Coffman v. Commissioner of Social Security
Filing
20
REPORT AND RECOMMENDATIONS re 3 Complaint filed by Terry L. Coffman. It is RECOMMENDED that the decision of the Commissioner be affirmed and that this action be dismissed. Objections to R&R due by 10/6/2014. Signed by Magistrate Judge Norah McCann King on 09/18/2014. (nmk0)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
TERRY L. COFFMAN,
Plaintiff,
vs.
Civil Action 2:13-cv-1037
Judge Graham
Magistrate Judge King
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §
405(g) for review of a final decision of the Commissioner of Social
Security denying plaintiff’s application for a period of disability
and disability insurance benefits.
This matter is now before the
Court on Plaintiff’s, Terry L. Coffman, Statement of Errors
(“Statement of Errors”), Doc. No. 14, and the Defendant’s Memorandum
in Opposition, Doc. No. 19.
I.
Plaintiff has not filed a reply.
Background
Plaintiff Terry L. Coffman filed his application for benefits on
August 5, 2010, alleging that he has been disabled since August 22,
2009.
PAGEID 170-78.
The application was denied initially and upon
reconsideration, and plaintiff requested a de novo hearing before an
administrative law judge.
An administrative hearing was held on May 12, 2012, at which
plaintiff, represented by counsel, appeared and testified, as did Dr.
Walter V. Walsh, who testified as a vocational expert.
PAGEID 40, 53.
In a decision dated July 20, 2012, the administrative law judge
concluded that plaintiff was not disabled from August 22, 2009, the
alleged disability onset date, through the date of the administrative
decision.
PAGEID 47-48.
That decision became the final decision of
the Commissioner of Social Security when the Appeals Council declined
review on August 14, 2013.
PAGEID 33.
Plaintiff was 49 years of age on the date of the administrative
law judge’s decision.
See PAGEID 48, 172.
He has at least a high
school education, is able to communicate in English, and has past
relevant work as a journeyman pressman, route truck driver, and hopper
feeder.
PAGEID 46.
Plaintiff meets the insured status requirements
of the Social Security Act through December 31, 2014.
PAGEID 42.
He
has not engaged in substantial gainful activity since August 22, 2009,
his alleged date of onset of disability.
II.
Id.
Medical Evidence
Plaintiff injured his back at work on August 7, 1992.
290, 297.
PAGEID
Since 1990, plaintiff has undergone three surgeries on his
lumbar spine.
PAGEID 301.
In 1993, plaintiff underwent a lumbosacral
fusion with plate and screws at L5-S1.
PAGEID 279.
In 2005,
orthopedic surgeon Daryl R. Sybert, D.O., performed a three-level
fusion from L3 to S1.
PAGEID 266, 441, 455.
In 2006, plaintiff
reported to Dr. Sybert that pain in the lower extremities and low back
had resolved.
PAGEID 266.
A January 19, 2007 MRI of the lumbar spine revealed postoperative
changes in the lower lumbar spine with fusion from L3 to S1 and fluid
2
collection along the posterior right lateral aspect of L4 and osterior
to L5 and L5/S1.
PAGEID 243-44.
The MRI also revealed mild
irregularity of the inferior T10 endplate posteriorly on the right
compatible with a small Schmorl’s node.
Id.
There was a small disc
protrusion into the left lateral recess at T10/T11 with flattening of
the ventral thecal sac left of the midline and moderate left lateral
recess narrowing.
Id.
Dr. Sybert treated plaintiff for complaints of thoracic pain in
2007.
PAGEID 260.
At that time, plaintiff “progress[ed] well” in
physical therapy for his thoracic spine disc herniation.
PAGEID 262.
A May 7, 2009 MRI of the thoracic spine showed mild/moderate
right-sided disc protrusion/herniation at T6-T7 with mild cord
impingement; mild to moderate right-sided disc protrusion/herniation
at T11-T12 with mild to moderate right foraminal stenosis; and no
significant interval change compared to plaintiff’s 2007 MRI.
PAGEID
241.
Plaintiff saw Dr. Sybert again on May 26, 2009 for thoracic pain.
Id.
On examination, plaintiff ambulated without an assistive device,
his gait was normal, he had normal strength and sensation in the lower
extremities, his reflexes were grade three in the patellar and grade
two in the Achilles, his plantar response was downgoing, and no clonus
was noted in the lower extremities.
