H. BRENT BRENNENSTUHL, Magistrate Judge.
Before the Court is the complaint (DN 1) of Mark A. Reddick ("Plaintiff") seeking judicial review of the final decision of the Commissioner pursuant to 42 U.S.C. § 405(g). Both the Plaintiff (DN 16) and Defendant (DN 17) have filed a Fact and Law Summary.
Pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have consented to the undersigned United States Magistrate Judge conducting all further proceedings in this case, including issuance of a memorandum opinion and entry of judgment, with direct review by the Sixth Circuit Court of Appeals in the event an appeal is filed (DN 14). By Order entered March 10, 2014 (DN 13), the parties were notified that oral arguments would not be held unless a written request therefor was filed and granted. No such request was filed.
On February 328, 2011, Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income payments (Tr. 12, 166, 173). Plaintiff alleged that he became disabled on January 12, 2011, as a result of high blood pressure, diabetes, neuropathy in legs/feet, bad back (Tr. 12, 201). Administrative Law Judge Edward F. Sweeney ("ALJ") conducted a video hearing from Paducah, Kentucky on August 1, 2012 (Tr. 12, 29-31). Plaintiff appeared in Madisonville, Kentucky and was represented by attorney Ronald Bruce (Tr. 12, 29-31). Also present and testifying was Kenneth Boaz, an impartial vocational expert (Tr. 12, 29-31).
In a decision dated September 13, 2012, the ALJ evaluated this adult disability claim pursuant to the five-step sequential evaluation process promulgated by the Commissioner (Tr. 12-23). The ALJ concluded that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2015 (Tr. 14). At the first step, the ALJ found Plaintiff has not engaged in substantial gainful activity since January 12, 2011, the alleged onset date (Tr. 14). At the second step, the ALJ determined that Plaintiff's diabetes mellitus, diabetic neuropathy, hypertension, and obesity are "severe" impairments within the meaning of the regulations (Tr. 14). Notably, at the second step, the ALJ also determined that Plaintiff's medically determinable mental impairment of depression is a "non-severe" impairment within the meaning of the regulations because it does not cause more than minimal limitation in his ability to perform basic mental work activities (Tr. 14). At the third step, the ALJ concluded that Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in Appendix 1 (Tr. 16).
At the fourth step, the ALJ found Plaintiff has the residual functional capacity to perform less than a full range of sedentary work because he can only occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; he should never climb ladders, ropes, or scaffolds; he can only occasionally operate foot controls with his bilateral lower extremities; and he should avoid concentrated exposure to vibration, temperature extremes and wetness (Tr. 16). Relying on testimony from the vocational expert, the ALJ found that Plaintiff is unable to perform any of his past relevant work as an electrician's helper, van/truck driver, truck driver, material handler, and bartender helper (Tr. 22).
The ALJ proceeded to the fifth step where he considered Plaintiff's residual functional capacity, age, education, and past work experience as well as testimony from the vocational expert (Tr. 22-23). The ALJ found that Plaintiff is capable of performing a significant number of jobs that exist in the national economy (Tr. 22-23). Therefore, the ALJ concluded that Plaintiff has not been under a "disability," as defined in the Social Security Act, from January 12, 2011, through the date of the decision, September 13, 2012 (Tr. 23).
Plaintiff timely filed a request for the Appeals Council to review the ALJ's decision (Tr. 8). The Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-5).
The Social Security Act authorizes payment of Disability Insurance Benefits and Supplemental Security Income to persons with disabilities. 42 U.S.C. §§ 401 et seq. (Title II Disability Insurance Benefits), 1381 et seq. (Title XVI Supplemental Security Income). The term "disability" is defined as an
42 U.S.C. §§ 423(d)(1)(A) (Title II), 1382c(a)(3)(A) (Title XVI); 20 C.F.R. §§ 404.1505(a), 416.905(a);
The Commissioner has promulgated regulations setting forth a five-step sequential evaluation process for evaluating a disability claim.
Here, the ALJ denied Plaintiff's claim at the fifth step.
As previously mentioned, the Appeals Council denied Plaintiff's request for review of the ALJ's decision (Tr. 1-4). At that point, the ALJ's decision became the final decision of the Commissioner. 20 C.F.R. §§ 404.955(b), 404.981, 422.210(a);
Review by the Court is limited to determining whether the findings set forth in the final decision of the Commissioner are supported by "substantial evidence," 42 U.S.C. Section 405(g);
Plaintiff disagrees with Finding No. 4 which addresses the third step in the five step sequential evaluation process (DN 16, Memorandum at Page 1). In Finding No. 4, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in Appendix 1 (Tr. 16).
