Hall v. Social Security Administration et al

Filing 19

REPORT AND RECOMMENDATION: For the following reasons, the undersigned RECOMMENDS that Plaintiff's Motion for Judgment (Doc. No. 14) be GRANTED, that the decision of the Commissioner be REVERSED, that the matter be REMANDED to the Commissione r for further consideration of the opinion of Plaintiff's treating physician, and that FINAL JUDGMENT be entered. Signed by Magistrate Judge Norah McCann King on 8/17/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(af)

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

JON KEVIN HALL,
Plaintiff,
Case No. 3:16-cv-01233
JUDGE ALETA A. TRAUGER
Magistrate Judge King

vs.
SOCIAL SECURITY ADMINISTRATION,
Defendant.

To:

The Honorable Aleta A. Trauger, District Judge
REPORT AND RECOMMENDATION
This is an action instituted under the provisions of 42 U.S.C. §§

405(g) for review of a final decision of the Commissioner of Social
Security denying Plaintiff’s application for a period of disability
and disability insurance benefits. This matter is before the Court on
Plaintiff’s Motion for Judgment on the Administrative Record (Doc. No.
14)(“Motion for Judgment”) and Memorandum in Support (Doc. No. 15),
Defendant’s

Response

Administrative

to

Record

Plaintiff’s

(Doc.

No.

Motion

for

16)(“Response”),

Judgment

on

Plaintiff’s

the
Reply

(Doc. No. 17), and the administrative record (Doc. No. 10). 1 For the
following reasons, the undersigned RECOMMENDS that Plaintiff’s Motion
for

Judgment

Commissioner

(Doc.
be

No.

14)

REVERSED,

be
that

GRANTED,
the

that

matter

the
be

decision
REMANDED

of
to

the
the

Commissioner for further consideration of the opinion of Plaintiff’s
treating physician, and that FINAL JUDGMENT be entered pursuant to
1

Citations to pages in the Administrative Record will appear as “Tr. __.”

1

Sentence 4 of 42 U.S.C. § 405(g).
Introduction
Plaintiff filed his current application for benefits in May 2013,
alleging that he has been disabled since April 13, 2013. Tr. 142. 2 The
application was denied initially and on reconsideration and Plaintiff
requested

a

de

novo

hearing

before

an

administrative

law

judge

(“ALJ”).
An administrative hearing was held on March 24, 2015. Plaintiff,
represented by counsel, testified at that hearing, as did vocational
expert Gary K. Sturgill, Ph.D. Tr. 34-63. In a decision dated June 12,
2015, the ALJ held that Plaintiff was not disabled within the meaning
of

the

Social

Security

Act

from

the

alleged

date

of

onset

of

disability through the date of the administrative decision. Tr. 18-27.
That decision became the final decision of the Commissioner of Social
Security when the Appeals Council declined review on April 6, 2016.
Tr. 1.
This

action

was

thereafter

timely

filed.

The

Court

has

jurisdiction over the matter. 42 U.S.C. § 405(g).
The Findings and Conclusions of the ALJ
In his decision, the ALJ made the following findings of fact and
conclusions of law:

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 April 13 2013, the alleged onset date (20
,
CFR 404.1571 et seq.).

2

Plaintiff filed his first application for benefits in February 2011, alleging
disability since January 2010 based on the same impairments as are alleged in
connection with his current application. In a decision dated April 12, 2013,
the ALJ who considered that application found that Plaintiff had the residual
functional capacity for a limited range of light work and was not disabled
from January 2010 through the date of that decision. Tr. 67-78.

2

3.
The claimant has the following severe impairments:
degenerative disc disease, chronic obstructive pulmonary
disease (COPD), obstructive sleep apnea, obesity, status post
right ankle surgery residuals, type II diabetes mellitus,
520(c)).
and peripheral neuropathy (20 CFR 404.1
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 in20 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 the claimant has the residual
functional capacity to perform light work as defined in 20
CFR 404.1567(b) with the following limitations: he must
but he can
never climb ladders, ropes or scaffolds,
occasionally climb ramps and stairs, as well as occasionally
balance, stoop, kneel, crouch, and crawl. He must have the
option to alternate sit or stand at will. He must avoid
concentrated exposure to pulmonary irritants and work at
unprotected heights or around unguarded moving machinery.
Finally, he can only stand or walk four hours out of an
eight-hour workday.
6.
The claimant is unable to perform any past relevant
work (20 CFR 404.1565).
7.
The claimant was born on August 25, 1964 and was 48
years old, which is defined as a younger individual age 1 8 49, on the alleged disability onset date (20 CFR 404.1
563).
8.
The claimant has a limited education and is able to
communicate in English (20 CFR 404.1564).
9.
Transferability of job skills is not material to the
using
the
Medicaldetermination
of
disability
because
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 and 404.1569(a)).
11. The claimant has not been under a disability, as defined
,
in the Social Security Act, from April 13 2013, through the
date of this decision (20 CFR 404.1520(g)).

