Varney v. SSA
Filing
18
MEMORANDUM OPINION & ORDER: 1) Pla's motion for s/j 16 is DENIED; 2) Dft's motion for s/j 17 is GRANTED. Signed by Judge Joseph M. Hood on 5/9/2014. (RKT)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
BRENDA GALE VARNEY,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Civil Case No.
7:13-cv-53-JMH
MEMORANDUM OPINION
AND ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
Summary Judgment [D.E. 16, 17] on Plaintiff’s appeal of the
Commissioner’s denial of her Title II application for a period
of disability and disability insurance benefits. [Tr. 9-27]. The
Court,
having
sufficiently
reviewed
advised,
the
will
record
deny
and
being
Plaintiff’s
motion
otherwise
and
grant
Defendant’s motion.
I. Overview of the Process and the Instant Matter
The
Administrative
Law
Judge
("ALJ"),
in
determining
disability, conducts 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 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 is 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 & Human Servs., 14 F.3d 1107, 1110
(6th Cir. 1994) (citing 20 C.F.R. § 404.1520 (1982)).
"The
burden of proof is on the claimant throughout the first four
steps of this process to prove that he is disabled." Id.
"If
the analysis reaches the fifth step without a finding that the
claimant
is
Secretary."
not
disabled,
the
burden
transfers
to
the
Id.
In the instant matter, the ALJ determined that Plaintiff
did
not
engage
in
substantial
gainful
activity
during
the
relevant time period under step one. [Tr. 14]. Under step two,
the ALJ found the Plaintiff’s medically determinable impairments
of
degenerative
depression
to
disc
be
disease,
“severe”
osteoarthritis,
as
2
defined
by
anxiety,
the
and
agency’s
regulations. [Tr. 14-15]; 20 C.F.R. §§ 404.1520(c), 416.920(c).
The ALJ further found that Plaintiff’s impairments of stomach
problems, thyroid dysfunction, heart problems, and asthma and
breathing difficulties were “non-severe” impairments. [Tr. 1415].
Finally,
carpal
tunnel
the
ALJ
found
syndrome
was
that
Plaintiff’s
not
a
allegation
medically
of
determinable
impairment. [Tr. 14].
During step three of the analysis, the ALJ considered all
of Plaintiff’s impairments and determined that none of them met
the criteria listed in 20 CFR pt. 404, subpt. P, app. 1. [Tr.
15-17].
After
further
review
of
the
entire
record,
the
ALJ
concluded at step four that Plaintiff had a residual functional
capacity (RFC) to perform light work. [Tr. 17]. However, the ALJ
found that Plaintiff had limitations in that she could stand
and/or walk six hours of an eight hour work day with normal
breaks, she can push or pull with her left upper extremities
occasionally, she cannot climb ladders, ropes, or scaffolds, she
can climb ramps or stairs occasionally, she can stoop, kneel,
crouch, or crawl occasionally, and she can reach overhead with
either upper extremity occasionally. [Tr. 24]. Additionally, the
ALJ found that “the claimant is limited to work that does not
require
attention
and
concentration
duration.” [Tr. 25].
3
for
more
than
two
hours
The ALJ found that Plaintiff was unable to perform any of
her past relevant work. [Tr. 25]. The ALJ further found that
there were jobs in the national economy that Plaintiff could
perform. [Tr. 25-26]. Thus, the ALJ determined that Plaintiff is
not disabled under the Social Security Act. [Tr. 27].
In this appeal, Plaintiff argues that the ALJ erred by not
finding that Plaintiff was an individual of advanced age, that
the ALJ improperly gave controlling weight to the opinion of a
non-examining state agency physician, and that the ALJ failed to
properly
weigh
the
medical
opinions
of
Plaintiff’s
treating
physicians.
II. Standard of Review
In
reviewing
the
ALJ's
decision
to
deny
disability
benefits, the Court may “not try the case de novo, nor resolve
conflicts in the evidence, nor decide questions of credibility.”
Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th
Cir. 1994) (citations omitted).
Instead, judicial review of the
ALJ's decision is limited to an inquiry into whether the ALJ's
findings were supported by substantial evidence, 42 U.S.C. §
405(g); Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)
(citations omitted), and whether the ALJ employed the proper
legal standards in reaching her conclusion. See Landsaw v. Sec'y
of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
"Substantial evidence is more than a scintilla of evidence but
4
less than a preponderance; it is such relevant evidence as a
reasonable
mind
conclusion."
might
accept
as
adequate
to
support
a
Cutlip, 25 F.3d at 286 (citations omitted).
III. Factual and Procedural Background
Plaintiff
was
54
years
old
at
the
date
of
the
hearing
before the ALJ [Tr. 65] and has a GED. [Tr. 38]. Plaintiff has
past work experience as a hospital housekeeper, van driver, and
nursing
assistant.
[Tr.
25].
Plaintiff
filed
a
Title
II
application for a period of disability and disability insurance
benefits, alleging disability beginning on March 22, 2011. [Tr.
12]. The claims were denied initially and upon reconsideration.
[Tr. 12]. Plaintiff requested a hearing with the ALJ, which took
place
on
August
14,
2012.
[Tr.
12].
The
ALJ
issued
an
unfavorable decision denying disability insurance benefits on
October 25, 2012. [Tr. 27].
According to Plaintiff, she has pain in her neck and low
back, her left knee swells, and she has pain in her stomach.
[Tr. 224]. Plaintiff alleges that her pain is constant. [Tr.
225]. Plaintiff treats her neck and back pain with Biofreeze and
a heating pad. [Tr. 225]. Additionally, Plaintiff takes Lortab,
Citalopram,
Clonazepam,
Trazodone,
Pravastatin,
Hydroxyzine,
Synthroid, Asacol, Accolate, Advair, and Pro Air. [Tr. 261].
Plaintiff regularly treated with Dr. Ronald Mann at Best
Practice Family Health. On May 17, 2011, Plaintiff was treated
5
for anxiety depressive neurosis and neck and back pain. [Tr.
353].
On
April
13,
2011,
Dr.
Mann
assessed
Plaintiff
with
anxiety depressive disorder, disc bulge of the L1-2 with disc
osteophyte, disc bulge of the L2-3 with disc osteophyte, L4-5
disc
bulge
with
neuroforaminal
bilateral
disc
disc
encroachment,
neuroforaminal
bulge
osteophyte
with
L5-S1
formation
moderate
encroachment,
disc
osteophyte
and
disc
C4-5
disc
and
bilateral
bulge
with
bulge,
C5-6
severe
bilateral
neuroforaminal encroachment, cervical hypertrophic facets, C5-6
disc
bulge
with
bilateral
neuroforminal
encroachment,
and
osteoarthritis of the left knee with effusion and degenerative
meniscal changes of the medial and lateral meniscus. On May 9,
2012,
Plaintiff
hyperlipidemia.
[Tr.
presented
448].
with
On
April
hypothyroidism
9,
and
2012,
was
Plaintiff
diagnosed with cardiac arrhythmia.
Plaintiff was referred to the Mountain Comprehensive Care
Center for treatment of her depression and anxiety. On June 1,
2011 Plaintiff was examined and interviewed. [Tr. 335]. She was
diagnosed with anxiety and depression. [Tr. 341]. On June 30,
Plaintiff
returned
and
reported
no
side
effects
from
her
medication and that her mood was improving. [Tr. 381]. On August
25, Plaintiff stated that there was some improvement in her
mood, she stated that her memory was intact, and attention span
was not applicable. [Tr. 383]. In April and July 2012, Plaintiff
6
reported no improvement and there was no change in diagnosis.
[Tr. 410-11, 21-22].
On August 7, 2012, a psychological evaluation of Plaintiff
was
performed
by
Dr.
