JOE B. BROWN, Magistrate Judge.
This action was brought under 42 U.S.C. §§ 405(g) and 1383(c) for judicial review of the final decision of the Social Security Administration (SSA) through its Commissioner, denying plaintiff Thomas Jefferson Mabry III's applications for Disability Insurance Benefits (DIB) under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 416(i) and 423(d), and Supplemental Security Income (SSI) under Title XVI of the Act, 42 U.S.C. §§ 1381 et seq. For the reasons explained below, the undersigned
Thomas Jefferson Mabry III (hereinafter "plaintiff"), filed for DIB and SSI on May 12, 2011 (Doc. 14, pp. 59, 103-06, 161-71),
Plaintiff's applications were denied initially on May 23, 2011, and upon reconsideration on December 1, 2011. (Doc. 14, pp. 127-32) On January 25, 2012, plaintiff requested a hearing before an administrative law judge (ALJ). (Doc. 14, p. 133) A hearing was held in Cookeville on April 15, 2013 before ALJ Alfred Smith. (Doc. 14, pp. 66-102) Plaintiff was represented at the hearing by Donna Simpson, an attorney. (Doc. 14, pp. 66, 68, 71-91, 93, 100-01)
The ALJ entered an unfavorable decision on June 19, 2013 (Doc. 14, pp. 48-63), after which plaintiff filed a request with the Appeals Council on July 24, 2013 to review the ALJ's decision (Doc. 14, p. 47). The Appeals Council denied plaintiff's request on August 25, 2014 (Doc. 14, pp. 1-6), whereupon the ALJ's decision became the final decision of the Commissioner.
Counsel filed an amended motion for judgment on the administrative record on September 11, 2015 (Doc. 31),
Plaintiff was treated at the Cumberland River Hospital emergency room (ER) on April 23, 2006 after an accident in which his 4-wheeler rolled on top of him. (Doc. 14, pp. 256-60) Xrays revealed lumbar compression fractures at T12 and L1 of "indeterminate" age, vertebral body hemangioma
Plaintiff presented to the Cookeville Regional Medical Center (Cookeville Regional) ER for hypertension and chest pain on December 16, 2007. (Doc. 14, pp. 320-25) He was admitted for observation, "underwent cardiac stress testing," and "[m]inor disease was found."
Plaintiff presented to Dr. Copeland on November 13, 2009 for high blood pressure, which Dr. Copeland noted had "been running normal," and "a form to be filled out stating that he [wa]s able to go to work." (Doc. 14, pp. 268-69) Plaintiff was in no acute distress, denied any neurological issues, i.e., tingling or numbness, etc., and his physical examination was normal. Dr. Copeland released plaintiff "to work [without] restrictions," noting that plaintiff had "recovered & has had no further problems" since the 2006 4-wheeler accident. (Doc. 14, p. 270)
Dr. Marilyn Vermeesch, M.D., treated plaintiff repeatedly between January 2010 and August 2012. (Doc. 14, pp. 273-76, 279-85, 287-90, 292-95, 297-99, 440-45, 491-94, 497-98) Plaintiff's many examinations were unremarkable, with plaintiff repeatedly denying any negative system-related symptoms, i.e., constitutional, head, eyes, ears, nose, throat, cardiovascular, respiratory, gastrointestinal, neurological, musculoskeletal, psychiatric, etc. Actual physical examination consistently showed plaintiff in no acute distress, and — where an issue — he exhibited normal cardiovascular functioning, no musculoskeletal instability or tenderness to palpation, normal musculoskeletal range of motion (ROM), upper extremity strength 4-5-/5 bilaterally, lower extremity strength 5/5, symmetrical/normal deep tendon responses (DTRs), and normal gait.
