Lang, Jr. v. SSA
Filing
10
MEMORANDUM OPINION AND ORDER; 1)Pla's 7 Motion for Summary Judgment is DENIED; 2)Def's 9 Motion for Summary Judgment is GRANTED. Signed by Judge Joseph M. Hood on 3/4/2016. (LST)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
ROBERT LANG,
)
)
) Action No. 2:14-cv-00175-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security
Defendant.
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**
This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 7, 9) on Plaintiff’s appeal of the
Commissioner’s denial of her application for disability insurance
benefits.1
The matter having been fully briefed by the parties is
now ripe for this Court’s review.
I.
In
determining
whether
an
individual
is
disabled,
an
Administrative Law Judge (“ALJ”) uses 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 physical or mental
ability to do basic work activities is not
disabled.
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.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
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 & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994)(citing 20 C.F.R. § 404.1520(1982)).
II.
On June 21, 2011, Plaintiff filed applications for Disability
Insurance
Benefits
(“DIB”)
and
Supplemental
Security
Income
(“SSI”), alleging disability beginning June 30, 2009. His claim
was denied initially and after reconsideration.
He requested an
administrative hearing, which was held before Administrative Law
Judge (“ALJ”) Christopher Daniels on May 1, 2013.
The ALJ issued
an
11-28).
unfavorable
decision
on
July
8,
2013
(Tr.
After
Plaintiff asked the Appeals Council to review the ALJ’s decision,
2
the
Appeals
Council
declined
Plaintiff’s
request
for
review,
making the ALJ’s July 2013 decision the final agency decision for
purposes of judicial review. 20 C.F.R. §§ 404.981, 416.1481,
422.210(a).
This appeal followed and the case is ripe for review
pursuant to 42 U.S.C. § 405(g).
III.
Plaintiff was 40 years old at the time he allegedly became
disabled on June 30, 2009. He has the equivalent of a high school
education (GED) and past relevant work as a meat mixer operator,
a packer, and a deckhand. He does not dispute the ALJ’s conclusion
that he is severely impaired by degenerative disc disease of the
neck
and
back,
degenerative
joint
disease
of
the
hips,
and
osteoarthritis of the knees bilaterally (Tr. 16).
He has received treatment from a number of providers.
The
records of Dr. Mitchell Simons, his treating pain management
specialist, reveal that Plaintiff reported ongoing lower back pain
on July 6, 2009 (Tr. 387).
Dr. Simons prescribed Zanaflex and
Celebrex, a muscle relaxer and a nonsteroidal anti-inflammatory
drug, respectively, and recommended an epidural injection in the
neck at C7-T1, where Plaintiff had a protruding disc (Id.).
When
Plaintiff described significant pain on July 22, 2009, rated 6 to
7 on a 10 point scale, Dr. Simon described the pain as pain in the
thoracic
area
in
a
T7-8
dermatome
pattern
(Tr.
385).
He
recommended an epidural injection in that area and prescribed
3
Duragesic patches (Id.).
the
left
knee,
recommended
an
where
He also observed significant swelling of
Plaintiff
injection
was
(Id.).
also
Dr.
having
Simons
issues,
performed
and
three
thoracic epidural injections on July 30, 2009, and an injection in
the knee on August 3, 2009 (Tr. 383-84).
Further treatment for
continued pain in Plaintiff’s shoulder, mid back, lower back, and
both knees continued through August 2009, and Dr. Simons diagnosed
Plaintiff with thoracic radiculitis, C7-T1 disc protrusion and
radiculopathy, and bilateral knee pain (Tr. 382).
Additional
thoracic injections reduced Plaintiff’s pain level, but the pain
returned prior to the next set of scheduled epidural injections on
September 16, 2009 (Tr. 377, 380).
Eventually, on October 14,
2009, Dr. Simons reviewed a new MRI of the cervical spine which
showed arthritic problems and discogenic changes at the C5-6 and
C6-7 levels (Tr. 377).
He advised Plaintiff to start using Amrix
in place of other muscle relaxers prescribed (Id.).
