SUZANNE H. SEGAL, Magistrate Judge.
Tyren Lavar Seabrooks ("Plaintiff") brings this action seeking to overturn the decision of the Acting Commissioner of Social Security (the "Commissioner" or "Agency") denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. (Dkt. Nos. 11, 12, 13). For the reasons stated below, the Court AFFIRMS the Commissioner's decision.
On April 18, 2012, Plaintiff filed an application for Disability Insurance Benefits ("DIB") pursuant to Title II of the Social Security Act, alleging a disability onset date of January 1, 2009. (AR 111-13). On July 25, 2012, Plaintiff filed an application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act, also alleging a disability onset date of January 1, 2009. (AR 165-66). The Commissioner denied Plaintiff's applications initially and on reconsideration. (AR 43-62, 64-68, 77-81). Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") (AR 82-84), which took place on July 21, 2014, and March 9, 2015 (AR 1280-338).
Plaintiff was born on February 19, 1977. (AR 111, 1303). He was thirty-seven (37) years old when he appeared before the ALJ on July 21, 2014. (AR 1293). Plaintiff has a high-school degree. (AR 1303). He is divorced with two daughters. (AR 1301-02). Plaintiff previously worked as a truck driver, working up to fourteen hours a day, six days a week, and lifting up to fifty pounds. (AR 125-26). He alleges disability due to right shoulder rotator cuff surgeries, right knee surgery, lower back and neck pain, depression and anger issues. (AR 115).
At the July 2014 hearing, Plaintiff testified that he cannot work due to pain in his right shoulder, both knees, right hip and lower back, along with chronic migraines throughout the day. (AR 1312). His medications alleviate the pain but make him groggy. (AR 1307-08, 1315-16). He denied using any drugs since 2002. (AR 1311-12).
Plaintiff testified that he can walk only a block or two before needing to rest for a minute or two. (AR 1317). His knees sometimes "give out" so he needs to move them up and down to keep them from locking. (AR 1310, 1318). He estimated that he can lift only a quart of milk with his upper right extremity. (AR 1325).
At the March 2015 hearing, Plaintiff testified that his right shoulder "pops out of place" whenever he tries to reach for anything. (AR 1286). He denied any problems with standing or walking. (AR 1286). He denied riding a bicycle since he fell and broke his elbow. (AR 1287). His pain medications help for a few hours before needing to take them again. (AR 1288).
Plaintiff sustained work-related injuries in June 2007, when the front-end loader he was operating fell around twenty feet. (AR 1132). He complained of pain in his right shoulder, neck, right hip, right knee and lower back. (AR 1132). He was treated for sprains and strains. (AR 1132). After his injury, he worked for Viola Services "in a relatively light job" at a refinery, requiring some bending and lifting. (AR 1132). He continued to have pain in his right shoulder, right hip and right knee. (AR 1132). A June 2008 MRI of the cervical spine revealed only mild degenerative changes at C5-6 and C6-7. (AR 214). Plaintiff worked at the refinery until July 2009 when he left to have abdominal surgery. (AR 1133).
On July 15, 2012, Richard J. Palmer, Ph.D., performed a comprehensive psychiatric evaluation on behalf of the Agency. (AR 627-32). While Plaintiff ambulated without assistance, his movements were slow, stiff and apparently painful. (AR 627). He denied current drug and alcohol abuse and dependency issues. (AR 628). He acknowledged being in drug rehabilitation in 2002 but claimed that he has been "clean" and "rarely" drinks alcohol since that time. (AR 628). Plaintiff acknowledged being able to perform basic activities of daily living independently, including household tasks, cooking and shopping. (AR 629). He spends the day walking and exercising his injured areas. (AR 629). Dr. Palmer diagnosed major depressive disorder and adjustment disorder with anxiety. (AR 630). He opined that Plaintiff is able to perform simple, repetitive tasks, accept instructions from supervisors and interact with coworkers and the public. (AR 631). Plaintiff is mildly limited in his ability to maintain regular attendance, complete a normal workday without psychiatric interruptions and handle normal work-related stresses. (AR 631).
On July 28, 2012, David Hoenig, M.D., performed a comprehensive orthopedic examination on behalf of the Agency. (AR 634-37). Plaintiff complained of right shoulder pain. (AR 634). On examination, Plaintiff ambulated with a normal gait and without assistance. (AR 635). He was able to sit comfortably and get on and off the examination table without difficulty. (AR 635). A physical examination was largely unremarkable. (AR 636). Dr. Hoenig opined that Plaintiff can lift and carry twenty-five pounds occasionally, secondary to reduced range of motion in his right shoulder. (AR 637).
