Brewer v. Social Security Administration, Commissioner of (TV3)
Filing
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MEMORANDUM AND OPINION as set forth in following order. Signed by Magistrate Judge H Bruce Guyton on 3/6/19. (ABF)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
AT KNOXVILLE
DANNY RAY BREWER,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
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No. 3:18-cv-61-HBG
MEMORANDUM OPINION
This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 73 of the Federal
Rules of Civil Procedure, and the consent of the parties [Doc. 13]. Now before the Court are
Plaintiff’s Motion for Summary Judgment and Memorandum in Support [Docs. 14 & 15] and
Defendant’s Motion for Summary Judgment and Memorandum in Support [Docs. 16 & 17].
Danny Ray Brewer (“Plaintiff”) seeks judicial review of the decision of the Administrative Law
Judge (“the ALJ”), the final decision of Defendant Nancy A. Berryhill (“the Commissioner”). For
the reasons that follow, the Court will DENY Plaintiff’s motion and GRANT the Commissioner’s
motion.
I.
PROCEDURAL HISTORY
On March 18, 2015, Plaintiff protectively filed an application for disability insurance
benefits and supplemental security income benefits pursuant to Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq. and 1381 et seq., claiming a period of disability that began
on May 1, 2013. [Tr. 15, 83–84, 188–200]. After his application was denied initially and upon
reconsideration, Plaintiff requested a hearing before an ALJ. [Tr. 133]. A hearing was held on
March 31, 2017. [Tr. 33–69]. On June 15, 2017, the ALJ found that Plaintiff was not disabled.
[Tr. 15–25]. The Appeals Council denied Plaintiff’s request for review on December 22, 2017
[Tr. 1–6], making the ALJ’s decision the final decision of the Commissioner.
Having exhausted his administrative remedies, Plaintiff filed a Complaint with this Court
on February 20, 2018, 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 meets the insured status requirements of the Social
Security Act through September 30, 2016.
2. The claimant has not engaged in substantial gainful activity since
May 1, 2013, the alleged onset date (20 CFR 404.1571 et seq. and
416.971 et seq.).
3. The claimant has the following severe impairments: degenerative
disc disease of the lumbar spine, diabetes mellitus, learning disorder,
and affective disorder (20 CFR 404.1520(c) and 416.920(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, 404.1526, 416.920(d), 416.925
and 416.926).
5. After careful consideration of the entire record, the undersigned
finds that the claimant has the residual functional capacity to
perform medium work as defined in 20 CFR 404.1567(c) and
416.967(c) except work is limited to simple, routine and repetitive
tasks; performed in a work environment free of fast paced work;
involving only simple work-related decisions; and with few, if any
work place changes; bilateral upper extremity handling/fingering
limited to frequent; and no complex written instructions.
6. The claimant is unable to perform any past relevant work (20
CFR 404.1565 and 416.965).
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7. The claimant was born on April 17, 1958 and was 55 years old,
which is defined as an individual of advanced age, on the alleged
disability onset date (20 CFR 404.1563 and 416.963).
8. The claimant has at least a high school education and is able to
communicate in English (20 CFR 404.1564 and 416.964).
9. Transferability of job skills is not an issue in this case 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 82-41 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, 404.1569(a), 416.969, and 416.969(a)).
11. The claimant has not been under a disability, as defined in the
Social Security Act, from May 1, 2013, through the date of this
decision (20 CFR 404.1520(g) and 416.920(g)).
[Tr. 17–25].
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
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
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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.
DISABILITY ELIGIBILITY
“Disability” means an individual cannot “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 12 months.” 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). An individual 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.
§§ 423(d)(2)(A) and 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.
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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) and -(e), 416.920(a)(4), -(e). An RFC is the most a claimant can do despite his
limitations. §§ 404.1545(a)(1) and 416.945(a)(1).
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)).
V.