PAGEID 260-61.
Dr. Sybert
recommended thoracic epidural injections of the thoracic spine. He
noted that plaintiff was not a surgical candidate.
3
Id.
Plaintiff saw Dr. Sybert again on February 2, 2010.
Clinical
exam revealed normal reflexes, normal strength in the lower
extremities, normal gait and station, no evidence of myelopathy, and
absent thoracic sensory level.
PAGEID 258-59.
Dr. Sybert again noted
that plaintiff was not a surgical candidate; he referred plaintiff to
Stephen T. Woods, M.D., for thoracic epidurals and physical therapy.
Id.
Plaintiff was evaluated by Arvin Gallanosa, M.D., on May 13,
2010.
PAGEID 300-03.
On examination, range of motion of the thoracic
spine on flexion was limited to 20 degrees, on left rotation to 20
degrees, and on right rotation to 20 degrees.
PAGEID 302.
Range of
motion of the lumbar spine on flexion was limited to 75 degrees, on
left lateral flexion to 30 degrees, and on right lateral flexion to 25
degrees.
Id.
Straight leg raising yielded low back pain bilaterally.
Id. Strength was 5/5 in the bilateral lower limbs throughout except
for the right extensor halluces longus, which was 4/5.
standing, gait, stance, and balance were intact.
Id.
Toe and heel
Dr. Gallanosa
opined that plaintiff had reached maximum medical improvement for his
lumbar conditions, with some pain, but that plaintiff was not
prevented from working.
Id.
Plaintiff had not reached maximum
medical improvement in connection with the thoracic herniated discs at
T6-T7 or T10-T11.
Id.
Dr. Gallanosa referred plaintiff to Dr. Woods
for thoracic epidural injections, physical therapy, and a TENS unit.
Id.
According to Dr. Gallanosa, plaintiff could not return to his
former employment, even with restrictions or modifications.
4
Id.
Dr.
Gallanosa further opined that plaintiff would be restricted for three
months in his abilities to lift, bend, twist/turn, reach below the
knee, push/pull, squat/kneel, stand/walk, sit, and lift above the
shoulders.
PAGEID 304.
Plaintiff saw Dr. Woods on March 10, 2010.
PAGEID 246-49.
On
examination, Dr. Woods found no significant limitation with truncal
range of motion, range of motion of the lumbar spine was limited on
flexion and extension, there was normal truncal sensation and normal
gait; plaintiff was able to walk on heels and toes and rise to a step
without difficulty or evidence of gross motor deficits.
PAGEID 247.
Ankle jerks were absent bilaterally but muscle stretch reflexes were
2+ and equal at the knees.
Id.
Dr. Woods noted nondermatomal
blunting in a patchy distribution over the feet.
Id.
Plaintiff had
full range of motion without pain in his hip and 5/5 strength in his
lower limbs.
PAGEID 248.
Dr. Woods assessed chronic mechanical
thoracic pain due to underlying thoracic disc protrusions most
prominent at T6-7 and T10-11 with pain pattern most consistent with
T6-7 level.
Id.
He recommended thoracic epidural steroid injections.
After three left T6 transforaminal epidural steroid injections,
plaintiff reported “subtle improvement” and endorsed “a toothache
sensation with increased activity.”
PAGEID 250.
recommended physical therapy and a TENS unit.
Dr. Woods then
PAGEID 251.
Plaintiff underwent 21 physical therapy sessions from July
through September 2010.
PAGEID 323, 458.
Plaintiff met his short
term goals: i.e., to lift 10 pounds overhead without pain and
5
push/pull 50 pounds.
PAGEID 458.
Plaintiff increased his lumbar
range of motion on rotation to 90 percent within normal limits
bilaterally, although he did not meet his goal of increasing his range
of motion on AROM lumbar flexion to 45 degrees and bilateral side
bending to 16 inches.
Id.
Plaintiff was prescribed a lumbosacral back brace on April 12,
2010,
PAGEID 305,
received a TENS unit, PAGEID 299, 327, and
underwent consistent treatment for medication management in 2010.
PAGEID 362-408.
medication.