Alfred
Bradley
Adkins.
[Tr.
482].
Dr.
Adkins found that Plaintiff had a moderate impairment regarding
her ability to understand, retain, and follow instructions; a
moderate
impairment
regarding
her
ability
to
perform
simple,
repetitive tasks; a marked impairment regarding her ability to
relate to others, including fellow workers and supervisors, and
a
marked
impairment
regarding
her
ability
to
adapt
to
the
workplace and her ability to tolerate the stress and pressures
associated with day-to-day work activity. [Tr. 487].
A review of pulmonary function indicated the absence of any
significant degree of obstructive pulmonary impairment and/or
restrictive ventilator defect and Plaintiff had normal diffusing
capacity. [Tr. 349]. A radiology report from April 2011 revealed
degenerative disc and joint disease in the lumbar spine, with no
evidence of instability with flexion/extension and the vertebral
bodies and alignment were within normal limits. [Tr. 359]. A
radiology report from April 2011 of the cervical spine revealed
stable
degenerative
associated
kyphosis,
disk
and
disease
at
the
flexion/extension
C5-6
views
evidence of subluxation or instability. [Tr. 360].
7
level
with
revealed
no
An MRI of the lumbar spine in March 2011 revealed bulging
discs at the L4-5 and L5-S1 with bilateral nueral foraminal
encroachment
related
to
lateral
bulging
of
the
disc
and
hypertrophic facet joint change and there was no disc herniation
at any visualized level or any high-grade spinal stenosis. [Tr.
330]. An MRI of the cervical spine in March 2011 found bulging
discs and osteophyte formation most prominently in C5-6 with
bilateral
neural
foraminal
encroachment
related
to
lateral
bulging of the disc and hypertrophic facet joint change at this
level and to a lesser degree similar findings at C4-5 and C6-7
and there was no disc herniation at any visualized level or any
high-grade spinal stenosis. [Tr. 331]. An MRI of the left knee
in March 2011 revealed osteoarthritis with joint effusion, no
complete
meniscal
tear,
the
anterior
and
posterior
cruciate
ligaments were intact, and the medial and lateral collateral
ligaments were intact. [Tr. 331].
Vocational
expert
Dr.
David
Burnhill
testified
at
the
hearing before the ALJ. [Tr. 55-65]. Dr. Burnhill testified that
a person with an RFC equivalent to the ALJ’s RFC finding for
Plaintiff
would
not
be
able
to
return
to
Plaintiff’s
past
relevant work. [Tr. 58-59]. However, Dr. Burnhill found that
there would be jobs in the national economy that someone with
Plaintiff’s RFC could perform. [Tr. 59]. Dr. Burnhill further
found that a hypothetical person that could perform sedentary
8
work and had the same limitations could perform jobs in the
national economy. [Tr. 61-62]. Finally, Dr. Burnhill testified
that if Plaintiff’s testimony at the hearing was taken as true
and afforded full credibility a hypothetical person could not
perform any jobs in the national economy. [Tr. 62].
Plaintiff stated that during her typical day she gets up,
takes her medication, eats breakfast, watches TV, her son comes
by to help straighten up her house, she talks to her sister on
the phone, she sits on the porch, and then she goes to bed. [Tr.
216]. Plaintiff is able to care for her personal grooming and
hygiene [Tr. 217], she is able to microwave meals, but does not
cook [Tr. 218], can perform some household chores [Tr. 218], and
is able to go grocery and clothes shopping. [Tr. 219]. Plaintiff
claims that she no longer drives, and when she travels either
walks or rides in a car. [Tr. 219]. Plaintiff claims that she
likes to watch television, attends church, and likes to read,
but no longer has the concentration to do so. [Tr. 220].
