Berry v. Social Security Administration

Filing 19

REPORT AND RECOMMENDATION re 14 First MOTION for Judgment on the Pleadings filed by Christy L. Berry. Signed by Magistrate Judge John S. Bryant on 6/8/2015. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(Wayman, Jessica)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
CHRISTY L. BERRY
v.
SOCIAL SECURITY ADMINISTRATION

To:

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)
)
)
)

No. 3:12-1218
Judge Nixon/Bryant

The Honorable John T. Nixon, Senior Judge

REPORT AND RECOMMENDATION
This is a civil action filed pursuant to 42 U.S.C. § 405(g), to obtain judicial
review of the final decision of the Social Security Administration (“SSA” or “the
Administration”) denying plaintiff’s application for disability insurance benefits, as provided
under the Social Security Act. The case is currently pending on plaintiff’s motion for
judgment on the administrative record (Docket Entry No. 14), to which defendant has
responded (Docket Entry No. 16). Upon consideration of these papers and the transcript of
the administrative record (Docket Entry No. 10),1 and for the reasons given below, the
undersigned recommends that plaintiff’s motion for judgment be DENIED and that the
decision of the SSA be AFFIRMED.

I. Introduction
Plaintiff filed his benefits application on March 24, 2008, alleging disability
since November 14, 2002, due to breathing problems, heart disorder, back disorder, and sinus

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Referenced hereinafter by page number(s) following the abbreviation “Tr.”

problems. (Tr. 11, 66) That application was denied at the initial and reconsideration stages
of agency review, whereupon plaintiff requested de novo hearing of her claim by an
Administrative Law Judge (ALJ). A hearing was held on April 20, 2011 (Tr. 25-59), and
testimony was received from plaintiff and from an impartial vocational expert. Plaintiff was
represented by counsel at the hearing. At the conclusion of the hearing, the ALJ took the
matter under advisement, until May 2, 2011, when he issued a written decision in which he
found plaintiff not disabled. (Tr. 11-20) That decision contains the following enumerated
findings:
1.

The claimant last met the insured status requirements of the Social Security
Act on December 31, 2009.

2.

The claimant did not engage in substantial gainful activity during the period
from January 21, 2006, the day following the date of the January 20, 2006 prior
initial determination, through his date last insured of December 31, 2009 (20
CFR 404.1571 et seq.).

3.

Through the date last insured, the claimant had the following severe
impairments: degenerative disc disease of the lumbar spine with lumbar
radiculopathy, status post surgery at L4-S1; chronic obstructive pulmonary
disease; diabetes mellitus; hypertension and coronary artery disease (20 CFR
404.1520(c)).

4.

Through the date last insured, the claimant did not have an impairment or
combination of impairments that met or medically equaled 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,
through the date last insured, the claimant had the residual functional capacity
to perform light work as defined in 20 CFR 404.1567(b) (including lifting 20
pounds and frequently lifting 10 pounds, sitting a full eight hours and standing
or walking 6 hours in an eight-hour workday) except he can only occasionally
push or pull, climb, bend, squat[], stoop[], and kneel[]; and should avoid
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concentrated exposure to extreme temp, dusts, fumes, gases and irritating
inhalants.
6.

Through the date last insured, the claimant was unable to perform any past
relevant work (20 CFR 404.1565).

7.

The claimant was born on February 2, 1954 and was 55 years old, which is
defined as a younger individual age 18-49, on the date last insured. The
claimant subsequently changed age category to closely approaching advanced
age (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.

The claimant has acquired work skills from past relevant work (20 CFR
404.1568).

10.

Considering the claimant’s age, education, work experience, and residual
functional capacity, the claimant had acquired work skills from past relevant
work that were transferable to other occupations with jobs existing in
significant numbers in the national economy (20 CFR 404.1569, 404.1569(a)
and 404.1568(d)).

11.

The claimant was not under a disability, as defined in the Social Security Act,
from January 21, 2006, the day following the date of the January 20, 2006 prior
initial determination, through December 31, 2009, the date last insured (20
CFR 404.1520(g)).

(Tr. 13-14, 18-20)
On October 3, 2012, the Appeals Council denied plaintiff’s request for review
of the ALJ’s decision (Tr. 1-3), thereby rendering that decision the final decision of the
Administration. This civil action was thereafter timely filed, and the court has jurisdiction.
42 U.S.C. § 405(g). If the ALJ’s findings are supported by substantial evidence, based on the
record as a whole, then those findings are conclusive. Id.

