Burton v. Social Security Administration, Commissioner of (TWP2)

Filing 25

MEMORANDUM OPINION - Signed by Magistrate Judge C Clifford Shirley, Jr on 1/08/2018. (KMK, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
SHEILA R. BURTON,
Plaintiff,
v.
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
Defendant.

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No. 3:16-CV-240-CCS

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. 22]. Now before the Court
is the Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 17 & 18]
and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 23 &
24]. Sheila R. Burton (“the 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 the
Plaintiff’s motion, and GRANT the Commissioner’s motion.
I.

PROCEDURAL HISTORY
On August 20, 2013, the Plaintiff filed an application for disability insurance benefits

pursuant to Title II of the Social Security Act, 42 U.S.C. § 401 et seq., claiming a period of
disability that began on June 27, 2012. [Tr. 1515, 177]. After her application was denied initially

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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.

and upon reconsideration, the Plaintiff requested a hearing before an ALJ. [Tr. 109]. A hearing
was held on August 26, 2014. [Tr. 40-62]. On August 21, 2015, the ALJ found that the Plaintiff
was not disabled. [Tr. 24-35]. The Appeals Council denied the Plaintiff’s request for review [Tr.
1-6], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted her administrative remedies, the Plaintiff filed a Complaint with this
Court on May 16, 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 FINDGINS
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through December 31, 2017.
2. The claimant has not engaged in substantial gainful activity since
June 27, 2012, the alleged onset date (20 CFR 404.1571 et. seq.).
3.
The claimant has the following severe impairments:
degenerative disc disease, residuals from fractured pelvis, gout in
hands and feet, diabetes, and obesity (20 CFR 404.1520(c)).
4. The claimant does not have an impairment or combination of
impairments that meets or medically equals the severity of one of
the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1
(20 CFR 404.1520(d), 404.1525 and 404.1526).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform light work as defined in 20 CFR 404.1567(b) except
lifting/carrying (included upward pulling) 20 pounds occasionally,
10 pounds frequently. Standing and/or walking (with normal
breaks) at least two hours in an eight-hour day, each. Unrestricted
sitting.
Occasional postural activities, but no climbing
ladders/ropes/scaffolds. No manipulative, visual, communicative,
or environmental limitations.
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6. The claimant is unable to perform any past relevant work. (20
CFR 404.1565).
7. The claimant was born on February 21, 1967 and was 45 years
old, which is defined as a younger individual age 18-49, on the
alleged disability onset date (20 CFR 404.1563).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564).
9. Transferability of job skills is not material to the determination
of disability because using the Medical-Vocational Rules as a
framework supports a finding that the claimant is “not disabled,”
whether or not the claimant has transferable job skills (See SSR 8241 and 20 CFR Part 404, Subpart P, Appendix 2).
10. Considering the claimant’s age, education, work experience,
and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can
perform (20 CFR 404.1569 and 404.1569(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from June 27, 2012, through the date of this
decision (20 CFR 404.1520(g)).
[Tr. 26-34].

III.

STANDARD OF REVIEW
When reviewing the Commissioner’s determination of whether an individual is disabled

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
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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, the plaintiff “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.

ANALYSIS
“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.”
42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(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. § 423(d)(2)(A); see 20 C.F.R. § 404.1505(a).
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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).
A claimant’s residual functional capacity (“RFC”) is assessed between steps three and four and is
“based on all the relevant medical and other evidence in your case record.” 20 C.F.R. §
404.1520(a)(4), -(e).

