Roberts v. SSA
Filing
27
MEMORANDUM OPINION & ORDER: 1) Pla's motion for s/j 15 is DENIED. 2) Dft's motion for s/j 18 is GRANTED. Signed by Judge Joseph M. Hood on 9/30/2015. (RKT) cc: Brian Roberts via US mail w/NOE; COR
UNITED STATES DISTRICT COURT
EASTERN DIVISION OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
BRIAN ROBERTS,
)
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of
Social Security,
Defendant.
Case No. 7:14-CV-57-JMH
MEMORANDUM OPINION & ORDER
***
This
matter
is
before
the
Court
upon
cross-motions
for
summary judgment (DE 15, 18) on Plaintiff’s appeal, pursuant to
42
U.S.C.
§
405(g),
of
the
Commissioner’s
denial
of
his
application for disability insurance benefits. The Court, having
reviewed
the
record
and
the
parties’
motions,
will
deny
Plaintiff’s motion and grant Defendant’s motion.
I.
The Administrative Law Judge (“ALJ”), conducts a five-step
analysis to determine disability:
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.
1
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
claimant
reaches
is
the
not
fifth
step
disabled,
without
the
burden
a
finding
that
the
transfers
to
the
Secretary.” Id.
II.
At
the
time
of
the
Administrative
Law
Judge’s
(“ALJ”)
decision, Plaintiff was forty-seven years old (Tr. 53). He is a
high school graduate with past relevant work as a coal truck
driver (Tr. 180-93).
benefits
(DIB)
in
Plaintiff applied for disability insurance
September
2011,
2
alleging
that
he
became
disabled on June 28, 2011, by back pain, high blood pressure,
and
thyroid
disease
(Tr.
167,
198).
These
applications
were
denied initially, on reconsideration, and by ALJ LaRonna Harris
following a video hearing (Tr. 35-42, 99-105).
In April 2011, Plaintiff reported a sudden onset of pain
and numbness in his right thigh and leg (Tr. 346). An MRI showed
bulges
in
his
lower
back
(lumbar
spine)
with
associated
narrowing of the spinal canal (spinal stenosis) and nerve root
openings (neuroforaminal stenosis) (Tr. 340). Then, on June 28,
2011, Plaintiff went to the emergency room with complaints of
lower back pain radiating into his right leg after hitting a
pothole in the road (Tr. 333). Tara Newsome, M.D., observed that
Plaintiff had a restricted range of motion (ROM) in his lower
back,
and
extension,
updated
that
and
MRI
there
lateral
of
was
evidence
bending
Plaintiff’s
(Tr.
lower
of
pain
335).
back
with
In
July
showed
flexion,
2011,
severe
an
facet
degenerative joint disease, mild spinal stenosis, and moderate
foraminal
stenosis
neurosurgeon
saw
at
one
Plaintiff
level
later
(L5-S1)
that
(Tr.
month
and
281-82).
A
recommended
physical therapy, not surgical intervention (Tr. 324-25). Dr.
Newsome disagreed, as she “[did] not feel [Plaintiff] would be a
good
candidate
for
physical
therapy”
(Tr.
326).
She
advised
Plaintiff to get a second opinion with a different neurosurgeon
3
(Tr. 326), who did not recommend any specific treatment (see Tr.
316).
to
Plaintiff takes Flexeril, Percocet and Neurontin to try
ease
the
pain
and
which
cause
side
effects,
such
as
sleepiness. (TR at 54-55).
In
November
2011,
David
Winkle,
M.D.,
observed
that
Plaintiff could tandem walk, heel walk, and toe walk on his
right side, although he could not knee squat more than half way
or toe walk on the left side (Tr. 273). Plaintiff had slightly
reduced ROM in his forward flexion and extension (75 degrees
when
90
degrees
is
normal),
normal
lateral
flexion
on
both
sides, and full (5/5) muscle strength in his legs (Tr. 276). He
moved about the examination room without using any assistive
devices and with no apparent gait disturbance and was able to
get up and down from the examination table and in and out of his
chair without difficulty or assistance (Tr. 274). An x-ray of
Plaintiff’s
lower
back
interspace
(Tr.
showed
274).
slight
narrowing
offering
Without
of
any
the
L5-S1
specific
limitations, Dr. Winkle opined that Plaintiff’s ability to lift
heavy objects, bend, and stoop and to sit, stand, and walk for
prolonged periods was impaired (Tr. 274).