Plaintiff frequently reported pain relief with
PAGEID 362-63 (December 2009: significant relief), 364
(January 2010: modest relief), 366 (February 2010: significant
relief), 368 (March 2010: “finds relief”), 370 (April 2010: “finds
relief from meds to be the best”), 372 (April 2010: same), 374 (May
2010: same), 379 (July 2010: “relief from meds, therapy”), 382 (August
2010: “finds relief from meds”), 404 (September 2010: “significant”
relief), 406 (October 2010: “finds relief from meds”), 408 (November
2010: same), 410 (December 2010: same).
Plaintiff has treated with Charles B. May, D.O., since at least
2005.
PAGEID 439.
A January 22, 2009 evaluation revealed tenderness
in the thoracic and lumbar spine with palpation, paraspinal muscle
tenderness, myospasms and trigger points, and decreased range of
motion in all planes of the thoracic and lumbar spine.
PAGEID 353-54.
Plaintiff had 5/5 strength in the lower extremities, his sensation was
intact, and straight leg raises were negative bilaterally.
Id.
Dr.
May noted similar findings on April 17, 2009, PAGEID 357 (although
6
also noting markedly decreased range of motion and positive straight
leg raise on the left while seated at 90 degrees), and on June 24,
2009.
PAGEID 315, 345-45.
Elizabeth Das, M.D., reviewed the record for the state agency
and, on October 28, 2010, opined that plaintiff was limited to
occasionally lifting and/or carrying 20 pounds, frequently lifting
and/or carrying 10 pounds, standing and/or walking for a total of six
hours in an eight-hour workday, and sitting for six hours in an eighthour workday.
PAGEID 108-09.
Plaintiff could frequently balance and
occasionally stoop, crouch, crawl, and climb ramps/stairs and
ladders/ropes/scaffolds.
PAGEID 109.
Maria Congbalay, M.D., another state agency physician, reviewed
the record and, on February 7, 2011, affirmed Dr. Das’s assessment.
PAGEID 120-21.
Plaintiff was again seen by Dr. Sybert on September 29, 2011.
PAGEID 461-63.
On examination, plaintiff was alert and oriented to
person, place, and time.
PAGEID 462.
Mood and affect were
appropriate, gait and station were normal, sensation was intact, deep
tendon reflexes were normal and symmetrical without pathologic
reflexes, coordination and balance were normal, and there were no long
tract signs noted.
PAGEID 462.
Plaintiff had full range of motion
without pain and normal muscle strength and tone in all extremities.
Id.
Plaintiff’s spinal exam revealed diffuse myofascial low back
pain, pain in the interscapular region bilaterally, and pain with
range of motion in all planes.
Dr. Sybert encouraged plaintiff
Id.
7
“to pursue permanent total disability as he will not be employable in
regards to any significant lifting, bending, or twisting job.”
463.
PAGEID
Dr. Sybert also opined that plaintiff could not go “back to a
light to sedentary job due to the mental/cognizant impairing effects
of his medications including antispasmodics as well as opioids.”
Id.
Dr. Sybert also stated that plaintiff “is permanently disabled.”
PAGEID 464.
Plaintiff was consultatively evaluated by Denise L. Davis, M.D.,
in connection with his Worker’s Compensation claim on July 8, 2011.
PAGEID 465.
On examination, plaintiff had 5/5 strength, muscle
stretch reflexes were 2+ with downgoing toes, and there was diminished
sensation to pinprick over the entire left leg, calf, and foot
compared to the right.
Plaintiff was able to heel walk with
difficulty and toe walk.
There was tenderness to palpation over the
lower thoracic paraspinal muscles.
Plaintiff’s flexion and extension
were both 20 degrees, lateral flexion was 15 degrees to the right and
20 degrees to the left.
Straight leg raise from a supine position was
positive for pain in the buttock at 20 degrees on the left and at 40
degrees on the right.
PAGEID 466.
According to Dr. Davis, plaintiff
had reached maximal medical improvement and no further treatment would
afford plaintiff a significant fundamental, functional, or
physiological change.
PAGEID 467.
Dr. Davis opined that plaintiff
could not return to his previous work as a truck driver and “is not
capable of any level of work.”
Id.
8
Plaintiff was also evaluated by Nancy Renneker, M.D., on March
19, 2008, in connection with his Workers’ Compensation claim.
361-61, 412.
PAGEID
According to Dr. Renneker, plaintiff has a 39 percent
whole person impairment for that claim.
Id.
