Noble v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: 1) That Plaintiff's Motion for Leave to File a Reply Memorandum in Support of his Motion for Summary Judgment [DE 10 ] is GRANTED and the Clerk shall file the tendered Reply in the record of this matter. 2) that Plaintiff's Motion for Summary Judgment (DE 7 ) is DENIED; and 3) that Defendants Motion for Summary Judgment (DE 9 ) is GRANTED. Signed by Judge Joseph M. Hood on 09/29/2017.(KJA)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION AT LONDON
ROBERT EARL NOBLE,

)
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) Action No. 6:16-CV-00177-JMH
)
)
) MEMORANDUM OPINION AND ORDER
)
)
)
)
)

Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security
Defendant.
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This matter is before the Court on the parties’ cross-Motions
for Summary Judgment (DE 7, 9; see also Reply at DE 10-2)1 on
Plaintiff’s appeal of the Commissioner’s denial of his application
for disability insurance benefits.2

The matter having been fully

briefed by the parties is now ripe for this Court’s review.
I.
In

determining

whether

an

individual

is

disabled,

an

Administrative Law Judge (“ALJ”) uses a five step analysis:
1. An individual who is working and engaging
in substantial gainful activity is not
disabled, regardless of the claimant’s
medical condition.
2. An individual who is working but does not
have
a
“severe”
impairment
which
significantly limits his physical or mental

1

Plaintiff’s Motion for Leave to File a Reply Memorandum in Support of his
Motion for Summary Judgment [DE 10], which is unopposed, shall be granted.
2
These are not traditional Rule 56 motions for summary judgment. Rather,
it is a procedural device by which the parties bring the administrative record
before the Court.

ability to do basic work activities is not
disabled.
3. If an individual is not working and has a
severe impairment which “meets the duration
requirement and is listed in appendix 1 or
equal to a listed impairment(s)”, then he
is disabled regardless of other factors.
4. If a decision cannot be reached based on
current work activity and medical facts
alone, and the claimant has a severe
impairment, then the Secretary reviews the
claimant’s residual functional capacity and
the physical and mental demands of the
claimant’s previous work. If the claimant
is able to continue to do this previous
work, then he is not disabled.
5. If the claimant cannot do any work he did
in the past because of a severe impairment,
then the Secretary considers his residual
functional capacity, age, education, and
past work experience to see if he can do
other work. If he cannot, the claimant is
disabled.

Preslar v. Sec’y of Health & Hum. Servs., 14 F.3d 1107, 1110 (6th
Cir. 1994) (citing 20 C.F.R. § 404.1520(1982)).
II.
In

December

supplemental

2013,

security

Plaintiff

income

(SSI)

filed
and

applications

disability

for

insurance

benefits (DIB) (Tr. 148-49, 285-93). After a hearing on August 28,
2015 (Tr. 342-60), an ALJ denied Plaintiff’s claims on September
24, 2015 (Tr. 15-25), and the Appeals Council then declined
Plaintiff’s

request

for

review

(Tr.

8-11),

making

the

ALJ’s

September 2015 decision the final agency decision for purposes of
2

judicial review. 20 C.F.R. § 404.981, 422.210(a). This appeal
followed.
Plaintiff previously received a closed period of disability
from April 23, 2007, to June 15, 2008 (Tr. 26-38). Thereafter, he
returned to work as a concrete truck driver (Tr. 38). In his
current application, Plaintiff alleged he became unable to work in
June 2011, due to neck and back injuries and mental problems (Tr.
162). He later amended his alleged onset date to June 30, 2014
(Tr. 345-46). Plaintiff was 49 years old on that date, and 50 years
old at the time of the ALJ’s September 2015 final decision, that
is now before the Court (Tr. 148). Plaintiff has a high school
education and worked in the vocationally relevant past as a truck
driver (Tr. 163, 357).
Plaintiff had a long history of treatment for neck and back
issues,

including

questionnaires

neck

surgery

completed

in

in

2005

connection

(Tr.
with

224,
his

272).

