Wade v. Commissioner of Social Security

Filing 24

MEMORANDUM OPINION AND ORDER by Magistrate Judge Colin H. Lindsay. Final decision of Commissioner of Social Security is affirmed. Action dismissed with prejudice. Final judgment to be entered separately. cc: Counsel(JAC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
LOUISVILLE DIVISION
CIVIL ACTION NO. 3:16-CV-517-CHL

JOHN P. WADE,

Plaintiff,

v.
COMMISSIONER OF SOCIAL SECURITY,

Defendant.

MEMORANDUM OPINION AND ORDER
Before the Court is the complaint (DN 1) of plaintiff John P. Wade (“plaintiff”). In his
complaint, plaintiff seeks judicial review of the final decision of the Commissioner of Social
Security (“the Commissioner”). See 42 U.S.C. ' 405(g) (2012) (“Any individual, after any final
decision of the Commissioner of Social Security . . . may obtain a review of such decision by a
civil action commenced within sixty days after the mailing to him of notice of such decision . . .
.”).

Plaintiff filed a Motion for Judgment on the Pleadings (DN 17) and supporting

memorandum (DN 17-1), as well as a Fact and Law Summary (DN 17-2). The Commissioner
also filed a Fact and Law Summary (DN 23).
The parties have consented to the jurisdiction of a magistrate judge to enter judgment in
this case with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed
(See DN 8.) Therefore, this matter is ripe for review. For the reasons set forth below, the final
decision of the Commissioner is affirmed.
I.

BACKGROUND
Plaintiff filed an application for supplemental social security benefits on June 24, 2013,

alleging an amended disability onset date of June 24, 2013. (Tr. 61-62, 161.) On April 28, 2015,
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Administrative Law Judge Dwight Wilkerson (“the ALJ”) conducted a hearing in Louisville,
Kentucky. (Id. at 32.) Plaintiff was present and represented by counsel Shawnee Franklin. (Id.)
William Irvin, a vocational expert, also testified at the hearing. (Id.) In a decision dated May 29,
2015, the ALJ engaged in the five-step evaluation process promulgated by the Commissioner to
determine whether an individual is disabled. In doing so, the ALJ made the following findings.
1.

Plaintiff has not engaged in substantial gainful activity since June 24, 2013, the

application date. (Id. at 22.)
2.

Plaintiff has the following severe impairments: degenerative disc disease of the

lumbar spine, osteoarthritis, insulin dependent diabetes, and hypertension. (Id.)
3.

Plaintiff does not have impairment or combination of impairments that meets or

medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P,
Appendix 1. (Id.)
4.

After careful consideration of the entire record, the ALJ found that plaintiff has

the residual functioning capacity (“RFC”) to perform light work as defined in 20 C.F.R.
416.967(b) except no climbing of ladders, ropes, and scaffolding and only occasional climbing of
ramps and stairs, stooping, kneeling, crouching, and crawling. Plaintiff can occasionally reach
overhead with the right upper extremity. (Id. at 23.)
5.

Plaintiff is unable to perform any past relevant work. (Id. at 26.)

6.

Plaintiff was born on September 17, 1961 and was 51 years old, which is defined

as an individual closely approaching advanced age, on the date the application was filed. (Id.)
7.

Plaintiff has a limited education and is able to communicate in English. (Id.)

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8.

Transferability of job skills is not material to the determination of disability

because using the Medical-Vocational Rules as a framework supports a finding that plaintiff is
“not disabled,” whether or not plaintiff has transferable job skills. (Id.)
9.

Considering plaintiff’s age, education, work experience, and RFC, there are jobs

that exist in significant numbers in the national economy that plaintiff can perform. (Id.)
10.

Plaintiff has not been under a disability, as defined in the Social Security Act,

since June 24, 2013, the date the application was filed. (Id. at 27.)
Plaintiff timely requested an appeal to the Appeals Council on or about July 15, 2015.
(Id. at 16.) On June 10, 2016, the Appeals Council denied plaintiff=s request for review. (Id. at
1.) At that point, the ALJ=s decision became the final decision of the Commissioner. 20 C.F.R.
§§ 404.981, 422.210(a); see also 42 U.S.C. § 405(h) (discussing finality of the Commissioner’s
decision). Plaintiff timely filed this action on February August 11, 2016.
II.

DISCUSSION
The Social Security Act authorizes payment of supplemental social security benefits to

persons with disabilities. Social Security Act, Supplemental Social Security Income, 42 U.S.C.
§§ 1381-85 (2012). An individual shall be considered disabled if “he is unable to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to
last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A); see
also 20 C.F.R. § 404.1505(a).
A.

