Ragan v. Astrue

Filing 23

ORDER entered by Judge Ortrie D. Smith. The Commissioner's decision isaffirmed. (Matthes, Renea)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
SOUTHERN DIVISION
GREGORY RAGAN,

)
)
Plaintiff,
)
)
vs.
)
)
CAROLYN W. COLVIN,
)
Acting Commissioner of Social Security, )
)
Defendant.
)

Case No. 13-3047-CV-S-ODS

ORDER AND OPINION AFFIRMING
COMMISSIONER’S FINAL DECISION DENYING BENEFITS
Pending is Plaintiff's appeal of the Commissioner of Social Security=s final
decision denying his application for disability benefits. The Commissioner's decision is
affirmed.
I. BACKGROUND

The issues raised in this case make it unnecessary to chronicle the entirety of
Plaintiff’s medical history. The following summary will suffice.
Plaintiff was born in July 1973, completed high school, and has prior work
experience as a laborer, landscaper, telemarketer, cook, server, and manager. He
alleges he became disabled on July 20, 2007, primarily due to back pain and the
aftereffects of a foot injury suffered when scaffolding fell on him on that date. X-rays
taken the day of the injury revealed no fractures; Dr. Felix Meza diagnosed Plaintiff as
suffering from a contusion, placed Plaintiff on crutches, and told him to take ibuprofen
and prescribed Vicoden. R. at 433. Two weeks later, Plaintiff told Dr. Meza that his
symptoms were improving but he still felt pain. X-rays revealed nothing remarkable and
he exhibited a full range of motion. Plaintiff explained that he was not working because
his employer did not have any light work available. Dr. Meza described Plaintiff’s injury

