Bush v. Colvin

Filing 13

MEMORANDUM OPINION. Signed by Magistrate Judge Jillyn K Schulze on 05/05/2014. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
THEODORE BUSH
v.
CAROLYN W. COLVIN
Acting Commissioner of Social Security

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Civil No. JKS 13-1389

MEMORANDUM OPINION
Plaintiff Theodore Bush brought this action pursuant to 42 U.S.C. § 405(g) for review of
the Social Security Administration’s (SSA) final decision denying his claim for disability
insurance benefits (DIB) and supplemental security income (SSI) under the Social Security Act,
42 U.S.C. §§ 401 et. seq. (the Act). Both parties’ motions for summary judgment are ready for
resolution, see ECF Nos. 10 and 12, and no hearing is necessary. See Local Rule 105.6. For the
reasons set forth below, Bush’s motion for summary judgment is denied and the Commissioner’s
motion for summary judgment is granted.
1. Background.
Bush filed an application for DIB on June 12, 2009, R. 156, and an application for SSI on
June 15, 2009, R. 132, with an alleged disability onset date of January 2, 2001. R. 25. Both
claims were denied initially, R. 56, 60, and upon reconsideration. R. 66, 70. Bush then filed a
written request for a hearing before an Administrative Law Judge (ALJ), and a hearing was held
on September 22, 2011. R. 22. ALJ Thomas M. Ray issued a decision on January 18, 2012,
finding that Bush was not disabled under the Act because he retained the residual functional
capacity (RFC) to perform jobs available in significant numbers in the national economy. R. 2021. The Appeals Council subsequently denied Bush’s request for review on March 12, 2013, R.
1-3, and the ALJ’s decision became the final, reviewable decision of the agency.

2. ALJ’s Decision.
The ALJ evaluated Bush’s disability claim using the five-step sequential process
described in 20 C.F.R. § 404.1520. At step one, the ALJ found that Bush had not engaged in any
substantial gainful activity since the alleged onset date of January 2, 2001. R. 16. At step two,
the ALJ found that Bush had two severe medical impairments: chronic obstructive pulmonary
disease and back pain. Id. At step three, the ALJ found that Bush did not suffer from an
impairment, or combination of impairments, listed in 20 C.F.R Part 404, Subpart P, Appendix 1.
R. 17. At step four, the ALJ determined that Bush possessed the RFC to perform light work, but
could only occasionally climb ramps, stairs, ladders, ropes and scaffolds, and stoop, crawl, and
balance, must be able to use reading glasses, and must avoid moderate exposure to humidity,
fumes, odors, dusts, gases, and poor ventilation. Id. At step five, given Bush’s age, high school
education, work experience, and RFC, the ALJ considered the testimony of the vocational expert
(VE) and concluded that Bush is capable of work that exists in significant numbers in the
national economy. Id. Accordingly, the ALJ found that Bush was not disabled as defined under
the Act and denied his applications for benefits.
3. Standard of Review.
The role of this court on review is to determine if the ALJ applied the correct legal
standards in finding Bush not disabled, and if substantial evidence supports that conclusion. 42
U.S.C. § 405(g); Pass v. Chater, 65 F.3d 1200, 1202 (4th Cir. 1995). Substantial evidence
requires “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation and quotation marks
omitted). To be substantial, there must be more than a scintilla, but less than a preponderance, of
the evidence presented. Shively v. Heckler, 739 F.2d 987, 989 (4th Cir. 1984). This court may

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not try the case de novo, and will affirm a decision if it is supported by substantial evidence. Id.
If conflicting evidence could cause reasonable minds to differ on whether or not the claimant is
disabled, it is the ALJ’s right and responsibility to make that determination. Craig v. Chater, 76
F.3d, 589 (4th Cir. 1996) (citing Walker v. Bowen, 834 F.2d 635, 640 (7th Cir. 1987)).
4. Discussion.
Bush argues that the ALJ erroneously assessed his RFC because the ALJ failed to
properly evaluate the opinions of Dr. Ahmed Kafaji. ECF No. 10-1 at 6. Specifically, Bush
asserts that Dr. Kafaji’s records, which were submitted to the ALJ after Bush’s administrative
hearing, show that he had abnormal electromyelogram (EMG) results, abnormal MRI results,
diminished deep tendon reflexes, diminished sensation and flexibility in his feet, a decreased
range of motion and an antalgic gait. Id. at 7. Bush argues that had the ALJ properly considered
these findings, “there is a reasonable probability that . . . he would have limited the Plaintiff to
the performance of sedentary work,” which, given Bush’s vocational profile, would make him
disabled under the disability guidelines. Id. at 9. However, as discussed below, the ALJ
properly considered each of Dr. Kafaji’s findings and incorporated the proven limitations into his
RFC determination. The ALJ’s assessment of Bush’s RFC, and his conclusion that Bush could
perform light work, is supported by substantial evidence.
As evidenced by Dr. Kafaji’s reports, Bush’s “EMG finding [was] suggestive of mild
subacute-to-chronic C6 radiculopathy on the left side,”1 R. 346, and his MRI showed
“degenerative disc disease and [a] disc bulge with spinal stenosis in the cervical and lumbar

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“Radiculopathy is used to describe a ‘disease of the nerve roots.’” Harris v. Holland, 87 F. App’x 851, 854 n.4 (4th Cir. 2004)
(citing Dorland's Illustrated Medical Dictionary 1735 (28th ed.1994)).

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spine.”2 R. 350. The ALJ concurred that “[o]bjective medical evidence shows a history of back
problems” and that Bush’s “[EMG] was normal except for findings of mild left radiculopathy,”
R. 19, but the ALJ also considered Dr. Michael Szkotnicki’s opinion that “X-rays of [Bush’s]
lumbosacral spine and cervical spine were essentially negative” and that Bush “had a little
degenerative joint disease but everything else look[ed] fine.” R. 237. Bush himself reported to
Dr. Kafaji that he measured his normal pain “at the rate of 4/10,” and while it tends to increase
“to 8/10 during activities and movement,” the pain decreases “by taking medication which is
Percocet and by rest[ing].” R. 350. Indeed, Dr. Kafaji’s physical examination revealed that
Bush was “apparently in pain but not in distress,” and recommended that Bush exercise, decrease
his weight, use a heating pad and avoid alcohol with his medications.3 Id. at 351. The ALJ also
noted a December 2009 report by Dr. Linda Sloan that concluded that Bush could touch his toes
and had no problem dressing or undressing or putting his shoes on while standing up. R. 18; R.
287-89. Ultimately, the ALJ accounted for Bush’s radiculopathy by limiting Bush to light work
and only occasional stooping, crawling and balancing. R. 17; see D'Almeida v. Astrue, Case No.
PWG 10-2095, 2012 WL 395201, at *3 (D. Md. Feb. 6, 2012) (affirming ALJ’s decision limiting
plaintiff to light work despite plaintiff’s history of herniated discs); Bogan v. Colvin, Case No.
BD 12-300, 2014 WL 29040, at *2 (E.D. Ark. Jan. 2, 2014) (affirming ALJ’s determination that
plaintiff could do light work, including some lifting, carrying, walking and standing, despite a
fracture of the lumbar spine, degenerative disc disease in the neck and back, and right lumbar
radiculopathy). Thus, although the ALJ concluded that Bush’s back pain was severe enough to
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“Spinal stenosis is defined as the ‘narrowing of the vertebral canal, nerve root canals, or intervertebral foramina of the lumbar
spine.’” Lehman v. Astrue, 931 F. Supp. 2d 682, 690 n.3 (D. Md. 2013) (citing Dorland’s Illustrated Medical Dictionary at 1770
(32d ed. 2012)).

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Bush was eventually discharged from Dr. Kafaji’s care for testing positive for cocaine use in violation of his Pain Management
Contract. R. 333. As noted by Dr. Sloan in her December 12, 2009 report, Bush reported that he used “cocaine every 3-4 days.”
R. 287.

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“cause more than a minimal restriction in the claimant’s work-related abilities,” he reasonably
concluded that Bush could perform light work and that the specific clinical and diagnostic
findings did not support a finding of disability as a result of his back pain.4
With regard to Bush’s gait, Dr. Kafaji did not conclude that Bush had an abnormal gait;
rather, Dr. Kafaji stated that his “gait is normal. It is antalgic but steady.” R. 351. Thus, the
ALJ was not required to account for an abnormal gait in fashioning Bush’s RFC. Similarly, the
ALJ did not need to account for Dr. Kafaji’s cursory notation that Bush had diminished sensation
and flexibility in his feet. R. 351. Bush never mentioned—to the ALJ or to Dr. Kafaji—pain or
problems associated with his feet. R. 24-44; R. 350. He experienced some difficulty with
walking long distances, but this resulted from breathing troubles, not foot troubles. R. 36-37.
Bush also points to Dr. Kafaji’s findings that he experienced diminished deep tendon
reflexes and a decreased range of motion, but these findings are in direct conflict with Dr.
Sloan’s findings. As noted by the ALJ, R. 18, Dr. Sloan concluded that Bush could ambulate
well, get on and off the examination table without issue, had a full range of motion throughout
his body, could touch his toes, had a negative bilateral straight leg raise, had full strength
throughout his body and no neurological deficits. R. 288-89. Furthermore, Bush fails to explain
how these alleged limitations would prevent him from performing light work, as contemplated
by his RFC.
Bush next argues that, based on Dr. Kafaji’s findings, the ALJ should have limited his
capacity to stand and walk in fashioning the RFC assessment. ECF No. 10-1 at 8. As stated
earlier, Bush never testified that he had any limitations in standing or walking because of his
back or neck pain. His ability to walk was limited by his shortness of breath, R. 295, and neither