Standard of Review

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In conducting its review, the Court Amay not try the case de novo, nor resolve conflicts in
evidence, nor decide questions of credibility.@ Garner v. Sec’y of Health and Human Servs., 745
F.2d 383, 387 (6th Cir. 1984) (citing Myers v. Richardson, 471 F.2d 1265 (6th Cir. 1972)). Rather,
the Court’s review is limited to determining whether the findings set forth in the final decision of the
Commissioner are supported by Asubstantial evidence@ and that the correct legal standards were
applied. 42 U.S.C. § 405(g); Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 374 (6th Cir. 2013);
Cole v. Comm’r of Soc. Sec., 661 F.3d 931, 937 (6th Cir. 2011). If the answer is Ayes,@ then the
Court may not even inquire as to whether the record could support a decision the other way. Smith
v. Sec’y of Health and Human Servs., 893 F.2d 106, 108 (6th Cir. 1989).
ASubstantial evidence exists when a reasonable mind could accept the evidence as adequate
to support the challenged conclusion, even if that evidence could support a decision the other way.@
Cotton v. Sec’y of Health and Human Servs., 2 F.3d 692, 695 (6th Cir. 1993) (quoting Casey v. Sec’y
of Health and Human Servs., 987 F.2d 1230, 1233 (6th Cir. 1993)) (internal quotation marks
omitted). Therefore, A[a] reviewing court will affirm the Commissioner=s decision if it is based on
substantial evidence, even if substantial evidence would also have supported the opposite
conclusion.@ Gayheart, 710 F.3d at 374.
B.

Five-Step Sequential Evaluation Process

The Commissioner has promulgated regulations that set forth a five-step sequential
evaluation process that an ALJ must follow in evaluating a disability claim. 20 C.F.R. §§
404.1520, 416.920. In summary, the evaluation proceeds as follows:
1)

Is the claimant engaged in substantial gainful activity? If
the answer is “yes,” the claimant is not disabled. If the
answer is “no,” proceed to the next step.
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2)

Does the claimant have a medically determinable
impairment or combination of impairments that satisfies the
duration requirement and significantly limits his or her
ability to perform basic work activities? If the answer is
“no,” the claimant is not disabled. If the answer is “yes,”
proceed to the next step.

3)

Does the claimant have an impairment that meets or
medically equals the criteria of a listed impairment within
Appendix 1 to Subpart P of Part 404 of this chapter? If the
answer is “yes,” the claimant is disabled. If the answer is
“no,” proceed to the next step.

4)

Does the claimant have the RFC to return to his or her past
relevant work? If the answer is “yes,” then the claimant is
not disabled. If the answer is “no,” proceed to the next
step.

5)

Even if the claimant cannot perform past relevant work,
does the claimant’s RFC, age, education, and past work
experience allow him or her to perform a significant
number of jobs in the national economy? If the answer is
“yes,” the claimant is not disabled. If the answer is “no,”
the claimant is disabled.

Id.
The claimant bears the burden of proof with respect to the first four steps. Jordan v.
Comm’r of Soc. Sec., 548 F.3d 417, 422-23 (6th Cir. 2008).

The burden shifts to the

Commissioner at the fifth step to prove that there are available jobs in the national economy that
the claimant is capable of performing. Id. at 423. The claimant, however, always retains the
burden of proving lack of RFC. Herr v. Comm’r of Soc. Sec., 203 F.3d 388, 392 (6th Cir. 1999).
C.

Plaintiff’s Contentions

Plaintiff argues that the ALJ’s RFC determination is not support by substantial evidence.
More specifically, plaintiff argues that (1) the ALJ erred in determining that plaintiff can perform

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light work; and (2) the ALJ failed to fully and fairly develop the record with respect to plaintiff’s
physical limitations. The Court will address each argument below.
1.

RFC determination that plaintiff can perform light work

Plaintiff argues that the ALJ failed to properly weigh the opinion evidence of his family
doctor, Dr. Robert Johnson, in determining the RFC. Plaintiff also appears to argue that the ALJ
should have found that plaintiff was limited to sedentary work.
a. Opinions of Dr. Johnson
Dr. Johnson completed a RFC Questionnaire on March 31, 2015.