Dr. Donita Keown, M.D., examined plaintiff consultively on July 19, 2011 to check the lower spine ROM, straight-leg raises, gait and station. (Doc. 14, pp. 390-91) Dr. Keown recorded the following impressions following the examination:
(Doc. 14, p. 391)
Dr. Lina Caldwell, M.D. completed a DDS medical consultant analysis on August 10, 2011. (Doc. 14, pp. 400-04) Dr. Caldwell determined that plaintiff had no severe impairments, either singly or in combination. (Doc. 14, p. 400) Dr. Caldwell recorded the following observations relevant to this inquiry:
(Doc. 14, p. 403)
Plaintiff presented to the Cumberland River Hospital ER on September 23, 2011 for a severe headache. (Doc. 14, pp. 407-14) The ER doctor, Dr. Mark Clapp, M.D., noted: "[s]ome chronic back pain — trying to get disability." (Doc. 14, p. 407) CT scan of plaintiff's cervical spine revealed the following: "no evidence of acute fracture or subluxation"
Dr. Vermeesch ordered MRIs of plaintiff's cervical and lumbar spine on October 11, 2011 (Doc. 14, p. 443) following plaintiff's complaint of numbness and pain that date, and the month before (Doc. 14, pp. 435-39, 440-45). The impression in the report of the MRI of plaintiff's lumbar spine performed on October 17, 2011 was as follows:
(Doc. 14, p. 418) The impression from the MRI of plaintiff's cervical spine included the following: "C5-C6 subligamentous central disc herniation leading to moderate central canal stenosis, moderate cord compression without cord deformity, significantly abnormal elevated T2 signal within the cord at this level." (Doc. 14, p. 438)
Neurosurgeon Dr. Leonardo Rodriguez-Cruz, M.D., examined plaintiff on November 16, 2011 on referral from Dr. Vermeesch. (Doc. 14, pp. 446-49) Based on the MRIs that Dr. Vermeesch had ordered, Dr. Rodriguez-Cruz assessed plaintiff with a herniated disc at C5-6 with myelopathy,
Plaintiff reported to Dr. Rodriguez-Cruz with low back pain on January 6, 2012. (Doc. 14, p. 462) Dr. Rodriguez-Cruz wrote a letter to Dr. Vermeesch that same day noting that plaintiff reports "his preoperative symptoms have improved," his "neurological exam is gradually improving," cervical spine xrays "revealed a stable fusion," plaintiff "may return to work soon, but we will discuss it further at the next office visit." (Doc. 14, p. 462) Dr. Rodriguez-Cruz also ordered a myelogram and lumbar CT scan, which were performed on January 12, 2012. (Doc. 14, pp. 456-62) The myelogram revealed a herniated disc at L4-5 on the right. (Doc. 14, pp. 460-61) A post-myelogram CT scan revealed a "mild annular bulge at the L3-4 level," "[v]ertebral body hemangioma at L2," "[s]table endplate compression fracture of L1 which is mild and old." (Doc. 14, pp. 457-59)
Plaintiff returned to see Dr. Rodriguez-Cruz on January 23, 2012 complaining of "gradually worsening" low back pain. (Doc. 14, pp. 463-65) Plaintiff reported his pain as 3-6/10, but he was in no acute distress at the time, paraspinal musculature was nontender to palpation, spinal ROM was normal, straight leg rise was positive on the right, strength was 5/5 in all extremities except the anterior tibialis,
Plaintiff was a walk-in to the Cookeville Regional ER on at 11:49 p.m. on February 4, 2012 complaining of severe lower back pain. (Doc. 14, pp. 547-63) He was discharged to home at 2:10 a.m. on February 5
Dr. Rodriguez-Cruz wrote a letter to Dr. Vermeesch on February 27, 2012 in which he noted that plaintiff's preoperative symptoms had improved since the L4-5 microdiskectomy on January 31, 2012, but that he has since developed "weakness and right hip pain." (Doc. 14, p. 480) Dr. Rodriguez-Cruz also noted that plaintiff's "neurological exam is gradually improving," and again that he "may return to work soon. . . ."
