Lady v. SSA
Filing
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MEMORANDUM OPINION & ORDER: IT IS ORDERED (1) Lady's 11 FIRST MOTION for Summary Judgment is DENIED; (2) IT IS FURTHER ORDERED that Commissioner's 15 MOTION for Summary Judgment is GRANTED. Signed by Judge Jennifer B. Coffman on 12/20/2012.(DAK)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
LEXINGTON
CIVIL ACTION NO. 11-399-JBC
BOBBY RAY LADY,
V.
PLAINTIFF,
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
DEFENDANT.
*************
This matter is before the court upon cross-motions for summary judgment on
Bobby Lady’s appeal of the Commissioner’s denial of his application for Disability
Insurance Benefits (“DIB”). The court will grant the Commissioner’s motion, R. 15,
and deny Lady’s motion, R. 11, because substantial evidence supports the
administrative decision.
At the date of the alleged onset of disability, Lady was a fifty-year-old male
with a limited education who could communicate in English. AR 19. Prior to the
alleged disability, Lady worked as an over-the-road truck driver and an automotive
mechanic. Id. He alleged disabled status beginning March 4, 2009, as a result of
diabetes, arthritis and chronic low back pain. AR 122, 148. Lady filed his claim
for DIB on September 4, 2009. AR 122. The claim was denied initially on January
12, 2010, AR 55, and upon reconsideration on February 25, 2010, AR 56. After a
hearing on October 5, 2010, Administrative Law Judge (“ALJ”) Don C. Paris
determined that Lady is not disabled under Section 1614(a)(3)(A) of the Social
Security Act. AR 20. Under the traditional five-step analysis, see Preslar v. Sec.
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of Health & Human Servs. , 14 F.3d 1107, 1110 (6th Cir. 1994), the ALJ
determined that Lady had not engaged in substantial gainful activity since April 27,
2009, AR 14; that he had severe impairments, including obesity, left shoulder
rotator cuff tear, cervical radiculopathy, and left knee osteoarthritis, id.; that the
impairments, either alone or in combination, did not meet or equal a Listing in the
Listing of Impairments, AR 15; that he had the residual functional capacity (“RFC”)
to perform a restricted range of light level work, id., but could not perform his past
relevant work, AR 19; and that based on his RFC, a significant number of other
jobs exist in the national economy which he can perform, id. Thus, the ALJ denied
his claim on October 22, 2010. AR 20. The Appeals Council denied Lady’s
request for review on October 7, 2011, AR 1-3, and he commenced this action.
Lady challenges the ALJ’s ruling on the following grounds: (1) the ALJ erred
by failing to find that he met or equaled the requirements of Section 1.04A of the
Listing of Impairments concerning disorders of the spine; (2) the ALJ erred by
miscalculating the amount of weight he could frequently lift and carry; (3) the ALJ
misconstrued the opinion of Dr. David Winkle and erred in relying upon it; (4) the
ALJ erred in relying upon Lady’s non-compliance with recommended medical
treatment to find his credibility diminished; and (5) the ALJ erred by failing to give
sufficient weight to the opinion of Dr. Ritchie Van Bussum, a treating source, that
he needed to be off work.
The ALJ properly determined that Lady did not meet or equal the
requirements of Section 1.04A concerning disorders of the spine. Lady notes that
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he has been diagnosed with a herniated nucleus pulposus (“HNP”) at C6-C7, AR
248, 273, with evidence of nerve root compression, AR 248, 251-259. These
findings arguably meet the threshold requirement of the Listing which can be
satisfied by a showing of an HNP resulting in compromise of a nerve root or the
spinal cord. 20 C.F.R. Chapter III, Part 404, Subpart P, Appendix 1 Section 1.04A.
However, a claimant must also show “evidence of nerve root compression
characterized by neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or muscle weakness)
accompanied by sensory or reflex loss . . . .” Lady cites findings concerning
sensory loss by his physical therapist at the Kort Bryan Station Clinic, AR 223-244,
and Dr. Thomas Menke, an examining consultant, AR 248, as support for his claim
of meeting the Listing. However, a physical therapist is not an “acceptable medical
source” whose opinion could be relied upon to support the existence of a disabling
impairment. 20 C.F.R. § 404.1513. Furthermore, while Lady complained of
numbness to Dr. Menke, the physician did not report any sensory deficits during his
physical examination. AR 248. Dr. Winkle, another consultative examiner,
reported finding no sensory losses during his examination. AR 318. Lady fails to
cite evidence of atrophy with associated muscle weakness, another requirement to
meet the Listing. Dr. Winkle specifically indicated finding no muscle atrophy upon
physical examination. AR 319. The ALJ cited the opinion of Dr. Lisa Beihn, a nonexamining medical reviewer who did not opine that a Listing section had been met
or equaled, in support of his finding on this issue. AR 15, 331-338. The ALJ also
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noted that Lady’s treating physicians did not provide findings equivalent in severity
to the criteria of a Listing section. AR 15. Lady has not challenged this assertion
with citation of findings from treating sources such as Dr. Van Bussum, AR 250276, Dr. Wendell Miers, AR 277-305, and the staff at the Nathaniel Mission Free
Health Clinic, AR 339-351. The court therefore finds no error.