ANALYSIS
Plaintiff asserts that the ALJ’s RFC determination is not supported by substantial evidence,
as the ALJ failed to properly weigh the medical opinion evidence or evaluate Plaintiff’s diabetes
mellitus. First, Plaintiff claims that the ALJ failed to properly evaluate and weigh the opinion of
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consultative examiner, Eva Misra, M.D., pursuant to the applicable regulations. [Doc. 15 at 10–
12]. Next, Plaintiff contends that the ALJ did not properly consider his severe impairment of
diabetes mellitus, as he consistently had elevated glucose and A1C levels, in contrast to the ALJ’s
assertion that his diabetes was “doing well.” [Id. at 13–14]. The Court will address Plaintiff’s
specific allegations of error in turn.
A.
Dr. Misra’s Opinion
Plaintiff challenges the ALJ’s finding that Dr. Misra’s opined limitations were not
consistent with the examination findings, as the findings of a normal gait and station do not reflect
an inconsistency with the assessed lifting and carrying restrictions. [Id. at 11–12]. Therefore,
Plaintiff claims that the ALJ “failed to set forth a valid basis for rejecting Dr. Misra’s lifting and
carrying restrictions.” [Id. at 12].
Dr. Misra consultatively examined Plaintiff on August 6, 2015. [Tr. 408–10]. Plaintiff
reported a history of diabetes as well as back pain. [Tr. 408]. Upon examination, Plaintiff recorded
a normal gait and station, was able to get from a chair and on and off a table without difficulty,
and normal mobility. [Tr. 409]. Plaintiff exhibited a full range of motion universally except for
his lumbar spine flexion was 70 degrees, extension was 20 degrees, and right and left lateral flexion
was 20 degrees. [Id.]. Plaintiff also had negative straight leg raises, but the rest of his range of
motion, muscle condition, and strength were normal. [Id.].
Accordingly, Dr. Misra opined that Plaintiff retained the capacity to occasionally lift and
carry, including upward pulling, for up to one-third of an eight-hour work day, a maximum of 20
pounds; as well as the ability to frequently lift and carry, from one-third to two-thirds of an eighthour workday, a maximum of ten pounds. [Tr. 410]. Additionally, Dr. Misra found that Plaintiff
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could stand and walk with normal breaks for a total of about six hours in an eight-hour workday,
and sit without restrictions. [Id.].
The ALJ reviewed and ultimately afforded some weight to Dr. Misra’s opinion, as her
opined exertional limitations were not consistent with the examination findings of a normal gait
and station, as well as the lack of difficulty getting up from a chair and onto the examination table.
[Tr. 22–23]. Plaintiff challenges the ALJ’s assignment of some weight to Dr. Misra’s opinion,
claiming that the stated reasons for finding the assessed limitations inconsistent with the
examination findings “fail to reflect inconsistency with Dr. Misra’s lifting restrictions.” [Doc. 15
at 11]. Rather, Plaintiff asserts that the examination findings, including Plaintiff’s lumbar spine
flexion and extension, as well as right and left lateral flexion, support the assessed limitations.
However, the Commissioner maintains that the ALJ properly found that the lifting restrictions
were inconsistent with the record. [Doc. 17 at 11].
Opinions from nontreating sources are never assessed for controlling weight but are
evaluated using the regulatory balancing factors set forth in 20 C.F.R. §§ 404.1527(c)
and 416.927(c). Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013) (citing 20
C.F.R. § 404.1527(c)). These opinions are weighed “based on the examining relationship (or lack
thereof), specialization, consistency, and supportability.” Id. (citing 20 C.F.R. § 404.1527(c)).
“Other factors ‘which tend to support or contradict the opinion’ may be considered in assessing
any type of medical opinion.” Id. (quoting 20 C.F.R. § 404.1527(c)(6)). Additionally, an ALJ is
only required to provide good reason for explaining the weight assigned to the opinion of a
“treating source.” 20 C.F.R. §§ 404.1527(c) and 416.927(c)(2); see Perry v. Comm’r of Soc. Sec.,
501 F. App’x 425, 426 (6th Cir. 2012) (“An ALJ need not ‘give good reasons’ for the weight he
assigns opinions from physicians who, like Dr. Pickering, have examined but not treated a
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claimant.”). Lastly, opinions from one-time consultative examiners are not due any special degree
of deference. Barker v. Shalala, 40 F.3d 789, 794 (6th Cir. 1994).
While Plaintiff contends that the ALJ’s stated reasons for assigning some weight to Dr.
