Keith v. Social Security Administration

Filing 20

MEMORANDUM AND ORDER: The court finds the R&R to be well-founded. 1. The Objections (Docket No. 18) are OVERRULED; 2. The Magistrate Judge's Report and Recommendation (Docket No. 17) is ACCEPTED AND ADOPTED. 3. The plaintiff's Motion for Ju dgement on the Record (Docket No. 14 ) is DENIED. 3. The decision of the Social Security Administration is AFFIRMED. This Order constitutes the judgment in this case. It is so ORDERED. Signed by District Judge Aleta A. Trauger on 3/29/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DAVID E. KEITH, III,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

Civil Action No. 3:14-cv-02261
Judge Trauger / Knowles

MEMORANDUM AND ORDER
On February 23, 2016, the Magistrate Judge issued a Report and Recommendation
(“R&R”) (Docket No. 17), to which the plaintiff, David E. Keith, III (“Keith”) has filed timely
Objections (Docket No. 18), and the defendant has filed a Response (Docket No. 19). The R&R
recommends that the plaintiff’s Motion for Judgment on the Record (Docket No. 14) be denied
and the decision of the Social Security Administration (“SSA”) with respect to the plaintiff’s
claim for disability benefits be affirmed. For the reasons discussed herein, the court will
overrule the plaintiff’s Objections and accept the R&R.
BACKGROUND1
On June 13, 2011, Keith filed applications for Disability Insurance Benefits and
Supplemental Security Income, alleging that he had been disabled since February 28, 2009, due

1

The background is taken from the R&R, familiarity with which is presumed. The R&R
provides a detailed background of this matter, including a summary of the record before the ALJ.
The court recites here only the facts necessary to review the plaintiff’s Objections.
1

to a benign spinal cord tumor. (Docket No. 10 (hereinafter “AR”), pp. 116-19, 120-26, 140.)
Keith’s applications were denied both initially (id. at pp. 56, 57) and upon reconsideration (id. at
pp. 58, 59). Keith subsequently requested (id. at pp. 76-77) and received (id. at pp. 26-55) a
hearing. Keith’s hearing was conducted on June 19, 2013 by Administrative Law Judge (“ALJ”)
Renee Andrews-Turner. (Id. at pp. 26-55.) Keith and a vocational expert appeared and testified.
(Id.)
On August 20, 2013, the ALJ issued a decision unfavorable to Keith, finding that Keith
was not disabled within the meaning of the Social Security Act and Regulations. (Id. at pp. 1025.) As the Magistrate Judge summarized, the ALJ’s decision contained the following findings:
1.

The claimant meets the insured status requirements of the
Social Security Act through December 31, 2013.

2.

The claimant has not engaged in substantial gainful activity
since February 28, 2009, the alleged onset date (20 CFR
404.1571 et seq., and 416.971 et seq.).

3.

The claimant has the following severe impairment: status
post cervical ependymoma, cervical spondylosis and
cervical syrinx (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 lift and/or carry 10 pounds
occasionally and less than 10 pounds frequently; stand and
walk for 2 hours in an 8-hour workday; sit for 6 hours in an
8-hr [sic] workday; occasionally stoop, kneel, crouch,
crawl, balance and climb ramps/stairs; never climb ladders,
ropes and scaffolds; frequently push and pull with both
lower extremities; should avoid all exposure to hazards;
2

and requires the use of a cane to ambulate.
6.

The claimant is unable to perform any past relevant work
(20 CFR 404.1565 and 416.965).

7.

The claimant was born on January 8, 1973 and was 36
years old, which is defined as a younger individual age 1844, 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 material to the
determination of disability because using the MedicalVocational 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 February 28, 2009, through
the date of this decision (20 CFR 404.1520(g) and
416.920(g)).

(AR 15-20.)
On August 30, 2013, Keith timely filed a request for review of the hearing decision. (Id.
at 9.) On September 23, 2014, the Appeals Council issued a letter declining to review the case
(Id. at pp. 1-6), thereby rendering the decision of the ALJ the “final decision” of the
Commissioner.
Keith filed this civil action on November 14, 2014. (Docket No. 1.) The SSA answered

3

the Complaint on January 15, 2015. (Docket No. 9.) On February 26, 2015, Keith filed a
Motion for Judgment on the Record (Docket Nos. 14), which the SSA opposed (Docket No. 16).
On February 23, 2016, the Magistrate Judge issued the R&R, which recommended that
Keith’s Motion for Judgment on the Record be denied and that the decision of the SSA be
affirmed. (Docket No. 17.) Keith filed timely Objections to the R&R on March 6, 2016.
(Docket No. 18.) The SSA opposed the plaintiff’s Objections on March 9, 2016.2 (Docket No.
19.)
ANALYSIS
I.

