Southerland v. Commissioner of Social Security

Filing 11

ORDER AFFIRMING DECISION OF COMMISSIONER. Signed by Judge James D. Todd on 2/11/15. (Todd, James)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE

GARY LYNN SOUTHERLAND,
Plaintiff,
v.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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No. 14-1085-T

ORDER AFFIRMING DECISION OF COMMISSIONER

Plaintiff has filed this action to obtain judicial review of Defendant Commissioner's
final decision denying his application for disability insurance benefits under Title II of the
Social Security Act (“the Act”). Plaintiff's application was denied initially and upon
reconsideration by the Social Security Administration. Plaintiff then requested a hearing
before an administrative law judge (“ALJ”), which was held on May 31, 2012.
On September 14, 2012, the ALJ issued a decision, finding that Plaintiff was not
entitled to benefits. The Appeals Council affirmed the ALJ's decision. This decision became
the Commissioner's final decision. Plaintiff filed this action, requesting reversal of the
decision of the Commissioner. For the reasons set forth below, the decision of the
Commissioner is AFFIRMED.
Pursuant to 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final
decision made by the Commissioner after a hearing to which he was a party. “The court shall

have the power to enter, upon the pleadings and transcript of the record, a judgment
affirming, modifying, or reversing the decision of the Commissioner of Social Security, with
or without remanding the cause for a rehearing.” Id. The court's review is limited to
determining whether or not there is substantial evidence to support the Commissioner's
decision, 42 U.S.C. § 405(g), and whether the correct legal standards were applied. See
Lindsley v. Commissioner, 560 F.3d 601, 604–08 (6th Cir. 2009); Kyle v. Commissioner, 609
F.3d 847, 854 (6th Cir. 2010).
The Commissioner, not the court, is charged with the duty to weigh the evidence, to
make credibility determinations and resolve material conflicts in the testimony, and to decide
the case accordingly. See Bass v. McMahon, 499 F.3d 506, 509 (6th Cir. 2007). When
substantial evidence supports the Commissioner's determination, it is conclusive, even if
substantial evidence also supports the opposite conclusion. See Foster v. Halter, 279 F.3d
348, 353 (6th Cir. 2001); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986). A reviewing
court must defer to findings of fact by an appeals council when those findings conflict with
the factual findings of the ALJ. Id. at 545.
Plaintiff was born on June 11, 1967. R. 118. At the time of the hearing, he was fortyfour years old. R. 66. He last worked on April 15, 2010, the date that he sustained his
allegedly disabling injuries. R. 66-67. He was previously self-employed and has past
relevant work as a tree trimmer and a mechanic. R. 67. He alleges disability due to a broken
arm with reconstruction of his tendons and muscles. R. 151.