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Notably, despite Bush’s contention that he should be limited to sedentary work, not one physician suggested that he should be
so limited.

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Dr. Kafaji nor Bush claims that his RFC should be different because of Bush’s breathing issues.
A diagnosis of mild radiculopathy, by itself, does not necessarily warrant a certain limitation or
impairment. See Hott v. Astrue, Case No. JKB 9-2729, 2010 WL 4781303, at *4 (D. Md. Nov.
17, 2010) (citing Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir.1988) (“A diagnosis by itself does
not establish impairment, let alone a severe impairment or disability.”)). Furthermore, because
the ALJ limited Bush to “light work,” Bush is only required to stand or walk “off and on, for a
total of approximately 6 hours of an 8-hour workday” and “[s]itting may occur intermittently
during the remaining time.” See SSR 83-10. Thus, the requirements of light work inherently
limit the extent to which Bush must walk and stand throughout the workday.
Finally, Bush argues that the ALJ should not have given great weight to the opinions of
the state agency examiners, Dr. Hakkarinen and Dr. Singh, because they did not issue their
opinions until after Bush visited Dr. Kafaji and received his EMG and MRI results. ECF No. 101 at 8. As a preliminary matter, the ALJ did not rely solely on the opinions of Dr. Hakkarinen
and Dr. Singh in fashioning Bush’s RFC. The ALJ also relied heavily on the opinions of Dr.
Michael Szkotnicki, Dr. Anil Shah and Dr. Linda Sloan. R. 18. Dr. Szkotnicki concluded that
Bush’s “back is without any obvious deformity,” that the “X-rays of the lumbosacral spine and
cervical spine were essentially negative,” and that Bush “had a little degenerative joint disease
but everything else looks fine.” R. 237. Dr. Shah concluded that Bush tested “[p]ositive for
back pain,” R. 245, and Dr. Sloan noted that Bush “complains of low back pain” but noted that
Bush had a “full range of motion at his hips, ankle, cervical spine . . . lumbar spine” and was
“actually able to touch his toes.” R. 289. As for the state agency consultants, Dr. Hakkarinen
noted that Bush was experiencing “difficulty getting dressed and engaging in appropriate
hygiene” because of his “back problems . . . [that] . . . affect[] his ability to bend over,” R. 295,

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but ultimately concluded that Bush could stand and/or walk for a total of 6 hours in an 8 hour
workday and occasionally stoop, kneel and crouch. R. 291-92. Dr. Nisha Singh affirmed these
findings in July 2010, one month prior to Dr. Kafaji’s examination of Bush. R. 325. The ALJ
properly assigned great weight to the findings of the state agency consultants because their
findings were consistent with the findings of Dr. Szkotnicki, Dr. Shah and Dr. Sloan, and to a
large extent, Dr. Kafaji. It is not clear what the state agency consultants would have viewed
differently even if Dr. Kafaji’s examination results had been available to them at the time they
conducted their reports. The MRI and EMG results only confirmed what the previous physicians
already knew: that Bush tested positive for back pain and that he had “a little degenerative joint
disease.” The additional impairments noted by Dr. Kafaji—that Bush experienced diminished
deep tendon reflexes, a decreased range in motion, and a diminished sensation in his feet—either
did not warrant a more restrictive RFC or were inconsistent with Bush’s own testimony and the
findings of Dr. Szkotnicki, Dr. Shah and Dr. Sloan.
5. Conclusion.
Substantial evidence supports the ALJ’s conclusion that Bush was not disabled under the
Act. Bush’s motion for summary judgment is denied and the Commissioner’s motion for
summary judgment is granted.

Date: _May 5, 2014

/S/
_______
JILLYN K. SCHULZE
United States Magistrate Judge

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