Family
Care
treated
with
Center.
On
Dr.
May
Paul
7,
Lewis
2010,
of
Dr.
the
Lewis
diagnosed Plaintiff with dislocation, sprain and strain thorax
with lower back and pelvis, anxiety, rhinitis, and hypertension.
[Tr.
388].
On
dislocation,
September
sprain
and
1,
2010,
strain
Plaintiff
thorax
with
was
treated
lower
back
for
and
pelvis, anxiety, GERD, and coronary artery disease. [Tr. 469].
On December 27, 2010, Plaintiff presented with anxiety, back
pain,
and
hip
pain.
[Tr.
472-73].
On
February
25,
2011,
Plaintiff was treated for anxiety, back pain, hip pain, and
osteoarthritis. [Tr. 475-76].
Plaintiff was also treated by Portsmouth Medical Solution
for neck and low back pain that went to his right leg. This
treatment lasted from October 2009 to February 2011. [Tr. 394420; 462-66]. Additionally, Dr. Twana Hatton treated Plaintiff
for his impairments. On January 11, 2012, an examination of the
cardiovascular
system
revealed
normal
heart
sounds,
regular
rate, and rhythm with no murmurs. Plaintiff’s right shoulder had
6
muscular deficits, and was sitting lower than the left with
decreased strength and noted weakness. [Tr. 570]. On January 30,
2012,
an
examination
examination
on
revealed
January
11,
the
and
same
Plaintiff
findings
the
treated
was
as
for
degenerative disc disease and hypertension. [Tr. 568].
An MRI of the lumbar spine in October 2009 revealed minimal
accentuated lumbar lordosis. At the L3-L4 level, there was a
left posterolateral extraforaminal disc protrusion superimposed
on
a
disc
significant
level,
bulge/osteophyte
spinal
there
is
canal
a
complex
stenosis.
minimal
tiny
that
[Tr.
results
235].
central
At
disc
in
the
no
L4-L5
protrusion
superimposed on a disc bulge/osteophyte complex which results in
no
significant
narrowing.
spinal
[Tr.
canal
235].
At
stenosis
the
L5-S1
or
neural
level,
foraminal
there
is
a
central/left paracentral disc protrusion superimposed on a disc
bulge/osteophyte complex which results in no significant spinal
canal stenosis or left neural foraminal narrowing. [Tr. 235]. As
a
result,
Plaintiff
was
diagnosed
with
mild
multilevel
degenerative disc disease. [Tr. 235].
An MRI of the right shoulder on November 30, 2007 revealed
advanced
fatty
atrophy
of
the
supraspinatus
muscle,
the
infraspinatus muscle, and the teres minor muscle; full thickness
tear
and
tendon;
moderate
abnormal
tendinous
retraction
signal,
tear
7
and
of
the
supraspinatus
tendinosis
of
the
infraspinatus and teres minor tendons; mild signal changes and
thickening of the subscapularis tendon; probably a mild tear of
the
superior
totally
labrum;
obliterated
the
or
subacromial
markedly
space
narrowed;
was
essentially
and
mild
joint
effusion was present. [Tr. 326-27].
Vocational expert Dwight McMillion testified at the hearing
before the ALJ. [Tr. 44]. Mr. McMillion testified that a person
with an RFC equivalent to the ALJ’s RFC finding for Plaintiff
would not be able to return to Plaintiff’s past relevant work.
[Tr. 45]. However, Mr. McMillion found that there would be jobs
in the national economy that someone with Plaintiff’s RFC could
perform. [Tr. 45-46]. Mr. McMillion found that a hypothetical
person could perform no jobs in the national economy if the same
hypothetical
person
was
able
to
lift
less
than
10
pounds
occasionally, could stand a total of two hours in an eight-hour
day, and sit for less than six hours in an eight-hour day. [Tr.
46-47].
Plaintiff
eating,
and
stated
watching
that
his
television.
day
[Tr.
consists
183].
On
of
a
showering,
good
day,
Plaintiff is able to visit with family and friends. [Tr. 183].
Plaintiff has experienced no problems with personal hygiene [Tr.
