Shepperson v. SSA

Filing 14

MEMORANDUM OPINION & ORDER: It is ORDERED as follows: 1. Plaintiff Larry Lee Shepperson's 9 Motion for Summary Judgment is GRANTED in part, to the extent he seeks remand for further administrative proceedings. The Motion is DENIED to the ext ent he seeks an award of benefits; 2. Commissioner Nancy A. Berryhill's 11 Motion for Summary Judgment is DENIED; 3. The decision of the Administrative Law Judge Don Paris is REMANDED for further administrative proceedings consistent with this opinion & pursuant to sentence four of 42 U.S.C. 405(g). Signed by Judge Danny C. Reeves on 8/9/2017.(KM)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
(at Lexington)
LARRY LEE SHEPPERSON,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Civil Action No. 5: 17-029-DCR

MEMORANDUM OPINION
AND ORDER

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This matter is pending for consideration of cross-motions for summary judgment
filed by Plaintiff Larry Lee Shepperson and Defendant Nancy A. Berryhill, Acting
Commissioner of the Social Security Administration (“the Commissioner.”) [Record
Nos. 9, 11]

Shepperson argues that, following an administrative hearing, the

Administrative Law Judge (“ALJ”) assigned to his case erred in concluding that he was
not disabled within the meaning of the Social Security Act (the “Act”). Specifically, he
asserts that the ALJ failed to properly consider the opinion evidence in determining
his residual functional capacity (“RFC”) and that he did not follow proper procedures
for admitting evidence during the oral hearing.

Shepperson requests an award of

benefits in his favor or, alternatively, that this matter be remanded for further
administrative proceedings.
The Commissioner contends the ALJ properly evaluated the evidence, that
any alleged errors were harmless, and that the ALJ’s decision should be affirmed. She
further contends that the ALJ’s decision is supported by substantial evidence.
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For the reasons that follow, the claimant’s motion will be granted, in part, and the
matter will be remanded for further proceedings.
I.

Procedural History

Shepperson filed a Title II application for a period of disability and disability
insurance benefits (“DIB”) on May 20, 2014. [See Administrative Transcript, hereinafter
“Tr.,” 152-53.] He alleged an onset of disability date of October 15, 2010, but was later
permitted to amend the onset date to January 31, 2014. [Tr. 152, 42] Shepperson requested
a hearing before an administrative law judge after the application was denied initially and
on reconsideration. [Tr. 98, 102, 112] He appeared before ALJ Don Paris for an
administrative hearing in Lexington, Kentucky, in December 2015. [Tr. 39-67] ALJ Paris
denied the request for benefits in a written decision dated February 3, 2016, which the
Appeals Council affirmed. [Tr. 25-33, 1-20] Accordingly, the claimant has exhausted his
administrative remedies and this matter is ripe for review under 42 U.S.C. § 405(g).
II.

Background

Shepperson was 54-years-old at the time of the ALJ’s decision. [Tr. 33, 43] He
worked for 24 years repairing lawn and garden equipment, but quit in 2010 due to health
problems. [Tr. 171-73] Shepperson believed his ability to work was limited by spinal
arthritis, hypertension, anxiety, and depression. [Tr. 171] He was diagnosed with a
herniated disc and underwent a laminectomy in 2014. [Tr. 49] Shepperson continued
regular treatment with a pain specialist when surgery did not resolve his symptoms. [Tr.
50]