Standard of Review
When a magistrate judge issues a report and recommendation regarding a dispositive

pretrial matter, the district court must review de novo any portion of the report and
recommendation to which a specific objection is made. Fed. R. Civ. P. 72(b); 28 U.S.C. §
636(b)(1)(C); United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001); Massey v. City of
Ferndale, 7 F.3d 506, 510 (6th Cir. 1993). Objections must be specific; an objection to the
report in general is not sufficient and will result in waiver of further review. See Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995).
In social security cases, the Commissioner determines whether a claimant is disabled
within the meaning of the Social Security Act and, thereby, entitled to benefits. 42 U.S.C. §
405(h). Review of an ALJ’s decision, if any, is limited to whether the ALJ applied the correct
legal standards and whether the findings of the ALJ are supported by substantial evidence. Key v.

2

The SSA’s opposition merely incorporated by reference its prior Response to the
Motion for Judgment on the Record. (See Docket No. 19.)
4

Callahan, 109 F.3d 270, 273 (6th Cir. 1997). The substantial evidence standard is met if a
“reasonable mind might accept the relevant evidence as adequate to support a conclusion.”
Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004) (internal quotation omitted).
“The substantial evidence standard . . . presupposes that there is a zone of choice within which
the decision makers can go either way, without interference by the courts.” Mullen v. Bowen,
800 F.2d 535, 545 (6th Cir. 1986) (quoting Baker v. Heckler, 730 F.2d 1147, 1149 (8th Cir.
1984)). Therefore, if substantial evidence supports an ALJ’s decision, the court defers to that
finding, “even if there is substantial evidence in the record that would have supported an opposite
conclusion.” Wright v. Massanari, 321 F.3d 611, 614 (6th Cir. 2003) (citing Callahan, 109 F.3d
at 273).

II.

Keith’s Objections
A.

Mental Health

Keith objects to the R&R on the grounds that the Magistrate Judge erroneously
concluded that his “mental impairment” was not offered as a basis for disability and that the
R&R improperly dismisses the ALJ’s need to address evidence related to that impairment. Keith
concedes, as the R&R indicates, that he did not allege a mental impairment as a basis of
disability when he filed his application. However, Keith maintains that his condition worsened
over time and that evidence of his mental impairment was put before the ALJ, but not properly
considered by her, at the time of the hearing. The SSA responds that Keith was only
hospitalized for five days in May 2012 for a single episode of severe depression due to pain and
function loss (see AR, pp. 781-84, 905-90) and that Keith did not establish an independent
mental impairment that caused functional limitations for a period of 12 months as required by the

5

Regulations, see 20 C.F.R. §§ 404.1505(a), 416.905(a).
The court agrees with the SSA. When he applied for disability in June 2011, Keith
claimed that he could not work due entirely to a spinal condition, without mentioning any mental
impairment. (AR, p. 140.) In July 2011 and January 2012 function reports, he articulated no
limitations related to a mental impairment. (Id. at pp. 159-61, 177-78.) Specifically, he
indicated that his impairments did not affect his memory, concentration, understanding, ability to
pay attention, ability to follow instructions, or ability to get along with others. (Id. at pp. 159-60,
177-78.) He did check a box indicating that he had “unusual behavior or fears,” but the only
fears he articulated involved “fear of the unknown” and a concern that his physical condition
might never improve. (Id. at pp. 160, 178.) And at the hearing in April 2013, Keith testified that
he “got depressed” over his physical condition, but he did not explain how any mental
impairment affected his ability to work other than to say that he was upset “where I’m not able to
do what I used to do, you know, and be a provider because that’s what I’ve always been. And I
think I just let it get the best of me.” (Id. at p. 35.) There was no further discussion offered by
Keith. Accordingly, the Magistrate Judge correctly found that the ALJ did not err by not
discussing Keith’s mental functioning in her decision.
B.