IV. Analysis
Plaintiff argues that the ALJ erred by not placing her in
the advanced age category because the ALJ did not recognize that
Plaintiff was in a borderline age range, and that Plaintiff
should be considered as “advanced age.” Plaintiff also argues
that the ALJ gave improper controlling weight to the opinion of
non-examining state agency physicians and improperly gave little
9
weight
to
the
Defendant
opinion
responds
category
for
evidence
supports
opinions.
a
of
that
the
borderline
the
Plaintiff’s
ALJ
properly
situation,
weight
the
treating
ALJ
and
physicians.
applied
that
gave
to
the
age
substantial
the
medical
For the reasons that follow, the Court will deny
Plaintiff’s motion and grant Defendant’s motion.
I. The ALJ did not err in assessing Plaintiff’s age
category.
The regulations provide that, in a borderline situation,
the
Social
Security
Administration
“will
not
apply
the
age
categories mechanically.” 20 C.F.R. § 404.1563(b). Rather, “[i]f
[the claimant is] within a few days to a few months of reaching
an older age category, and using the older category would result
in a determination or decision that [the claimant is] disabled,
[the Social Security Administration] will consider whether to
use the older age category.” Id. Plaintiff alleges that because
she was approximately five months from being within an older age
category at the time of the ALJ’s decision, and the older age
category accompanied with the ALJ’s finding that Plaintiff could
perform light work would require a finding of disabled, the ALJ
erred by not finding that she was within the older age category.
While an ALJ may need to provide, in cases where
the record indicates that use of a higher age category
is appropriate, some indication that he considered
borderline age categorization in order to satisfy a
reviewing court that his decision is supported by
substantial evidence, § 1563(b) does not impose on
10
ALJs a per se procedural requirement to address
borderline age categorization in every borderline
case.
Bowie v. Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008).
However,
“[i]n
cases
where
a
claimant
has
significant
‘additional vocational adversities’ . . . an explanation may be
necessary
in
order
to
satisfy
the
substantial
evidence
standard.” Caudill v. Astrue, 7:06-cv-28-DCR, 2009 WL 3270491,
at *5 (E.D. Ky. Oct. 9, 2009) (quoting Bowie, 539 F.3d at 401).
At
the
time
of
the
ALJ’s
decision,
Plaintiff
was
approximately five months from turning 55, which would qualify
her for the advanced age category. The ALJ’s decision did not
explicitly
state
reasons
approaching
advanced
age
for
including
category.
[Tr.
Plaintiff
25].
in
However,
the
it
is
undisputed that the ALJ was aware of Plaintiff’s age at the time
of
his
decision,
because
he
accurately
recited
Plaintiff’s
birthdate and age at the alleged onset date. [Tr. 25]; Hensley
v. Astrue, No. 12-cv-106-HRW, 2014 WL 1093201, at *3 (E.D. Ky.
Mar.
14,
2014)
(“[I]t
is
clear
that
by
properly
stating
Plaintiff’s birth date and age on his alleged onset date . . .,
the ALJ acknowledged he was aware of Plaintiff’s age on the date
of his decision.”). Thus, Plaintiff cannot argue that the ALJ
did not consider Plaintiff’s age in making the determination,
which is all that is required by the regulations in borderline
situations.
See
Bowie,
539
F.3d
11
at
399
(“[N]othing
in
[the
language
of
claimant’s
Rather,
the
regulations]
borderline
the
age
obligates
situation
regulation
merely
in
an
his
promises
ALJ
to
address
opinion.
.
claimants
.
a
.
the
Administration will ‘consider’ veering from the chronologicalage default in borderline situaitons.”).
An explanation may be required only where a claimant has
shown
that
she
has
“additional
vocational
adversities”
that
would significantly impact her ability to work. See Bowie, 539
F.3d at 401.
Examples of these additional vocational adversities
are the presence of an additional impairment(s) which
infringes upon – without substantially narrowing – a
claimant’s
remaining
occupational
base;
or
the
claimant may be barely literate in English, have only
a marginal ability to communicate in English, or have
a history of work experience in an unskilled job(s) in
one isolated industry or work setting. . . . Other
adverse circumstances in individual cases may justify
using the higher age category.
