Marcum v. SSA
MEMORANDUM OPINION & ORDER: IT IS ORDERED that Larry Dean Marcum's motion R. 10 is DENIED. IT IS FURTHER ORDERED that the Commissioner's motion R. 11 is GRANTED. A separate judgment will issue. Signed by Judge Jennifer B Coffman on 07/11/2012.(KJA)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 11-336-JBC
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
This matter is before the court upon cross-motions for summary judgment on
Larry Dean Marcum’s appeal of the Commissioner’s denial of his application for
Disability Insurance Benefits (DIB), R.10 & R.11. The court will grant the
Commissioner’s motion and deny Marcum’s motion because substantial evidence
supports the administrative decision.
At the time of the alleged disability onset date, Larry Dean Marcum was a
41-year-old man. AR 136. He attended school until the eleventh grade. AR 36.
Prior to the alleged disability, Marcum worked as a gravel truck driver. Id. He
alleged disability beginning on July 2, 2007, due to back pain, chronic obstructive
pulmonary disease (COPD), emphysema, sleep apnea, depression, and anxiety. AR
145. Marcum filed his claim for disability on November 20, 2008.1 AR 136. His
The ALJ opinion states that Marcum protectively filed for disability on November 20, 2008, see
AR 18, 20, but the Administrative Record states that Marcum protectively filed for disability on
November 5, 2008. AR 136.
claim was denied initially on March 25, 2009, AR 68-71, and upon reconsideration
on June 23, 2009. AR 77-79. After a hearing on November 15, 2010,
Administrative Law Judge Roger L. Reynolds determined that Marcum was not
under a disability within the meaning of the Social Security Act. AR 28. Under the
traditional five-step analysis, see Preslar v. Sec’y of Health and Human Servs., 14
F.3d 1107, 1110 (6th Cir. 1994); see also 20 C.F.R. § 404.1520, the ALJ
determined that Marcum had not engaged in substantial gainful activity since
November 5, 2008, the date of application for DIB, AR 20; that he has severe
impairments of COPD with early emphysema, chronic low back pain secondary to
degenerative disc disease of the cervical and lumbar spine with disc bulges,
obstructive sleep apnea, depression, and anxiety, AR 20; that his impairments or
combination of impairments did not meet or equal any listing in the Listing of
Impairments, AR 20; that though he is unable to perform any past relevant work,
he has the Residual Functional Capacity (RFC) to perform a limited range of light
work, AR 25-26; and that jobs exist in significant numbers in the national economy
that he could perform, based on his RFC, age, education, and work experience. AR
27. Therefore, the ALJ denied Marcum’s claim for DIB on November 19, 2010. AR
28. The Appeals Council denied Marcum’s request for review on November 25,
2011, and he commenced this action.
Marcum challenges the ALJ’s ruling on the following grounds: (1) the ALJ
did not give appropriate weight to the treating physician’s opinion and did not give
adequate reasons for rejecting those opinions; (2) the ALJ failed to consider
whether the combined effects of Marcum’s impairments would render him disabled;
(3) the ALJ should have considered the durational requirement of substantial
gainful activity, not simply whether Marcum could find a job and perform it; (4) the
ALJ did not adequately consider Marcum’s subjective complaints; and (5) a
reasonable person would consider Marcum disabled based upon both the exertional
limitations Dr. Hays placed on him and the report from the consultative
psychologist. None of these arguments are persuasive.
First, the ALJ properly considered the opinion of Dr. David J. Hays, the
treating physician, and the ALJ’s rejection of Dr. Hays’s conclusions is supported
by substantial evidence. The opinion of a treating physician is given controlling
weight if it is “well supported by medically acceptable clinical and laboratory
diagnostic techniques.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th
Cir. 2004); see also 20 C.F.R. 404.1527(d)(2). However, if an ALJ gives good
reasons for doing so, he may reject the opinion of a treating physician when the
physician’s opinion is not sufficiently supported by the medical evidence in the
record. Id. In this case, the ALJ did not ignore Dr. Hays, as Marcum argues, but
weighed his opinion against the medical evidence (such as inconsistencies in
Hays’s notes) which the ALJ adequately explained in his opinion. AR 26.