Plaintiff was treated on March 26, 2012 by Dr. Rodriguez-Cruz whose progress note reports that plaintiff had developed neck pain. (Doc. 14, pp. 481-83) Dr. Rodriguez-Cruz noted further that the musculature of plaintiff's thoracic and lumbosacral spine was nontender to palpation, ROM was normal, his strength was normal in his lower extremities, his gait was normal, and he was able to stand without difficulty. Dr. Rodriguez-Cruz concluded by noting: "Doing well. Symptoms resolved. Follow-up as needed. I have recommended that [he] see a chiropractor for his neck pain."
Plaintiff reported to Dr. Vermeesch on April 9, 2012 that he had been experiencing dizziness and blurry vision for 2 weeks. (Doc. 14, pp. 497-98) Dr. Vermeesch noted that Dr. Rodriguez-Cruz had cleared plaintiff to return to work, that plaintiff was "working in construction and looking up a lot," that plaintiff had not experienced these symptoms until after he returned to work, and that plaintiff believed the symptoms might be related to "being hot when out in the sun." (Doc. 14, p. 497)
Plaintiff arrived by ambulance to the Cookeville Regional ER at 9:45 p.m. on June 24, 2012 complaining of headaches "the past couple weeks," describing the headache pain as "moderate" "at its worst," and dizziness for the past 2-3 days. (Doc. 14, pp. 528-46) Plaintiff's neurological examination was normal, and his strength "5/5 in all extremities." (Doc. 14, p. 535). A CT scan was made of plaintiff's head with the following impression noted:
(Doc. 14, p. 545) Plaintiff was discharged to home at 12:12 a.m. the following morning; however, he was notified at 10:15 a.m. that same morning to return to the ER for a MRI.
Plaintiff returned to the Cookeville Regional ER on June 25, 2012. (Doc. 14, pp. 510-27) The impression reported from the MRI was: late acute or subacute stroke of the left cerebellum; old lacunar stroke of the left cerebellar hemisphere; old lacunar stroke of the left basal ganglia; patchy heterogenous regions of abnormal signal within the cerebellar hemisphere bilaterally; likely chronic possibly sequela of old ischemic injury . . . exact etiology
Plaintiff followed up with Dr. Crystal Martin, M.D., on July 3, 2012, following his MRI on June 25
Plaintiff presented to ophthalmologist Dr. Grisolano, M.D., on July 5, 2012 on referral from Dr. Martin to assess the residual effect of plaintiff's stroke on his visual acuity. (Doc. 14, pp. 781-83) The examination revealed that the right eye was "normal," and "very minimal temporal changes from [the] cva" in the left eye. (Doc. 14, p. 782)
Plaintiff was taken by ambulance to the Cookeville Regional ER on August 13, 2012 with two episodes of "[i]ntractable dizziness . . . for 12 hours." (Doc. 14, pp. 670-723) Examination revealed "mild left-sided weakness." (Doc. 14, p. 674) Imaging was summarized as follows:
(Doc. 14, p. 670) Given the "acute CVA findings and occlusion of the basilar artery," plaintiff was transferred to Erlanger Medical Center (Erlanger) the following day, August 14, 2012 where he was hospitalized. (Doc. 14, pp. 724-77)
Dr. Charles Joel, M.D., performed a cerebral angiogram at Erlanger on August 16, 2012 which revealed an occluded basilar artery with a left subclavian
Plaintiff presented to Dr. Grisolano on August 30, 2012 on referral from Dr. Martin to assess the residual effect of plaintiff's August 17th stroke on his visual acuity. (Doc. 14, pp. 778-80) The examination revealed that both eyes were "normal" (Doc. 14, p. 779), and plaintiff was instructed to return in one year (Doc. 14, p. 780).
Plaintiff followed up with Dr. Joel on October 15, 2012 who reported that plaintiff "has had no new stroke-type symptoms," "[h]e is undergoing therapy for his previous stroke," "[he] has no acute complaints otherwise," he is in "no distress," he exhibited "[p]reserved motor function of upper and lower extremities," and "he has easily palpable radial artery pulse on the left" with "triphasic
Dr. Joel, in turn, referred plaintiff to Dr. R. Lewis Wilson, M.D., on November 1, 2012 for further evaluation. (Doc. 14, pp. 822-83) Dr. Wilson reported that plaintiff appeared to be in "no acute distress," and there were "no sensory or motor focal deficits except [a] slightly weak left hand." Plaintiff's physical examination was otherwise normal, and a followup appointment was made for April 2, 2013. (Doc. 14, p. 823) The medical record of evidence does not show whether plaintiff kept the April appointment.