In
Ph.D.,
February
and
state
2012,
agency
state
agency
physician
psychologist
Diosdado
Ann
Hess,
Irlandez,
M.D.,
reviewed the record to evaluate Plaintiff’s claimed mental and
4
physical limitations (see Tr. 92-95). Dr. Hess opined that there
was “no evidence of a discrete mental impairment” (Tr. 93). Dr.
Irlandez opined that Plaintiff could lift and/or carry 50 pounds
occasionally and 25 pounds frequently; could sit, stand, and/or
walk about six hours each in a workday; and experienced several
postural limitations (Tr. 94-95).
In March and April 2012, Plaintiff told Dr. Newsome that he
continued to experience low back pain radiating into his legs
(Tr. 283-88). Also, for the first time, he reported symptoms of
depression in April 2012 (Tr. 284). Dr. Newsome noted only some
tenderness
in
Plaintiff’s
spine,
in
addition
to
a
positive
straight leg raising test (Tr. 285, 288). In an undated opinion,
Dr. Newsome opined that Plaintiff was “unable to work at [that]
time” (Tr. 280).
In
Ph.D.,
February
and
state
2012,
agency
state
agency
physician
psychologist
Diosdado
Ann
Hess,
Irlandez,
M.D.,
reviewed the record to evaluate Plaintiff’s claimed mental and
physical limitations (see Tr. 92-95). Dr. Hess opined that there
was “no evidence of a discrete mental impairment” (Tr. 93). Dr.
Irlandez opined that Plaintiff could lift and/or carry 50 pounds
occasionally and 25 pounds frequently; could sit, stand, and/or
walk about six hours each in a workday; and experienced several
postural limitations (Tr. 94-95).
5
At
the
March
2013
administrative
hearing,
Plaintiff
testified that he could not work due to constant pain in his
back and right leg, which limited him to sitting or standing for
30 to 35 minutes at a time, walking for 10 or 15 minutes,
lifting five to 10 pounds, and carrying less than 10 pounds (Tr.
53, 59-60). Plaintiff reported depression, but he had not seen a
psychologist
independent
or
psychiatrist
vocational
expert
(Tr.
71).
The
ALJ
(VE),
Casey
Vass,
asked
to
an
assume
a
hypothetical individual of Plaintiff’s age, education, and work
experience,
limited
to
medium
work
with
postural
limitations
including the option to sit and stand (Tr. 64). The VE said that
there would not be any medium jobs that such a hypothetical
individual could perform, but that he could perform three light
jobs (mailroom clerk, cashier, and office assistant) and three
sedentary jobs (surveillance system monitor, product inspector,
and charge account clerk) (Tr. 65-66).
The ALJ issued a decision finding that Plaintiff had failed
to establish his entitlement to DIB under the agency’s five-step
sequential
evaluation
404.1520(a)(4).
The
ALJ
(Tr.
35-42).
found
See
that
Plaintiff
20
C.F.R.
retained
§
the
residual functional capacity (RFC) to perform light work with
postural limitations, including the option to sit or stand as
needed (Tr. 38) and that, while Plaintiff could not perform his
6
past relevant work, he could perform other work existing in
significant
numbers
in
the
national
economy,
namely
the
six
light and sedentary positions identified by the VE (Tr. 41-42).
The agency’s Appeals Council declined Plaintiff’s request
for review in March 2014 (Tr. 1-4), making the ALJ’s decision
the final agency decision for purposes of judicial review. 20
C.F.R. §§ 404.981, 422.210(a). This appeal followed.
Plaintiff
has exhausted his administrative remedies, and this case is ripe
for review under 42 U.S.C. §§ 405(g), 1383(c)(3).
III.
Judicial review of the ALJ’s decision is limited to an
inquiry
into
substantial
whether
evidence
were applied.
the
and
ALJ’s
whether
findings
the
were
correct
supported
legal
by
standards
42 U.S.C. § 405(g), Warner v. Comm'r of Soc.
Sec., 375 F.3d 387, 390 (6th Cir. 2004); Key v. Callahan, 109
F.3d 270, 273 (6th Cir. 1997). Substantial evidence is “more
than a scintilla of evidence, but less than a preponderance; it
is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Cutlip v. Sec’y of Health and
Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). This Court may
not try the case de novo, resolve conflicts in the evidence, or
decide questions of credibility. Id.
