Turner v. SSA
Filing
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MEMORANDUM OPINION & ORDER: (1) DENYING pla's 20 MOTION for Summary Judgment; (2) GRANTING Commissioner's 21 MOTION for Summary Judgment; (3) the decision of the Commissioner's is AFFIRMED; (4) a judgment will be entered. Signed by Judge Karen K. Caldwell on 9/16/15.(KJR)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
TERRY LEE TURNER,
CIVIL ACTION NO. 5:11-254-KKC
Plaintiff,
V.
MEMORANDUM
OPINION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
*** *** ***
This matter is before the Court for consideration of cross-motions for summary
judgment. (DE 20; DE 21). Plaintiff Terry Turner brought this action pursuant to 42 U.S.C.
§ 405(g) to obtain judicial relief of an administrative decision of the Commissioner of Social
Security denying his request to amend the onset date of disability for Social Security
Disability Insurance Benefits (“DIB”). The Court, having reviewed the record, will affirm
the Commissioner’s decision as it is supported by substantial evidence and was decided by
the proper legal standards.
I. OVERVIEW OF THE PROCESS
The Social Security Act and corresponding regulations provide a five-step sequential
process for determining whether a claimant has a compensable disability. 20 C.F.R.
§ 404.1520(a)(4); see also Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647, 652 (6th Cir.
2009) (describing the administrative process). The five steps, in summary, are as follows:
1) If the claimant is doing substantial gainful activity, the
claimant is not disabled.
2) If the claimant does not have a severe medically
determinable physical or mental impairment—i.e., an
impairment that significantly limits his or her physical or
mental ability to do basic work activities—the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or
equals one of the listings in Appendix 1 to Subpart P of the
regulations and meets the duration requirement, the claimant
is disabled.
4) If the claimant’s impairment does not prevent him or her
from doing his or her past relevant work, the claimant is not
disabled.
5) If the claimant can make an adjustment to other work, the
claimant is not disabled. If the claimant cannot make an
adjustment to other work, the claimant is disabled.
Rabbers, 582 F.3d at 652 (citing 20 C.F.R. §§ 404.1520(a)(4)(i)–(v), 404.1520(b)–(g)). If, at
any step in the process, the administrative law judge (“ALJ”) concludes that the claimant is
or is not disabled, then the ALJ can complete the “determination or decision and [the ALJ]
do[es] not go on to the next step.” 20 C.F.R. § 404.1520(a)(4).
The claimant bears the burden of proof through the first four steps of the analysis;
and, at step five, the burden shifts to the Commissioner. Johnson v. Comm’r of Soc. Sec.,
652 F.3d 646, 651 (6th Cir. 2011). The claimant must, in order to satisfy his burden of proof,
provide sufficient facts to find in his favor. Wright-Hines v. Comm’r of Soc. Sec., 597 F.3d
392, 396 (6th Cir. 2010).
II. PROCEDURAL BACKGROUND AND THE ADMINISTRATIVE DECISION
Turner filed his claim for DIB in September 2005, alleging an onset date of October
8, 2004. (Tr. at 18, 73–77.) The ALJ held a hearing on March 16, 2010, and subsequently
issued a decision on April 5, 2010, finding that Turner had established an onset date of
April 24, 2006. (Tr. at 281–82.) The Appeals Council denied Turner’s request for review (Tr.
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at 247–50), making the ALJ’s decision the final agency decision for purposes of judicial
review. See 20 C.F.R. § 404.981. Turner appealed to the United States District Court for the
Eastern District of Kentucky. (Tr. at 251-56.) When the Social Security Administration
could not locate the record of the hearing before the ALJ, the case was remanded to the
Appeals Council. (Tr. at 258–63.) The Appeals Council ordered the ALJ to conduct a de novo
hearing, which was held on November 14, 2012 (Tr. at 266–67; 327–39.) The ALJ
subsequently issued a partially favorable decision on December 17, 2012, finding Turner
disabled as of October 23, 2006. (Tr. at 14–27.) Plaintiff timely pursued and exhausted his
administrative remedies available before the Commissioner (Tr. at 9–13), and he now seeks
judicial review pursuant to 42 U.S.C. § 405(g).
Turner was fifty-nine years old on December 31, 2010, the date his insured status
expired. (Tr. at 21, 73). He had a high school education and had previously worked as a
telephone line man. (Tr. at 88, 91.) Turner alleged disability due to degenerative disc
disease. (Tr. at 87.)
At the first step, the ALJ determined that Turner had not engaged in substantial
gainful activity since his alleged onset date of October 8, 2004. (Tr. at 21.) At the second
step, the ALJ determined that Turner had the severe impairment of degenerative disc
disease of the lumbar spine. (Tr. at 21.) At the third step, the ALJ concluded that Turner
does not have an impairment or combination of impairments that meets or medically equals
the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
(Tr. at 21.)