Plaintiff presented to Dr. Martin on November 30, 2012 for a "worried left shoulder." (Doc. 14, pp. 784-86) Plaintiff characterized his pain as "mild," and Dr. Martin noted that he exhibited no tenderness to palpation, had unspecified decreased ROM, and only mildly decreased strength. (Doc. 14, p. 785) An xray of plaintiff's left shoulder was unremarkable. (Doc. 14, pp. 798-99)
Plaintiff saw Dr. Martin about his shoulder again on December 4, 2012. (Doc. 14, pp. 788-89) Plaintiff presented with no pain at the time of the examination, but characterized his pain as mild when "manipulated." (Doc. 14, p. 788) Dr. Martin again noted unspecified decrease in ROM, but reported his strength as 5/5 bilaterally. (Doc. 14, pp. 788-89) Plaintiff specifically denied any weakness or decreased grip strength. (Doc. 14, p. 788)
Plaintiff presented to Dr. Amy Hix, M.D., for dizziness on May 1, 2013. (Doc. 14, pp. 824-26) Dr. Hix noted that plaintiff was "in no distress," that his heart and lungs were normal, and that his musculoskeletal exam was normal, i.e., symmetry, tone, strength, ROM, with no tenderness to palpation, and his gait within normal limits. (Doc. 14, p. 825)
Plaintiff was treated at the Cumberland River Hospital on October 8, 2013.
Plaintiff was examined at Erlanger, where the following neurological observations were made: no facial droop; strength 3-4/5 on the right side, upper and lower extremities; strength 5/5 on the left side, upper and lower extremities; sensation intact. (Doc. 14, p. 16) A CT scan and MRI done at Erlanger revealed no significant change in plaintiff's condition from the imaging performed earlier at the Cumberland River Hospital. (Doc. 14, pp. 19, 22, 25-27-28) Plaintiff was discharged from Erlanger on October 13, 2013, with a diagnosis that included "[i]ntracranial hemorrhage (left thalamic and basal ganglia with intraventricular
Plaintiff provided the following testimony at the hearing upon questioning by counsel: 1) he abandoned his last attempt to work in 2010 because he "couldn't stand, and [his] hands were numb"; (Doc. 14, p. 73); 2) his inability to stand was due to his back pain going into both legs (Doc. 14, pp. 73-74); 3) he still had problems with numbness in his hands, and still had difficulty picking things up (Doc. 14, pp. 74, 76); 4) he has not had neck pain since Dr. Rodriguez-Cruz operated on him (Doc. 14, p. 74); 5) he experienced lower back pain "[a] little bit every now and then" (Doc. 14, p. 75); 6) he had difficulty sitting for more than 1 hr. (Doc. 14, p. 76); 7) he had no difficulty turning his head from side to side, or moving it up and down (Doc. 14, pp. 76-77); 8) he had difficulty doing housework "[e]very now and then" (Doc. 14, p. 77); 9) he had difficulty buttoning his trousers and tying his shoes because of the numbness in his hands (Doc. 14, pp. 77-78); 10) he no longer was able to drive (Doc. 14, pp. 78-79); 11) before his stroke, his back would hurt if he lifted more than 50 lbs. (Doc. 14, p. 80); 12) he rated his back pain as 6 on a scale from 0 to 10 (Doc. 14, p. 82); 13) before his stroke, he had to lie down "[a]bout twice a week" for "[m]aybe a[n] hour at a time" because of back pain (Doc. 14, p. 84); 14) since his stroke, cannot use his left arm at all (Doc. 14, p. 85); 15) he has had balance problems since his stroke, had fallen "[o]nce or twice," and used a cane "[a]bout every day" (Doc. 14, p. 86); 16) his cousin had to buy his groceries for him (Doc. 14, p. 86); 17) he "scrounge[d] around" and was able to do most of his own housework (Doc. 14, pp. 86-87); 18) he was unable to take care of his yard (Doc. 14, p. 87); 19) his son checked up on him about every two weeks (Doc. 14, p. 87); 20) he was unable to take a shower because he had to sit down due to weakness in his left arm and leg (Doc. 14, p. 88); 21) he was unable to cook his meals on the stove (Doc. 14, p. 90); 22) he stayed home because he was unable to get out (Doc. 14, pp. 90-91).