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II. Review of the Record
The following brief summary of the record is taken from plaintiff’s brief,
Docket Entry No. 15 at 2-4:
Plaintiff is currently fifty-nine years of age and has a high school or greater
education. (Tr. 161). Mr. Berry has past relevant work experience as a firefighter and
emergency medical technician. (Tr. 157).
Plaintiff alleges disability due to a combination of severe physical and mental
impairments including (1) lumbar degenerative disc disease; (2) lumbar radiculopathy; (3)
status post L4-S1 fusion; (4) chronic obstructive pulmonary disease (COPD); (5) diabetes
mellitus; (6) hypertension; and (7) coronary artery disease.
Plaintiff’s primary impairments relate to his history of COPD and lumbar
degenerative disc disease. Mr. Berry’s history of back problems date back to approximately
2002. On January 11, 2007, Plaintiff presented to neurosurgeon Douglas Mathews, M.D. for
evaluation of worsening back and left leg radicular pain. (Tr. 313). Dr. Mathews noted that a
prior lumbar MRI scan performed in 2005 demonstrated marked degeneration at L5-S1 with
a disc herniation. On examination, Plaintiff had a positive straight leg raise on the left at
sixty degrees. (Id.). Dr. Mathews ordered a new lumbar MRI, which revealed stenosis and
narrowing at L4-5 and L5-S1. (Tr. 312). In follow-up, Dr. Mathews stated that Plaintiff
“appear[ed] to have significantly collapsed disc, Modic changes at L5-S1 and bilateral
foraminal stenosis.” Surgery was recommended. (Tr. 311). On April 2, 2007, Dr. Mathews
performed a microscopic decompressive lumbar laminectomy at L4-5 and L5-S1 with
foraminotomies at L4, L5, and S1 and removal of herniated disc fragment, bone marrow
aspiration and arthrodesis of L4 through S1. (Tr. 275).
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Regarding COPD, Plaintiff has been experiencing severe shortness of breath,
wheezing and coughing since he was forced to retire as a firefighter in 2002. (See Tr. 14, 38,
330). A January 2006 treatment note reflects that pulmonary function tests showed moderate
to moderately severe obstructive defect with decreased diffusion capacity. (Tr. 366). At the
hearing, Plaintiff testified that, if he exerted himself significantly, he became easily short of
breath. He further testified that he has trouble breathing in hot temperatures. (Tr. 39).
Plaintiff’s treating pulmonologist Clyde Heflin, Dr. M.D. completed a Medical
Source Statement dated April 20, 2011 endorsing limitations that would preclude fulltime
work at any exertional level. (Tr. 525-27). Dr. Heflin stated, among other things, that
Plaintiff could not be reasonably expected to be reliable in fulltime work without missing
more that two days per month. He opined that Plaintiff could sit eight total hour for thirty
minutes at a time in a regular workday. He felt Plaintiff could only stand for thirty minutes
at a time and walk for five minutes at a time. Dr. Heflin answered “yes” in response to
whether Plaintiff’s limitations existed on or before December 31, 2009. (Tr. 527).
Darice Spackman, PA-C, a physician assistant in the office Dr. Mathews
completed a Medical Source Statement dated May 2, 2011 endorsing limitations that would
preclude fulltime work at any exertional level. Like Dr. Heflin, Ms. Spackman answered in
the affirmative regarding whether Plaintiff’s limitations were as provided on or before
December 31, 2009. (Tr. 529).

III. Conclusions of Law
A. Standard of Review
This court reviews the final decision of the SSA to determine whether that
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agency’s findings of fact are supported by substantial evidence in the record and whether the
correct legal standards were applied. Elam ex rel. Golay v. Comm’r of Soc. Sec., 348 F.3d
124, 125 (6th Cir. 2003). “Substantial evidence is defined as ‘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.’” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th
Cir. 2007)(quoting Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir.
1994)). Even if the evidence could also support a different conclusion, the SSA’s decision
must stand if substantial evidence supports the conclusion reached. Her v. Comm’r of Soc.
Sec., 203 F.3d 388, 389 (6th Cir. 1999).
B. Proceedings at the Administrative Level
The claimant has the ultimate burden to establish an entitlement to benefits
by proving his or her “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
12 months.” 42 U.S.C. § 423(d)(1)(A). The claimant’s “physical or mental impairment” must
“result[] from anatomical, physiological, or psychological abnormalities which are
demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. at §
423(d)(3). In proceedings before the SSA, the claimant’s case is considered under a five-step
sequential evaluation process, described by the Sixth Circuit Court of Appeals as follows:
1) A claimant who is engaging in substantial gainful activity will not be found
to be disabled regardless of medical findings.
2) A claimant who does not have a severe impairment will not be found to be
disabled.
3) A finding of disability will be made without consideration of vocational

