Paiz v. Social Security Administration

Filing 11

MEMORANDUM signed by Chief Judge Kevin H. Sharp on 2/23/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

LUIS RODOLFO PAIZ

)
)
)
)
)
)
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v.
NANCY BERRYHILL1,
acting Commissioner of the
Social Security Administration

No. 3:13-00534
CHIEF JUDGE SHARP

MEMORANDUM
I. Introduction
Pending before the Court is the Plaintiff’s Motion For Judgment On The Administrative
Record (Docket No. 8), to which the Defendant has filed a Response. (Docket No. 9). For the
reasons set forth herein, the Plaintiff’s Motion is DENIED, and the decision of the Social
Security Administration is AFFIRMED.
II. Procedural Background
The Plaintiff filed an application for disability insurance benefits under the Social
Security Act claiming disability based on a herniated disc in his back, and pain in his right
shoulder, neck, and right knee. (Administrative Record (“AR”), at 42-43 (Docket No. 5)). The
Plaintiff’s claim was denied at the initial review stage, and also after the Plaintiff requested
reconsideration. (AR, at 42-45). The Plaintiff subsequently requested a hearing before an
Administrative Law Judge (“ALJ”), and the ALJ convened the hearing on September 19, 2011.
(AR, at 53-54, 11-41).

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Nancy Berryhill became acting Commissioner for the Social Security Administration
on January 23, 2017.