On June 18, 2013, Plaintiff was riding his bicycle around fifty miles per hour when he fell over his handlebars, fracturing his left elbow. (AR 965).
On January 4, 2014, Plaintiff presented to the emergency room, complaining of a severe headache. (AR 885). He reported starting an exercise program, riding his bicycle for several miles, several times a week. (AR 886). A physical examination was largely unremarkable. (AR 886-87). He was diagnosed with acute viral syndrome, chest pain, headache with acute exacerbation of underlying tension headaches, and a history of pituitary adenoma. (AR 887).
On January 16, 2014, x-rays of Plaintiff's right knee were essentially normal. (AR 830). X-rays of the right shoulder revealed multiple ossicles in the soft tissues adjacent to the acromioclavicular joint, which had increased since June 2012. (AR 831). Plaintiff tested positive for cocaine and marijuana. (AR 1206).
On July 16, 2014, Plaintiff presented with flank pain. (AR 1221). He reported that he continues to ride his bicycle and lift weights. (AR 1221). He was diagnosed with acute musculoskeletal flank pain, chronic kidney disease and history of pituitary tumor treated medically. (AR 1222).
On August 4, 2014, Andrew K. Burt, M.D., an orthopedic surgeon, performed an orthopedic social security disability evaluation at the request of Plaintiff's non-attorney representative. (AR 1132-41). Dr. Burt obtained a medical history from Plaintiff and reviewed some medical records. (AR 1134-36). Dr. Burt performed an orthopedic examination, limited to Plaintiff's right shoulder, right knee and right hip. (AR 1137). Dr. Burt found limited range of motion in Plaintiff's right shoulder, i.e., forward flexion was limited to seventy degrees, posterior extension limited to thirty degrees, abduction limited to forty degrees and adduction limited to twenty degrees. (AR 1137). Plaintiff complained of pain at the extremes of motion. (AR 1137). Dr. Burt diagnosed postoperative status right shoulder surgery, residual right shoulder loss of motion and pain due to rotator cuff injury and subsequent surgical distal clavicle excision, posttraumatic trochanteric bursitis of the right hip, posttraumatic degenerative osteoarthritis of the right knee and status post arthroscopic right knee with residual. (AR 1139). Dr. Burt opined that Plaintiff cannot perform heavy physical activity and is limited in his ability to sit, stand and walk. (AR 1141).
On November 7, 2014, Plaintiff reported temporary relief of his right shoulder and right knee pain with injections of Kenalog and Marcaine. (AR 1159). Eric S. Schmidt, M.D., advised Plaintiff to intensify his home exercise program for his right shoulder emphasizing scapular stabilization exercises, progressive rotator cuff strengthening and capsular stretches. (AR 1160). He also advised Plaintiff to continue to use his exercise bicycle to strengthen his right knee. (AR 1160). Dr. Schmidt prescribed Anaprox (naproxen) and referred Plaintiff for physical therapy. (AR 1160).
To qualify for disability benefits, a claimant must demonstrate a medically determinable physical or mental impairment that prevents the claimant from engaging in substantial gainful activity and that is expected to result in death or to last for a continuous period of at least twelve months.
To decide if a claimant is entitled to benefits, an ALJ conducts a five-step inquiry. 20 C.F.R. §§ 404.1520, 416.920. The steps are:
The claimant has the burden of proof at steps one through four and the Commissioner has the burden of proof at step five.
The ALJ employed the five-step sequential evaluation process and concluded that Plaintiff was not disabled within the meaning of the Social Security Act. (AR 26). At step one, the ALJ found that Plaintiff met the insured status requirements through March 31, 2014, and had not engaged in substantial gainful activity since January 1, 2009, the alleged disability onset date. (AR 18). At step two, the ALJ found that Plaintiff's right shoulder impairment, status-post surgeries on June 28, 2009, July 19, 2011, and September 4, 2012; right knee impairment, status-post surgery on September 7, 2010; osteoarthritis; obesity and affective disorders are severe impairments. (AR 18). At step three, the ALJ determined that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of any of the listings enumerated in the regulations. (AR 19-20).