Plaintiff had
further cervical epidural steroid injections on October 17, 2009,
to little avail (Tr. 375-76), and had to delay further treatment
due to upcoming knee surgery.
further
complaints
of
pain
Following that surgery, after
in
the
lower
back,
Dr.
Simons
administered diagnostic lumbar blocks and additional injections in
the lumbar area (Tr. 370-71) on January 6 and 15, 2010.
Plaintiff
reported that the blocks helped but that he still had pain (Tr.
369) on January 27, 2010.
On February 24, 2010, Plaintiff stated
4
that additional injections helped (Tr. 366), and Dr. Simon noted
lumbar facet joint tenderness, myofascial banding, and increased
pain with motion in the cervical and lumbar spine.
Dr. Simon then
performed a denervation procedure on March 4, 2010.
Meanwhile, Plaintiff’s treating physician, Dr. Harold V.
Markesbery, examined Plaintiff on July 20, 2009, where he observed
tenderness in both knees with poor range of motion (Tr. 338) and
diagnosed hypertension and knee osteoarthritis.
No significant
changes were noted during a visit on August 10, 2009 (Tr. 332-35),
but on September 9, 2009, Plaintiff complained to Dr. Markesbery
of pain in his knees, hips, hands, and fingers (Tr. 329).
Dr.
Markesbery observed poor knee flexion, tenderness in Plaintiff’s
shoulders, cervical spine tenderness, poor range of motion in the
back, and tenderness of the lumbosacral spine and right knee (Tr.
330) and diagnosed Plaintiff with osteoarthritis and depression.
He prescribed Fentanyl, Soma, Effexor, Kadian, and Zanaflex (Tr.
327-28).
Nonetheless, at Plaintiff’s visit on November 23, 2009,
he reported significant pain (Tr. 324), and Dr. Markesbery observed
knee tenderness and poor range of motion, back tenderness with
poor range of motion, and swelling (Tr. 325).
He diagnosed
Plaintiff with hypertension and arthropathy (Tr. 326). On December
21, 2009, Plaintiff presented with low back pain which began 3
years prior, which he described as severe and non-radiating and as
aggravated by bending, coughing, exercising, lifting, prolonged
5
standing, sitting, straining, and walking.
He described how the
pain would wake him from sleep and was worse in the morning.
He
also reported that he had recently been doing a lot of walking,
standing, working around the house, working in the yard, working
out, moving furniture, jogging, participating in football and
basketball,
running
cross
country,
and
playing
softball
and
baseball (Tr. 320).
Dr.
Charlotte
Harris,
Plaintiff’s
treating
surgeon, began treating Plaintiff on October 23, 2009.
orthopedic
Plaintiff
reported that he had been on and off work because of back, neck,
and knee problems.
An examination revealed positive straight leg
raising on the left, right knee motion from 10-120 degrees with
positive McMurray’s sign, and left knee motion from 5-120 degrees.
X-rays showed grade 2-3 osteoarthritis in all compartments of both
knees.
She prescribed Voltaren, a nonsteroidal anti-inflammatory
drug used to treat pain, and requested an MRI of the right knee.
That MRI, performed on October 29, 2009, revealed distortion of
imaging due to hardware, tricompartmental osteoarthritis that was
severe in the medial and lateral compartments, a questionable tear
of the lateral meniscus, a questionable complete tear of the medial
meniscus body, a suspect old partial tear of the proximal posterior
cruciate ligament, a tear of the iliotibial band, and Baker’s cyst
(Tr.
313-14).
On
November
18,
2009,
Plaintiff
underwent
arthroscopic debridement of a small lateral meniscal tear and
6
chondroplasty of the medial and lateral femoral condyle and lateral
tibial plateau with resection of thickened pathological plica and
removal of a screw from a prior surgery (Tr. 317-18).
He was
ambulating with crutches two days post-surgery and was to try and
wean off of the crutches and start exercises at home (Tr. 343).