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The ALJ enumerated the following findings: (1) Plaintiff met the insured status
requirements through December 31, 2010; (2) Plaintiff has not engaged in substantial gainful
activity from the alleged onset date through the last date insured; (3) Plaintiff has the
following severe impairments: history of fractured right radius and right arm collateral
ligament injury requiring surgical repair; but he does not have impairments, either alone or
in combination, that meet or equal the requirements of any listed impairment contained in 20
C.F.R. pt. 404, subpt. P, app. 1 of the listing of impairments; (4) Plaintiff retains the residual
functional capacity to perform light work except that he is limited to no more than occasional
reaching, handling, fingering, and feeling in the right arm; he is unable to perform any
overhead lifting or reaching with the right arm; (5) Plaintiff is unable to perform his past
relevant work; (6) Plaintiff was a younger individual with a high school education on the
alleged onset date; (7) transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules (“the grids”) as a framework supports
a finding that Plaintiff is not disabled whether or not he has transferable job skills; (8)
considering Plaintiff’s age, education, work experience, and residual functional capacity,
there are jobs that exist in significant numbers in the national economy that Plaintiff can
perform; (9) Plaintiff was not under a disability as defined in the Act at any time through the
date of this decision.
The Social Security Act defines disability as the inability to engage in substantial
gainful activity. 42 U.S.C. § 423(d)(1). The claimant bears the ultimate burden of
establishing an entitlement to benefits. Born v. Secretary, 923 F.2d 1168, 1173 (6th Cir.
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1990). The initial burden of going forward is on the claimant to show that he is disabled
from engaging in his former employment; the burden of going forward then shifts to the
Commissioner to demonstrate the existence of available employment compatible with the
claimant's disability and background. Id.
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
1. An individual who is engaging in substantial gainful activity will not be
found to be disabled regardless of medical findings.
2. An individual 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
factors, if an individual 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.
4. An individual who can perform work that he has done in the past will not
be found to be disabled.
5. If an individual cannot perform his or her 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.
20 C.F.R. § 404.1520(a)(4); Howard v. Commissioner, 276 F.3d 235, 238 (6th Cir. 2002).
Further review is not necessary if it is determined that an individual is not disabled at any
point in this sequential analysis. 20 C.F.R. § 404.1520(a). Here, the sequential analysis
proceeded to the fifth step with a finding that, although Plaintiff cannot perform his past
relevant work, there is a substantial number of jobs that exist in the national economy that
he can perform.
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Plaintiff argues that the ALJ erred by failing to consider all of his impairments,
specifically his alleged mental impairment. In support of his argument, Plaintiff relies on
medical opinion evidence from consultative examiner William Fulliton, Ph.D., and
non-examining agency expert Thomas Nielson, Psy.D., which purportedly show that he had
a moderate impairment in his ability to maintain attention, make decisions, and tolerate social
interaction. R. 405-10, 423, 427, 429. Plaintiff’s argument is not persuasive because
substantial evidence supports the ALJ’s determination that the medical evidence did not
show that Plaintiff has a disabling mental impairment.
Dr. Fulliton noted that Plaintiff had some difficulty with memory but otherwise found
Plaintiff’s mental status examination to be normal. R. 407-08. On a form, he marked that
Plaintiff had only mild mental limitations. R. 409-10. In his narrative, he stated that
Plaintiff’s ability to sustain concentration and persistence was moderately impaired. R. 408.
He also opined that Plaintiff’s ability to remember was mildly impaired and his ability to
interact socially and adapt to change was not impaired. R. 408.
The non-examining psychologist Dr. Nielson based his opinion on Dr. Fulliton’s
report. He opined that Plaintiff was mostly unrestricted but had moderate limitations in his
ability to maintain attention and concentration for extended periods and his ability to
complete a normal workday and workweek without interruption from psychological
symptoms. R. 427-28.
The ALJ acknowledged that Dr. Fulliton had suggested moderate limitations and that
Dr. Nielson had suggested similar limitations, but the ALJ rejected both doctors’ conclusions
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because Plaintiff had not sought mental health treatment throughout the relevant period and
there was no other evidence supporting any work-related limitations. None of Plaintiff’s
treatment records document any significant or lasting restrictions in his mental status,
concentration, social functioning, or memory.
The ALJ may reject an opinion of a one-time consultative doctor and find a mental
impairment non-severe when, as here, the claimant has not sought any specialist mental
health care or showed that he had any mental symptoms in any medical treatment notes. See
Murphy v. Astrue, 2013 WL 829316 (M.D. Tenn.) report and recommendation adopted sub
nom. Murphy v. Colvin, 2013 WL 4501416 (M.D. Tenn.) (lack of mental health care
treatment and lack of depressive symptoms was sufficient to find a mental impairment
non-severe, notwithstanding the opinion of a consultative examiner.)