Plaintiff provided the following additional testimony upon questioning by the ALJ: 1) the heaviest thing he could hold with his left hand was a pencil, although he "might" be able to hold a half-gallon of milk (Doc. 14, pp. 91-92); 2) he spent his day sitting and watching television because "[t]hat's all [he] can do" (Doc. 14, p. 92).
Under the Act, a claimant is entitled to disability benefits if he can show his "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. §§ 404.1505, 416.905. Corresponding regulations outline the five-step sequential process to determine whether an individual is "disabled" within the meaning of the Act. See 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Gayheart v. Comm'r of Soc. Sec., 710 F.3d 365, 374-75 (6
The district court's review of the Commissioner's final decision is limited to determining whether the Commissioner's decision is supported by substantial evidence in the record, and whether the decision was made pursuant to proper legal standards. 42 U.S.C. § 405(g); Gayheart, 710 F.3d at 374. Substantial evidence is less than a preponderance but more than a scintilla; it refers to relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); see Gentry v. Comm's or Soc. Sec'y, 741 F.3d 708, 722 (6
The evidence at issue here, discussed above at p. 14, pertains to the events of October 8-13, 2013 when plaintiff was diagnosed as having had an intracranial hemorrhage. As noted above at p. 14 n. 40, these records were first presented to the Appeals Counsel. The law is well established that federal courts reviewing claims for Social Security benefits may not reverse an ALJ's decision on the basis of evidence first submitted to the Appeals Council. See Cotton v. Sullivan, 2 F.3d 692, 695-96 (6
The next question is whether remand of this evidence for the ALJ to consider is appropriate under the sixth sentence of § 405(g). The sixth sentence of § 405(g) reads in relevant part as follows: "The court may . . . remand the case to the Commissioner of Social Security for further action by the Commissioner . . . but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding. . . ." Evidence is "new" if it did not exist at the time of the administrative proceeding, "material" if there is a reasonable probability that a different result would have been reached if introduced at the proceeding, and "good cause" is shown if there is "a reasonable justification for the failure to acquire and present the evidence for inclusion in the hearing before the ALJ." See Ferguson v. Comm'r of Soc. Sec., 628 F.3d 269, 276 (6
Evidence such as that at issue is material only if it concerns the plaintiff's condition prior to the ALJ's hearing decision or claimant's DLI. See Oliver v. Sec'y of HHS, 804 F.2d 964, 966 (6
Plaintiff offers the following arguments in support of this first claim of error: 1) the ALJ erred in giving great weight to the opinions of Drs. Keown and Caldwell because their opinions were not consistent with subsequent objective spine- and stroke-related medical evidence (Doc. 32, pp. 7-8); 2) no state agency medical consultant evaluated the record after the initial denial; therefore, the ALJ played doctor in evaluating the effect of plaintiff's multiple strokes, herniated cervical and lumbar discs, and residual symptoms of his neck
A claimant's RFC is an assessment of "the most he can do despite his limitations." 20 C.F.R. § 404.1545(a)(1). In making this determination, the ALJ must consider all relevant evidence in the record. 20 C.F.R. § 404.1545(a)(1); SSR 96-8P, 1996 WL 374184 at * 5 (S.S.A.). This evidence includes medical records, opinions of treating physicians, and the claimant's own description of his limitations. 20 C.F.R. § 404.1545(a)(3)
Plaintiff argues first that the ALJ erred in giving great weight to the opinions of Drs. Keown and Caldwell because their opinions were not consistent with subsequent objective spine- and stroke-related medical evidence. (Doc. 32, pp. 7-8) Plaintiff asserts that "the ALJ may have been justified in relying on . . . the[] opinions" of Drs. Keown and Caldwell but for the "additional purely objective medical evidence after these opinions. . . ." (Doc. 32, p. 7)