The ALJ properly considered the apparent contradictions within Dr. Hays’s
own notes. On several occasions, Dr. Hays concluded that Marcum had severe
impairments. For example, on April 26, 2007, Dr. Hays declined to approve
Marcum’s Department of Transportation (DOT) certification form because of
difficulties moving his upper and lower extremities and back pain. AR 266. Then,
on October 24, 2010, Dr. Hays’s nurse, Jodi Durbin, indicated that Marcum was in
fact disabled, as his pain was severe and he could not work a full day. AR. 419.
Also, Dr. Hays noted on April 30, 2010, that Marcum could not work a full day. AR
486. However, Dr. Hays has also issued statements to the contrary. Dr. Hays
stated that Marcum exemplified only slight problems on August 16, 2010, when
Dr. Hays cleared Marcum for his DOT license, noting that his lungs were “clear to
auscultation” and that he had “full ranges of motion.” AR 487. Furthermore, Dr.
Hays indicated multiple times that Marcum’s medical problems were only mild to
moderate in severity, AR 269-270, that he appeared only “slightly uncomfortable,”
AR 420, and that his problems were only “barely severe.” AR 261. The ALJ
properly considered Dr. Hays’s failure to explain these contradictions when
determining the amount of weight to give Dr. Hays’s opinions.
Moreover, Dr. Hays’s opinion is contradicted by the other medical evidence
in the record. For example, Dr. Hays believed Marcum’s chest pain was pulmonary
in nature, but a pulmonary function study performed by Dr. A. Mandviwala was
normal. AR 305. Imaging of Marcum’s spine indicated mild degenerative disc
disease consistent with what would be expected for someone his age. AR 272. Dr.
Burchett, who treated Marcum for his back pain, reported positive straight leg
raises on the left in the supine position and brisk and symmetrical deep tendon
reflexes with no shortness of breath during examination. AR 316. Dr. Robert
Hoskins, who also treated Marcum for his back pain, noted that hydrocodone
worked well, but the effect was “not long enough.” AR 354. Dr. Rock, who treated
Marcum at the Annville Clinic, noted the presence of degenerative disc disease
with some bulging discs, but “nothing more than that.” AR 375. The ALJ gave
adequate weight to Dr. Hays’s opinions, and his decision to reject Dr. Hays’s
opinion is supported by substantial evidence.
Additionally, although Marcum claims that the introduction of new medical
evidence from 2010 and 2011 would have caused the ALJ to conclude that
Marcum is disabled, this assertion is unsubstantiated by the record. The new
evidence explains that Marcum was diagnosed with gall stones, which were
corrected with cholecystectomy. AR 636. Marcum also developed inflammation in
the tail of his pancreas, perhaps caused by Lisinopril. AR 613, 617, 619, 620.
However, according to Dr. Ashok Kanthawar, by February 17, 2011, the
inflammation had resolved, and the pancreas appeared normal. AR 643. The Mercy
Clinic of Jackson indicated that Marcum’s level of function with medication and
injections for his back pain, both of which he receives on a regular basis, was at
level seven out of ten. AR 630. The new evidence indicates strong to severe
limitations for lifting and carrying and moderate limitations for walking, which are
consistent with the ALJ’s RFC finding that Marcum could perform light work. AR
25, 633. Because the new evidence is consistent with the medical record as a
whole, on which the ALJ relied in making his decision, and because any new
medical problems were resolved, it is highly unlikely that the ALJ would have
decided differently if this evidence had been available to him. Furthermore, new
evidence would not alter this Court’s conclusion that the ALJ’s decision rested on
Second, the ALJ properly considered the combined effects of Marcum’s
impairments. Though Marcum argues that the cumulative effect of his medical
difficulties was not taken into account, the ALJ repeatedly refers to plural
“impairments” in his decision. AR 20, 24. The ALJ specifically noted that “the
claimant does not have an impairment or combination of impairments that meets or
medically equals one of the listed impairments . . .” AR 20 (emphasis added), and
“the claimant’s mental impairments, considered singly and in combination do not
meet or medically equal the criteria of listings 12.04 and 12.06.” AR 24 (emphasis
added). Even so, the ALJ’s mere discussion of a claimant’s individual medical
problems does not imply that he failed to consider them in combination, especially
when he specifically refers to a combination of impairments. See Loy v. Sec’y of
HHS, 901 F.2d 1306, 1310 (6th Cir. 1990). Therefore, the ALJ properly
considered the combined effect of all of Marcum’s conditions.