An RFC is the most a claimant can do despite his limitations. §

404.1545(a)(1).
The claimant bears the burden of proof at the first four steps. Id. 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)).
In the present case, the Plaintiff alleges that the ALJ’s residual functional capacity (“RFC”)
determination is not supported by substantial evidence because the ALJ did not properly weigh the
opinion of treating physician, Wendy May, M.D. [Doc. 18 at 14-18]. The Plaintiff contends that
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the ALJ failed to provide “good reason” for discounting the opinion and erroneously gave “great
weight” to the opinions of consultative examiner, Jeffery Summers, M.D., and nonexamining state
agency physicians. [Id. at 20-21]. The Plaintiff further maintains that the ALJ ignored testimony
provided by the Plaintiff’s step-daughter. [Id. at 18].
Dr. May began treating the Plaintiff in June 2012 for back and right hip pain. [Tr. 261].
The Plaintiff’s impairments stems from a horseback riding accident that occurred in April 2010
and resulted in a pelvic fracture. [Tr. 263]. Following her accident, she was treated by orthopedic
surgeon William Oros, M.D., from April through October 2010. [Tr. 250-56]. At the conclusion
of treatment in October 2010, Dr. Oros noted that clinically, the Plaintiff looked “okay” and
diagnosed greater trochanteric bursitis in the right hip and recommended joint injections. [Tr.
251]. The Plaintiff did not seek further treatment until she presented to Dr. May in June 2012 with
complaints of back pain and right hip pain that radiated down her leg. [Tr. 261].
A July 2012 MRI of the lumbar spine revealed moderate degenerative changes at multiple
levels form L2-S with areas of discogenic sclerosis, minimal disc bulge, no focal herniated disc,
and some moderate left foraminal narrowing at L5-S1 due to a combination of left vertebral
endplate and posterior element degenerative changes. [Tr. 317]. An EMG/NCS performed in
September 2012 indicated mild right L5 lumbar radiculopathy with no evidence of myopathy,
plexopathy, mononeuropathy, or peripheral neuropathy. [Tr. 312].
On July 24, 2014, Dr. May completed an “Attending Physician’s Statement.” [Tr. 439].
Therein, Dr. May indicated the Plaintiff’s diagnoses included ongoing back pain and chronic
lumbar radiculopathy with symptoms of back and right hip pain. [Id.]. Dr. May listed objective
findings of decreased mobility, joint pain, limping, and muscle spasms. [Id.]. The Attending
Physician Statement asked Dr. May to opine on the “extent of disability” by asking the following
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three questions: (1) “Is the patient Disabled and unable to do ‘past work?’”; (2) “Is the patient
Totally Disabled and unable to do Sedentary Work for 8 hours/day, 5 days/week? Sedentary Work
involves lifting up to 10 pounds occasionally (up to 1/3 of an 8 hour day).”;2 and (3) “If Totally
Disabled, is disability expected at least 12 months from the date the disability began?” [Id.]. Dr.
May answered “Yes” to all three questions. [Id.].
The ALJ assigned Dr. May’s opinion “little weight,” concluding that Dr. May’s findings
from her last examination, dated February 2014, were inconsistent with a finding that the Plaintiff
could not perform even sedentary work. [Tr. 32]. Specifically, Dr. May had only noted lumbar
spine tenderness and moderate pain with range of motion. [Tr. 32, 391]. The ALJ also found that
the opinion was not entitled to greater deference because it offered “conclusory statements that are
reserved to the Commissioner of Social Security,” i.e., the issue of “disability.” [Tr. 32].
Under the Social Security Act and its implementing regulations, if a treating physician’s
opinion as to the nature and severity of an impairment is (1) well-supported by medically
acceptable clinical and laboratory diagnostic techniques and (2) is not inconsistent with the other
substantial evidence in the case record, it must be given “controlling weight.” 20 C.F.R. §
404.1527(c)(2). When an opinion does not garner controlling weight, the appropriate weight to be
given to an opinion will be determined based upon the length of treatment, frequency of
examination, nature and extent of the treatment relationship, amount of relevant evidence that
supports the opinion, the opinion’s consistency with the record as a whole, the specialization of

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“Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting
or carrying articles like docket files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a). In
addition, while sedentary work “involves sitting, a certain amount of walking and standing is often
necessary in carrying out job duties.” Id.
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the source, and other factors which tend to support or contradict the opinion. § 404.1527(c)(1)(6).
When an ALJ does not give a treating physician’s opinion controlling weight, the ALJ must
always give “good reasons” for the weight given to a treating source’s opinion in the decision. §
404.1527(c)(2). A decision denying benefits “must contain specific reasons for the weight given
to the treating source’s medical opinion, supported by evidence in the case record, and must be
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 the weight.” Soc. Sec. Rul. 96-2p, 1996
WL 374188, at *5 (July 2, 1996).
The Plaintiff argues that Dr. May’s opinion “and the limitations she placed” were entitled
to greater weight, because her opinion was supported by her treatment notes, other medical
evidence in the record, and third party testimony provided by the Plaintiff’s step-daughter. [Doc.
18 at 15-18]. The Court disagrees and finds that the ALJ provided “good reason” for discounting
the opinion.
First, the “ALJ does not owe a treating opinion deference on matters reserved to the
Commissioner.” Hollis v. Commissioner of Social Sec., No. 13-13054, 2015 WL 357133, at *23
(E.D. Mich. Jan 27, 2015). Issues such as a claimant’s RFC, whether the claimant’s RFC prevents
her from performing past relevant work, or whether a claimant is “disabled” “are not medical
issues regarding the nature and severity of an individual’s impairment(s) but are administrative
findings that are dispositive of a case.” Soc. Sec. Rul. 96-5p, 1996 WL 374183, at *2 (July 2,
1996).