Misra’s opinion do not constitute a valid basis for rejecting the opinion, the ALJ is tasked with the
responsibility to assess a claimant’s RFC “based on all of the relevant evidence” of record. 20
C.F.R. §§ 404.1545(a); 404.1546(c). The ALJ “is not required to recite the medical opinion of a
physician verbatim in his residual functional capacity finding . . . [and] an ALJ does not improperly
assume the role of a medical expert by assessing the medical and non-medical evidence before
rendering a residual functional capacity finding.” Poe v. Comm’r of Soc. Sec., 342 F. App’x 149,
157 (6th Cir. 2009) (internal citations omitted); see Justice v. Comm’r of Soc. Sec., 515 F. App’x
583, 588 (6th Cir. 2013) (“In a battle of the experts, the agency decides who wins. The fact that
[claimant] now disagrees with the ALJ’s decision does not mean that the decision is unsupported
by substantial evidence.”).
Here, the ALJ found that Dr. Misra’s examination findings were inconsistent with
Plaintiff’s normal gait and station, as well as lack of difficulty getting onto the examination table.
The ALJ also noted Plaintiff’s 5/5 grip strength on both the right and left hands at the examination.
[Tr. 409]. Further, although Dr. Misra noted a reduced range of motion, she also found that the
rest of Plaintiff’s range of motion, muscle condition, and strength were normal. [Id.]. Therefore,
the ALJ properly noted an inconsistency between the medical record and the assessed limitations.
See Robyn H. v. Berryhill, No. C18-263-MAT, 2018 WL 4951943, at *4 (W.D. Wash. Oct. 12,
2018) (“The lifting limitations assessed and referenced unstable gait were inconsistent with Dr.
Wilson’s July 2015 examination, which showed full strength and normal gait.”); Hinkle v.
Berryhill, No. 2:17-CV-54, 2018 WL 2437238, at *5 (E.D. Tenn. May 30, 2018) (holding the ALJ
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properly assigned little weight to a consultative examiner’s opinion, as the ALJ detailed how the
opinion was not consistent with the examination or medical record and “[e]ven Dr. Blaine noted
that Plaintiff had 5/5 strength which was also inconsistent with Dr. Blaine’s own lifting
restrictions”); Coffman v. Comm’r of Soc. Sec., No. 2:13-cv-1037, 2014 WL 4674279, at *8 (S.D.
Ohio Sept. 18, 2014) (finding the ALJ’s assignment of little weight to opinion of treating physician
is supported by substantial evidence in part because “[a]s noted by the administrative law judge .
. . 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”),
report and recommendation adopted sub nom, 2014 WL 4988234 (S.D. Ohio Oct. 7, 2014).
The ALJ also afforded great weight to the opinion of Karen Sarpolis, M.D., the
nonexamining state agency physician who reviewed the evidence of record at the reconsideration
level of the agency’s review. [Tr. 23]. Dr. Sarpolis opined that Plaintiff could occasionally lift
and carry 50 pounds, frequently lift and carry 25 pounds, stand and walk for a total of six hours in
an eight-hour workday, and sit for a total of about six hours in an eight-hour workday. [Tr. 92–
93]. The ALJ found that Dr. Sarpolis’s opinion was consistent with the overall evidence of record,
including Plaintiff’s noted conservative treatment and reported daily activities which were “clearly
not the activities of an individual with totally disabling physical or mental conditions.” [Tr. 22–
23].
Ultimately, the ALJ properly explained his reasoning for affording some weight to the
opinion of the consultative examiner, finding that Dr. Misra’s opinion was inconsistent with her
examination findings. See Norris v. Comm’r of Soc. Sec., 461 F. App’x 433, 469 (6th Cir. 2012)
(holding a consultative examiner’s opinion “may be rejected by the ALJ when the source’s opinion
is not well supported by medical diagnostics or if it is inconsistent with the record”); see also 20
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C.F.R. § 404.1527(c) (directing that an ALJ evaluates a non-treating source opinion by considering
the supportability of the opinion). In further support of his assignment of some weight to Dr.
Misra’s opinion, the ALJ found that the opinion of the nonexamining state agency physician, Dr.
Sarpolis, was entitled to great weight, as it was more consistent with the medical record.