Application of the Medical-Vocational Guidelines in Borderline
Age Situations, HALLEX II-5-3-2 (S.S.A.), 2003 WL 25498826.
Plaintiff
has
not
set
forth
an
additional
vocational
adversity that requires a more detailed explanation from the
ALJ. Plaintiff has a GED [Tr. 38] and can read and write, as is
exhibited by her testimony, [Tr. 54], and completion of the
function report and pain questionnaire. [Tr. 215-228]. A review
of the transcript of Plaintiff’s testimony before the ALJ does
not exhibit a marginal ability to orally communicate in English.
12
Plaintiff has work experience across many work settings and the
vocational expert described her past work as both unskilled and
semi-skilled. [Tr. 58]. Finally, Plaintiff has not alleged an
additional
impairment
that
infringes
upon
Plaintiff’s
occupational base. Thus, the ALJ was only required to consider
that Plaintiff was in a borderline age range, and the Court
finds evidence of that consideration. Accordingly, the ALJ did
not err in placing Plaintiff in the approaching advanced age
category. See Caudill v. Comm’r of Soc. Sec., 424 F. App’x 510,
516
(6th
Cir.
2011)
(finding
that
the
ALJ
properly
placed
Plaintiff, who was two months shy of 55 at the time of the
hearing
decision,
in
the
closely
approaching
advanced
age
category “without further explanation”).
II. The ALJ did not give improper weight to the
opinion of the non-examining state agency physician.
Plaintiff
argues
that
the
ALJ
gave
improper
controlling
weight to the opinions of Dr. Jack Reed, a non-examining state
agency physician, and Leigh Ann Roark, a non-examining state
disability examiner. The ALJ merely cites the opinion of the
expert
at
Exhibit
4A.
Thus,
the
Court
views
Plaintiff’s
challenge as to the assessment made by the physicians, and not
the review of those assessments made by Roark. In this case, the
ALJ gave great weight to the opinion of the State Agency expert
13
after finding that the opinion was “balanced, objective, and
consistent with the evidence of record as a whole.” [Tr. 24].
All evidence from nonexamining sources is opinion evidence.
20 C.F.R. § 416.927(e). “The opinions of State agency medical
and psychological consultants and other program physicians and
psychologists
can
be
given
weight
only
insofar
as
they
are
supported by evidence in the case record.” SSR 96-6p, 1996 WL
374180, at *2 (July 2, 1996). “In appropriate circumstances,
opinions from State agency medical and psychological consultants
and other program physicians and psychologists may be entitled
to greater weight than the opinions of treating or examining
sources.” Id. at *3.
The limitations imposed upon Plaintiff by the state agency
physician, Dr. Jack Reed, are supported by the evidence in the
record.
Dr.
exertional
pounds,
Reed
found
that
limitations:
frequently
lift
Plaintiff
has
occasionally
lift
and/or
10
carry
the
and/or
pounds,
following
carry
could
20
stand
and/or walk for six hours of an eight hour work day, could sit
for 6 hours in an eight hour work day, and was limited to push
and/or pull in the lower extremities. [Tr. 90]. Dr. Reed found
the
following
ramps/stairs,
balance,
postural
never
climb
occasionally
limitations:
occasionally
ladders/ropes/scaffolds,
stoop,
occasionally
climb
frequently
kneel,
and
occasionally crouch. [Tr. 91]. Dr. Reed assessed Plaintiff with
14
the
manipulative
limitation
of
limited
reaching
in
left
and
right overhead. [Tr. 91].
The ALJ found that these limitations were supported by the
medical evidence and were based on a thorough review of the
medical
evidence
as
a
whole.
Dr.
Reed
pointed
to
specific
medical evidence in the case record to support his limitations,
and
the
medical
evidence
recited
by
the
ALJ
in
her
opinion
provides substantial evidence for the limitations.