The ALJ evaluated Plaintiff's credibility and rejected the degree of pain and limitation asserted by Plaintiff. Among other factors, the ALJ noted that Plaintiff's statements regarding his prior drug use (Plaintiff stated that he was drug-free since 2002) were undermined by a positive drug test for cocaine and marijuana in 2014; by a State Agency analysis noting polysubstance abuse in 2009, and an observation by Dr. Hasan in 2009 that Plaintiff had a history of chemical dependence (alcohol and cocaine). (AR 22). The ALJ also noted that the State Agency found Plaintiff had an RFC for medium work. (AR 21).
The ALJ assessed Plaintiff's RFC and concluded that he can perform the full range of light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).
Under 42 U.S.C. § 405(g), a district court may review the Commissioner's decision to deny benefits. "[The] court may set aside the Commissioner's denial of benefits when the ALJ's findings are based on legal error or are not supported by substantial evidence in the record as a whole."
"Substantial evidence is more than a scintilla, but less than a preponderance."
In his opening brief, Plaintiff contends that the ALJ erred for the following two reasons: (1) the ALJ erred in rejecting Plaintiff's testimony regarding his subjective symptoms and functional limitations; and (2) the ALJ failed to properly evaluate Dr. Burt's opinion regarding Plaintiff's right shoulder limitations. (Dkt. No. 17 at 2-9).
Plaintiff vigorously argued in his opening brief that the ALJ erred in rejecting his subjective statements. (Dkt. No. 17 at 2-6). However, after Defendant filed her response brief, Plaintiff expressly "withdr[e]w his first argument regarding the ALJ's evaluation of [his] testimony." (Dkt. No. 23 at 3). Nevertheless, in reaching his opinion, Dr. Burt relied in part on the reliability of Plaintiff's subjective statements. The ALJ's evaluation of Plaintiff's credibility is therefore vital to the Court's assessment of Plaintiff's second argument, i.e., whether the ALJ properly evaluated Dr. Burt's opinion regarding Plaintiff's right shoulder limitations. As such, the Court will evaluate the ALJ's credibility determination prior to addressing the ALJ's analysis of Dr. Burt's opinion.
Plaintiff asserted that he is unable to work because he is in constant pain. (AR 1312). He experiences residual headaches from his pituitary tumors. (AR 1318). His pain medications cause him to be groggy during the day. (AR 1307-08). He can walk only one or two blocks before needing to stop and rest. (AR 1317). He estimated that he can lift only a quart of milk with his upper right extremity. (AR 1325).
When assessing a claimant's credibility regarding subjective pain or intensity of symptoms, the ALJ must engage in a two-step analysis.
If the claimant satisfies this first step, and there is no evidence of malingering, the ALJ must provide specific, clear and convincing reasons for rejecting the claimant's testimony about the symptom severity.
In discrediting the claimant's subjective symptom testimony, the ALJ may consider the following:
Further, the ALJ must make a credibility determination with findings that are "sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony."
The ALJ provided two specific, clear and convincing reasons to find Plaintiff's complaints of debilitating pain not entirely credible. (AR 20-24). These reasons are sufficient to support the Commissioner's decision.
The ALJ found Plaintiff not entirely credible because his reported symptoms were inconsistent with his acknowledged activities. (AR 21-22, 24);
The ALJ also noted that Plaintiff told Dr. Burt that he had worked in a relatively light job at a refinery from 2007 through 2009. (AR 22, 1132). However, Plaintiff had previously reported that his job as a truck driver at the refinery involved working up to fourteen hours a day, six days a week, and required lifting up to fifty pounds. (AR 22, 125-26).
Additionally, Plaintiff told Dr. Palmer in July 2012 that he had a history of cocaine and alcohol abuse, but that after being in drug rehabilitation in 2002, he has been "clean" and "rarely" drinks alcohol. (AR 24, 628). Plaintiff testified in July 2014 that while he had used drugs and alcohol in the past, he had been clean and sober since 2002. (AR 1311-12). However, a drug test in January 2014 was positive for cocaine and marijuana. (AR 22, 1206).
Finally, Plaintiff acknowledged to Dr. Palmer that he was living alone and was able to independently perform basic activities of daily living, including household tasks, cooking and shopping. (AR 24, 629). Plaintiff also reporting spending his days walking and exercising. (AR 24, 629). "ALJs must be especially cautious in concluding that daily activities are inconsistent with testimony about pain, because impairments that would unquestionably preclude work and all the pressures of a workplace environment will often be consistent with doing more than merely resting in bed all day."
The ALJ properly could find, on the basis of Plaintiff's reported activities, that his testimony regarding debilitating pain was not entirely credible.
