Faulkner v. Berryhill
Filing
27
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER. Signed by Chief Judge S. Thomas Anderson on 3/29/19. (mbm)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
DOUGLAS FAULKNER,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
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Case No: 1:17-cv-01197-STA-egb
ORDER AFFIRMING THE DECISION OF THE COMMISSIONER
Plaintiff Douglas Faulkner filed this action to obtain judicial review of Defendant
Commissioner’s final decision denying his application for disability benefits under Title II of the
Social Security Act (“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 2, 2016. On July 21, 2016, the ALJ
denied the claim. The Appeals Council subsequently denied the 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.1
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
Plaintiff received an extension of time in which to file a reply brief (ECF No. 17), but no reply
was filed.
cause for a rehearing.” 42 U.S.C. § 405(g). The Court’s review is limited to determining
whether there is substantial evidence to support the Commissioner’s decision and whether the
correct legal standards were applied. See Blakley v. Comm’r Of Soc. Sec., 581 F.3d 399, 405
(6th Cir. 2009) (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).
Substantial evidence is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (quoting
Richardson v. Perales, 402 U.S. 389 (1971)). It is “more than a mere scintilla of evidence, but
less than a preponderance.” 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)). The Commissioner, not
the Court, is charged with the duty to weigh the evidence, to make credibility determinations2
and resolve material conflicts in the testimony and to decide the case accordingly. 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). When substantial evidence supports the Commissioner’s determination, it is
conclusive, even if substantial evidence also supports the opposite conclusion.
Warner v.
Comm’r of Soc. Sec., 375 F.3d 387, 390 (6th Cir. 2004).
Plaintiff was born on April 15, 1971. He went to a vocational school to study to become a
machinist. He has past work as a machinist and lab worker. He claims disability beginning
February 4, 2014, due to an enlarged heart, cardiomyopathy, status post defibrillator
implantation, and high blood pressure.
The SSA published Social Security Ruling 16-3p, Policy Interpretation Ruling Titles II and
XVI: Evaluation of Symptoms in Disability Claims, which supersedes SSR 96-7p, Policy
Interpretation Ruling Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing
the Credibility of an Individual’s Statements. SSR 16-3p eliminates use of the term “credibility”
from SSA policy and clarifies that subjective symptom evaluation is not an examination of a
claimant’s character. SSR 16-3p, 2016 WL 1119029 *1 (March 16, 2016). SSR 16-3p took effect
March 16, 2016, which is before the ALJ issued his decision and, therefore, is applicable to the
decision in this case.
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The ALJ made the following findings: (1) Plaintiff engaged in substantial gainful activity
until July 10, 2014, but not thereafter, and met the insured status requirements of the Act through
December 31, 2019; (2) Plaintiff has the severe impairment of nonischemic cardiomyopathy; but
he does not have an impairment or combination of impairment that meet or medically equal one
of the listed impairments; (3) Plaintiff retains the residual functional capacity to perform
sedentary work; he can lift ten pounds occasionally and frequently, sit for six hours in an eighthour workday, and stand/walk for two hours in an eight-hour workday; he must avoid all
exposure to unprotected heights and moving machinery; (4) Plaintiff is not able to perform his
past relevant work; (5) transferability of job skills is not material to the determination of
disability because using the Medical-Vocational Rules as a framework supports a finding that
Plaintiff is not disabled whether or not he has transferable job skills; (6) 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; (7) Plaintiff was not
under a disability as defined in the Act at any time through the date of this decision. R. 13 – 17.
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. Sec’y of Health & Human Servs, 923 F.2d 1168, 1173 (6th Cir.
1990). 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. Id.
The Commissioner conducts the following, five-step analysis to determine if an
individual is disabled within the meaning of the Act:
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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 or she 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.
Willbanks v. Sec’y of Health & Human Servs, 847 F.2d 301 (6th Cir. 1988).
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, other jobs exist in significant numbers in the national economy that he can perform.
Plaintiff argues that substantial evidence does not support the ALJ’s decision.
He
specifically argues that the ALJ erred at step two and step three of the sequential analysis. He
also argues that the ALJ improperly weighed the medical evidence, including the opinion of his
treating specialist, and did not give good reasons for rejecting the opinion of that specialist. The
Court finds Plaintiff’s arguments unpersuasive.
At step two, the ALJ found that Plaintiff has the severe impairment of nonischemic
cardiomyopathy. Therefore, although the ALJ did not find Plaintiff’s alleged enlarged heart and
chronic heart failure to be severe impairments, she made a step two analysis and considered
Plaintiff’s severe and nonsevere impairments in the remaining steps of the sequential analysis.
The fact that some of Plaintiff’s impairments were not deemed to be severe at step two is legally
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irrelevant. See Anthony v. Astrue, 266 F. App’x 451, 457 (6th Cir. 2008) (citing Maziarz v. Sec’y
of Health & Human Servs., 837 F.2d 240, 244 (6th Cir. 1987) (holding that the failure to find
that an impairment is severe is harmless error when other impairments are deemed severe)). The
ALJ, therefore, did not err in this regard.