The ALJ specifically pointed to MRI testing performed in
March 2011. [Tr. 19]. The MRI revealed bulging discs in the
lumbar spine and cervical spine, but no disc herniation or highgrade
spinal
stenosis.
[Tr.
19].
An
MRI
of
the
left
knee
revealed osteoarthritis, but not a complete tear of the meniscus
and all major ligaments were intact. [Tr. 19]. The ALJ pointed
to X-Rays of the spine in April 2011 that revealed mild to
moderate degenerative disc disease, but alignment was at normal
levels
and
flexion
did
not
reveal
instability.
[Tr.
19-20].
Furthermore, nerve testing was normal, and showed a low level of
radiculopathy at the left L5-S1 and mild level at the right L5S1.
The ALJ also noted the activities Plaintiff is able to
perform
in
her
daily
living
that
were
inconsistent
with
Plaintiff’s subjective complaints. The ALJ stated that Plaintiff
was capable of maintaining grooming and hygiene, she performs
15
some household chores, she communicates with others, and she
responds to questions without unusual concentration or focus of
attention. [Tr. 22]. The ALJ also noted that Plaintiff did not
demonstrate
strength
deficits,
neurological
deficits,
muscle
astrophy or dystrophy, she responded well to treatment, she uses
no assistive devices, she had routine medical treatment with no
evidence
of
hospitalization,
and
had
no
ongoing
physical
therapy. [Tr. 22]. The ALJ believed the lack of treatment and
lack
of
medical
evidence
belied
Plaintiff’s
subjective
complaints. The medical evidence, and lack of objective medical
evidence,
provides
medical
evidence
that
a
reasonable
person
might accept as substantiating the opinion of Dr. Reed.
As there was medical evidence entered into the record after
Dr. Reed’s assessment1, the Court requires “some indication that
the ALJ at least considered [subsequent medical records] before
giving greater weight to an opinion that is not based on a
review of a complete case record.” Blakely v. Comm’r of Soc.
Sec., 581 F.3d 399, 409 (6th Cir. 2009) (internal quotation
marks omitted) (quoting Fisk v. Astrue, 253 F. App’x 580, 585
(6th Cir. 2007)). There is indication that the ALJ considered
subsequent medical evidence after Dr. Reed’s review in October
2011 because the ALJ specifically referenced medical evidence
1
Dr. Reed completed his evaluation on October 14, 2011. [Tr.
96]. The ALJ issued her opinion on October 25, 2012. [Tr. 27].
16
from examinations that occurred after Dr. Reed submitted his RFC
assessment of Plaintiff. Therefore, the ALJ was entitled to give
weight to Dr. Reed’s opinion.
III. The ALJ did not err by giving less weight to the
treating physicians.
Plaintiff alleges that the ALJ did not give adequate weight
to the medical opinions of Plaintiff’s treating physicians, Dr.
Ronald Mann and Dr. Pratap V. Pothuloori, and the opinions of
her
mental
health
counselors
at
Mountain
Comprehensive
Care
Center.
[A]n opinion from a medical source who has examined a
claimant is given more weight than that from a source
who has not performed an examination (a nonexamining
source), and an opinion from a medical source who
regularly treats the claimant (a treating source) is
afforded more weight than that from a source who has
examined the claimant but does not have an ongoing
treatment relationship (a nontreating source).
Gayheart v. Comm’r of Social Sec., 710 F.3d 365, 375 (6th Cir.
2013)
(citations
omitted).
“Treating-source
opinions
must
be
given ‘controlling weight’ if two conditions are met: (1) the
opinion ‘is well-supported by medically acceptable clinical and
laboratory diagnostic techniques’; and (2) the opinion ‘is not
inconsistent with the other substantial evidence in the case
record.’” Id. at 376 (quoting 20 C.F.R. § 404.1527(c)(2)).