Treating Physicians

Keith next contends that the Magistrate Judge failed to fully address his argument that the
ALJ improperly evaluated the medical opinion evidence of record. Specifically, Keith argues
that, even if the ALJ did not afford “controlling” weight, the ALJ should have accorded
“greater” weight to the opinions of VA treating physicians Dr. Yemane Hadgu and Dr. John
Matlock (who Keith believes opined that the plaintiff was disabled) than to the opinion of an

6

agency consultant, Dr. Evelyn Davis (who opined that plaintiff was not disabled), because Dr.
Davis rendered her opinion after a review of the evidence available on January 12, 2012, which
did not include (1) certain evidence from Dr. Matlock of the VA Spinal Cord Injury Clinic (AR,
pp. 616-19), (2) VA records after October 27, 2011 (id. at pp. 638-1153), and (3) Vanderbilt
records after July 19, 2011 (id. at pp. 628-37). Keith argues that the ALJ’s decision to afford
greater weight to the opinion of a non-treating, non-examining consultant, who only reviewed
part of the medical evidence, than to the opinions of two of his treating physicians was not
supported by substantial evidence.
The SSA responds that the ALJ properly evaluated all of the evidence of record,
including the objective medical records, the opinion evidence, the testimonial evidence, and
Keith’s subjective complaints and reported daily activities. (Docket No. 16, pp. 4-14 (citing AR,
pp. 17-19).) Regarding the ALJ’s consideration of the opinion of treating physician Dr. Matlock,
the SSA asserts that, although Dr. Matlock checked boxes indicating, inter alia, that Keith would
have difficulty working continuously for eight hours without several intermittent periods of rest,
(1) the exertional limitations assessed by Dr. Matlock were roughly consistent with the
exertional requirements of sedentary work; (2) the postural limitations assessed by Dr. Matlock
were consistent with those contained in the ALJ’s residual functional capacity determination;
and (3) the ALJ did not have to accept Dr. Matlock’s opinion that Keith would be unable to
complete a normal work day and work week without interruption from his medical impairments,
because Keith’s impairments had improved with treatment and the ALJ limited Keith to jobs
where there was only occasional walking and where use of a cane was permissible. (Id. at pp.
10-11.) The SSA argues that the ALJ appropriately found that Dr. Davis’ opinion that Keith

7

could perform sedentary work with occasional postural activities and frequent use of a cane was
generally consistent with the medical record and properly explained her reasons for so finding.
(Id. at p. 9.)
The ALJ must articulate the reasons underlying her decision to give a medical opinion a
specific amount of weight. See, e.g., 20 C.F.R. § 404.1527(d); Allen v. Comm’r of Soc. Sec., 561
F.3d 646, 651 (6th Cir. 2009); Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544-47 (6th Cir.
2004). The reasons must be supported by the evidence and must be sufficiently specific so as to
make clear to any subsequent reviewers the weight the ALJ gave to the treating source medical
opinion and the reasons for that weight. SSR 96-2p, 1996 WL 374188 (July 2, 1996)
(hereinafter “SSR 96-2p”). The Code of Federal Regulations states that a treating source’s
expert medical opinion is generally entitled to “controlling” weight if 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. § 416.927(c). The Sixth Circuit
has held that, “provided that they are based on sufficient medical data, the medical opinions and
diagnoses of treating physicians are generally accorded substantial deference, and if the opinions
are uncontradicted, complete deference.” Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 240
(6th Cir. 2002) (quoting Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985)).
The ALJ in the instant action discussed the medical opinions of record, and the weight
she accorded thereto, as follows:

8

As for the opinion evidence, the undersigned gives great weight to
the opinion of State agency medical consultant Dr. Evelyn Davis.
Dr. Davis reviewed the evidence and opined that the claimant was
capable of sedentary exertional activities with additional
exertional, postural, and environmental limitations. Dr. Davis was
also of the opinion that the claimant would be more comfortable
using a cane for balance. The undersigned finds Dr. Davis’
opinion generally consistent with the claimant’s history of back
surgery, pre-and post-surgical radiology reports of the claimant’s
cervical and thoracic spine, physical examinations of the claimant
that demonstrated some sensory changes on occasion, and the
claimant’s reported activities of daily living, all of which support
his ability for sedentary activities. Dr. Davis’ assessment also
indicated that the claimant’s subjective reports of pain, weakness,
and numbness in the extremities appeared somewhat embellished. Dr.
Davis pointed out that the claimant’s subjective complaints of pain
and weakness were inconsistent with his treating physicians’ physical
findings (Ex. 11F). Thus, the undersigned finds the claimant’s
allegations of pain is not totally credible because the medical
evidence shows the diagnostic findings such as MRI reports do not
cause the level of pain that the claimant has alleged. Although overly
optimistic in many areas in considering physical examinations of the
claimant and the claimant’s activities of daily living, as previously
discussed above, the undersigned gives some weight to the opinion
of the claimant’s treating physician Dr. John Matlock (Ex. 13F) in
that it supports the contention that the claimant has the capacity for
sedentary activities. . . . The undersigned gives no weight to the
opinion of the claimant’s treating physician Dr. Yemane Hadgu
because there is no evidence to support the presence of residual
effects of loss of balance and motor power in the claimant’s lower
extremities. While the claimant has complained of balance issues to
doctors, there is no evidence that the claimant is unable to ambulate
effectively. The claimant has 5/5 muscle strength in the lower
extremities and has been consistently thought to be neurologically
intact (Ex. 4F). The claimant’s deep vein thrombosis resolved with
no evidence of recurrent episodes.
(AR 18-19.) In making these determinations, that ALJ also considered the medical evidence of
record, discussed at length in the R&R. (AR 16-18.) It is clear from this discussion that the
ALJ found medical evidence of record that supported Dr. Davis’s opinion and undermined that
of the treating physicians Dr. Matlock and Dr. Hegdu. The court agrees that such evidence

9

existed.
It is correct, as the Magistrate Judge concluded, that the Regulations do not mandate that
the ALJ give “controlling” weight to a treating physician’s evaluation when that evaluation is
inconsistent with other substantial evidence in the record. See 20 C.F.R. §§ 416.927(d)(2),
404.1527(d)(2). Instead, when there is contradictory evidence, the treating physician’s opinion
is weighed against the contradictory evidence. Id. When the opinions are inconsistent with each
other, the final decision regarding the weight to be given to the differing opinions lies with the
Commissioner. 20 C.F.R. § 416.927(e)(2); see also 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.”). An
ALJ is entitled to reject the opinion of a treating physician as long as she articulates some basis
for doing so. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).
However, it is also correct that the Magistrate Judge failed to address Keith’s argument
that his two treating physicians should be afforded “greater,” rather than “controlling,” weight
vis a vis Dr. Davis. An opinion from a treating source may not be entitled to controlling weight
but might still be entitled to greater weight, if the opinion of a non-examining expert does not
comprise substantial evidence. See SSR 96-2p (“A finding that a treating source's medical
opinion is not entitled to controlling weight does not mean that the opinion is rejected. It may
still be entitled to deference and be adopted by the adjudicator.”). The court agrees with Keith
that the R&R does not address whether the ALJ’s decision affording greater weight to a nontreating, non-examining medical consultant is supported by substantial evidence. Therefore, the
court must determine whether it is so supported. As discussed above, this “substantial evidence”
is “such evidence as a reasonable mind shall accept as adequate to support a conclusion;” it is

10

based on the record as a whole and must take into account whatever in the record fairly detracts
from its weight. Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
Keith argues that the opinion of Dr. Davis should be discounted as substantial evidence
primarily because she did not review and opine on all of the record medical evidence. However,
in Helm v. Comm’r of Soc. Sec. Admin., 405 F. App’x 997 (6th Cir. 2011), the Sixth Circuit
stated that:
[t]here is no categorical requirement that the non-treating source’s opinion
be based on a “complete” or “more detailed and comprehensive” case
record. The opinions need only be “supported by evidence in the case
record.” Once the ALJ determine[s] not to accord [the treating
physician’s] opinion “controlling weight,” the ALJ [i]s required only to
provide “good reasons” for giving greater weight to the opinions of
agency sources.
Id. at 1002 (addressing SSR 96-6p, 1996 WL 374180 (July 2, 1996)) (internal citations omitted);
see also Fry v. Comm’r Soc. Sec. Admin., 476 F. App’x 73, 75 (6th Cir. 2012) (“According to
[plaintiff], [the non-examiner’s] opinion was inadequate because it was based on a review of the
record before she began treatment with [her treating physician]. However, the ALJ properly
considered [the non-examiner’s] report as opinion evidence.” (citing 20 C.F.R. § 404.1527)).
As the Sixth Circuit rule stands, when an ALJ decides not to afford a treating physician’s
opinion “controlling” weight, the ALJ need only provide good reasons for assigning greater
weight to the non-examiner(s)’s opinion. Helm, 405 F. App’x at 1002; Skaggs v. Colvin, No.
0:14-cv-182-EBA, 2016 WL 782309, *5 (E.D. Ky. Feb. 26, 2016) (same). As demonstrated
above and as explained by the Magistrate Judge at length, the ALJ provided sufficiently good
reasons for doing precisely that here. Despite Keith’s reliance on Jones v. Astrue, 808 F. Supp.
2d 993 (E.D. Ky. 2011), for the proposition that the opinion of a non-examining expert who does