At the third step, a claimant has the burden of demonstrating he has an impairment that meets or medically equals a listing in Appendix 1.
It is well-established that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."
Next, Plaintiff disagrees with Finding No. 5 which sets forth the ALJ's residual functional capacity assessment (DN 16, Memorandum at Page 1). In Finding No. 5, the ALJ determined that Plaintiff has the residual functional capacity to perform less than a full range of sedentary work because he can only occasionally stoop, kneel, crouch, crawl, and climb ramps and stairs; he should never climb ladders, ropes, or scaffolds; he can only occasionally operate foot controls with his bilateral lower extremities; and he should avoid concentrated exposure to vibration, temperature extremes and wetness (Tr. 16).
The residual functional capacity finding is the Administrative Law Judge's ultimate determination of what a claimant can still do despite his or her physical and mental limitations. 20 C.F.R. §§ 404.1545(a), 404.1546, 416.945(a), 416.946. The residual functional capacity finding is based on a consideration of medical source statements and all other evidence in the case record about what a claimant can do despite limitations caused by his or her physical and mental impairments. 20 C.F.R. §§ 404.1529, 404.1545(a), 404.1546, 416.929, 416.945(a), 416.946; Social Security Ruling 96-5p; Social Security Ruling 96-7p. Thus, in making the residual functional capacity finding the Administrative Law Judge must necessarily assign weight to the medical source statements in the record and consider the subjective allegations of the claimant and make credibility findings. 20 C.F.R. §§ 404.1527(c), 404.1529; Social Security Ruling 96-7p.
Here, Plaintiff challenges the ALJ's findings regarding the weight accorded to medical source statements in the record and the credibility of Plaintiff's subjective allegations (DN 16, Memorandum at Pages 2-9). The undersigned will first address Plaintiff's arguments regarding the weight accorded to the medical source statements in the record.
The regulations require Administrative Law Judges to evaluate every medical opinion in the record. 20 C.F.R. §§ 404.1527(c); 416,927(c).
The source of the medical opinion dictates the process by which the Commissioner accords it weight.
If the Administrative Law Judge does not give the treating physician's medical opinion controlling weight, Athen the opinion is weighed based on the length, frequency, nature, and extent of the treating relationship, ... as well as the treating source's area of specialty and the degree to which the opinion is consistent with the record as a whole and is supported by relevant evidence."
Notably, medical opinions from examining and non-examining physicians are "never assessed for `controlling weight.'" Gayheart, 710 F.3d at 376 (citation omitted). Instead, the Administrative Law Judge "weighs these opinions based on the examining relationship (or lack thereof), specialization, consistency, and supportability..." Id. (citing 20 C.F.R. § 404.1527(c)(2)). Further, other factors that tend to support or contradict the medical opinion may be considered in assessing the medical opinion. Gayheart, 710 F.3d at 376 (citing 20 C.F.R. § 404.1527(c)(2)).
Plaintiff argues the ALJ erred in discounting the opinions of Dr. Popescu, a treating specialist in internal medicine (DN 16, Memorandum at Pages 4-10). Citing a letter, dated August 5, 2011, and a Medical Source Statement of Ability To Do Work-Related Activities (Physical), also dated August 5, 2011, Plaintiff argues the opinions of Dr. Popescu are not vague and conclusory as the ALJ indicated in the decision (DN 16, Memorandum at Page 7; Tr. 343, 346-348). Plaintiff asserts that Dr. Popescu very clearly indicated he suffers from diabetes mellitus with diabetic neuropathy and skin/foot ulcers and poor circulation (DN 16, Memorandum at Page 5). Additionally, Plaintiff asserts that Dr. Popescu clearly opined the amount of pain Plaintiff suffered and the medications he takes on a regular basis are the reasons for Plaintiff's restrictions and inability to work (DN 16, Memorandum at Pages 5, 7; Tr. 343, 346-348). Additionally, Plaintiff observes that the second page of the Medical Source Statement is not included in the administrative record (DN 16, Memorandum at Page 5). Plaintiff points out that on the second page Dr. Papescu opined he is limited to sitting less than 6 hours in an 8 hour work day (DN 16, Memorandum at Page 7 and Exhibit at Page 2). Plaintiff suggests this is why the ALJ incorrectly found Dr. Popescu did not place any limitations on his ability to sit (DN 16, Memorandum at Pages 5, 7; compare DN 16, Exhibit at Page 2 with Tr. 346-348).