The Plaintiff appeared with counsel at the hearing, and testified in support of his claim.
(Id.) The ALJ issued a written decision on October 7, 2011, finding that the Plaintiff was not
disabled. (Id.) In his decision, the ALJ found as follows:
1. The claimant meets the insured status requirements of the Social Security Act
through December 31, 2012.
2. The claimant has not engaged in substantial gainful activity since November
18, 2007, the alleged onset date (20 CFR 404.1571 et seq.).
3. The claimant has the following severe impairments: bilateral knee
osteoarthritis, right shoulder degenerative joint disease, and lumbar degenerative
disc disease (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, I find that the claimant has the
residual functional capacity to perform the full range of sedentary work as defined
in 20 CFR 404.1567(a).
6. The claimant is capable of performing past relevant work as an aircraft
maintenance superintendent. This work does not require the performance of work
related activities precluded by the claimant’s residual functional capacity (20 CFR
404.1565).
7. The claimant has not been under a disability, as defined in the Social Security
Act, from November 18, 2007, through the date of this decision (20 CFR 404.
1520(f)).
(AR, at 16-19).
The Appeals Council denied the Plaintiff’s request for review of the ALJ decision (AR, at
1-3), which became the final decision of the Social Security Administration (“SSA”). Sims v.
Apfel, 530 U.S. 103, 107, 120 S. Ct. 2080, 2083, 147 L. Ed. 2d 80 (2000). This action, seeking
review of that decision, has been timely filed, and the Court has jurisdiction under 42 U.S.C. §
405(g) to adjudicate it.
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III. Review of the Record
The Plaintiff testified at the hearing before the ALJ that he was 58 years old. (AR, at 29).
According to the Plaintiff, he had completed two years of college-level work, and had held a
license issued by the Federal Aviation Administration as an aircraft mechanic. (Id., at 29-30).
The Plaintiff testified that he retired from 23 years of military service, and then
worked as an airline mechanic and in other jobs . (Id., at 37-38). The Plaintiff explained that he
left aviation because he could not work on airplanes when taking medication. (Id.)
As for his medical condition, the Plaintiff testified that he had been diagnosed as having
arthritis “all over the body,” and that he has chronic back and knee pain. (Id., at 30-31). The
Plaintiff also testified that he suffered from diabetes, blurred vision, and dizzy spells. (Id.)
According to the Plaintiff, as of the date of the hearing, he had been using a cane to walk for the
past 18 months, spent most of the day in bed, and was unable to drive. (Id., at 32-35).
After the Plaintiff testified, the ALJ stated that he did not have any questions for the
vocational expert who was present at the hearing, and asked the Plaintiff’s attorney if she had
anything further to add. (Id., at 40). She said she did not. (Id.)
In his subsequent written opinion, the ALJ reviewed the medical evidence as follows:
Records from the Department of Veterans Affairs (‘VA’) document back pain
complaints since at least July 7, 2009, when [the Plaintiff] was seen in the VA
hospital emergency room for such complaints. He had previously been overseas
and requested medication refills. VA records show he established a treatment
relationship at the local VA facility on August 5, 2009. He was still complaining
of lower back pain. He made additional back pain complaints on November 6,
2009. Interestingly, he declined a prescription for pain medications other than
Tramadol, suggesting his pain might have not been particularly severe.
A few days later, on November 14, 2009, he had a compensation and pension
examination at the VA. He reported a history of bilateral knee pain in the military.
This had grown progressively worse, but right knee arthroscopic surgery provided
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some improvement. He noted dislocating his right shoulder in 1985. This led to
increasing pain and decreased motion. He eventually had rotator cuff repair. Xrays showed only minimal degenerative joint disease in both knees and mild
degenerative joint disease in his right shoulder. He reported being unemployed
due to his back pain. He said it started in the military and grew progressively
worse such that he claimed to sometimes need a walker. Magnetic resonance
imaging of his lumbar spine did reveal a herniated disc at L5-S1, along with
multilevel degenerative disc disease. He claimed it had a severe effect on his
ability to complete daily chores (Ex. 7F).
He started pain management services in February 1, 2010. He was now on
Percocet and was about to receive lumbar epidural steroidal injections (Ex. 8F).
However, he continued to complain of lower back pain through October 2010.
Percocet caused an allergic rash (Ex. 10F; 11F). VA staff members eventually
persuaded him to try methadone for his lower back on October 18, 2010 (Ex.
13F).
He started complaining more of right knee pain in early 2011. He was seen in the
VA hospital emergency room complaining of three weeks of such pain on March
12, 2011. He made a lot of complaints regarding his care at the VA over the next
few months, but he was in good enough health to plan a several month visit to
South America in the coming months (Ex. 13F).
He started seeing Dr. Keith Starkweather, M.D., for his right knee pain in May
2011. Dr. Starkweather diagnosed him with right knee osteoarthritis. This
included signs of crepitus. Dr. Starkweather performed right knee arthroscopy on
June 10, 2011. The claimant does appear to have responded fairly well to this
surgery, although he continued to make various musculoskeletal complaints
related to previous injuries. Dr. Starkweather prescribed Celebrex, which had
improved his knee, shoulder, and spinal pain by July 11, 2011. A new magnetic
resonance imaging study of his lumbar spine was unremarkable with minimal
findings, contrary to the past study (Ex. 16F).
(AR, at 17-18).
As to the Plaintiff’s testimony at the hearing, the ALJ explained that he gave it significant
weight in finding that the Plaintiff is limited to sedentary work, but did not fully credit the
testimony because it was not consistent with the medical records and other evidence. (Id., at 18).
The ALJ pointed out that the earliest mention of the Plaintiff’s having used a cane was on May
25, 2011, approximately four months prior to the hearing, rather than 18 months as he testified.
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(Id.) The ALJ also pointed out that the Plaintiff’s testimony that his blurred vision prevents him
from driving was inconsistent with records of a completely normal eye exam conducted in June,
2011 and the absence of any subsequent evidence of a vision problem. (Id.) The ALJ noted that
there was no evidence that the Plaintiff had told a medical provider he spends most of the day
lying down, and there was no evidence of an impairment that would confine the Plaintiff to a bed
most of the day. (Id.)
The ALJ then considered the Medical Source Statements (or “Physical Capacity
Evaluation”) signed by Dr. Dozier and Dr. Starkweather. (Id.)2 As more fully explained below,
the ALJ determined that the opinions reflected on those forms were not fully supported by the
medical evidence in the record. (Id., at 18-19).
IV. Analysis
A. Standard of Review
This Court’s review of the SSA decision to deny benefits is “‘limited to determining
whether the Commissioner’s decision is supported by substantial evidence and was made
pursuant to proper legal standards.’” Miller v. Comm’r of Soc. Sec., 811 F.3d 825, 833 (6th Cir.
2016)(quoting Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405-06 (6th Cir. 2009)).
“Substantial evidence” constitutes “‘more than a scintilla’ but less than a preponderance” and is
“such ‘relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.’” Id. (quoting Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001)). In making that
determination, the court is to examine the evidence in the record as a whole and “‘take into

