Sullivan v. Social Security Administration, Commissioner of (PLR1)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 3/21/18. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT GREENEVILLE
ERIN COLLEEN SULLIVAN,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.
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No. 2:16-CV-361-HBG
MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the
Federal Rules of Civil Procedure, and the consent of the parties [Doc. 18]. Now before the Court
is Plaintiff’s Motion for Judgement on the Pleadings and Memorandum in Support [Docs. 19 &
20] and Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 21 &
22]. Erin Colleen Sullivan (“Plaintiff”) seeks judicial review of the decision of the Administrative
Law Judge (“the ALJ”), the final decision of Defendant Nancy A. Berryhill, Acting Commissioner
of Social Security (“the Commissioner”). For the reasons that follow, the Court will DENY
Plaintiff’s motion and GRANT the Commissioner’s motion.
I.
PROCEDURAL HISTORY
On July 16, 2013, Plaintiff filed an application for disability insurance benefits pursuant to
Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq., claiming a period of disability that
began December 16, 2009. [Tr. 37, 112-13]. After her application was denied initially and upon
1
During the pendency of this case, Nancy A. Berryhill replaced Acting Commissioner
Carolyn W. Colvin. Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is
substituted as the Defendant in this case.
reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 67]. A hearing was held on
April 23, 2015. [Tr. 23-41]. On May 27, 2015, the ALJ found that Plaintiff was not disabled. [Tr.
11-18]. The Appeals Council denied Plaintiff’s request for review [Tr. 2-4], making the ALJ’s
decision the final decision of the Commissioner.
Having exhausted her administrative remedies, Plaintiff filed a Complaint with this Court
on December 6, 2016, seeking judicial review of the Commissioner’s final decision under Section
405(g) of the Social Security Act. [Doc. 1]. The parties have filed competing dispositive motions,
and this matter is now ripe for adjudication.
II.
ALJ FINDINGS
The ALJ made the following findings:
1. The claimant has not engaged in substantial gainful activity since
July 16, 2013, the application date (20 CFR 416.971 et seq.).
2. The claimant has the following medically determinable
impairments: complex regional pain syndrome of the lower
extremity; degenerative disc disease; arthritis; migraines; obesity;
depression; and anxiety (20 CFR 416.921 et seq.).
3. The claimant does not have an impairment or combination of
impairments that has significantly limited (or is expected to
significantly limit) the ability to perform basic work-related
activities for 12 consecutive months; therefore, the claimant does
not have a severe impairment or combination of impairments. (20
CFR 416.921 et seq.).
4. The claimant has not been under a disability, as defined in the
Social Security Act, since July 16, 2013, the date the application
was filed (20 CFR 416.920(c)).
[Tr. 13-17].
III.
STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled
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pursuant to 42 U.S.C. § 405(g), the Court is limited to determining whether the ALJ’s decision
was reached through application of the correct legal standards and in accordance with the
procedure mandated by the regulations and rulings promulgated by the Commissioner, and
whether the ALJ’s findings are supported by substantial evidence. Blakley v. Comm’r of Soc. Sec.,
581 F.3d 399, 405 (6th Cir. 2009) (citation omitted); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541,
544 (6th Cir. 2004).
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.”
Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994) (citations omitted). It
is immaterial whether the record may also possess substantial evidence to support a different
conclusion from that reached by the ALJ, or whether the reviewing judge may have decided the
case differently. Crisp v. Sec’y of Health & Human Servs., 790 F.2d 450, 453 n.4 (6th Cir. 1986).
The substantial evidence standard is intended to create a “‘zone of choice’ within which the
Commissioner can act, without the fear of court interference.” Buxton v. Halter, 246 F.3d 762,
773 (6th Cir. 2001) (quoting Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Therefore, the
Court will not “try the case de novo, nor resolve conflicts in the evidence, nor decide questions of
credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984) (citation omitted).
On review, “bears the burden of proving his entitlement to benefits.” Boyes v. Sec’y. of
Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994) (citation omitted).
IV.
DISABILITY ELIGIBILITY
“Disability” is the inability “to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve months.”
