Binder v. SSA

Filing 12

MEMORANDUM OPINION & ORDER:(1) The decision of the Commissioner is found to be supported by substantial evidence and is hereby AFFIRMED; (2) Plaintiffs Motion for Summary Judgment 9 is hereby DENIED; (3) Defendants Motion for Summary Judgment 11 is hereby GRANTED; and (4) A Judgment in favor of Defendant Commissioner will be entered contemporaneously herewith.. Signed by Judge David L. Bunning on 11/27/2018.(KRB)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
AT COVINGTON
CIVIL ACTION NO. 18-16-DLB
ROBERT BINDER
v.

PLAINTIFF
MEMORANDUM OPINION & ORDER

NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration
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DEFENDANT
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Plaintiff 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 Plaintiff’s
eligibility for Social Security disability insurance benefits. (Doc. # 1). The Court, having
reviewed the record and the parties’ dispositive motions, and for the reasons set forth
herein, will affirm the Commissioner’s decision.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff Robert Binder protectively filed a Title II application for a period of disability

and disability insurance benefits, alleging disability beginning on September 10, 2011.
(Doc. # 9 at 1; Tr. 264-79). Binder also protectively filed a Title XVI application for
supplemental security income. (Tr. 264-79). Binder was forty-four years old at the time
of filing, and alleged that he was unable to work due to problems with his back, as well
as diabetes, high blood pressure, high cholesterol, and depression. (Tr. 134). The claims
were denied initially on July 17, 2014, and again upon reconsideration on November 6,
2014. (Tr. 184-191, 192-195, 198-204, 205-211).

At Binder’s request, an administrative hearing was conducted on October 12,
2016, before Administrative Law Judge (ALJ) Christopher S. Tindale. (Tr. 104-133). On
December 7, 2016, ALJ Tindale issued his decision. (Tr. 14-29). The ALJ noted that
Binder was “insured through September 30, 2011.” (Tr. 14). He found, however, that
Binder’s impairments did not become disabling until November 12, 2014; accordingly, the
ALJ ruled that Binder was not under a disability within the meaning of the Social Security
Act at any time through September 30, 2011—the last date that Binder met the insured
status requirements of the Social Security Act. Id. at 14. The ALJ’s decision became the
final decision of the Commissioner on November 29, 2017, when the Appeals Council
denied Binder’s request for review. (Tr. 1-6).
Binder filed the instant action on January 18, 2018, alleging the ALJ’s decision was
“not supported by substantial evidence,” and was “erroneous.” (Doc. # 1 at 1). The matter
has culminated in cross-motions for summary judgment, which are now ripe for
adjudication. (Docs. # 9 and 11).
II.

DISCUSSION
A.

Overview of the Process

To determine disability, the ALJ conducts a five-step analysis. Step One considers
whether the claimant can still perform substantial gainful activity; Step Two, whether any
of the claimant’s impairments, alone or in combination, are “severe;” Step Three, whether
the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether
the claimant can still perform his or her past relevant work; and Step Five, whether a
significant number of jobs exist in the national economy that a claimant can perform.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. §

2

404.1520). The burden of proof rests with the Plaintiff on the first four steps. Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). As to the last step, the burden
of proof shifts to the Commissioner to identify “jobs in the economy that accommodate
[Plaintiff’s] residual functional capacity.” Id. The ALJ’s decision is considered the “final
decision” of the Commissioner, and, after a denial of a plaintiff’s request for review of the
ALJ’s decision by the Social Security Administration’s Appeals Council, gives rise to
judicial review under 42 U.S.C. § 405(g). See Thacker v. Berryhill, No. 16-CV-114, 2017
WL 653546, at *1 (E.D. Ky. Feb. 16, 2017).
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “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.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Pursuant to this standard, courts are not to conduct a de novo review, resolve conflicts in
the evidence, or make credibility determinations. Id. Rather, the Court must affirm the
Commissioner’s decision so long as it is supported by substantial evidence—even if the
Court might have decided the case differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388,
389-90 (6th Cir. 1999). If supported by substantial evidence, the Commissioner’s findings
must be affirmed, even if there is evidence favoring Plaintiff’s side. Listenbee v. Sec’y of
Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988). Similarly, an administrative
decision is not subject to reversal merely because substantial evidence would have
supported the opposite conclusion. Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).