“The Commissioner is required to provide ‘good reasons’ for
discounting the weight to a treating-source opinion.” Id. at 376
(citing
20
C.F.R.
§
404.1527(c)(2)).
17
“These
reasons
must
be
‘supported
by
the
evidence
in
the
case
record,
and
must
be
sufficiently specific to make clear to any subsequent reviewers
the weight the adjudicator gave to the treating source’s medical
opinion and the reasons for that weight.’” Id. (quoting SSR 962p, 1996 WL 374188, at *5 (July 2, 1996)). “[The Court] will
reverse
and
‘substantial
remand
a
evidence
Commissioner,’
when
denial
otherwise
the
ALJ
of
benefits,
supports
fails
to
the
give
even
decision
good
though
of
the
reasons
for
discounting the opinion of the claimant’s treating physician.”
Friend v. Comm’r of Soc. Sec., 374 F. App’x 543, 551 (6th Cir.
2010) (quoting Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 54346 (6th Cir. 2004)).
The
ALJ
Pothuloori.
did
not
While
discuss
treatment
the
notes
opinion
from
of
Dr.
Dr.
Pratap
Pothuloori
V.
were
before the ALJ, the only evidence of Dr. Pothuloori’s medical
opinion on Plaintiff’s limitations were submitted as evidence
after the ALJ issued her decision. The ALJ issued her decision
on
October
submitted
25,
until
2012
and
January
Dr.
31,
Pothuloori’s
2013.
[Tr.
opinion
495-99].
was
not
“[E]vidence
submitted to the Appeals Council after the ALJ’s decision cannot
be considered part of the record for purposes of substantial
evidence review.” Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
2001) (internal quotation marks omitted) (citing Cline v. Comm’r
of Soc. Sec., 96 F.3d 146, 148 (6th Cir. 1996)). However, the
18
Court may remand the case for consideration of the new evidence.
Id.
(“The
district
court
can,
however,
remand
the
case
for
further administrative proceedings in light of the evidence. . .
.” (internal quotation marks omitted) (quoting Cline, 96 F.3d at
148)). “For purposes of a 42 U.S.C. § 405(g) remand, evidence is
new
only
if
it
was
‘not
in
existence
or
available
to
the
claimant at the time of the administrative proceeding.’” Id.
(quoting Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990)). If
new evidence is offered, “[t]he moving party must explain why
the evidence was not obtained earlier and submitted to the ALJ
before the ALJ’s decision.” Franson v. Comm’r of Soc. Sec., 556
F. Supp. 2d 716, 726 (W.D. Mich. 2008) (citing Hollon v. Comm’r
of Soc. Sec., 447 F.3d 477, 485 (6th Cir. 2006); Oliver v. Sec.
of Health & Hum. Servs., 804 F.2d 964, 966 (6th Cir. 1986);
Brace v. Comm’r of Soc. Sec., 97 F. App’x 589, 592 (6th Cir.
2004)). The Plaintiff has not even attempted to explain why the
opinion of Dr. Pothuloori was not obtained prior to the ALJ’s
decision, and, therefore, the Court will not consider this new
evidence.
Similarly,
Plaintiff’s
argument
that
the
ALJ
failed
to
comply with the treating physician rule as to Plaintiff’s other
counselors at Mountain Comprehensive Care Center is meritless.
The only other opinion as to Plaintiff’s limitations and ability
to work was by Martha Copley-Coleman, a licensed clinical social
19
worker. [Tr. 479]. “Treating source means your own physician,
psychologist, or other acceptable medical source who provides
you, or has provided you, with medical treatment or evaluation.
. . .” 20 C.F.R. § 404.1502. A licensed clinical social worker
is not an acceptable medical source, and, thus, the opinion of
Ms.
