Patrick v. SSA

Filing 18

MEMORANDUM OPINION & ORDER: Plas Motion for Summary Judgment Record No. 12 be DENIED, the Dft Commissioners Motion for Summary Judgment Record No. 13 be GRANTED, and that Judgment be entered affirming the final decision of the Commissioner. Signed by Magistrate Judge Edward B. Atkins on 1/14/15.(MJY)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
PIKEVILLE
CIVIL ACTION NO. 13-101-EBA
STEVEN R. PATRICK,
V.

PLAINTIFF,
MEMORANDUM OPINION AND ORDER

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,

DEFENDANT.

On September 29, 2010, the Plaintiff, Steven R. Patrick, filed a Title II application for a
period of disability and disability insurance benefits. He also filed a Title XVI application for
supplemental security income on February 1, 2011. In both applications, he alleged the onset of
disability on January 10, 2009. [TR. 17]. The claims were denied initially on February 22,
2011, and upon reconsideration on May 4, 2011. [TR. 17]. He sought and was granted a hearing,
where he appeared and testified before an Administrative Law Judge [ALJ] on April 30, 2012.
[TR. 17]. On May 30, 2012, the ALJ denied his applications for benefits, finding that Patrick
was not disabled under the Social Security Act. [TR. 28]. The Appeals Counsel denied his
request for review on August 12, 2013, and on September 14, 2013, Patrick filed the complaint
in this action. [R. 1]. He and the Defendant now seek summary judgment, and the matter is ripe
for review. For the reasons stated more fully below Patrick’s Motion for Summary Judgment R.
12] will be DENIED, and the Defendant’s Motion for Summary Judgment [R. 13] will be
GRANTED.
FACTUAL AND PROCEDURAL BACKGROUND
At the time of the alleged onset of disability, Patrick was a high school educated 50 year

old male, with some vocational training in welding and a past employment history of working as
a canteen clerk, material handler and shipper. He ceased employment in January 2009, due to
poor circulation in his arms and legs, diabetes, asthma, high cholesterol, high blood pressure,
arthritis, and acid reflux. [TR. 181]. At step one of the sequential evaluation process, the ALJ
determined that Patrick had not engaged in substantial gainful activity since the alleged onset of
his disability. At step two, the ALJ found Patrick to have the following severe impairments:
lumbar strain; osteoarthritis; reduced visual acuity; asthma; diabetes mellitus; and obesity.
Although the ALJ determined that Patrick suffered from hypertension, hyperlipidemia,
gastroesophageal reflux disease (GERD), and a hiatal hernia, he found that these were nonsevere impairments. At step three, the ALJ determined that Patrick does not have an impairment
or combination of impairments that meet or medically equal the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Considering the evidence before
him, the ALJ found that Patrick had the residual functional capacity to perform light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except that he is limited to occasional
climbing, stooping, kneeling, crouching, and crawling. In addition, he must avoid concentrated
exposure to excessive vibration and irritants such as fumes, odors, dust, gasses, and poorly
ventilated areas. Finally, the ALJ opined that Patrick is limited to occupations that do not require
20/20 vision. In light of this residual functional capacity, at step four of the sequential evaluation
process, the ALJ found that Patrick was unable to perform any of his past relevant work as a
canteen clerk, material handler and shipper, which was listed in the Dictionary of Occupational
titles as medium and heavy work, respectively. Finally, at the fifth and final step of the
sequential evaluation process, the ALJ asked vocational expert, Leah P. Salyers, whether jobs
exist in the national economy for an individual with Patrick’s age, education, work experience,
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and residual functional capacity. The expert testified that given these factors, the individual
would be able to perform the requirements of occupations such as Product Packager and Counter
Cashier, Machine Monitor, and Product Grader and Sorter, in the light and sedentary exertional
levels, respectively. [TR. 42]. Finally, the expert testified that these occupations exist in
significant numbers in the national economy. Therefore, the ALJ found Patrick “not disabled”
and denied his claims for benefits.
He filed a complaint in the instant action seeking review of the decision on September
14, 2013. [R. 1].
STANDARD OF REVIEW
Pursuant to 42 U.S.C. § 405(g), a reviewing court “must affirm the Commissioner’s
conclusions absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the record.”
Longworth v. Comm’r Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005) (citations omitted).
Substantial evidence means such evidence as a reasonable person might accept as adequate to
support a conclusion. See Foster v. Halter, 279 F.3d 348, 353 (6th Cir. 2001)(quoting Kirk v.
Sec’y of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981)). The scope of judicial
review is limited to the record itself, and the reviewing court “may not try the case de novo, nor
resolve conflicts in evidence, nor decide questions of credibility.” Hogg v. Sullivan, 987 F.2d
328, 331 (6th Cir. 1993) (citations omitted). Even if the reviewing court were to resolve the
factual issues differently, the Commissioner’s decision must be upheld if it is supported by
substantial evidence. Foster, 279 F.3d at 353.
ANALYSIS
In this action, the Plaintiff seeks an order either reversing the Commissioner’s decision
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and remanding the action for an award of benefits, or remanding the matter back to the ALJ for
further consideration.[R. 1]. In support of these demands for relief, he alleges that the ALJ
committed the following errors: (1) failed to consider Mr. Patrick’s diagnosis of GERD as a
severe impairment; (2) erred in finding that Patrick’s back pain, knee pain and shoulder pain
were non-medically determinable impairments; (3) inaccurately assessed a residual functional
capacity “which resulted in the ALJ failing to following [sic] Step Two of the five step
sequential evaluation process”; (4) erred in relying on the medical opinion of an anesthesiologist,
who did not examine Patrick, nor did he have the opportunity to review the complete file; and
(5) failed to give adequate reasons for assigning little weight to the treating physician and greater
weight to a non-examining consulting physician. However, for the reasons that follow, Patrick
does not justify the relief he requests, and his motion for summary judgment will be denied.