(Tr. 20-22, 25-27).

3

Summary of Relevant Evidence 3 and the ALJ’s Evaluation
Plaintiff testified that it is primarily pain in his lower back
and right foot that keep him from working. Tr. 45, 46. He also has
pain in his left knee. Tr. 55. If he tries to bend, the pain is
“unbearable.” Tr. 46. His pain medication “helps quite a bit,” id.,
but causes drowsiness. Tr. 47.

He also is bothered by heat and dust.

Tr. 46. He acknowledged that he worked part-time in 2011 and 2012, Tr.
41, and attended “a couple of” professional football games, Tr. 51,
although he alternated between sitting and standing. Tr. 52. He does
not walk for more than 10 minutes at a time. Id.
An April 2012 MRI of the lumbar spine showed severe left-sided
facet hypertrophy at L4-5 without central canal or neural foraminal
stenosis, a small central to left paracentral disc protrusion at L5S1, and mild facet hypertrophy at L3-4 causing no impingement. Tr.
216.
In August 2013, Lloyd K. Huang, M.D., performed a consultative
examination of Plaintiff at the request of the state agency. An EMG
was positive for L4-5 radiculopathy. Tr. 287. On clinical examination,
Dr. Huang noted reduced range of motion of the cervical and lumbar
spine. Straight leg raising was negative from the seated and supine
positions and motor strength was normal. Plaintiff walked with a mild
limp

and

had

moderate

difficulty

squatting.

Tr.

286.

Dr.

Huang

diagnosed moderate degenerative disc disease of the lumbar spine, L4-5
radiculopathy, mild degenerative joint disease of the left knee, and
mild-to-moderate degenerative joint disease of the left ankle. Tr.
287. In an assessment of Plaintiff’s ability to engage in work-related

3

Some of the medical evidence in the administrative record was generated
during and relates to the period prior to Plaintiff’s current alleged date of
onset of disability. See, e.g., Tr. 212-271.

4

activities, Dr. Huang opined that Plaintiff could lift up to 40 pounds
occasionally and up to 20 pounds frequently; he could carry up to 30
pounds occasionally and up to 20 pounds frequently. Tr. 291. Plaintiff
could sit for up to 7 hours in an 8 hour work day, for 2 hours at a
time, stand for up to 6 hours, for 1 hour at a time, and walk for up
to 4 hours, for 1 hour at a time. Tr.292. He could occasionally reach
and push/pull, but could continuously use his hands for fingering and
feeling; he could occasionally use his feet to operate foot controls.
Tr.

293.

He

should

never

kneel

or

crawl,

and

would

have

some

environmental limitations. Tr. 294.
In August 2013, Reeta Misra, M.D., reviewed the evidence for the
state

agency

restrictive”
by

other

and

concluded

that

Dr.

Huang’s

assessment

was

“too

and not supported by his own findings on examination and

evidence

of

record.

Tr.

90-91.

According

to

Dr.

Misra,

Plaintiff could lift and carry up to 20 pounds occasionally and up to
10 pounds frequently. He could sit and could stand or walk for a total
of 6 hours in an 8-hour workday. He was unlimited in his ability to
push or pull. Plaintiff could only occasionally stoop, kneel, crouch,
crawl,

balance

and

climb

ramps

and

stairs,

and

could

never

climb

ladders. Tr. 88. In December 2013, Nathaniel Robinson, M.D. agreed
with this assessment. Tr. 99.
Matthew L. Brust, M.D., has treated Plaintiff as his primary care
physician since at least January 2013 for a number of conditions,
including degenerative disc disease. Tr. 307. 4 Dr. Brust prescribed
pain medication and, on occasion, pool therapy. Tr. 303, 308, 310,
312.
A September 2013 MRI of the lumbar spine showed no acute findings
4

Plaintiff testified that he has treated with Dr. Brust since “early 2000.”
Tr. 50.

