Back v. SSA
Filing
12
MEMORANDUM OPINION & ORDER: 1. Plaf Jeffrey Backs Motion for Summary Judgment Record No. 10 is DENIED. 2. Dft Commissioner Carolyn Colvins Motion for Summary Judgment Record No. 11 is GRANTED. 3. The decision of Administrative Law Judge Michele Kelley will be AFFIRMED by separate Judgment entered this date. Signed by Judge Danny C. Reeves on 6/9/16.(MJY)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
JEFFREY NEIL BACK,
Plaintiff,
V.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
)
)
)
)
)
)
)
)
)
)
Civil Action No. 7: 15-058-DCR
MEMORANDUM OPINION
AND ORDER
*** *** *** ***
This matter is pending for consideration of cross-motions for summary judgment filed
by Plaintiff Jeffrey Back (hereafter, “Back” or “the Claimant”) and Defendant Carolyn
Colvin, Acting Commissioner of Social Security (“the Commissioner”). [Record Nos. 10,
11] Back argues that the administrative law judge (“ALJ”) assigned to his case erred by
finding that he is not entitled to a period of disability or disability insurance benefits. [Record
No. 10] He requests that the Court reverse the ALJ’s decision and remand the case for
further proceedings. Id. The Commissioner asserts that the ALJ’s decision is supported by
substantial evidence and should be affirmed. [Record No. 11] For the reasons discussed
below, the Court will grant the Commissioner’s motion and deny the relief requested by
Back.
I.
On September 6, 2012, Back applied to receive disability benefits under Title II of the
Social Security Act (“the Act”). [Record Nos. 10-1, p. 2; 11, p. 1] Back claims that he
-1
stopped working as an electrician on July 26, 2012, and his disability began on August 2,
2012. [Administrative Transcript “Tr.,” p. 208] When the Social Security Administration
originally denied the claim on December 11, 2012, Back filed for reconsideration,
contending that his condition had worsened. [Tr. 62-73, 251] However, the Social Security
Administration again denied the claim on February 26, 2013. [Tr. 75-84] ALJ Michele M.
Kelley was assigned to the case, and on August 20, 2014, conducted an administrative
hearing via video conference. [Tr. 31-60] Back’s attorney William Grover Arnett, and
vocational expert Anthony T. Michael Jr., appeared at the hearing with the Claimant. Id.
By decision dated September 26, 2014, Kelley found that Back suffered from the
following severe impairments: T9 fracture status post fusion surgery, mild degenerative disc
disease of the lumbar spine with L5/S1 herniation, moderate disc space narrowing at C6/7,
and chondromalacia of the left patella with meniscal tears and cysts. [Tr. 15] However,
Kelley concluded that none of Back’s impairments met or medically equaled any of the
listings in 20 C.F.R. Part 404, Subpart P, Appendix I. [Tr. 18] Kelley then found that,
the claimant has the residual functional capacity to perform less than a full
range of light work as defined in 20 CFR 404.1567(b). The claimant can lift
and carry, push and pull 20 pounds frequently and 30 to 45 pounds
occasionally. He can walk and stand six hours in an eight-hour workday and
sit six hours in an eight-hour workday. He can occasionally climb ramps or
stairs, stoop, kneel, crouch, and crawl. He cannot climb ladders, ropes, or
scaffolds. He can frequently reach overhead bilaterally. He should avoid
even moderate exposure to work hazards including unprotected heights,
inherently dangerous machinery or tools, or uneven surfaces.
[Tr. 18-19]
After considering Back’s age (50 on the date the alleged disability began), education
(twelfth grade), work experience, and RFC, the ALJ concluded that Back could perform a
-2
significant number of jobs that exist in the national economy including routing clerk, nongovernmental mail clerk, surveillance system monitor, and sorter. [Tr. 22-23] Kelley denied
Back’s claim, holding that he was not disabled under sections 216(i) and 223(d) of the Act.
42 U.S.C. §§ 416(i), 423(d). [Tr. 24] The Social Security Administration subsequently
denied Back’s request to review the ALJ’s decision. [Tr. 1-4]
II.
A court reviewing a denial of Social Security benefits must only determine whether
the ALJ’s findings are supported by substantial evidence and whether the correct legal
standards were applied. Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Substantial evidence is such relevant evidence as a reasonable mind might accept as
sufficient to support the conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Bass
v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). If supported by substantial evidence, the
Commissioner’s decision must be affirmed even if the Court would decide the case
differently and even if the claimant’s position is also supported by substantial evidence.
Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007). See 42 U.S.C. § 405(g) (“The
findings of the Commissioner of Social Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”).
ALJs rely on “a five-step ‘sequential evaluation process’” when making Social
Security disability determinations. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 642 (6th
Cir. 2006) (en banc) (quoting 20 C.F.R. § 404.1520(a)(4)).
First, the claimant must
demonstrate that he was not engaged in substantial gainful employment at the time of the
disability application. 20 C.F.R. § 404.1520(b). Second, the claimant must show that he
-3
suffers from a severe impairment or combination of impairments. 20 C.F.R. § 404.1520(c).