Accordingly, the Court finds that the ALJ’s assignment of some weight to the opinion of
Dr. Misra is supported by substantial evidence, as the ALJ properly weighed the applicable
statutory factors and explained the basis for affording little weight to the opinion.
B.
Evaluation of Plaintiff’s Diabetes Mellitus
Plaintiff claims that the ALJ failed to properly evaluate his diabetes mellitus, alleging that
the ALJ improperly cited to progress notes and mischaracterized Plaintiff’s A1C and glucose
testing results. [Doc. 15 at 13]. The Commissioner asserts that the ALJ appropriately reviewed
the pertinent medical records regarding Plaintiff’s diabetes mellitus. [Doc. 17 at 13].
In the disability decision, the ALJ reviewed Plaintiff’s history of diabetes mellitus, and
noted that “[t]esting has revealed elevated blood glucose levels and A1C levels.” [Tr. 21]. Further,
the ALJ found that in June 2015, Plaintiff “had normal strength in bilateral extremities and
monofilament wire tests were normal in bilateral feet.” [Id.]. Lastly, Plaintiff cited to treatment
progress notes which indicated that Plaintiff was “doing well” with his prescribed medication,
Bydureon and Toujeo. [Id.].
First, Plaintiff claims that the ALJ failed to properly consider his diabetes when the ALJ
cited to a 2017 treatment note—despite the fact that the record does not contain any treatment
notes for 2017, as the hearing occurred on March 31, 2017. [Doc. 15 at 13]. However, the Court
finds that although the ALJ incorrectly referenced the wrong year, he cited to Plaintiff’s treatment
records from 2016. [Tr. 21]; see [Tr. 417–49].
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Plaintiff also claims that the ALJ improperly found that he was “doing well” in controlling
his diabetes, as he consistently had highly elevated glucose and AIC levels. [Doc. 15 at 13].
However, the ALJ did not find that Plaintiff was doing well with his diabetes; rather, the ALJ
stated that treatment notes indicated that Plaintiff was doing well with his medication. Plaintiff
was seen by Melissa Graves, N.P., at Greenbrier Medical Clinic, for treatment of his diabetes
mellitus, spinal stenosis, and depressive disorder. [Tr. 417–49]. Ms. Graves noted on November
21, 2016 that Plaintiff was “doing well with bydureon and toujeo.” [Tr. 420]. Additionally, Ms.
Graves stated that Plaintiff was “doing quite well with Toujeo” on August 30, 2018 [Tr. 427], and
that he was “doing well with meds [and] loves toujeo” on May 24, 2016 [Tr. 430]. Therefore, the
ALJ properly summarized Plaintiff’s progress records with respect to his treatment for diabetes
mellitus. Moreover, the ALJ noted that testing had revealed elevated glucose and A1C levels.
[Id.].
Ultimately, courts “may not reweigh conflicting evidence on appeal, but instead must
affirm” if a decision is supported by substantial evidence. Haun v. Comm’r of Soc. Sec., 107 Fed.
App’x 462, 465 (6th Cir. 2004); see also Steed v. Colvin, No. 4:15-cv-1269, 2016 WL 4479485,
at *10 (N. D. Ohio Aug. 25, 2016) (“While [the plaintiff] may disagree with the ALJ’s explanation
or her interpretation of the evidence of record, her disagreement with the ALJ’s rationale does not
provide a basis for remand.”); Kiser v. Colvin, No. CV 14-170, 2016 WL 527942, at *3 (E.D. Ky.
Feb. 8, 2016) (“To the extent that Plaintiff suggests that . . . evidence is open to another
interpretation that favors his claim, the Court declines to reweigh the evidence in this fashion.”).
Although Plaintiff claims that the ALJ should have assessed more restrictive limitations stemming
from his diabetes mellitus based upon his interpretation of the medical record, the ALJ’s decision
is supported by substantial evidence. Therefore, the ALJ properly considered Plaintiff’s diabetes
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mellitus in determining the RFC.
VI.
CONCLUSION
Based on the foregoing, Plaintiff’s Motion for Summary Judgment [Doc. 14] will be
DENIED, and the Commissioner’s Motion for Summary Judgment [Doc. 16] 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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