Lady asserts that the ALJ erred in formulating the RFC in which the claimant
was found to be able to lift twenty pounds occasionally and 120 pounds
frequently. AR 15. The ALJ also reported finding Lady limited to light-level work,
Id., which is defined as work requiring lifting up to twenty pounds occasionally and
ten pounds frequently. 20 C.F.R. § 404.1567(b). In presenting the hypothetical
question to Vocational Expert (“VE”) Betty Hale, the ALJ restricted the individual to
lifting twenty pounds occasionally and ten pounds frequently. AR 49. Thus, the
120-pound frequent-lifting weight was apparently a typographical error, making a
remand on this issue inappropriate.
Lady makes a number of assertions that the ALJ erred in dealing with the
opinion of Dr. Winkle, an examining consultant. The ALJ indicated that Dr. Winkle
noted Lady “had no difficulty moving about the examining room.” AR 17.
However, Lady asserts that the doctor actually stated that “he moves about the
examination room today using no assistive devices and without any obvious gait
disturbances.” AR 320. This appears to be a distinction without much difference.
While Dr. Winkle indicated that prolonged walking might bother Lady, AR 320, this
vague limitation is not more restrictive than the ALJ’s RFC finding which limited
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him to no prolonged standing or walking in excess of forty-five minutes without
interruption. AR 15.
Lady argues that the ALJ misconstrued the opinion of Dr. Winkle concerning
his ability to bend and stoop. The doctor somewhat vaguely stated, “I think
bending and stooping may present problems for him.” AR 320. Lady suggests
that the ALJ failed to credit this opinion because of testimony he gave at the
hearing stating that he could bend and stoop to get out of an automobile, which
the plaintiff asserts should not be construed to relate to his work capabilities. AR
18. The ALJ’s RFC finding included limitations concerning stooping and other
forms of bending which are consistent with Dr. Winkle’s opinion and which were
included in the hypothetical question presented to the VE. AR 15, 49. Thus, the
court finds no error.
Lady notes that treatment records from the Nathaniel Mission Free Clinic
reported that his legs are weak and that he suffers from bilateral knee pain and leg
weakness. AR 344. He asserts that these findings suggest a deterioration in his
condition since Dr. Winkle examined him in December of 2009, making reliance
upon the doctor inappropriate. However, the clinic staff did not identify more
severe specific physical limitations than those found by the ALJ. AR 339-351.
Thus, the ALJ properly relied upon the opinion of Dr. Winkle.
The ALJ cited Dr. Winkle’s report as evidence that Lady’s alleged symptoms
were not supported by objective evidence. AR 18. Lady argues that this action
was inappropriate because the doctor’s diagnosis listed multiple objective findings
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such as back pain secondary to degenerative joint disease, neck pain secondary to
degenerative disc disease with a herniated disc at C6-C7, left rotator cuff tear and
osteoarthritis involving the hands, knees, and shoulders. AR 319. The mere
diagnosis of a condition does not prove its severity; its disabling effects must still
be shown. See Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988). Dr. Winkle
restricted Lady to medium-level work, with some difficulty regarding bending,
stooping, kneeling, squatting, and crawling. AR 320. In addition, prolonged
walking and standing were restricted. Id. The ALJ’s findings were compatible with
these limitations. Therefore, Dr. Winkle’s opinion does not support the existence
of more severe physical restrictions than were found by the ALJ.
Lady argues that the ALJ erred in citing non-compliance with medical
treatment as a factor in the credibility assessment because he had not always filled
his medications and declined surgery recommended by Dr. Menke concerning his
herniated disc at C6-C7. AR 18. Lady notes that he lost his insurance, AR 341,
and asserts that the ALJ’s finding concerning non-compliance with treatment was
inappropriate. However, the ALJ cited a number of other factors which were
considered in assessing Lady’s credibility, including the lack of significant clinical
abnormalities, his daily activities, and the medical opinions of Dr. Winkle and Dr.
Beihn. AR 16-18. Despite Lady’s problems obtaining treatment, Dr. Winkle and
Dr. Beihn still reported fairly modest physical restrictions. AR 320, 331-338.
Therefore, any error appears harmless.
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Lady argues that the ALJ erred by failing to give proper deference to the
opinion of Dr. Van Bussum, a treating physician. While Dr. Van Bussum did not
identify specific functional restrictions, he noted on several occasions that Lady
should be off work. AR 255, 259, 261. Lady asserts that these statements
contradict the ALJ’s finding that the record lacked an opinion concerning his ability
to perform work activities. AR 18. However, these restrictions were temporary,
for one or two weeks, rather than permanent. Furthermore, Dr. Van Bussum did
not identify more severe physical restrictions than those found by the ALJ. At
most, these opinions would go to the ultimate issue of disability and, so, would not
be binding on the ALJ. 20 C.F.R. § 1527(e)(1). Thus, the court finds no error.
The ALJ having properly applied the relevant legal standards and his decision
being supported by substantial evidence,
IT IS ORDERED that Lady’s motion for summary judgment, R. 11, is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion for summary
judgment, R. 15, is GRANTED.
The court will enter a separate judgment.
Signed on December 20, 2012
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