3

B.

The ALJ’s Determination

As an initial matter, the ALJ determined that Binder met the insured status
requirements of the Social Security Act through September 30, 2011. (Tr. 16). The ALJ
then proceeded to the five-step sequential evaluation process to determine whether
Binder was disabled during the relevant time period. At Step One, the ALJ found that
Binder had not engaged in substantial gainful activity since September 10, 2011, the
alleged onset date of disability. Id. At Step Two, the ALJ determined that Binder had the
following severe impairments: (1) disorders of the spine; (2) diabetes mellitus; (3)
obstructive sleep apnea; (4) chronic heart failure; (5) coronary artery disease; (6) mood
disorder; and (7) anxiety disorder. Id. At Step Three, the ALJ concluded that Binder did
not have an impairment or combination of impairments that met or medically equaled one
of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 19.
At Step Four, the ALJ found that, prior to November 12, 2014, Binder possessed
the residual functional capacity (RFC) to perform a reduced range of sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 404.967(a), with the following limitations:
[Binder] could have occasionally climbed ramps and stairs, but never have
climbed ladders, ropes or scaffolds. He could have occasional[ly] stooped,
kneeled, crouched and crawled. He was limited to simple, routine tasks
consistent with unskilled work in a work environment free of fast production
rate or pace work. He could have had occasional contact with the public
and frequent contact with co-workers and supervisors. He must have
worked in a low-stress environment defined as having only occasional
changes in the work setting and only occasional decision making required.
(Tr. 20). Based upon this RFC and relying on the testimony of a vocational expert (VE),
see id. at 129, the ALJ concluded that Binder was unable to perform his past relevant
work as a freight conductor or cargo plane loader/unloader. Id. at 26-27. Therefore, the
ALJ proceeded to Step Five. At Step Five, the ALJ found that no jobs existed in the
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national economy that Binder could perform after November 12, 2014. Id. at 27-28.
However, as to the relevant time period, the ALJ determined that other jobs did exist in
significant numbers in the national economy that Binder could have performed prior to
November 12, 2014. Id. at 27-28. Thus, the ALJ found that Binder’s impairments became
disabling on November 12, 2014, but prior to that date, Binder was not under a disability,
as defined in the Social Security Act. Id. at 28-29.
C.

Analysis

Binder’s Motion for Summary Judgment raises four central arguments in support
of his conclusion that the ALJ’s decision was erroneous and not supported by substantial
evidence. (Doc. # 9). First, Binder argues that the ALJ did not apply the proper weight
to the opinions of Jeffery L. Stambough, M.D., M.B.A., or Jaideep Chunduri, M.D., two of
his treating orthopedic surgeons; specifically, Binder asserts that the ALJ failed to
properly consider and apply the evidence set forth in his treating physicians’ clinical notes
“as a whole,” and merely “cherry-picked” language in the records to support a finding that
Binder was not disabled. Id. at 2-10. Second, Binder argues that the ALJ erred at Step
Three of the sequential evaluation process by finding that Binder’s impairments did not
meet the standard for a per se disabling impairment pursuant to Listing 1.04, see 20
C.F.R. pt. 404, subpt. P, app. 1, § 1.04. (Doc. # 9 at 10-13). Third, Binder argues that
the ALJ did not “properly mention, consider or address” the functional capacity evaluation
(FCE) completed by treating physical therapist Karen Scholl. Id. at 13-14. Finally, Binder
argues that the ALJ failed to properly consider and apply the treating opinions of his
treating psychiatrist, Gene VanLeeuwen, M.D. Id. at 14-15. The Court will address each
argument in turn.

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1.

The ALJ properly considered the opinions of Binder’s treating
physicians, Dr. Stambough and Dr. Chunduri.

