Laster v. Social Security Administration, Commissioner of
MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 3/9/18. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
ROY DOUGLAS LASTER,
NANCY A. BERRYHILL,1
Acting Commissioner of Social Security,
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. 14]. Now before the Court
is Plaintiff’s Motion for Judgement on the Pleadings and Memorandum in Support [Docs. 15 &
16] and the Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 17
& 18]. Roy Douglas Laster (“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.
On December 20, 2013, 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 November 1, 2012, the amended onset date. [Tr. 112-13, 37]. After his
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.
application was denied initially and upon reconsideration, Plaintiff requested a hearing before an
ALJ. [Tr. 77]. A hearing was held on September 28, 2015. [Tr. 34-46]. On October 8, 2015, the
ALJ found that Plaintiff was not disabled. [Tr. 22-29]. 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 his administrative remedies, Plaintiff filed a Complaint with this Court
on November 28, 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.
The ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social
Security Act through June 30, 2016.
2. The claimant has not engaged in substantial gainful activity since
November 1, 2012, the amended alleged onset date (20 CFR
404.1571 et seq.).
3. The claimant has the following medically determinable
impairments: diabetes mellitus, hypertension, osteoarthritis, and
obesity (20 CFR 404.1521 et seq.).
4. 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 404.1521 et seq.).
5. The claimant has not been under a disability, as defined in the
Social Security Act, from November 1, 2012, through the date of
this decision (20 CFR 404.1520(c)).
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
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).
“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). 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).
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,
Plaintiff contends that the ALJ erred when he ended his decision at step two, and that
substantial evidence does not support the ALJ’s finding that Plaintiff’s impairments are nonsevere. [Doc. 16 at 4-10].
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. § 404.1520(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).
Plaintiff argues that he meets step two’s de minimis hurdle based on the opinion of his
treating physician, Mark J. Dalle-Ave, M.D., and that the ALJ did not provide “good reason” for
discounting the opinion. [Doc. 16 at 6]. On July 2, 2014, Dr. Dalle-Ave wrote a letter wherein he
explained that Plaintiff suffers from diabetes mellitus type II with renal manifestations, chronic
kidney disease stage III, benign hypertension, osteoarthritis, lumbago, mixed hyperlipidemia, and
obesity. [Tr. 228]. During Plaintiff’s most recent exam at that time, he complained of fatigue,
malaise, and back pain. [Id.]. On examination, Plaintiff exhibited lower back tenderness and
decreased strength and range of motion secondary to pain and stiffness. [Id.]. While Plaintiff’s
current prognosis was noted to be “fair,” Dr. Dalle-Ave opined that Plaintiff’s condition was
worsening. [Id.]. Therefore, Plaintiff was restricted from repetitive back movements and heavy
physical activity. [Id.]. Dr. Dalle-Ave concluded that it would be very difficult for Plaintiff to
engage in any gainful employment as the result of his age, education, and medical history. [Id.].
The ALJ assigned “[l]ittle to no weight” to Dr. Dalle-Ave’s opinion letter, because the
restrictions noted therein were “highly inconsistent with the totality of the evidence, which fails to
document any significant musculoskeletal abnormality, neuropathy, or notable complication from
kidney disease or hypertension.” [Tr. 28]. The ALJ additionally found that throughout the relevant
period under review, Dr. Dalle-Ave “has not significantly adjusted the claimant’s diabetic or blood
pressure medication, and he has not provided any treatment for the claimant’s alleged
musculoskeletal pain.” [Id.]. Therefore, the ALJ concluded that Dr. Dalle-Ave’s restrictions were
unsupported and sharply contrasted with the evidence of record. [Id.].
The Court observes that a treating source opinion 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. § 404.1527(c).
However, the ultimate decision of disability rests with the ALJ. Sullenger v. Comm’r of Soc. Sec.,
255 Fed. App’x 988, 992 (6th Cir. 2007). 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. § 404.1527(c)(1)-(6).
Based on Dr. Dalle-Ave’s letter and opinions therein, Plaintiff argues that the ALJ’s step
two finding “was simply wrong” and Dr. Dalle-Ave’s opinion was improperly considered. [Doc.
16 at 6]. The Court disagrees and finds the ALJ’s decision provides substantial evidence to end
the disability determination at step two.
As to Plaintiff’s diabetic disorder, the ALJ noted that despite A1C levels above the normal
range in October 2011, subsequent testing in February 2012 and May 2013 produced normal
results, and Dr. Dalle-Ave’s treatment records during this period consistently noted Plaintiff’s
diabetes as “stable” with no complaints of extremity weakness, peripheral numbness, temperature
intolerance, vision deficits, urinary issues, or other symptoms commonly associated with
uncontrolled diabetes. [Tr. 25, 27, 182-220]. While Plaintiff’s kidney function had decreased, Dr.
Dalle-Ave opined that Plaintiff’s condition was likewise “stable” and only necessitated monitoring
with no additional treatment. [Tr. 25, 27, 190]. Even when Plaintiff’s A1C level spiked in May
2014, Dr. Dalle-Ave noted Plaintiff was changing his lifestyle to include better diet and exercise,
and subsequent treatment notes continued to demonstrate a lack of adverse symptoms or other
complications. [Tr. 25, 229-37].
Plaintiff’s overall treatment plan and medication regiment
remained consistent until April 2015 when Plaintiff’s oral medication was minimally increased,
but no additional medication, including insulin injections, was added. [Tr. 25-26, 238-46].
With regard to Plaintiff’s back and joint pain, the ALJ observed treatment records provided
minimal findings. [Tr. 26, 28]. In fact, between February 2012 and December 2013, Plaintiff
mentioned back pain on only two occasions and endorsed joint pain on only three occasions. [Tr.
26, 28, 193-20]. Nonetheless, examination findings during these occasions, as well as subsequent
visits, were completely negative for musculoskeletal abnormalities, and Dr. Dalle-Ave never
recommended any type of treatment, including basic medication management, beyond
encouragement that Plaintiff exercise, modify his lifestyle, and engage in daily walking. [Tr. 26,
28, 193-20, 229-37]. Plaintiff did not complain of back pain again until June 2014, at which time
examination findings remained benign. [Tr. 26, 221-24]. Ironically, when Dr. Dalle-Ave did note
general osteoarthritic changes in October 2014, Plaintiff did not endorse any back or joint pain.
[Tr. 26, 234-37].
The ALJ similarly observed that treatment records between February 2012 and March 2013
demonstrated that Plaintiff’s hypertension was “stable” with medication and only mild in severity.
[Tr. 26, 28, 201-20]. Although there were occasions when Plaintiff’s blood pressure reading was
high, Plaintiff consistently declined to take medication, opting instead to control his condition with
diet and exercise. [Tr. 26, 28, 193-220, 229-37]. Moreover, Plaintiff consistently denied dizziness,
balance issues, chest pain, shortness of breath, or headaches. [Tr. 26, 28, 193-224, 231-37]. In
fact, Plaintiff reported feeling well and not having any difficulty with daily functioning despite
reporting an at-home blood pressure reading of 132/85 on April 9, 2015. [Tr. 26, 229].
The ALJ additionally considered the effects of Plaintiff’s obesity, and his allegations of
hearing difficulties and memory and concentration problems. [Tr. 27]. As to Plaintiff’s weight,
the ALJ observed that neither Plaintiff nor the record suggested that his weight was a disabling
factor or a factor that imposed functional limitations. [Id.]. With regard to Plaintiff’s complaints
of hearing difficulties, the ALJ likewise found that the record was completely void of hearing
complaints, and examination findings evidenced that Plaintiff’s hearing was “grossly intact.” [Tr.
27, 193-236]. Finally, the ALJ concluded that the record consistently noted Plaintiff’s memory
and concentration was likewise intact, and Plaintiff routinely denied any difficulties in this area.
[Tr. 27, 194-236].