184], is able to prepare his own meals [Tr. 185], and sometimes
does housework. [Tr. 185]. Plaintiff is able to drive and go
shopping for groceries. [Tr. 186]. Plaintiff testified that he
8
was able to walk fifty yards at a time, can stand for an hour
and a half to two hours, and can lift 25 pounds with both hands.
[Tr. 41].
IV. Analysis
Plaintiff claims that the ALJ erred in three ways. First,
Plaintiff contends that the ALJ failed to include Plaintiff’s
impairments
of
obesity,
hypertension,
anxiety,
depression,
coronary artery disease, fatigue, osteoarthritis, and shortness
of breath. [D.E. 13-1 at 8]. Second, Plaintiff contends that the
ALJ failed to give great weight to the opinions of treating
physician Dr. Lewis, which was supported by the findings of
examining physicians Dr. Azmat and Dr. Guberman. [D.E. 13-1 at
11-12]. Finally, Plaintiff contends that Dr. Hernandez, a nonexamining medical consultant, relied on an RFC completed by a
non-acceptable medical source, and, therefore, it was improper
for the ALJ to give weight to Dr. Hernandez’s opinion. [D.E. 131 at 13]. The Court will discuss each of Plaintiff’s arguments
in turn.
I. The ALJ
impairments.
Plaintiff
impairments
of
included
argues
all
that
obesity,
the
of
ALJ
Plaintiff’s
failed
hypertension,
to
anxiety,
credible
discuss
his
depression,
coronary artery disease, fatigue, osteoarthritis, and shortness
of breath. Plaintiff was required to “furnish medical and other
9
evidence that [the Social Security Administration could] use to
reach
conclusions
about
[his]
medical
impairment(s)
and,
if
material to the determination of whether [he was] disabled, its
effect on [his] ability to work on a sustained basis.” 20 CFR §
404.1512(a).
The
ALJ
properly
discussed
all
of
the
alleged
impairments of which Plaintiff presented evidence.
The ALJ specifically discussed coronary artery disease and
found that “[a]fter placement of a stent, the claimant has not
presented with cardiac problems and his cardiac exams have been
within normal limits.” [Tr. 17]. As to Plaintiff’s hypertension,
the ALJ specifically discussed the impairment and found that it
was controlled by medication and was not severe. [Tr. 18]. The
ALJ further noted that an examination on August 8, 2011 revealed
a “normal cardiovascular system.” [Tr. 21]. Additionally, the
ALJ found that Plaintiff had not put forth enough evidence to
show that he had an anxiety disorder. [Tr. 18].
While not specifically mentioning the term “fatigue,” the
ALJ found “no basis” for finding that Plaintiff “must be allowed
to lie down as necessary during the workday to control pain
because he cannot sleep, or that he needs a recliner at his
place of work to recline periodically instead of lie down.” [Tr.
25].
Thus,
even
assuming
Plaintiff
put
forth
evidence
fatigue, the ALJ adequately discussed this impairment.
10
of
As
to
the
alleged
impairments
of
obesity,
shortness
of
breath, and osteoarthritis, Plaintiff failed to meet his burden
of providing medical evidence to establish these impairments.
Plaintiff’s Disability Report, which asked Plaintiff to include
“all
of
the
physical
or
mental
conditions
that
limit
[his]
ability to work,” only listed neck and back problems, right
shoulder problems, and heart problems. [Tr. 157]. Plaintiff did
not mention any of these problems at the hearing before the ALJ,
even when questioned by counsel. Further, in his brief before
this Court, Plaintiff does not cite to any medical evidence
supporting that obesity, shortness of breath, or osteoarthritis
is an impairment to his ability to work. [D.E. 13-1 at 8-9].
The
conditions
of
obesity,
shortness
of
breath,
and
osteoarthritis may have been included in some of Plaintiff’s
medical records, but a mere mention, without some evidence that
the
condition
affects
Plaintiff’s
ability
to
work,
constitute an impairment the ALJ must consider.
does
not
See Land v.
Astrue, No. 12-1-HRW, 2013 WL 1145888, at *5 (E.D. Ky. Feb. 22,
2013) (“There is no diagnosis of obesity in the record, nor has
any medical source, treating or otherwise, suggested functional
limitation as a result of obesity. Therefore, the Court finds
that the ALJ did not err in this regard.”); Jones v. Comm’r of
Soc. Sec., No. 11-14430, 2012 WL 6757248, at *8 (E.D. Mich. Dec.