Stephen Phillips, CRC,
CDMS, reviewed plaintiff’s Workers’ Compensation file and, on November
16, 2011, opined that plaintiff “is limited in his ability to compete
in today’s labor market” and that he “is a very unlikely candidate for
any sustained, remunerative employment.”
omitted).
PAGEID 469-73 (emphasis
An Ex Parte Order dated February 8, 2012, appears to award
plaintiff’s workers’ compensation attorney a lump sum advancement of
attorney fees for services rendered in securing an award of
compensation to plaintiff for permanent total disability.
See PAGEID
459.
III. Administrative Hearing
Plaintiff testified at the administrative hearing that, in
January 2012, he was determined to be permanently disabled by the
Bureau of Workers’ Compensation for a back injury of 20 years’
duration.
PAGEID 66.
Plaintiff had previously been awarded Social
Security benefits for a closed period of disability from 2004 to 2007
due to his back injury.
PAGEID 58.
Plaintiff returned to work as a
journeyman for a printer after that closed period, but that job ended
in August 2009 due to complications from his back injury.
PAGEID 67-
69, 80-81.
Plaintiff has undergone three surgeries to the lumbar spine and
he currently suffers from mid-thoracic back pain.
9
PAGEID 74-77.
He
experiences daily back pain: “[I]t’s like having a tooth ache” that
“aches all the time.”
PAGEID 83.
Plaintiff receives injection pain
therapy, but that treatment relieves his back pain only temporarily.
Id.
He rates his average back pain as six on a 10-point scale. PAGEID
83.
Plaintiff testified that he cannot work because of his back
injury; he has no other physical or mental problems that would prevent
him from working.
PAGEID 74, 79.
He cannot twist, turn, or bend and
he cannot lift his arms above his shoulders without discomfort.
PAGEID 77-78.
sleeping.
Plaintiff’s back problems also cause difficulty
PAGEID 81-82.
He can stand for 15 minutes at a time, sit
for 30 minutes, walk one block, and lift one gallon of milk.
83-84.
PAGEID
Plaintiff testified that one of his medications makes him
sleepy, so he tries to take it before going to bed.
PAGEID 81.
Plaintiff lives in a two story house; he climbs the 15 steps to
the second floor about three times a day.
PAGEID 64-65.
household chores and needs assistance in personal care.
He does no
PAGEID 85-87.
He drives no more than three times a week, PAGEID 65, and he
occasionally accompanies his wife to the store.
a back brace when he leaves his house.
PAGEID 85.
He wears
PAGEID 59-62.
The vocational expert was asked to assume a claimant with
plaintiff’s vocational profile and the residual functional capacity
(“RFC”) eventually found by the administrative law judge.
91.
PAGEID 90-
According to the vocational expert, such an individual could not
perform plaintiff’s past relevant work as a journeyman, route truck
10
driver, or hopper feeder, but could perform such jobs as cleaner,
assembly worker, and inspection worker.
IV.
PAGEID 88-91
Administrative Decision
The administrative law judge found that plaintiff’s severe
impairments consist of thoracic disc herniation at T6-7 and T10-11,
status post lumbar spinal fusion from L3 to S1, radiculopathy, and
spondylosis.
PAGEID 42.
The administrative law judge also found that
plaintiff’s impairments neither meet nor equal a listed impairment and
leave plaintiff with the RFC to
perform light work as defined in 20 CFR 404.1567(b) except
[that he] can occasionally stoop, kneel, crouch, crawl, and
climb ramps and stairs, but [he can] never climb ladders,
ropes, or scaffolds. He can frequently balance. Further,
the claimant must avoid exposure to hazards such as working
around
dangerous
moving
machinery
and
working
at
unprotected heights.
PAGEID 42-43.
Although this RFC precludes the performance of
plaintiff’s past relevant work as a journeyman, route truck driver,
and hopper feeder, the administrative law judge relied on the
testimony of the vocation expert to find that plaintiff is
nevertheless able to perform a significant number of jobs in the
national economy.
PAGEID 46-47.
Accordingly, the administrative law
judge concluded that plaintiff was not disabled within the meaning of
the Social Security Act from August 22, 2009, through the date of the
administrative decision.
V.
PAGEID 47-48.
Discussion
Pursuant to 42 U.S.C. § 405(g), judicial review of the
Commissioner’s decision is limited to determining whether the findings
11
of the administrative law judge are supported by substantial evidence
and employed the proper legal standards.