In

disability

application, Plaintiff reported that he did not perform any house
or yard work (Tr. 182), and he did not drive because he did not
feel safe about driving (Tr. 188).
After he filed his current applications, the Commissioner
sent Plaintiff for a consultative examination with Morgan Eckerd,
M.D.,

in

January

2014

(Tr.

224-30).

Plaintiff

complained

of

constant low back pain, but said he could lift 15 to 20 pounds
once and 10 pounds repetitively, walk and stand for 30 minutes at
3

a time, and sit for an hour at a time. Plaintiff also said he could
perform his own personal hygiene, drive short distances, and manage
money (Tr. 224). On examination, Plaintiff had no muscle asymmetry,
atrophy, involuntary movements, structural deformity, or swelling.
He had normal gait and station with adequate fine motor movements,
dexterity, and ability to grasp objects with both hands (Tr. 226).
Plaintiff also had normal reflexes and intact sensation. Dr. Eckerd
assessed anxiety, depression, and chronic pain. He opined that
Plaintiff could sit, walk, and/or stand for a full workday;
lift/carry objects with moderate limitations regarding lifting and
carrying heavy objects; respond appropriately to questions; and
carry out and remember instructions (Tr. 227).
During the administrative proceedings in early 2014, Rebecca
Luking,

D.O.,

a

state

agency

physician,

reviewed

Plaintiff’s

record and assessed limitations consistent with medium work (Tr.
326-27).
In February 2014, Plaintiff saw James Chaney, D.O., and asked
for a referral to pain management for his low back pain (Tr. 238).
On examination, Plaintiff was well appearing in no distress with
normal mood and affect (Tr. 239). Dr. Chaney assessed low back
pain and anxiety/depression and adjusted his medications (Tr.
240). In March and April 2014, Dr. Chaney repeated these findings
and found Plaintiff had no focal neurological deficits and normal
gait (Tr. 232, 235-36).
4

A year later, in April 2015, Plaintiff saw Daniel R. Curran,
M.D., to establish care as a new patient. Dr. Curran noted that
imaging studies showed spondylosis and spondylolisthesis of the
low back with a disc bulge. Plaintiff complained of chronic neck
and back pain, and asked for a surgical referral (Tr. 266). Dr.
Curran found that Plaintiff walked with a shortened gait but had
full (5/5) strength and normal reflexes. In early June 2015,
Plaintiff reported that his medications eased his pain and helped
him function with day-to-day activities. Plaintiff had tenderness
and decreased range of motion in his low back, but Dr. Curran did
not record any other abnormalities (Tr. 264). Later that month,
Plaintiff returned to Dr. Curran complaining of a sudden worsening
of his back pain after mowing his grass on a riding mower (Tr.
262). Dr. Curran prescribed medications and referred Plaintiff to
a surgeon (Tr. 263).
When surgeon John J. Vaughan, M.D., evaluated Plaintiff in
early July 2015, he noted he had seen Plaintiff several years
earlier to discuss surgical options, which Plaintiff had then
declined, but he was now ready to have surgery (Tr. 269). Dr.
Vaughan thought Plaintiff was a candidate for surgery (Tr. 276),
and performed a laminectomy and fusion on July 22, 2015 (Tr. 27274).
At the administrative hearing on August 28, 2015, Plaintiff
testified that after he returned to work as a concrete truck driver
5

in 2008, he worked until 2012, at which point, his back began
troubling him again (Tr. 355). He noted that he had back surgery
a few weeks before the hearing and had just started driving a car
again (Tr. 348). Plaintiff estimated he could walk about two
hundred yards at a time, stand 10 to 15 minutes at a time, and sit
10 to 15 minutes at a time (Tr. 350-51). He noted that after the
surgery, the doctor had placed restrictions on him of no lifting
over 15 pounds (Tr. 355-56). Plaintiff reported that he took pain
medication three times a day, which eased the pain “but not all
the way” (Tr. 351).
A