Binder asserts that the ALJ’s decision was not supported by substantial evidence
because the ALJ failed to give “any weight” to the evidence set forth in the clinical notes
of his treating orthopedic surgeons, Dr. Stambough and Dr. Chunduri. Specifically, Binder
contends that the ALJ’s opinion merely “cherry-picked” evidence and “failed to provide
the required meaningful detailed analysis in Mr. Binder’s RFC equation which includes
proper application of the ‘whole’ treating source evidence.” (Doc. # 9 at 2-3).
The ALJ must make all determinations based upon the record in its entirety.
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 249 (6th Cir. 2007). When constructing a
claimant’s RFC, the ALJ must take into account all relevant medical and other evidence.
20 C.F.R. § 404.945(3). Assessing the record as a whole “helps to ensure that the focus
in evaluating an application does not unduly concentrate on one single aspect of the
claimant’s history, if that one aspect does not reasonably portray the reality of the
claimant’s circumstances.” Rogers, 486 F.3d at 249. An allegation that the ALJ “cherrypicked” evidence to support his or her RFC finding, like the one presented by Plaintiff, “is
seldom successful,” however, “because crediting it would require a court to re-weigh
record evidence.” DeLong v. Comm’r of Soc. Sec., 748 F.3d 723, 726 (6th Cir. 2014).
That is not the role of this Court. “When deciding under 42 U.S.C. § 405(g) whether
substantial evidence supports the ALJ’s decision, [courts] do not try the case de novo,
resolve conflicts in the evidence, or decide questions of credibility.” Bass v. McMahon,
499 F.3d 506, 509 (6th Cir. 2007). If the ALJ examined the record as a whole and the
ALJ’s decision is supported by substantial evidence, then this Court must affirm the ALJ’s
decision, even if the Court might have decided the case differently. Listenbee, 846 F.2d
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at 349.
Here, the ALJ’s decision is supported by substantial evidence, because the ALJ
considered the entire record, including the treatment notes and medical source opinions,
and reasonably found that Plaintiff was limited by his back impairment and depression,
but not disabled by them, prior to November 12, 2014. Binder argues that the ALJ’s
decision was not supported by substantial evidence because it failed to fully consider Dr.
Stambough’s treatment records, namely, portions of the records that indicate Binder was
unable to work during the relevant time period. The treatment records do show that Dr.
Stambough made several statements opining on Binder’s ability to work; for instance, in
February 2012, Dr. Stambough notes that Binder was “not likely to be able to go back to
the duty at the railroad.” (Tr. 434) (emphasis added). See also (Tr. 437, 439, 464-65,
2109-2111).

Binder seeks to characterize these statements as proof that he was

permanently unable to work at all. (Doc. # 9 at 3-5). However, Binder’s claim that he is
entitled to relief on this basis fails.
The record notations cited by Binder’s dispositive motion stop short of indicating
that Dr. Stambough opined Binder was permanently unable to work any job. Rather, the
notations were in line with the ALJ’s finding that Binder could never return to his past work
(Tr. 26), but could perform the minimal demands of sedentary work from September 2011
through November 2014 (Tr. 20). Notations in Dr. Stambough’s treatment records over
the course of Binder’s treatment generally indicate that Binder could not return to his past
work and was temporarily unable to work—but that Binder could return to less strenuous
work by January 1, 2013.1 See (Tr. 439).

1

Here, any temporary inability to work does not satisfy the twelve-month durational requirement
pursuant to 20 C.F.R. § 404.1509. See Barnhart v. Walton, 535 U.S. 212, 219, 221-22 (2002).
7

Even if Dr. Stambough had opined that Binder was completely unable to work, the
ALJ was not required to give controlling weight to Dr. Stambough’s opinion because it
constituted an ultimate conclusion, not a medical opinion.

