Rasmussen v. Commissioner of Social Security

Filing 11

OPINION ; signed by Magistrate Judge Timothy P. Greeley (Magistrate Judge Timothy P. Greeley, cam)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

GARY ALLEN RASMUSSEN,
Plaintiff,

Case No. 2:16-cv-190

v.

HON. TIMOTHY P. GREELEY

COMMISSIONER OF SOCIAL SECURITY,
Defendants.
___________________________________/

OPINION
On January 3, 2013, Plaintiff Gary Allen Rasmussen completed an application for
disability and disability insurance benefits.

See Transcript of Administrative Hearing

(PageID.145-148). Plaintiff alleges that he became disabled on November 9, 2012, due to back,
neck, and leg pain limiting his ability to engage in employment. Plaintiff’s application was denied
initially and Plaintiff requested an administrative hearing before an Administrative Law Judge
(ALJ). (PageID.102, 105-111).

ALJ Patrick H. Morrison, held a hearing on April 9, 2015.

(PageID.49-91). At the hearing, Plaintiff and Vocational Expert Les Goldsmith testified. In a
decision issued on May 6, 2015, the ALJ denied Plaintiff’s claims for benefits. (PageID.35-42).
The ALJ found that Plaintiff could perform jobs that existed in significant numbers
in the national economy given Plaintiff’s residual functional capacity (RFC) and therefore
concluded that Plaintiff was not under a “disability” under the Social Security Act (20 C.F.R. §
404.1520(g)). The ALJ’s decision became the agency’s final decision when the Appeals Council

denied Plaintiff’s request for review. Plaintiff now seeks judicial review of the agency’s final
decision denying his request for disability benefits1.
Plaintiff was 56 years old at the time of the hearing. (PageID.57). Plaintiff was
five foot eight and one half inches tall and weighed two hundred and ten pounds. (PageID.58).
Plaintiff sold life insurance and made about $3,600.00 in the previous year. (PageID.59). Plaintiff
drives a vehicle every day. Id. Plaintiff completed one year of college and then received vocational
training as a financial service representative. (PageID.60). Plaintiff’s past work included eight
years as financial service representative, two years as a branch office manager, and about one year
as multistate marketing director. (PageID.61-64).

Plaintiff lifted up to thirty pounds in these

positions and would spend time at an office and traveling. (PageID.64). Plaintiff has experience
in the financial industry with different employers. (PageID.66).
During the hearing, Plaintiff asserted that he experiences back spasms and back
pain while sitting, and almost daily headaches. (PageID.67). At the time of the hearing, Plaintiff
described “pretty bad lower back pain.” Id. Plaintiff suffers from degenerative joint disease and
degenerative disc disease in his lumber spine. Id. The pain radiates down to the buttocks area, but
only about once a week. (PageID.68). Plaintiff began experiencing pain in the late 1970s. Id.
Plaintiff relieves the pain by taking Norco, Ibuprofen, and Tylenol. Id. He also takes Flexeril as
a muscle relaxant. Id. Plaintiff takes Norco pills when the pain is really bad, and when the
Ibuprofen is not working. (PageID.69).
Plaintiff has seen chiropractors, doctors, and physical therapists, works out every
day, and performs a stretching and yoga regimen for “maybe 10 or 20 minutes a day as I can do
it.” Id. Plaintiff goes to the YMCA and uses a treadmill, stationary bike, or elliptical machine.
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Both parties consented to proceed before a Magistrate Judge on November 28, 2016.
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Id. Plaintiff uses ice and heat regularly. (PageID.71). Plaintiff used to go to a chiropractor, but
after May of 2011, he transitioned to physical therapy. Id.
Plaintiff has bad knees. The right knee is worse, but does not affect his ability to
work. (PageID.72).
(PageID.73).

Plaintiff has arthritis in his neck and experiences pain and headaches.

Plaintiff states that he experiences neck and back pain together. Id.