“As long as substantial
evidence supports the Commissioner's decision, we must defer to
7
it, even if there is substantial evidence in the record that
would
have
supported
an
opposite
conclusion....”
Warner,
375
F.3d at 390 (quoting Wright v. Massanari, 321 F.3d 611, 614 (6th
Cir. 2003); Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997))
(internal quotation marks omitted).
IV.
In his Motion for Summary Judgment, Plaintiff first asserts
that
the
ALJ
erred
when
he
determined
that
no
postural
accommodation, i.e., the option to sit and stand as needed, was
warranted for Plaintiff and, by extension, that he erred in
concluding that there was work available to Plaintiff since the
vocational expert (“VE”) testified that such a limitation would
eliminate
the
sedentary
jobs
Plaintiff.
performance
that
Reaching
the
of
VE
back,
the
few
testified
however,
alternate
to
the
be
light
available
foundation
of
and
to
his
argument is his contention that the ALJ erred in failing to give
controlling
weight
to
treating
physician
Dr.
Tara
Newsome’s
conclusion that Plaintiff was unable to return to work due to
his pain and postural limitations and by concluding that her
analysis could be interpreted to suggest that he could return to
work at some point.
The Commissioner’s regulations provide that when a treating
physician submits a medical opinion, the ALJ must either defer
8
to the opinion or provide “good reasons” for refusing to defer
to the opinion. See 20 C.F.R. § 404.1527(c)(2); see also Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 545 (6th Cir. 2004).
However,
a
treating
physician’s
opinion
that
a
claimant
is
“disabled” or “unable to work” is not entitled to any special
deference
or
significance
because
it
is
not
a
true
medical
opinion but, instead, addresses the ultimate issue reserved for
the Commissioner. See 20 C.F.R. §§ 404.1527(d), (d)(1); SSR 965p, 1996 WL 374183, at *2 (“[T]reating source opinions on issues
that are reserved to the Commissioner are never entitled to
controlling weight or special significance.”). The Sixth Circuit
has
repeatedly
rejected
Plaintiff’s
argument
that
an
ALJ
is
obligated to give controlling weight to a treating physician’s
statement that a claimant is unable to work. (See Pl. Br. 2-3).
See, e.g., Gentry v. Comm’r of Soc. Sec., 741 F.3d 708, 727 (6th
Cir. 2014) (“A doctor's conclusion that a patient is disabled
from all work may be considered as well, but could “never be
entitled to controlling weight or given special significance”
because it may invade the ultimate disability issue reserved to
the Commissioner.”); Curler v. Comm’r of Soc. Sec., 561 F. App’x
464, 471 (6th Cir. 2014) (unpublished) (“However, ‘a treating
physician’s opinion is only entitled to. . .deference when it is
a medical opinion.’” (quoting Turner v. Comm’r of Soc. Sec., 381
9
F. App’x 488, 492-93 (6th Cir. 2010) (unpublished) (emphasis in
original)).
“If
the
treating
physician
instead
submits
an
opinion on an issue reserved to the Commissioner—such as whether
the claimant is disabled, unable to work, the claimant’s RFC, or
the application of vocational factors—[the ALJ’s] decision need
only ‘explain the consideration given to the treating source’s
opinion.’”
Curler,
561
F.
App’x
at
471
(quoting
Johnson
v.
Comm’r of Soc. Sec., 535 F. App’x 498, 505 (6th Cir. 2013)
(unpublished) (further citations omitted)).
In the present case, the ALJ did explain his consideration
of Dr. Newsome’s undated opinion that Plaintiff was unable to
work.
The ALJ rejected the conclusion that Plaintiff was so
limited that he could not perform some work, citing among other
things the fact that Plaintiff had not sought further treatment,
such
as
physical
therapy,
as
recommended;
the
limited
pain
management treatment received; the absence of a referral for
injections;
and
the
absence
of
nerve
conduction
studies/electromyography testing (Tr. 40) even though Plaintiff
complained of numbness and tingling “on occasion” (Tr.
287, 290, 293).1
280,
He compared Newsome’s assessment that Plaintiff
Plaintiff also argues that the ALJ failed to recognize the
Claimant’s relative poverty as a rationale as to why not all
medications, counseling, physical therapy, and surgery could be
taken immediately.