Defendant argues the ALJ assigned little weight to the April 11, and August 5, 2011 letters from Dr. Popescu because they were conclusory statements that did not provide specific limits on Plaintiff's ability to work and were not supported by detailed objective criteria and documentation (DN 17, Memorandum at Page 8). Additionally, Defendant asserts that Dr. Popescu's opinion in those letters about Plaintiff's ablility to work is an issue reserved of the ALJ because such a finding is case dispositive (DN 17, Memorandum at Page 8). Focusing on the Medical Source Statement dated August 5, 2011, Defendant contends substantial evidence in the record supports the ALJ's reasons for discounting the functional limitations expressed by Dr. Popescu (DN 17, Memorandum at Pages 8-9). Finally, Defendant asserts because the ALJ found the objective evidence did not support Dr. Popescu's limitations there was no prejudice resulting from the absence of Page 2 of the Medical Source Statement in the record (DN 17, Memorandum at Page 8, fn. 3).
The parties seem to be in agreement that Dr. Popescu is a treating physician within the meaning of the regulations. In letters dated April 11 and August 5, 2011, Dr. Popescu expressed opinions regarding Plaintiff's ability to work (Tr. 300, 343). Additionally, on August 5, 2011, Dr. Popescu responded to a questionnaire about limitations imposed by Plaintiff's physical limitations (Tr. 346-348; DN 16, Exhibit). The questionnaire is entitled "MEDICAL SOURCE STATEMENT OF ABILITY TO DO WORK-RELATED ACTIVITIES (PHYSICAL)" ("MSS") (Tr. 346).
In the letter dated April 11, 2011, Dr. Popescu expressed the following information and opinions regarding Plaintiff:
(Tr. 300).
In the letter dated August 5, 2011, Dr. Popescu provided the following information and opinions about Plaintiff:
(Tr. 343).
Dr. Popescu filed out all four pages of the MSS (DN 16, Exhibit). Unfortunately, only the first, third, and fourth pages of the completed MSS are in the administrative record (Tr. 346-348). This means the second page is not part of the administrative record the ALJ considered when he rendered his decision (Compare Tr. 346-348 with DN 16, Exhibit).
On the first page of the completed MSS, Dr. Popescu indicated Plaintiff is limited to occasionally lifting and/or carrying less than 10 pounds; frequently lifting and/or carrying less than 10 pounds; and standing and/or walking less than 2 hours in an 8-hour workday (Tr. 346). On the third page, Dr. Popescu reported that Plaintiff is capable of frequently fingering and feeling but limited to occasionally reaching in all directions and handling (Tr. 347). Additionally, Dr. Popescu indicated no limitations on Plaintiff's visual/communicative abilities (Tr. 347). On the fourth page, Dr. Popescu indicated Plaintiff's exposure to environmental limitations (e.g., temperature extremes, noise, dust, vibration, humidity/wetness, hazards, and fumes) was limited (Tr. 348). Additionally, Dr. Popescu provided the following explanation for the above limitations:
(Tr. 348).
On the second page of the completed MSS, Dr. Popescu limited Plaintiff to sitting less than 6 hours in an 8-hour day (DN 16, Exhibit). However, this page is not in the administrative record considered by the ALJ.
The ALJ provided a thorough summary of the medical records received from Dr. Popescu (Tr. 18-19). Additionally, the ALJ summarized the first, third, and fourth pages of the completed MSS (Tr. 19). Obviously, the ALJ could not summarize the second page because it is not in the administrative record. The ALJ then commented as follows:
(Tr. 19). At a subsequent point in the decision, the ALJ provided the following explanation for the weight accorded to Dr. Popescu's opinions:
(Tr. 21).
