Wirasnik v. Social Security Administration, Commissioner
Filing
19
DECISION AND ORDER: denying 9 Motion to Reverse Decision of Commissioner; granting 12 Motion for Order Affirming Decision of Commissioner. Signed by District Judge J. Garvan Murtha on 03/01/2012. (wjf)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
DANNY LEE WIRASNIK,
:
:
Plaintiff,
:
:
v.
:
:
MICHAEL J. ASTRUE,
:
Commissioner of Social Security,
:
:
Defendant.
:
___________________________________:
File No. 1:10-cv-113-jgm
DECISION AND ORDER
ON PARTIES’ RESPECTIVE MOTIONS TO EITHER
REVERSE OR AFFIRM THE COMMISSIONER’S DECISION
(Docs. 9, 12)
Plaintiff disability claimant Danny Lee Wirasnik moves under
42 U.S.C. § 405(g) and Local Rule 9(a)(2)(A) to reverse the
Commissioner’s decision denying him Social Security Disability
Insurance benefits.
(Doc. 9.)
Defendant Michael J. Astrue,
Commissioner of Social Security, moves for judgment affirming the
decision.
(Doc. 12.)
For the reasons that follow, the
Commissioner’s motion to affirm the decision is granted.
I.
BACKGROUND
On August 10, 2007, Wirasnik filed for Social Security
Disability Insurance benefits (“DIB”), asserting he has been
disabled since May 6, 2005 because of lower back problems.
(R. at 9, 112-13.)
His application was denied on December 6,
2007 at the initial level of review, and denied again on
September 16, 2008 by a Federal Reviewing Official.
44.)
(R. at 9,
On December 7, 2009, Administrative Law Judge (“ALJ”)
Thomas Merrill held a hearing where Wirasnik appeared with
counsel and testified, as did a vocational expert.
(R. at 70,
16-41.)
On December 18, 2009, the ALJ held Wirasnik was not disabled
and not entitled to DIB.
(ALJ Decision, R. at 6-15.)
At step
one of the five-step sequential evaluation process for
determining disability under the Social Security Act, see 20
C.F.R. § 404.1520(a)(4), the ALJ found Wirasnik had not engaged
in substantial gainful activity since his May 6, 2005 onset date.
(R. at 11.)
At step two, the ALJ determined Wirasnik’s
degenerative disc disease of the lumbar spine and his obesity
were severe impairments that met the durational requirement for
an impairment, according to 20 C.F.R. § 404.1509.
(R. at 12.)
The ALJ determined, however, that the records regarding
Wirasnik’s diagnosed depression did not show it would interfere
with his ability to perform basic work functions for any twelvemonth period and that this was not a severe impairment.
Id.
At step three, the ALJ determined Wirasnik did not have an
impairment or combination of impairments that met or medically
equaled one of the listings in 20 C.F.R. Part 404, Subpart P,
Appendix 1.
(R. at 12 (noting Wirasnik’s impairments did not
meet Listing 1.04 regarding disability caused by disorders of the
spine).)
Relying on records from Wirasnik’s treating physician,
Dr. Block, of November 2006, February 2008, and October 2008, the
2
ALJ concluded Wirasnik had consistent, maintained, normal reflex
and sensory function, with “evidence of only very mild weakness
of the EHL.”
(R. at 12; see also R. at 234.)
The ALJ evaluated
and discounted Dr. Block’s October 29, 2009 opinion, generated in
response to questioning by Wirasnik’s attorney, on grounds it was
not supported by the doctor’s own clinical observations.
12.)
(R. at
Other physician records reflected Wirasnik had no spinal
tenderness, maintained good range of spinal motion with minimal
discomfort, and full straight-leg raising.
Id.
In October 2008,
Wirasnik had normal gait, strength and sensation, and intact
reflexes.
Id.
The ALJ at this step also considered the effects
of Wirasnik’s obesity, under SSR 02-1P, and determined the
obesity did not support a finding that Wirasnik’s impairments met
or medically equaled a listing.
Id.
At step four, the ALJ found Wirasnik had the residual
functional capacity to perform light work, as defined in 20
C.F.R. § 404.1567(b), except that Wirasnik needed to alternate
between sitting, standing, and walking for five minutes every two
hours.