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Shepperson used a cane and estimated that he could only walk about 20 feet before
stopping due to pain. [Tr. 52, 59] He reported that he spent most of his time lying on a
couch, in a recliner, or in bed to take pressure off of his low back. [Tr. 53] He advised the
ALJ that he wore a CPAP machine at night and was able to sleep only three to four hours.
[Tr. 55] Shepperson had a driver’s license but did not drive due to the effects of his
medications. He reported that he rarely left his house and that he has no hobbies. [Tr. 58]
Shepperson established a treatment relationship with Dr. Padma Rao, a primary care
provider, in October 2011. [Tr. 260] Rao treated Shepperson for various complaints
including an upper respiratory infection, shoulder pain, and fatigue. [Tr. 261-97] The
claimant underwent an x-ray of his right shoulder in November 2011, which revealed mild
degenerative changes in the AC joint. [Tr. 258]
Shepperson began to complain of low back pain in early 2014. [Tr. 321] He
underwent an x-ray of the lumbar spine in May of 2014 which revealed mild degenerative
changes and facet degeneration. [Tr. 328] An MRI performed shortly thereafter indicated
that Shepperson had an extruded disc fragment at the T12-L1 level, a seven millimeter
mass at the L3-L4 level, and multilevel degeneration with significant foraminal stenosis at
L5-S1. [Tr. 336-37]
Rao referred Shepperson to Dr. Hammad Malik at Georgetown Pain Management
in May 2014. [Tr. 340-44] Shepperson exhibited a mildly antalgic gait and moderately
restricted extension of his low back. [Tr. 342] He complained of numbness and tingling
in both legs, but straight leg raising was asymptomatic bilaterally. [Tr. 343] Malik
prescribed medication to manage Shepperson’s pain, which he rated as nine on a scale of
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ten. Id. Shepperson also continued treating with Dr. Rao, but visited the emergency room
on occasion and consulted with an orthopedist, Dr. Arms. [Tr. 345, 377] Shepperson also
sought treatment with Dr. Ryan Cassidy, an orthopedic spine surgeon at the University of
Kentucky. Dr. Cassidy referred Shepperson to a neurosurgeon and for physical therapy.
[Tr. 385-94] The claimant attended some physical therapy sessions, but the range of
treatment was limited due to his complaints of severe pain. [Tr. 385-88] Shepperson
eventually reported that therapy made his symptoms worse. [Tr. 403]
Dr. Robert Nold performed a consultative physical examination in July 2014.
[Record No. 365-70] Nold noted that Shepperson’s chief complaint was bilateral low back
pain. Shepperson walked without an assistive device, but could not walk on his heels or
toes, and was unable to squat. [Tr. 366-67] He was able to flex his shoulders to 130
degrees, but was limited beyond that due to back pain. [Tr. 366] Nold determined that
Shepperson could “barely bend 30 degrees forward” and that he would have difficulty
bending and lifting “much over 10 to 15 pounds on occasion.” [Tr. 368] Further, he opined
that Shepperson could not lift items “completely above his shoulder level” because of low
back pain. Id.
Shepperson was seen by Dr. Travis Hunt in September 2014 for a second opinion
regarding his back impairment. Dr. Hunt performed a laminectomy the following month.
[Tr. 399-400] Shepperson reported, however, that his symptoms did not improve after
surgery. [Tr. 402] Physician’s Assistant Michael Jones submitted an opinion regarding
Shepperson’s ability to work in October 2014. [Tr. 397] Jones indicated that Shepperson
would be unable to perform even sedentary work.
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Additionally, he believed that

Shepperson would be able to stand or walk only one to two hours per day. [Tr. 397] He
suggested that Shepperson would be absent from work more than four times per month
because of his impairments. Jones further expressed that these limitations had been in
effect since September 18, 2014. [Tr. 397]
Dr. Hunt completed a functional assessment form in April 2015. [Tr. 452] Like
Jones, Hunt opined that Shepperson could not perform even sedentary work. He also
indicated that Shepperson would only be able to stand or walk for one to two hours and sit
for three to four hours. [Tr. 452] Hunt advised that Shepperson should follow-up with
pain management. It appears that the claimant did so in January 2015 and continued
monthly visits through May 2015. [Tr. 405-21] However, Shepperson continued to rate
his lumbar pain as nine out of ten. Id.
Doctor Allen Dawson evaluated Shepperson’s record on September 17, 2014.
[Record No. 77] Dawson noted Shepperson’s diagnoses of degenerative disc and joint
disease and found many of his claims fully credible. However, he could not account for
Shepperson’s reduced grip strength and noted that there was full range of motion of the
neck and shoulders. Dawson believed that Shepperson could lift 20 pounds occasionally,
10 pounds frequently, and that he could stand, walk, and sit about six hours in an eighthour workday. [Tr. 75] He opined that Shepperson’s ability to push and pull was
unlimited, but that he could climb stairs and ramps frequently; ladders, ropes and scaffolds
occasionally; and that he could stoop occasionally. [Tr. 76] He believed that Shepperson’s
ability to reach and lift overhead was limited bilaterally due to neck pain. [Tr. 76]

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Jack Reed, M.D., evaluated Shepperson’s record on reconsideration on October 8,
2014, and reached the same conclusions as Dr. Dawson. [Tr. 89-92] Additionally, Reed
believed that Dr. Nold’s opinion was an overestimate of the severity of Shepperson’s
restrictions and was based on a snapshot of Shepperson’s functioning. [Tr. 92]
After considering all evidence presented, ALJ Paris determined that Shepperson
did not have an impairment or combination of impairments that met a listing under 20
C.F.R. Part 404, Subpart P, Appendix 1. However, he concluded that Shepperson suffered
from the following severe impairments: degenerative disc disease and degenerative
changes of the shoulders. The ALJ found that Shepperson had the RFC to perform light
work as defined in 20 C.F.R. § 404.1567(b) with:
lifting/carrying 20 pounds occasionally and 10 pounds frequently;
standing/walking 6 hours in an 8-day workday; sitting 6 hours in an 8-hour
workday; frequent climbing ramps or stairs; occasionally climbing
ladders/ropes; occasionally stooping; frequent kneeling and crouching;
frequent overhead reaching with the right and left upper extremities; and
avoid full-body vibration.
Based on this determination, the ALJ found that there were jobs that existed in significant
numbers in the national economy that Shepperson could perform. [Tr. 31] Accordingly,
he concluded that Shepperson had not been under a disability during the relevant period.
[Tr. 32]
III.

