Hale v. Social Security Administration et al

Filing 20

ORDER: The Report and Recommendation (Doc. No. 15 ) is ADOPTED and Plaintiff's Objections thereto (Doc. No. 18 ) are OVERRULED. Plaintiff's Motion for Judgment on the Record (Doc. No. 10 ) is DENIED, and the final decision of the Commiss ioner is AFFIRMED. The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/20/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
ELMER WAYNE HALE,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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NO. 3:15-cv-00443
CHIEF JUDGE CRENSHAW

ORDER
Pending before the Court is a Report and Recommendation of the Magistrate Judge (Doc.
No. 15), to which Plaintiff filed timely objections (Doc. No. 18), and Defendant filed a timely
reply (Doc. No. 19). The Court has reviewed the Report and Recommendation, briefs, and
conducted a de novo review of the record. The objections largely restated the arguments made
before the Magistrate Judge. For the following reasons, in addition to the reasons given by the
Magistrate Judge, the Court ADOPTS the Report and Recommendation.
Plaintiff’s first objection is that in the residual functional capacity (“RFC”) assessment, the
ALJ did not include Plaintiff’s allegation that he must use a cane to ambulate. The ALJ reviewed
the physicians’ records that stated Plaintiff used a cane and determined that Plaintiff’s claims that
he needed a claim were contradicted by the objective evidence in the record, including the evidence
that Plaitniff was improving and had “steady or normal gait.” (Doc. No. 8 at 15 (Dr. Kaufman),
16-17 (Dr. Baker), 20 (Dr. Fishbein); 23-24 (ALJ’s opinion).) There is substantial evidence in the
record to support the ALJ’s determination that Plaintiff’s conditions did not require him to use a
cane, and therefore substantial evidence supports the ALJ’s decision not to incorporate the
limitation in its RFC assessment. See Carreon v. Massanari, 51 F. App’x 571, 575 (6th Cir. 2002)

(“Because the cane was not a necessary device for claimant’s use, it cannot be considered an
exertional limitation that reduced her ability to work.”); (Doc. No. 15 at 9-10).
Plaintiff also argues that his treating physician ordered him a cane after the relevant
period—on November 13, 2013 (Doc. No. 8 at 842), and this should be afforded controlling
weight. As the Magistrate Judge held, the order of the cane did not “describe the circumstances for
which it is needed,” making it “unlikely that this new evidence would change the Commissioner’s
decision.” (Doc. No. 15 at 18 (citing SSR96-9p, 1996 WL 374185, at *7 (July 2, 1996)). The Court
agrees, this objection also does not require the Court to remand the case.
Third, Plaintiff argues that the ALJ did not afford Dr. Richard Fishbein’s opinion sufficient
weight. (Doc. No. 18 at 10.) The ALJ gave “no weight” to Dr. Fishbein’s Medical Source
Statement, which he filled out a year-and-a-half after the only time he examined Plaintiff, that
Plaintiff could not perform even sedentary work because his restrictions “are not supported by his
own examination.” (Doc. No. 8 at 20.) Instead, the ALJ gave weight to Dr. Fishbein’s objective
findings. Specifically, the ALJ wrote that Dr. Fishbein “found a 3% permanent partial impairment
rating to the body as a whole based on diagnosis of lumbar strain, but cautioned that those ratings
should not be used as an indicator for disability.” (Doc. No. 8 at 20.) When a physician fills out a
Medical Source Statement that is not supported by his or her own objective findings, the ALJ is
not required to give the Medical Source Statement weight. See Rogers v. Comm’r of Soc. Sec.,
486 F.3d 234, 242 (6th Cir. 2007) (discussing the factors the ALJ should use in deciding how much
weight to give a treating physician’s opinion, including the “consistency of the physician’s
conclusions”). There is substantial evidence supported the ALJ’s decision not to give weight to
Dr. Fishbein’s Medical Source Statement.

Plaintiff’s final two arguments, that the 2013 order of the cane and a second Medical Source
Statement by Dr. Fishbein, both outside the relevant period, should be considered, and this case
should be remanded to the Commissioner for further consideration, fail for the reasons stated
above. The ordering of the cane is not relevant without explaining why the cane is necessary, and
Dr. Fishbein’s second Medical Source Statement is consistent with his first and was made without
further examination of Plaintif, so the ALJ would likely reject it for the same reasons as above.
Accordingly, the Report and Recommendation (Doc. No. 15) is ADOPTED and Plaintiff’s
Objections thereto (Doc. No. 18) are OVERRULED. Plaintiff’s Motion for Judgment on the
Record (Doc. No. 10) is DENIED, and the final decision of the Commissioner is AFFIRMED.
The Clerk shall enter judgment in accordance with Federal Rule of Civil Procedure 58.
IT IS SO ORDERED.
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WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE