Biddle v. SSA
Filing
11
MEMORANDUM OPINION AND ORDER; 1)Pla's 6 Motion for Summary Judgment is DENIED; 2)Commissioner's 9 Motion for Summary Judgment is GRANTED; 3)Decision of the Commissioner is AFFIRMED pursuant to sentence four of 42USC405(g) as it was supported by substantial evidence and was decided by proper legal standards; 4)A judgment consistent w/this Opinion and Order will be entered contemporaneously. Signed by Judge Joseph M. Hood on 9/2/2014. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION at COVINGTON
TIMOTHY BIDDLE,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
***
***
Civil Action No.
2:13-CV-96-JMH
MEMORANDUM OPINION
AND ORDER
***
Plaintiff, Timothy Biddle, brought this action pursuant to
42
U.S.C.
§
405(g)
to
obtain
judicial
review
of
an
administrative decision of the Commissioner of Social Security
denying
his
insurance
claims
benefits
(“SSI”).
for
period
(“DIB”)
of
and
disability
Supplemental
and
disability
Security
Income
The Court, having reviewed the record, will affirm the
Commissioner’s
decision,
as
it
is
supported
by
substantial
a
compensable
the
regulations
evidence.
I.
OVERVIEW OF THE PROCESS
In
determining
disability
under
the
whether
Social
a
claimant
Security
has
Act,
provide a five-step sequential process which the administrative
law judge must follow.
20 C.F.R. § 404.1520(a)-(e); see Walters
1
v. Commissioner of Social Security, 127 F.3d 525, 529 (6th Cir.
1997).
The five steps, in summary, are as follows:
(1)
If
the
claimant
is
currently
engaged
in
substantial gainful activity, he is not disabled.
(2)
If the claimant is not doing substantial gainful
activity, his impairment must be severe before he
can be found disabled.
(3)
If the claimant is not doing substantial gainful
activity
and
is
suffering
from
a
severe
impairment that has lasted or is expected to last
for a continuous period of at least twelve
months, and his impairment meets or equals a
listed impairment, the claimant is presumed
disabled without further inquiry.
(4)
If the claimant’s impairment does not prevent him
from doing past relevant work, he is not
disabled.
(5)
Even if the claimant’s impairment does prevent
him from doing his past relevant work, if other
work
exists
in
the
national
economy
that
accommodates his residual functional capacity and
vocational
factors
(age,
education,
skills,
etc.), he is not disabled.
Id.
The burden of proof is on the claimant throughout the
first four steps of this process to prove that he is disabled.
Bowen v. Yuckert, 482 U.S. 137, 146, n. 5 (1987).
administrative
finding
that
law
the
judge
claimant
reaches
is
not
the
fifth
disabled,
step
then
If the
without
the
a
burden
shifts to the Commissioner to consider the claimant’s residual
functional capacity, age, education, and past work experience to
2
determine if he could perform other work.
deemed
disabled.
20
C.F.R.
§
If not, he would be
404.1520(f).
Importantly,
the
Commissioner only has the burden of proof on “the fifth step,
proving that there is work available in the economy that the
claimant can perform.”
Her v. Commissioner of Social Security,
203 F.3d 388, 391 (6th Cir. 1999).
II.
PROCEDURAL BACKGROUND AND THE ADMINISTRATIVE DECISION
Plaintiff
alleging
filed
disability
Plaintiff’s
his
applications
beginning
applications
were
July
1,
denied
reconsideration [TR 60-63; 67-72].
for
benefits
2009
[TR
initially
and
in
2009,
120-127].
again
on
After a hearing before an
Administrative Law Judge (“ALJ”) on July 7, 2011 [TR 26-55], the
ALJ issued an unfavorable decision on October 4, 2011 [TR 6-21].
Plaintiff’s request for review to the Appeals Council was denied
on March 26, 2013, and the decision of the ALJ now stands as the
final decision of the Commissioner [TR 1-4].
At the time of the hearing, Plaintiff was 44 years old [TR
30].
He has an eighth grade education and has past relevant
work experience as construction worker, specifically installing
ceiling
tiles
[TR
31-32,
141].
Plaintiff
claims
that
his
ability to work is limited due to a back injury, bulging disc
and
chronic
back
pain
[TR
140].
3
Plaintiff
alleges
that
he
became disabled on July 1, 2009 and that he could no longer work
due to his condition [TR 140].