Richardson v. Perales, 402
U.S. 389 (1971); Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595
(6th Cir. 2005).
Substantial evidence is more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.
See Buxton v. Haler, 246 F.3d 762, 772 (6th Cir. 2001); Kirk v. Sec’y
of Health & Human Servs., 667 F.2d 524, 535 (6th Cir. 1981).
This
Court does not try the case de novo, nor does it resolve conflicts in
the evidence or questions of credibility.
See Brainard v. Sec’y of
Health & Human Servs., 889 F.2d 679, 681 (6th Cir. 1989); Garner v.
Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
In determining the existence of substantial evidence, this
Court must examine the administrative record as a whole.
F.2d at 536.
Kirk, 667
If the Commissioner's decision is supported by
substantial evidence, it must be affirmed even if this Court would
decide the matter differently, see Kinsella v. Schweiker, 708 F.2d
1058, 1059 (6th Cir. 1983), and even if substantial evidence also
supports the opposite conclusion.
Longworth, 402 F.3d at 595.
In his Statement of Errors, plaintiff contends that the
administrative law judge improperly evaluated the medical evidence of
record.
Plaintiff specifically argues that the administrative law
judge failed to follow the treating physician rule when evaluating Dr.
Sybert’s opinion and improperly evaluated the consultative opinion of
Dr. Davis.
Statement of Errors, pp. 4-6.
12
The opinion of a treating provider must be given controlling
weight if that opinion is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and is “not
inconsistent with the other substantial evidence in [the] case
record.”
20 C.F.R. § 404.1527(c)(2).
Even if the opinion of a
treating provider is not entitled to controlling weight, an
administrative law judge is nevertheless required to determine how
much weight should be given to the opinion by considering such factors
as the length, nature and extent of the treatment relationship, the
frequency of examination, the medical specialty of the treating
physician, the extent to which the opinion is supported by the
evidence, and the consistency of the opinion with the record as a
whole.
20 C.F.R. § 404.1527(c)(2)-(6); Blakley v. Comm’r of Soc.
Sec., 581 F.3d 399, 406 (6th Cir. 2009); Wilson v. Comm’r of Soc.
Sec., 378 F.3d 541, 544 (6th Cir. 2004).
Moreover, an administrative
law judge must provide “good reasons” for discounting the opinion of a
treating provider, i.e., reasons that are “‘sufficiently specific to
make clear to any subsequent reviewers the weight the adjudicator gave
to the treating source’s medical opinion and the reasons for that
weight.’”
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir.
2007) (quoting SSR 96-2p, 1996 WL 374188, at *5 (July 2, 1996)).
special treatment afforded to the opinions of treating providers
recognizes that
“these sources are likely to be the medical professionals
most able to provide a detailed, longitudinal picture of
[the claimant’s] medical impairment(s) and may bring a
13
This
unique perspective to the medical evidence that cannot be
obtained from the objective medical findings alone or from
reports of individual examinations, such as consultative
examinations or brief hospitalizations.”
Wilson, 378 F.3d at 544 (quoting 20 C.F.R. § 404.1527(d)(2)).
Dr. Sybert performed a three-level fusion from L3 to S1 in
2005.
PAGEID 266, 441, 455.
Plaintiff thereafter treated with Dr.
Sybert at least eight times between November 2005 and September 2011.
PAGEID 461-63, 259-77.
On September 29, 2011, Dr. Sybert encouraged
plaintiff “to pursue permanent total disability as he will not be
employable in regards to any significant lifting, bending, or twisting
job.”
PAGEID 463.
Dr. Sybert also noted that plaintiff is precluded
“from going back to a light to sedentary job due to the
mental/cognizant impairing effects of his medications including
antispasmodics as well as opioids.”
Id.
On September 29, 2011, Dr.
Sybert opined that plaintiff “is permanently disabled.”
Dr. Davis evaluated plaintiff on July 8, 2011.
PAGEID 464.
PAGEID 465.
According to Dr. Davis, plaintiff had reached maximal medical
improvement and no further treatment would afford plaintiff a
significant fundamental, functional, or physiological change.
467.
PAGEID
Dr. Davis opined that plaintiff could not return to his previous
work as a truck driver and “is not capable of any level of work.”
The administrative law judge evaluated the opinions of Dr.