5

or significant interval changes when compared to an April 2010 MRI.
Tr. 428-29. There was mild concentric disc bulging at L3-4 with no
significant spinal canal stenosis, and moderate right and severe left
facet

joint

hypertrophy

degenerative
at

L4-5,

and

joint
mild

disease
to

with

moderate

extensive

bilateral

osseous

facet

joint

degenerative joint disease with no significant foraminal narrowing at
L5-S1. Tr. 428-29. See also Tr. 485.
In September 2013, Son D. Le, M.D., a spine specialist with the
Center for Spine, Joint & Neuromuscular Rehabilitation, saw Plaintiff
for an assessment of his back problems. On clinical examination, Dr.
Le noted poor range of motion of the lumbar spine in all planes. There
was diffuse tenderness to palpation. Manual muscle testing was normal,
and sensation to pinprick was within normal limits except for the left
L4-5 dermatome and myotome. Tr. 524. Dr. Le recommended left L4-5
lumbar transforminal steroid injections. Tr. 522. In June 2014, Barton
Huddleston, M.D., a spine specialist with the same practice, Tr. 51011, noted, on examination, that Plaintiff’s motor exam was normal,
there was no gross sensory deficit, and deep tendon reflexes were
normal. Tr. 512. See also 505. There was reduced range of motion of
the

lumbar

spine,

with

paraspinal

tenderness.

Id.

Dr.

Huddleston

certified that Plaintiff “has a chronic pain syndrome.” Id. Shamolie
Wyckoff, M.D., also of Spine, Joint & Neuromuscular Rehabilitation,
saw

Plaintiff

thereafter

and

in

September

also

diagnosed

2014

and

chronic

on
pain

a

number

syndrome.

of
Tr.

occasions
502.

An

EMG/NCV was read as showing a mild L5 and S1 radiculopathy on the
left. Tr. 492. On examination, Plaintiff walked with an antalgic gait.
There was full range of motion of the spine. Tr. 489. In October 2014,
Plaintiff reported that medication “is working and does not require

6

any

changes.”

Tr.

495.

In

continuing

Plaintiff’s

prescribed

pain

medication, Dr. Wyckoff certified that Plaintiff “has a chronic pain
syndrome.” Id. See also Tr. 486 (similar findings in December 2014).
At office visits in October 2013 through January 2014, Dr. Brust
noted a normal range of motion. Tr. 469, 473, 475, 479. At monthly
office

visits

throughout

2014,

Dr.

Brust

noted

tenderness

to

palpation, and range of motion limited by pain. Motor strength was 5/5
in all groups, and sensation to touch was intact and equal, as were
reflexes. Id. Plaintiff’s gait was normal, although slow secondary to
pain. Straight leg raising was negative. Id. See also Tr. 448, 451,
454-55, 458, 461, 464, 467.
In February 2015, Dr. Brust provided a medical source statement
in

which

he

indicated

that,

as

a

result

of

Plaintiff’s

severe

degenerative disc disease and degenerative joint disease as evidenced
by

MRI,

Plaintiff

could

lift

and

carry

less

than

10

pounds

only

occasionally, could stand/walk for less than 1 hour and could sit for
less than 2 hours during an 8-hour day. Tr. 527-28. He would have to
change positions every 5 to 10 minutes, and must walk around every 30
minutes. He would need a sit/stand option, and must lie down every 1-2
hours. Tr. 527. He could only occasionally twist, stoop and climb
stairs, and could never crouch or climb ladders. Tr. 528. He would
have limitations on the use of his hands, and his asthma would impose
environmental restrictions. Id. Plaintiff would be absent from work
more than 4 days per month. Tr. 529.
The ALJ accorded “some weight” to the state agency reviewing
physicians, reasoning that their opinions “are generally supported by
and consistent with the overall evidence of record, including the
claimant’s

testimony

.

.

.

.”

Tr.

7

24.

He

considered

Dr.