Next, the ALJ reviewed the record to determine Turner’s residual functioning
capacity (“RFC”). RFC assesses a claimant’s maximum remaining capacity to perform workrelated activities despite the physical and mental limitations caused by the claimant’s
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disability. 20 C.F.R. § 404.1545(a)(1). In finding Turner’s RFC, the ALJ considered all
symptoms in light of the objective medical evidence and other relevant evidence, including
the following: (1) daily activities; (2) location, duration, frequency, and intensity of
symptoms; (3) precipitating and aggravating factors; (4) type, dosage, effectiveness, and
side effects of any medication; (5) additional treatment; (6) additional measures used to
relieve symptoms; and (7) other factors concerning functional limitations and restrictions
due to symptoms. 20 C.F.R. § 404.1529; SSR 96-4p, 1996 WL 374187 (July 2, 1996); SSR 967p, 1996 WL 374186 (July 2, 1996). The ALJ also considered the relationship between
Turner and the doctors providing medical opinions; the supportability and consistency of
the medical opinions with the entire record evidence; medical specialization; and other
opinion evidence. 20 C.F.R. § 404.1527; SSR 06-3p, 2006 WL 2329939 (Aug. 9, 2006); SSR
96-2p, 1996 WL 374188 (July 2, 1996); SSR 96-5p, 1996 WL 374183 (July 2, 1996); SSR 966p, 1996 WL 374180 (July 2, 1996). After reviewing all of the record evidence, the ALJ
determined that Turner has the RFC to perform the full range of light work as defined in
20 C.F.R. § 404.1567(b). (Tr. at 21.)
At the fourth step, the ALJ determined that Turner could not perform his past
relevant work as a telephone line man because it required heavy exertion, exceeding his
RFC. (Tr. at 25.)
The ALJ then explained that Turner turned fifty-five (55) on October 23, 2006,
changing his age category from an individual closely approaching advanced age to an
individual of advanced age. (Tr. at 25.) He noted that Turner has at least a high school
education and is able to communicate in English. (Tr. at 25.) Next, the ALJ considered the
Medical-Vocational Guidelines. See 20 C.F.R. pt. 404, subpt. P, App. 2, tables 1–3. He found
that prior to October 23, 2006, considering Turner’s age, education, work experience, and
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RFC, Medical-Vocational Rule 202.14 directed a finding that Turner was “not disabled.”
(Tr. at 25–26.) However, beginning October 23, 2006, the date Turner turned fifty-five (55),
Medical-Vocational Rule 202.06 directed a finding that Turner was “disabled” considering
his age, education, work experience, and RFC. (Tr. at 26.) Thus, the ALJ found that Turner
was not disabled prior to October 23, 2006, but became disabled on that date and has
continued to be disabled through the date of the decision. (Tr. at 26.)
The ALJ’s determination that Turner was not disabled until October 23, 2006
became the final decision of the Commissioner when Turner exhausted his administrative
remedies. Turner has filed a timely action in this Court, and this case is now ripe for review
under 42 U.S.C. § 405(g).
III. GENERAL STANDARD OF REVIEW
The decision of the Commissioner must be affirmed unless the ALJ applied the
incorrect legal standards or the ALJ’s findings are not supported by substantial evidence.
Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). “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.”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007) (internal quotations
omitted).
“‘The
substantial-evidence
standard
allows
considerable
latitude
to
administrative decision makers. It presupposes that there is a zone of choice within which
the decision[ ]makers can go either way, without interference by the courts. An
administrative decision is not subject to reversal merely because substantial evidence
would have supported an opposite decision.’” Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir.
1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1150 (8th Cir. 1984)).
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IV. ANALYSIS
On appeal, Turner presents two issues for review. First, he argues that the ALJ
erred in relying on non-examining physicians’ opinions while failing to provide adequate
reasons for discounting the opinions of his treating physicians. Second, he contends the ALJ
erred in analyzing a physical therapist’s report. (DE 20-1 at 6–10.) These issues challenge
the ALJ’s analysis pursuant to the guidelines in 20 C.F.R. § 404.1527.
Section 404.1527 outlines the requirements for evaluating medical opinion evidence.