Id.
Given this residual functional capacity, the ALJ
concluded Wirasnik was capable of performing his past relevant
work as a truck driver.
Id. at 14.
In evaluating Wirasnik’s claimed symptoms, the ALJ held that
while Wirasnik’s impairments could reasonably be expected to
produce the claimed pain or symptoms, his statements regarding
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the intensity, persistence and limiting effects of his
impairments were not credible to the extent they were
inconsistent with the evidence underlying the ALJ’s assessment
that Wirasnik had the residual functional capacity to perform
light work.
Id. at 13.
For instance, although Wirasnik made statements that he had
incapacitating pain, a June 2006 record by Dr. Block indicated
back symptoms were relieved by a facet injection.
17 (R. at 244).
See Ex. 4F at
Despite a September 2006 flare-up of symptoms,
Dr. Block noted Wirasnik was doing light-duty work during the
flare-up, and in November 2006, could do so “without much
difficulty.”
Id. at 7, 13 (R. at 234, 240).
In May 2007, he
could drive to North Carolina and back without major difficulty
and did not require medication.
Id. at 5 (R. at 232).
In
contrast to Wirasnik’s testimony that he was limited to walking a
quarter mile, he reported to Dr. Brown in September 2009 that he
was able to walk a mile.
See Ex. 14F at 6 (R. at 353).
In
addition, the ALJ noted Wirasnik was working part-time for much
of the period at issue.
(R. at 14.)
The ALJ considered both Dr. Lyon’s and Dr. Block’s opinions,
and afforded only “limited weight” to Dr. Lyon’s October 2009
opinion (R. at 371), and Dr. Block’s October 2009 opinion (R. at
364) which concluded Wirasnik could not work.
(R. at 14.)
ALJ found Dr. Lyon’s October 2009 opinion was internally
4
The
inconsistent, where his answer to a compound question posed by
Wirasnik’s attorney was ambiguous and offered no clinical
observations to support an opinion that claimant had depression
with markedly restricted daily living activities and deficiencies
of concentration.
Id.
Dr. Block’s October 2009 opinion differed
from his earlier opinions for unexplained reasons, and the
doctor’s finding that Wirasnik exhibited signs described in
Listing 1.04 was inconsistent with Dr. Block’s own clinic
records.
Id.
Furthermore, while the ALJ held Wirasnik could perform his
past relevant work, he also noted the vocational expert had
identified a significant number of other jobs Wirasnik could
perform as well.
(R. at 15.)
The ALJ’s decision became final on March 18, 2010, when the
Decision Review Board affirmed it.
II.
(R. at 1-3.)
DISCUSSION
Wirasnik asserts the following errors: first, the ALJ
improperly applied the treating physician rule; second, the ALJ
failed to consider all the evidence in rendering his decision;
third, he failed to consider the effect of Wirasnik’s obesity;
fourth, he failed to properly assess Wirasnik’s pain and its
impact on Wirasnik’s ability to work at substantially gainful
activity levels; and finally, his hypothetical questions to the
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vocational expert were improperly based on the assumption
Wirasnik could do light work.
Judicial review of the ALJ’s decision is limited to
determining whether substantial evidence supports the
Commissioner’s factual findings, and whether the Commissioner
applied the correct legal standards.
42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 390, 401 (1971).
A
reviewing court does not consider the question of disability de
novo.
A.
Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980).
The Treating Physician Rule and the ALJ’s
Consideration of All the Evidence
Wirasnik asserts the ALJ violated the treating physician
rule, see 20 C.F.R. § 404.1527(d)(2), in disregarding Dr. Lyon’s
October 2009 finding that Wirasnik had six depression symptoms
found in Listing 12.04(A)(1), and in disregarding Dr. Block’s
most recent October 2009 medical report which concluded Wirasnik
was not capable of substantial gainful employment.
3-4.)
(Doc. 9-1 at
The ALJ’s decision not to afford controlling weight to
these opinions is also the basis for Wirasnik’s argument the ALJ
failed to consider all the evidence in rendering his opinion.
A physician’s opinion is given controlling weight when the
opinion is: (1) from a treating source; (2) concerns the nature
and severity of the claimant’s impairment; and (3) is “wellsupported by medically acceptable clinical and laboratory
diagnostic techniques.”