as a “bone bruising” and told Plaintiff to continue the medications previously prescribed,
participate in home exercises, and massage the injured area. R. at 430.
In November 2007 Plaintiff underwent a quantitative sudomotor axon reflex test
(QSART) to rule out chronic regional pain syndrome (CRPS). R. at 246-47. This test
was performed by Dr. George Schakaraschwili and indicated there was no restriction on
Plaintiff’s range of motion in the injured extremity, but there was “a high probability for
the presence of dysautonomia” (which is a disorder of the autonomic nervous system)
and a strong indication of “sensorimotor peripheral polyneuropathy, most likely
secondary to hypothryroidism.” Dr. Schakaraschwili did not specifically attribute any
after-effects to Plaintiff’s work-related injury. The test ruled out chronic regional pain
syndrome. R. at 239-240. An MRI was performed the following week and revealed no
bony or acute abnormalities, and no fluid collection, mass, or edema; the only finding of
note was “diffuse fatty atrophy of the . . . muscles about the metatarsals throughout the
foot.” R. at 229. A subsequent meeting with an orthopedist resulted in the opinion that
there was no surgical procedure called for, but that Plaintiff might benefit from nerve
injections. R. at 220.
Plaintiff returned to Dr. Meza in January 2008. Plaintiff demonstrated a full range
of motion in the affected ankle and his weight bearing was improved. Plaintiff reported
his condition as stable and that physical therapy had not helped. Dr. Meza indicated he
planned to refer Plaintiff to a podiatrist for recommendations regarding injections. R. at
308. Dr. Meza reiterated the plan to consider injections in March. R. at 306. At that
point, Dr. Meza transferred Plaintiff’s care to another doctor in his practice, Dr. Darrel
Quick. In April, Dr. Quick indicated Plaintiff suffered from a contusion to his right foot
and that diagnostic testing was “highly suggestive of sensorimotor peripheral
polyneuropathy,” was negative for CRPS, “but highly suggestive of dysautonomia.” Dr.
Quick again encouraged Plaintiff to consider injections and refilled his prescriptions
(which included Lortab). R. at 303-05. In July Plaintiff still had not decided whether to
have injections, and Dr. Quick refilled Plaintiff’s prescriptions. R. at 301-02.
Meanwhile, in June 2008 Dr. Quick referred Plaintiff to Dr. Howard Entin for a
“Psychiatric Pain Evaluation.” Dr. Entin described Plaintiff’s medical records as
indicating a diagnosis of CRPS, even though the QSART and Dr. Quick’s diagnosis
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reflect otherwise. He adjusted Plaintiff’s non-pain medication, prescribing Ambien to
help with sleep and Pristiq for depression. R. at 271-75. Plaintiff saw Dr. Entin again in
July, August and September, but Dr. Entin’s notes do not reflect any changes in his
assessment or treatment recommendations. R. at 268-70.
In August 2008 Dr. Quick referred Plaintiff to Dr. John Sacha for an evaluation
and recommendation regarding Plaintiff’s foot. Dr. Sacah reiterated the prior doctors’
recommendation that Plaintiff undergo injections; he also described Plaintiff as being
“on a poor narcotic regimen” and altered his medications. Plaintiff returned to Dr. Sacha
in September for an impairment rating. Dr. Sacha noted a variety of factors, including:
the negative QSART for CRPS, a relatively unremarkable EMG, Plaintiff’s strength,
range of motion, and other observations upon examination, and Plaintiff’s refusal to
consider injections – all of which led Dr. Sacha to opine that Plaintiff had reached
maximum medical improvement. He assessed Plaintiff to have an eleven percent
disability to the body as a whole and withheld assessing work restrictions until he
received the results of a functional capacity evaluation. Dr. Sacha also reiterated his
belief that Plaintiff’s pain would be diminished if he underwent the injections. R. at 50305.
Dr. Quick saw Plaintiff again on October 1, and observed Plaintiff had “significant
limitations of walking. He is able to walk limited distances and has difficulty with
elevations, grades, and steps.” However, in his diagnosis, Dr. Quick continued to
indicate that diagnostic testing was negative for radiculopathy and negative “for complex
regional pain syndrome but highly suggestive of dysautonomia. Clinically, the patient
probably has a significant level of sympathetically mediated pain in the right lower
extremity, and possibly borderline CRPS-1.” Dr. Quick also opined that Plaintiff’s back
pain was not attributable to any injury or other damage to his back but was probably
related to his diagnosis of sympathetically mediated pain. Dr. Quick again noted
Plaintiff’s refusal to undergo the recommended treatment (i.e., injections of medication
to block the pain). R. at 280.
On October 16, Plaintiff saw a physical therapist (Jeffrey Youngberg) for a
functional capacity evaluation. The results indicated Plaintiff could perform light to
medium work, but it was also noted Plaintiff put forth “very poor demonstrated effort or
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voluntary submaximal effort which is not necessarily related to pain, impairment or
disability.” R. at 458-59.
In November, Plaintiff returned to Dr. Entin, who wrote that Plaintiff “has talked
with Dr. Quick and requested that I take over all pain management. It is my
understanding that this was authorized by Dr. Sacha and Dr. Quick.” Nothing
independently confirms Dr. Sacha and Dr. Quick were “surrendering” Plaintiff’s pain
management to Dr. Entin. In any event, Dr. Entin diagnosed Plaintiff as suffered from
adjustment disorder (stable), pain disorder (stable) and reflex sympathetic dystrophy
(which is another term for CRPS) and opined that an additional 3% should be added to
Plaintiff’s disability rating due to mental impairments. He also concluded Plaintiff
needed to “stay on antidepressants, sleep medicine and pain medicine for an extended
period of time.” R. at 265-66.
Between November 2008 and October 2009, Dr. Entin saw Plaintiff seven times.
The notes from those visits do not reflect that any diagnostic tests were performed. R.
at 259-64. In November 2009 Dr. Entin completed a Residual Functional Capacity
Questionnaire assessing Plaintiff’s physical limitations and capabilities. He indicated
Plaintiff would frequently experience pain severe enough to interfere with work, was
incapable of performing even low stress jobs due to chronic pain (which would affect his
attention, concentration and focus), could sit for one hour at a time before needing to
change position and for only four hours a day, could stand for less than five minutes at a
time and no more than two hours per day, and would need to take unscheduled breaks
every hour. When asked to opine about Plaintiff’s ability to lift and carry Dr. Entin
declined to answer, explaining “I’m a psychiatrist.” R. at 312-16.
At the hearing, Plaintiff testified that his difficulty with sitting was that he was
“overwhelmed with medicine or overwhelmed with pain” and it was “hard to find a happy
medium in between the two, and also the positions that I’m particularly comfortable
with.” As a result, he spends 95% (or more) of his time lying down with his foot
elevated. R. at 44. Some days he does not get out of bed, as merely walking to the
bathroom can cause his pain to flare. R. at 45-46.
The ALJ elicited testimony from a vocational expert (“VE”). The first hypothetical
question asked the ALJ to assume a person of Plaintiff’s age, education and experience
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who could lift ten pounds frequently and twenty pounds occasionally, could sit for thirty
minutes without interruption and for six hours a day, could stand or walk for fifteen
minutes without interruption and for no more than two hours per day, could complete
tasks with minimal supervision and interact with the public, and could adhere to a
normal schedule but could not “tolerate a rapid pace or multitasking.” The VE testified
such a person could return to their past work as a telemarketer. In addition, the VE
testified the individual could work as a ticket checker, ticket seller, or surveillance
system monitor. However, the VE discounted the number of ticket seller positions that
could be performed by 50% because sometimes the position required more standing
than the hypothetical permitted. R. at 60-62.
The second hypothetical added a requirement that the person needed to elevate
his leg approximately eighteen inches; the VE testified the available jobs would not
change. R. at 62, 65. The third hypothetical added a requirement to the second that
the person “would require reminders and redirection once or twice per day to ensure
timely and accurate completion of tasks.” The VE testified such an individual could not
perform any work. R. at 62-63. The fourth hypothetical was the same as the second
except it added a requirement that the person be permitted to lie down or rest in a
reclined position up to an hour per day in addition to normal breaks. The VE testified
such a person could not work in the national economy. R. at 63. Upon further
questioning from counsel, the VE testified that the jobs identified in response to the first
two hypotheticals would permit no more than two absences, early departures, or late
arrivals per month and would not permit a five minute break every hour or the ability to
shift positions at will from standing to sitting. R .at 63-64.
The ALJ found Plaintiff was limited in the manner described in the second
hypothetical. Based on the VE’s testimony, the ALJ further found Plaintiff could return
to his past work as a telemarketer and could perform other jobs in the national economy
as well. In ascertaining Plaintiff’s residual functional capacity (“RFC”), the ALJ relied on
the reports and opinions from Dr. Sacha, Dr. Meza, and Dr. Quick, the results of
medical tests, and the functional capacity evaluation from Mr. Youngberg.