The ALJ began his analysis by determining that Plaintiff
has met the insured status requirements of the Social Security
Act through December 31, 2014 [TR 11].
At step one, the ALJ
found that Plaintiff has not engaged in any substantial gainful
activity since July 1, 2009, the alleged onset date [TR 11].
At
step two, the ALJ determined that Plaintiff suffers from the
following
severe
post-laminectomy
impairments:
syndrome,
history
and
chronic
of
lumbar
pain
laminectomy,
right
distribution from scar tissue formation [TR 11].
S1
nerve
Continuing on
to the third step, the ALJ determined that Plaintiff does not
have an impairment or combination of impairments that meets or
medically equals any of the listed impairments [TR 12].
Reviewing
the
entire
administrative
record,
the
ALJ
described Plaintiff’s residual functional capacity (“RFC”) as
follows:
After careful consideration of the entire record, the
undersigned finds 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 the
claimant can never climb ladders, ropes, or scaffolds.
He can occasionally climb ramps, climb stairs, kneel,
crouch, or crawl.
He can frequently stoop.
The
claimant is limited to only occasional pushing or
pulling with the lower right extremity.
4
[TR 12-13].
At step four of the analysis, considering the testimony of
a Vocational Expert (“VE”), the ALJ found that Plaintiff could
not perform any past relevant work
five,
the
ALJ
concluded
that,
[TR 19].
based
on
However, at step
Plaintiff’s
age,
education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform [TR 19-20].
Therefore, the
ALJ determined that Plaintiff has not been under a disability,
as
defined
in
the
Social
Security
Act,
from
July
1,
2009,
through the date of the ALJ’s decision. [TR 20].
The ALJ’s decision that Plaintiff is not disabled became
the
final
decision
of
the
Commissioner
when
the
Appeals
Commission subsequently denied his request for review on March
26, 2013 [TR 1-4].
Plaintiff has exhausted his administrative
remedies and filed a timely action in this Court.
This case is
now ripe for review under 42 U.S.C. § 405(g).
III. GENERAL STANDARD OF REVIEW
The
decision
of
substantial evidence.
the
Commissioner
must
be
supported
by
Varley v. Secretary of Health and Human
Services, 820 F.2d 777, 779 (6th Cir. 1987).
Once the decision
of the Commissioner is final, an appeal may be taken to the
5
United States District Court pursuant to 42 U.S.C. § 405(g).
Judicial review of the Commissioner’s decision is restricted to
determining whether it is supported by substantial evidence and
was made pursuant to the proper legal standards.
See Cutlip v.
Secretary of Health and Human Services, 25 F.3d 284, 286 (6th
Cir. 1994).
“Substantial evidence” is defined as “more than a
scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate
to support a conclusion.”
Id.
In reviewing the decision of the
Commissioner,
not
to
resolve
courts
conflicts
determinations.
Commissioner’s
are
in
the
See id.
decision
conduct
evidence,
or
a
de
novo
make
review,
credibility
Rather, the court must affirm the
so
long
as
it
is
supported
by
substantial evidence, even if the court might have decided the
case differently.
See Her, 203 F.3d at 389-90.
However, the
court must review the record as a whole, and must take into
account whatever in the record fairly detracts from its weight.
Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
IV.
ANALYSIS
On appeal, Plaintiff argues that the ALJ’s determination
was not based on substantial evidence or decided by the proper
legal standards.
Plaintiff’s brief presents three issues to be
6
determined
by
this
Court:
(1)
whether
the
ALJ
appropriately
applied the “treating physician” rule; (2) whether the ALJ erred
in not finding that Plaintiff did not meet or equal Listing
1.04(a); and (3) whether the ALJ erred in finding that Plaintiff
could
sustain
issues
raised
remunerative
by
employment.
Plaintiff,
a
However,
review
of
the
despite
the
administrative
record reveals that the ALJ’s decision was based on substantial
evidence and was decided by the proper legal standards.
A.
Substantial Evidence Supports the Weight the ALJ Gave
to the Opinion of Plaintiff’s Treating Physician
Plaintiff
appropriate
first
weight
to
argues
the
that
opinions
physician, Michael J. Walls, M.D.
completed
a
physical
the
residual
of
ALJ
did
Plaintiff’s
not
give
treating
In April 2011, Dr. Walls
functional
capacity
(“PRFC”)
questionnaire, in which he opined that Plaintiff was capable of
low stress jobs; experienced pain constantly; was limited to
stand/walk less than 2 hours in an 8-hour day; was limited to
two
hours
of
sitting
in
an
8-hour
day;
required
frequent
unscheduled breaks; could occasionally lift less then 10 pounds;
could never twist, stoop (bend), crouch/squat, climb ladders or
stairs and would miss more than 4 days per month [TR 276-280].