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42 U.S.C. § 1382c(a)(3)(A). A claimant will only be considered disabled:
if his physical or mental impairment or impairments are of such
severity that he is not only unable to do his previous work but
cannot, considering his age, education, and work experience, engage
in any other kind of substantial gainful work which exists in the
national economy, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy
exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Disability is evaluated pursuant to a five-step analysis summarized as follows:
1. If claimant is doing substantial gainful activity, he is not disabled.
2. If claimant is not doing substantial gainful activity, his
impairment must be severe before he can be found to be disabled.
3. If claimant is not doing substantial gainful activity and is
suffering from a severe impairment that has lasted or is expected to
last for a continuous period of at least twelve months, and his
impairment meets or equals a listed impairment, claimant is
presumed disabled without further inquiry.
4. If claimant’s impairment does not prevent him from doing his
past relevant work, he is not disabled.
5. Even if claimant’s impairment does prevent him from doing his
past relevant work, if other work exists in the national economy that
accommodates his residual functional capacity (“RFC”) and
vocational factors (age, education, skills, etc.), he is not disabled.
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520).
The claimant bears the burden of proof at the first four steps. Walters, 127 F.3d at 529.
The burden shifts to the Commissioner at step five. Id. At the fifth step, the Commissioner must
prove that there is work available in the national economy that the claimant could perform. Her
v. Comm’r of Soc. Sec., 203 F.3d 388, 391 (6th Cir. 1999) (citing Bowen v. Yuckert, 482 U.S. 137,
146 (1987)).
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V.
ANALYSIS
Plaintiff argues that the ALJ erred at step two when he concluded that Plaintiff’s Complex
Regional Pain Syndrome (“CRPS”)2 of the lower extremity is not a severe impairment. [Doc 20
at 8-9]. Plaintiff contends that the ALJ’s consideration of the opinion of treating physician Wendy
Gray, M.D., and Plaintiff’s credibility was also erroneous and further undermines the ALJ’s step
two finding. [Id. at 9-14].
At step two, “the ALJ must find that the claimant has a severe impairment or impairments”
to be found disabled. Farris v. Sec’y of Health & Human Servs., 773 F.2d 85, 88 (6th Cir. 1985).
To be severe, an impairment or combination of impairments must “significantly limit[] your
physical or mental ability to do basic work activities.” 20 C.F.R. § 416.920(c). Step two has been
described as “a de minimis hurdle” in that “an impairment will be considered not severe only if it
is a slight abnormality that minimally affects work ability regardless of age, education, and
experience.” Higgs v. Brown, 880 F.2d 860, 862 (6th Cir. 1988) (citing Farris, 773 F.2d at 90).
“The mere diagnosis of [an ailment] . . . says nothing about the severity of the condition.” Id. at
863. Rather, the claimant must “produce or point to some evidence that indicates that an alleged
impairment impacts his ability to perform basic work activities.” Johnson v. Astrue, No. 3:09-CV317, 2010 WL 2803579, at *5 (E.D. Tenn. June 30, 2010), adopted by, No. 3:09-CV-317, 2010
WL 2836137 (E.D. Tenn. July 15, 2010) (emphasis in the original).
2
CRPS, also known as Reflux Sympathetic Dystrophy Syndrome, is a unique clinical
syndrome that typically develops following trauma to a bone or soft tissue and is characterized by
complaints of intense pain and signs of autonomic dysfunction. Soc. Sec. Rul. 03-2P, 2003
WL22399117, at *1 (Oct. 20, 2003). “It is characteristic of this syndrome that the degree of pain
reported is out of proportion to the severity of the injury sustained by the individual.” Id.
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Plaintiff was diagnosed with CRPS following an incident in December 2009 when she
rolled her ankle. [Tr. 304, 486, 509]. Plaintiff’s injury has necessitated numerous treatment for
complaints of pain. Specifically, Plaintiff received lumbar nerve blocks and epidural injections
between May 2010 and February 2011 [Tr. 407-56], a battery nerve stimulator in August 2011 [Tr.
233], and two spinal cord simulator leads installed for a trial period in September 2014 [Tr. 56469]. During the relevant period under review and up until her September 2014 trial spinal cord
stimulator, Plaintiff’s pain control varied. Plaintiff experienced periods of improvement where
her pain appeared well-managed and she was able to continue attending her college classes [Tr.