Next, Plaintiff complains of the ALJ’s step three finding that his severe impairment of
nonischemic cardiomyopathy did not meet or equal any listed impairment, including Listing
4.02. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.02. The ALJ reviewed the record as a whole
and found that Plaintiff did not meet or equal a listing-level impairment. Substantial evidence
supports that finding.
Listing 4.02 requires a claimant to show chronic heart failure while on a regimen of
prescribed treatment, with symptoms and signs. The requisite level of severity for this
impairment is met when the requirements in both A and B are satisfied. Id. Plaintiff must show
medically documented presence of one of the following: (1) systolic function with left
ventricular end diastolic dimensions greater than 6.0 cm or ejection fraction of thirty per cent or
less during a period of stability (not during an episode of acute heart failure); or (2) diastolic
failure with left ventricular posterior wall plus septal thickness totaling 2.5 cm or greater on
imaging, with an enlarged left atrium greater than or equal to 4.5 cm, with normal or elevated
ejection fraction during a period of stability (not during an episode of acute heart failure). Id. §
4.02A.
Plaintiff must also show one of the following: (1) persistent symptoms of heart failure
which very seriously limit the ability to independently initiate, sustain, or complete activities of
daily living in an individual for whom a doctor has concluded that the performance of an
exercise test would present a significant risk to the individual; or (2) three or more separate
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episodes of acute congestive heart failure within a consecutive twelve-month period with
evidence of fluid retention from clinical and imaging assessments at the time of the episodes,
requiring acute extended physician intervention such as hospitalization or emergency room
treatment for twelve hours or more, separated by periods of stabilizations; or (3) an inability to
perform on an exercise tolerance test at a workload equivalent to five METs or less. Id. § 4.02B.
In the present case, Plaintiff has not shown that he meets the B requirements. No doctor
suggested that he was incapable of performing an exercise test or that he had an inability to
perform an exercise tolerance test at a workload equivalent to five METs or less. Plaintiff has
also not had three hospitalizations for heart failure with separated periods of stabilization.
Plaintiff claims that he has had repeated episodes of chronic heart failure, but he was only
hospitalized once for heart failure and once for the defibrillator implantation. R. 295-467, 476,
487. Plaintiff further relies on “other significant symptomatology as described in the listing.”
However, he has not identified the symptomatology or tied it to the requirements of Listing
4.02B. Consequently, Plaintiff has not shown that he met all criteria of Listing 4.02.
Also supporting the ALJ’s decision are the opinions of state agency medical consultants
who reviewed the medical records and concluded that Plaintiff did not meet or equal a listinglevel impairment. See Gustafson v. Comm’r of Soc. Sec., 550 F. App’x 288, 289 (6th Cir. 2014)
(“In addition, the ALJ’s finding was supported by the opinions of two reviewing psychologists,
who concluded that Gustafson did not meet the regulatory listing for mental retardation.”). The
opinions of the state agency medical consultants, R. 59-62, 72, 74-76, support the ALJ’s finding
that Plaintiff did meet Listing 4.02.
Next, Plaintiff complains of the weighing of the medical evidence and opinions,
especially the opinion of his treating cardiologist. Medical opinions are to be weighed by the
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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.” 20 C.F.R. § 404.1527(c)(2). 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 the other evidence) as long as there is no other substantial evidence in the case
record that contradicts or conflicts with the opinion.” Soc. Sec. Rul. 96–2P.
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.” Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). 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.” Soc. Sec. Rul. 96–2P; see also
Gayheart v. Comm’r of Soc. Sec., 710 F.3d 365, 376 (6th Cir. 2013).3
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, 20 C.F.R. § 404.1502,
3
The SSA has rescinded SSR 96-2p in connection with its new rules governing the analysis of
treating physicians’ opinions, but that rescission is effective only for claims filed on or after
March 17, 2017. See SSR 96-2p, Rescission of Social Security Rulings 96-2p, 96-5p, and 06-3p,
2017 WL 3928298 at *1 (March 27, 2017). Thus, the rescission is not applicable to this case.
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404.1527(c)(1), 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. Id. § 404.1502, 404.1527(c)(2). 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.” Soc. Sec. Rul. No. 96–6p.
Opinions from 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.
20 C.F.R. § 404.1527(c).
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. See 20 C.F.R. §
404.1527(e)(2)(i); Soc. Sec. Rul. 96-6p.
In the present case, substantial evidence supports the weight that the ALJ gave to the
medical evidence and opinions in the record and his evaluation of Plaintiff’s residual functional
capacity, both physical and mental, and she gave good reasons for the weight she gave the
medical opinions. The ALJ properly determined that Plaintiff could perform a limited range of
sedentary work with environmental restrictions.
In April 2016, treating cardiologist Chibuzo Nwokolo, M.D., opined on a checkmark
form that Plaintiff could lift less than ten pounds occasionally and frequently, sit for less than six
hours, and stand/walk for less than two hours. R. 890-93. Plaintiff could occasionally kneel,
crouch, crawl, and stoop, and never climb or balance. R. 891. The ALJ acknowledged that Dr.