Third, the ALJ properly considered not only whether Marcum could find
work, but also whether he could maintain it for a significant period of time. The
ALJ need not make separate findings about a claimant’s ability to maintain work
because he considers that issue when assigning the claimant’s RFC. Garland v.
Astrue, No. 07-181-DLB, 2008 WL 2397566 at *6 (E.D. Ky. Jun. 10, 2008). In
fact, this court has “repeatedly rejected any suggestion of a separate duration
requirement,” particularly when the claimant argues in a conclusory manner
without offering specific medical evidence that would support such a finding. See,
e.g., Estes v. Astrue, No. 10-343, 2011 U.S. Dist. LEXIS 99992, 2011 WL
3903090, at *4 (E.D. Ky. Sept. 6, 2011). Substantial evidence supports the ALJ’s
RFC determination and his conclusion about Marcum’s ability to find and maintain
Fourth, in determining Marcum’s RFC, the ALJ considered all of his
subjective symptoms and concluded that those symptoms were not entirely
credible or consistent with the evidence in the medical record. AR 25, 26. The ALJ
may question or discount a claimant’s credibility when the available medical
evidence does not substantiate the claimant’s statements. 20 C.F.R.
416.929(c)(2); see also Walters, 127 F.3d at 531-32 (6th Cir. 1997). The ALJ did
conclude that Marcum’s “medically determinable impairments could reasonably be
expected to cause the alleged symptoms” in light of the evidence in the medical
record. AR 26. However, the ALJ also noted that the intensity, persistence, and
functionally limiting effects of pain are not substantiated by the medical record. AR
25. For example, Marcum’s testimony that he can feed, bathe, and dress himself
without assistance, and the fact that he had not received the type of medical care
that a completely disabled individual would typically receive, led the ALJ to
conclude that Marcum’s testimony about the severity of his problems was not
entirely credible. AR 24-25. Substantial evidence supports that credibility
Fifth, Marcum’s argument that a reasonable person would conclude that he
is disabled given his exertional and non-exertional limitations and the consultative
psychologist’s report misstates the relevant legal standard. See Preslar, 14 F.3d
1107 at 1110. The ALJ properly performed the appropriate five-step analysis to
determine whether the claimant is under a disability. Id.; AR 18-28.
In doing so, the ALJ properly considered both the exertional and nonexertional limitations placed on Marcum and the consultative psychologist’s report
when finding him not disabled. AR 22. In order to determine the kind of work a
claimant with limitations may perform, the ALJ may pose to a Vocational Expert
hypothetical questions that reflect those limitations. See Casey v. Sec’y of Health
and Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993). In this case the ALJ
asked the Vocational Expert whether jobs exist in the national economy that
someone with Marcum’s age, education, work experience, and RFC could perform
given his additional limitations. AR 27. The Vocational Expert testified that an
individual with Marcum’s limitations could perform jobs such as simple benchwork,
packaging and sorting, and weighing, inspecting or checking, and that a substantial
number of these jobs exists in Kentucky. AR 27. Additionally, the ALJ specifically
referred to the report by Dr. Sahner, the consultative psychologist, who assigned
Marcum a global assessment function of 56-58 and noted that Marcum’s
symptoms of irritability began only after he started taking the medication
Prednisone. AR 22. The ALJ used this assessment to conclude that Marcum’s
mental impairments do not meet (singly or in combination) the criteria necessary for
a finding of disability. AR. 22, 24. The ALJ properly considered both Marcum’s
limitations and the consultative psychologist’s report when finding no disability.
The ALJ properly applied the relevant legal standards and his decision is
supported by substantial evidence.
IT IS ORDERED that Larry Dean Marcum’s motion (R. 10) is DENIED.
IT IS FURTHER ORDERED that the Commissioner’s motion (R. 11) is
A separate judgment will issue.
Signed on July 11, 2012
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