If the claimant does not satisfy the first or the second requirement, the claimant is not
disabled. 20 C.F.R. §§ 404.1520(b), (c). On the other hand, if the claimant meets the first
and second requirements and has an impairment that is expected to last at least twelve
months and meets or equals a listed impairment, the claimant is per se disabled. 20 C.F.R.
§ 404.1520(d).
But if the claimant’s severe impairment does not qualify as a listed
impairment, the Commissioner will review the claimant’s residual functional capacity [RFC]
and relevant past work to determine whether he can perform his past work. 20 C.F.R.
§ 404.1520(f). If he can, he is not disabled. Id. If the claimant’s severe impairment prevents
him from doing past work, under the final step of the analysis, the Commissioner will
consider his RFC, age, education, and past work experience to determine whether he can
perform other work.
20 C.F.R. § 404.1520(g).
If he cannot perform other work, the
Commissioner will find the claimant disabled. Id.
III.
The ALJ found that Back met the first two requirements of the five-step process. [Tr.
15] Back does not contest the ALJ’s determination that his impairments do not qualify as
listed impairments. In fact, he only takes issue with the ALJ’s RFC finding. According to
Back, in analyzing his RFC, the ALJ assigned improper weight to the opinions of Dr. Ira B.
Potter and Dr. Robert N. Nold. [Record No. 10-1] Back argues that the ALJ was required to
give more weight to Dr. Potter, his treating physician, especially where Dr. Potter evaluated
his functional capacity before and after his back surgery. Id. Nold, on the other hand, only
examined Back prior to his surgery. Thus, the Claimant contends that the ALJ erred by
-4
giving “little weight” to Dr. Potter’s opinion and “great weight” to Dr. Nold’s opinion. See
Tr. 21-22.
An ALJ must give controlling weight to a treating physician’s opinion if it is “wellsupported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence” in the claimant’s record. 20 C.F.R. §
404.1527(c)(2). If the ALJ determines that the treating source’s opinion is not entitled to
controlling weight, the regulations require him to give good reasons for this decision. See id.
Specifically,
[the] ALJ must apply certain factors – namely, the length of the treatment
relationship and the frequency of examination, the nature and extent of the
treatment relationship, supportability of the opinion, consistency of the
opinion with the record as a whole, and the specialization of the treating
source—in determining what weight to give the opinion.
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).
The parties do not dispute that Dr. Potter was Back’s treating physician. Dr. Potter
performed two functional limitation evaluations regarding Back. In the first evaluation dated
October 11, 2013, Dr. Potter found that Back was limited to lifting/carrying ten to twelve
pounds occasionally and five to six pounds frequently. [Tr. 289] Dr. Potter also reported
that Back was only capable of standing for two hours and sitting for three hours in an eighthour work day. Id. As a result, Dr. Potter concluded that Back was unable to perform his
past work activity. [Tr. 291] Moreover, Dr. Potter found that Back would be unable to
perform a wide variety of other tasks for a six to eight-hour work day. Id.
On November 28, 2012, state consultant Dr. Nold examined Back and also completed
a functional limitation report. [Tr. 276-80] Dr. Nold concluded,
-5
The claimant may have difficulty bending and lifting items over 50 pounds.
He could possibly lift 30-45 pounds on occasion and less than that more
frequently. He would probably have difficulty squatting, stooping, and
kneeling because of his knee problems, but other than that the claimant does
not seem to be functionally impaired.
[Tr. 279]
Back claims that, during the summer of 2014, his knee gave out while he was exiting
the shower, causing him to fall. [Tr. 501] On June 3, 2014, Back was admitted to St. Mary’s
Medical Center and diagnosed with a T9 vertebral fracture. [Tr. 494] Back underwent
surgery three days later at St. Mary’s to repair the fracture. [Tr. 495] On July 31, 2014, Dr.
Potter completed another functional limitation evaluation. [Tr. 558-562] The second report
essentially reflects the same limitations outlined in the first report. Id. at 560-62.
In determining Back’s RFC, the ALJ explained that she gave “great weight” to Dr.
Nold’s opinion because he performed a “thorough clinical evaluation” and his findings “are
consistent with the clinical findings of record, in particular those of Dr. Werthammer prior to
and subsequent to the claimant’s June 2014 surgery . . . .” [Tr. 21] But she gave “little
weight” to Dr. Potter’s opinion because his functional limitation findings were inconsistent
with his own clinical findings. Id. The ALJ observed that “[c]linical findings throughout Dr.
Potter’s clinical history with the claimant note no significant findings other than tenderness
in the shoulders, back, and knees with minimal motion loss and no motor or reflex deficits . .
. .” Id.
After thoroughly reviewing the entire record, the undersigned agrees with the ALJ’s
assessment.
Nothing in Dr. Potter’s progress notes supports his functional limitation
evaluations. During an October 17, 2012 office visit, Dr. Potter noted that Back’s spinal
-6
range of motion was “generally decreased” and that he exhibited “vertebral tenderness.” [Tr.