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The form is to be completed by a physician and asks that he or she check various
boxes to describe the types of limitations the claimant may have. See, e.g., Hernandez v. Comm’r
of Soc. Sec., 644 F. App’x, 468, 471 (6th Cir. 2016).
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account whatever in the record fairly detracts from its weight.’” Conner v. Comm’r of Soc. Sec.,
658 F. App’x 248, 253 (6th Cir. 2016)(quoting Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir.
1990)). If the court finds substantial evidence to support the decision, it must affirm and “may
not inquire whether the record could support a different decision.” Id. The court may not resolve
conflicts in evidence or decide questions of credibility. Id.; Ulman v. Comm’r of Soc. Sec., 693
F.3d 709, 713 (6th Cir. 2012). If the ALJ fails to follow agency rules and regulations, however,
his or her decision is not supported by substantial evidence, even if the ALJ’s conclusion may be
justified based upon the record. Miller, 811 F.3d at 833.
The ALJ’s analysis of the credibility of a claimant is accorded “‘great weight and
deference particularly since the ALJ has the opportunity, which we do not, of observing a
witness's demeanor while testifying.’” Sorrell v. Comm'r of Soc. Sec., 656 F. App'x 162, 173 (6th
Cir. 2016)(quoting Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 476 (6th Cir. 2003)). Although
subjective complaints of a claimant can support a claim for disability, those claims may be
discounted if they are inconsistent with the objective evidence in the record. Id.
B. The Five-Step Analysis
The Social Security Act defines “disability” as 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 12 months.” 42 U.S.C. § 423(d)(1)(A). A “physical or mental
impairment” is defined as “an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically acceptable clinical and
laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

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In determining whether the claimant is disabled within the meaning of the Social Security
Act, the ALJ is to apply a five-step analysis as set forth in 20 C.F.R. § 404.1520(a). Kepke v.
Comm’r of Soc. Sec., 636 F. App’x 625, 627-28 (6th Cir. 2016). “If the claimant is found to be
conclusively disabled or not disabled at any step, the inquiry ends at that step.” Id., at 627
(quoting Rabbers v. Comm’r of Soc. Sec., 582 F.3d 647, 652 (6th Cir. 2009)). The analytical
framework is as follows:
1) If the claimant is doing substantial gainful activity, the claimant is not disabled.
2) If the claimant does not have a severe medically determinable physical or
mental impairment – i.e., an impairment that significantly limits his or her
physical or mental ability to do basic work activities – the claimant is not
disabled.
3) If the claimant has a severe impairment(s) that meets or equals one of the
listings in Appendix 1 to Subpart P of the regulations and meets the duration
requirement, the claimant is disabled.
4) If the claimant's impairment does not prevent him or her from doing his or her
past relevant work, the claimant is not disabled.
5) If the claimant can make an adjustment to other work, the claimant is not
disabled. If the claimant cannot make an adjustment to other work, the claimant is
disabled.
Kepke, 636 F. App'x at 627-28. The burden of proof is on the claimant through the first four
steps of the analysis, but then shifts to the Commissioner, if the analysis reaches the fifth step, to
“‘identify a significant number of jobs in the economy that accommodate the claimant's residual
functional capacity. . . ‘” Id., at 628 (quoting Warner v. Comm'r of Soc. Sec., 375 F.3d 387, 390
(6th Cir.2004)). The analysis at step four, at issue in this case, requires “‘a comparison of the
physical demands of the claimant’s past relevant work with [his] present mental and physical
capacity.’” Sorrell, 656 F. App’x, at 169 (quoting Walters v. Comm’r of Soc. Sec., 127 F.3d 525,