Both of

Plaintiff’s shoulders “pop out of place.” Id. Plaintiff’s main problem is the arthritis from his brain
stem to his tailbone. Id. Plaintiff experiences muscle cramping and spasms that cause his pain. Id.
Plaintiff explained that after sitting at a desk for about one half hour he will experience headaches
and spasms that become intolerable. (PageID.73-74).
Plaintiff has some difficulties lifting. After he recently lifted his 18 pound dog, he
tweaked his back and was done for the day, and he had to sit in a chair for two days while taking
Norco pain medication. (PageID.74). He experiences fatigue daily due to sleeping only five hours
pernight. (PageID.73-75). As result, Plaintiff rests and takes naps during the day. (PageID.7576). Plaintiff is able to personally take care of himself. (PageID.76). Plaintiff cooks, vacuums,
dusts, makes beds, cleans bathrooms, pays bills, does laundry, takes out the trash, mows the lawn,
grocery shops, attends church on occasion, and is the President of the Lions Club. (PageID.77).
Plaintiff uses a laptop computer and cell phone, uses email, and Facebook. (PageID.78). During
an average day he spends about fourteen hours using his phone for scheduling appointments, and
socialization. Plaintiff uses his laptop weekly for work related activity. (PageID.79). Plaintiff
can walk for only fifteen or twenty minutes and is less motivated to do so because his dog is too
old. Id.

Plaintiff tries to exercise for a half an hour to one hour a day. (PageID.80).

Plaintiff

enjoys riding his bike and in the winter cross country skiing. Id. Plaintiff’s mother lives about a

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half hour away and he likes to drive to her house and spend the day with her. Id. Plaintiff reads
two to four books per month. Id.
Plaintiff explained that his problems began in 1967 when he was initially hurt in a
bike accident, then he had several ski jumping accidents in the 1970s, but after he was involved in
a car accident in 2009, his problems became more severe. (PageID.81). Moreover, when he first
started working, he was told that if he worked really hard the first five years, it would get easier,
but Plaintiff discovered that was not true, because it is harder to make money today since
companies have reduced what they will pay. Id.
Vocational Expert Goldsmith testified that Plaintiff’s past employment in the
financial and insurance industry could be characterized as a light, skilled job, but some of the
Plaintiff’s past jobs would qualify as sedentary to light, skilled work. (PageID.83). The vocational
expert testified that a hypothetical person of Plaintiff’s age with similar education and work
experience who could not be expected to work on ladders, ropes, scaffolding, or at unprotected
heights, limited to occasional stooping, kneeling, crouching, and crawling, could perform
Plaintiff’s past work. (PageID.84). If that same hypothetical person was limited to only sedentary
jobs then positions such as bank manager and marketing director, and some of the sales jobs could
be performed, but not the jobs characterized as light duty. (PageID.85). In addition to the
limitation of sedentary jobs, if the person could only sit and stand during an eight hour day every
half hour or so, the same jobs could be performed. Id.
However, if the individual was off task 10 to 15 percent each day due to neck and
back pain, that individual would not be able to perform these past relevant jobs and other jobs.
(PageID.86). However, an individual with this skillset would have transferable skills which could
lead to positions like telemarketing or telephone order taking. Id. If such an individual was unable

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to go to work on a given day, or had to leave work due to pain in the neck or back at least two to
three times per month, that person would not be able to work in competitive employment.
(PageID.88).
The ALJ determined that Plaintiff suffers from degenerative joint disease in the low
back and bilateral knees, which caused severe limitation in Plaintiff’s ability to do basic work
activities. (PageID.38). Plaintiff was also found to suffer from non-severe impairments of
headaches, bilateral shoulder pain, and neck pain. Id. The ALJ concluded that based upon
Plaintiff’s residual functional capacity, Plaintiff could perform his past relevant work as an
insurance sales person, bank manager, or marketing director. (PageID.41-42).
After the Appeals Council denied Plaintiff’s appeal, Plaintiff filed this action
asserting that the ALJ’s decision to deny disability benefits was improper because the Plaintiff’s
medical condition prohibits him from fully engaging in substantial gainful employment. Plaintiff
filed a motion for summary judgment, which will be construed as Plaintiff’s initial brief. The
Commissioner filed a response arguing that the ALJ’s decision is supported by substantial
evidence. Plaintiff filed a reply arguing that his disabling back pain would cause him to be off
task 10-15 percent of the time, eliminating his ability to engage in competitive employment as
testified by the vocational expert.
[R]eview of the ALJ’s decision is limited to whether the ALJ applied the correct
legal standards and whether the findings of the ALJ are supported by substantial evidence.”
Winslow v. Comm’r of Soc. Sec., 566 Fed. App’x 418, 420 (6th Cir. 2014) (quoting Blakley v.
Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009)); see also 42 U.S.C. § 405(g). The findings
of the ALJ are conclusive if they are supported by substantial evidence. 42 U.S.C. § 405(g).
Substantial evidence is defined as more than a mere scintilla of evidence but “such relevant