However, the ALJ gave little weight to this opinion [TR 17].
7
It is well established that the findings and opinions of
treating physicians are entitled to substantial weight.
general,
the
opinions
of
treating
physicians
are
“In
accorded
greater weight than those of physicians who examine claimants
only once.”
Walters, 127 F.3d at 530-31; see also Harris v.
Heckler, 756 F.2d 431, 435 (6th Cir. 1985)(“The medical opinions
and
diagnoses
of
treating
physicians
are
generally
accorded
substantial deference, and if the opinions are uncontradicted,
complete deference”).
Likewise, a treating physician’s opinion
is entitled to weight substantially greater than that of a nonexamining medical advisor.
Harris, 756 F.2d at 435.
If a
treating physician’s “opinion on the issue(s) of the nature and
severity of [a claimant’s] impairment(s) is well-supported by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques and is not inconsistent with the other substantial
evidence in [the] case,” the opinion is entitled to controlling
weight.
20 C.F.R. § 404.1527(d)(2); see also Walters, 127 F.3d
at 530.
The Social Security regulations recognize the importance of
longevity of treatment, providing that treating physicians “are
likely to be the medical professionals most able to provide a
detailed, longitudinal picture of your medical impairment(s) and
8
may bring a unique perspective to the medical evidence that
cannot be obtained from the objective medical findings alone or
from reports of individual examinations, such as consultative
examinations or brief hospitalizations. . . .”
404.1527(d)(2).
20 C.F.R. §
Thus, when weighing the various opinions and
medical evidence, the ALJ must consider other pertinent factors,
such
as
the
relationship,
specialty
length,
the
of
nature
and
frequency
the
of
treating
extent
of
the
examination,
physician,
treatment
the
the
medical
opinion’s
supportability by evidence and its consistency with the record
as
a
whole.
20
C.F.R.
§
404.1527(d)(2)-(6);
Commissioner, 378 F.3d 541, 544 (6th Cir. 2004).
Wilson
v.
In terms of a
physician’s area of specialization, the ALJ must generally give
“more weight to the opinion of a specialist about medical issues
related to his or her area of specialty than to the opinion of a
source who is not a specialist.”
20 C.F.R. § 404.1527(d)(5).
In the Sixth Circuit, however, a treating source opinion
should
be
given
controlling
weight
only
when
it
is
well-
supported by clinical and laboratory findings and is consistent
with other evidence of record.
Houston v. Secretary of Health
and Human Services, 736 F.2d 365, 367 (6th Cir. 1984); Crouch v.
Secretary of Health and Human Services, 909 F.2d 852, 856 (6th
9
Cir. 1990); see also, 20 C.F.R. §§ 416.927(b), (d)(2), (3)-(4).
The Commissioner is not bound by a mere conclusory statement of
a treating physician, particularly where it is unsupported by
detailed, objective criteria and documentation.
See Landsaw v.
Secretary of Health and Human Services, 803 F.2d 211, 213 (6th
Cir. 1986).
In other words, the supportability of a treating
physician’s opinion depends on the degree to which the source
presents
relevant
particular,
evidence
support
laboratory findings.
to
the
support
opinion
the
with
opinion,
medical
and
signs
20 C.F.R. §§ 416.927(a), (d)(3).
in
and
“It is
an error to give an opinion controlling weight simply because it
is the opinion of a treating source if it is not well supported
by
medically
acceptable
clinical
and
laboratory
diagnostic
techniques or if it is inconsistent with the other substantial
evidence in the case record.”
Social Security Ruling (“SSR”)
96-2p, 1996 WL 374188, *2 (1996).
In Wilson, 378 F.3d at 544, the Sixth Circuit held that if
an
ALJ
declines
to
accord
controlling
weight
to
a
treating
physician opinion, the ALJ must give good, specific reasons for
the
weight
accorded
essentially
a
understands
the
the
procedural
opinion.
safeguard,
disposition
of
10
his
Id.
at
544.
ensuring
that
case,
and
This
a
that
is
claimant
the
ALJ
applied the treating physician rule so as to provide meaningful
judicial review of that application.
Id. at 544-45.