17, 2012) (citations omitted) (“[T]he ALJ was not obligated to
11
discuss Plaintiff’s obesity because neither Plaintiff nor the
medical evidence suggested that her obesity was a significant
impairment.”).
obesity,
Plaintiff
shortness
of
has
not
breath,
or
presented
evidence
osteoarthritis
that
affects
his
ability to work. Therefore, the ALJ was not required to address
these alleged impairments, and did not err in failing to do so.
Thus,
the
ALJ
properly
included
all
of
Plaintiff’s
credible
limitations.
II. The ALJ gave adequate weight to treating physician
Dr. Paul Lewis’ RFC assessment.
Plaintiff alleges that the ALJ did not give adequate weight
to treating physician, Dr. Paul Lewis.
[A]n opinion from a medical source who has examined a
claimant is given more weight than that from a source
who has not performed an examination (a nonexamining
source), and an opinion from a medical source who
regularly treats the claimant (a treating source) is
afforded more weight than that from a source who has
examined the claimant but does not have an ongoing
treatment relationship (a nontreating source).
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir.
2013)
(citations
omitted).
“Treating-source
opinions
must
be
given ‘controlling weight’ if two conditions are met: (1) the
opinion ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques’; and (2) the opinion ‘is not
inconsistent with the other substantial evidence in the case
record.’” Id. at 376 (quoting 20 CFR § 404.1527(c)(2)).
12
“The Commissioner is required to provide ‘good reasons’ for
discounting the weight to a treating-source opinion.” Id. at 376
(citing
20
‘supported
CFR
by
§
404.1527(c)(2)).
the
evidence
in
the
“These
case
reasons
record,
must
and
be
must
be
sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.’” Id. (quoting Soc.
Sec. Rul. No. 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin.
July 2, 1996)). “[The Court] will reverse and remand a denial of
benefits, even though ‘substantial evidence otherwise supports
the decision of the Commissioner,’ when the ALJ fails to give
good
reasons
for
discounting
the
opinion
of
the
claimant’s
treating physician.” Friend v. Comm’r of Soc. Sec., 374 F. App’x
543, 551 (6th Cir. 2010) (quoting Wilson v. Comm’r of Soc. Sec.,
378 F.3d 541, 543-46 (6th Cir. 2004)).
The ALJ provided good reasons for giving less weight to the
opinion
of
physician
Dr.
prior
Paul
to
Lewis,
retiring
who
from
was
the
Plaintiff’s
practice
of
treating
medicine.
Additionally, the ALJ’s reasons are sufficiently clear to put
Plaintiff on notice as to why little weight was given to Dr.
Lewis’
RFC
substantial
assessment
evidence.
inconsistencies
and
The
between
the
ALJ
Dr.
reasons
first
Lewis’
are
noted
RFC
supported
that
there
assessment
and
by
were
his
treatment notes, which showed a normal cardiovascular system and
13
normal musculoskeletal system. [Tr. 21]. Further, the ALJ found
that if Dr. Lewis had found the physical and mental limitations
while treating Plaintiff “there should have been referrals to
specialists with orders for special testing.” [Tr. 22]. The ALJ
found that the limitations found by Dr. Lewis were supported
only by Plaintiff’s subjective complaints, not by independent
medical
Lewis’
testing.
RFC
[Tr.
22].
assessment
was
Finally,
not
the
ALJ
consistent
found
with
that
the
Dr.
overall
medical evidence. [Tr. 22].
Dr. Lewis completed his RFC assessment on May 7, 2010. [Tr.
382]. The report indicated moderate back pain, severe coronary
artery disease, hypertension, and anxiety. [Tr. 382]. Dr. Lewis
did not indicate the severity of the diagnoses of hypertension
and anxiety, and also failed to indicate whether any of the
diagnoses
resulted
in
functional
limitations.
[Tr.
382].
Dr.
Lewis then indicated that Plaintiff was unable to work due to
chest
and
back
pain.
[Tr.
382].
Dr.