There is no citation to the record to
support this conclusion, and the Commissioner has responded that
1
10
was
unable
tingling
to
in
work
his
inconsistency
Claimant’s
legs
between
complaints
reported
Dr.
by
Newsome’s
Dr.
of
numbness
Newsome
statement
that
and
and
the
Plaintiff
experienced constant numbness and tingling when Plaintiff stated
in
2012
that
occasion.”
293).
he
only
experienced
numbness
and
tingling
“on
(Tr. at 40, comparing Tr. 280 with Tr. 287, 290,
An ALJ may reasonably give less weight to an opinion when
it is inconsistent with the provider’s treatment notes. See id.;
see also West v. Comm’r of Soc. Sec., 240 F. App’x 692, 697 (6th
Cir. 2007) (unpublished) (“We find that the ALJ did not err in
refusing
to
give
probative
weight
to
a
treating
physician’s
opinion that is contradicted by statements from the claimant
himself.”).
The Court concludes that the ALJ properly explained
the weight given to the treating physician’s opinion and did not
err in this regard.
there is no evidence in the record of Plaintiff’s “relative
poverty”, noting that even after Plaintiff stopped receiving
workers’ compensation benefits in 2011, he continued to receive
treatment and medications from Dr. Newsome on a monthly basis
and that Dr. Newsome’s notes consistently indicate that
Plaintiff remained insured.
See (Tr. at 56, 283-302, 305-07,
313); Flaherty v. Astrue, 515 F.3d 1067, 1070 (10th Cir. 2008
(“To the extent Ms. Flaherty claims she could not afford
treatment for her migraines, the record indicates that she had
healthy insurance during at least part of the relative period .
. . .”). The Court declines to consider this argument further.
11
V.
The
ALJ’s
Court
also
decision
is
considers
flawed
Plaintiff’s
because
Plaintiff’s reported depression.
it
argument
fails
the
account
to
that
for
Plaintiff complains that the
ALJ’s decision is based upon an “incomplete evaluation of [his]
depression issues” and that it “never truly evaluates whether
that non-exertional impairment is severe or non-severe” and that
the impairment is never incorporated in any of the hypotheticals
proffered to the VE.
Contrary
to
Plaintiff’s
argument,
the
ALJ
explicitly
discussed why he found Claimant’s reported depression to be nonsevere:
“there is no evidence of formal mental health treatment
or hospitalization related to a mental health issue.” (Tr. 37).
In
Plaintiff’s
application
for
benefits,
he
never
mentioned
mental impairments. (See Tr. 198). In a report to the agency,
Plaintiff
admitted
concentration,
that
he
completing
had
no
difficulties
tasks,
with
understand,
memory,
following
instructions, or getting along with others (Tr. 225). In fact,
at
the
consultative
Plaintiff’s
mood
and
examination,
affect
were
Dr.
Winkle
appropriate
observed
and
he
that
related
normally to the examiner (Tr. 273). Dr. Newsome’s single note
referencing psychiatric status indicated that Plaintiff had a
normal mental status (see Tr. 306-307). It was not until April
12
2012 that Plaintiff told Dr. Newsome that he felt depressed,
leading her to prescribe Celexa (see Tr. 284-85). He simply
stated that he was “feeling down and [did] not want to do things
he normally enjoyed” (Tr. 284). In Dr. Newsome’s opinion that
Plaintiff was unable to work, she did not reference concerns
about his mental health.
(See Tr. 280). Dr. Hess opined that
there was “no evidence of a discrete mental impairment” (Tr.
93). At the hearing, Plaintiff admitted that his only treatment
for
depression
was
Celexa
and
that
he
had
never
seen
a
psychologist or psychiatrist (Tr. 71).
Without
evidence
significantly
limited
that
Plaintiff’s
Plaintiff’s
reported
ability
to
do
depression
basic
work
activities, the ALJ reasonably found that it was non-severe. See
20 C.F.R. § 404.1521(a).
Furthermore, Plaintiff never states
what limitations the ALJ should have included within his RFC to
account
for
his
concludes
that
depression
as
restrictions
claimed
the
a
ALJ
severe
within
depression.
the
reasonably
limitation
or
hypothetical
Ultimately,
declined
to
to
include
presented
to
the
Court
recognize
any
mental
the
VE
or
within Plaintiff’s RFC (see Tr. 38, 64). See Casey v. Sec’y of
Health & Human Servs., 987 F.2d 1230, 1235 (6th Cir. 1993) (“It
is well established that an ALJ may pose hypothetical questions
to a vocational expert and is required to incorporate only those
13
limitations
accepted
as
credible
by
the
finder
of
fact.”