313] However, Dr. Potter also found that Back’s straight leg test was normal, his spine
showed no abnormalities, and his reflexes and motor strength were normal.
Id.
Additionally, Dr. Potter observed that Back had normal range of motion in his four
extremities. Id. at 313-14. Those observations remained the same for all of Back’s office
visits before and after his surgery. [Tr. 338-39, 346-47, 351-52, 392-93, 398-99, 406, 430,
573-74, 581, 595]
It appears that Dr. Potter based his functional limitations assessment primarily on
Back’s subjective complaints of pain. Even though the records show few clinical indications
of debilitating injury, Dr. Potter’s notes show that Back reported extreme pain every office
visit, regardless of the treatment prescribed. On at least four office visits prior to the surgery,
Back reported that his chronic low back pain was a ten on a scale of one to ten. [Tr. 330,
337, 345, 391] On his two post-surgery visits, Back reported that his low back pain was a
nine on a ten scale. [Tr. 579, 594]
“Subjective complaints may support a finding of disability only where objective
medical evidence confirms the severity of the alleged symptoms.” Workman v. Comm’r of
Soc. Sec., 105 F. App’x 794, 801 (6th Cir. 2004). Back’s subjective complaints are not only
negated by the objective clinical findings in the record, but also by his own admissions.
Back admitted to his surgeon Dr. Werthammer and to Dr. Potter that he only needed one pain
pill in the morning to manage his pain. [Tr. 428, 592] At the time of his application, Back
reported constant pain but also admitted that he was not taking any medication and was still
-7
able to cook, drive, shop, take care of his personal needs, and take out the trash. [Tr. 222224, 229-230]
As the ALJ observed, the timing of Back’s disability application is suspect. Back
wrote on his application that he left work because he was laid off, not because he was unable
to perform his job. [Tr. 208] He also collected unemployment in 2012 and 2013, a fact that
the ALJ properly characterized as “contrary to the assumption of disability.” [Tr. 20] See
Workman, 105 F. App’x at 801-02 (“Applications for unemployment and disability benefits
are inherently inconsistent. . . . There is no reasonable explanation for how a person can
claim disability beneifts under the guise of being unable to work, and yet file an application
for unemployment benefits claiming that [he] is ready and willing to work.” (internal
quotation marks and citations omitted)).
In the absence of a reliable opinion by a treating physician, the ALJ correctly relied
on the opinion of Dr. Nold, a consultative examiner. Dr. Nold found during his physical
examination that Back had only a slight limitation of motion in his cervical spine and left
knee. [Tr. 277-78] Dr. Nold also observed that Back had a normal gait, five out of five
motor strength in both of his lower extremities, and normal muscle tone and bulk. Id.
Likewise, Dr. Werthammer, a treating physician, found that Back’s strength in his upper and
lower extremities was a five on a one to five scale a little over a month after his surgery. [Tr.
599] He also noted normal muscle bulk and tone. Id. Because Dr. Nold’s findings were
consistent with other objective evidence in the record, the ALJ did not err by relying on his
opinion.
-8
Back also criticizes the ALJ for failing to note in her report that Dr. Werthammer
prescribed that he wear a back brace for three months after surgery. [Record No. 10-1, pp.
12-13] Additionally, Back argues that the ALJ should have noted that Back was wearing the
brace during Dr. Werthammer’s exam. Id. at 12. However, Back cites no law to support his
critique, and the Court fails to appreciate how these details would have changed the outcome
of the ALJ’s decision.
Back further contends that the ALJ should have discussed that Dr. Werthammer
found his deep tendon reflexes were a two out of four. Id. at 13. But that detail, by itself, is
insufficient to rebut the many other clinical findings indicating that Back is not disabled.
Finally, Back notes that the “ALJ failed to note that Dr. Werthammer requested a
follow-up visit and that he would then schedule a repeat thoracic spine x-ray.” Id. Again,
Back fails to explain how this detail would have affected the ALJ’s determination. The fact
that Back continues to receive treatment does not demonstrate that he is disabled under the
Act.
In short, the ALJ thoroughly explained the reasons for her RFC determination, and
substantial evidence in the record supports her reasoning.
While she failed to give
controlling weight to a treating physician’s opinion, she adequately demonstrated that the
treating physician’s opinion was inconsistent with the objective evidence of record.
IV.
For the foregoing reasons, ALJ Kelley did not err when she gave more weight to the
opinion of Dr. Nold, a consultative examiner, than the opinion of Dr. Potter, the claimant’s
-9
treating physician. Further, substantial evidence supports the decision of the Social Security
Administration. Accordingly, it is hereby
ORDERED as follows:
1.
Plaintiff Jeffrey Back’s Motion for Summary Judgment [Record No. 10] is
DENIED.
2.
Defendant Commissioner Carolyn Colvin’s Motion for Summary Judgment
[Record No. 11] is GRANTED.
3.
The decision of Administrative Law Judge Michele Kelley will be
AFFIRMED by separate Judgment entered this date.
This 9th day of June, 2016.
-10
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?