Opinions on such issues, even from treating sources, are “not given any special

significance” as they are findings reserved for the Commissioner. 20 C.F.R. § 404.1527(d)(1)-(3);
see Kidd v. Comm’r of Soc. Sec., 283 Fed. Appx. 336, 340 (6th Cir. 2008) (“[T]he ultimate issue
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of disability is reserved to the Commissioner.”) (citations omitted). “Giving controlling weight to
such opinions would, in effect, confer upon the treating source the authority to make the
determination or decision about whether an individual is under a disability, and thus would be an
abdication of the Commissioner’s statutory responsibility to determine whether an individual is
disabled.” Soc. Sec. Rul. 96-5p, 1996 WL 374183 at *2.
The Plaintiff argues that the ALJ should have deferred to the “limitations” opined by Dr.
May. However, Dr. May did not render any functional limitations or restrictions on the Plaintiff’s
ability to perform work-related activities. Instead, Dr. May made conclusory findings that the
Plaintiff is “disabled and unable to do ‘past work,’” is “Totally Disabled,” and cannot perform
“Sedentary Work.” [Tr. 439]. These findings unquestionably opine on matters strictly reserved
for the Commissioner’s determination and are therefore not entitled to deference. See Soc. Sec.
Rul. 96-5p, 1996 WL 374183 at *2. Moreover, Dr. May did not provide any explanation for her
conclusion that the Plaintiff is disabled and unable to work other than to note the Plaintiff’s
diagnoses of back pain and lumbar radiculopathy and associated symptoms, neither of which
provides substantial evidence to support a finding of disability. See 20 C.F.R. § 404.1529(a)
(“However, [a claimant’s] statements about [] pain or other symptoms will not alone establish that
[the claimant is] disabled. . . .”); Higgs v. Bowen, 880 F.2d 860, 863 (6th Cir. 1988) (holding that
a diagnosis alone says nothing about the severity of the impairment).
Second, the Court finds the ALJ’s other reason for discounting Dr. May’s opinion
constitutes “good reason.” The ALJ observed that Dr. May’s most recent examination findings
did not support a finding that the Plaintiff was completely disabled. Indeed, during the February
2014 visit, Dr. May only noted lumbar spine tenderness and moderate pain with range of motion.
While Dr. May’s last visit with the Plaintiff was actually in May 2014, there was no mention of
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any medial findings related to the Plaintiff’s back or musculoskeletal system. [Tr. 393-96]. Given
Dr. May’s examination findings, and the lack of explanation or support cited in the Attending
Physician Statement, including the fact that it notes an examination on July 19, 2014 but no office
visit notes or firings are provided—only the conclusory and legal opinions noted. Thus, the Court
finds the ALJ reasonably concluded that Dr. May’s findings did not support a conclusion that the
Plaintiff is disabled or unable to perform sedentary work.
The Plaintiff cites to other medical evidence and treating notes from Dr. May for the
proposition that Dr. May’s opinion was entitled to greater weight. [Doc. 18 at 14-17]. The ALJ,
however, considered this evidence in his decision and concluded that it was not consistent with a
finding of disability. [Tr. 30]. In reaching this determination, the ALJ also found the Plaintiff’s
daily living activities undermined a finding of disability where the Plaintiff retained the ability to
perform some household chores, prepare simple meals, shop, drive, manage finances, care for her
grandchildren, help her mother, use the computer, socialize with friends online, and visit with
family and family. [Tr. 31]; see Walters, 127 F.3d at 532 (“An ALJ may also consider household
and social activities engaged in by the claimant in evaluating the claimant’s assertion of pain or
ailments.”). Furthermore, the ALJ considered the routine and conservative nature of the Plaintiff’s
treatment which involved facet joint and lumbar epidural steroid injections, physical therapy, and
pain medication, as well as the Plaintiff’s non-compliance with Dr. May’s recommendations that
the Plaintiff lose weight and stop smoking. [Tr. 30-31]; see 20 C.F.R. § 404.1529(c)(3)(v) (listing
treatment as a relevant factor to be weighed in considering the credibility of a claimant’s
allegations of pain).
The ALJ also relied on other medical opinions of record, including findings made by
consultative examiner, Dr. Summers, and nonexamining state agency physicians. [Tr. 30, 32].
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Dr. Summers noted unremarkable examination findings other than decreased range of motion of
the lumbar spine and left knee. [Tr. 348]. The Plaintiff exhibited full range of motion in all other
joint areas, was negative for straight leg raise testing, had normal grip strength, ambulated in a
normal manner without the use of a walking device, and was able to stand and walk on both heels
and toes, perform a full squat, and stand on either leg singly. [Id.]. Dr. Summers opined that the
Plaintiff would have difficulty bending, stooping, kneeling, squatting, crouching, crawling,
climbing, and lifting greater than 20 pounds. [Id.]. The ALJ gave the opinion “great weight”
because it was consistent with Dr. Summers’s examination findings and the medical evidence of
record. [Tr. 32]. The ALJ similarly assigned “great weight” to the nonexamining state agency
physicians who opined limitations generally consistent with the Plaintiff’s RFC except that the
ALJ found the Plaintiff was more restrictive in her postural activities than found by the state agency
physicians. [Tr. 28, 32, 78-80, 92-94]. The ALJ likewise found the opinions of the state agency
physicians consistent with the medical evidence of record. [Tr. 32].
The Plaintiff complains that the ALJ does not identify the medical evidence that
purportedly supports the opinions of Dr. Summers and the state agency physicians. [Doc. 18 at
20]. The Plaintiff fails to appreciate the ALJ’s discussion of the evidence prior to weighing the
medical opinions of record. In concluding that the Plaintiff had an RFC to perform light work, the
ALJ addressed medical records discussing the Plaintiff’s back and hip pain, symptoms,
examination findings, and diagnostic imaging results which indicated only mild to moderate
findings. [Tr. 30]. The Court finds that the medical evidence discussed by the ALJ is consistent
with Dr. Summers’s examining findings and could reasonably support the specific functional
limitations opined by Dr. Summers and the state agency physicians as concluded by the ALJ.
The Plaintiff further contends that the opinions of non-treating sources cannot support a
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decision denying benefits where the medical sources rendered opinions without the benefit of
reviewing the complete record. [Doc. 18 at 20]. “There will always be a gap between the time the
agency experts review the record and give their opinion with respect to the Listing and the time
the hearing decision is issued.” Kelly v. Comm’r of Soc. Sec., 314 F. App’x 827, 831 (6th Cir.
2009). However, “absent a clear showing that the new evidence renders the prior opinion
untenable, the mere fact that a gap exists does not warrant the expense and delay of a judicial
remand.” Id. The Plaintiff makes no showing how later generated evidence undermines the
opinions of Dr. Summers and the state agency physicians. Moreover, the ALJ considered later
generated evidence, medical and non-medical evidence, in assessing the Plaintiff’s RFC. [Tr. 30];
see Brooks v. Comm’r of Soc. Sec., 531 F. App’x 636, 642 (6th Cir. 2013) (requiring “some
indication that the ALJ at least considered these [new] facts before giving greater weight to an
opinion that is not based on a review of a complete case record”) (citations and internal quotation
marks omitted).3
Finally, the Court finds no merit in the Plaintiff’s contention that the ALJ “failed to even
mention” the testimony of the Plaintiff’s step-daughter [Doc. 18 at 18]. The ALJ noted that the
Plaintiff’s step-daughter appeared and testified at the hearing [Tr. 24] and specifically considered
her testimony, giving it “some weight” in assessing the Plaintiff’s RFC [Tr. 32].