I.

a. Whether Mr. Patrick’s diagnosis of GERD is a severe impairment.
Patrick relies on the statement by Dr. Short, a claimed treating physician, that his GERD

causes frequent coughing due to the reflux of acid up into the bronchi and lungs and, as a result,
he is unable to lie flat. Therefore, Patrick contends, his GERD should have been found to be a
severe impairment. However, an ALJ does not commit reversible error simply by finding an
impairment to be non-severe where other impairments are found to be severe. This is because an
ALJ may still consider non-severe impairments when determining a claimant’s residual
functional capacity and therefore his ability to engage in substantial gainful activity. As stated in
Mazairz v. Sec’y Health & Human Serv., 837 F.2d 240, 244 (6th Cir. 1987), “[s]ince the
Secretary properly could consider claimant’s [non-severe cervical impairment] in determining
whether claimant retained sufficient residual functional capacity to allow him to perform
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substantial gainful activity, the Secretary’s failure to find that claimant’s cervical condition
constituted a severe impairment could not constitute reversible error.” Therefore, as the ALJ
found Patrick to have the severe impairments of lumbar strain; osteoarthritis; reduced visual
acuity; asthma; diabetes mellitus; and obesity, he did not commit reversible error in failing to
find Patrick’s GERD to be severe. As stated above, the ALJ may still consider what he believes
are non-severe impairments, in this case GERD, in determining a claimant’s residual functional
capacity and therefore the claimant’s ability to engage in substantial gainful activity. See also
McGlothlin v. Comm’r, 299 F.App’x 516, 522 (6th Cir. 2008)(finding it “legally irrelevant” that
the ALJ determined that some of claimant’s impairments were severe and some were not
because “once any one impairment is found to be severe, the ALJ must consider both severe and
non-severe impairments in the subsequent steps”).
Therefore, the ALJ’s decision to consider Patrick’s diagnosis of GERD as a non-severe
does not constitute error that requires reversal of the decision denying benefits.