Here, the ALJ considered Dr. Walls’ opinion and discussed
it in detail [TR 17-18].
diagnosed
opined
Plaintiff
that
it
was
with
a
The ALJ noted that Dr. Walls had
post-laminectomy
“chronic
condition,”
syndrome
that
and
had
Plaintiff’s
prognosis was poor and that objective signs include decreased
sensation in the right S1 dermatome, absent S1 reflex, antalgic
(pain-avoidant) gait, decreased range of motion in the low back,
and positive straight leg raise on the right side [Id.].
The
ALJ also noted Dr. Walls’ opinion that Plaintiff’s experience of
pain or other symptoms would constantly interfere with attention
and concentration needed to perform even simple work tasks and
that Plaintiff is capable of only low stress jobs due to pain
[Id.].
The ALJ further noted Dr. Walls’ opinion that Plaintiff
could not walk even one city block, could sit for 45 minutes at
a time and stand for 15 minutes at a time, could stand and walk
less than 2 hours and could sit for about 2 hours in an 8-hour
day [Id.].
He also noted that Dr. Walls opined that Plaintiff
would frequently need to take unscheduled breaks and would need
a job that permitted shifting positions at will from sitting,
standing or walking, as well as that Plaintiff would be absent
11
more than four days per month as a result of his impairments or
treatments [Id.].1
However, the ALJ gave Dr. Walls’ opinion
little weight, as he found that it was not consistent with the
objective findings, was conclusory in nature and was without
substantial support from the other evidence of record [TR 18].
Contrary to Plaintiff’s suggestions, the ALJ recognized Dr.
Walls
as
Plaintiff’s
treating
physician
[TR
13,
16-18].
However, as is appropriate under the regulations, the ALJ also
considered the length of the treating relationship and frequency
of examination, noting that, at the time that Dr. Walls rendered
his opinion, he had only been treating Plaintiff for less than a
year
and
had
only
seen
him
six
404.1527(c)(2)(I); 416.927(c)(2)(I).
times.
20
C.F.R.
§
The ALJ also wrote that
Dr. Walls “apparently relied quite heavily on the subjective
report of symptoms and limitations provided by [Plaintiff], and
seemed to uncritically accept as true most, if not all, of what
[Plaintiff] reported” [TR 17-18].
Plaintiff argues that there
is no indication from the record that Dr. Walls relied on the
subjective reports of Plaintiff.
However, the ALJ’s conclusion
1
As noted by Defendant, although the ALJ’s opinion states that
Dr. Walls opined that Plaintiff would be absent more than four
days a week [TR 17], this reference is apparently a scrivener’s
error, as Dr. Walls actually stated that Plaintiff would be
absent more than four days per month [TR 280].
12
that
Dr.
Walls
“apparently”
relied
on
Plaintiff’s
subjective
report and “seemed to” uncritically accept Plaintiff’s reports
as true was based on the inconsistency of Dr. Walls’ opinion
with the objective findings, specifically Plaintiff’s 2009 MRI
[TR 18].
The ALJ had previously noted that the May 2009 MRI of
Plaintiff’s lumbar spine showed
right foraminal disc protrusion
with mild indentation of the thecal sac and mild narrowing of
the right S1 recess, but not much in the way of structural
change
[TR
17,
188].
Specifically,
Eric
Neils,
radiologist reviewing Plaintiff’s MRI, concluded:
M.D.,
the
“The findings
at the L5-S1 level are compatible with a combination of mild to
moderate
scarring/epidural
paracentral
and
right
fibrosis
foraminal
and
disc
also
a
small
protrusion
right
with
mild
indentation of the thecal sac and mild narrowing of the right S1
recess.
There is also mild to moderate narrowing of the right
L5 neural foramen” [TR 188].
from
the
May
2009
MRI
were
The fact that four of the findings
mild
and
two
were
moderate
is
substantial evidence supporting the ALJ’s conclusion that Dr.
Walls’
opinion
overstated
the
severity
that
Dr.
of
Plaintiff’s
limitations.
The
ALJ
examinations
further
of
noted
Plaintiff
failed
13
to
Walls’
reveal
own
the
physical
type
of
significant clinical and laboratory abnormalities that one would
expect if Plaintiff were as limited as he alleged [TR 18].
For
example, Dr. Walls’ physical examinations revealed diminished
sensation in only the right S1 dermatome, absent deep tendon
reflex for the right S1 only, antalgic gait, some limited lumbar
range of motion, and a positive Straight Leg Raise on the right
[TR 284, 288, 292, 296, 300, 304].