On December 22, 2009, Plaintiff reported “a lot” of pain and some
catching in the knee (Tr. 342).
His right knee initial extension
lag was observed to be 20 degrees, with mild to moderate effusion
and weakness of the quadriceps.
Toradol was prescribed for pain,
and physical therapy was recommended.
On January 12, 2010,
Plaintiff stated that therapy was helping, and his right knee lag
was observed to be 5 degrees and his range of motion was 5-120
degrees (Tr. 341). Dr. Harris observed that he was no longer using
narcotic pain relief, which made his head feel much clearer.
recommended
that
he
consider
vocational
rehabilitation
She
to
transition to lighter work than the heavy labor he had done in the
cold environment of the meat packing facility.
On August 30, 2010, Plaintiff was evaluated at Denham Medical
Clinic (Tr. 449), where he reported shoulder and knee pain.
His
symptoms were unchanged at a follow-up on September 23, 2010 (Tr.
448).
When an examination revealed decreased motion in the right
shoulder with crepitus, Lang was prescribed Toradol and Celebrex.
On May 23, 2011, Dr. William Denham, a family medicine physician,
and
Cynthia
Schaefer,
APRN,
reported
7
treating
Plaintiff
for
degenerative arthritis in both knees with a history of multiple
surgeries, hypertension, depression, and chronic back pain (Tr.
417).
Both felt that Plaintiff could not return to work because
of his inability to sit for more than 2 hours or to stand/walk for
more than 1 hour and that he was unable to perform repetitive
movements such as pushing, pulling, bending, and kneeling.
They
advised that Plaintiff required double knee replacements but that
it was recommended that he wait until he was in his fifties to
prevent additional intervention later in life.
When Plaintiff was
seen for knee pain and depression on August 25, 2011, Ms. Schaefer
opined that he was unable to return to work because he could not
sit or stand for long periods of time (Tr. 447).
No improvement
as noted at visits on September 19, 2011, or December 12, 2011
(Tr. 444-45).
On January 24, 2013, Plaintiff reported bilateral
knee pain that was worse on the right and right sciatic nerve pain
(Tr. 486).
Bilateral knee pain was observed, and x-rays taken on
January 25, 2013, revealed advanced tricompartmental arthritic
changes in both knees despite prior surgery (Tr. 489).
Nurse Schaefer completed a Multiple Impairment Questionnaire
on July 25, 2011, which was co-signed by Dr. Denham (Tr. 419-27).
Plaintiff was diagnosed with left C7-T1 disc protrusion with
cervical radiculopathy, degenerative arthritis in both knees, two
torn menisci, chronic hypertension, and depression (Tr. 419).
Clinical findings included pain and tenderness in both knees, upper
8
and lower back pain, and neck pain and tenderness.
MRIs of both
knees, the cervical spine and back, as well as x-rays were offered
to support the diagnoses (Tr. 420).
The Questionnaire reported
that Plaintiff’s primary symptoms were back and knee pain, tingling
and numbness in his neck and spine, fatigue, and lack of movement
with pain rated at moderately severe (from 7 to 8 on a 10 point
scale) and fatigue as moderate (6 on a 10 point scale) (Tr. 42021).
They opined that Plaintiff is able to sit 2 hours total and
stand/walk less than 1 hour in an 8 hour workday; can occasionally
lift and carry 5 pounds; has significant limitations performing
repetitive
reaching,
handling,
fingering,
and
lifting
due
to
“terrible back and knee pain;” and is precluded from grasping,
turning, and twisting objects (Tr. 421-23).
They also opined that
his pain, fatigue, and other symptoms were constantly severe enough
to interfere with attention and concentration (Tr. 424).
Dr.