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II. DISCUSSION

“[R]eview of the Secretary=s decision [is limited] to a determination whether the
decision is supported by substantial evidence on the record as a whole. Substantial
evidence is evidence which reasonable minds would accept as adequate to support the
Secretary=s conclusion. [The Court] will not reverse a decision simply because some
evidence may support the opposite conclusion.” Mitchell v. Shalala, 25 F.3d 712, 714
(8th Cir. 1994) (citations omitted). Though advantageous to the Commissioner, this
standard also requires that the Court consider evidence that fairly detracts from the final
decision. Forsythe v. Sullivan, 926 F.2d 774, 775 (8th Cir. 1991) (citing Hutsell v.
Sullivan, 892 F.2d 747, 749 (8th Cir. 1989)). Substantial evidence means “more than a
mere scintilla” of evidence; rather, it is relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Gragg v. Astrue, 615 F.3d 932, 938 (8th
Cir. 2010).

A. Failure to Give Dr. Entin’s Opinion Controlling Weight

Plaintiff first argues the ALJ erred in failing to give Dr. Entin’s opinion controlling
weight. In making this argument Plaintiff emphasizes that Dr. Entin is a treating
physician. However, it is not clear that Dr. Entin is a treating physician – but even if he
is, no error occurred.
It is true that a treating physician’s opinion is entitled to deference. This rule “is
premised, at least in part, on the notion that the treating physician is usually more
familiar with a claimant=s medical condition than are other physicians.@ Thomas v.
Sullivan, 928 F.2d 255, 259 n.3 (8th Cir. 1991) (citation omitted). Even if Dr. Entin took
over responsibility for Plaintiff’s medication and pain management in November 2008,
this did not transform him into a physician capable of ascertaining Plaintiff’s physical
capabilities. This point is reinforced by Dr. Entin’s own admission that he could not
complete portions of the form asking about Plaintiff’s physical abilities.