The ALJ found Plaintiff not entirely credible because his reported symptoms were not corroborated by the medical evidence of record. (AR 20-24). The ALJ identified multiple medical records with sufficient specificity that contradicted Plaintiff's allegations of debilitating pain.
The ALJ noted that Plaintiff treated his shoulder and knee pain with injections, a home exercise program, an exercise bicycle and physical therapy. (AR 23, 1159-60). Plaintiff testified that his pain medications relieved his pain. (AR 23, 1308). "Impairments that can be controlled effectively with medication are not disabling for the purpose of determining eligibility for SSI benefits."
The ALJ also noted inconsistencies between Plaintiff's testimony and the objective medical evidence. (AR 20-24). "Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony."
Plaintiff contends that the Court "should reject the ALJ's analysis of [Plaintiff's] testimony because the ALJ relied only on the medical evidence." (Dkt. No. 17 at 4). While the ALJ "may not reject a claimant's subjective complaints based solely on a lack of objective medical evidence to fully corroborate the claimant's allegations,"
In sum, the ALJ offered clear and convincing reasons, supported by substantial evidence in the record, for his adverse credibility findings.
Plaintiff contends that the ALJ failed to properly evaluate Dr. Burt's opinion regarding Plaintiff's right upper extremity limitations. (Dkt. No. 17 at 6-9).
"To reject an uncontradicted opinion of a treating or examining doctor, an ALJ must state clear and convincing reasons that are supported by substantial evidence."
Dr. Burt examined Plaintiff on a referral from Plaintiff's non-attorney representative. (AR 1132-41). Dr. Burt opined that Plaintiff met listings 1.01 and 1.02, was limited to less than a full range of sedentary work, could not sit for six hours during the workday, and could not stand or walk for two hours during the workday. (AR 1140-41). The ALJ gave "little weight" to Dr. Burt's opinion "because it appears to have been based to a large degree on [Plaintiff's] subjective complaints and is not consistent with the weight of the additional medical evidence or the record as a whole." (AR 23). Plaintiff does not contest these findings. Instead, he argues that the ALJ ignored Dr. Burt's finding that Plaintiff "cannot use his right upper extremity away from his body," which Plaintiff interprets as "restrict[ing] [Plaintiff] from reaching with his right upper extremity." (Dkt. No. 17 at 6). However, Dr. Burt did not assess an upper right extremity limitation.
Dr. Burt noted Plaintiff's subjective complaints that he had right shoulder pain and could not use his right arm away from his body. (AR 1139-40). However, when Dr. Burt provided an opinion regarding Plaintiff's functional limitations, he merely concluded that Plaintiff could not perform heavy physical activity and was limited in his ability to sit, stand and walk. (AR 1141). Dr. Burt did not include any reaching limitations. (AR 1141).
Even if Dr. Burt had included a reaching limitation, the ALJ properly afforded the opinion little weight. "An ALJ may reject a treating physician's opinion if it is based `to a large extent' on a claimant's self-reports that have been properly discounted as incredible."
Further, Dr. Burt's opinion was contradicted by Plaintiff's statements.
Dr. Burt's opinion that Plaintiff meets listings 1.01 and 1.02 was inconsistent with the medical record. As the ALJ noted, two MEs and the State Agency physicians all concluded that Plaintiff did not meet or equal a listing. (AR 23, 27-62, 1143, 1148).
Plaintiff contends that Dr. Hoenig's opinion supports a reaching limitation. (Dkt. No. 17 at 8-9). However, the ALJ found Dr. Hoenig's "assessment of reaching limitation on the right . . . not . . . to be supported by the record" (AR 23), a finding that Plaintiff does not directly contest. In any event, the ALJ limited Plaintiff to no more than light work, which "involves lifting no more than 20 pounds at a time," 20 C.F.R. §§ 404,1567(b), 416.967(b), "primarily [due to his] lifting limitations." (AR 21). Even if Plaintiff's right shoulder impairment precluded him from lifting
In sum, the ALJ provided specific and legitimate reasons, supported by substantial evidence in the record, for giving Dr. Burt's opinion little weight. Accordingly, because substantial evidence supports the ALJ's assessment of Dr. Burt's opinion, no remand is required.
Consistent with the foregoing, IT IS ORDERED that Judgment be entered AFFIRMING the decision of the Commissioner. The Clerk of the Court shall serve copies of this Order and the Judgment on counsel for both parties.