Brust’s

February 2015 opinion as follows:
Dr. Brust’s [sic] provides a very restrictive residual
functional capacity and relates the claimant’s limitations
to January 12, 2010. However, the claimant testified and
the record reflects that the claimant was working part-time
in 2011 and 2012 cutting grass and completing other
landscaping tasks. The claimant further testified and the
record notes that the attended at least one Tennessee
Titan’s
football
game
in
2014.
This
activity
is
inconsistent with the limitations in Dr. Brust’s residual
functional capacity and is thus given little weight.
Tr. 25. 5 The ALJ also gave “little weight” to Dr. Huang’s consultative
opinion because it included some limitations, e.g., limitations on
exposure to noise and ability to reach, kneel and crawl, that “have no
basis in the record.” Tr. 25. The ALJ found that Plaintiff has the
residual functional capacity (“RFC”) for a limited range of light
work.
Plaintiff’s Claims
Plaintiff asserts the following claims:
1. The ALJ erred by failing to properly consider and weigh
the opinion evidence.
2. The ALJ erred by failing to include a function-byfunction assessment in the RFC assessment as required by
SSR 96-8p.
Memorandum in Support (Doc. No. 15, PageID# 566). Plaintiff does not
challenge the ALJ’s credibility determination, nor does he challenge
the vocational evidence.
Standard of Review
Pursuant

to

42

U.S.C.

§405(g),

judicial

review

of

the

Commissioner’s decision is limited to determining whether the findings
of the ALJ are supported by substantial evidence and employed the

5

Plaintiff did not actually testify that he cut grass. Rather, Plaintiff
testified that he assisted in his brother’s landscaping business by
“get[ting] stuff for his grass-cutting guys,. . .” Tr. 40.

8

proper legal standards.

Richardson v. Perales, 402 U.S. 389 (1971);

Cole v. Astrue, 661 F.3d 931, 937 (6th Cir. 2011)(internal quotation
marks and citation omitted).

Substantial evidence is such relevant

evidence as a reasonable mind might accept as adequate to support a
conclusion.

Blakley v. Comm’r of Soc. Sec., 581 F.3d 399, 405 (6th

Cir. 2009); Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 475 (6th Cir.
2003). This Court does not try the case de novo, nor does it resolve
conflicts

in

the

evidence

or

questions

of

credibility.

Bass

v.

McMahon, 499 F.3d 506, 509 (6th Cir. 2007).
In determining the existence of substantial evidence, this Court
must examine the administrative record as a whole.

Kirk v. Sec’y of

Health and Human Services, 667 F.2d 524, 536 (6th Cir. 1982).

If the

Commissioner's decision is supported by substantial evidence, it must
be affirmed even if this Court would decide the matter differently,
Tyra v. Sec’y of Health & Human Servs., 896 F.2d 1024, 1028 (6th Cir.
1990)(citing Kinsella v. Schweiker, 708 F.2d 1058, 1059 (6th Cir.
1983)), and even if substantial evidence also supports the opposite
conclusion.

Longworth v. Commissioner Social Security Administration,

402 F.3d 591, 595 (6th Cir. 2005)(citing Warner v. Comm’r of Soc. Sec.,
375 F.3d 387, 390 (6th Cir. 2004)).
Discussion
1.Opinion of Treating Physician
Plaintiff’s
rejection

of

Dr.

first

assignment

Brust’s

February

of

error

2015

relates

assessment

to
of

the

ALJ’s

Plaintiff’s

ability to engage in work-related activities. It is clear that Dr.
Brust is a treating physician. The ALJ found that fact, Tr. 25, and
the Commissioner concedes as much. Response (Doc. 16, PageID# 587).
His opinion must therefore be accorded controlling weight if it is

9

“well-supported

by

medically

diagnostic

techniques”

substantial

evidence

404.1527(c)(2).

and
in

acceptable

is

not

[the]

clinical

“inconsistent

case

record.”

and

laboratory

with

the

20

other

C.F.R.

§

If the ALJ finds that either of these criteria have

not been met, he is then required to apply the following factors in
determining the weight to be given the opinion: “The length of the
treatment relationship and the frequency of examination, the nature
and

extent

of

the

treatment

relationship,

supportability

of

the

opinion, consistency of the opinion with the record as a whole, and
the specialization of the treating source. ...”
Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

Wilson v. Comm’r of

In this regard, the ALJ

is required to look at the record as a whole to determine whether
substantial
assessment.

evidence
See

20

is

inconsistent

C.F.R.

§

with

the

404.1527(c)(2),

treating
(4).

physician’s

Finally,

the

Commissioner must provide “good reasons” for discounting the opinion
of a treating source, and those reasons must both enjoy support in the
evidence of record and be sufficiently specific to make clear the
weight given to the opinion and the reasons for that weight.

Gayheart

v. Comm’r of Soc. Sec, 710 F.3d 365, 376 (6th Cir. 2013); Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 242 (6th Cir. 2007)(citing Soc. Sec.
Rul. 96-2p, 1996 WL 374188, at *5). However, a formulaic recitation of
factors is not required.