It is well-settled that an

administrative law judge, in assessing medical evidence in a disability case, is required
to give greater weight to the opinions of a treating physician than to those of non-treating
physicians. Dunlap v. Comm’r of Soc. Sec., 509 F. App’x 472, 474 (6th Cir. 2012) (citing
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009)). This “treating
physician rule,” however, only applies to medical opinions. While a medical expert may
opine “on issues such as whether [the claimant’s] impairment(s) meets or equals the
requirements of any impairment(s) in the Listing of Impairments,” as well as the claimant’s
RFC or the application of vocational factors, such opinions are not entitled to controlling
weight. See 20 C.F.R. § 404.1527(d)(2) (stating that “the final responsibility for deciding
these issues is reserved to the Commissioner”). The Sixth Circuit has held that a treating
physician’s conclusion that a claimant is “unable to work”—the precise statement at issue
here—does not constitute a “medical opinion” under agency regulations. See Dunlap,
509 F. App’x at 474-76. See also Noto v. Comm’r of Soc. Sec., 632 F. App’x 243, 246
n.1 (6th Cir. 2015) (finding that a doctor’s note that did not “reflect a judgment about the
nature and severity of the claimant’s impairments” did not fall within the scope of a
“medical opinion.”). Dr. Stambough’s notations that Binder was “unable to work” therefore
did not constitute a “medical opinion,” and Dr. Stambough’s opinion was not entitled to
controlling weight.
The only medical opinion cited by Binder that went to his functional abilities was
the February 2012 notation indicating that Binder should be able to work in three to six

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months and that he could lift up to 30 pounds, could lift 10 pounds frequently, and should
avoid repetitive bending, lifting, and twisting. (Tr. 434). The ALJ’s assessed RFC was
more deferential to Binder than Dr. Stambough’s, limiting Binder to lifting no more than
10 pounds and only occasionally climbing ramps and stairs, stooping, kneeling,
crouching, or crawling. (Tr. 20).
Binder also points to other evidence in Dr. Stambough’s treatment records, such
as the January 3, 2012 MRI scan indicating, inter alia, disc protrusions at L3-S1 causing
stenosis narrowing and abutment of L4-S1 nerve roots, and notes that “[t]he ALJ fails to
address or make any mention of these critical treating surgeon findings.” (Doc. # 9 at 3)
(citing Tr. 443). However, “an ALJ is not required to explicitly discuss every piece of
evidence.” Spencer ex rel. S.J. v. Comm’r of Soc. Sec., 1:13-CV-107, 2014 WL 1302610,
at *1 (S.D. Ohio Mar. 31, 2014) (citing Kornecky v. Comm’r of Soc. Sec., 167 F. App’x
496, 507 (6th Cir. 2006)). “While it might be ideal for an ALJ to articulate his reasons for
crediting or discrediting each medical opinion, it is well settled that [a]n ALJ can consider
all the evidence without directly addressing in his written decision every piece of evidence
submitted by a party,” particularly where—as here—the record spans thousands of
pages. Kornecky, 167 F. App’x at 507.
Similarly, Dr. Chunduri’s treatment notes also provide conclusory statements that
Binder was temporarily unable to work. “[T]he ALJ is not bound by conclusory statements
of doctors, particularly where they are unsupported by detailed objective criteria and
documentation.” Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001). Dr. Chunduri’s
notes do not supply any significant, specific examples of discordance between the opinion
of Dr. Chunduri and the ALJ’s assessment limiting Binder to a range of sedentary work

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during the relevant time period. (Tr. 522, 534, 539-40, 547, 560).
With regard to the ALJ’s finding that Binder was limited to a range of simple work,
the ALJ considered the entire record, including the treatment notes and medical source
opinions, and reasonably found that Binder was limited by his back impairment and
depression, but not disabled by them prior to November 12, 2014.