b. Whether Patrick’s back pain, knee pain and shoulder pain are non-medically
determinable impairments.
Here, Patrick claims that the medical evidence clearly supports his testimony regarding
impairments due to these areas of pain, and how they limit his ability to sit, stand and walk.
He relies on a letter from Dr. Short dated April 3, 2012, in which the physician states that Patrick
suffers from chronic low back pain, chronic bilateral knee pain and bilateral shoulder pain. [TR.
408]. Patrick also relies on the opinion of Dr. Guberman where he noted on exam that Patrick
ambulates with antalgic gait, demonstrates moderate tenderness in his thoracic and lumbar spine,
scoliosis, 0 degrees straight leg raising bilaterally, moderate tenderness and moderate crepitation
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in both knees with an inability to extend the right knee beyond 20 degrees of flexion. Patrick
points out that Guberman stated that the examination reveals range of motion abnormalities of
the cervical spine, thoracic spine, lumbar spine, both shoulders, right elbow, both hands, knees,
left ankle, left hindfoot and both hips. [Tr. 416]. Finally, Patrick relies on the state agency
examiner, Dr. Kip Beard, who found mild pain with tenderness of the knees, right worse than
left, patellofemoral crepitus, and chronic pain. As a result, Patrick contends that the ALJ
incorrectly stated that Patrick’s chronic low back pain, chronic bilateral knee pain and bilateral
shoulder pain were non-medically determinable impairments, as he did not consider these
“disabilities” as severe impairments. However, pain is not a medically determinable
impairment, but a symptom of an impairment. See 20 C.F.R. 404.1508, 416.929 (defining an
impairment), 404.1528(a), 416.928(a)(defining a symptom), 404.1529, 416.929 (recognizing
pain as a symptom). When considering symptoms of pain, an ALJ is required by the Federal
Regulations to consider pain on the basis of any medically determinable impairment which can
be shown to cause the symptom:
If you have a physical or mental impairment, you may have symptoms (like pain,
shortness of breath, weakness or nervousness). We consider all your symptoms,
including pain, and the extent to which signs and laboratory findings confirm
these symptoms. The effects of all symptoms, including severe and prolonged
pain, must be evaluated on the basis of a medically determinable impairment
which can be shown to be the cause of the symptom. We will never find that you
are disabled based on your symptoms, including pain, unless medical signs or
findings show that there is a medical condition that could be reasonably expected
to produce those symptoms.
McCormick v. Sec’y Health & Human Serv., 861 F.2d 998, 1003 (6th Cir. 1988)(citing 20
C.F.R. § 404.1529 (1988)). This being said, the record reveals that the ALJ found that Patrick’s
stated impairments could cause the alleged symptoms of pain, but did not find Patrick’s
testimony regarding the intensity, persistence and limiting effects of the symptoms to be fully
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credible in light of the objective medical evidence of record. [TR 19-21].
In considering the issue of whether medically determinable impairments were serious
enough to cause the extent of pain related by Patrick, the ALJ afforded little weight to Dr.
Guberman’s opinions (“Additionally, the doctor’s overly restrictive opinion, especially
regarding the postural limitations, is based on a single interaction with the claimant and is
inconsistent with the objective medical evidence of record as described above”) and Dr. Short
(“The undersigned affords little weight to the questionnaire completed by Dr. Short, since it
endorses limitations that are grossly out of proportion to the objective evidence of record.”).
[TR. 22].
In sum, the above residual functional capacity assessment is supported by the
objective medical evidence contained in the record. The credibility of the
claimant’s allegations is weakened by inconsistencies between his allegations, his
statements regarding daily activities, and the medical evidence. Although the
inconsistent information provided by the claimant may not be the result of a
conscious intention to mislead, nevertheless the inconsistencies suggest that the
information provided by the claimant generally may not be entirely reliable. The
claimant does experience some limitations but only to the extent described in the
residual functional capacity above.
[TR. 22-23].
As a result, the record reflects that the ALJ correctly incorporated any restrictions
secondary to medically determinable impairments into the hypothetical which led to the
conclusion that Patrick is capable of performing jobs that exist in significant numbers in the
national economy. In doing so, he articulated adequate reasons for giving more weight to some
and less weight to other medical opinions. Patrick’s claims to the contrary are without merit,
and provide him no relief in this action.