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evidence that a reasonable mind might accept as adequate to support a conclusion.” Jones v. Sec’y,
Health & Human Servs., 945 F.2d 1365, 1369 (6th Cir. 1991). This Court is not permitted to try
the case de novo, nor resolve conflicts in the evidence and cannot decide questions of credibility.
Brainard v. Sec’y of Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); see Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir. 2003) (noting the ALJ’s decision cannot be
overturned if sufficient evidence supports the decision regardless of whether evidence also
supports a contradictory conclusion). This Court is required to examine the administrative record
as a whole and affirm the Commissioner’s decision if it is supported by substantial evidence, even
if this Court would have decided the matter differently. See Kinsella v. Schwikers, 708 F.2d 1058,
1059 (6th Cir. 1983); see also Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (holding that
the court must affirm a Commissioner even if substantial evidence would support the opposite
conclusion).
The ALJ must employ a five-step sequential analysis to determine if Plaintiff is
under a disability as defined by the Social Security Act. Warner v. Comm’r of Soc. Sec., 375 F.3d
387, 390 (6th Cir. 2004). If the ALJ determines Plaintiff is or is not disabled under a step, the
analysis ceases and Plaintiff is declared as such. 20 C.F.R. § 404.1520(a). Steps four and five use
the residual functional capacity assessment in evaluating the claim. Id.
At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful
activity since November 9, 2012. (PageID.38). At step two, the ALJ determined that Plaintiff had
the following severe impairments: degenerative joint disease in the low back and bilateral knees.
Id. The ALJ found that Plaintiff’s complaints of headaches, bilateral shoulder pain, and neck pain
were not supported by objective evidence which showed functional limitations. Id. At step three,
the ALJ determined that Plaintiff’s impairments or a combination of impairments did not meet or

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medically equal the severity of one of the listed impairments in 20 C.F.R. part 404, Subpart P,
Appendix 1. (PageID.39).

At step four, the ALJ determined that Plaintiff has the residual

functional capacity to perform light work, as defined in 20 C.F.R. § 416.967(b), with additional
limitations: no work on ladders, ropes, and scaffolding, or at unprotected heights, and no more
than occasional stooping, kneeling, crouching, and crawling. At step five, the ALJ concluded that
Plaintiff could perform past relevant work as an insurance sales person, bank manager, and a
marketing director.
Plaintiff contends that the ALJ committed reversible error by failing to conclude
that substantial evidence supported his claim for disability benefits. Plaintiff asserts that his
longstanding chiropractic treatment supports his claim of cervical impairment, and that the ALJ
erred by exaggerating Plaintiff’s ability to engage in daily activities which could support a
conclusion that Plaintiff could perform his past relevant work. Further, Plaintiff argues that the
ALJ erred in failing to consider that, despite Plaintiff’s good days, his back pain could cause him
to have disabling pain lasting for days that would require him to be off task and unable to work in
competitive employment.
The ALJ concluded that there was no objective evidence to support Plaintiff’s claim
of a significant cervical spine impairment. The ALJ explained:
The claimant has complained of neck and shoulder pain that he
attributes to a 2009 motor vehicle accident in which he hit his head.
He has undergone chiropractic care to address pain. However, there
is no diagnostic evidence establishing a cervical spine impairment
or a shoulder joint impairment. He testified of years of daily neck
pain, scraping, and locking up. Secondary to neck pain he testified
of daily headaches. He testified his shoulders are weak and pop out
of place on a regular basis. He indicated he primarily takes
ibuprofen and Tylenol for pain. However, when the pain becomes
unbearable he will take narcotic medication.
Despite, his
complaints, the longitudinal evidence indicates the claimant
remained active. In January 2012, he reported he was yet able to
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walk, hike, bike, and ski. In addition in January 2012, he reported
engaging in a “a lot of snow removal.” In January 2013, he reported
his neck and bilateral shoulder pain is relieved with rest, ice, and
analgesic ointments. At the disability hearing he admitted ongoing
substantial daily activities including cooking, cleaning, shopping,
driving, mowing the lawn, uses a laptop, and spends approximately
15 hours a day on his smartphone arranging activities and checking
his e-mail. The claimant’s daily activities reflect significant use of
the cervical spine and the bilateral upper extremities.
(PageID.39) (citations omitted).