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factors, if a claimant is not working and is suffering from a severe impairment
which meets the duration requirement and which meets or equals a listed
impairment in Appendix 1 to Subpart P of the Regulations. Claimants with
lesser impairments proceed to step four.
4) A claimant who can perform work that he has done in the past will not be
found to be disabled.
5) If a claimant cannot perform his past work, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed.
Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 539 (6th Cir. 2007)(citing, e.g., Combs v. Comm’r
of Soc. Sec., 459 F.3d 640, 642-43 (6th Cir. 2006)(en banc)); 20 C.F.R. §§ 404.1520(b)-(f),
416.920 (b)-(f).
The SSA’s burden at the fifth step of the evaluation process can be carried by
relying on the medical-vocational guidelines, otherwise known as “the grids,” but only if the
claimant is not significantly limited by a nonexertional impairment, and then only when the
claimant’s characteristics identically match the characteristics of the applicable grid rule. See
Wright v. Massanari, 321 F.3d 611, 615-16 (6th Cir. 2003). Otherwise, the grids cannot be
used to direct a conclusion, but only as a guide to the disability determination. Id.; see also
Moon v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990). In such cases where the grids do not
direct a conclusion as to the claimant’s disability, the SSA must rebut the claimant’s prima

facie case by coming forward with proof of the claimant’s individual vocational qualifications
to perform specific jobs, which is typically obtained through vocational expert (“VE”)
testimony. See Wright, 321 F.3d at 616 (quoting Soc. Sec. Rul. 83-12, 1983 WL 31253, *4
(S.S.A.)); see also Varley v. Sec’y of Health & Human Servs., 820 F.2d 777, 779 (6th Cir. 1987).
In determining residual functional capacity (“RFC”) for purposes of the
analysis required at steps four and five above, the SSA is required to consider the combined
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effect of all the claimant’s impairments, mental and physical, exertional and nonexertional,
severe and nonsevere. See 42 U.S.C. §§ 423(d)(2)(B), (5)(B); Foster v. Bowen, 853 F.2d 483,
490 (6th Cir. 1988).
C. Plaintiff’s Statement of Errors
Plaintiff raises one challenge to the ALJ’s decision, arguing that the opinion of
treating pulmonologist Dr. Heflin was not properly weighed, inasmuch as the ALJ did not
specify the weight he assigned but appeared to reject the opinion entirely, without
considering Dr. Heflin’s specialty in pulmonary medicine and without recognizing that Dr.
Heflin had, in fact, treated plaintiff prior to plaintiff’s date last insured of December 31, 2009.
The ALJ’s rationale concerning Dr. Heflin’s opinion is as follows:
The day of the hearing, April 20, 2011, Dr. Asa Heflin, M.D., rendered his
opinion as to the claimant’s physical functioning. Dr. Heflin’s records were
provided; however, they do not commence until after the date last insured.
Dr. Heflin asserts the claimant [] has limitations from fixed and variable
obstructive lung disease that include a total inability to lift and/or carry any
amount of weight; sitting and standing each restricted to only 30 minutes at
one time and walking restricted to five minutes at one time; no bending,
pushing or pulling; and limitation of exposure to pulmonary irritants and
temperature extremes. He claims these limitations were present prior to the
date last insured in December 2009, in response to a largely leading question
on the form he was provided (Ex. 19F [Tr. 525-27]). This response is
questionable, as his records do not show he was treating the claimant at this
time (See Ex. 14F). The medical evidence of record, already discussed above,
disputes that the claimant’s conditions were this limiting prior to the date last
insured. Dr. Heflin’s opinion is inconsistent with this evidence, including the
pulmonary function testing. Dr. Heflin’s own records, from after the date last
insured, still do not document this level of severity, with him describing only
intermittent respiratory symptoms and mild dyspnea in February 2011 (Ex.
14F at 2). His opinion is overly restrictive.