The Court finds the ALJ’s discussion of the foregoing evidence provides substantial
evidence that examination findings were largely normal and unremarkable, Plaintiff rarely
endorsed any type of back or joint pain, and his other conditions were generally noted as “stable”
or controlled with modest to no treatment at all. The only contrary evidence cited by Plaintiff is
Dr. Dalle-Ave’s opinion letter and “the somewhat equivocal pronouncements of” a non-examining
state agency physician’s recommendation at the initial level of the administrative proceedings that
a consultative examination be conducted because Plaintiff’s subjective allegations of visual
problems, numbness in feet, and shortness of breath were routinely denied to Dr. Dalle-Ave. [Doc.
16 at 6-7 (citing Tr. 53)].
As to Dr. Dalle-Ave’s opinion, while his letter may support Plaintiff’s subjective
complaints and endorse restrictions against repetitive back movements and heavy physical activity,
the ALJ was not obligated to credit Dr. Dalle-Ave’s findings as his own treatment notes
overwhelming failed to substantiate the limitations he assessed. See 20 C.F.R. § 404.1527(c)(4)
(“[T]he more consistent a medical opinion is with the record as a whole, the more weight we will
give to that medical opinion.”); Leeman v. Comm’r of Soc. Sec., 449 F. App’x 496, 497 (6th Cir.
2011) (“ALJs may discount treating-physician opinions that are inconsistent with substantial
evidence in the record, like the physician’s own treatment notes.”).
With regard to the state agency physician’s recommendation that a consultative
examination be performed, the Court observes that consultative examinations are within the ALJ’s
discretionary power and need only be ordered when there is “an inconsistency in the evidence, or
when the evidence as a whole, both medical and nonmedical, is not sufficient to support a decision
on [the] claim.” 20 C.F.R. § 404.1519a. Here, the record adequately provides more than enough
information and evidence for the ALJ to reach a well-supported conclusion. Moreover, the ALJ
relied on the opinions of two other non-examining state agency physicians, both of whom opined
that Plaintiff’s impairments were non-severe, either singular or in combination, and that Plaintiff’s
prognosis appeared stable with continued care and treatment compliance. [Tr. 28, 54, 63].
Plaintiff additionally complains that the ALJ’s step two finding is undermined by
Plaintiff’s testimony regarding his diabetes. [Doc. 16 at 9-10]. Specifically, Plaintiff testified that
his medication sometimes caused dizziness, he experienced numbness in his hands and feet, and
he had difficulty sleeping and paying attention. [Tr. 41-43].2 To the contrary, the ALJ detailed
that the medical evidence demonstrated Plaintiff’s impairment was “stable,” there was no reference
to any other end organ damage, there is no documentation of significant and persistent
disorganization of motor function, no objective evidence of neuropathy, and Plaintiff consistently
denied adverse symptoms associated with his diabetes. [Tr. 25-28]. Indeed, Plaintiff does not cite
to any specific evidence, other than his own testimony, that allegedly contradicts the ALJ’s
conclusions. “[D]iscounting credibility to a certain degree is appropriate where an ALJ finds
contradictions among the medical reports, claimant’s testimony, and other evidence.” Walters,
127 F.3d at 531.
Accordingly, the Court finds that the ALJ provided “good reasons” for the weight assigned
to Dr. Dalle-Ave’s opinion, and substantial evidence supports the ALJ’s step two finding that
Plaintiff additionally suggests that his subjective allegations are particularly credible in
light of his advanced age and work history. [Doc. 16 at 10]. Plaintiff’s position is not supported
by case law or agency rulings. see Higgs, 880 F.2d at 862 (“Under the prevailing de minimis view,
an impairment can be considered not severe only if it is a slight abnormality that minimally affects
work ability regardless of age, education, and experience.”) (citing Farris, 773 F.2d at 90); see
also Soc. Sec. Rul. 85-25, 1985 WL 56856, at *3 (Jan. 1, 1985) (explaining the same).
Plaintiff did not have a severe impairment or combination of impairments. Therefore, Plaintiff’s
assignment of errors is not well-taken.
Based on the foregoing, Plaintiff’s Motion for Judgement on the Pleadings [Doc. 15] will
be DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 17] will be
GRANTED. The decision of the Commissioner will be AFFIRMED. The Clerk of Court will
be DIRECTED to close this case.
United States Magistrate Judge
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