In the RFC

Questionnaire, Dr. Johnson opined that plaintiff could sit for four hours in a workday; stand three
hours in a workday; required 10-12 unscheduled breaks throughout the workday for 15-30
minutes at a time; and would be absent from work more than four days a month. (Tr. 38-39.)
Plaintiff asserts that that ALJ erred in giving Dr. Johnson’s opinions little weight in his
formulation of the RFC, including his determination that plaintiff could perform light work.
Plaintiff points out that the ALJ incorrectly determined that Dr. Johnson only saw plaintiff once
and therefore had no treating relationship with plaintiff.

While not stated outright, the

implication is that Dr. Johnson was a treating physician and therefore his opinions should have
been accorded controlling weight.
Plaintiff is correct that the ALJ erroneously concluded that plaintiff only saw Dr. Johnson
one time. The RFC Questionnaire completed by Dr. Johnson on March 31, 2015 indicated that
he began seeing plaintiff in August 2014. (Id. at 388-89.) Thus, Dr. Johnson was, as is conceded
by the Commissioner, a treating physician.

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Treating sources must be given controlling weight if the opinion is (1) “well-supported
by medically acceptable clinical and laboratory diagnostic techniques”; and (2) “not inconsistent
with the other substantial evidence in [the] case record.” Gayheart, 710 F.3d at 376 (quoting 20
C.F.R. § 404.1527(c)(2)) (internal quotation marks omitted). If the treating source is not given
controlling weight, then the “opinion is weighed based on the length, frequency, nature, and
extent of the treatment relationship, as well as the treating source’s area of specialty and the
degree to which the opinion is consistent with the record as a whole and is supported by relevant
evidence.” Id. (citing 20 C.F.R. § 404.1527(c)(2)-(6)).1
20 C.F.R. § 416.927(c)(2) contains a procedural requirement that the Social Security
Administration (“SSA”) “always give good reasons in our notice of determination or decision for
the weight we give your treating source’s opinion.” 20 C.F.R. § 416.927(c)(2); see also Wilson
v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004) (“The regulation requires the agency
to ‘give good reasons’ for not giving weight to a treating physician in the context of a disability
determination.”) (citing 20 C.F.R. § 404.1527(d)(2)). This is otherwise known as the “treating
physician rule.” “The requirement of reason-giving exists, in part, to let claimants understand
the disposition of their cases, particularly in situations where a claimant knows that his physician
has deemed him disabled and therefore might be especially bewildered when told by an
administrative bureaucracy that she is not, unless some reason for the agency's decision is
supplied.” Wilson, 378 F.3d at 544-45 (quoting, in part, Snell v. Apfel, 177 F.3d 128, 134 (2d
Cir.1999)) (internal quotation marks omitted). This requirement also ensures that the ALJ

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The Court notes that the regulations governing disability determinations for disability insurance and supplemental
social security income are virtually identical and can be found at Title 20, Subpart P, Part 404 (disability insurance)
and Title 20, Subpart I, Part 416 (supplemental social security income). As a result, case law citing a regulation in
Subpart P, Part 404 is equally applicable to the corresponding regulation in Subpart I, Part 416.

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applies the treating physician rule and permits meaningful review of the ALJ's application of the
rule. Id.
In general, a failure to articulate good reasons for rejecting a treating physician’s opinion
requires reversal and remand. Wilson, 378 F.3d at 546-47; Blakley v. Comm'r of Soc. Sec., 581
F.3d 399, 409–10 (6th Cir. 2009) (“The Wilson Court instructs that where the ALJ fails to give
good reasons on the record for according less than controlling weight to treating sources, we
reverse and remand unless the error is a harmless de minimis procedural violation.”). This is
because it “is an elemental principle of administrative law that agencies are bound to follow their
own regulations. Wilson, 378 F.3d at 545.
Nonetheless, the Sixth Circuit has found three instances where the violation is de
minimus and reversal and remand may not be required: (1) where a treating source’s opinion is
so patently deficient that the Commissioner could not possibly credit it; (2) if the Commissioner
adopts the opinion of the treating source or makes findings consistent with the opinion; or (3)
where the Commissioner has met the goal of 20 C.F.R. § 416.927(c)(2) – the provision of the
procedural safeguards of reasons – even though she has not complied with the terms of the
regulation. Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551, 2010 WL 1725066 (6th Cir.
April 28, 2010) (citing Wilson, 378 F.3d at 547). “In the last [i.e., third] of these circumstances,
the procedural protections at the heart of the rule may be met when the ‘supportability’ of a
doctor's opinion, or its consistency with other evidence in the record, is indirectly attacked via an
ALJ's analysis of a physician's other opinions or his analysis of the claimant's ailments.” Id.
(citing Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470-72 (6th Cir. Aug. 28, 2006) and