The ALJ

acknowledged Binder’s history of frequent treatment for his back pain between late 2011
and 2013, noting that Binder at certain points was walking well and improving but that his
back pain was ongoing and required three surgeries during this time period. (Tr. 22-23).
Taking Binder’s pain into account, the ALJ limited Binder to a reduced range of sedentary
work from September 2011 through November 2014. (Tr. 20).
By merely pointing to general medical evidence in the record, Binder in essence is
just requesting that the Court re-weigh the evidence. This is improper. It does not matter
if substantial evidence does support a plaintiff’s disability, so long as substantial evidence
also supports a finding of “not disabled.” Her, 203 F.3d at 389-90 (holding that “[e]ven if
the evidence could also support another conclusion, the decision of the [ALJ] must stand
if the evidence could reasonably support the decision reached”) (citing Key v. Callahan,
109 F.3d 270, 273 (6th Cir. 1997)); see also Listenbee, 846 F.2d at 349. As a result, it
does not matter if Binder, or even this Court, believes substantial evidence supports a
different disability determination. While the ALJ weighed the evidence contrary to how
Binder preferred, the ALJ did not fail to analyze the evidence in the whole record. See
Minor v. Comm’r of Soc. Sec., 513 F. App’x 417, 436 (6th Cir. 2013). Thus, the ALJ did
not engage in any type of improper cherry-picking. Instead, he properly considered the
record as a whole. Where, as here, the ALJ’s decision is supported by substantial

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evidence, the Court must affirm the decision. Listenbee, 846 F.2d at 349.
2.

The ALJ did not err when he found that Binder failed to meet the
requisite impairments set forth in Listing 1.04.

Binder next asserts that the ALJ erred by finding that Binder did not have a per se
disabling impairment at Step Three of the sequential evaluation process. Specifically,
Binder challenges the ALJ’s finding that there was no evidence of consistent nerve root
compression to support Listing 1.04, as set forth in 20 C.F.R. part 404, subpart P,
appendix 1.
Pointing primarily to various medical records, Binder asserts that the ALJ erred
because the records show that his back problems were severe and that he “suffered an
acute traumatic spinal cord injury.” (Doc. # 9 at 11-13). Binder seeks to undercut the
evidence relied upon by the ALJ, claiming that the ALJ’s finding was based upon records
from two office visits that were “cherry pick[ed] . . . to suggest Mr. Binder’s low back
improved after his [first] surgery in January 2012” rather than considering the record as a
whole. (Doc. # 9 at 13). As set forth supra, however, an allegation that the ALJ “cherrypicked” evidence to support his or her RFC finding “is seldom successful . . . because
crediting it would require a court to re-weigh record evidence.” DeLong, 748 F.3d at 726.
The Court’s role here is to decide whether substantial evidence supports the ALJ’s
decision, not to “try the case de novo, resolve conflicts in the evidence, or decide
questions of credibility.” Bass, 499 F.3d at 509. If the ALJ examined the record as a
whole and the ALJ’s decision is supported by substantial evidence, then this Court must
affirm the ALJ’s decision, even if the Court might have decided the case differently.
Listenbee, 846 F.2d at 349.

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Here, the ALJ examined the record as a whole and his decision is supported by
substantial evidence.

The ALJ considered Listing 1.04, but found that Binder’s

impairment did not meet all of the specified medical criteria. For a claimant to show that
his impairment matches a listing, “it must meet all of the specified medical criteria” and
“[a]n impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Hicks v. Comm’r of Soc. Sec., 105 F. App’x 757, 761 (6th Cir. 2004) (citing
Sullivan v. Zeblev, 493 U.S. 521, 530 (1990) (emphasis in original)). The Listing requires
that disorders of the spine resulting in compromise of a nerve root or the spinal cord show
evidence of “[1] nerve root compression characterized by neuro-anatomic distribution of
pain, [2] limitation of motion of the spine, [3] motor loss . . . accompanied by sensory or
reflex loss and, [4] if there is involvement of the lower back, positive straight-leg raising
test.” 20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ found that Binder’s impairment met some, but did not meet all, of the
specified medical criteria because there was not “evidence of [1] consistent nerve root
compression or the requisite neurological defects.” (Tr. 19). Pointing to evidence in the
record, the ALJ noted that Binder improved somewhat following his January 2012
surgery, and that March 2012 records showed his leg pain had abated, he had no
weakness or sensory changes in his left foot, and his reflex, sensation, and motor strength
were equal. (Tr. 19, 435). By May 2012, Binder was walking better, his gait was
unimpaired, straight leg raises were negative, and there was no sensory loss or
neurological deformity. (Tr. 19, 438). And in April 2013, Binder could stand and walk on
his toes and heels without weakness, walked without a limp, and had full strength. (Tr.
19, 557). By merely pointing to other evidence in the record relating to the severity of his

