Gardner v. Commissioner of Social Security

Filing 15

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 7/10/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
SAMANTHA J. GARDNER,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

Case No: 1:14-cv-01213-STA-dkv

ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
__
Plaintiff Samantha J. Gardner filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying her application for disability insurance benefits under
Title II of the Social Security Act (“Act”) and an application for supplemental security income
(“SSI”) benefits based on disability under Title XVI of the Act. Plaintiff’s applications were
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 March 4,
2013. On March 15, 2013, the ALJ denied the claim. The Appeals Council subsequently denied
her request for review. Thus, the decision of the ALJ became the Commissioner’s final decision.
For the reasons set forth below, the decision of the Commissioner is AFFIRMED.
Under 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

1

cause for a rehearing.”1 The Court’s review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision,2 and whether the correct legal standards were
applied.3
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”4 It is “more than a mere scintilla of evidence, but less than a
preponderance.”5 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.6

When substantial evidence supports the Commissioner’s

determination, it is conclusive, even if substantial evidence also supports the opposite
conclusion.7
Plaintiff was born on June 27, 1978, and has a high school education. She has past
relevant work as a cashier, corrections officer, and secretary. She alleges disability due to
degenerative disc disease of the lumbar spine, obesity, gastroesophageal reflux disease,
hypertension, and depression beginning July 17, 2009.
1

42 U.S.C. § 405(g).

2

Id.

3

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997). See also Landsaw v. Sec’y of Health &
Human Servs, 803 F.2d 211, 213 (6th Cir. 1986).

4

Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting Richardson v. Perales, 402 U.S.
389 (1971)).

5

Bell v. Comm’r of Soc. Sec., 105 F.3d 244, 245 (6th Cir. 1996) (citing Consolidated Edison Co.
v. NLRB, 305 U.S. 197, 229 (1938)).

6

Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997); Crum v. Sullivan, 921 F.2d
642, 644 (6th Cir. 1990); Garner v. Heckler, 745 F.2d 383, 387 (6th Cir. 1984).
7

Warner v. Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
2

The ALJ made the following findings: (1) Plaintiff met the insured status requirements
through December 31, 2014; (2) Plaintiff has not engaged in substantial gainful activity since the
alleged onset date; (3) Plaintiff has the following severe impairments: degenerative disc disease
(“DDD”) of the lumbar spine with minimal bulging and mild bilateral neural foraminal
narrowing without nerve root compression at L4-L5, and small disc bulging with a small amount
of facet arthropathy, moderate to severe left neural foraminal narrowing, and likely radiculopathy
on the left side at L5-S1 and obesity; but she 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 as evidenced by her ability to sit, stand, and walk for up to six
hours within an eight-hour work day when able to alternate sitting and standing as needed,
frequently engage in overhead reaching with bilateral upper extremities, handling, fingering,
feeling, pushing and pulling, work with left foot controls, climb ramps and stairs, balance, stoop,
and crouch; she is never able to climb ladders or scaffolds and should avoid concentrated
exposure to pulmonary irritants, temperature extremes, and work hazards; (5) Plaintiff is unable
to perform her 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 she 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

3

can perform; (9) Plaintiff was not under a disability as defined in the Act at any time through the
date of this decision.8
The Social Security Act defines disability as the inability to engage in substantial gainful
activity.9 The claimant bears the ultimate burden of establishing an entitlement to benefits.10
The initial burden of going forward is on the claimant to show that he or she is disabled from
engaging in his or her 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.11
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.12
8

R. 15 – 25.

9

42 U.S.C. § 423(d)(1).

10

Born v. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir. 1990).

11

Id.

12

Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
4

Further review is not necessary if it is determined that an individual is not disabled at
any point in this sequential analysis.13 Here, the sequential analysis proceeded to the fifth step
with a finding that, although Plaintiff cannot perform her past relevant work, there is a
substantial number of jobs in the national economy that she can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s findings. She
specifically argues that the ALJ erred by failing to include severe nerve root impingement when
assessing her severe impairments and by failing to find that her spinal disorder meets or equals a
listing under 20 C.F.R. § 404, Subpart P, Appendix I. Additionally, she contends that the ALJ
erred in the weighing of the medical opinion evidence in giving more weight to the opinions of
the consultative providers than that of her treating physician. Plaintiff’s arguments are not
persuasive.
Looking at Plaintiff’s last argument first, the Court notes that medical opinions are to be
weighed by the process set forth in 20 C.F.R. § 404.1527(c). Under the treating physician rule,
an ALJ must give controlling weight to the opinion of a claimant’s treating physician if it “is
well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the claimant’s] case record.”14 The term “not
inconsistent” is meant to convey that “a well-supported treating source medical opinion need not
be supported directly by all of the other evidence, (i.e., it does not have to be consistent with all