As an initial matter, the Magistrate Judge notes that, in determining eligibility for benefits, the relevant time period runs from the alleged disability onset date to the DLI, Watters v. Comm'r of Soc. Sec., 530 Fed.Appx. 419, 421 (6
The later objective spine-related medical evidence to which plaintiff refers is the September-2011 imaging of plaintiff's cervical and lumbar spine, and the two surgeries performed by Dr. Rodriguez-Cruz, discussed above at pp. 6-10. Although the imaging in September and October revealed that plaintiff had spinal issues that required surgical intervention, Dr. Vermeesch noted a month after Dr. Rodriguez-Cruz performed the second surgery that plaintiff admitted "overdoing it since surgery with working on cars and other things," the inference being that plaintiff's condition/symptoms were not such that he felt it necessary to restrict his activities due to back pain. Thereafter, on February 27, 2012, Dr. Rodriguez-Cruz wrote that plaintiff "may return to work soon" and, on April 9, 2012, Dr. Vermeesch confirmed that Dr. Rodriguez-Cruz had cleared plaintiff toto do so.
The record shows that the ALJ addressed the later spine-related evidence discussed in the paragraph above in his RFC assessment. (Doc. 14, p. 56) These later records provide substantial evidence that plaintiff's back-related issues had been resolved surgically, and that plaintiff had been cleared to return to work more than a year before the hearing. In short, there is nothing in the medical evidence of record, including the later spine-related records, that would have/should have caused the ALJ to assess a more restrictive RFC.
The stroke-related evidence to which plaintiff refers pertains to the imaging in June and August 2012 which led to Dr. Joel stenting an occluded basilar artery, discussed above at pp. 10-14. These events occurred more than a year after the relevant time period, and had nothing to do with any condition/symptom in the relevant time period. Consequently, these records are not germane to plaintiff's claim for benefits, or relevant to the matter before the court. However, because the ALJ chose to address these events in his RFC assessment (Doc. 14, pp. 56-57), the Magistrate Judge will do so as well for the sake of completeness.
As discussed above at pp. 11-13, subsequent evidence showed that Dr. Grisolano determined that the stroke had no effect on plaintiff's visual acuity, and that both of his eyes were normal. Subsequent evidence also reveals that Dr. Joel noted plaintiff had experienced no new stroke symptoms, and that his upper and lower extremity motor functions were intact, and Dr. Wilson noted that plaintiff had "no sensory or motor focal deficits except [a] slightly weak left hand," and that his examination was otherwise normal. In short, there is nothing in the later stroke-related evidence that would have warranted the ALJ to assess a more restrictive RFC.
Plaintiff asserts in his second argument that no state agency medical consultant evaluated the record after his claim had been denied on initial review and, as a consequence, the ALJ played doctor "in an effort to evaluate the impact" plaintiff's stroke and spine-related conditions/symptoms. Turning to the first part of this argument, the record shows that plaintiff's claims were, in fact, "independently reviewed by a physician and disability examiner" upon reconsideration. (Doc. 14, pp. 127-30) The reviewing disability examiner was Charris Malone, and the physician was Dr. Charles Settle, M.D. (Doc. 14, pp. 105-06).
Notwithstanding the foregoing, plaintiff refers to p. 423 in support of this argument. Page 423 is a blank impairment rating form in a multi-page disability worksheet intended to have been completed upon reconsideration. (Doc, 14, pp. 421-28) Although the impairment rating form has not been completed, notes on the following page, i.e., p. 424, are illuminating:
(Doc. 14, p. 424)(capitalization in the original) The notes on p. 424 show that the impairment rating form was not completed because plaintiff did not provide the information necessary to complete it — information requested both in writing and by telephone.