12

back issues, Binder fails to demonstrate that the ALJ erred and rather improperly invites
the Court to re-weigh evidence.
Binder also asserts that the ALJ erred because he did not consider the opinion of
Binder’s treating physician, Dr. Burgher, with respect to Listing 1.04. (Doc. # 9 at 10). In
support of this argument, Binder points to the March 29, 2016 “Treating Clinical Physician
Statement” completed by Dr. Burgher; there, Dr. Burgher noted “yes” in response to
whether Binder had a herniated disc “resulting in compromise of a nerve root or spinal
cord” as well as “nerve root compression causing pain, limitation of spine motion, motor
loss, and sensory or reflect loss (and for Lumbar must have Positive straight-leg raise
test).” (Tr. 958-61). Burger’s argument sidesteps the relevance of the time period at
issue in this case. The ALJ found that Binder’s impairments became disabling beginning
on November 12, 2014, but that Binder was not disabled prior to 2014.
In light of this relevant timeline, it is important to note that Dr. Burgher’s statement
was generated in 2016—well past the date that was determined by the ALJ to be the
onset of Binder’s disability. Therefore, the ALJ did not err in questioning the probative
value of Dr. Burgher’s opinion, because it did not demonstrate that Binder met the listing
during the relevant time period—between 2011 and 2014—and because Dr. Burgher did
not treat Binder during this period. The ALJ therefore reasonably found that Dr. Burgher’s
opinion was “of limited value,” because it was based upon evidence outside of the relevant
time period. (Tr. 26). While the ALJ’s stated reason “may be brief . . . [t]he ALJ fully
satisfied agency procedural requirements by providing good reasons for discounting [the
treating physician’s] questionnaire responses, and therefore remand is not required for
failure to do so.” Allen v. Comm’r of Soc. Sec., 561 F.3d 646, 649-51 (6th Cir. 2009)

13

(upholding ALJ’s rejection of treating physician opinion where the physician treated the
claimant two years after the relevant time period).
In sum, the ALJ’s decision is supported by substantial evidence, and the ALJ did
not err in determining the application of Listing 1.04 to Binder’s condition. Based upon
evidence showing that there was not “consistent nerve root compression or the requisite
neurological defects,” the ALJ reasonably found that Binder did not satisfy all of the
requirements of any part of Listing 1.04. (Tr. 19). While the evidence was weighed
contrary to how Binder preferred, the ALJ did not fail to analyze the evidence in the record
as a whole. Minor, 513 F. App’x at 436. By merely pointing to other medical evidence
found in the record, Binder again essentially requests that the Court re-weigh the
evidence.

This is improper.

Where, as here, the ALJ’s decision is supported by

substantial evidence, and the ALJ considered the record as a whole, the Court must affirm
the decision. Listenbee, 846 F.2d at 349.
3.

The ALJ properly considered the FCE completed by Binder’s
treating physical therapist, Karen Scholl.

Binder next asserts that the ALJ’s decision was not supported by substantial
evidence because the ALJ did not “properly mention, consider or address” the February
5, 2016 functional capacity evaluation (FCE) completed by treating physical therapist
Karen Scholl, PT, and ordered by Dr. Burgher. (Doc. # 9 at 13-14; Tr. 953-57). Binder’s
argument again seeks to minimize the significance of the relevant time period at issue.
Just like Dr. Burgher’s opinion, the FCE was generated in 2016—well past the onset date
of Binder’s disability. Therefore, the ALJ did not err in questioning the probative value of
the FCE, because it was not generated during the relevant time period—between 2011
and 2014—and because the physical therapist did not treat Binder during this period.
14