Denham
completed
a
second
Multiple
Impairment
Questionnaire on July 23, 2012 (Tr. 462-69) in which he reported
seeing Plaintiff once a month.
suffered
from
left
C7-T1
He again opined that Plaintiff
disc
protrusion
with
cervical
radiculopathy, degenerative arthritis in both knees, two torn
menisci, chronic hypertension, and depression (Tr. 462-63), all
diagnosed as a result of MRIs of both knees and the cervical spine
and
back,
x-rays
of
the
knees
and
back,
and
blood
pressure
monitoring, as well as Plaintiff’s demonstrated symptoms. Which he
9
felt were reasonably consistent with the diagnosed physical and
emotional impairments (Tr. 463).2
He opined that Plaintiff must
get up and move around every half hour for fifteen minutes before
he can sit again and that he must not stand or walk continuously
in a work setting.
He further opined that Plaintiff could never
lift or carry any weight; has significant limitations in repetitive
reaching, handling, fingering, and lifting; has marked limitations
with grasping, turning, and twisting objects in both the right and
left upper extremities; has moderate limitations in the right and
left upper extremities with respect to using the fingers or hands
for fine manipulations; and had marked limitations for using arms
for reaching (Tr. 465-66).
He opined that Plaintiff would have
only “bad days” due to his impairments and would need to avoid
wetness, noise, temperature extremes, heights, pushing, pulling,
kneeling,
bending,
and
stooping
and
would
be
impacted
by
psychological and vision limitations (Tr. 468).
On February 8, 2013, Plaintiff was evaluated by Dr. Karl
Kumler, an orthopedic surgeon, who observed bilateral knee pain
and back pain with a history of multiple surgeries (Tr. 481).
He
observed that Plaintiff had difficulty walking on his toes and
heels (Tr. 482), and an examination revealed flexion contractures
of both knees, mild pain throughout motion, mild positive straight
2
Dr. Denham added a diagnosis of bipolar disorder in the second assessment,
but neither Plaintiff nor the Commissioner party has identified this as relevant
to the issues on appeal.
10
leg raising test bilaterally, mild pain with right hip motion,
mild midline tenderness of the lumbar spine, poor flexion of the
spine, and minimal motion in other directions (Tr. 482-83).
Kumler
reviewed
x-rays
and
reported
evidence
arthritis in the spine, diffusely (Tr. 483).
Plaintiff
with
osteoarthritis,
leg
weakness,
lumbar
he
prescribed
a
of
early
facet
After diagnosing
radiculitis,
Medrol
Dr.
Dosepak,
and
an
knee
anti-
inflammatory medication, and recommended therapy (Tr. 484).
Plaintiff was examined by Dr. Naushad Haziq on October 19,
2011, at the request of the Social Security Administration.
Dr.
Haziq observed that Plaintiff had a broad-based, slow, cautious,
and antalgic gait; that he presented without assistive devices or
ambulatory aids; that he was able to stand unassisted, rise from
a seat, and step up and down from the examination table; and that
he appeared comfortable while seated and supine (Tr. 435).
He
also
of
observed
pain
and
tenderness
in
the
neck;
weakness
Plaintiff’s left grip compared to the right; pain, tenderness, and
swelling of the knees; crepitus of the left knee with mildly
limited motion; and moderate to severe limited motion in the right
knee (Tr. 435-36).
He also observed pain and tenderness in
Plaintiff’s lumbar spine with flexion-extension to 70 degrees and
both left and right lateral flexion to 20 degrees; straight leg
raising to 70 degrees bilaterally; knee flexion-extension to 60
degrees on the right and 100 degrees on the left; difficulty with
11
walking on heels and toes and with tandem gait; and an inability
to squat. He diagnosed Plaintiff with moderate to severe arthritis
of the knees, neck and back pain, hypertension, and obesity (Tr.
437).
Dr. Diosdado Irlandez, a consulting, non-examining agency
physician, opined that Plaintiff could occasionally lift or carry
20 pounds, frequently lift or carry 10 pounds; stand or walk about
6 hours in a normal workday, sit with normal breaks for 6 hours in
a normal workday, push or pull hand or foot controls for an
unlimited amount of time; occasionally climb ramps and stairs,
ladders, ropes, and scaffolds; perform unlimited balancing, stoop
or bend at the waist occasionally, kneel occasionally, crouch
occasionally,
an
crawl
exposure to vibrations.
occasionally;
and
avoid
concentrated
He based his opinion on the limitations
observed during Dr. Haziq’s examination as well as the impressions
obtained
from
diagnostic
testing,
all
of
which
reasonably
supported Plaintiff’s reported symptoms but not the severity and
intensity to which Plaintiff testified (Tr. 83-85).