vocational

expert

also

testified

at

the

August

2015

administrative hearing (Tr. 357-59). The ALJ asked the vocational
expert to assume a hypothetical individual of Plaintiff’s age,
education, and work experience with limitations the same as those
ultimately determined by the ALJ to be those of the Plaintiff (Tr.
357-58). The vocational expert testified that such an individual
could not perform Plaintiff’s past relevant work but could perform
the

representative

light

unskilled

jobs

of

general

clerk,

cashier/counter clerk, and machine tender (Tr. 358).
After a careful review of the record, the ALJ found in his
September 2015 decision that Plaintiff had the severe impairments
of lumbar spondylosis, status post L5-S1 laminectomy and fusion;
and degenerative disc/joint disease in the cervical spine with
history of cervical spine surgery (Tr. 20). The ALJ found that
6

Plaintiff’s impairments, singly or in combination, did not meet or
equal the severity of a listed impairment (Tr. 21). He found that
Plaintiff had the residual functional capacity to do light work
that

did

not

require

more

than

frequent

stooping,

kneeling,

crouching, crawling, or climbing ladders and ropes (Tr. 21). Based
on the vocational expert’s testimony, the ALJ concluded that
Plaintiff could not perform any past relevant work, but could
perform other unskilled light jobs in the national economy. Thus,
the ALJ found that Plaintiff was not disabled (Tr. 25).
In his request for review of the ALJ’s decision to the Appeals
Council, Plaintiff submitted a form from Dr. Vaughan dated October
7, 2015, in which he opined that, since Plaintiff’s surgery in
July 2015, he was limited to sedentary work with standing, walking,
and sitting for one to two hours at a time. He also stated that
Plaintiff’s impairments or treatment would cause him to be absent
from work more than four days per month (Tr. 340). The Appeals
Council considered this evidence, but found that it did not provide
a basis for changing the ALJ’s decision (Tr. 8-12).
III.
When reviewing a decision made by the ALJ, the Court may not
“‘try the case de novo, resolve conflicts in evidence, or decide
questions of credibility.’” Ulman v. Comm’r of Soc. Sec., 693 F.3d
709, 713 (6th Cir. 2012) (quoting Bass v. McMahon, 499 F.3d 506,
509 (6th Cir. 2007)).

“The ALJ’s findings are conclusive as long
7

as they are supported by substantial evidence.” 42 U.S.C. § 405(g);
Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001) (citations
omitted).

Substantial evidence “‘means such relevant evidence as

a reasonable mind might accept.’” Foster, 279 F.3d at 353 (quoting
Kirk v. Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th
Cir. 1991)).
IV.
The case before the Court today presents an unusual but easily
answered question about the evidence before the ALJ at the time of
his decision in this matter.

Plaintiff argues that the ALJ seemed

mentally “lost” and that the decision of the ALJ makes no sense
whatsoever

because

the

ALJ

did

not

seem

to

understand

that

Plaintiff had not had time, on the day of his hearing, to recover
from his back surgery which took place five weeks prior.

He

suggests that the ALJ should have known that he would be more
severely

limited

from

the

period

of

the

surgery

through

an

additional period from that time, perhaps meeting the duration
requirement

for

an

impairment

to

qualify

one

for

disability

benefits. See 20 C.F.R. § 404.1509 (impairment “must have lasted or
must be expected to last for a continuous period of at least 12months”). He asks the Court to determine that the ALJ’s decision

was not supported by substantial evidence because it failed to
account for the fact that his course of treatment ended in surgery

8

and that he was in surgical recovery at the time the hearing was
held.
There is little analysis required to conclude that the ALJ’s
decision should be affirmed.

While it might seem at first blush

to fly in the face of common sense with an immediately postsurgical patient in the hearing room before the ALJ, the law is
clear, and Plaintiff fails to appreciate the absence of evidence
before the ALJ and the requirement of substantial evidence to
support any conclusion under the Social Security Act. He asks this
Court to look at evidence post-dating the hearing and the decision
of the ALJ to afford him relief. (See Tr. 340 (opinion of Dr.
Vaughan dated October 7, 2015 for restrictions in effect since
July 22, 2015)).

The Court declines to do so.