Standard of Review

Under the Social Security Act, a “disability” is defined as the inability to engage in
any substantial gainful activity because of a medically determinable physical or mental
impairment that is expected to last at least a year. Rabbers v. Comm’r of Soc. Sec., 582

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F.3d 647, 652 (6th Cir. 2009) (citing 42 U.S.C. § 423(d)(1)(A)). A claimant’s Social
Security disability determination is made by an ALJ in accordance with “a five-step
‘sequential evaluation process.’” Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th
Cir. 2006) (en banc). If the claimant satisfies the first four steps of the process, the burden
shifts to the Commissioner with respect to the fifth step. See Jones v. Comm’r of Soc. Sec.,
336 F.3d 469, 474 (6th Cir. 2003).
A claimant must first demonstrate that he is not engaged in substantial gainful
employment at the time of the disability application. 20 C.F.R. § 404.1520(b). Second,
the claimant must show that he suffers from a severe impairment or a combination of
impairments. 20 C.F.R. § 404.1520(c). Third, if the claimant is not engaged in substantial
gainful employment and has a severe impairment which is expected to last for at least
twelve months and which meets or equals a listed impairment, he will be considered
disabled without regard to age, education, and work experience. 20 C.F.R. § 404.1520(d).
Fourth, if the claimant has a severe impairment but the Commissioner cannot make a
determination of the disability based on medical evaluations and current work activity, the
Commissioner will review the claimant’s RFC and relevant past work to determine whether
he can perform her past work. If he can, he is not disabled. 20 C.F.R. § 404.1520(f).
Under the fifth step of the analysis, if the claimant’s impairments prevent him from
doing past work, the Commissioner will consider his RFC, age, education, and past work
experience to determine whether he can perform other work. If he cannot perform other
work, the Commissioner will find the claimant disabled. 20 C.F.R. § 404.1520(g). “The
Commissioner has the burden of proof only on ‘the fifth step, proving that there is work
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available in the economy that the claimant can perform.’” White v. Comm’r of Soc. Sec.,
312 F. App’x 779, 785 (6th Cir. 2009) (quoting Her v. Comm’r of Soc. Sec., 203 F.3d 388,
391 (6th Cir. 1999)).
A court reviewing a denial of Social Security benefits must only determine whether
the ALJ’s findings were supported by substantial evidence and whether the correct legal
standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Substantial evidence is such relevant evidence as reasonable minds might accept as
sufficient to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971);
Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). The Commissioner’s findings are
conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
IV.
A.

Evaluation of the Opinion Evidence

The ALJ engaged in a limited analysis of the opinion evidence while focusing
heavily on particular aspects of Dr. Malik’s pain clinic notes. [Tr. 30] Shepperson reported
that he was “not active” prior to his October 2014 laminectomy surgery. [Tr. 425] He rated
his low back pain as nine out of ten and stated that pain caused him severe functional
impairments. Id. Malik recorded his functional status as “active” when Shepperson
returned to the pain clinic following surgery. [Tr. 417] However, Shepperson continued
to consistently rate his low back pain as not improving and complained of severe functional
impairments with most daily activities. [Tr. 405-17]
The ALJ gave little weight to the opinions of Dr. Nold and Michael Jones, reasoning
that they were rendered prior to Shepperson’s laminectomy and were inconsistent with Dr.
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Malik’s records, “which reveal that [Shepperson’s] symptoms have improved with
treatment.” [Tr. 30] He also gave little weight to Dr. Hunt’s opinion, finding that it was
inconsistent with the record. The ALJ concluded simply that the RFC was supported by
“the notes that treatment has improved the claimant’s symptoms, the objective medical
evidence, and the opinions of the state agency consultants which are given significant
weight as being consistent with the record as a whole.” [Tr. 31]
ALJs generally must afford controlling weight to the opinions of treating
physicians.1 Hensley v. Astrue, 573 F.3d 263, 266 (6th Cir. 2009). If the opinion of a
treating source is not given controlling weight, the ALJ must apply certain factors including
“the length of the treatment relationship and the frequency of examination, the nature and
extent of the treatment relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and the specialization of the treating source” in deciding
what weight to give the opinion. Id. (citing Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
548 (6th Cir. 2004)). The reasons must be “supported by evidence in the case record” and
“sufficiently specific to make clear to any subsequent reviewers the weight [given] to the .
. . opinion and the reasons for that weight.” Rogers, 486 F.3d at 242 (quoting SSR 96-2p,
1996 WL 374188, at *5). In this case, there is no indication that the ALJ considered the
required factors in deciding how much weight to assign to Dr. Hunt’s opinion.
ALJs also must provide a meaningful explanation regarding the weight given to the
opinions of state agency consultants. 20 C.F.R. § 404.1527(f)(2)(ii). See Ott v. Comm’r