Lewis
next
found
that
Plaintiff was impaired in lifting/carrying, could stand or walk
less than two hours, could sit less than two hours, could never
perform any postural activities, and had limitation functions in
reaching,
pushing/pulling,
heights,
moving
machinery,
and
temperature extremes. [Tr. 383-84].
There is substantial evidence in the record that Dr. Lewis’
limitations are not supported by the medical evidence. On the
14
same
day
Dr.
Lewis
completed
his
disability
assessment
of
Plaintiff, he examined Plaintiff. [Tr. 386-89]. The treatment
plan
called
for
“[p]roper
lifting
with
avoidance
of
heavy
lifting discussed.” [Tr. 388]. Thus, Dr. Lewis’ own treatment
plan for Plaintiff, discussed the same day Dr. Lewis filled out
the disability papers, belies the RFC assessment that Plaintiff
could
never
lift.
Further,
Dr.
Lewis’
diagnosis
after
examination does not include coronary artery disease and Dr.
Lewis noted under “cardiovascular” that there was “normal rate,
regular rhythm, S1 normal, S2 normal, normal heart sounds and
intact distal pulses.” [Tr. 388].
On October 26, 2009, Dr. Lewis examined Plaintiff. At this
time,
Dr.
Lewis
noted
that
Plaintiff
had
a
normal
range
of
motion in his neck, his cardiovascular system exhibited normal
rate, regular rhythm, normal heart sounds, and intact digital
pulses,
and
he
was
tender
in
the
low
back.
[Tr.
364].
No
diagnosis was made.
On June 15, 2010, Plaintiff reported that “the meds are
working well” when visiting for neck and low back pain that runs
down his right leg. [Tr. 404]. On May 18, 2010, Dr. Lewis’
physician notes include notations of “able to work” and “able to
stay
active.”
[Tr.
405].
On
September
1,
2010,
Plaintiff
reported that his pain and anxiety were well-controlled with
medication.
[Tr.
467].
At
an
examination
15
on
the
same
date,
Plaintiff was negative for chest pain and leg swelling. [Tr.
468].
His
neck
had
normal
range
of
motion
[Tr.
468],
his
cardiovascular exam revealed normal rate, regular rhythm, and
normal
heart
sounds
musculoskeletal
[Tr.
system
468],
revealed
a
and
an
normal
exam
range
of
of
his
motion,
exhibiting no edema or tenderness. [Tr. 468]. This examination
did diagnosis Plaintiff with coronary artery disease. [Tr. 469].
Plaintiff
contends
that
the
consultative
examination
performed by Dr. Najam Azmat supports Dr. Lewis’ assessment.
However, Dr. Azmat found that Plaintiff was “very limited” based
upon
his
right
shoulder.
[Tr.
423].
Dr.
Lewis
found
that
Plaintiff could not work at all, not that he was limited. [Tr.
381-85]. Plaintiff also contends that the report of Dr. Guberman
supports
Dr.
Lewis
assessment.
However,
the
ALJ
found
Dr.
Guberman’s assessment was not supported by the objective medical
evidence,
a
finding
Plaintiff
does
not
appeal.
[Tr.
22].
Therefore, while Dr. Guberman’s opinion may support Dr. Lewis’
opinion, the ALJ also believed Dr. Guberman’s opinion merited
little weight and was inconsistent with the objective medical
evidence. Thus, there is ample medical evidence that constitutes
substantial
evidence
for
the
ALJ’s
weight to Dr. Lewis’ opinion.
16
decision
to
give
little
III. The ALJ improperly relied on the opinion of Dr.
Carlos Hernandez; however, the reliance amounts to
harmless error.
Plaintiff contends that the ALJ erred by relying on the
report provided by Dr. Carlos X. Hernandez because Dr. Hernandez
adopted an RFC that was completed by a single-decision maker
without adequate explanation for the included limitations.
The ALJ erred by relying on the opinion of Dr. Hernandez.
When explaining Plaintiff’s limitations on the RFC assessment,
Dr. Hernandez was asked to provide “how and why the evidence
support[ed his] conclusions. Cite specific facts upon which your
conclusions
are
based.”
[Tr.
61].
In
each
instance,
Dr.
Hernandez merely referenced the initial RFC assessment performed
by
a
single-decision
maker
(“SDM”).