II. Whether the ALJ erred in relying on an anesthesiologist, who did not examine Patrick
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and did not have the opportunity to review Patrick’s complete file.
Patrick contends that the ALJ gave great weight to a non-treating, non-examining
physician, Dr. Timothy Gregg, whose specialty is anesthesiology. Dr. Gregg, he argues, did not
have the opportunity to examine Patrick or even his complete medical file. He contends that the
ALJ erred in giving greater weight to Dr. Gregg’s opinions, and failing to give controlling
weight to Patrick’s treating physician, Dr. Short. In considering the weight to give an opinion,
the ALJ considers several factors, “Regardless of its source, we will evaluate every medical
opinion we receive. Unless we give a treating source’s opinion controlling weight under
paragraph (c)(2) of this section, we consider all of the following factors in deciding the weight
we give to any medical opinion.” 20 C.F.R. §§ 404.1527(c)(1)-(6), 416.927(c)(1)-(6). These
factors include: (1) the Examining relationship, (2) Treatment relationship, (i) Length of the
treatment relationship and the frequency of examination, (ii) nature and extent of the treatment
relationship, (3) Supportability, (4) consistency, and (5) specialization. Id. Although Patrick
contends that Gregg is an anesthesiologist, that does not require the ALJ to give less weight to
his opinion, as specialty is only one factor for an ALJ to consider.
20 C.F.R. 404.1527(5) requires, generally, that more weight be given to the opinion of a
specialist about medical issues related to his or her area of specialty than to the opinion of a
source who is not a specialist. Patrick argues that Dr. Gregg did not consider a questionnaire
completed by Dr. Short, in which the physician stated that she agreed with Dr. Guberman’s
assessment that Patrick would be able to sit no longer than about 20 minutes and stand and walk
for no longer than 20 minutes. [R. 12, TR 408]. In summary, Dr. Short believed that Patrick
would not be able to maintain work 8 hours a day and 5 days a week. [Tr. 422]. Patrick believes
that if Gregg had the opportunity to review this supplemental information, he may have agreed,
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and cites the case of Jones v. Astrue, 808 F.Supp.2d 993 (E.D. Ky. 2011) for the proposition that
the case should be remanded for further consideration where the ALJ rejected the treating
physician’s opinion, which was properly supported by objective medical evidence in favor of
non-reviewing examiners who did not review the complete record.
Finally, Patrick contends that the ALJ did not give adequate reasons for discounting the
RFC and opinions of Dr. Short, and argues that the ALJ discounted the treating physicians’ RFC
by relying on forms completed by Patrick more than one year before Dr. Short and Dr.
Guberman issued their opinions. In addition, he contends that the ALJ misconstrued Patrick’s
statements, and does not provide sufficient evidence on which to discount the RFC incorporating
Dr. Guberman’s recommended physical restrictions.
However, as Dr. Short only saw Patrick on one occasion, he is not a “treating source”.
Smith v. Comm’r of Soc. Sec., 482 F.3d 873, 876 (6th Cir. 2007). “A physician qualifies as a
treating source if the claimant sees her ‘ with a frequency consistent with accepted medical
practice for the type of treatment and/or evaluation required for [the] medical condition.’” 20
C.F.R. § 404.1502. A physician seen infrequently can be a treating source “if the nature and
frequency of the treatment or evaluation is typical for [the] condition. Id. As in Smith, Patrick’s
contacts with Dr. Short fail to “evince the type of ongoing treatment relationship contemplated
by the plain text of the regulation. Id. (citations omitted). Therefore, Short should not be
considered a treating source. However, even if Short was a treating source, the ALJ gave good
reasons for choosing not to give her opinion controlling weight. As stated above, Dr. Short was
of the opinion that Patrick would be able to sit no longer than about 20 minutes and stand and
walk for no longer than 20 minutes. [R. 12, TR 408]. In summary, Dr. Short believed that
Patrick would not be able to maintain work 8 hours a day and 5 days a week. [Tr. 422].
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However, the ALJ found these opinions to be inconsistent with the objective medical evidence of
record, including examination findings showing Patrick’s ability to stand was not inhibited
because he could stand unassisted, rise from a seated position, step up and down from an
examination table, exhibited full strength, and stand on one leg at a time without difficulty. [TR
19, 326-28]. In addition, Patrick was not limited in his ability to sit and lie flat during
examination. [TR 326]. Examinations from HFMC were consistently normal without evidence
of joint pain, tenderness or deformity, with a full range of motion in all major joints. [TR. 20,
367, 382, 389, 393]. Finally, the ALJ explained that the limitations recommended by Dr.
Guberman were unsupported by the evidence of record. [TR. 22]. The objective evidence
showed no significant limitations walking as his gait was not unsteady or unpredictable, and he
did not need assistance to ambulate, could walk on heels and toes, and demonstrated a tandem
gait. [TR. 19, 327,-28]. Likewise, he could balance to stand on one leg, and squat. [TR. 20, 32728, 367, 32, 389, and 393]. Therefore, a review of the record shows that the ALJ gave good
reasons for giving little weight to Dr. Short’s opinions. Once doing so, he was entitled to rely on
the opinions of state agency physicians whose opinions were consistent with the objective
medical evidence of record. See 20 C.F.R. §§ 404.1527(e)(2)(I), 416.927(e)(2)(I); SSR 96-6p,
1996 WL 374180, at *3 (S.S.A.).
The ALJ’s opinions were properly supported by substantial evidence of record. He gave
good reasons for according little weight to some opinions and greater weight to others.
Therefore, his opinion should be upheld.
CONCLUSION
Therefore, for the foregoing reasons, it is ORDERED that the Plaintiff’s Motion for
Summary Judgment [Record No. 12] be DENIED, the Defendant Commissioner’s Motion for
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Summary Judgment [Record No. 13] be GRANTED, and that Judgment be entered affirming the
final decision of the Commissioner.
This the 14th day of January, 2015.

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