1

The “treating physician rule” applies to claims filed before March 27, 2017. 20 C.F.R. §
404.1527.
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of Soc. Sec., No. 1:08-cv-399, 2009 WL 3199064, at *3 (S.D. Ohio Sept. 29. 2009). Such
opinions can be given weight only insofar as they are supported by the record. SSR 96-6,
1996 WL 374180, *2. Here, the ALJ did not refer to the consultants by name, but afforded
their opinions significant weight simply because they were “consistent with the record as
a whole.” [Tr. 31] The ALJ’s terse assessment of the consultants’ (identical) opinions
constitutes error because he did not sufficiently explain the reasons for the weight given.
See 1996 WL 374180, *2. He failed to identify any specific evidence of record with which
the consultants’ opinions were consistent. Additionally, the ALJ failed to acknowledge
that, like the opinions he discounted, the consultants’ opinions were rendered prior to
Shepperson’s laminectomy.
Finally, Shepperson’s subjective reports of being “active” following his
laminectomy, considered in isolation, do not constitute substantial evidence to support a
finding that he is not disabled.

Dr. Malik did not provide an opinion regarding

Shepperson’s functional abilities.

Instead, these entries in the record represent the

subjective component of Malik’s office notes. The notes are unaccompanied by any
explanation of what “active” means in the particular context. Each note makes reference
to complaints of severe pain and extreme functional limitations, which are consistent with
Shepperson’s testimony and statements to Dr. Hunt that his condition did not improve after
surgery. See Goble v. Astrue, 385 F. App’x 588, 593 (7th Cir. 2010) (ALJ cannot “cherrypick” facts supporting a finding of non-disability while ignoring evidence that points to
disability). Based on the foregoing, the ALJ’s decision was not supported by substantial
evidence.
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B.

Admission of Exhibits/Qualification of Vocational Expert

The claimant was represented by counsel during the administrative hearing. He
contends that the ALJ failed to identify and admit exhibits and failed to qualify the
vocational expert. [Record No. 9-1] He argues that these alleged omissions “confused the
record” such that the ALJ’s decision is not based on substantial evidence.
Shepperson cites the Hearings, Appeals and Litigation Law Manual (HALLEX) I2-6-58 for the proposition that ALJ did not follow the proper procedures for making
exhibits a part of the record at the beginning of the administrative hearing. [Record No. 91, p. 14]

However, HALLEX procedures are not binding on courts reviewing

administrative proceedings. Caudill v. Astrue, No. 09-CV-70, 2010 WL 148806, at *4
(E.D. Ky. Jan. 14, 2010). See also Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000).
Further, Shepperson has not shown that he was prejudiced by the ALJ’s alleged failure to
follow the formalities for introducing exhibits. Shepperson’s attorney stated during the
administrative hearing that the ALJ was in possession of all records and the ALJ affirmed
that he had reviewed all records. [Tr. 57] And there is no indication that counsel did not
have an opportunity to make objections. Further, the claimant has not identified any
specific objection that might have been made.
Similarly, Shepperson has not shown that he was prejudiced by the ALJ’s alleged
failure to adhere to HALLEX guidelines regarding qualification of a vocational expert.
Shepperson’s attorney failed to make a contemporaneous objection regarding qualification
of the VE. Further, the VE’s resume is included in the administrative record and the
claimant has failed to make any specific objection to the qualifications outlined in that
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document. [Tr. 235-36] Accordingly, any failure to follow the HALLEX procedures was
harmless and these arguments are without merit.
C.

Conclusion

Having concluded that remand is necessary to allow the ALJ to reconsider the
opinion evidence, it is not necessary at this time to consider whether the ALJ erred in
determining the Plaintiff’s RFC. Accordingly, it is hereby
ORDERED as follows:
1.

Plaintiff Larry Lee Shepperson’s Motion for Summary Judgment [Record

No. 9] is GRANTED, in part, to the extent that he seeks a remand for further
administrative proceedings. The motion is DENIED to the extent he seeks an award of
benefits,.
2.

Commissioner Nancy A. Berryhill’s Motion for Summary Judgment [Record

No. 11] is DENIED.
3.

The decision of Administrative Law Judge Don Paris is REMANDED for

further administrative proceedings consistent with this opinion and pursuant to sentence
four of 42 U.S.C. 405(g).
This 9th day of August, 2017.

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