Subsection C notes that the ALJ will “evaluate every medical opinion” in the record and
prescribes guidelines for determining the amount of weight any opinion should receive. See
20 C.F.R. § 404.1527(c). Factors relevant to the weight of an opinion include: (1) whether
the physician examined the claimant; (2) whether the physician regularly treats the
claimant and has an ongoing treatment relationship; (3) whether medical evidence supports
the physician’s opinion; (4) whether the physician has provided consistent opinions
concerning a claimant’s alleged disabilities; (5) whether the physician is a specialist in the
field related to the claimant’s alleged disabilities; and (6) other factors evident in the
medical records. Id. Importantly, the ALJ must evaluate the record as a whole in
connection with “other sources” including testimonial and anecdotal evidence. Engebrecht v.
Comm’r of Soc. Sec., 572 F. App’x 392, 397–98 (6th Cir. 2014) (citing 20 C.F.R. § 404.1513).
1. The ALJ did not err in analyzing the treating physicians’ opinions or the
state agency physicians’ opinions.
The opinions of treating physicians, “medical professionals most able to provide a
detailed, longitudinal picture,” are generally afforded the greatest deference. Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting 20 C.F.R. § 404.1527(d)(2)).
But “[i]t is an error to give an opinion controlling weight simply because it is the opinion of
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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.” Blakley, 581 F.3d at 406 (quoting SSR 96-2p, 1996 WL 374188 (July 2, 1996)). The
ALJ can reject the opinion of the treating physician “if good reasons are identified for not
accepting it[,]” Bogle v. Sullivan, 998 F.2d 342, 348 (6th Cir. 1993), and “an exhaustive
factor-by-factor analysis” of section 404.1527(c) is not required, Francis v. Comm’r of Soc.
Sec. Admin., 414 F. App’x 802, 805 (6th Cir. 2011). See also Combs v. Comm’r of Soc. Sec.,
459 F.3d 640, 652 (6th Cir. 2006) (en banc) (holding that an ALJ may reject the opinion of a
treating physician if the treating physician’s opinion is divorced from supporting objective
evidence). Additionally, state agency medical consultants “are highly qualified . . . [and]
experts in Social Security disability evaluation,” 20 C.F.R. § 404.1527(e)(2)(i), and “[i]n
appropriate circumstances, opinions from State agency medical . . . consultants . . . may be
entitled to greater weight than the opinions of treating or examining sources.” SSR 96–6p,
1996 WL 374180, at *3 (July 2, 1996).
The first physician, Dr. Nathan Moore, is Turner’s primary care physician who
provided approximately two years of treatment records. During the course of his treatment
of Turner, Dr. Moore provided four opinions of Turner’s limitations: (1) on September 2,
2004, Dr. Moore advised that Turner could only perform “light duty (specifically no
climbing)” (Tr. at 57); (2) on September 8, 2004, Dr. Moore stated that Turner “is no longer
able to climb telephone poles or do heavy lifting. This is a permanent restriction” (Tr. at 55);
(3) on November 8, 2005, Dr. Moore limited Turner to lifting no more than 10 pounds with
the ability to get up and walk at least every three hours (Tr. at 56); and (4) on March 16,
2006, Dr. Moore limited Turner to lifting and carrying less than 10 pounds, with standing
or sitting limited to 10-minute intervals but not more than 1-1.5 hours per workday, and
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the additional restrictions of crawling or crouching occasionally, but no climbing, balancing,
stooping, kneeling or performing overhead work. (Tr. at 170–71.)
The second physician, Dr. Donald Douglas, is a pain management specialist who
provided treatment records from February through May 2006. (Tr. at 186–99.)
He
completed a physical capacities form on March 7, 2006, opining that Turner could lift 15
pounds occasionally and 10 pounds frequently; could stand, walk, and sit in intervals of no
more than 30 minutes, performing each up to four hours in a workday; could “never”
perform postural activities; and should limit repetitive reaching, especially overhead. (Tr.
at 168–69.)
The third physician, Dr. P. Saranga, is a state agency medical consultant who did
not treat or examine Turner. Dr. Saranga adopted the findings of Dr. Davis Swan, another
state agency medical consultant, who opined that Turner could lift no more than 50 pounds
occasionally and 25 pounds frequently; could sit, stand, and walk up to 6 hours in each 8hour workday; could occasionally stoop, crouch, or crawl but should not climb ladders,
ropes, or scaffolds, and should avoid concentrated exposure to vibration. (Tr. at 160–67,
200–07.)