Sybert and Dr. Davis as follows:
Dr. Sybert and Dr. Davis opined that the claimant cannot
work on July 8, 2011 and September 29, 2011, respectively
(Exhibits B-12F, 6, 9).
Statements that a claimant is
“disabled”, “unable to work”, can or cannot perform a past
14
Id.
job, meets a Listing or the like are not medical opinions
but are administrative findings dispositive of a case,
requiring familiarity with the Regulations and legal
standards set forth therein.
Such administrative findings
are reserved to the Commissioner, who cannot abdicate his
statutory responsibility to determine the ultimate issue of
disability.
These opinions can never be entitled to
controlling weight, but must be carefully considered to
determine the extent to which they are supported by the
record as a whole or contradicted by persuasive evidence
(20 CFR 404.1527; SSR 96-5p).
The undersigned finds Dr.
Sybert’s opinion is inconsistent with his finding on
September 29, 2011, that the claimant has normal gait,
normal station, and normal upper and lower extremities
(Exhibit B-12F, 3-5).
Likewise, Dr. Davis’s opinion is
inconsistent with her findings that the claimant has full
muscle strength despite some moderate thoracic back pain
(Exhibit B-12F, 7-10).
Therefore, no weight is given to
the unsupported, general findings provided by Dr. Davis and
Dr. Sybert.
PAGEID 45.
The administrative law judge’s analysis is sufficiently
specific as to the weight given to Dr. Sybert’s opinion and the
reasons for assigning that weight.
Under the circumstances, a
formulaic recitation of factors is not required.
See Friend v. Comm’r
of Soc. Sec., 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.”).
Further, the administrative law judge’s reasons for assigning no
weight to Dr. Sybert’s opinion are supported by substantial evidence.
Dr. Sybert’s opinion that plaintiff “will not be employable in regards
to any significant lifting, bending, or twisting job,” that plaintiff
15
is precluded “from going back to a light to sedentary job due to the
mental/cognizant impairing effects of his medications including
antispasmodics as well as opioids,” and that plaintiff “is permanently
disabled,” PAGEID 463-64, are “tantamount to a disability opinion, a
matter reserved to the Commissioner for determination.”
See Sims v.
Comm’r of Soc. Sec., 406 F. App’x 977, 980 n.1 (6th Cir. 2011).
See
also Payne v. Comm’r of Soc. Sec., 402 F. App’x 109, 112 (6th Cir.
2010) (“The applicable regulations provide that a statement by a
medical source that the claimant is ‘unable to work’ is not a ‘medical
opinion[;] rather, it is an opinion on an ‘issue[] reserved to the
Commissioner because [it is an] administrative finding[] that [is]
dispositive of a case, i.e., that would direct the determination or
decision of disability.’”) (quoting 20 C.F.R. § 404.1527(e)(1)).
Moreover, to the extent that Dr. Sybert’s opinion could be construed
to be a medical opinion about limitations in lifting, bending, or
twisting or based on mental/cognizant impairing effects of medication,
such limitations are not supported by Dr. Sybert’s September 29, 2011
treatment notes, which show a normal neurological examination.
PAGEID 461-63.
See
As noted by the administrative law judge, see PAGEID
45, a significant limitation in lifting, bending, or twisting could be
inconsistent with Dr. Sybert’s finding that plaintiff has a normal
gait, normal station, and normal upper and lower extremities.
is also no suggestion of any mental limitations in Dr. Sybert’s
treatment notes.
See PAGEID 462-43.
16
There
As a one-time consultative examiner, Dr. Davis is properly
classified as a nontreating source.
See 20 C.F.R. § 404.1502
(“Nontreating source means a physician, psychologist, or other
acceptable medical source who has examined [the claimant] but does not
have, or did not have, an ongoing treatment relationship with [the
claimant].”).
In considering the opinion of a nontreating source “the
agency will simply ̔[g]enerally [] give more weight to the opinion of
a source who has examined [the claimant] than to the opinion of a
source who has not examined’[the claimant].”
Ealy v. Comm’r of Soc.
Sec., 594 F.3d 504, 514 (6th Cir. 2010) (quoting 20 C.F.R. §
404.1527(d)(1)).
See also Smith v. Comm’r of Soc. Sec., 482 F.3d 873,
875 (6th Cir. 2007).