(citation omitted)).VI.
Finally, the Court considers Plaintiff’s argument that the
ALJ erroneously concluded that there were light and sedentary
jobs available to Claimant because the recognized need for a
sit/stand option would preclude the performance of those jobs in
light
of
Social
Security
Ruling
83-12.
However,
SSR
83-12
addresses the use of the Medical-Vocational Rules (Grids) at
step five. SSR 83-12, 1983 WL 31253, at *4. It directs an ALJ to
do
precisely
what
the
ALJ
did
here:
when
the
effect
of
a
limitation such as the sit/stand option on the occupational base
is unclear, the ALJ may need to consult a VE instead of relying
upon
the
limitation
consulted
Grids.
of
See
ability
to
clarify
id.
at
*2,
to
sit
or
the
4
(“In
stand,
implications
cases
a
for
of
[VE]
the
unusual
should
be
occupational
base.”); Bradley v. Secretary of Health and Human. Services, 862
F.2d 1224, 1227 (6th Cir. 1988) (“. . . a claimant is not
disabled simply based on a need to alternate between sitting,
standing and walking if a vocational expert can identify. .
.jobs.
.
.that
can
be
performed
within
the
claimant’s
limitations.”).
The
VE
testified
that
the
occupational
base
for
one
position – cashier – would be decreased due to the sit/stand
14
option, but the VE also testified that the occupational base for
the other positions would not be affected. (Tr. 65, 73). Nor did
the ALJ err in relying on the VE’s testimony because the DOT
does not discuss the sit/stand option, as Plaintiff contends.
[Pl. Br. 2].
One of the purposes of consulting a VE is to delve
into limitations not fully clarified in the DOT. See 20 C.F.R. §
404.1566(e); SSR 83-12, 1983 WL 31253, at *4; Lee v. Comm’r of
Soc. Sec., 529 F. App’x 706, 715 (6th Cir. 2013) (unpublished)
(“The ALJ could include a sit-stand option, even when such an
option is not indicated in the [DOT], because the [DOT] is only
one source that can be used to assess the availability of jobs
[the claimant] can do.” (citation omitted)).
Ultimately, the Court concludes that the ALJ could and did
reasonably rely on the VE’s testimony to find that Plaintiff
could
perform
work
existing
in
significant
numbers
in
the
national economy (Tr. 41-42). See Ealy v. Comm’r of Soc. Sec.,
594 F.3d 504, 512-13 (6th Cir. 2010) (ALJ may rely upon VE
testimony as substantial evidence).
There is, thus, substantial
evidence in the record to support the conclusion of the ALJ.
VII.
Plaintiff has not met his burden of proving his condition
caused
disabling
limitations.
See
42
U.S.C.
§§
423(d)(5)(A),
1382(a)(3)(H)(i); 20 C.F.R. §§ 404.1512(a), (c), 404.1529(a),
15
416.912(a), (c), 416.929(a); Foster v. Halter, 279 F.3d 348, 353
(6th Cir. 2001); Bogle v. Sullivan, 998 F.2d 342, 347 (6th Cir.
1993). The ALJ properly considered the relevant evidence and
performed
his
duty
as
the
trier
of
fact
of
resolving
any
conflicts in the evidence. See Walters v. Comm’r of Soc. Sec.,
127 F.3d 525, 528 (6th Cir. 1997). Substantial evidence supports
the ALJ's assessment of Plaintiff's RFC and his hypothetical
question
to
the
VE.
Therefore,
the
VE's
testimony
provides
substantial evidence to support the ALJ's finding that Plaintiff
could perform other work. See Foster, 279 F.3d at 356-57; Varley
v. Sec'y of Health & Human Servs., 820 F.2d 777, 779-80 (6th
Cir. 1987). Substantial evidence supports the ALJ's findings and
his
conclusion
that
Plaintiff
was
not
disabled
within
the
meaning of the Social Security Act.
Accordingly, IT IS ORDERED:
(1)
that Plaintiff’s Motion for Summary Judgment [DE 15]
is DENIED; and
(2)
that Defendant’s Motion for Summary Judgment [DE 18]
is GRANTED.
This the 30th day of September, 2015.
16
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