The ALJ afforded “some weight” to Dr. Saranga’s opinion to the extent of postural
limitations and standing, walking, and sitting restrictions. (Tr. at 24.) The ALJ also gave
weight to Dr. Moore’s September 2, 2004 and September 8, 2004 opinions that Turner could
perform “light duty (specifically no climbing)” and “is no longer able to climb telephone
poles or do heavy lifting.” (Tr. at 24–25.) But the ALJ discounted Dr. Moore’s subsequent
opinions further limiting Turner’s ability to work and also found Dr. Douglas’s assessment
too restrictive. (Tr. at 24–25.) In discounting Dr. Moore’s more restrictive opinions, the ALJ
focused on the lack of objective evidence supporting those findings, while acknowledging
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other section 404.1527(c) factors elsewhere in his decision. See Tr. at 22, 24–25 (noting that
Dr. Moore was Turner’s primary care doctor who provided treatment records from January
2004 to February 2006). In rejecting Dr. Douglas’s assessment, the ALJ noted Dr. Douglas’s
specialty in pain management and explained that his findings were too restrictive in
comparison to the objective evidence—two appropriate factors. (Tr. at 24–25.) He also noted
that Turner had visited Dr. Douglas from February to May of 2006. (Tr. at 23.) Because the
ALJ provided “good reasons”—including a lack of supporting objective evidence—for
discounting Dr. Moore’s more restrictive opinions and Dr. Douglas’s assessment, the ALJ
did not err in discounting their conclusions. See Bogle, 998 F.2d at 348; Combs, 459 F.3d at
652.
Though Dr. Saranga’s opinion is not entitled to the special deference afforded to
treating physicians, the ALJ noted that he gave “some weight” to his postural limitations
and standing, walking and sitting restrictions. (Tr. at 24.) The ALJ gave appropriate weight
to Dr. Saranga’s opinion because it is consistent with the record as a whole. See Reeves v.
Comm’r of Soc. Sec., No. 14-4140, 2015 WL 4231600, at *7 (6th Cir. July 13, 2015). Here,
the record repeatedly shows that Turner suffered from degenerative disc disease. But
despite this limitation, the record also indicates that Turner has retained his neurologic
and motor function. These limitations were reflected in Dr. Saranga’s opinions concerning
postural limitations and standing, walking and sitting restrictions1 and those limitations
were incorporated into the ALJ’s RFC determination that Turner could perform the full
range of “light work.” Physician statements that are supported by objective medical
evidence and consistent with the record as a whole merit more weight. 20 C.F.R. §
Notably, Dr. Saranga opined that Turner had the lifting and carrying capabilities consistent with
medium work, but the ALJ did not credit those opinions and reduced plaintiff’s RFC to light work.
(Tr. at 22–25, 162–68, 200–207.); see 20 C.F.R. §§ 404.1567(b), (c).
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404.1527(c)(3)–(4). Accordingly, the ALJ did not err in assigning some weight to Dr.
Saranga’s opinion. See Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 439–40 (6th Cir.
2012) (holding that an ALJ’s decision to credit the opinion of a state-agency physician over
other medical opinions is appropriate if the ALJ determines that the state-agency
physician’s opinion is more consistent with the overall record).
2. The ALJ did not err in analyzing the physical therapist’s report.
Finally, Turner argues that the ALJ erred by failing to give any weight to the report
of a physical therapist who completed RFC testing on him in December 2005. (DE 20-1 at
9.) However, physical therapists are not accepted medical sources under the Social Security
regulations. Compare 20 C.F.R. § 404.1513(a) (acceptable medical sources include licensed
physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists
and qualified speech-language pathologists), with 20 C.F.R. § 404.1513(d)(1) (medical
sources not listed in § 404.1513(a), such as nurse practitioners, physicians' assistants,
naturopaths, chiropractors, audiologists and therapists are considered to be “other sources”
rather than “acceptable medical sources”). See also Nierzwick v. Comm'r of Soc. Sec., 7 F.
App'x 358, 363 (6th Cir. 2001) (physical therapist's report not afforded significant weight
because therapist not recognized as an acceptable medical source). Because physical
therapists are not considered acceptable medical sources under the regulations, the ALJ
was not required to give any special deference to the physical therapist’s RFC findings.
Here, the ALJ addressed the physical therapist’s opinions, but discounted them because the
findings were not supported by objective evidence and because physical therapists are not
accepted medical sources. (See Tr. at 24–25.) Consequently, the ALJ’s conclusion to reject
the physical therapist’s findings is based upon a correct legal standard and is supported by
substantial evidence. See Lindsley, 560 F.3d at 604.
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V. CONCLUSION
For the reasons set forth above, the Court HEREBY ORDERS as follows:
1. Plaintiff’s motion for summary judgment (DE 20) is DENIED;
2. The Commissioner’s motion for summary judgment (DE 21) is GRANTED;
3. The decision of the Commissioner is AFFIRMED pursuant to sentence four of 42
U.S.C. § 405(g) as it was supported by substantial evidence and was decided by
proper legal standards; and
4. A judgment consistent with this Memorandum Opinion and Order will be
entered contemporaneously.
Dated September 16, 2015.
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