In addition to the foregoing, the record shows that plaintiff was represented by attorney Simpson when he sought reconsideration. (Doc. 14, pp. 120, 122-26) When a claimant is represented by counsel, the responsibility to develop the record falls to counsel, not the ALJ. See Bass v. McMahon, 499 F.3d 506, 514 (6
Plaintiff asserts in the next part of his second argument that the ALJ played doctor in his RFC determination. To that end, the record shows that there were two medical source statements before the ALJ at the time he determined plaintiff's RFC. The first was Dr. Keown's July 19, 2011 report, discussed above at pp. 4-5, in which she all but accused plaintiff of malingering. The second was Dr. Caldwell's August 10, 2011 report, discussed above at pp. 5-6, in which she assessed plaintiff's conditions/limitations in view of the medical evidence of record before her. Both reports were written subsequent to the relevant period, i.e., plaintiff's April 23, 2006 alleged initial onset date and plaintiff's March 31, 2011 DLI, and both pertained to plaintiff's alleged conditions/limitations during the relevant period of time. Comparing and contrasting the ALJ's RFC assessment with the reports of Drs. Keown and Caldwell, show that, far from playing doctor, the ALJ's RFC assessment tracks those two reports. Moreover, as shown in the analysis above, the ALJ's RFC assessment is supported by the record both during and after the relevant period.
Plaintiff asserts in his third argument that the ALJ erred in not obtaining a formal evaluation of plaintiff's alleged conditions/limitations. As discussed above at p. 22, plaintiff was represented by counsel. It was counsel's responsibility to obtain formal medical evaluations of plaintiff's conditions/limitations, not the ALJ's.
Plaintiff cites SSR 96-8P in support of his final argument that "the ALJ did not explain the material inconsistencies between [his] testimony and the assessed residual functional capacity." (Doc. 32, p. 9) In deciding a claimant's RFC, the ALJ considers numerous factors in constructing a claimant's RFC, including the medical evidence, non-medical evidence, and the claimant's statements about what he is able to do. See 20 C.F.R. § 404.1545(a)(3); SSR 96-5p, 1996 WL 374183 at * 3; SSR 96-8p, 1996 WL 374184 at * 5. However, the ALJ is required to incorporate into the RFC only those limitations he accepts as credible. See Irvin v. Soc. Sec. Admin., 573 Fed.Appx. 498, 502 (6
The ALJ's decision shows that he conducted an in depth review of the medical evidence of record in the RFC assessment, evidence that applied both to the relevant period and after. (Doc. 14, pp. 54-57) The ALJ also considered plaintiff's testimony in the RFC assessment (Doc. 14, pp. 55, 57), although he did not address specific inconsistencies. That said, the ALJ did address all of plaintiff's alleged impairments/symptoms and determined that the record did not support the intensity, persistence and limiting effects alleged. Because the ALJ determined that the medical record of evidence did not support plaintiff's claims of intensity, persistence and limiting effects, and because the ALJ's determination was supported by substantial evidence, any error on the ALJ's part from not doing an inconsistency-by-inconsistency analysis of those inconsistencies to which plaintiff refers is harmless at best.
Plaintiff's first claim of error is without merit for the reasons explained above.
Plaintiff argues that the ALJ erred in failing to include the following as severe impairments at step two: hypertension, neck and back disorders, and multiple strokes.
The record shows that the ALJ did, in fact, consider each and every one of the additional impairments at issue in his RFC analysis. (Doc. 55-56) The ALJ's analysis of these additional impairments took into consideration the medical evidence of record with respect to these additional impairments, both during and after the relevant period of time, and his assessment was supported by substantial evidence as already discussed. (Doc. 57) Plaintiff's second claim or error is without merit.