310, 403-05], and periods where Plaintiff complained that her medication was not working and
reported uncontrolled pain, generalized achiness and feeling ill, and instances of migraines that
improved with medication [Tr. 371-73, 379-82, 402, 464, 466, 468].
In December 2014, however, Plaintiff reported improvement following her September
2014 trial spinal cord stimulator. [Tr. 542]. Specifically, Plaintiff reported greater than 50% pain
relief. [Id.]. As a result, Plaintiff underwent surgery for a permanent spinal cord stimulator with
paddle leads and an implantable pulse generator in December 2014. [Tr. 540, 546-47]. Two days
post-operative, Plaintiff reported that her pain was well controlled, neurologically she remained
stable, and she ambulated well without assistance. [Tr. 541].
The record includes opinions from non-examining state agency physicians, as well as an
undated opinion by Plaintiff’s treating physician, Dr. Gray. As to the opinions of the state agency
physicians, Carol Lemeh, M.D., reviewed Plaintiff’s medical records in September 2013 at the
initial level of the administrative proceedings and determined that Plaintiff’s impairment was
severe but the physical evidence on file was insufficient to assess the severity of Plaintiff’s
functioning, and that a comprehensive musculoskeletal examination was recommended to
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adequately assess Plaintiff’s claim of disability. [Tr. 46]. At the reconsideration level in January
2014, a second state agency physician, Frank Pennington, M.D., reviewed Plaintiff’s medical
records and found Plaintiff’s impairment was non-severe but agreed with Dr. Lemeh that there was
insufficient evidence to assess Plaintiff’s functioning. [Tr. 55, 57]. Dr. Pennington explained that
agency forms regarding work history and activities of daily living were sent to Plaintiff in
December 2013 but never returned despite several attempts by the agency to contact Plaintiff and
a third party. [Tr. 55-56]. Because Plaintiff failed to cooperate with requests for additional
evidence, Dr. Pennington concluded that a consultative examination was no longer required and
there was insufficient evidence to support Plaintiff’s claim of disability. [Id.].
With regard to Dr. Gray’s opinion, Dr. Gray expressed that Plaintiff’s CRPS significantly
impaired her range of motion in her right leg, including her ankle, knee, and hip joints. [Tr. 462].
In addition, Plaintiff was described as having marked increase in pain of the right leg with weight
bearing and difficulty balancing, necessitating the use of a cane. [Id.]. Dr. Gray explained that
despite treatment consisting of pain medication, nerve blocks, TENS units, a sciatic nerve
stimulator, and physical therapy, Plaintiff’s pain response had been inadequate, and she would
likely continue with this lifelong “disability” unless future treatment, such as a nerve ablation, was
successful. [Id.].
Although Dr. Gray’s opinion is undated, the record suggests that it predates Plaintiff’s
September 2014 spinal cord stimulator trial and subsequent surgery as Dr. Gray discussed all of
Plaintiff’s treatment except her implantation. [Id.]. In addition, Dr. Gray commented that
Plaintiff’s “disability” may be chronic unless future treatment, such as a nerve ablation, was
successful, and that Plaintiff “is consulting a neurosurgeon for a medical treatment of that nature.”
[Id.]. Moreover, the last treatment note of record with Dr. Gray is dated May 13, 2014. [Tr. 463].
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In the disability determination, the ALJ discussed Plaintiff’s history of CRPS, beginning
in 2009 when Plaintiff sustained her ankle injury, through December 2014, when Plaintiff
underwent surgery for placement of a permanent spinal cord stimulator. [Tr. 15]. Based on the
instances in which Plaintiff reported her pain was controlled with her medication regimen and a
successful spinal cord stimulator trial and permanent implantation, the ALJ concluded the
Plaintiff’s CRPS was not severe. [Tr. 15, 17]. In reaching this conclusion, the ALJ considered the
opinion evidence of record. [Tr. 16-17]. As to the state agency physicians, the ALJ agreed with
their assessment that the record contained insufficient functional information, and therefore,
Plaintiff did not have a severe impairment or combination of impairments. [Id.]. The ALJ also
considered Dr. Gray’s opinion, noting that she opined that Plaintiff’s CRPS rendered her disabled
and that her impairment was likely a lifelong condition unless future treatment was successful.