Looking at
the same records, Dr. James Ramsey, another consulting, nonexamining
agency
physician,
opined
that
Plaintiff
could
occasionally lift or carry 20 pounds, frequently lift or carry 10
pounds; stand or walk about 4 hours in a normal workday, sit with
normal breaks for 6 hours in a normal workday, push or pull hand
controls for an unlimited amount of time but only occasionally use
12
foot controls due to degenerative joint disease of the right knee;
frequently climb ramps and stairs; never climb ladders, ropes, and
scaffolds; occasionally balance, kneel,, stoop or bend at the
waist, kneel, crouch or bend at the knees, and crawl; and avoid
concentrated exposure to vibrations and hazards such as machinery
or heights (Tr. 102-04).
Plaintiff testified that he is unable to work due to constant
pain in his back and knees (Tr. 37-38), rated at an 8 on a 10 point
scale.
Plaintiff estimated that he can walk half a block, stand
for 10 to 15 minutes, sit for “maybe” an hour, has difficulty
lifting 20 pounds, and drops objects from his hands about once a
day (Tr. 42-43).
He testified that his pain in his knees is a
constant stabbing pain and that nothing in particular causes his
knee pain to be worse during the course of a day (Tr. 39-40).
With
respect to his pain in his hips and back, he testified that it
becomes worse if he “turn[s] too quick” (Tr. 39).
He testified
that he lives with his girlfriend and cooks meals and does laundry
together with her, which does not require carrying the laundry
very far since the washer and drier on are on site in their
residence, but that she does the grocery shopping and dishes (Tr.
34, 45).
During the day he watches television on the couch or in
bed for most of the day, which gives him relief from his pain
symptoms and, while he used to do other things, he would “just
rather stay in bed” (Tr. 46-47).
13
He can vacuum for two minutes
(Tr. 47) and is successful because he lives in a very small
residence.
He uses ice and takes hot showers to help with his
pain and finds that over-the-counter medications such as Advil are
“somewhat” effective in controlling his pain (Tr. 39).
He drove
himself about fifty miles to the hearing but had to stop once, get
out of the vehicle, and stretch (Tr. 44).
He testified that he
used to play softball and fish, as well as participate in other
activities, but that he no longer does so and that his hobbies
have been limited for about three years (Tr. 44-45).
The ALJ concluded that, notwithstanding Plaintiff’s severe
impairments and his treating physician’s estimates of his ability
to do work, Plaintiff retained the residual functional capacity
(“RFC”) to lift or carry up to 20 pounds occasionally and 10 pounds
frequently, to stand and/or walk two hours in an eight hour period
and sit for up to six hours in an eight hour period; occasionally
use
his
lower
extremities
to
operate
foot
controls;
and
occasionally balance, stoop, kneel, crouch, and crawl (Tr. 17).
The ALJ further concluded that Plaintiff is unable to climb
ladders, ropes, scaffolds, ramps, and stairs and needs to avoid
concentrated exposure to vibrations and hazards (Id.). In reaching
that conclusion, the ALJ determined that Plaintiff’s medically
determinable impairments could be reasonably expected to cause the
symptoms alleged by Plaintiff but that his statements concerning
the intensity, persistence and limiting effects of the symptoms
14
were not entirely credible (Tr. 20).
He noted particularly the
use of over-the-counter medications and ice which were effective
to alleviate some of Plaintiff’s pain, the lack of convincing
details
concerning
factors
which
precipitated
pain
and
other
disabling symptoms, and the fact that Plaintiff’s ability to do
some work around his home suggested a greater level of function
that Plaintiff testified to being able to do.
He gave little
weight to the assessments of Plaintiff’s ability to do work by Dr.