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Hall v. Comm’r of Soc. Sec., 148 F. App’x 456, 464 (6th Cir. 2006)). The Commissioner argues
that (1) and (3) apply here. The Court will address (3) first.
The Court finds that the ALJ gave good reasons for not giving Dr. Johnson’s opinions
controlling weight. The ALJ found that Dr. Johnson’s opinions were inconsistent with the
medical evidence in the record and plaintiff’s reported relief with pain medication. The ALJ first
noted that the objective medical evidence for the relevant time period was very limited. The ALJ
observed that the record showed that, prior to the relevant period, plaintiff suffered a significant
right arm fracture and right femur fracture. (Tr. 24.) An MRI of the lumbar spine showed mild
degenerative changes at L4-5 and a small tear involving the right foraminal margin at L3-4;
medical imaging revealed moderate joint arthritis in the right shoulder as well. (Id. at 24, 376.)
As noted by the ALJ, however, this objective medical evidence showing mild degenerative
changes and moderate joint arthritis in the right shoulder did not come close to supporting
plaintiff’s allegations of a debilitating physical condition and were therefore inconsistent with
Dr. Johnson’s imposition of severe physical limitations. (Id. at 25.)
The ALJ further noted that, while plaintiff’s pain in his right shoulder and other parts of
his body was documented, he had been prescribed narcotic pain medications, a pain pump, and
upper extremity injections, and he had reported receiving relief from these measures. For
example, as noted by the ALJ, in August 2014 plaintiff reported to his pain management
specialist that, while his pain was not controlled as he would like, he “does get out and goes to
the races.” (Id. at 339). In records from December 2014 from the same provider, plaintiff
reported that his pain was well controlled on his medications and that he was able to keep his
normal activities and that he was better since the last office visit; in February 2015, plaintiff also
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reported that his pain was well controlled on his present medications and that he was able to keep
his normal activities. (Id. at 330, 333.) And, despite the ALJ’s oversight with respect to Dr.
Johnson’s role as treating physician, the ALJ discussed Dr. Johnson’s own medical records. In
fact, Dr. Johnson’s records from October and December 2014 indicated plaintiff reported
improvement to his right shoulder pain with injections. (Id. at 290, 299.) In December 2014,
plaintiff reported to Dr. Johnson that was doing well and feeling great. (Id. at 290.) Again, as
noted by the ALJ, plaintiff’s reported improvement with medication and ability to keep normal
activities was wholly inconsistent with the severe physical limitations imposed by Dr. Johnson in
the RFC Questionnaire.
Consequently, the Court finds that, in this instance, the ALJ’s error in finding that Dr.
Johnson was not a treating physician was de minimus. Importantly, the ALJ did not simply
discount Dr. Johnson’s opinions because he was not a treating physician.

Rather, as

demonstrated above, the ALJ provided the requisite good reasons for not giving Dr. Johnson’s
opinions in the RFC Questionnaire controlling weight. See Friend, 375 F. App'x 543, 551 (6th
Cir. 2010) (“If the ALJ's opinion permits the claimant and a reviewing court a clear
understanding of the reasons for the weight given a treating physician's opinion, strict
compliance with the rule may sometimes be excused.”).

Therefore, any error committed here

was harmless. Because the Court has found that the ALJ gave good reasons for discounting Dr.
Johnson’s opinions, there is no need to determine whether the first exception – whether those
opinions were so patently deficient that the ALJ could not credit them – also applies.

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b. Failure to limit plaintiff to sedentary work
Plaintiff also avers that the record evidence, including Dr. Johnson’s opinion, is more
indicative of a RFC of sedentary, as opposed to light, work. Plaintiff appears to argue that, had
he been limited to sedentary work, he would have been deemed disabled under the MedicalVocational Guidelines. Specifically, plaintiff states, without expounding, that his “testimony
along with the other evidence of record, including Dr. Johnson’s opinion, is more indicative of
an RFC of sedentary rather than light work.” (DN 17-1 at 9.)
The Court has already determined that there were good reasons for discounting the
opinion of Dr. Johnson. Furthermore, the ALJ supported his RFC finding with record medical
evidence and took into account plaintiff’s allegations to the extent that he found them credible.
Thus, plaintiff’s bare argument amounts to a disagreement with how the ALJ chose to weigh the
conflicting evidence. As the Court has stated, it may not try the case de novo, nor resolve
conflicts in evidence. Garner, 745 F.2d at 387. In other words, the Court may not disturb the
ALJ’s finding absent proof that it was not supported by substantial evidence, something plaintiff
has not shown here. Therefore, plaintiff’s unsupported argument fails.
2.