13

20 C.F.R. § 404.1520(a).

14

20 C.F.R. § 404.1527(c)(2).
5

the other evidence) as long as there is no other substantial evidence in the case record that
contradicts or conflicts with the opinion.”15
If an ALJ decides that the opinion of a treating source should not be given controlling
weight, the ALJ must take certain factors into consideration when determining how much weight
to give the opinion, including “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.”16 Any decision denying benefits “must contain specific reasons for the weight given to
the treating source’s medical opinion, supported by the evidence in the case record, and 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.”17
Generally, an opinion from a medical source who has examined a claimant is given more
weight than that from a source who has not performed an examination,18 and an opinion from a
medical source who regularly treats the claimant is afforded more weight than that from a source
who has examined the claimant but does not have an ongoing treatment relationship.19 In other
words, “[t]he regulations provide progressively more rigorous tests for weighing opinions as the
ties between the source of the opinion and the individual become weaker.”20 Opinions from

15

Soc. Sec. Rul. 96–2P.

16

Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004).

17

Soc. Sec. Rul. 96–2P.

18

20 C.F.R. § 404.1502, 404.1527(c)(1).

19

Id. § 404.1502, 404.1527(c)(2).

20

Soc. Sec. Rul. No. 96–6p at *2.
6

nontreating sources are not assessed for controlling weight. Instead, these opinions are weighed
based on specialization, consistency, supportability, and any other factors “which tend to support
or contradict the opinion” may be considered in assessing any type of medical opinion.21 State
agency consultants are highly qualified specialists who are also experts in the Social Security
disability programs, and their opinions may be entitled to great weight if the evidence supports
their opinions.22
In the present case, substantial evidence supports the weight given to the medical
evidence and opinions in the record and the evaluation of Plaintiff’s residual functional capacity.
The ALJ properly determined that Plaintiff could perform light work, and Plaintiff has failed to
show that she is otherwise more limited.
Plaintiff argues that the ALJ should have assigned controlling weight to the opinion of
her treating physician, Dr. Bethany Lawrence, expressed in a medical source statement form.
Dr. Lawrence opined that Plaintiff was limited to lifting less than ten pounds, standing less than
two hours per day, and sitting less than two hours per day; she could sit or stand for only ten
minutes, and she would need to walk around every twenty minutes; she would need to lie down
for an “unknown” amount of time; she could never stoop, crouch, or climb ladders, and she
could only occasionally twist or climb stairs; and her ability to reach and push/pull would be
affected by her impairment.23 When asked for medical evidence supporting her opinion, Dr.
Lawrence wrote that Plaintiff had “chronic low back pain.”24

21

20 C.F.R. § 404.1527(c).

22

See 20 C.F.R. § 404.1527(e)(2)(i).

23

R. 630.

24

R. 629 - 30.
7

The ALJ acknowledged that Dr. Lawrence was a treating physician but pointed out that
Dr. Lawrence’s opinion was more extreme than could be justified based on the objective medical
evidence or Dr. Lawrence’s own treatment notes. Dr. Lawrence’s treatment notes consistently
showed that Plaintiff had full and normal strength, which conflicted with the lifting limitation.
When Dr. Lawrence mentioned strength in her notes, she generally noted only that it was
normal.25 The medical source statement form offers no details as to why Dr. Lawrence opined
that Plaintiff’s strength was limited, and there is no supporting evidence in the record.
Dr. Lawrence opined that Plaintiff could only sit for ten minutes at a time, but, as the ALJ
noted, Plaintiff sat for thirty-nine minutes during her hearing. The ALJ also pointed out that, if
Plaintiff were really as limited Dr. Lawrence had claimed, she would have needed more intense
care than the treatment her doctors recommended. Modest treatment is “inconsistent with a
finding of total disability.”26
Additionally, the ALJ could properly find that Plaintiff’s daily activities were in conflict
with the limitations opined by Dr. Lawrence. Plaintiff testified that she did laundry and cleaning
for her four children although she sometimes had help.27 The ALJ may consider daily activities
as a factor in the evaluation of subjective complaints.28

25

R. 396, 407, 474 -76.

26

Helm v. Comm’r of Soc. Sec., 405 F. App’x 997, 1001 (6th Cir. 2011); see also Branon v.
Comm’r of Soc. Sec., 539 F. App’x 675, 678 (6th Cir. 2013) (a “conservative approach suggests
the absence of a disabling condition.”).