Plaintiff argues that the ALJ erred in not considering his

chiropractic treatment as evidence of a severe cervical impairment. The ALJ found that no
objective medical evidence supported Plaintiff’s claim of a severe cervical impairment and that
his substantial daily activities established that he was not severely limited by his alleged cervical
impairment. Plaintiff sought chiropractic treatment, but his last chiropractic visit was more than
one year before his alleged onset date of November 9, 2012. (PageID.337-401).
The ALJ explained that Plaintiff’s treatment remained routine and conservative
and, most importantly, Plaintiff was not significantly limited in his daily activities. The ALJ
stated:
In terms of the claimant’s alleged disabling symptoms, the
claimant’s longitudinal course of treatment has remained routine
and conservative, which is inconsistent with a finding of a disability.
According to the evidence, the claimant has a longstanding history
of back and knee complaints secondary to a 1974 skiing accident
and a 2009 motor vehicle accident. Right knee x-rays in 2009
revealed only mild osteoarthritic changes, chondrocalcinosis. The
claimant’s earning record reflects a solid work history, above the
substantial gainful activity level that indicates the claimant has
worked with the conditions.
In May 2011, the claimant complained of an exacerbation of low
back pain. Upon physical examination he demonstrate an unsteady
gait, a decreased range of motion, moderate low back muscle spasm,
and bilaterally negative straight leg raises. Lumbar spine x-rays
showed mild to moderate posterior facet arthropathy at L5-S1 with
mild to moderate neural foraminal narrowing. He was treated with
chiropractic care that he reported worsened his pain, pain
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medications, including narcotics, a muscle relaxant, and underwent
physical therapy. During the initial PT assessment on May 16, 2011,
the claimant reported lower left side back pain but denied leg pain,
numbness, tingling, or weakness. The claimant reported similar
symptoms 20 years prior that responded well to PT. In addition, he
admitted that Flexeril was effective in pain control . . . but indicated
that he recently ran out of the medication. He reported he continued
to take anti-inflammatories. Upon examination, he demonstrated
tenderness at the L5-S1 and L4-5 interpaces, tenderness over the left
PSIS region, generalized muscle tightness throughout the bilateral
lumbar paraspinal muscles, limited flexion and extension, bilateral
lateral flexion, bilateral hip rotation. He successfully completed a
4-week course of PT and upon discharge his examination revealed
a normal gait, no pain with palpitation, full flexion, extension,
bilateral lateral flexion, and full bilateral hip external rotation. He
was discharged having met all treatment goals and reporting a
“resolution of low back pain.”
In January 2012 the claimant sought treatment for an exacerbation
of back pain secondary to snow removal. He reported he had
recently engaged in “a lot of snow removal” which caused an
exacerbation of pain. Narcotic pain medication and a muscle
relaxant were restarted. There is a gap in treatment until January 4,
2013. He complained of knee pain, stiffness, decreased range of
motion, and difficulty weight bearing. He also reported an
exacerbation in low back pain. Upon examination, he had decreased
flexion, positive lateral McMurrays on the right. However, there
was no effusion and the ACL and MCL remained intact. His low
mid back was tender but he had a good range of motion. He was
diagnosed with a meniscus injury and referred to an orthopedic
specialist.
The claimant underwent a consultation with orthopedic surgeon Dr.
Matthew Colligan, D.O. on January 29, 2013 and complained of
bilateral knee pain greater on the right and back pain. Upon
examination, he had pain and tenderness in his knees, no left knee
effusion and only trace right knee effusion, bilaterally no
valgus/varus instability, no joint line tenderness, significant
patellofemoral crepitus with a positive patellar grind test. Bilateral
knee x-rays showed significant lateral joint space narrowing in the
right knee and significant patella femoral arthrosis in the left knee.
He was diagnosed with moderate to severe DJD of the right knee
and mild DJD of the left knee and underwent a series of knee
injections.
In addition to the objective medical evidence reflecting less than
disabling findings, the claimant testified to a wide range of daily
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activities consistent with the light exertional level residual
functional capacity set forth herein. He testified that he cooks,
cleans his home, pays bills, does the laundry, takes out the trash,
mows the lawn, grocery shops, attends church, works out regularly
at the YMCA, is the president of the Lions Club, does speaking
engagements, and goes out to eat on a monthly basis. He testified
that he drives daily and drives from 20-30 times a week, spends 14
hours a day on his cell phone scheduling activities, using the email,
and on Facebook and other items, all of which is consistent with the
ability to perform work within the residual functional capacity.
(PageID.40-41) (citations omitted).
Plaintiff argues that the ALJ improperly considered his daily activities in denying
his claim that he is disabled.