In determining how much weight to give the
opinion of a nontreating source, an administrative law judge should
still “consider factors including the length and nature of the
treatment relationship, the evidence that the physician offered in
support of her opinion, how consistent the opinion is with the record
as a whole, and whether the physician was practicing in her
specialty.”
Ealy, 594 F.3d at 514 (citing 20 C.F.R. § 404.1527(d)).
The administrative law judge’s analysis is sufficiently specific
as to the weight given to Dr. Davis’s opinion and the reasons for that
assignment.
It is also apparent that the administrative law judge
considered the appropriate factors in evaluating Dr. Davis’s opinion.
Plaintiff argues that Dr. Davis’s opinion that plaintiff is
“permanently totally disabled” should have been given greater weight:
“For the ALJ to dismiss Dr. Davis’s very well written opinion I think
17
is an error.
Dr. Davis examined Mr. Coffman on behalf of the Ohio
Bureau of Workers’ Compensation as an Independent Industrial
Commission’s Specialist.
She found Mr. Coffman to be permanently
totally disabled and hence benefits were awarded.
She is a medical
doctor and I have no idea why the ALJ would discount her opinion.”
Statement of Errors, p. 6.
However, as noted supra, opinions of
disability are reserved to the Commissioner.
at 112.
See Payne, 402 F. App’x
Moreover, the Commissioner is not bound by a determination of
disability made by the State of Ohio.
20 C.F.R. § 404.1504 (“[A]
determination made by another agency that you are disabled or blind is
not binding on us.”).
Plaintiff next argues that the administrative law judge erred in
relying on the testimony of the vocational expert.
Errors, pp. 7-9.
Statement of
Plaintiff specifically argues that the
administrative law judge erred by “choos[ing] what answers he wanted
to take from the vocational expert and not tak[ing] the vocational
experts [sic] testimony as a whole.”
Id. at p. 9.
“In order for a vocational expert's testimony in response to a
hypothetical question to serve as substantial evidence in support of
the conclusion that a claimant can perform other work, the question
must accurately portray a claimant’s physical and mental impairments.”
Ealy, 594 F.3d at 516.
“Hypothetical questions, however, need only
incorporate those limitations which the [administrative law judge] has
accepted as credible.”
Parks v. Soc. Sec. Admin., 413 F. App’x 856,
18
865 (6th Cir. 2010) (citing Casey v. Sec. of Health & Human Servs.,
987 F.2d 1230, 1235 (6th Cir. 1993)).
The administrative law judge found that plaintiff has the RFC to
perform light work as defined in 20 CFR 404.1567(b) except
can occasionally stoop, kneel, crouch, crawl, and climb
ramps and stairs, but never climb ladders, ropes, or
scaffolds.
He can frequently balance.
Further, the
claimant must avoid exposure to hazards such as working
around
dangerous
moving
machinery
and
working
at
unprotected heights.
PAGEID 42-43. The administrative law judge asked the vocational expert
to assume a claimant with plaintiff’s vocational profile who is
limited to light exertion and who “would be limited to the light
exertional level, would be unable to climb ladders, ropes, or
scaffolds, could occasionally climb ramps and stairs, could
occasionally stoop, kneel, crouch, and crawl.
balance.
Could frequently
Would also need to avoid hazards such as unprotected heights
and working around moving machinery.”
PAGEID 90-91.
The vocational
expert responded that such a claimant could not perform plaintiff’s
past relevant work, but could perform such jobs as cleaner, assembly
worker, and inspection worker.
PAGEID 91.
The administrative law
judge relied on this portion of the vocational expert’s testimony in
determining that plaintiff can perform a significant number of jobs
that exist in the national economy, even though he could not his past
relevant work.
PAGEID 46-47.
It is plaintiff’s position that the administrative law judge
erred in not accepting the vocational expert’s testimony in response
to hypotheticals containing alternative and additional limitations.
19
Statement of Errors, pp. 8-9.
It is true that the administrative law
judge and plaintiff’s counsel posed different hypotheticals to the
vocational expert, which contained different functional limitations.
See PAGEID 91-96.
Nevertheless, the administrative law judge relied
only on the hypothetical posed to the vocational expert that included
all of the limitations contained in the RFC eventually found by the
administrative law judge.
The administrative law judge therefore did
not err in relying on the vocational expert’s testimony in this
regard.