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(Tr. 18)
Plaintiff argues that, “contrary to the ALJ’s statements, Mr. Berry was treated
by Dr. Heflin prior to the date last insured and as early as March 2002 with indications at
that time of ‘severe dyspnea,’ cough and sputum production due to deconditioning, reactive
airways disease and asthma. (Tr. 380, 389-92).” (Docket Entry No. 15 at 13) The pages from
the medical record cited by plaintiff document office visits to Dr. Heflin in March and July of
2002 (Tr. 380, 391-92), and in January 2004 (Tr. 389-90). In response, defendant
acknowledges that, “although Dr. Heflin may have treated Plaintiff through January 2004,
two full years before the earliest date that Plaintiff could be found disabled, it does not
appear that his treatment of Plaintiff resumed until April 29, 2010 (Tr. 448-49), about 4
months after Plaintiff’s DLI. [Thus], the ALJ correctly observed that Dr. Heflin’s opinion
was questionable in light of the fact that he was not treating Plaintiff at the time of his DLI
[or anytime during the period at issue].” (Docket Entry No. 16 at 11-12 n. 11)
Lost on plaintiff’s counsel, defendant’s counsel, and the ALJ is the fact that Dr.
Heflin did in fact treat plaintiff prior to his date last insured, not only in the more remote
years of 2002-2004, but also at yearly intervals from 2006-2011. As revealed to the ALJ at
plaintiff’s hearing (Tr. 32), Dr. Heflin treated plaintiff on January 5, 2006, when diminished
breath sounds and sparse wheezing was noted on examination, and pulmonary function tests
(PFTs) showed moderate to moderately severe obstructive defect with decreased diffusion
capacity (Tr. 366); Dr. Heflin added the medication Spiriva due to plaintiff’s uncontrolled
symptoms and told plaintiff to follow up with him in one year. (Tr. 367) PFTs on January 4,
2007 revealed mild to moderate airway obstruction. (Tr. 411-12) On January 8, 2008, Dr.
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Heflin noted that PFTs continued to show mild airway obstruction; plaintiff was given
“another lecture on smoking cessation” and told to follow up in one year. (Tr. 360-61) On
March 3, 2009, Dr. Heflin noted that “Christy is in today for follow-up of asthma and mild IF
[(interstitial fibrosis)]. He is doing well. He has had one or two episodes where he required
some rescue inhalers; otherwise, he has been taking Advair on a fairly routine basis. He is
having no significant cough or sputum production.” (Tr. 353) Plaintiff’s lungs were clear
upon examination, and his chest x-ray was only mildly abnormal due to the interstitial
fibrosis. Dr. Heflin did not order PFTs, but assessed plaintiff’s pulmonary condition as stable
and told him to follow up again in one year. Id. As referenced by the ALJ, Dr. Heflin’s
treatment notes which postdate plaintiff’s date last insured show him to be “doing relatively
well” in April 2010 (Tr. 448) and February 2011 (Tr. 446), though on the latter occasion it
was noted that his most recent PFTs had shown significant fixed obstruction, and plaintiff
was instructed to follow up in six months instead of one year.
The medical opinion of a treating source is entitled to controlling weight
pursuant to 20 C.F.R. § 404.1527(c)(2) if it is well supported by objective, clinical evidence
and not substantially opposed on the record. Even where such an opinion is not entitled to
controlling weight, the Sixth Circuit has stated that “in all cases there remains a
presumption, albeit a rebuttable one, that the opinion of a treating physician is entitled to
great deference. . . .” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007).
Accordingly, ALJs must provide “good reasons” for discounting the weight of a treating
source opinion. See 20 C.F.R § 404.1527(c)(2); Rogers, 486 F.3d at 242.
In this case, the ALJ erroneously questioned Dr. Heflin’s assessment of