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The Plaintiff also argues that the ALJ’s citation to the record where the opinions of the
state agency physicians are located—Exhibits C2A and C4A—“do not actually contain” the
opinions. [Doc. 18 at 21]. The Plaintiff additionally contends that the cited exhibits, which is the
“Disability Determination Explanation” at the initial and reconsideration levels, include multiple
sections signed by different DDS examiners with no indication which sections was completed by
the state agency physicians whom the ALJ deferred to in his decision. [Id.]. The Court is not
persuaded. Within each Disability Determination Explanation, there is a “Residual Functional
Capacity” section that opines on the Plaintiff’s ability to perform different physical activities [Tr.
78-80, 92-94]. Both sections are clearly signed by the state agency physicians. [Tr. 80, 94]. The
ALJ properly attributed the RFC sections as the opinions expressed by the state agency physicians.
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Accordingly, the Court finds Dr. May’s opinion on issues reserved for the Commissioner
was not entitled to controlling weight, and the ALJ provided “good reason” for discounting the
opinion. The ALJ’s discussion of the medical evidence, opinions of record, and the Plaintiff’s
treatment and daily living activities, amounts to substantial evidence supporting the ALJ’s decision
to give little weight to Dr. May’s opinion. Therefore, the Plaintiff’s assignment of error is not
well-taken.
V.

CONCLUSION
Based on the foregoing, the Plaintiff’s Motion for Summary Judgment [Doc. 17] will be

DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 23] will be GRANTED.
The decision of the Commissioner will be AFFIRMED. The Clerk of Court will be directed to
CLOSE this case.
ORDER ACCORDINGLY.

s/ C. Clifford Shirley, Jr.
United States Magistrate Judge

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