27

R. 44.

28

See Moore v. Comm’r of Soc. Sec., 573 F. App’x 540, 543 (6th Cir. 2014) (“The ALJ also
properly took into account Moore’s daily activities, which included caring for two school-aged
children and performing household chores.”).
8

Although the ALJ did not assign Dr. Lawrence’s opinion controlling weight, the ALJ did
assign it some weight. The ALJ included a sit/stand option and limited Plaintiff’s ability to push
and pull based on Dr. Lawrence’s opinion. Even when not entitled to controlling weight, an
opinion by a treating source may be given some weight, as the ALJ did in this case.29
The ALJ assigned the opinion of consultative examiner Leonard Hayden, M.D., great
weight. Dr. Hayden observed that Plaintiff could walk without an assistive device, had normal
lower extremity strength and satisfactory range of motion in her lower extremities, and had
normal upper extremity strength and range of motion.30 He opined that Plaintiff could frequently
lift and carry up to ten pounds and could occasionally lift and carry up to twenty pounds; she
could work full-time, with standing/walking for a total of six hours and could be sitting and
working during the other two hours; she could use her hands to reach frequently; she could use
both hands to finger, feel, push, and pull; she could not tolerate the operation of the left foot; she
could climb stairs and ramps occasionally, but should not climb ladders or scaffolds; she could
perform frequent balancing, stooping, and crouching and could kneel and crouch occasionally;
and she could work around moving mechanical parts on occasion and could operate a motor
vehicle on a frequent basis but would not likely do well trying to work in an environment with
pulmonary irritants, extreme cold, or extreme heat.31

29

See Poe v. Comm’r of Soc. Sec., 342 F. App’x 149, 157 n. 4 (6th Cir. 2009) (“Furthermore,
although the ALJ did not give Dr. Boyd’s opinion controlling weight, the ALJ’s residual
functional capacity finding did incorporate the limitations that were consistent with the other
evidence of record, including the findings of Poe’s other treating physicians.”).
30

31

R. 507-08.
R. 508-09.
9

Plaintiff argues that the ALJ overlooked the portion of Dr. Hayden’s opinion in which he
opined that she would need frequent unscheduled breaks in order to work a full day. Dr.
Hayden’s actual comments were that Plaintiff “could be working [an] eight-hour day,” with
“standing and walking for a total of six hours” and “sitting and working as well as taking
[breaks] during the other two hours.”32

Dr. Hayden opinion is consistent with the

Commissioner’s policy that a person should be able to work full time with normal breaks.33
Because the ALJ accurately summarized Dr. Hayden’s opinion, the Court finds no error.
Next, Plaintiff argues the ALJ should have found her disabled at step three, pursuant to
the listing for disorders of the spine, 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.04. The listing of
impairments is a list of diagnostic criteria, which if met, will halt the sequential evaluation with a
finding of disability at the third step of the sequential evaluation process.34 The claimant bears
the burden of showing that her impairments meet or equal a listed impairment.35
To equal listing § 1.04, Plaintiff would have to show that she has a qualifying spinal
injury, which can include “herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis,
osteoarthritis, degenerative disc disease, facet arthritis, or vertebral fracture;” the injury must
32

R. 508.

33

See e.g., 20 C.F.R. §§ 404.1567(b); 416.967(b) (2013) (light work involves a “good deal” of
standing and walking); Social Security Ruling 83-10 (“the full range of light work requires
standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday”).

34

See 20 C.F.R § 404.1520(a)(4)(iii). See Rabbers v. Comm’r Soc. Sec. Admin., 582 F.3d 647,
653 (6th Cir. 2009) (“The Listing of Impairments, located at Appendix 1 to Subpart P of the
regulations, describes impairments the SSA considers to be severe enough to prevent an
individual from doing any gainful activity, regardless of his or her age, education, or work
experience.” (internal citation omitted)).
35