SSR 96-2p.
6
Even if an opinion is well
supported by medical evidence, an ALJ will not assign it
controlling weight if it is inconsistent with other substantial
evidence in the administrative record.
F.3d 128, 133 (2d Cir. 1999).
Id.; Snell v. Apfel, 177
If an opinion is not assigned
controlling weight, the ALJ must consider the examining
relationship, the treatment relationship, the opinion’s
supportability and consistency, the physician’s specialization,
and other factors, in determining what weight to give the
opinion.
20 C.F.R. § 404.1527(d)(2).
Here, the ALJ did not err in declining to give Dr. Lyon’s
October 29, 2009 physician’s report, in which he stated Wirasnik
experienced six symptoms of depression (R. at 371-75),
controlling weight on grounds Dr. Lyon failed to offer any
clinical observations in support of his opinion.
(R. at 14.)
Both SSR 96-2p and 20 C.F.R. § 404.1527(d) provide that an
unsupported treating physician opinion will not be given
controlling weight, and therefore the ALJ properly gave Dr.
Lyon’s opinion only limited weight.
The Commissioner also points
out that Dr. Lyon’s October 2009 report is an unexplained
departure from his conclusions just a few months earlier, in June
and August 2009, that Wirasnik’s depression had improved.
(R. at
382; R. at 389-90.)
Furthermore, the ALJ did not err in declining to give
controlling weight to Dr. Block’s October 29, 2009 physician’s
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report, in which he stated Wirasnik was not capable of
substantial gainful activity, on grounds Dr. Block’s October 2009
opinion was inconsistent with the doctor’s own clinical records,
and therefore entitled only to limited weight.
(R. at 14
(comparing Dr. Block’s three opinions (R. at 328, 343 and 364),
noting unexplained inconsistencies between them and lack of
clinical support for the October report’s conclusion Wirasnik had
signs described in Listing 1.04).)
The ALJ also properly concluded Wirasnik’s impairments did
not meet or equal Listing Section 1.04 on grounds the record
demonstrated normal reflex and sensory function, with only mild
weakness of the EHL in November 2006, and, in February 2008, no
spinal tenderness, good spinal range of motion with minimal
discomfort at the extremes, and full straight-leg raising. (R. at
12 (citing R. at 234, 351).)
In October of 2008, although
Wirasnik had re-activated his sciatic, he had normal gait,
strength, and sensation, with intact reflexes.
356).
Id. (citing R. at
As noted supra, the ALJ assigned less weight to Block’s
October 2009 opinion because it was not supported by clinical
observations.
(R. at 12.)
The ALJ’s conclusion at this step is
supported by substantial evidence in the record.
Therefore, the ALJ’s decision to afford limited weight to
Dr. Lyon’s and Dr. Block’s October 2009 physician reports is
supported by substantial evidence, and does not violate the
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treating physician rule, or constitute a failure to consider all
the evidence in rendering a decision.
B.
Consideration of Obesity
Wirasnik asserts the ALJ failed to consider his obesity in
evaluating his exertional abilities and the persistence necessary
to maintain substantial gainful activity.
(Doc. 9-1 at 6.)
According to SSR 02-1p, obesity will be considered in
determining whether a claimant has a medically determinable
impairment, whether the impairment is severe and meets or equals
a listed impairment, and whether an impairment prevents
performance of past relevant work or other work in the national
economy.
See SSR 02-1p at ¶ 3.
Here, the ALJ at step two found Wirasnik’s obesity was a
severe impairment.
(R. at 11.)
He considered the obesity’s
effect on Wirasnik’s musculoskeletal impairment at step three,
determining there was no evidence of abnormal motor, sensory, or
reflex function under Listing 1.04, despite the obesity.
12.)
(R. at
At step four, the ALJ also determined that, “[e]ven when
the claimaint’s obesity is considered,” Wirasnik was able to
remain active and lose weight, and retained residual functional
capacity.
(R. at 14.)
Therefore, the ALJ properly considered
obesity at all steps of the sequential evaluation process and
Wirasnik has failed to establish error on this ground.
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C.
Consideration of Pain
Wirasnik also asserts the ALJ erred in failing to consider
the effect and magnitude of pain alone on his ability to work at
substantial gainful activity levels.