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Second, the law does not require automatic acceptance of a treating physician’s
opinion. A treating physician=s opinion may be disregarded if it is unsupported by
clinical or other data or is contrary to the weight of the remaining evidence in the record.
E.g., E.g., Anderson v. Astrue, 696 F.3d 790, 793-094 (8th Cir. 2012); Halverson v.
Astrue, 600 F.3d 922, 929-30 (8th Cir. 2010); Pena v. Chater, 76 F.3d 906, 908 (8th Cir.
1996). Dr. Entin performed no diagnostic tests to support his opinion (probably
because, as stated, Dr. Entin is a psychiatrist). Dr. Entin’s conclusions, formed after
approximately one year of treating Plaintiff, are also contradicted by the medical
evidence originating from all the other doctors who treated Plaintiff.
This leads to the third – and most important – reason the ALJ did not err. The
treating physician rule requires deference to a treating physican’s opinion over the
opinion of a non-treating physician. However, the ALJ in this case did not rely on the
opinions of non-treating physicians. At best, Plaintiff has established a difference in
opinion between various treating physicians. The treating physician rule does not
command deference to any particular treating physician, and Plaintiff offers no other
reason why the ALJ should have accepted Dr. Entin’s opinion over the other treating
doctors’ opinions. In other words, the treating physician does not dictate which treating
physician is owed deference.

B. Plaintiff’s Ability to Return to His Prior Work as a Telemarketer

Plaintiff argues the ALJ erred in finding that he could return to his past work as a
telemarketer. He first argues the ALJ failed to make specific findings about the
demands of Plaintiff’s work as a telemarketer. However, the ALJ is permitted to rely on
the testimony of a vocational expert regarding the demands of a claimant’s prior job and
whether a person with given limitations and capabilities can perform that job’s duties.
E.g., Flynn v. Astrue, 513 F.3d 788, 792 (8th Cir. 2008); 20 C.F.R. § 404.1560(b)(2).
Plaintiff also contends the VE’s testimony conflicts with the Dictionary of
Occupational Titles (“DOT”) because the duties of telemarketer conflict with a restriction
of no rapid pace or multi-tasking. The DOT states a telemarketer must “[a]pply
commonsense understanding to carry out instructions furnished in written, oral, or
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diagrammatic form” and must “deal with problems involving several concrete variables
in or from standardized situations.” Plaintiff contends the need to deal with several
variables exceeds the limitation to basic work-related decisions, but the ALJ’s written
order states Plaintiff “cannot tolerate a rapid pace or multi-tasking [but] can adjust to
changes in a routine work environment.” R. at 30. “Working with variables” seems
equivalent to “adjusting to changes in a routine work environment.” Ultimately, it is not
so clear that there is any inconsistency between the ALJ’s findings, the VE’s testimony,
and the DOT such that the ALJ’s decision lacks support from substantial evidence in the
Record.

C. Plaintiff’s Ability to Perform Other Work

Plaintiff also challenges the ALJ’s finding, consistent with the VE’s testimony, that
Plaintiff can perform other jobs in the national economy. This point is rendered moot by
the Court’s conclusions with respect to Plaintiff’s ability to work as a telemarketer, but
the Court will address it nonetheless.
Plaintiff first argues that the position of ticket seller is classified as “light work,”
and Plaintiff lacks the ability to stand that is required for the full range of light work.
However, Plaintiff’s inability to perform the full range of light work does not mean he
cannot perform particular jobs that are classified as “light” for reasons unrelated to
sitting and standing. It should also be noted the VE took Plaintiff’s limitations into
account when she testified the number of ticket selling positions available to Plaintiff
would have to be reduced.
Plaintiff next argues the ALJ failed to account for the need for a sit/stand option
with respect to the position of surveillance systems monitor. This was not erroneous
because there was no testimony that the number of available jobs would be eroded by
such a requirement. The Court further notes this position was described as sedentary
and not light. Plaintiff also reiterates his prior arguments regarding his mental ability to
perform this job, but for the reasons previously stated the Court rejects this argument.

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III. CONCLUSION

For these reasons, the Commissioner’s final decision is affirmed.

IT IS SO ORDERED.

/s/ Ortrie D. Smith
ORTRIE D. SMITH, SENIOR JUDGE
UNITED STATES DISTRICT COURT

DATE: August 26, 2013

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