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plaintiff’s limitations prior to December 31, 2009, based on the ALJ’s misperception that Dr.
Heflin only began treating plaintiff in 2010. If this were the only reason given in support of
the finding that Dr. Heflin’s opinion is “overly restrictive,” then clearly the requirement of
good reason giving would not be met. However, the ALJ further reasoned that Dr. Heflin’s
opinion is inconsistent with the medical evidence, including PFT results, obtained during the
relevant time. In reviewing that evidence, the ALJ twice referenced Dr. Heflin’s treatment
notes, though he erroneously ascribed them to Dr. Graves (the cardiologist caring for
plaintiff in consultation with Dr. Heflin), noting that PFTs in January 2006 showed “no more
than moderate or moderate to severe results” (Tr. 15) and that plaintiff had continued to
smoke against medical advice, quitting only after his date last insured. (Tr. 18) The ALJ also
noted that other PFT results had indicated mild or moderate obstructive disease, id.,
consistent with the medical records from Dr. Heflin reviewed above. (Tr. 360, 411-12)
Finally, the ALJ appropriately noted that Dr. Heflin’s treatment notes which postdated
plaintiff’s date last insured did not support the severity of restrictions which he assessed, as
in 2010 his lungs were clear and he was doing relatively well (Tr. 448), and in 2011 he
reported only intermittent acute asthmatic symptoms and mild dyspnea. (Tr. 446)
In view of the foregoing good reasons given for discounting the weight of Dr.
Heflin’s 2011 assessment, the undersigned concludes that the ALJ’s rationale is substantially
supported and in compliance with the requirements of 20 C.F.R. § 404.1527(c)(2). Moreover,
the ALJ appropriately noted other medical and nonmedical evidence indicating that
plaintiff’s pulmonary impairment did not limit him to the extent opined by Dr. Heflin,
including the opinion of consultative examiner Dr. Noordizj based on mild PFT results in
January 2006 (Tr. 16, 263), and that of Dr. Davis in September 2009, when PFTs showed
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moderately severe obstruction but plaintiff was nonetheless determined to be able to
perform a range of light work. (Tr. 332, 334) Thus, despite Dr. Heflin’s specialty in
pulmonary medicine, the ALJ properly discounted his assessment as overly restrictive,
implicitly rejecting it to the extent that is was inconsistent with the ability to perform this
restricted range of light work.
Plaintiff’s second argument does not challenge the ALJ’s decision, but seeks
remand pursuant to the sixth sentence of 42 U.S.C. § 405(g), for agency consideration of new
and material evidence, i.e., the opinion of physician’s assistant Darice Spackman, PA-C.
Invoking sentence six, the court may order a return to the agency for its adjudicators to
consider evidence that was not previously before them, “but only upon a showing that there
is new evidence which is material and that there is good cause for failure to incorporate such
evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g).
For the purposes of a 42 U.S.C. § 405(g) remand, evidence is new only if it was
“not in existence or available to the claimant at the time of the administrative
proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626, 110 S.Ct. 2658, 110
L.Ed.2d 563 (1990). Such evidence is “material” only if there is “a reasonable
probability that the Secretary would have reached a different disposition of
the disability claim if presented with the new evidence.” Sizemore v. Sec’y of
Health & Human Servs., 865 F.2d 709, 711 (6th Cir. 1988). A claimant shows
“good cause” by demonstrating a reasonable justification for the failure to
acquire and present the evidence for inclusion in the hearing before the ALJ.
Willis v. Sec’y of Health & Human Servs., 727 F.2d 551, 554 (1984) (per
curiam). As noted above, the burden of showing that a remand is appropriate
is on the claimant. Oliver v. Sec’y of Health & Human Servs., 804 F.2d 964,
966 (6th Cir. 1986).

Foster v. Halter, 279 F.3d 348, 357 (6th Cir. 2001). Even assuming the newness and
materiality of Ms. Spackman’s opinion, the requisite good cause showing has not been made.
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Plaintiff merely states that “there is good cause for failure to incorporate Ms. Spackman’s
opinion into the record at the hearing level. The opinion did not exist at that time.” (Docket
Entry No. 15 at 14) However, this statement merely establishes the newness of the evidence.
Foster, supra (quoting Sullivan v. Finkelstein, 496 U.S. at 626). The Sixth Circuit takes a
“harder line” on the good cause test, requiring a “valid reason” for not procuring and
submitting evidence prior to the ALJ hearing. Id. (citing Willis v. Sec’y of Health & Human
Servs., 727 F.2d at 554). No such reason has been offered in this case. Accordingly, plaintiff
has failed to meet his burden of showing that a sentence six remand is appropriate.

IV. Recommendation
In light of the foregoing, the Magistrate Judge recommends that plaintiff’s
motion for judgment on the administrative record be DENIED, and that the decision of the
SSA be AFFIRMED.
Any party has fourteen (14) days from receipt of this Report and
Recommendation in which to file any written objections to it with the District Court. Any
party opposing said objections shall have fourteen (14) days from receipt of any objections
filed in which to file any responses to said objections. Failure to file specific objections
within fourteen (14) days of receipt of this Report and Recommendation can constitute a
waiver of further appeal of this Recommendation. Thomas v. Arn, 474 U.S. 140 (1985);
Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004)(en banc).

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ENTERED this 8th day of June, 2015.

s/ John S. Bryant
JOHN S. BRYANT
UNITED STATES MAGISTRATE JUDGE

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