[Tr. 16]. The ALJ determined that Dr. Gray’s opinion was an administrate finding reserved to the
Commissioner. [Id.].
Plaintiff avers that her testimony regarding the pain caused by her CRPS, her medical
history and treatment, and Dr. Gray’s opinion demonstrate that her impairment passes the de
minimis hurdle. [Doc. 20 at 8-9]. The Court finds that Plaintiff’s own interpretation of the evidence
is insufficient to undermine the ALJ’s decision. The medical evidence demonstrates that the
severity of Plaintiff’s CRPS is, at best, unclear as the medical evidence demonstrates various
instances in which Plaintiff reported doing well and instances in which her pain was
unmanageable. Although Plaintiff testified that her spinal cord stimulator did not improve her
pain, medical records reveal that her trial period provided a 50% reduction in pain, and Plaintiff
reported doing well immediately following surgery for permanent implantation. Notably, no
further treatment records were submitted to substantiate Plaintiff’s allegations that her pain did not
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improve thereafter. Thus, the record presents a conflict in the evidence as to the severity of the
Plaintiff’s CRPS, and the regulations promulgated by the Commissioner tasks the ALJ, alone, with
resolving such conflicts. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984) (“This Court may
not try the case de novo, nor resolve conflicts in evidence, nor decide questions of credibility.”)
(citation omitted).
The ALJ, of course, did not rely on his own lay interpretation of the medical evidence but
relied on the opinions of Dr. Lemeh and Dr. Pennington. Their opinions provide substantial
evidence in which the ALJ could rely upon in determining that Plaintiff’s CRPS was not a severe
impairment. See 20 C.F.R. § 416.927(e)(2)(i) (State agency medical physicians “are highly
qualified physicians . . . who are also experts in Social Security disability evaluation.”); Soc. Sec.
Rul. 96-6p, 1996 WL 374180, at *3 (1996) (“In appropriate circumstances, opinions from State
agency medical and psychological consultants and other program physicians and psychologists
may be entitled to greater weight than the opinions of treating or examining sources.”).
Plaintiff suggests that their observations that Plaintiff failed to return appropriate forms are
insufficient to overcome a showing that Plaintiff’s CRPS is a severe impairment. [Doc. 20 at 1112].
However, Plaintiff bears the burden at step two and her failure to supply requested
information was appropriately considered. See 20 C.F.R. § 416.916 (“When you fail to cooperate
with us in obtaining evidence, we will have to make a decision based on information available in
your
case.”);
see
also
Program
Operations
Manual
System
DI.
23007.005,
http://policy.ssa.gov/poms.nsf/lnx/0423007005 (last visited March 13, 2018) (“If the claimant fails
to cooperate [with requests to the claimant for evidence], you may discontinue development that
requires claimant action (e.g., consultative examinations and claimant forms completion). You
must . . . make a disability determination based on the evidence in file.”).
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Plaintiff additionally argues that Dr. Gray offered more than a conclusory opinion that
Plaintiff’s CRPS is disabling, as found by the ALJ, but provided a detailed description of the
Plaintiff’s impairment and the pain and limitations she suffers as a result. [Doc. 20 at 9-11]. The
Court observes that “[m]edical opinions are statements from physicians and psychologists or other
acceptable medical sources that reflect judgments about the nature and severity of your
impairment(s), including your symptoms, diagnosis and prognosis, what you can still do despite
impairment(s), and your physical or mental restrictions.” 20 C.F.R. § 416.927(a)(2). Statements
that a claimant is “disabled” or “unable to work,” however, are not considered medical opinions
but are findings on issues reserved to the Commissioner. § 416.927(d)(1). A medical opinion
from a treating source generally enjoys controlling weight when it 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. § 416.927(c). When an ALJ does not give a
treating source opinion controlling weight, the ALJ must always give “good reasons” for the
weight assigned, taking into consideration the length of treatment, frequency of examination, the
nature and extent of the treatment relationship, the amount of relevant evidence that supports the
opinion, the opinion’s consistency with the record as a whole, the specialization of the source, and
other factors which tend to support or contradict the opinion. 20 C.F.R. § 416.927(c)(1)-(6).