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529 (6th Cir. 1997)). In determining the claimant’s residual functional capacity, the ALJ is
required to consider the combined effect of all of the claimant’s ailments. 42 U.S.C. §
423(d)(2)(B); 20 CFR § 404.1545(e). See also Glenn v. Comm'r of Soc. Sec., 763 F.3d 494, 499
(6th Cir. 2014).
In this case, the ALJ found the Plaintiff was capable of performing his past relevant work
as an aircraft maintenance superintendent, which state agency vocational specialists classified as
“sedentary work.” (AR, at 149, 163). The Social Security regulations define “sedentary work” as
follows:
(a) Sedentary work. 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. Although a sedentary job is defined as one which involves sitting, a
certain amount of walking and standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and standing are required occasionally and
other sedentary criteria are met.
20 C.F.R. § 404.1567.
C. Plaintiff’s Statement of Errors
The Plaintiff claims that the ALJ erred in failing to give controlling weight to the
Medical Source Statements from the Plaintiff’s treating physicians, Dr. Damon Dozier and Dr.
Keith Starkweather. In making a disability determination, an ALJ is to give “controlling
weight” to the opinion of a treating physician 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 CFR 404.1527(c)(2). If the ALJ does not give controlling
weight to the opinion of a treating physician, he or she is required to provide good reasons by
identifying specific discrepancies in the record. Id.; Hernandez, 644 F. App’x, at 473. The ALJ
is also required to determine what weight to give the treating physician’s opinion by considering
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the length of the treatment relationship and the frequency of examination; the nature and extent
of the treatment relationship; the supportability of the opinion; consistency of the opinion with
the record as a whole; and the specialization of the treating source. 20 C.F.R. § 404.1527(c);
Hernandez, 644 F. App’x, at 473-74.
The ALJ is to provide “good reasons” for discounting the opinion of a treating physician,
and those reasons 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 that
weight.’” Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013)(quoting Soc. Sec.
Rul. No. 96-2p, 1996 WL 374188, at *5 (Soc. Sec. Admin. July 2, 1996)). The purpose of this
procedural requirement is to “‘ensure[] that the ALJ applies the treating physician rule and
permits meaningful review of the ALJ’s application of the rule.’” Id. (quoting Wilson v. Comm’r
of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004)).
The ALJ discussed the opinions of Dr. Dozier and Dr. Starkweather as follows:
On August 2, 2011, Dr. Damon Dozier completed a form asserting that the
claimant would need to lie down for five hours during an eight-hour work day;
could never push, pull, or reach with either arm; could never stoop; and would
need three work breaks every hour. It appears that Dr. Dozier is a pain specialist
who treated the claimant on six occasions between February 1, 2010 and May 25,
2011 (Ex. 11F). His treatment notes do not include any significant abnormal
findings, other than back tenderness and positive straight leg raise testing. He
does not identify any abnormal findings that support his opinions and he does not
offer any narrative explanation for those opinions. Stooping is defined as
‘bending the body downward and forward by bending the spine at the waist.’ See
Social Security Ruling 85-15. Dr. Dozier’s opinion that the claimant can never
stoop is inconsistent with my observation that claimant was able to assume a
seated position during his hearing. I give some weight to Dr. Dozier’s opinions in
finding that the claimant is limited to sedentary work, but I do not give it full
credit.
On August 17, 2011, Dr. Keith Starkwater completed a form indicating that the
claimant would need to lie down for four hours during an eight hour work day;
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can never reach with either arm; can never stoop; cannot work full time; and
would need a rest break every 30 minutes. It appears that Dr. Starkweather is an
orthopedist who treated the claimant on eight occasions between May 12, 2011
and August 17, 2011, and who performed arthroscopic surgery on the claimant’s
right knee on June 10, 2011 (Ex. 16F). A June 23, 2011 MRI of the lumbar spine
had only minimal abnormal findings with no evidence of nerve root impingement.
By July 11, 2011, the claimant’s right knee was doing well and claimant had no
complaints. Dr. Starkweather did not refer to abnormal findings that supported his
opinions. He explained that claimant ‘has diffuse osteoarthritis’ but that statement
is not consistent with x-ray or other imaging reports. His statement that claimant
can never stoop is inconsistent with the claimant’s ability to sit. I give some
weight to Dr. Starkweather’s opinions in finding that the claimant is limited to
sedentary work, but I do not fully credit it.
Two state medical consultants reviewed the evidence and determined that
claimant can perform medium work (Exs. 6F and 9F). I give some weight to those
opinions, but I find that the claimant is limited to sedentary work because I give
some weight to claimant’s testimony and the opinions of Drs. Dozier and
Starkweather.
(AR, at 18-19).
The Court concludes that the ALJ provided good reasons for according the opinions of
Drs. Dozier and Starkweather “some weight” rather than “controlling weight.” The ALJ noted
the specialization of each doctor, the length of the treatment relationship, and the frequency of
examination. The ALJ then explained why the opinions of each doctor were not supported by the
record. As for Dr. Dozier, the ALJ pointed out that the restrictions reflected on the form were not
supported by any abnormal findings or any narrative explanation, nor were they supported by the
doctor’s treatment notes. The ALJ also noted that the Plaintiff was able to sit at the hearing,
which is inconsistent with Dr. Dozier’s finding that he could never stoop. As for Dr.
Starkweather, the ALJ explained that the most recent MRI of the Plaintiff’s lumbar spine had
only minimal abnormal findings, and that records show the Plaintiff’s right knee was doing well
a couple of months prior to the hearing. The ALJ also pointed out that Dr. Starkweather’s