When an ALJ evaluates an individual’s complaints of pain and

disabling symptoms, the ALJ may consider the credibility of the person. Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 531 (6th Cir. 1997). “[A]n ALJ’s findings based on the credibility of the
applicant are to be accorded great weight and deference, particularly since an ALJ is charged with
the duty of observing a witness’s demeanor and credibility.” Id. (citing Villarreal v. Sec’y of
Health & Human Servs., 818 F.2d 461, 463 (6th Cir. 1987). An ALJ’s determination of a
Plaintiff’s credibility must be supported by substantial evidence. Id.; Winslow, 566 Fed. App’x at
422. Simply stating that Plaintiff has pain or other symptoms is not sufficient to establish that the
individual is disabled. Walters, 127 F.3d at 531 (citing 20 C.F.R. § 404.1529(a)). The ALJ must
assess an individual’s pain by using a two prong test:
First, we examine whether there is objective medical evidence of an
underlying medical condition. If there is, we then examine: (1)
whether objective medical evidence confirms the severity of the
alleged pain arising from the condition; or (2) whether the
objectively established medical condition is of such a severity that
it can reasonably be expected to produce the alleged disabling pain.
Id. (referencing Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994) (quoting Duncan v. Sec’y
Health & Human Servs., 801 F.2d 847, 853 (6th Cir. 1986)); see also 20 C.F.R. § 404.1529(a).

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“Discounting credibility to a certain degree is appropriate where an ALJ finds contradictions
among the medical reports, claimant’s testimony, and other evidence.” Walters, 127 F.3d at 531
(citing Bradley v. Sec’y of Health & Human Servs., 862 F.2d 1224, 1227 (6th Cir. 1988)). An ALJ
can also consider an individual’s ability to do household and social activities when assessing the
credibility of a person’s alleged pain and disabling symptoms. Id. at 532.
The ALJ’s assessment of Plaintiff’s medical condition was correct. Plaintiff’s
impairments do not significantly limit his daily activities. Plaintiff argues that the ALJ exaggerated
his ability to engage in daily activities and that he could be subjected to disabling pain that prohibits
him from engaging in substantial gainful employment and would cause him to be off-task 10-15
percent of the day making him unemployable. Substantial evidence exists to support the ALJ’s
finding that Plaintiff could perform his past relevant work as an insurance sales person, bank
manager, and marketing director. Plaintiff’s own statements regarding his daily activities establish
that he has a capacity for at least light duty work. Plaintiff participates in a wide variety of
activities that support the ALJ’s findings. There is substantial evidence in the record that supports
the Commissioner’s decision that Plaintiff is not disabled as defined by the Social Security
Administration.
Accordingly, the decision of the Commissioner is AFFIRMED and Plaintiff’s
request for relief is DENIED.

Dated:

July 10, 2017

/s/ Timothy P. Greeley
TIMOTHY P. GREELEY
UNITED STATES MAGISTRATE JUDGE

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