Denham or the observations of Ms. Schaefer because the limitations
proposed were similarly undermined by the evidence of record, as
set forth above and which also included post-surgical observations
by other physicians that the claimant was “doing pretty well” but
should pursue lighter work in the face of his knee issues.
When the ALJ posed a hypothetical based on that RFC to the
vocational
expert
(“VE”)
at
the
administrative
hearing,
she
testified that such an individual could not perform Plaintiff’s
past work but could work at the sedentary exertional level,
including jobs as factory worker, hand packer, inspector/sorter,
of which their existed an appreciable amount in the regional and
national economy (Tr. 50-51). Ultimately, based upon the testimony
of the VE, the ALJ concluded that, while Plaintiff could no longer
perform his past work, there were jobs that existed in significant
numbers in the national economy that he could perform with his
15
age, education, work experience, and RFC, and that Plaintiff was
not disabled (Tr. 22-23).
IV.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007).
“The ALJ’s findings are conclusive as long
as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).
Substantial evidence “means such relevant evidence as
a reasonable mind might accept.” Foster, 279 F.3d at 353.
V.
Plaintiff challenges the ALJ’s decision that he retained the
ability to do sedentary work for failing to properly weigh the
medical evidence of record and for failing to properly evaluate
his credibility.
Specifically, he argues that the ALJ erred when
he decided to give “little weight” to treating physician Dr.
Denham’s opinion that Plaintiff would have to lie down or recline
four to five hours a day because it was “wholly unsupported by the
record” [AR 21] but did not identify any discrepancies between Dr.
Denham’s opinions, the underlying medical evidence, or Plaintiff’s
testimony concerning his that he spent most of his days either on
the couch or in bed (Tr. 46).
Plaintiff points out that Dr. Denham
16
based his assessment of Plaintiff on clinical and diagnostic
evidence, which the ALJ accepted in determining that Plaintiff had
severe impairments due to degenerative disc and joint disease, as
well
as
osteoarthritis
in
his
knees,
including
Dr.
Denham’s
observations and Plaintiff’s complaints of pain and tenderness in
both knees, his observations and Plaintiff’s complaints of upper
and lower back pain, his observations and Plaintiff’s complaints
of neck pain and tenderness, MRIs of both knees, the cervical
spine, and back, and x-rays [AR 419-20, 462-63]. He further argues
that the ALJ cited no evidence to support a conclusion that Dr.
Denham’s
assessment
inconsistent
with
of
the
Plaintiff’s
treatment
ability
records
to
do
work
documenting
was
pain,
tenderness, and limited motion in the knees (Tr. 325, 330, 338,
341, 342, 345, 382, 385, 435-436, 482, and 486) as well as
tenderness in the neck and back with limited motion (Tr. 325, 330,
366, 369, 382, 385, 435-436, and 482-483).
Plaintiff’s own brief provides the answer, however, for he
argues
as
well
that
the
ALJ
erred
when
he
concluded
that
Plaintiff’s testimony concerning the nature and severity of his
knee and back pain were undermined by the fact that he took overthe-counter medications such as Advil and Ibuprofen to relieve his
pain instead of stronger prescription medications.
He also argues
that the ALJ erred in his evaluations of Plaintiff’s activities of
daily living – vacuuming, taking out the trash, cooking, and doing
17
laundry, which Plaintiff describes as much less onerous than the
ALJ believed them to be – and the ALJ’s conclusion that they were
inconsistent with Plaintiff’s claims and Dr. Denham’s opinion that
Plaintiff can do no work.
It is not inappropriate for an ALJ to consider the type of
treatment, including the type and relative strength of pain relief
medications used by a claimant, or the claimant’s ability to
perform other tasks outside of work, in evaluating a claimant’s
credibility or the credit given to the treating physician’s opinion
of
the
claimant’s
ability
to
do
work.
See
20
C.F.R.