The first two sentences in the above quoted paragraph address Dr. Popescu's letters dated April 11 and August 5, 2011 (Tr. 21, 300, 343). In those letters, Dr. Popescu merely opines Plaintiff "is unable to engage" in "any work related activity" and "gainful activities" (Tr. 300,343). Unquestionably, these are vocational opinions and they are dispositive of the issue of disability, an issue reserved for the Commissioner. Social Security Ruling 96-5p, 1996 WL 374183, *2-5 (July 2, 1996);
The third through fifth sentences in the above paragraph address limitations in the MSS (Tr. 21, 346-348). Although the ALJ's explanations are brief, he did find the restrictions in the MSS are not consistent with Plaintiff's testimony and the treatment records (Tr. 21). Thus, the ALJ expressed two good reasons for not according "controlling weight" to the medical opinions in the MSS. 20 C.F.R. §§ 404.1527(c)(2), 416.927(c)(2);
As previously mentioned, the second page of the MSS was not in the record considered by the ALJ. Therefore, the Court cannot consider this page in determining whether the findings in the final decision of the Commissioner are supported by substantial evidence in the administrative record. 42 U.S.C. Section 405(g);
Pursuant to Sentence six of 42 U.S.C. Section 405(g), the Court is authorized to order a prejudgment remand for consideration of new and material evidence that for good cause was not previously presented to the Commissioner.
Evidence is considered "new" if it did not exist at the time of the administrative proceeding.
Evidence is considered "material" if there is a reasonable probability that a different disposition would have resulted if the evidence had been submitted during the original proceeding.
Finally, "good cause" is demonstrated by showing a reasonable justification for the failure to acquire and present the evidence to the Administrative Law Judge.
Finally, Defendant asserts because the evidence did not support Dr. Popescu's sitting restriction there was no prejudice resulting from the absence of this page in the record (DN 17, Fact and Law Summary at Page 8, fn. 3). The undersigned agrees.
Next, Plaintiff challenges the ALJ's assignment of weight to the opinions of Dr. Storey, the consultative examiner (Tr. 16, Fact and Law Summary at Pages 7-8). Defendant asserts that Dr. Storey's opinion, about Plaintiff having a moderate to severe level of limitation in job-related activities, is inconsistent with the doctor's own examination findings (DN 17, Fact and Law Summary at Page 7).
The ALJ's summary of Dr. Storey's report reads as follows:
(Tr. 18). At a later point in the decision, the ALJ gave the following explanation for the weight he accorded to Dr. Storey's opinion:
(Tr. 21). The undersigned concludes that substantial evidence in the record supports the ALJ's findings regarding the weight accorded to Dr. Storey's restrictions. Additionally, the ALJ weighed Dr. Storey's opinion based on the examining relationship, specialization, consistency, and supportability.
Next, Plaintiff argues the ALJ erred when he relied on the opinion of J. Athy, Ph.D., a non-examining State agency psychologist, to find his depression was not a severe impairment (DN 16, Fact and Law Summary at Page 7). Plaintiff believes the findings of the consultative examiner, Shirley Spence, Ph.D., show his depression is severe and, as a result, contradict the ALJ's finding (DN 16, Fact and Law Summary at Page 7). Defendant contends there is no merit to Plaintiff's argument because Dr. Spence did not indicate any specific functional limitations related to Plaintiff's depression (DN 17, Fact and Law Summary at Pages 10-11). For this reason, Defendant asserts the ALJ appropriately found the opinions of Dr. Spence did not contradict the opinions of Dr. Athy (DN 17, Fact and Law Summary at Page 11).
In Finding No. 3, the ALJ determined Plaintiff's depression was a non-severe impairment because it did not cause more than minimal limitation in his ability to perform basic work activities (Tr. 14). In making this determination, the ALJ relied on Dr. Athy's opinions regarding the degree of functional limitation in the four broad functional areas known as the "paragraph B" criteria (Tr. 15-16, 21). In connection with Finding No. 5, the ALJ summarized the medical opinions addressing Plaintiff's depression (Tr. 16, 20-22). Additionally, the ALJ made findings regarding the weight he assigned to those medical opinions (Tr. 16, 20-22).
In pertinent part, the ALJ's summary of the report from Dr. Spence reads as follows:
(Tr. 20). The undersigned has reviewed Dr. Spence's report and concludes the ALJ provided an accurate summary (Tr. 20, 378-380).
Dr. Athy reviewed the medical record, including Dr. Spence's report, and rendered an opinion regarding the degree of functional limitation in the four broad functional areas known as the "paragraph B" criteria (Tr. 97-103). Dr. Athy opined that Plaintiff had mild restriction of activities of daily living; mild difficulties in maintaining social functioning; mild difficulties in maintaining concentration, persistence or pace; and Plaintiff has experienced no episodes of decompensation, of extended duration (Tr. 102). Further, Dr. Athy opined the evidence did not establish the presence of the "C" criteria (Tr. 102).