Even though the case at bar is distinguishable in many ways
from Perkins v. Apfel, 14 F. App’x 593, 600 (6th Cir. 2001), in which
the court concluded that a medical opinion offered after an ALJ’s
decision was not material where the doctor did not attempt to relate
his opinion back to the period prior to the ALJ’s decision, the case
is still instructive. Certainly, Dr. Vaughan attempts to relate his

opinion back to the period prior to the ALJ’s decision, but even
if the Court accepted that, his opinion would not provide evidence
of a twelve month period of limitations.

Dr. Vaughan opines that

Plaintiffs’ more severe limitations began with his surgery, but he
does not opine how long the limitations will last.
9

For this

reason, it is simply not material.

Maybe this is why Plaintiff

has not requested nor is this case appropriate for sentence 6
relief under 42 U.S.C. § 405(g).3
Plaintiff’s suggestion that the ALJ was “mentally lost” is not
only rude but unsupported by the administrative record before the
Court. The ALJ did reference Plaintiff’s post-surgical situation,

in footnote 6 of his decision (Tr. at 24), where the he wrote that
“Exhibit B9F, e.g., does not identify any enduring restrictions
levied by the claimant’s treating orthopedic surgeon, and no
evidence of further orthopedic follow-up is of record.”

In other

words, the fact that Plaintiff had surgery and had not had time to
recovery from surgery did not elude the ALJ.

Further, the ALJ

correctly identified that there was no post-surgical orthopedic
notes in the record at the time of the hearing.

There could not

have been for, as Plaintiff explains, he had not had his postoperative appointment at the time of the hearing.

Dr. Vaughan’s

assessment of his limitations did not exist for several more
months.
Plaintiff argues, without support, that the ALJ should have
known that the post-operative period would resulted in a period of

3

“The court may, on motion of the Commissioner of Social Security made for good
cause shown before the Commissioner files the Commissioner's answer, remand the
case to the Commissioner of Social Security for further action by the
Commissioner of Social Security, and it may at any time order additional
evidence to be taken before the Commissioner of Social Security, but only upon
a showing that there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record in a prior
proceeding.”

10

disabling limitation with a likely duration of twelve months, but
that would require the ALJ to be clairvoyant, which the Social
Security Act does not demand and, in fact, warns against.4

Without

evidence in front of him – one way or the other – the Court cannot
fault the ALJ at all.

Ultimately, he asks the Court to conclude

that the ALJ erred because, at the end of the durational period
for which he sought relief, his condition worsened substantially,
whether as a matter of the progression of his condition or as a
temporary result of his surgery to correct his condition.

That is

no ground for relief.
Accordingly, for all of the reasons set forth above, IT IS
ORDERED:
1)

That

Plaintiff’s

Motion

for

Leave

to

File

a

Reply

Memorandum in Support of his Motion for Summary Judgment [DE 10]
is GRANTED and the Clerk shall file the tendered Reply in the
record of this matter.

4

Plaintiff insists that the onus was on the ALJ to transform this case into an
“insufficient duration” case by stating a denial based on that rationale in
light of SSR 82-52, Duration of the Impairment (“When the application is being
adjudicated (or a hearing decision is being issued) before the impairment has
lasted 12 months, the nature of the impairment, the therapeutic history, and
the prescribed treatment will serve as the basis for determining whether the
impairment is expected to result in death or will continue to prevent the
individual from engaging in any SGA (or any gainful activity) for the additional
number of months needed to make up the required 12 months duration (e.g., 7
months for the claim being adjudicated in the 5th month, etc.).”). See 1982 WL
31376. However, in light of the fact that there was already a period of twelve
months in which Plaintiff averred disability before the ALJ and because there
was no request a delay or prognosticate in the absence of evidence to allow
Plaintiff to adduce further evidence to support his conclusion about the
duration of the post-surgical disability changes. In other words, the onus was
on Plaintiff, and he failed to act as necessary to secure that relief.

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2)

that Plaintiff’s Motion for Summary Judgment (DE 7) is

DENIED; and
3)

that Defendant’s Motion for Summary Judgment (DE 9) is

GRANTED.
This the 29th day of September, 2017.

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