§
404.1529(c)(3)(i), (iv)-(v) (stating that an ALJ must consider a
claimant’s activities and the type of treatment); 20 C.F.R. §
404.1529(c)(4) (stating that an ALJ must consider whether there
are conflicts between a claimant’s statements and the rest of the
evidence);
Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 536 (6th
Cir. 2001) (“The ALJ could properly determine that her subjective
complaints were not credible in light of her ability to perform
other tasks.”).
This uncontroverted evidence exists and, whether
or not this Court would reach the same conclusion from it as the
ALJ, the Court must uphold the ALJ’s decision premised upon it.3
3
The Court is not persuaded to conclude otherwise by Plaintiff’s reference
to Scandura v. Astrue, No. 07-cv-5098, 2009 WL 648611 *9 (E.D.N.Y. March 10,
2009), or Geiger v. Astrue, No. 10cv5765-BHS-JRC, 2011 WL 5282712 *11 (W.D.
Wash. Oct. 5, 2011), the first of which addresses the situation where an ALJ
overstates a treating physician’s opinion regarding limitations only to reject
it and the second of which addresses a situation where an ALJ relied almost
exclusively on the claimant’s ability to sit comfortably in a hearing when
18
See Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 392 (6th Cir.
2004)
(affording
great
deference
to
ALJ’s
determination
of
credibility of claimant’s subjective complaints of pain).
Further, the ALJ was not bound by Dr. Denham’s opinion
concerning Plaintiff’s ability to do work, even if it was supported
by sufficient clinical findings, if it is inconsistent with other
evidence of record – which would include Dr. Haziq’s observations
of Plaintiff’s ability to move and ambulate in this instance.
See
20 C.F.R. § 404.1527(c)(4), stating that an ALJ must consider
whether opinion is consistent with the record as a whole); Combs
v. Comm'r of Soc. Sec., 459 F.3d 640, 652 (6th Cir. 2006). Finally,
Dr. Denham authored two opinions approximately one year apart
(compare TR. 419-27 (July 2011 opinion indicating that Plaintiff
could limit up to five pounds and would have good and bad days and
that these limitations applied since October 2008) with (Tr. 46269 (August 2011 opinion indicating that Plaintiff could never lift
any weight and would have only bad days and that these limitations
applied since March 2002).
A reasonable person could conclude
that Plaintiff was not as limited in his ability to do work as he
claimed
after
assessments,
looking
without
at
any
the
conflict
obvious
between
changes
with
Dr.
Denham’s
respect
to
Plaintiff’s condition; the fact that Dr. Denham’s opinion that
substantial evidence supported claimant’s statements that she could not do so
in the course of an eight-hour workday.
19
Plaintiff could not perform sedentary or light work conflicts with
evidence of the effectiveness of Plaintiff’s treatment and the
observations of the treating orthopedic specialists that he should
consider seeking lighter work than he had done before; Plaintiff’s
use of over-the-counter medications which were somewhat effective
at controlling his pain; Dr. Haziq’s observations of Plaintiff’s
ability to move and his assessment of his level of discomfort; and
Plaintiff’s reported activities in the home and community.
if
the
Court
would
reach
a
different
conclusion
Even
concerning
Plaintiff’s credibility on these facts, the Court cannot fault the
ALJ for reaching the conclusion that he did and concluding that
Plaintiffs’ claim that he could not perform even a range of
sedentary work was incredible.
VI.
Ultimately,
the
Court
concludes
that
the
Commissioner’s
decision denying benefits is supported by substantial evidence
because he developed an RFC which reflected the evidence of record
and based his opinion on the testimony of VE which was responsive
to a hypothetical question which reflected that RFC.
Wilson v.
Comm’r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004) (“[T]he
Commissioner may rely on the testimony of a vocational expert to
find that the claimant possesses the capacity to perform other
substantial
gainful
activity
that
economy.”).
The Court affirms the decision.
20
exists
in
the
national
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:
1)
that Plaintiff’s Motion for Summary Judgment (DE 7) is
DENIED and
2)
that Defendant’s Motion for Summary Judgment (DE 9) is
GRANTED.
This the 4th day of March, 2016.
21
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