In relevant part, the ALJ's decision reads as follows:
(Tr. 21). The undersigned has reviewed the record and concludes substantial evidence in the record supports the ALJ's findings regarding Dr. Athy's opinion. Further, the ALJ's findings comport with applicable law.
Plaintiff also takes issue with the ALJ's findings regarding the credibility of his subjective complaints about pain and other symptoms. Notably, Plaintiff's statement that he is experiencing pain or other symptoms will not, taken alone, establish that he is disabled; there must be medical signs and laboratory findings which show the existence of a medical impairment that could reasonably be expected to give rise to the pain and/or other symptoms alleged. 20 C.F.R. §§ 404.1529(a), 416.929(a). In determining whether a claimant suffers from debilitating pain and/or other symptoms, the two-part test set forth in
The ALJ found from the medical record and Plaintiff's testimony that Plaintiff does not suffer pain to the extent he testified. In the absence of detailed corroborating evidence of Plaintiff's subjective complaints, it becomes the duty of the ALJ to resolve the issue of Plaintiff's credibility. Because tolerance of pain and other symptoms is a highly individualized matter, and a determination of disability based on pain depends, of necessity, largely on the credibility of the claimant, the conclusion of the ALJ, who has the opportunity to observe the claimant's demeanor, "should not be discharged lightly."
Additionally, there is no merit to Plaintiff's assertion that the ALJ impermissibly issued a medical opinion (DN 16, Fact and Law Summary at Pages 7, 8). The ALJ reviewed the medical evidence in the record and assigned weight to the medical opinions. In light of the weight assigned to the medical opinions, it was appropriate for the ALJ to make the following finding in the context of addressing Plaintiff's subjective statements about severely limited daily activities:
(Tr. 17) (emphasis added). Inasmuch as the ALJ relied on medical opinions in the record to make this finding there is no basis for Plaintiff's claim that the ALJ rendered a medical opinion.
Next, Plaintiff disagrees with Finding No. 9 (DN 16, Fact and Law Summary at Pages 1-2). Finding No. 9 reads as follows:
(Tr. 22) (emphasis in original text). Notably, Plaintiff has not explained why he disagrees with Finding No. 9 (DN 16, Fact and Law Summary Pages 1-10). It is well-established that "issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived."
Next, Plaintiff disagrees with Finding No. 10 (DN 16, Fact and Law Summary at Pages 2, 8-9). Finding No. 10 reads as follows:
(Tr. 22). Plaintiff disagrees with this finding because the vocational expert opined there is no work Plaintiff can perform based on the limitations in the fourth and fifth hypothetical questions (DN 16, Fact and Law Summary at Pages 8-9; citing Tr. 67-69). Plaintiff indicates these two hypothetical questions are based on limitations expressed by his treating specialist, Dr. Popescu (DN 16, Fact and Law Summary at Pages 8-9). Defendant argues the ALJ discounted the limitations set forth in the fourth and fifth hypotheticals and, therefore, the ALJ appropriately rejected the vocational expert's response to those questions (DN 17, Fact and Law Summary at Pages 11-12). The undersigned agrees with Defendant.
At the fifth step, the Commissioner has the burden of demonstrating there exist a significant number of jobs in the local, regional and national economies that the claimant can perform, given his or her residual functional capacity, age, education, and past work experience. 20 C.F.R. §§ 404.1520(a)(4)(v) and (g), 416.920(a)(4)(v) and (g);
Here, at the fourth step the ALJ found Plaintiff's impairments impose exertional and non-exertional limitations (Tr. 16). Therefore, at the fifth step, the ALJ followed the applicable law when he used the Grids only as a framework in the decision making process and made a non-guideline determination based on the testimony of a vocational expert (Tr. 22-23). Further, the vocational expert's testimony constitutes substantial evidence to support the ALJ's finding that Plaintiff is capable of performing a significant number of jobs existing in the Kentucky and national economies (Tr. 22-23),
Finally, Plaintiff disagrees with Finding No. 11 (DN 16, Fact and Law Summary at Page 2). There is no merit to Plaintiff's position because substantial evidence supports the ALJ's findings at all five steps in the sequential evaluation process. In sum, substantial evidence in the record supports Finding No. 11.