Otherwise, as noted by the
ALJ, the notes from Dr. Walls’ physical examinations revealed
that Plaintiff’s muscle strength and tone was normal, he had no
gross bony abnormalities, no visible scoliosis, no pain with
palpation, full cervical range of motion, no visible scoliotic
deformity,
no
midline
percussion
or
palpation
tenderness,
no
paraspinous tenderness, no detectable paraspinous muscle spasm,
no SI joint tenderness, and a well-healed lumbar incision [TR
17, 284, 288, 292, 296, 300, 304].
The ALJ further noted that
no
confirm
EMG
testing
was
performed
radiculopathy [TR 17].
to
the
diagnosis
of
Thus, substantial evidence supports the
ALJ’s conclusion that the medical evidence of record does not
support
the
severity
of
limitation
alleged
by
Plaintiff
or
identified by Dr. Walls [TR 17].
The ALJ further found that Dr.
Walls’
as
opinion
was
conclusory,
it
provided
very
little
explanation of the evidence relied upon in forming his opinion.
14
Plaintiff argues that there is other objective evidence,
including findings from the MRI, as well as epidural injections,
the
insertion
prescription
Walls’
of
opinion.
of
a
trial
narcotic
However,
spinal
pain
on
cord
medication,
review
by
stimulator
that
the
and
the
supports
Dr.
district
court,
“[e]ven if the evidence could also support another conclusion,
the decision of the Administrative Law Judge must stand if the
evidence could reasonably support the conclusion reached.”
203 F.3d at 389-390 (citation omitted).
Her,
Because substantial
evidence supports the ALJ’s conclusions that Dr. Walls’ opinion
was not consistent with the objective findings, was conclusory
in nature and was without substantial support from the other
evidence of record, the ALJ did not err in declining to give Dr.
Walls’ opinion controlling weight.
Houston v. Sec. of Health
and Human Services, 736 F.2d 365, 367 (6th Cir. 1984).
also, 20 C.F.R. §§ 416.927(b), (c)(2).
See
For these reasons,
substantial evidence supports the ALJ’s decision to discount the
opinions of Dr. Walls.
To the extent that Plaintiff suggests that, having given
little weight to Dr. Walls’ opinion, the ALJ could not rely on
non-examining, state agency consultants, specifically, Jay Athy,
Ph.D. and Sudhideb Mukherjee, M.D., this argument is without
15
merit.
Dr. Athy’s and Dr. Mukherjee’s opinions, as state agency
consultants and experts in Social Security disability, may be
entitled to great weight if their opinions are supported by the
evidence in the record. 20 C.F.R. § 404.1527(e)(2); SSR96-6p, 61
Fed. Reg. 34,366-01 (July 2, 1996). Here, Dr. Athy completed a
Psychiatric Review Technique on April 10, 2010 and found that
Plaintiff
had
no
medically
determinable
mental
impairment,
a
finding consistent with Dr. Walls’ opinions [TR 18, 252-265,
277].
In addition, Dr. Mukherjee completed a PRFC Assessment on
April 14, 2010, in which he found that Plaintiff had a light
exertional level, except that he could only push and/or pull
with his right lower extremity occasionally; can never climb
ladders, ropes or scaffolds; can occasionally climb ramps, climb
stairs, kneel, crouch, or crawl; and can frequently stoop [TR
18,
267-274].
The
ALJ
gave
Dr.
Mukherjee’s
opinion
great
weight, as he had the opportunity to review the evidence of
record and his opinion was consistent with the objective medical
evidence of record and Plaintiff’s alleged activities of daily
living [TR 18].
Here, the medical evidence of record includes
an 2009 MRI with only mild to moderate findings, as well as
evidence showing normal muscle strength and tone; no atrophy or
fasciculation;
no
midline
percussion,
16
palpation
tenderness,
paraspinous
tenderness,
or
SI
joint
tenderness;
and
no
detectable paraspinous muscle spasm [TR 205-229, 244-247, 281306].
This medical evidence is consistent with the limitations
assigned
by
Dr.
Mukherjee.
In
addition,
although
Plaintiff
alleged that his activities of daily living were significantly
restricted
due
to
pain,
the
ALJ
discounted
Plaintiff’s
allegations, as Plaintiff’s allegations could not be objectively
verified with any reasonable disagree of certainty, and because
of the weak medical evidence supporting Plaintiff’s allegations
[TR 18].