Failure to fully and fairly develop the record

The ALJ considered the opinions of two state agency medical consultants who provided
physical RFC assessments. The ALJ agreed with their ultimate conclusion of “not disabled,” but
afforded only some weight to the rest of their assessments. In particular, the ALJ found a more
restrictive RFC than mandated by the state agency medical consultants. (Tr. 25-26.) The ALJ
did so because the medical evidence, in addition to the combination of reported pain and
medication taken, showed that plaintiff would need further limitation that those prescribed by the
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state agency medical consultants; the ALJ also noted that neither of the state agency medical
opinions took into account plaintiff’s well-documented right upper extremity arthritis. (Id.)
Plaintiff argues that because the state agency consultants did not consider plaintiff’s right
upper extremity arthritis and the ALJ determined that plaintiff is more limited than indicated by
the state agency consultants, the ALJ should have developed the record by ordering consultative
examinations of him. Plaintiff further argues that because the ALJ gave little weight to the
opinions of Dr. Johnson, the ALJ was obligated to order further consultative examinations to
properly determine plaintiff’s limitations. Plaintiff’s arguments lack merit.
The claimant bears the ultimate burden of proving with sufficient evidence that she is
disabled.

20 C.F.R. § 416.912(a).

“An ALJ has discretion to determine whether further

evidence, such as additional testing or expert testimony, is necessary.” Foster v. Halter, 279
F.3d 348, 355 (6th Cir. 2001); see also Landsaw v. Sec'y of Health & Human Servs., 803 F.2d
211, 214 (6th Cir. 1986) “[T]he regulations do not require an ALJ to refer a claimant to a
consultative specialist, but simply grant him the authority to do so if the existing medical sources
do not contain sufficient evidence to make a determination.”). Although not specifically stated,
it is apparent that the ALJ had the requisite evidence to make a finding in this matter. See Harris
v. Comm’r of Soc. Sec., No. 1:11-CV-2785, 2012 WL 3656402, at *9 (N.D. Ohio Aug. 23, 2012)
(“Although the ALJ has a duty to ensure that a reasonable record has been developed, it is
incumbent upon the claimant to provide an adequate record upon which the ALJ can make an
informed decision regarding the claimant's disability status. Further, an ALJ is not required to
refer a claimant for a consultative examination unless the record establishes that such an
examination ‘is necessary to enable the administrative law judge to make the disability
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decision.’”) (internal citations omitted). The ALJ reviewed plaintiff’s MRI, diagnostic testing,
and the few medical opinions of record, all of which permitted him to appropriately determine
plaintiff’s RFC.
Furthermore, the ALJ, not a medical expert, is responsible for the ultimate determination
of a plaintiff’s RFC. “The ALJ must evaluate a number of factors in determining a plaintiff's
RFC, including the medical evidence and the plaintiff's testimony, and this evaluation is not
limited to medical opinion evidence.” Raber v. Comm'r of Soc. Sec., No. 4:12 CV 97, 2013 WL
1284312, at *16 (N.D. Ohio Mar. 27, 2013). Moreover, the “Sixth Circuit has repeatedly upheld
ALJ decisions where the ALJ rejected medical opinion testimony and determined RFC based on
objective medical evidence and non-medical evidence.” Henderson v. Comm'r of Soc. Sec., No.
1:08 CV 2080, 2010 WL 750222, at *2 (N.D. Ohio Mar. 2, 2010).

Here, the ALJ did not

completely ignore the opinions of the state agency medical consultants; rather, the ALJ, based on
record medical evidence, afforded a more restrictive RFC than that determined by them. And,
as the Court has discussed, the ALJ gave good reasons for giving the opinions of Dr. Johnson
little weight in crafting the RFC. On top of that, the ALJ took into account the record medical
evidence, as well as plaintiff’s complaints of pain (to the extent he found them credible), when
formulating the RFC. Consequently, the Court finds that the ALJ did not err by not ordering
additional consultative examinations of him.
III.

CONCLUSION
For these reasons, and the Court being otherwise sufficiently advised, it is hereby

ORDERED as follows:
(1) The final decision of the Commissioner of Social Security is AFFIRMED and this
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action is DISMISSED with prejudice.
(2) A final judgment will be entered separately.

cc: Counsel of record

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October 16, 2017

Colin Lindsay, MagistrateJudge
United States District Court