Nwokolo was Plaintiff’s treating physician but found his opinion to be inconsistent with the
record. For example, the medical records show that Plaintiff was functioning at the New York
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Association (“NYHA”) rating of I to II. R. 561-66, 583-87, 767, 866. Class I is indicative of no
limitation of physical activity and ordinary physical activity does not cause undue fatigue,
palpitation, or dyspnea. Class II is indicative of a slight limitation of physical activity. The
patient is comfortable at rest, but ordinary physical activity results in fatigue, palpitation, or
dyspnea.
See
American
Heart
Associations,
Classes
of
Heart
Failure,
http://www.heart.org/HEARTORG.4 Plaintiff’s Class I to II classification is inconsistent with
Dr. Nwokolo’s opinion and, instead, supports the ALJ’s finding that Plaintiff could perform
sedentary work. Thus, the ALJ could properly give Dr. Nwokolo’s opinion less weight.
Moreover, the checkmark form prepared by Dr. Nwokolo is conclusory and contains little
explanation. R. 890-93. “While checklist opinions are not per se unreliable in this context, it is
not improper for an ALJ to take into consideration the format of a medical opinion, especially in
light of other factors in the record that signal unreliability.” Kepke v. Comm’r of Soc. Sec., 636 F.
App’x 625, 630 (6th Cir. 2016); Curler v. Comm’r of Soc. Sec., 561 F. App’x 464, 471 (6th Cir.
2014) (finding that controlling weight was properly not given to unsupported checklist opinion).
Accordingly, the ALJ properly evaluated Dr. Nwokolo’s opinion and gave it little weight.
State agency medical consultants reviewed the medical records and opined that Plaintiff
could perform sedentary and light work with environmental limitations. Michael Ryan, M.D.,
opined that Plaintiff could perform sedentary work but must avoid all exposure to hazards. R.
59-62. Stephen Burge, M.D., also reviewed the record and found that Plaintiff could perform
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Physicians “typically use a classification system that places an individual in one of four
categories based on how much the individual is limited during physical activity due to cardiac
disease.” Shelley v. Berryhill, 2017 WL 4366721 at *3 n. 7 (E.D. Tenn. Sept. 29, 2017) (citing
Classes of Heart Failure, Am. Heart Ass’n, https://www.heart.org/HEARTORG/Conditions/
HeartFailure/AboutHeartFailure/Classes-of-Heart-Failure.
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light work without concentrated exposure to hazards.
R.72, 74-76. The ALJ weighed the
conflicting opinions of Dr. Nwokolo and the consulting physicians and gave the consulting
physicians’ opinions greater weight because they were more consistent with the record as a
whole. In making her decision, the ALJ could properly rely on the opinions from the consulting
doctors together with the other evidence of record. See Reeves v. Comm’r of Soc. Sec., 618 F.
App’x 267, 275 (6th Cir. 2015) (noting that an ALJ may give substantial weight to the opinions
of state agency physicians when these opinions are supported by the record as a whole); 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.”).
Plaintiff’s treatment record supports the ALJ’s decision. Plaintiff was hospitalized with
heart failure in February 2014 and underwent a defibrillator implantation in July 2014. R. 295467, 476, 487. After the implantation, as noted above, Plaintiff received a NYHA classification
of I and II, indicating no more than slight physical limitations. R.561-66, 583-87, 767. Plaintiff
was not a candidate for a heart transplant or more advanced heart failure therapies because he
was doing “too well.” R. 561, 563-64, 566, 588. The ALJ could properly find Plaintiff’s
conservative treatment to be inconsistent with his allegations of disability. See Helm v. Comm’r
of Soc. Sec., 405 F. App’x 997, 1001 (6th Cir. 2011) (stating that modest treatment is
“inconsistent with a finding of total disability”).
Accordingly, substantial evidence supports the ALJ’s weighing of the medical evidence.
The Court finds that the ALJ properly evaluated Plaintiff’s allegations of disability, determined
that those allegations were not supported by the record, and stated her reasons for her decision.
In so doing, the ALJ considered such factors as the medical opinions, Plaintiff’s medical
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treatment, and his daily activities. Substantial evidence supports the ALJ’s finding that Plaintiff
could perform a range of sedentary work with environmental limitations.
Substantial evidence also supports the step five finding that Plaintiff retained the ability
to perform work existing in significant numbers in the national economy. A vocational expert
testified that an individual of Plaintiff’s age, education, work experience, and residual functional
capacity could perform the jobs of weight tester, a dowel inspector, and a button assembler. R.
47–48. As the hypothetical question to the vocational expert included those impairments the ALJ
found credible and excluded those she discredited for legally sufficient reasons, the vocational
expert’s testimony constitutes substantial evidence in support of the ALJ’s determination. See
Winslow v. Comm’r of Soc. Sec., 566 F. App’x 418, 421 (6th Cir. 2014) (“The record reflects,
however, that the hypothetical questions were proper because the ALJ incorporated all of the
functional limitations that she deemed credible.”).
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: March 29, 2019
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