Copley-Coleman
is
not
entitled
to
the
deference
of
the
treating physician rule because she does not meet the definition
of a treating physician. See SSR 06-03p, 2006 WL 2329939, at *23 (Aug. 9, 2006) (“[O]nly ‘acceptable medical sources’ can be
considered treating sources . . . whose medical opinions may be
entitled to controlling weight. . . . [Opinions from] medical
sources who are not ‘acceptable medical sources,’ such as . . .
licensed clinical social workers . . .are important and should
be
evaluated
on
key
issues
such
as
impairment
severity
and
functional effects.”). The ALJ was only required to consider the
opinion of Copley-Coleman, which the ALJ did. Accordingly, the
ALJ did not improperly apply the treating physician rule as to
Copley-Coleman.
The
Court
is
left
only
to
determine
whether
the
ALJ
followed the treating physician rule for the opinion of Dr.
Mann.
Dr.
Mann’s
final
functional
evaluation
found
that
Plaintiff could lift 10 pounds, frequently lift or carry 10
pounds, occasionally lift or carry less than 10 pounds, sit a
total
of
less
than
three
hours,
20
was
limited
to
pushing
or
pulling less than 20 pounds, could never climb, balance, stoop,
kneel, crawl, or crouch. [Tr. 476-77]. Dr. Mann further opined
that Plaintiff was limited in reaching, should avoid heights,
vibrating machinery, and temperature extremes, as well as dust,
fumes, and humidity. [Tr. 477]. Dr. Mann’s final diagnosis of
Plaintiff was anxiety depressive neurosis, back pain, neck pain,
and
lumbar
evaluating
radiculopathy.
the
[Tr.
musculoskeletal
473].
system,
Additionally,
Dr.
Mann
noted
when
that
Plaintiff had degenerative disc disease and osteoarthritis. [Tr.
474].
The ALJ provided good reasons for not giving great weight
to the medical opinion of Dr. Mann. The ALJ found that the
medical
records
limitations
and
imposed,
treatment
the
history
opinion
did
did
not
not
relate
support
to
the
specific
findings, and the assessments were not supported by Plaintiff’s
self-report on daily living. [Tr. 24]. The reasons provided by
the ALJ for giving little weight to the opinion of Dr. Mann are
supported by substantial evidence.
In determining Plaintiff’s RFC, the ALJ pointed out that
Plaintiff
is
capable
of
maintaining
her
own
grooming
and
hygiene, performs household chores, communicates with others,
and
that
she
responded
to
questions
without
unusual
concentration or focus of attention. [Tr. 22]. As to her medical
treatment, the ALJ noted that, despite Plaintiff’s self-reported
21
problems,
medical
circulatory
testing
compromise,
did
not
reveal
neurological
strength
deficits,
deficits,
muscle
spasms,
fasciculation’s, fibrillations, or muscle atrophy or dystrophy,
which would likely be present if Plaintiff suffered from severe
or intense pain and physical inactivity. Furthermore, the ALJ
noted
that
Plaintiff
showed
no
adverse
side
effects
from
treatment, used no assistive devices, a neurological examination
was
normal,
and
a
musculoskeletal
examination
showed
no
swelling, effusion, or deformities. [Tr. 22]. The ALJ continued
to discuss Plaintiff’s treatment by noting that, although back
pain may be present, there was no history of hospitalization,
Plaintiff had never been referred to a physical therapist, she
is able to move in a satisfactory manner, and Plaintiff only
visited
doctors
for
routine
follow-up
visits,
rather
than
seeking intensive treatment for severe, prolonged impairments.
[Tr. 22]. Thus, the ALJ relied upon evidence a reasonable mind
might accept as adequate to support the conclusion that little
weight should be given to the opinion of Dr. Mann. Thus, the ALJ
did not err by improperly applying the treating physician rule.
V. Conclusion
Accordingly, based on the foregoing, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [D.E. 16]
be, and the same hereby is, DENIED;
22
(2)
that Defendant’s Motion for Summary Judgment [D.E. 17]
be, and the same hereby is, GRANTED.
This the 9th day of May, 2014.
23
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