Plaintiff argues in his third claim of error that the ALJ improperly evaluated his credibility because the ALJ's reliance on the opinions of Drs. Keown and Caldwell was "misplaced" "given the voluminous documentation of [plaintiff's] impairments after that date," and that the ALJ "cherry-picked the medical evidence he believed supported his conclusion and failed to properly consider evidence inconsistent with that conclusion."
The ALJ is required to "explain his credibility determinations in his decision such that it `must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's statements and the reasons for that weight.'" Rogers v. Comm'r of Soc. Sec, 486 F.3d 234, 248 (6
The ALJ did, in fact, accord great weight to the opinions of Drs. Keown and Caldwell. However, the ALJ did not rely solely on their opinions in his credibility analysis. The record shows that the ALJ engaged in a thorough and thoughtful analysis of all of plaintiff's impairments based on the medical evidence of record, that he compared and contrasted the alleged intensity, persistence, and limiting effects of plaintiff's condition/symptoms in the context of those records and plaintiff's testimony, and that his assessment of plaintiff's credibility — or the lack thereof — was supported by substantial evidence.
As for plaintiff's claim that there is "voluminous documentation of [plaintiff's] impairments after that date," i.e., after the opinions of Drs. Keown and Caldwell, substantial evidence within that body of evidence supports the ALJ's conclusion that plaintiff `s claims of intensity, persistence, and limiting effects due to his conditions/symptoms were not credible. More particularly, plaintiff argues that objective medical evidence pertaining to his back constitutes such evidence. However, plaintiff disregards the fact, as discussed above at pp. 8-10, that those issues were resolved surgically, after which he was cleared to return to work. The same can be said about plaintiff's claim that medical evidence pertaining to his "multiple strokes" constitutes evidence of his credibility. Again, not true! As discussed above at pp. 10-14, the evidence pertaining to plaintiff's 2012 stroke shows that the stroke left him — at worst — with a "slightly weak left hand," a limitation accounted for in the RFC assessment.
Plaintiff argues next that the ALJ was "mistaken in reporting [plaintiff] alleged he performed no daily activities." The ALJ stated the following in his decision: "Although he alleged he performed no daily activities, the undersigned finds such assertions incredible and not supported by the medical evidence that does not show such sever limitations." (Doc. 14, p. 57)
ADLs refer to "the basic tasks of everyday life such as eating, bathing, dressing, toileting, and transferring." See Hines v. Colvin, Slip Copy, 2015 WL 4355978 n. 2 (W.D. Ky. July 14, 2015)(citation omitted). The portion of the transcript of the hearing, summarized above at pp. 15-16, show that plaintiff was unable to cook his meals, he was unable to shower, he had difficulty buttoning his trousers and tying his shoes, he was unable to drive, his cousin had to buy his groceries for him, and he had to stay home because he was unable to go out. The ALJ's assessment that plaintiff "alleged he performed no daily activities" is a fair characterization of plaintiff's testimony as to his ADLs.
Finally, plaintiff alleges that "the ALJ cherry-picked the medical evidence he believed supported his conclusion and failed to properly consider evidence inconsistent with that conclusion." (Doc. 14, p. 15) Plaintiff fails to provide any examples of how the ALJ cherry-picked the medical evidence to support conclusion, or evidence that was inconsistent with his credibility assessment. The district court is not obligated on judicial review to supply factual allegations in support of claims where no facts are alleged. See Hollon ex rel. Hollon v. Comm'r of Soc. Sec., 447 F.3d 477, 491 (6
Plaintiff asserts that his final claim of error "follows from the ALJ's failure to properly weigh the medical evidence." He goes on to link this claim of error to "the ALJ's assessment of [his] residual functional capacity," and that his previous argument is "equally compelling in support of the proposition that the ALJ's finding that [plaintiff] can perform jobs identified by the VE is not supported by substantial evidence." As previously discussed above at pp. 18-24, the ALJ's RFC assessment was supported by substantial evidence, i.e., it was not in error. Because the ALJ did not err in his RFC analysis, the VE's testimony in the context of that RFC analysis also was not in error. Consequently, plaintiff's fourth claim of error is without merit.
For the reasons explained above, the undersigned