The ALJ used the “special technique” to analyze Plaintiff’s mental limitations. See
20 C.F.R. §§ 404.1520a(c)(3), (d)(1); 416.920a(c)(3), (d)(1); 20 C.F.R. pt. 404, subpt. P, app.
1, §12.00C (2013). Because Plaintiff had never sought treatment for mental disorders and
there was no clinical evidence of any serious abnormalities, the ALJ found that Plaintiff had
no more than mild limitations in his ability to perform activities of daily living, social
functioning, or concentration and that he had never “decompensated” as that term is defined
in the regulations. When a claimant has no more than mild limitations in any of the four
domains that form the special technique, as in the present case, the mental impairment is
non-severe. See 20 C.F.R. §§ 404.1520a(d)(1); 416.920a(d)(1) (2012). Thus, substantial
evidence supports the ALJ’s non-severity finding as to Plaintiff’s mental limitations.
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Plaintiff argues that the ALJ’s residual functional capacity should have included
greater exertional limitations. Plaintiff specifically contends that the ALJ should have
imposed greater limitations on his ability to use his arms. He relies on medical opinions from
consultative examiner Robert Sanner, M.D., and from non-examining agency doctors, John
H. Mather, M.D., and Karla Montague-Brown, M.D. Dr. Sanner imposed a ten-pound lifting
restriction and limitations of motion of Plaintiff’s right arm, R. 311, and Dr. Mather and Dr.
Montague-Brown both opined that Plaintiff could never push/pull, reach overhead, or handle
or finger with the right arm. R. 314, 316, 432, 434.
Dr. Sanner was not a treating physician and only saw Plaintiff on one occasion. Dr.
Sanner disclaimed an ability to render an opinion regarding Plaintiff’s residual functional
capacity, explaining that he was “unable to make a determination about the patient’s ability
to perform” in the areas that he had been asked to comment on. R. 312. As for Dr. Mather
and Dr. Montague-Brown, they reviewed Plaintiff’s medical files without the benefit of
later-submitted medical records that showed that he continued to improve after they had seen
him.
Plaintiff suffered a serious workplace injury to his right arm while cutting a tree. He
had surgery on his hand on April 15, 2010, by Michael Calfee, M.D., R. 200-04, 291, and,
by June, he had regained full strength in his elbow. R. 296. In July 2010, treating physician
Jeffry Watson, M.D., imposed specific activity restrictions on Plaintiff. Plaintiff could no
longer perform normal farming tasks due to limitations in rotating his right forearm and the
inability to lift to his shoulder. R. 293. Plaintiff could not climb and had only one hand to
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perform “forceful manual labor” even though the doctor had “given him clearance for load
bearing” on the right. Dr. Watson opined that Plaintiff would eventually gain greater
movement with the elbow. Id.
The ALJ’s residual functional capacity was consistent with Dr. Watson’s opinion. The
ALJ limited him from having to lift over his shoulder, and she restricted handling and
fingering to an occasional basis. The ALJ also limited Plaintiff to light work, meaning
Plaintiff would not be required to perform forceful manual labor.
Additionally, Plaintiff appeared more active than expected if he were as limited as he
claimed. For instance, on November 10, 2010, Plaintiff called in to his physical therapist to
explain that he would be absent because he was “having to do some work.” R. 360. Plaintiff
testified that he still participated in the tree trimming business, although his activities were
limited to performing quotes and supervising. R. 70. Plaintiff also drove a tractor to pick up
hay and feed livestock. R. 78-79. In December 2010, he reported that he “split wood earlier
today” suggesting a far greater range of motion and use of both arms than Plaintiff claims.
R. 369. See Ranker v. Barnhart, 2008 WL 2941336 (M.D. Tenn.) (activities like chopping
and carrying wood are not consistent with alleged disability).
It is the ALJ’s responsibility to determine residual functional capacity based on all the
relevant evidence, including medical records, observations of treating physicians and others,
and the claimant’s own description of his limitations. See Anderson v. Shalala, 51 F.3d 777
(8th Cir. 1995); 20 C.F.R. §§ 416.945(a) & 416.946. Here, the ALJ considered all of the
evidence in the record and adequately explained the basis for her residual functional capacity
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finding. As the ALJ’s residual functional capacity was within the “zone of choice” supported
by substantial evidence, her finding is upheld. See Mullen v. Bowen, 800 F.2d 535, 545 (6th
Cir. 1986) (en banc).
After finding that Plaintiff could not perform his past relevant work, at step five, the
ALJ determined that jobs exist in significant numbers that Plaintiff can perform by relying
on the testimony of a vocational expert. The ALJ asked the vocational expert about an
individual of Plaintiff’s age, education, work experience, and residual functional capacity.
The vocational expert responded that such an individual was capable of performing the jobs
of as a scaling machine operator, mill stenciler, or ironer. R. 82. Because the hypothetical
question included the limitations the ALJ found credible, the vocational expert’s testimony
that Plaintiff could perform work existing in significant numbers in the national economy
was substantial evidence in support of the ALJ’s determination.
Because there is substantial evidence in the record supporting the Commissioner's
decision denying Plaintiff's application for benefits, the decision of the Commissioner is
AFFIRMED. The clerk is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ James D. Todd
JAMES D. TODD
UNITED STATES DISTRICT JUDGE

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