(Doc. 9-1 at 6-7.)
“The
ALJ has discretion to evaluate the credibility of a claimant and
to arrive at an independent judgment, in light of medical
findings and other evidence, regarding the true extent of the
pain alleged by the claimant.”
Marcus v. Califano, 615 F.2d 23,
27 (2d Cir. 1979).
In determining whether a claimant’s statements regarding
pain are credible, once an underlying physical impairment that
could reasonably be expected to produce pain has been shown, the
ALJ must evaluate “the intensity, persistence, and limiting
effects” of the pain to determine the extent to which it limits
“the individual’s ability to do basic work activities.”
7P.
SSR 96-
Where a claimant’s statements “are not substantiated by
objective medical evidence,” the credibility finding must be
based on “the entire case record.”
Id.
In considering the other
evidence in the record, an ALJ will consider factors such as a
claimant’s: (1) daily activities; (2) location, duration,
frequency and intensity of the pain; (3) precipitating and
aggravating factors; (4) type, dosage, effectiveness and sideeffects of any medication; (5) treatment, other than medication
received; (6) any means used to relieve pain; and (7) other
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factors concerning functional limitations.
20 C.F.R. §
404.1529(c)(3).
Here, the ALJ determined that while Wirasnik’s medically
determinable impairments could reasonably cause the pain alleged,
his statements regarding the intensity, persistence, and limiting
effects of his symptoms were not credible to the extent they were
inconsistent with his residual functional capacity for light work
with a postural option.
(R. at 13.)
Wirasnik had testified he
could not sit or stand for long periods, he was unable to lift,
and he was in constant pain, which he scaled as a six out of ten,
aggravated by weather.
Id.
He stated he took Trazadone at
night, Tramadal in the morning, and over-the-counter medication.
Id.
He also stated he could stand for ten to fifteen minutes,
could walk a quarter mile, but that twisting was difficult, and
bending over was sometimes painful.
Id.
The ALJ noted the record contained evidence that
contradicted claimant’s assertion of incapacitating pain.
13-14.
Id. at
The ALJ noted that in 2006, Wirasnik’s pain was relieved
by treatment with a facet injection, and that he could do lightduty work without much difficulty.
Id. at 13.
In 2007, he did
not require medication to drive round trip to and from North
Carolina.
Id.
Also in 2007, Dr. Block noted claimant reported
he could relieve his symptoms by moving around or stretching.
Id.
The ALJ noted that although Wirasnik testified at the
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December 2009 hearing that he could walk only a quarter mile, in
September 2009, he reported to Dr. Brown he was able to walk a
mile.
Id.
The ALJ also noted the general activity level
Wirasnik reported to Dr. Block is consistent with light activity,
and that he worked part time at light duty.
(R. at 14.)
A
reviewing court must uphold the decision of the Commissioner
where it is supported by substantial evidence, even in instances
where a reviewing court may come to a different conclusion.
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The ALJ’s credibility finding here is based on substantial
evidence; therefore Wirasnik’s assertion of error is unavailing.
D.
Hypothetical Questions to Vocational Expert
Wirasnik also asserts error because the ALJ’s hypothetical
questions for the vocational expert were premised on the
assumption Wirasnik could do light work, rather than sedentary
work to which Wirasnik claims he was limited, according to Dr.
Block’s October 2009 opinion.
(Doc. 9-1 at 5.)
The Commissioner
argues Block’s October 2009 opinion did not restrict Wirasnik to
sedentary work, and even if it did, Wirasnik’s argument supposes
that the ALJ was required to assign controlling weight to Dr.
Block’s October 2009 opinion.
For reasons discussed supra, the
ALJ’s decision not to afford the October 2009 opinion controlling
weight is supported by substantial evidence.
Any failure by the
ALJ to ask hypothetical questions premised on Wirasnik’s ability
12
to perform only sedentary work, therefore, does not amount to
error.
III. CONCLUSION
For the foregoing reasons, Wirasnik’s motion for an order
reversing the Commissioner’s decision (Doc. 9) is DENIED, and the
Commissioner’s motion for an order affirming the decision (Doc.
12) is GRANTED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 1st
day of March, 2012.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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