11

not examine a complete record does not comprise substantial evidence, this court is bound only
by the Sixth Circuit precedent set forth in Helm and Fry, and, accordingly, the court finds the
ALJ’s determination to give non-examining physician Dr. Davis’ opinion greater weight
reasonable, notwithstanding the fact that Dr. Davis only had an opportunity to review a portion
of the evidence of record at the time that she rendered it. The ALJ’s decision was, therefore,
properly supported by the substantial evidence of Dr. Davis’ opinion. Furthermore, the ALJ
herself examined all of the bulk of the record medical evidence at the hearing, assuring that the
final decision was supported by the balance of substantial evidence available to her.3 See also
Daniel v. Comm’r of Soc. Sec., 527 F. App’x 374, 375 (6th Cir. 2013) (“When a finding is
supported by substantial evidence, we must defer to it, even if substantial evidence also supports
an opposite conclusion.” (citing Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007))).
This finding resolves Keith’s final objection as well because it is derivative of the
argument that Dr. Matlock’s opinion was entitled to greater weight than that of Dr. Davis. In
short, Keith contends that, because Dr. Matlock’s opinion is entitled to the greatest weight, the

3

The ALJ acknowledged that Keith underwent surgery to remove a tumor from his
cervical spine in March 2011 and went through a lengthy rehabilitation. (AR, pp. 17-18, 211,
369-70.) The ALJ found, however, that Keith’s physical condition did improve significantly
after the surgery. (Id. at p. 18.) Impairments that are “controllable or amenable to treatment” are
not disabling. Gant v. Comm’r of Soc. Sec., 372 F. App’x 582, 585-86 (6th Cir. 2010) (citing 20
C.F.R. § 404.1529(c); Houston v. Sec’y of Health & Human Servs., 736 F.2d 365, 367 (6th Cir.
1984)). A month after surgery, in April 2011, Keith had significant improvement in his pain and
functioning and was doing well except for occasional neuropathic tingling in his legs. (AR at pp.
17, 359-361.) He continued “doing well” in February 2012. (Id. at pp. 17, 634.) And in May
2012, he reported that medications controlled his pain fairly well and made it tolerable. (Id. at p.
18, 781.) The ALJ also found that Keith repeatedly showed a “stable” or “normal” gait
throughout 2011 and 2012. (Id. at pp. 17-18, 233, 324, 361, 424, 436, 483, 620, 635, 966, 998.)
And, although Keith complained of leg weakness, he consistently showed full strength in his legs
on examination. (Id. at pp. 17-19, 217, 224, 230, 233, 242, 251, 307, 310, 324, 326, 334, 336,
338, 354, 360-61, 371, 424, 430, 436, 862, 998, 1084.)
12

“ALJ should and would likely have accepted his assessed limitations and the vocational expert’s
testimony that these limitations precluded all jobs.” (Docket No. 18, p. 14.) However, as
discussed, the ALJ, in her discretion, properly assessed the relative value of expert testimony and
accepted the opinion of Dr. Davis as substantial evidence of Keith’s (lack of) limitations. The
ALJ was not, therefore, bound to accept the vocational expert’s responses that were premised
upon Dr. Matlock’s opinions.
Accordingly, the court will overrule the Objections and accept the R&R.

CONCLUSION
The court finds that the ALJ’s conclusions lie safely within the “zone of choice” within
which the ALJ could go “without interference by the courts.” Mullen, 800 F.2d at 545 (6th Cir.
1986). For the above reasons and, upon review of this matter, the court finds the R&R to be
well-founded.
1.

The Objections (Docket No. 18) are OVERRULED;

2.

The Magistrate Judge’s Report and Recommendation (Docket No. 17) is
ACCEPTED AND ADOPTED.

3.

The plaintiff’s Motion for Judgement on the Record (Docket No. 14) is DENIED.

3.

The decision of the Social Security Administration is AFFIRMED.

This Order constitutes the judgment in this case.
It is so ORDERED.
Enter this 29th day of March 2016.
_____________________________
ALETA A. TRAUGER
United States District Judge

13