For
example,
when
asked
about the environmental limitations, Dr. Hernandez wrote, “see
initial RFC dated 12/7/10 for summary of evidence.” [Tr. 61].
While
this
reference
may
meet
the
requirement
of
stating
evidence2, it does not explain how or why the evidence cited by
the
SDM
supports
the
limitations
provided
by
Dr.
Hernandez.
Further, it does not fulfill the instruction to cite to specific
facts
supporting
the
conclusion.
As
the
consulting
medical
examiner Dr. Hernandez was almost completely derelict in his
2
The evidence presented by the
Hernandez, was minimal at best.
stated by the SDM for the finding
was “limited due to re-current CP
specifically ischemia.” [Tr. 432].
17
SDM, and incorporated by Dr.
In fact, the only evidence
of environmental limitations
and abnml strees [sic] test,
duties, it was error for the ALJ to give weight to his opinion
because there was no way for the ALJ to analyze how or why Dr.
Hernandez came to his conclusion.
The Court stresses that it is not holding that a consulting
examiner
cannot
possible
that
agree
two
with
the
individuals
findings
may
of
examine
an
the
SDM.
same
It
is
medical
evidence and come to the same conclusion. Rather, the Court is
holding that an ALJ may not rely on the findings of a consulting
examiner who wholly fails to explain his findings. Without an
explanation for the examiner’s conclusion, the ALJ cannot make a
reasoned decision as to the weight to give to the consulting
medical examiner’s opinion. This principle is reflected in the
regulations. The regulations specifically provide that “because
nonexamining sources have no examining or treating relationship
with you, the weight we will give their opinions will depend on
the degree to which they provide supporting explanations for
their opinions.” 20 C.F.R. § 416.927. In this case, it was error
for the ALJ to give weight to the opinion of nontreating source,
Dr.
Hernandez,
because
he
provided
no
explanation
for
his
opinion.
Although the ALJ improperly relied on the opinion of Dr.
Hernandez in discrediting the RFC assessment of Dr. Lewis, the
reliance on Dr. Hernandez by the ALJ amounts to harmless error.
“[I]f an agency has failed to adhere to its own procedures, we
18
will not remand for further administrative proceedings unless
‘the claimant has been prejudiced on the merits or deprived of
substantial rights because of the agency’s procedural lapses.’”
Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 654 (6th Cir.
2009) (quoting Connor v. U.S. Civil Serv. Comm’n, 721 F.2d 1054,
1056
(6th
Cir.
1983)).
Plaintiff
has
not
shown
that
he
was
prejudiced by the ALJ’s reliance on Dr. Hernandez’s opinion.
First,
while
Dr.
Hernandez
did
not
fully
explain
his
decision, Plaintiff has failed to show that if Dr. Hernandez set
forth the evidence before him that he would have come to a
different decision or altered his RFC assessment.
Second, the ALJ did not solely rely on the opinion of Dr.
Hernandez in discrediting Dr. Lewis’ opinion. The ALJ stated
that he agreed with the finding of the state agency medical
consultants that Dr. Lewis’ opinion was not consistent with the
overall medical evidence. [Tr. 22]. However, the ALJ noted this
after thoroughly explaining all of the inconsistencies between
the objective medical evidence, Dr. Lewis’ treatment notes, and
Dr. Lewis’ ultimate finding of disability. [Tr. 21-23].
Finally, the ALJ did not completely agree with the RFC
assessment
stated
prepared
that
the
by
state
Dr.
Hernandez.
agency
medical
The
ALJ
specifically
consultants
“did
not
consider the potential for pain which would be accommodated by a
sti[sic]/stand option.” [Tr. 23]. Thus, even without the opinion
19
of
Dr.
Hernandez,
the
ALJ
provided
substantial
evidence
for
giving Dr. Lewis’ opinion little weight, and it was harmless
error for the ALJ to rely on the opinion of the nontreating
medical consultant, Dr. Hernandez.
V. Conclusion
Accordingly, for the foregoing reasons, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 13]
be, and the same hereby is, DENIED;
(2)
that the Commissioner’s Motion for Summary Judgment
[D.E. 14] be, and the same hereby is, GRANTED.
This the 23rd day of April, 2014.
20
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?