For
these
considerable
reasons,
weight
to
the
the
ALJ
did
opinions
not
of
Dr.
err
in
Athy
giving
and
Dr.
Mukherjee, as these opinions were supported by the evidence in
the case record.
greater
weight
Further, the ALJ gave good reasons for giving
to
the
opinions
of
agency
sources.
Helm
v.
Comm’r of Soc. Sec., 405 Fed.Appx. 997, 1002 (6th Cir. Jan. 4,
2011)(unpublished)(“Once the ALJ determined not to accord [the
claimant’s treating physician’s] opinion ‘controlling weight,’
the ALJ was required only to provide ‘good reasons’ for giving
greater weight to the opinions of agency sources.”)(citing 20
C.F.R. § 404.1527(d)(2)).
B.
The ALJ’s Finding that Plaintiff did not Meet or Equal
Listing 1.04A (Disorders of the Spine) is Supported by
Substantial Evidence
17
Plaintiff argues that the ALJ erred in not finding that
Plaintiff at least “equaled” Listing 1.04A (Disorders of the
Spine).
Listing
compression
1.04A
requires
characterized
by
“[e]vidence
of
neuro-anatomic
nerve
root
distribution
of
pain, limitation of motion of the spine, motor loss (atrophy
with
associated
muscle
weakness)
accompanied
by
sensory
or
reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting and supine).”
C.F.R. Part 404, Subpart P, App. 1.
that
the
record
compression,
with
was
spinal
accompanying
devoid
of
ineffective
In this case, the ALJ found
evidence
arachnoiditis,
20
or
showing
lumbar
ambulation
as
nerve
spinal
root
stenosis
required
by
the
listing [TR 12].
When alleging that his impairments meet or equal a listed
impairment,
Plaintiff
has
the
burden
of
presenting
specific
medical findings that satisfy all the criteria of a particular
listing.
20
C.F.R.
§§
404.1520(a)(4)(iii),
(d),
404.1525,
404.1526, 416.920(a)(4)(iii), (d), 416.925, 416.926, Sullivan v.
Zebley, 493 U.S. 521, 530-32 (1990); Foster v. Halter, 279 F.3d
348,
354
(6th
Cir.
2001).
An
impairment
is
considered
“medically equivalent” to a listed impairment if the medical
findings related to a claimant’s impairment are “at least of
18
equal medical significance” to the required criteria.
20 C.F.R.
§ 404.1526; King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984).
Plaintiff has the burden of showing that his impairment is the
“medical
equivalent”
423(d)(5)(A),
of
a
listed
1382(a)(3)(H)(I);
impairment.
20
C.F.R.
42
U.S.C.
404.1512(a),
§§
(c),
416.912(a),(c).
Here,
requirement
Plaintiff
of
concedes
Listing
that
1.04A,
but
he
did
argues
not
that
nearly every requirement” [DE #6, p. 11].
he
meet
every
“satisfies
Plaintiff argues
that, with regard to the requirement of nerve root compression,
the MRI from May 2009 showed scar tissue formation around the
right S1 nerve root, which shows nerve root involvement [TR 188,
282].
Plaintiff further argues that, because the requirements
of Listing 1.04A were not precisely met, the ALJ had the duty to
call
a
medical
condition
met
expert
the
to
rules
testify
for
as
to
medical
whether
Plaintiff’s
equivalence,
citing
Hearings, Appeals, and Litigation Law Manuel (HALLEX) I-2-5-34.
According to Plaintiff, because Plaintiff’s MRI did not show
nerve root compression, but rather scar tissue around the nerve
root, HALLEX required the ALJ to obtain medical expert testimony
to
determine
if
Plaintiff
“equaled”
failure to do so is reversible error.
19
Listing
1.04A
and
his
However,
HALLEX
is
not
binding
on
this
Court
and
many
district courts in this circuit have concluded that a deviation
from the instructions in HALLEX does not warrant remand. See
Bowie v. Comm'r of Soc. Sec., 539 F.3d 395, 399 (6th Cir.2008);
Boyd
v.
Colvin,
No.
7:13-CV-69-KKC,
2014
WL
3953149
at
*3
(E.D.Ky. Aug. 12, 2014); Estep v. Astrue, No. 2:11–0017, 2013 WL
212643 at *11 (M.D.Tenn. Jan. 18, 2013)(adopted in
Estep v.