See Parks, 413 F. App’x at 865 (“In order for a vocational
expert's testimony in response to a hypothetical question to serve as
substantial evidence in support of the conclusion that a claimant can
perform other work, the question must accurately portray a claimant's
physical and mental impairments. . . .
Hypothetical questions,
however, need only incorporate those limitations which the ALJ has
accepted as credible.”) (internal citations and quotations omitted).
Plaintiff also challenges the administrative law judge’s
credibility determination.
Statement of Errors, p. 9.
Plaintiff
specifically argues that the administrative law judge erred in his
credibility determination because plaintiff has undergone significant
treatment for his back injury and has an excellent work history.
Id.
A claimant's subjective complaints must be supported by objective
medical evidence in order to serve as a basis for a finding of
disability.
423(d)(5)(A).
Casey, 987 F.2d at 1234.
See also 42 U.S.C. §
In evaluating subjective complaints, it must be
determined whether there is objective medical evidence of an
20
underlying medical condition.
Stanley v. Sec’ of Health & Human
Servs., 39 F.3d 115, 117 (6th Cir. 1994).
If so, then the evaluator
must determine (1) whether objective medical evidence confirms the
severity of the complaint arising from the condition; or (2) whether
the objectively established medical condition is of such severity that
it can reasonably be expected to produce the alleged complaint.
Id.;
Duncan v. Sec’y of Health & Human Servs., 801 F.2d 847, 853 (6th Cir.
1986).
The administrative law judge’s credibility determination is
accorded great weight and deference because of the administrative law
judge’s unique opportunity to observe a witness's demeanor while
testifying.
Buxton v. Halter, 246 F.3d 762, 773 (6th Cir. 2001)
(citing Gaffney v. Bowen, 825 F.2d 98, 973 (6th Cir. 1987)).
credibility determinations must be clearly explained.
However,
See Auer v.
Sec’y of Health & Human Servs., 830 F.2d 594, 595 (6th Cir. 1987).
If
the administrative law judge's credibility determinations are
explained and enjoy substantial support in the record, a court is
without authority to revisit those determinations.
See Felisky v.
Bowen, 35 F.3d 1027, 1036 (6th Cir. 1994); Beavers v. Sec’y of Health,
Educ. & Welfare, 577 F.2d 383, 386–87 (6th Cir. 1978).
In the case presently before the Court, the administrative law
judge found that plaintiff’s “statements concerning the intensity,
persistence and limiting effects of [his] symptoms are not credible to
the extent they are inconsistent with the [RFC] assessment.”
44.
PAGEID
In making this determination, the administrative law judge
21
evaluated the evidence and found that “the longitudinal medical
evidence does not support the existence of the extreme symptoms and
functional limitations alleged by the claimant.”
Id.
The
administrative law judge also found, inter alia, that, “based on the
numerous normal strength and gait findings, and considering the
reports of reduced range of motion of the lumbosacral spine, . . . the
objective medical evidence is fully consistent with the [RFC
assessment] and inconsistent with the claimant’s allegations of
disabling symptoms.”
PAGEID 45.
The administrative law judge noted
and followed the appropriate standards, performed an appropriate
evaluation of the evidence, and clearly articulated the bases of his
credibility determination.
The analysis and credibility determination
of the administrative law judge enjoy substantial support in the
record.
The Court will not – and indeed may not - revisit that
credibility determination.
See Jones v. Comm’r of Soc. Sec., 336 F.3d
469, 476 (6th Cir. 2003).
Having carefully considered the entire record in this action,
the Court concludes that the decision of the Commissioner is supported
by substantial evidence.
It is therefore RECOMMENDED that the
decision of the Commissioner be AFFIRMED and that this action be
DISMISSED.
If any party seeks review by the District Judge of this Report
and Recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the Report and Recommendation,
specifically designating this Report and Recommendation, and the part
22
thereof in question, as well as the basis for objection thereto.
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
28
Response to objections
must be filed within fourteen (14) days after being served with a copy
thereof.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that failure to object to
the Report and Recommendation will result in a waiver of the right to
de novo review by the District Judge and of the right to appeal the
decision of the District Court adopting the Report and Recommendation.
See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Detroit Fed’n of
Teachers, Local 231 etc., 829 F.2d 1370 (6th Cir. 1987); United States
v. Walters, 638 F.2d 947 (6th Cir. 1981).
September 18, 2014
s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge
23
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