Allen, 561 F.3d at 649-51. The ALJ reasonably found that the FCE was “of limited value,”
therefore, “in determining the claimant’s capabilities prior to the established onset date,”
because it was based upon evidence outside of the relevant time period. (Tr. 26).
Binder argues that the ALJ failed to acknowledge that the physical therapist
reviewed medical records from the relevant period and that the FCE purported to relate
back to this period. (Doc. # 9 at 13-14). However, the ALJ provided good reasons for
deciding to only give “some weight” to the physical therapist’s FCE. (Tr. 26). The ALJ
reasoned that as a practical matter, “examination limitations would necessarily be
impacted by the claimant’s severe cardiac condition” that developed after the relevant
time period; for example, “the claimant’s ability to ambulate distances as well and (sic)
lifting and carrying weight, would be impacted by both his spine and cardiac conditions.”
(Tr. 26). The ALJ concluded that “[i]t is this combination, particularly in light of his severely
worsening cardiac condition, that disables the claimant as of the established onset date
. . . [and] as such, this evaluation is of limited value in determining the claimant’s
capabilities prior to the established onset date.” Id. Therefore, as with the discussion of
Dr. Burgher’s opinion, supra, here the ALJ “fully satisfied agency procedural requirements
by providing good reasons” for the weight he gave the physical therapist’s FCE, and
remand on that basis is therefore improper. Allen, 561 F.3d at 649-51.
4.

The ALJ properly considered the opinions of Binder’s treating
psychiatrist, Dr. VanLeeuwen.

Finally, Binder asserts that the Commissioner’s decision was not supported by
substantial evidence because the ALJ failed to properly consider and apply the opinions
of Binder’s treating psychiatrist, Dr. VanLeeuwen. Specifically, Binder asserts that the
ALJ and the Appeals Council failed to acknowledge that Binder began psychiatric
15

treatment with Dr. VanLeeuwen in 1997; Binder claims that “[t]he ALJ gave only cursory
boilerplate acknowledgement to Mr. Binder’s 20+ year treatment history with Dr.
VanLeeuwen.” (Doc. # 9 at 14).
The ALJ noted that Dr. VanLeeuwen began treating Binder in 1997, but gave Dr.
VanLeeuwen’s opinion little weight because the record showed that he only began seeing
Binder regularly in 2014—after the relevant time period. The ALJ noted that “[a]lthough
Dr. VanLeeuwen has treated the claimant since 1997, the record only documents his
regular treatment of the claimant in 2014.” (Tr. 24). Further, the ALJ noted that the record
as a whole showed that Binder’s psychological symptoms improved; the ALJ found that
“[a]lthough Dr. VanLeeuwen attributed the restrictions he espoused for the claimant to
symptoms of depression stemming from the claimant’s back pain, such findings do not
comport with the longitudinal treatment history, which illustrates that the claimant’s
psychological impairments improved with medication.” (Tr. 24-25). This conclusion is
supported by the treatment notes from the relevant time period. See generally (Tr. 678754, 884-915, 1767-1899, 1904-17, 1918-39, 1940-2082, 2141-51).
Just like the ALJ’s discussion of the weight given the FCE, see supra, here the ALJ
“fully satisfied agency procedural requirements by providing good reasons” for the weight
he gave Dr. VanLeeuwen’s opinion. Allen, 561 F.3d at 649-51. The ALJ’s finding was
reasonable in light of the record; the ALJ’s finding that Binder was not disabled by his
impairments prior to November 2014 is supported by the record as a whole. Binder has
failed to demonstrate that the ALJ’s opinion was erroneous or not supported by
substantial evidence. Accordingly, remand is improper.

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III.

CONCLUSION
Accordingly, for the reasons stated herein, IT IS ORDERED as follows:
(1)

The decision of the Commissioner is found to be supported by substantial

evidence and is hereby AFFIRMED;
(2)

Plaintiff’s Motion for Summary Judgment (Doc. # 9) is hereby DENIED;

(3)

Defendant’s Motion for Summary Judgment (Doc. # 11) is hereby

GRANTED; and
(4)

A Judgment in favor of Defendant Commissioner will be entered

contemporaneously herewith.
This 27th day of November, 2018.

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