See Friend v. Comm’r of Soc. Sec., 375 F.

App’x 543, 551 (6th Cir. 2010) (“If the ALJ’s opinion permits the
claimant and a reviewing court a clear understanding of the reasons
for the weight given a treating physician’s opinion, strict compliance
with the rule may sometimes be excused.”).

10

The only reasons given by the ALJ for rejecting Dr. Brust’s
evaluation was that Plaintiff had worked part-time in 2011 and 2012,
i.e.,

after

the

date

on

which

Dr.

Brust’s

limitations

presumably

arose, and had attended at least one professional football game. Tr.
25. Although the ALJ, elsewhere in his opinion, summarized some of the
medical evidence, Tr. 23-24, the ALJ made no mention of the actual
medical evidence of record in his evaluation of Dr. Brust’s opinion.
The ALJ did not expressly find that Dr. Brust’s opinion is not “wellsupported by medically acceptable clinical and laboratory diagnostic
techniques,”

nor

did

the

ALJ

expressly

find

that

the

opinion

was

inconsistent with the other medical evidence of record. See 20 C.F.R.
§ 404.1527(c)(2). Lacking that analysis, it cannot be said that the
ALJ

provided

“good

reasons”

for

discounting

Dr.

Brust’s

opinion;

certainly, the ALJ’s analysis is not sufficiently specific to make
clear to this Court the reasons for the weight accorded that opinion.
See Gayheart, 710 F.3d at 376; Rogers, 486 F.3d at 242.
In

short,

the

undersigned

concludes

that

the

ALJ

did

not

correctly apply the standards of the treating physician rule and that
the matter must be remanded to the Commissioner.
Plaintiff asks that the matter be remanded to the Commissioner
with directions for the granting of benefits.
(Doc. 15, PageID# 577).
true

that

the

ALJ

Memorandum in Support

The Court declines to so recommend. It is

failed

Plaintiff’s treating provider.

to

properly

evaluate

the

opinion

of

However, where, as here, there exists

conflicting evidence relevant to the proper resolution of plaintiff’s
claim, the matter must be remanded for further proceedings by the
Commissioner, whose duty it is to resolve such conflicts.

11

Faucher v.

Sec’y of Health and Hum. Servs., 17 F.3d 171, 176 (6th Cir. 1994).
2.RFC Assessment
Plaintiff also contends that the administrative law judge erred
in determining Plaintiff’s RFC because he failed to engage in the
function-by-function analysis required by SSR 96-8p, 1996 WL 374184
(July 2, 1996). Because the determination of Plaintiff’s RFC may be
significantly impacted by a revised evaluation of Dr. Brust’s opinion,
the undersigned need not, and does not, address this issue.
Recommendation
In

light

of

the

foregoing,

the

undersigned

RECOMMENDS

that

Plaintiff’s Motion for Judgment (Doc. No. 14) be GRANTED, that the
decision of the Commissioner be REVERSED, that the matter be REMANDED
to

the

Commissioner

for

further

consideration

of

the

opinion

of

Plaintiff’s treating physician, and that FINAL JUDGMENT be entered
pursuant to Sentence 4 of 42 U.S.C. § 405(g).
Procedure on Objections
If any party seeks review by the District Judge of this report
and recommendation, that party may, within fourteen (14) days, file
and serve on all parties objections to the report and recommendation,
specifically designating the part thereof in question, as well as the
basis for the objection.
72(b).

28 U.S.C. § 636(b)(1); Fed. R. Civ. P.

Response to objections must be filed within fourteen (14) days

thereafter.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object
to the report and recommendation will result in a waiver of the right
to de novo review by the District Judge and waiver of the right to

12

appeal the judgment of the District Court.

See, e.g., Pfahler v.

Nat’l Latex Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007). Even when
timely objections are filed, appellate review of issues not raised in
those objections is waived.

Robert v. Tesson, 507 F.3d 981, 994 (6th

Cir. 2007). Filing only “vague, general, or conclusory objections does
not meet the requirement of specific objections and is tantamount to a
complete failure to object.” Drew v. Tessmer, 36 F. App’x 561, 561 (6th
Cir.

2002)

(citing

Miller

v.

Currie,

50

F.3d

373,

380

(6th

1995)).

s/Norah McCann King
Norah McCann King
United States Magistrate Judge
August 17, 2017
(Date)

13

Cir.