Colvin, No. 2:11–CV–00017, 2013 WL 2255852 (M.D.Tenn. May 22,
2013) (“[E]ven if the Commissioner did not comply with section
1–2–8–40,
HALLEX
is
not
considered
binding
authority
in
the
Sixth Circuit.”); Kendall v. Astrue, No. 09–239–GWU, 2010 WL
1994912 at *4 (E.D.Ky. May 19, 2010)(“HALLEX does not create a
procedural
due
process
issue
as
do
the
Commissioner's
regulations in the Code of Federal Regulations.”).
Even
so,
it
was
Plaintiff’s
burden
to
show
that
his
impairment is the “medical equivalent” of a listed impairment.
42
U.S.C.
§§
423(d)(5)(A),
1382(a)(3)(H)(I);
404.1512(a), (c), 416.912(a),(c).
Defendant,
Plaintiff’s
here,
the
impairment
ALJ
was
“equaled”
20
C.F.R.
In addition, as argued by
not
considering
Listing
1.04A.
finding
that
Rather,
he
specifically found that Plaintiff did not satisfy the criteria
of the listing, as the record was devoid of evidence of nerve
20
root
compression,
spinal
arachnoiditis,
or
lumbar
stenosis with accompanying ineffective ambulation.
cited HALLEX provision does not apply.
findings,
the
examining
ALJ
specifically
physician
has
noted
mentioned
spinal
Thus, the
Moreover, in making his
that
“[n]o
findings
treating
equivalent
or
in
severity to the criteria of any listed impairment, nor does the
evidence show medical findings that are the same or equivalent
to those of any listed impairment of the Listing of Impairments”
[TR
12].
The
ALJ
is
charged
with
evaluating
the
medical
evidence and has overall responsibility for determining medical
equivalence and was not required to obtain a medical expert to
interpret the medical evidence.
20 C.F.R. §§ 404.1525(a)(3),
404.1526(e); 416.945(a)(3); Webb v. Comm’r of Soc. Sec., 368
F.3d 629, 633 (6th Cir. 2004).
Thus, the ALJ did not have a
duty
to
to
call
a
medical
expert
testify
as
to
Plaintiff’s
medical equivalency here.
Moreover, as noted by Defendant, Plaintiff’s claims that he
had
shown
the
required
motor
loss
characterized
by
muscle
weakness, as well as the sensory and reflex loss required to
meet or equal Listing 1.04A are also undercut by the medical
evidence
physicians
in
the
record.
repeatedly
noted
In
that
21
fact,
Plaintiff’s
Plaintiff
had
treating
no
muscle
weakness or atrophy at every examination from May 2009 through
June 2011 [TR 208, 214, 218, 222, 229, 246, 284, 288, 292, 296,
300, 304].
Moreover, Dr. Walls described his sensory loss as
“diminished
to
pinprick
and
light
touch
in
the
right
S1
dermatome” and the reflexes as normal, “with the exception of
right S1 absent” [TR 284, 288, 292, 296, 300, 304].
Thus, the
sensory and reflex loss cited by Plaintiff were minimal and the
majority of sensation and reflexes were normal.
For all of these reasons, the ALJ applied the correct legal
standards
in
determining
whether
Plaintiff
met
or
equaled
Listing 1.04A and his determination that Plaintiff did not meet
or equal Listing 1.04A is supported by substantial evidence.
C.
The ALJ’s Determination that Jobs Exist in Significant
Numbers in the National Economy that Plaintiff Could
Perform is Supported by Substantial Evidence
Plaintiff
explaining
argues
Plaintiff’s
that
the
ability
ALJ
to
erred
work
on
by
a
insufficiently
“regular
and
continuing basis,” meaning 8 hours a day, for 5 days a week, or
an equivalent work schedule [DE #6, p. 13].
Plaintiff argues
that the fact that he returned to work for a substantial period
of time after his 2006 laminectomy supports the conclusion that
Plaintiff would continue to work if he were able.
Plaintiff
also points to the hearing testimony of the Vocational Expert
22
(“VE”)
that
an
employer
in
the
unskilled
job
market
in
the
region would, at most, tolerate 1 absence per month [TR 52].
Plaintiff
argues
Plaintiff’s
various
that
treatments
of
pain
to
attempted
reports
the
objective
by
Drs.
evidence
Mullen
Plaintiff’s
-
and
namely,
Walls;
physicians
the
that
failed to alleviate or reduce pain, and the MRI showing scar
tissue
formation
around
Plaintiff’s
right
S1
nerve
root
-
supports Dr. Walls’ opinion that Plaintiff would miss more than
4 days per month.
Thus, based on the VE’s testimony regarding
the number of tolerated absences and Dr. Walls’ opinion that
Plaintiff would miss more than 4 day per month, Plaintiff argues
that he would be unable to sustain work.
Plaintiff argues that the ALJ’s decision lacks meaningful
discussion
as
to
why
he
rejected
Dr.
Walls’
opinion
Plaintiff would miss more than 4 days per month.
that
Plaintiff
points to Social Security Ruling (SSR) 96-8p, which requires the
ALJ’s
RFC
describing
specific
nonmedical
assessment
how
the
medical
evidence
to
“include
evidence
facts
(e.g.,
supports
(e.g.,
daily
a
narrative
each
discussion
conclusion,
citing
laboratory
findings)
activities,
observations).”
SSR 96-8p, 1996 WL 374184, at *7 (1996).
and
SSR 96-8p further
requires the ALJ to discuss “the individual's ability to perform
23
sustained
work
activities
in
an
ordinary
work
setting
on
a
regular and continuing basis (i.e., 8 hours a day, for 5 days a
week, or an equivalent work schedule), and describe the maximum
amount of each work-related activity the individual can perform
based on the evidence available in the case record.”
Here,
evidence
the
ALJ
supporting
provided
a
Plaintiff’s
non-medical evidence [TR 11-19].
thorough
RFC,
Id.
discussion
citing
both
of
the
medical
and
The ALJ further specifically
identified the maximum amount of each work-related activity that
Plaintiff could perform, based on the evidence available in the
case record [TR 12-13].
Moreover, as discussed above, the ALJ
considered and extensively discussed Dr. Walls’ RFC opinion and
explained that he gave it little weight because he found that it
was not consistent with the objective findings, was conclusory
in nature and was without substantial support from the other
evidence of record.
The ALJ also discussed Plaintiff’s course
of treatment - including Plaintiff’s physical therapy, epidural
steroid injections, and the use of a spinal cord stimulator both at the hearing and in his opinion [TR 15-19, 35-37].
The
ALJ also noted that Plaintiff reported “good relief” with his
pain medications, and that, in September 2009, Plaintiff advised
a psychologist, Charles Burhman, Psy.D., that he was considering
24
returning to school for vocational training in a field such as
audio engineering, suggesting that Plaintiff was not as severely
limited as he or Dr. Walls alleged [TR 15-16].
All of this
discussion by the ALJ demonstrates that he clearly complied with
the requirements of SSR 96-8 to describe how the evidence in the
records supported his conclusions, as well as to explain how any
material inconsistencies or ambiguities in the evidence in the
case record were considered and resolved.
complied
with
the
requirements
to
The ALJ also clearly
provide
a
basis
for
his
rejection of Dr. Walls’ opinion.
Plaintiff also complains that the ALJ failed to incorporate
Dr. Walls’ opinion that Plaintiff would miss more than 4 days of
work per month into the hypothetical question posed to the VE at
the hearing.
However, as pointed out by Defendant, “[i]t is
well established that an ALJ may pose hypothetical questions to
a vocational expert and is required to incorporate only those
limitations accepted as credible by the finder of fact.”
Casey
v. Sect. of Health and Human Services, 987 F.2d 1230, 1235 (6th
Cir. 1993)(citation omitted).
The ALJ considered Dr. Walls’
opinion and gave it little weight, thoroughly discussing his
reasons
for
doing
so.
Accordingly,
he
was
not
required
to
incorporate the limitations assigned by Dr. Walls that he did
25
not find credible into the hypothetical question posed to the
VE.
For all of these reasons, Plaintiff’s argument that the ALJ
erred
in
finding
that
Plaintiff
could
sustain
remunerative
employment is without merit.
V.
CONCLUSION
For the reasons set forth above, the Court, being fully and
sufficiently advised, hereby ORDERS as follows:
(1)
Plaintiff’s
DENIED;
motion
for
summary
(2)
the Commissioner’s motion for summary judgment [DE #9]
is GRANTED;
(3)
the decision
to sentence
supported by
proper legal
(4)
[DE
#6]
is
a judgment consistent with this Opinion & Order will
be entered contemporaneously.
of the Commissioner is AFFIRMED pursuant
four of 42 U.S.C. § 405(g) as it was
substantial evidence and was decided by
standards; and
This the 2nd day of September, 2014.
judgment
26
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