See 20 C.F.R. § 416.920(a)(4)(iii); Foster v. Halter, 279 F.3d 348, 354 (6th Cir. 2001) (“A
claimant must demonstrate that her impairment satisfies the diagnostic description for the listed
impairment in order to be found disabled thereunder.”).
10

result in “compromise of a nerve root . . . or the spinal cord.”36 The claimant must then prove
that she meets each requirement in a lengthy list of accompanying functional restrictions from
one of three categories. To meet section A, Plaintiff has to show limitation of motion in the
spine, atrophy/muscle weakness, sensory/reflex loss, and positive straight leg raising both sitting
and supine.37 Section B requires “spinal arachnoiditis.”38 Section C requires Plaintiff to show
that she has stenosis resulting in an inability to “ambulate effectively.”39
An inability to ambulate effectively is an “extreme” limitation, such as a claimant who
requires a walker or two canes, cannot perform normal activities such as going to the bank or
using public transportation, or cannot maintain a “reasonable pace” while walking one block on
“uneven surfaces.”40 Other examples include the inability to carry out routine walking needed
for daily living, like shopping and banking, or climbing a few steps at a reasonable pace with use
of a single hand rail.41
Plaintiff complains that the ALJ omitted any reference to qualifying nerve root
compression at L5-S1, pointing to MRI scans that describe nerve root impingement.42 The ALJ
acknowledged that some of Plaintiff’s MRI scans showed nerve root compression but relied, in

36

20 C.F.R pt. 404, subpt. P, app. 1, § 1.04.

37

See 20 C.F.R pt. 404, subpt. P, app. 1, § 1.04A.

38

Id. at § 1.04B.

39

Id. at § 1.04C.

40

See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.00(B)(2)(b).

41

Id.

42

R. 270, 374.
11

part, on the conclusion of Khan W. Li, M.D., a neurosurgeon, that Plaintiff did not need surgery
because her impairments could be controlled conservatively.43
Even if she has a qualifying injury, Plaintiff has failed to prove that she has the resulting
limitations described by the listing. She has not shown that she has the loss of range of motion,
atrophy, positive straight leg raising (sitting and supine), and loss in reflexes all at the same time
required to meet listing § 1.04A. Plaintiff’s neurological examinations were fairly normal.
Meredith Weeks, F.N.P., reported that Plaintiff had normal gait, normal flexibility, normal motor
functioning, and negative straight leg raise.44 Plaintiff failed to follow-up with her doctors’
recommendations to attend physical therapy, and she told F.N.P. Weeks that she only had pain in
her lower back, not her legs, indicating that her condition did not reach the disabling levels
contemplated by the listings.45
Dr. Li examined Plaintiff and noted that the only abnormality was some difficulty bearing
weight on her left leg, with no mention of any problem with strength, straight leg raising, or the
other listed requirements.46 Reports from Dr. Lawrence consistently showed that Plaintiff had
normal sensation, reflexes, coordination, gait, and muscle strength/tone.47
Plaintiff has pointed to nothing in the record to show that she meets each of the functional
restrictions, although she has cited evidence showing that she occasionally met some of the

43

R. 364-65.

44

R. 250.

45

R. 252.

46

R. 365.

47

R. 389-407, 592- 627.
12

requirements. Therefore, Plaintiff has failed to meet her burden to show that she meets listing
1.04.
At step five, the Commissioner must identify a significant number of jobs in the economy
that accommodate the claimant’s residual functional capacity and vocational profile.

The

Commissioner may carry this burden by applying the Grids48 which direct a conclusion of
“disabled” or “not disabled” based on the claimant’s age and education and on whether the
claimant has transferable work skills.49 However, if a claimant suffers from a limitation not
accounted for by the Grids, the Commissioner may use the Grids as a framework but must rely
on other evidence to carry her burden. In such a case, the Commissioner may rely on the
testimony of a vocational expert to find that the claimant possesses the capacity to perform other
substantial gainful activity that exists in the national economy.50
Here, the ALJ found that Plaintiff suffered from limitations beyond those accounted for
by the Grids, and, therefore, used the Grids merely as a framework in determining whether
Plaintiff could perform other work. The ALJ then relied on the testimony of a vocational expert
in determining that there was a significant number of jobs in the national economy that Plaintiff
could perform. This testimony provides substantial evidence to support the ALJ’s finding that

48

20 C.F.R. Pt. 404, Subpt. P, App. 2.

49

Wright v. Massanari, 321 F.3d 611, 615 (6th Cir. 2003); Burton v. Sec’y of Health & Human
Servs., 893 F.2d 821, 822 (6th Cir. 1990).

50

Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 537 – 38 (6th Cir. 2001); Cline v. Comm’r of
Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996).
13

Plaintiff is not disabled.51 Accordingly, substantial evidence supports the ALJ’s determination
that Plaintiff was not disabled, and the decision of the Commissioner is AFFIRMED.
IT IS SO ORDERED.

s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date:

51

July 10, 2017.

See Foster, 279 F.3d at 356-57 (finding that substantial evidence may be produced through
reliance on the testimony of a vocational expert in response to a hypothetical question).
14