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assertion that the Plaintiff had “diffuse osteoarthritis” was not consistent with x-ray or other
imaging reports. The ALJ also noted again that the assertion that the Plaintiff can never stoop is
inconsistent with his ability to sit.
On the other hand, the ALJ disagreed with the state’s medical consultants who opined
that the Plaintiff was able to perform medium work, instead finding that the Plaintiff was limited
to sedentary work based on the weight given to the opinions of Drs. Dozier and Starkweather.
The Plaintiff argues that the forms filled out by the treating physicians do not ask the
physician to identify the abnormal findings that support his opinion, and therefore, the ALJ
should not reduce the amount of weight given to the opinions on that basis. The ALJ did not
reduce the weight given to the opinions solely for failure to note the abnormal findings on the
forms. Rather, as the ALJ pointed out, the assertions on the forms were not supported by the
medical records and other evidence. Furthermore, the Sixth Circuit has held that an ALJ may
accord less weight to a physician’s “check-box analysis,” when it is unaccompanied by
explanation. Hernandez, 644 F. App’x, at 474-75. See also Kepke, 636 F. App’x, at 630 (ALJ
properly discounted physician’s “checklist opinion” because it failed to provide an explanation
for its findings).
The Plaintiff also argues that the ALJ’s discussion of stooping is not a sufficient
explanation for reducing the weight given the opinions. The Plaintiff contends that his ability to
sit in a chair for the hearing is not dispositive proof that he can stoop even occasionally in an
occupational setting. The ALJ cited the definition of “stooping” in Social Security Ruling 85-15
– bending the body downward and forward by bending the spine at the waist – in pointing out
that the Plaintiff’s ability to sit at the hearing was inconsistent with the physicians’ assertions

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that he could never stoop.
Assuming the ALJ erred in equating the ability to sit at the hearing with the ability to
stoop, however, the Court finds such an error harmless because the medical evidence does not
support the assertion that the Plaintiff can never stoop, and sedentary work requires only
occasional stooping. 20 C.F.R. § 404.1567(a); Social Security Ruling 96-9p. See also McKinnie
v. Comm’r of Soc. Sec., 24 F. App’x 314 (6th Cir. 2001)(Inability to perform more than
occasional stooping does not preclude ability to perform wide range of sedentary work).
The Plaintiff also argues that the ALJ did not address the treating physicians’ assertions
that he would require a minimum of two breaks an hour, which the Plaintiff contends renders
him disabled even if one disregards all his other limitations. In concluding that the treating
physicians’ assertions about the Plaintiffs’ limitations, including the need for breaks, were not
supported by the medical evidence, however, the ALJ considered and determined that the
assertions were not entitled to full credit.
Finally, the Plaintiff suggests that if the ALJ had allowed the vocation expert to testify at
the hearing, she would have “undoubtedly” testified that the Plaintiff “would be disabled based
on the limitations provided by both of the treating physicians because both physicians opined
that the Plaintiff would be limited to less than full time work and would require significantly
more breaks than those customarily tolerated by employers.” (Docket No. 8-1, at 8). As noted
above, at the hearing, the ALJ stated that he did not have any questions for the vocational expert,
and then provided counsel for the Plaintiff an opportunity to raise any other issues. (AR, at 40).
Counsel declined. (Id.) The Plaintiff’s speculation about how the vocational expert would have
testified does not serve to undermine the ALJ’s conclusions.

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In sum, the Court concludes that the decision of the Social Security Administration is
supported by substantial evidence on the record as a whole, and should be affirmed.
V. Conclusion
For the reasons set forth herein, the Plaintiff’s Motion For Judgment On The
Administrative Record (Docket No. 8) is denied.
It is so ORDERED.
______________________________
KEVIN H. SHARP
UNITED STATES DISTRICT JUDGE

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