The Court finds that Dr. Gray’s opinion is a medical opinion as she offered more than a
conclusory statement that Plaintiff’s CRPS is disabling and unlikely to change. Specifically, Dr.
Gray explained that Plaintiff’s impairment significantly impeded her range of motion in her right
leg joints, and that her pain increased with weighting bearing on the right leg and produced balance
difficulties. Therefore, the ALJ erred in not weighing the remaining portions of Dr. Gray’s opinion
and providing “good reasons” for the weight assigned. See 20 C.F.R. § 416.927(c).
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While the Sixth Circuit has instructed that courts should not hesitate to remand a case when
an ALJ fails to adhere to the treating physician rule, Wilson, 378 F.3d at 545, remand is not
necessary if violation of the “good reason” rule is harmless, Cole, 661 F.3d at 940. Error is
harmless when:
(1) a treating source’s opinion is so patently deficient that the
Commissioner could not possibly credit it; (2) if the Commissioner
adopts the opinion of the treating source or makes findings
consistent with the opinion; or (3) where the Commissioner has met
the goal of § 1527[(c)](2) . . . even though she has not complied with
the terms of the regulation.
Friend v. Comm’r of Soc. Sec., 375 F. App’x 543, 551 (6th Cir. 2010) (citation omitted). “In the
last of these circumstances, the procedural protections at the heart of the rule may be met when the
‘supportability’ of a doctor’s opinion, or its consistency with other evidence in the record, is
indirectly attacked via an ALJ’s analysis of a physician’s other opinions or his analysis of the
claimant’s ailments.” Id. (citing Nelson v. Comm’r of Soc. Sec., 195 F. App’x 462, 470–72 (6th
Cir.2006).
In the present matter, the Court finds that the ALJ’s decision indirectly attacked the
supportability and consistency of Dr. Gray’s opinion. Dr. Gray opined that the Plaintiff’s range
of motion in her right leg was significantly impaired, yet Dr. Gray’s treatment notes do not notate
any instances of diminished range of motion. [Tr. 464-69]. As the ALJ observed, only a single
treatment note from Plaintiff’s family practitioner from November 2013 noted that Plaintiff
exhibited limited range of motion in her right lower extremity. [Tr. 15, 373]. Plaintiff has not
cited to any examination findings to support Dr. Gray’s opinion. Moreover, Dr. Gray noted
balance issues necessitated the need for a cane. However, as also pointed out by the ALJ, Dr. Gray
noted on several occasions that Plaintiff ambulated without assistance. [Tr. 15, 464-65, 467].
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Additionally, the ALJ found that Plaintiff’s trial spinal cord stimulator was successful, and Plaintiff
ambulated without assistance following surgery. [Tr. 15, 541-42]. Finally, the ALJ deferred to
the opinions of Dr. Lemeh and Dr. Pennington, which opinions conflict with Dr. Gray’s finding
that Plaintiff’s CRPS is disabling. Accordingly, the Court finds that the ALJ’s decision satisfies
the rare scenario where an ALJ’s analysis of other medical opinions and evidence indirectly attacks
both the consistency and supportability of Plaintiff’s treating physician.
Lastly, Plaintiff argues that the ALJ’s step two finding is undermined by the ALJ’s failure
to properly consider Plaintiff’s subjective allegations. [Doc. 20 at 12]. In this regard, Plaintiff
submits that her testimony regarding pain is consistent with the medical evidence of record. [Id.].
“[C]redibility determinations with respect to subjective complaints of pain rest with the ALJ.”
Siterlet v. Sec’y of Health & Human Servs., 823 F.2d 918, 920 (6th Cir. 1987). Because the
medical evidence does not support that Plaintiff’s CRPS is a severe impairment, the Court finds
that the ALJ did not err in finding Plaintiff’s testimony less than fully credible.
VI.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Judgement on the Pleadings [Doc. 19] will
be DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 21] will be
GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will
be DIRECTED to close this case.
ORDER ACCORDINGLY.
United States Magistrate Judge
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